Alan Schorr’s Employment Case of The Week ending January 11, 2013

Melillo v. Elizabeth Board of Education, 2:11-cv-04776; 2012 WL 6725837 (D.N.J. December 21, 2012)

It is rare indeed to find a case, especially in New Jersey, where an employee has succeeded in any kind of a legal action for malicious prosecution and abuse of process, but Elizabeth custodian Louis Melillo has survived several motions to dismiss his claim, earning this week’s honor of Case of the Week. District Judge Susan D. Wigenton, in Melillo v. Elizabeth, denied a motion to dismiss on claims brought under 42 U.S.C. §1983, the New Jersey Civil Rights Act, malicious prosecution, and abuse of process. This is a very messy case that has already been going on in several different venues for nine years, and it looks like the parties will be going at it for quite a while longer.

Louis Melillo began work for the Elizabeth Board of Education as a custodian. He was subsequently promoted to the position of tenured head custodian. Melillo alleges that, throughout his employment, he was unlawfully required to make political donations. When he refused to do so, Melillo alleges that he was “harassed, debased, demeaned, and received horrible and vindictive treatment”. Melillo alleges that his supervisors conspired with students to make false allegations of unlawful sexual contact against him. Criminal charges were filed against him, and Elizabeth brought tenure charges against him.

The criminal charges resulted in a bench trial in Superior Court, in which Melillo was acquitted. Allegedly, the Superior Court Judge commented that the State had not only failed to prove guilt beyond a reasonable doubt, but failed to meet a preponderance standard. Melillo alleges that when Elizabeth was not satisfied with the acquittal, they got DYFS to make a finding of abuse. After six years of litigation, the tenure charges were all dismissed against Melillo, and DYFS rescinded its finding. Melillo was ordered reinstated, but alleges that he was not returned to his job, had his increments withheld, was not reimbursed for his vacation pay, and suffered other retaliatory acts.

Procedurally, Elizabeth has appealed the denial of tenure charges, and that matter is still pending at the New Jersey Appellate Division. In the meantime, Melillo brought an 11 count Complaint in Federal Court against many Defendants. As a result of several motions, the Complaint was thrice amended, and now consists of four counts against the Board and two individual defendants. This opinion arises out of the most recent motion to dismiss.

The Court denied dismissal on all causes of action, including malicious prosecution and abuse of process. It is rare to find an opinion where these torts are upheld. Most Courts begin by declaring that “The tort of malicious prosecution is not favored by New Jersey courts because there is a public policy favoring people ‘seeking redress in the courts.’ Penwag Property Co. Inc. v. Landau, 76 N.J. 595, 597-98 (1978). As an unfavored tort, one rarely sees a Court that does not find some reason to throw out these claims. The elements to prove malicious prosecution are “(1) that the criminal action was instituted by the defendant against the plaintiff, (2) that it was actuated by malice, (3) that there was an absence of probable cause for the proceeding, and (4) that it was terminated favorably to the plaintiff.” Lind v. Schmid, 67 N.J. 255, 262 (1975). In addition, a plaintiff must demonstrate a “special grievance” that consists of an interference with one’s liberty or property.

Here, the Court found that the allegations, if true, satisfied all of the elements, and that the “special grievance” requirement was satisfied by the allegations that Melillo was not paid his increments and vacation. I am a bit perplexed at how the plaintiff satisfies the “absence of probable cause” standard because there was a criminal trial in Superior Court, and therefore there must have been a previous judicial determination of probable cause. But the District Court held that Melillo’s allegation that the Superior Court stated that the State had not met a preponderance of the evidence was enough to satisfy that standard for purposes of the motion to dismiss.

The Court similarly refused to dismiss the abuse of process claim, which was related to allegations that the defendants protracted the litigation, blocked and opposed admission into pretrial intervention, attempted to undo plaintiff’s expungement after he was acquitted, and filed DYFS charges after the acquittal.

Given the obvious animosity between these parties, we will certainly be hearing more on this case from both the State Appellate Division, as well as the District Court.

Plaintiff’s counsel: Matthew T. Rinaldo and Grant Southwick Ellis, Rinaldo & Rinaldo, Esqs.

Defendants’ counsel: Isabel Machado, Jessika Angil Luck, Machado Law Group, LLC.

District Court Judge: Susan D. Wigenton, U.S.D.J.