Schmalz Vs Jackson (Terence Wall Conduct)

OCN-L-002241-23 09/29/2023 1:16:17 PM Pg 1 of 25 Trans ID: LCV20232978892
SMITH EIBELER, LLC

Christopher J. Eibeler, Esq. ID# 031772004
Lisa Hernandez, Esq. ID# 018402005
Devin Russo, Esq. ID# 388412022
101 Crawfords Corner Road, Suite 1-126
Holmdel, NJ 07733
(732) 444-1300
Attorneys for Plaintiff
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:
KEVIN SCHMALZ, : SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: OCEAN COUNTY
Plaintiff, : DOCKET NO.:
:
v. : Civil Action
:
TOWNSHIP OF JACKSON, : COMPLAINT AND JURY DEMAND
JOHN/JANE DOES (1-10)(fictitious names :
of unknown persons) :
:
Defendants. :
:
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Plaintiff Kevin Schmalz, having an address of 22 Sycamore Drive, Little Egg Harbor, New
Jersey (hereinafter “Plaintiff”), by way Complaint against Defendants Township of Jackson and
John/Jane Does (1-10) (fictitious names of unknown individuals), says as follows:
FACTS COMMON TO ALL COUNTS
1. Defendant Township of Jackson (the “Township”) is a township within the State of
New Jersey.
2. Mayor Michael Reina (“Reina”), at times relevant herein, is a New Jersey resident
and the Mayor of Jackson Township.
3. Terrance Wall, at times relevant herein, is an individual employed by Defendant
Township as the Business Administrator.
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4. Kevin Wyer (“Wyer”), at times relevant herein, is an individual employed by
Defendant Township in the position of Building Sub-Code Official and/or Acting Construction
Official and was Plaintiff’s supervisor.
5. Marianne Horta (“Horta”) at times relevant herein, is an individual employed by
Defendant Township in the position of Human Resources Director.
6. Brent O’Connor (“O’Connor”) at times relevant herein, was an individual
employed by Defendant Township in the position of Construction Official.
7. David Rudolph (“Rudolph”) at times relevant herein is an individual employed by
Defendant Township in the position of Electrical Sub-Code Official.
8. Rich Wilton (“Wilton”) at times relevant herein, is an individual employed by
Defendant Township in the position of Construction Official, replacing Mr. O’Connor.
9. Defendants John and Jane Does (1-10) are fictitious persons who are not
specifically named Defendants, who are unknown to Plaintiff at this time, but who may be
identified during discovery in this matter and who are responsible to Plaintiff for the claims set
forth herein, including the harassment and retaliatory actions taken against Plaintiff in response
to him engaging in protected activity as set forth in detail herein.
10. On or about January 2, 2001, Plaintiff began his employment at Defendant
Township in the position of Plumbing Inspector. In or about 2005, Plaintiff also became the Sub-
Code Official.
11. Plaintiff performed his duties as Plumbing Inspector and Sub-Code Official at or
above Defendant Township’s expectations.
12. Plaintiff was also employed in a part time position as Plumbing Inspector and Sub-
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Code Official for Plumsted Township (“Plumsted”), while at the same time he was employed in
his full-time position with Defendant Township.
13. Prior to taking the position with Plumsted, Plaintiff informed Defendant
Township that he had been offered the part time position with Plumsted to make sure they had
no issues with him accepting the position.
14. The Township informed Plaintiff that it did not have any issues with Plaintiff
accepting the part-time position with Plumsted as the part-time hours required by Plumsted did
not conflict with his required hours at the Township.
15. Plaintiff began his employment with Plumsted in or about 2013.
16. At no time during his employment with the Township and Plumsted was there
any conflict that impacted Plaintiff’s ability to perform the required duties and responsibilities of
either position.
17. Moreover, at no time prior to Plaintiff engaging in any of the protected activity
specifically set forth herein did anyone at the Defendant Township criticize Plaintiff or claim that
Plaintiff was doing anything wrong in connection with his part time employment at Plumsted.
18. In or about 2019, the Township issued a major site approval to a Developer,
Cardinale Enterprises, to develop approximately 300 acres of vacant land into a sports and
entertainment complex commonly known as Adventure Crossing.
