Judge won't stop investigation into Montclair firefighters who are suing township

NEWARK ― A judge denied a request to quash Montclair's workplace investigation into t wo firefighters who are currently suing the municipality for its own alleged discriminatory practices.

State Court Judge Robert Gardner denied the motion submitted by the plaintiff's attorney, Roosevelt Nesmith, as part of his clients' lawsuit against the township. That lawsuit alleges the fire chief and former township manager updated the department's promotional criteria in order to disadvantage Black candidates vying for higher ranks, according to court documents.

"I don’t think there’s enough here to show that these investigations were, in fact, retaliatory," Gardner said at the conclusion of a July 19 hearing to consider Nesmith's motion to stifle the probe into his clients. "I also don’t think it’s part of this complaint. Obviously, [if Nesmith amends] the complaint to add those particular allegations, then it becomes relevant."

Gardner's dismissal was without prejudice, meaning Nesmith can reintroduce a similar motion if he updates the lawsuit to accuse the township of using the employee complaints to chill his clients in light of their legal action.

The motion, which was submitted to the court on July 3, sought a protective order that would have forced the township to cease its investigation while the firefighter's litigation remained pending, as well as information revealing the nature of the workplace complaint against them and a similar complaint against CFO Padmaja Rao, who had also sued the town for discrimination.

“The plaintiffs, as well as Ms. Rao, believe the alleged complaints and investigations are baseless, and likely in retaliation for them filing their complaints against the township," Nesmith said of the workplace probes earlier this month, an argument he repeated during the recent hearing to no avail.

Steven Marshalleck and Makkari Sampson ― the firefighters currently suing Montclair, as well as its former Manager Timother Stafford, and Fire Chief John Herrmann ― were notified they were the subjects of complaints filed by another employee or employees.

The notice did not specify what they had been accused of, nor did it identify the complainant by name or the municipal department that employs them.

“We don’t want to get at it by sitting down for an interview and be surprised," Nesmith said soon after filing the motion. "They should have to disclose it to us.”

However, an attorney for at least one of the defendants argued releasing the identity of the claimant would violate protections commonly extended to anyone filing a workplace complaint, as heard in an audio recording of the July 19 proceeding.

Stefani Schwartz, whose firm Hatfield Schwartz sent the notice to the two firefighters, did not respond to a request for comment on Gardner's decision.

Lawsuits against Montclair

Marshalleck and Sampson's lawsuit represents just one piece of a tangled web of litigation accusing Montclair of a pattern and practice of discrimination.

Rao recently settled her lawsuit, which accused Stafford of targeting female employees with bullish and hostile treatment. Township Affirmative Action Officer Bruce Morgan has a pending claim against Montclair, accusing its officials of icing him out of his duties after he upheld internal complaints from Rao and the firefighters, which he investigated before the other plaintiffs took the township to court.

Much of the recent legal tumult can be traced back to Rao's suit, in which she outed the substance of Marshalleck and Sampson's claims against the fire department, and the fact that the township disregarded Morgan's findings that there was merit to her workplace complaint. Instead, the township favored a third-party probe by the law firm O'Toole Scrivo, which allegedly reflected better upon the township, according to Morgan.

This article originally appeared on NorthJersey.com: Judge won't stop investigation into Montclair firefighters who are suing township