Wednesday, November 5, 2014

East Newark pays $101,000 plus attorney fees to settle former police dispatcher's lawsuit claiming forced oral sex. Lawyer seeks $1.2 million in fees.

Update: 11/22/14:  Although Arias' lawyer sought a total of $1,215,935.15 in costs and legal fees, Judge Kimberly Espinales-Maloney cut the amount substantially and awarded him $93,480.15.  Her opinion, which is misdated (it was really argued on November 7, 2014 and issued on November 10 2014), is on-line here.
On July 25, 2014, Hudson County Superior Court Judge Mary K. Costello confirmed an agreement under which the Borough of East Newark (Hudson County) agreed to pay a Borough former police dispatcher and volunteer firefighter $101,000 in damages, plus attorney fees to be established by the court, to settle her lawsuit which claimed that she was repeated assaulted sexually by a Borough police sergeant.  In an October 8, 2014 application to the court, the woman's attorney applied for attorney fees of $786,247.50, costs of $36,563.90 and a "contingency enhancement" of $393,123.75 for a total award of $1,215,935.15.  Judge Kimberly Espinales-Maloney is scheduled to hear the attorney's application on Friday, November 7, 2014, 9 a.m. in Courtroom 807, 595 Newark Avenue, Jersey City.

In her suit, Viviana Arias said that she served as a volunteer firefighter at the East Newark Fire Department from 2004 until her forced resignation in 2012 and also worked as a dispatcher for the East Newark Police Department from May 2008 until her termination on May 1, 2010.  She claimed that while working as a dispatcher, Sergeant Robert Tomasko "would repeatedly order Plaintiff Arias to work shifts that would create an opportunity where the two of them would be left alone." When working together along, Arias alleged that Tomasko would "force [her] to perform oral sex upon him [and] force [her] to swallow his sperm upon ejaculating."

She said that this would cause her to go into the bathroom and vomit and that Tomasko threatened to "immediately fire" her should she disclose to anyone what had occurred.  Arias also alleged that Tomasko would taunt and threaten her with comments such as "I am a family man and you are just a bitch with two children by two different fathers" and "I know where your children go to school" According to the complaint, Tomasko fired her on May 10, 2010 because he realized that "Borough of East Newark Police Department was becoming aware of the [alleged sexual] conduct . . . and terminated [her] in an effort to silence her."

In another count of her complaint, Arias alleged that she was harassed out of the Borough's fire department, where Tomasko served as fire chief, because of her pregnancy, her gender and as retaliation for having made the sexual allegations against Tomasko.

Arias' attorney, Paul S. Foreman of Whippany, has asked the court to award him a total of $1,215,935.15 in fees and costs for representing Arias.  In court filings, he complained that the law firm of Roth D'Aquanni of Springfield, which had been hired by East Newark to investigate Arias's allegations against Tomasko, did not interview "one single police officer other than Tomasko and did not interview East Newark Police Chief Kenneth Sheehan."

Among other documents received from East Newark in response to an Open Public Records Act (OPRA) request were letters from 2013 and 2014 indicating that Tomasko "took a voluntary demotion rather than going through with the rest of the discipline."

The case is captioned Arias v. East Newark, Docket No. HUD-L-2155-12. Case documents, including those pertaining Foreman's attorney fee claim and the voluntary demotion, are on-line here.

None of Arias's allegations have been proven or disproven in court. The settlement agreement resolution expressly states that the $101,000 payment does not constitute an admission of wrongdoing by East Newark, Tomasko or any of its officials. All that is known for sure is that East Newark or its insurer, for whatever reason, decided that it would rather pay Arias $101,000 than take the matter to trial. Perhaps the defendants' decision to settle was done to save further legal expense and the costs of trying what were in fact exaggerated or meritless claims. Or, perhaps the claims were true and the defendants wanted to avoid being embarrassed at trial. This is the problem when cases settle before trial--it is impossible to know the truth of what really happened.