HILLSIDE, NJ — The lawsuit by a Hillside police officer against the township has come to a conclusion, at least for now, although attorneys from both sides of this case have said they don’t believe it’s really over yet. Former Middlesex County Superior Court Judge Mark Epstein found no cause for action on Monday, March 21, in binding arbitration of Hillside Police Lt. Qiana Brown’s hostile work environment lawsuit against the Hillside Police Department and former Mayor Joseph Menza.
“This case is one of a series where assertions are made against a municipality engaging in this conduct. What is significant is two things: one, it has now been demonstrated that the township of Hillside did not engage in the alleged conduct; and two, hopefully, this serves as a barometer for other communities who are faced with these charges,” said Frank Capece, the lawyer for Hillside and a columnist for this publication, in an interview with Union County LocalSource on Friday, May 6.
Brown, the plaintiff in this case, has been at odds with the Hillside Police Department since 2009, when she reported fellow officers sleeping on duty and improperly holstering their guns, according to a lawsuit filed on her behalf in Union County by Brian Schiller of Schiller McMahon LLC in Westfield. When Brown was promoted to acting sergeant in 2009, she was not paid a sergeant’s salary, even though, according to her lawsuit, a white male predecessor was.
When Brown became pregnant and gave birth in 2013, the lawsuit claimed, she was assigned shifts that hampered her ability to care for her newborn. Brown’s former chief, Robert Quinlan, corroborated the mistreatment of Brown in his whistleblower lawsuit against the department in 2014, saying he’d told then-Mayor Joseph Menza that denying Brown proper pay would be discrimination. Quinlan said Menza allegedly made his work life more difficult for trying to promote Brown, and Quinlan even took his concerns to the Hillside Municipal Council. Brown’s salary as a lieutenant is currently $147,246.
Unfortunately for Brown, after extensive litigation, an independent arbitrator has ruled in favor of the township. On appeal, Superior Court Judge Thomas Walsh affirmed the arbitrator’s decision. Brown, who is black, first filed suit in 2017, arguing that white officers were promoted before her, as well as alleging gender bias against her and sexual innuendo toward her by a supervisor. Although Brown, who was a sergeant in 2017, when she first filed suit, was promoted to lieutenant later that year, she later filed a complaint with the state Civil Service Commission after she was passed over for captain in late 2020. Her claim is that she finished first on the captain exam, yet Hillside Mayor Dahlia Vertreese, also a black woman, promoted a white man who finished second. The state ruled that Hillside properly used the Rule of Three, which allows agencies in the civil service system to select any of the top three candidates for every promotional spot.
Josh McMahon, the plaintiff’s attorney, who had taken over the case from Schiller, was extremely disappointed with the results from the arbitrator.
“What happened to Miss Brown is a situation that I’ve never seen happen, and it’s really three specific things: No. 1, at the time of the arbitration, the township of Hillside had offered her a $125,000 settlement; No. 2, the township of Hillside never filed a motion to dismiss, which is typically done when you think their complaint has no legs; and No. 3, they never filed a motion for summary judgment, which typically occurs at the end of discovery, when you think the other side has failed to prove their case,” said McMahon in an interview with Union County LocalSource on Friday, May 6.
“The arbitrator, Mark Epstein … he’s upset because we attempted to cancel the arbitration,” continued McMahon. “We realized he was unprepared and he was a bigot. The world is going crazy and when we throw common sense out the window … what else should I call you?
“If they thought there was nothing to this case, would you normally offer $125,000 for things that have no merit?” asked McMahon. “He’s a disgrace. No woman or person of color should go within a thousand yards of this man.”
Capece, however, disagreed with what the plaintiff’s attorney was arguing.
“Under our rules of evidence, discussion of a settlement carries no probative value,” he said. “Often, a settlement offer encompasses a multitude of issues, many not even dealing with the case — legal costs, you never know what a jury is going to do, so you try to assess the risk to the town — when we went to the arbitrator. This is the true irony: Brown’s attorney picked the arbitrator, we didn’t. The arbitrator is a respected retired judge.”
McMahon said he thought far less of the arbitrator than Capece did.
“I want Mark Epstein to be shunned as a pariah. He’s a disgrace,” he said. “He claims to have spent two hours on this decision.”
The decision reached by Epstein, a former Middlesex County Superior Court judge, was brief in its conclusion.
“After carefully considering the arbitration statements and exhibits submitted to me by counsel, as well as their oral summations, it is my determination that a finding of no cause of action be entered in this matter,” said Epstein in his arbitration decision on Monday, March 21.
“This is based on my finding that defendants have articulated legitimate nondiscriminatory reasons for the delays in promoting (the) plaintiff and the delay in her salary payments. I further find that plaintiff has failed to prove that any actions taken or not taken by the defendants were unlawful or causally related to plaintiff’s grievances. Neither has she proven that any such actions or inactions were pretextual and motivated by racial or gender discrimination or retaliation for plaintiff’s complaints. Although plaintiff did present instances of isolated events that were inappropriate and unprofessional, it is my further finding that they did not rise to the level of a hostile environment as defined by case law, and all such incidents and events were appropriately investigated and addressed. I thank counsel for their efficient, yet comprehensive presentation of this matter to me and for their professionalism.”
McMahon said that there were high-ranking individuals who felt differently, and that their word carried some weight, especially in this case.
“The current police chief and the former police chief are both saying she’s a victim of racism and sexism,” he said. “They put a picture of a rat with her badge number on the mirror of the public restroom at the police station.”
But Capece disagreed.
“There are certain standards to establish a hostile work environment,” he said. “And just saying it doesn’t make it so.”
For McMahon, however, most of his client’s recent problems stem from the arbitrator, his mode of operation and his decision.
“Our contract was supposed to be for a well-reasoned decision. Does that look like a legal opinion to you?” he asked. “Mark Epstein is a thief. He charged the taxpayers over $20,000. He promised everyone a well-reasoned decision, not two-plus hours to rewrite his decision.
“We filed a motion to have the arbitration set aside, and Judge Walsh did a horrible job,” McMahon continued. “He described (decision) as having a paucity of information and didn’t do anything about it. No one disputed that they offered $125,000, no one disputed that he’s never done this to a white person. Judge Walsh does zero and lets this racist, sexist decision stand.”
“The court determines the finality of arbitration,” said Capece. “This case does not rise to the level to appeal the finality of the arbitrator’s decision.”
“The courts are worthless,” McMahon retorted.
Photo Courtesy of Josh McMahon