19. The reported $500 million Adventure Crossing project (the “Project”) is located
between Interstate 195 and Six Flags Great Adventure, and was planned to consist of a 120,000
square foot sports dome, two (2) hotels, eight (8) outdoor sports fields, a 100,000 square foot
recreational building with a trampoline park, indoor go-kart racing, a venue for video game
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competitions, a 7-11 convenience store and restaurants, including a Popeyes restaurant and Taco
Bell.
20. At the beginning of the Project, Plaintiff and other Building Officials were
instructed by the Township officials, including Mayor Reina and Business Administrator Wall, to
prioritize and expedite all inspections, reviews and approvals of plans and permits for the Project.
21. The Project was a top priority for Township officials, including Mayor Reina and
Mr. Wall to complete as expeditiously as possible.
22. As the Project ensued, Plaintiff and other Building Officials were harassed and
even threatened with termination of employment if they did not approve certain applications,
plan reviews and permits for the Project without question and in some instances, in clear
violation of the Uniform Construction Code (“UCC”).
23. In or about February 2021, Mr. O’Connor was hired by Defendant Township to
serve as its Construction Official.
24. Shortly thereafter, Mr. O’Connor received directives from Defendant Township
to prioritize and expedite plan reviews and the issuance of permits for the Project, which
eventually included instances when the issuance of permits was not warranted and in violation
of the UCC.
25. The Township, including Mayor Reina and Mr. Wall, regularly took orders and
directive from the Developer, including directives that were not compliant with the UCC or other
laws, and attempted to direct and coerce officials within the Building Department to act
unlawfully.
26. Additionally, Township introduced new and amended existing ordinances to
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reduce construction permit fees for the Developer on structure types that were being built at the
Project, including the permit fees for domes and warehouses.
27. Building officials would regularly object and refuse to participate in requests
from the Developer, general contractors and Township officials that they believed to be unlawful.
28. For example, in one meeting, the Developer offered to hire its own private
inspectors to issue CO’s or TCO’s so that it no longer had to go through the Township’s Building
Department.
29. In another meeting, the Developer offered to provide the Township a “hold
harmless” letter that it explained could allow the Developer and general contractor to build
without appropriate permits or open with appropriate CO’s or TCO’s but that the Township could
hold the Developer responsible for any liability that arose from the Project.
30. As time went on, Plaintiff and other Building Officials learned that construction
had taken place with the Project without first obtaining the appropriate permits.
31. Additionally, items were being installed beyond the scope of submitted site
plans and without required inspections and permit updates.
32. For example, construction of a dome began without first obtaining the
necessary permits, including the permits required for the underground electrical work.
33. Another example was the construction of a warehouse starting without the
required inspections being completed or issuance of a permit.
34. As work progressed, Mr. O’Connor met regularly with the Township’s
administration and with the Developer, Mr. Vito Cardinale.
35. During these meetings, the Developer and Township officials would complain
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that the Building Department was not issuing permits when they wanted them to.
36. Mr. O’Connor responded that the Building Department must follow the law and
the only reason why permits would not be issued was because they could not be issued in
accordance with the UCC and other applicable law.
37. Mr. O’Connor further repeatedly explained the permitting process as required
by law in these meetings.
38. Mr. O’Connor informed Plaintiff of these meetings and that they were under
increased pressure from the Developer and Township to issue permits in violation of the UCC and
he was threatened that he, Plaintiff and others in the Building Department would be terminated
if they did not comply with these unlawful directives.
39. Plaintiff was harassed and threatened by certain Township officials concerning
his refusal to issue permits for the Project that did not comply with the UCC.
40. For example, in or about 2022, Plaintiff was discussing with Mr. Wall the fact
that the Township was hiring new employees at higher salaries than existing Township
employees who had more experience and higher qualifications.
41. During the meeting, in response to Plaintiff’s complaints, Mr. Wall stated, “guys
in the Building Department have a bad reputation.”
42. Plaintiff understood Mr. Wall’s comment to be in response to the Building
Department objecting and refusing to participate in unlawful conduct concerning issuing permits
for the Project in violation of the UCC.
