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Hackensack, N.J. (May 1, 2012) - In a rare holding in favor of the defendants in a case involving allegations of whistleblowing and discrimination filed by a Hackensack police officer against her employer, its Chief of Police and the Bergen County Prosecutor's Office, the NJ Superior Court ruled on 3/6/12 in favor of the Prosecutor's Office and Bergen County. The ruling regarded a motion filed on the defendants' behalf by FPSF for attorneys' fees and costs following dismissal of the case against them by the Appellate Division in December 2011, where a panel held that the suit was without basis in law or in fact.
In declaring the claim frivolous under the Frivolous Litigation Statute, Judge Susan Steele ruled that the fee shifting provisions of that Statute, the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, and New Jersey Civil Rights Act, were triggered, thereby entitling the prevailing party defendants to an award in excess of $128,000.
In 2009, Alessandra Viola filed a civil lawsuit against suspended Hackensack Police Chief Ken Zisa and the City of Hackensack, alleging sexual harassment, hostile work environment, and violations of her civil rights. More than a year later, Viola amended her complaint to include the Bergen County Prosecutor's Office, claiming that she continued to suffer retaliation and longstanding disciplinary charges after the Prosecutor's Office began its monitoring of the police department under an MOU between the Prosecutor and her employer. These amended claims seeking to add the Prosecutor's Office as another defendant in her suit were ultimately discussed, and deemed baseless and "hollow" by the Appellate Division.
J. Andrew Kinsey, who has served as lead counsel and who also heads the labor and employment law practice at Florio Perrucci Steinhardt & Fader, LLC, explained that "This decision discourages plaintiffs from 'piling on' multiple defendants where no real basis in law or fact exists, simply to inflate the nuisance value of a case." Mr. Kinsey continued to explain that when deciding an application for attorney's fees "[a] claim will be deemed frivolous or groundless when no rational argument can be advanced in its support, when it is not supported by any credible evidence, when a reasonable person could not have expected its success, or when it is completely untenable." Belfer v. Merling, 322 N.J. Super. 124, 144-145 (App. Div. 1999) (interpreting N.J.S.A. 2A:15-59.1).
Paul Fader, a partner at Florio Perrucci Steinhardt & Fader, LLC, said "the decision to require Viola to pay his clients' fees should send a message to anyone seeking to file a frivolous lawsuit against a public entity. It's very difficult for government entities to defend themselves in cases like this. Sometimes plaintiffs will bring claims to push for settlement. A decision like this will prevent that from happening in the future."