The Superior Court of New Jersey Appellate Division has reinstated a lawsuit by former Bayonne City Hall employee Stacie Percella against Mayor James Davis and the city.
The suit alleges that Percella was fired in retaliation for filing a federal lawsuit against the city in 2014. That lawsuit alleged hostile environment discrimination, due to Percella’s actions as a vice president of the local civil service employee’s union, and because she rebuffed Davis’s alleged sexual overtures.
The case was dismissed in February of 2020 when Hudson County Superior Court Judge Kimberly Espinales-Maloney ruled Percella and her attorney failed to submit discovery evidence within court deadlines.
Now, a panel consisting of Appellate Court Judges Michael Oster and Francis Vernoia have asserted in a 41-page decision that the lower court erred when dismissing the case with prejudice.
Percella worked in City Hall since 2001 as a “deputy register/keyboard clerk” before her termination in 2016. Prior to that, Percella said she had known Davis for 35 years years and had supported his run for mayor in 2014.
Percella initially brought her allegations to light at a city council meeting in May of 2017. Percella then filed the lawsuit in Hudson County Superior Court in January of 2018.
In the suit, Percella alleges she was fired in retaliation for filing a federal lawsuit against the city in 2014 that alleged hostile environment discrimination and for her actions as a vice president of the local union for civil service employees, AFSCME Union, Council 52, Local 2261. All claims in the 2014 federal lawsuit, except for the hostile work environment claim, were dismissed, but both sides have filed appeals.
Percella also alleges she was fired for rebuffing Davis’ sexually harassing conduct. The suit claims Davis had sent sexually explicit text messages from early 2013 to 2015.
Percella alleges that Davis texted phrases such as “I’ve got something you can blow,” “love that ass,” and “I would eat you alive!!!!” Numerous text messages included pleas from the mayor to meet up with Percella in places ranging from Atlantic City hotel rooms to Bayonne bars, and many included references to oral sex, according to the suit.
Percella also alleges that Davis had abused his office by offering her a $150,000 settlement for her 2014 federal lawsuit in exchange for a sexual relationship while she was still working at City Hall.
The 2018 lawsuit was dismissed in Hudson County Superior Court in February of 2020 when Judge Espinales-Maloney determined that Percella and her attorney had “willfully” been ignoring discovery deadlines.
“Plaintiff has not provided full discovery, and her violations of the court’s orders are ‘long standing’ and ‘egregious,’ and at times appear to border on willful,” Espinales-Maloney ruled. “In short, arduous and tortured discovery production is in the rear view, and further delay lies ahead. Discovery in this case is on a road to nowhere.”
According to the ruling, Percella failed to submit evidence of the text messages with Davis, did not answer supplemental questions within the deadline, and did not provide fact witnesses. Percella’s former attorney had sought delays in the discovery process deadlines after the fact, citing medical issues relating to both Percella’s and her attorney’s families. Percella also changed attorneys three times during the proceedings.
A motion for reconsideration of the February 2020 dismissal by Percella was rejected in May of 2020. But now the appellate panel decision has breathed new life into the case.
Appellate court ruling
The appellate court’s decision ruled that these issues should not have led to the lawsuit being dismissed with prejudice.
“We do not excuse any failure to comply with a court order, but we are convinced the court abused its discretion by failing to apply the appropriate legal standard in assessing and deciding defendant’s motion for dismissal with prejudice,” the judges wrote.
The appellate panel ruled the case should have been dismissed only as a “last resort.” According to the ruling, other means of compliance should have been used first.
“It was error for the court to find plaintiff failed to comply with her discovery obligations because she presented competent evidence — her and her then counsel’s certifications — asserting she did not have any additional text messages or her phone, and she could not access the message logs,” the judges wrote. “To the extent defendant presented any competent evidence disputing plaintiff’s assertions, the court should have resolved any pertinent fact issues at an evidentiary hearing.”
Now the case will head back to the Hudson County Superior Court, where a new judge will hear Davis and the city’s motion for dismissal. That will ultimately decide if a new evidentiary hearing is necessary.
Three such lawsuits
Davis had no comment on the decision, per city policy not to comment on active litigation. In 2018, a spokesman for the mayor at the time, Amit Jani, said that the messages were “harmless, playful banter between two adults” and called Percella’s allegations “part of an orchestrated campaign to make millions of dollars off of Bayonne taxpayers and destroy [his] reputation,” and that their friendship, which dates back decades, has “never been physical in nature.”
In response to the appellate ruling, Percella’s attorney Vincent Gerbino said in a statement: “We are pleased the appellate court did a thorough review of the record which will now permit Ms. Percella to move her case forward and hopefully reach a resolution.”
This is the third active lawsuit against the city alleging some form of hostile work environment, sexual harassment, and or discrimination, including those by former clerk for the city Sincerrae Ross and sitting Business Administrator Melissa Mathews.
For updates on this and other stories, check www.hudsonreporter.com and follow us on Twitter @hudson_reporter. Daniel Israel can be reached at email@example.com.