Thursday, December 17, 2015

Neptune Fire District No. 1 pays $150,000 to settle whistleblower and discrimination lawsuit.

On November 17, 2015, the Neptune Township Fire District No. 1 (Monmouth County) agreed to pay $150,000 to an African-American firefighter, who said that he wasn't being paid for the extra work he was doing, was subjected to racial discrimination and retaliated against for making Open Public Records Act (OPRA) requests.

In his suit, Dwayne Breeden, a paid firefighter who also worked for the District as a fire inspector, said that he was appointed to the position of "Temporary Fire Official" after Kenneth G. Northrup's retirements from the Fire Official position in 2009.  Yet, Breeden claimed, he was being paid much less than Northrup even though Breeden performed duties as a firefighter in addition to his duties as a Temporary Fire Official.

Breeden claimed that before he could be paid more, state officials needed to approve his "Firefighter/Fire Official" position.  After he began to suspect that he was being "given the proverbial run-around" regarding the approval, he submitted an OPRA request to the District.  He said that he was initially pleased when, in April 2011, the Board agreed to negotiate with him.  Although he responded promptly to the District's overtures, Breeden claimed that the District reneged on its promise to negotiate and pay him extra for his Fire Official duties.  He claimed that his further inquires and OPRA requests resulted in harassment and retaliation.

Responding to the retaliation, Breeden said that he "blew the whistle" on what he claimed was the District's "attempts at compromising fire safety and prevention in Neptune Township."  In support of that claim, Breeden asserted that since he took over Northrup's job, the Board did not reappoint a fire inspector.  Accordingly, Breeden said he was aggrieved by having to simultaneously perform the Fire official's job, the inspector's job as well as function as a paid firefighter.

Breeden said that he also contacted Frank Clark of the New Jersey Division of Fire Safety to complain about the Board not enforcing violations in a timely manner and for committing "financial improprieties."   This, he said, caused Clark to perform a field visit to the District and issue an unfavorable report.

The next allegation of retaliation came shortly after the Board learned of Breeden's call to Clark.  At the October 15, 2013 meeting, the Board voted to remove Breeden from his "Firefighter/Fire Official" position and establish an "office of Fire Marshall" who would be paid $55,000 per year. The Board then gave Breeden the "Hobson's Choice" of keeping his firefighter position or resigning as a firefighter in order to be the Fire Marshall.  Since he was making more than $55,000 as a firefighter, Breeden knew that the Board realized that he couldn't take the Fire Marshall position.  He said that all of this was a conspiracy "to effect the wrongful de facto discharge of Breeden as Fire Official."

Breeden based his racial discrimination claim on Fire Commissioner Frank Martuscelli's alleged comment that Breeden was "different" than Northrup. He said that that comment caused him to realize that his lesser pay and other negative treatment"stemmed from the fact that he was African-American."

The case is captioned Breeden v. Fire District of Neptune et al, Monmouth County Superior Court Docket No. MON-L-3367-14 and Breeden's attorney was Stephan T. Mashel of Morganville.  Case documents are on-line here.

None of Breeden's allegations have been proven or disproven in court. The settlement agreement resolution expressly states that the $150,000 payment does not constitute an admission of wrongdoing by Neptune or any of its officials. All that is known for sure is that Neptune or its insurer, for whatever reason, decided that it would rather pay Breeden $150,000 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.