43. Plaintiff responded with something along the lines of, “I guess you expect us to
just rubber stamp things.”
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44. Mr. Wall became unhinged by Plaintiff’s response and began mischaracterizing
Plaintiff’s statement to accuse him of threatening to “rubber stamp things.”
45. Mr. Wall further expressly threatened Plaintiff with termination and that he
would do everything in his power to take away his licenses so that he could never be employed
in his field anywhere else.
46. Plaintiff told Mr. Wall to stop twisting his words and confirmed that he always
performs his duties and responsibilities in accordance with the law.
47. Mr. Wall became increasingly agitated and started yelling at Plaintiff.
48. Mr. Wall eventually slammed his books and left the meeting without resolving
the salary discrepancies amongst new and existing employees within the Building Department.
49. Mr. Wall’s harassment and refusal to pay existing employees within the Building
Department at appropriate rates was in further retaliation for Plaintiff and other Building
Department employees’ complaints and refusal to participate in unlawful conduct under the UCC
and other applicable law.
50. On or about December 6, 2021, the general contractor for Taco Bell emailed
Mr. O’Connor asking what documentation was outstanding for a Certificate of Occupancy (“CO”)
to be granted so that Taco Bell could open to the public.
51. The next day, Mr. O’Connor informed the general contractor that they needed
to resolve an issue with the fire hydrant layout and inspections, which Mr. O’Connor had been
asking the general contractor to do for two (2) weeks.
52. Mr. O’Connor also informed the general contractor that he was still required to
address all issues, complete inspections, pay state mandated Council of Affordable Housing
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(“COAH”) fees, and secure final approvals.
53. Mr. O’Connor also informed the general contractor would likely only receive a
Temporary Certificate of Occupancy (“TCO”) with conditions, due to issues with the parking lot
lights.
54. On or about December 20, 2021, Township officials, including Mr. Wall,
pressured the Building Department to issue Taco Bell a TCO so it could open despite its several
outstanding issues that made the issuance of a TCO unlawful.
55. Around the same time, representatives from the Office of Regulatory Affairs
(“ORA”) visited the Building Department office and the Project site.
56. Because Mr. O’Connor was on vacation, Plaintiff was Acting Construction
Official at the time.
57. The ORA representatives asked to review the permit files for Taco Bell and
Popeyes.
58. While the ORA representatives were in the Building Department office, the
general contractor for Taco Bell entered the Building Department office and demanded a TCO be
issued for Taco Bell immediately.
59. Plaintiff responded to the general contractor that a TCO could not be issued
because there was outstanding required documentation, including approvals from the Ocean
County soils and site engineering and unpaid COAH fees.
60. The general contractor became increasingly belligerent and began arguing with
Plaintiff.
61. In response to Plaintiff explaining to the general contractor what needed to be
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done for him to issue the TCO, the developer threatened Plaintiff that if he was not issued the
TCO, he would “open the restaurant” anyway.
62. Unbeknownst to the general contractor, several ORA representatives were
present during the confrontation and overheard the general contractor’s statements to Plaintiff.
63. After the general contractor left the office, one of the ORA representatives
confirmed they overheard the conversation and warned Plaintiff that they would hold Plaintiff
responsible if he issued the permits under these circumstances.
64. Specifically, the Regulatory Affairs representative warned Plaintiff, “If you issue
the TCO, we are coming after you.”
65. The following day, Mr. Wall confronted Plaintiff in the door of the Zoning Office,
and pressured Plaintiff to issue the TCO, asking Plaintiff “is there a way we get around this?”
66. Plaintiff responded no and explained to Mr. Wall that the general contractor did
not provide the required documentation and therefore he legally could not issue the permit.
67. Throughout the Project, priority inspections continued to be required by the
Township for the Project.
68. Plaintiff did his best to abide by these demands.
69. For example, on or about June 7, 2021, the Popeyes’ developer asked Plaintiff
to inspect Popeyes’ plumbing the next day.
70. Plaintiff complied and inspected the Popeyes’ plumbing and approved the slab
plumbing the same day as it complied with the UCC.
71. On or about June 14, 2021, the Popeyes’ developer emailed Plaintiff and asked
him to move up the rough plumbing inspection that was scheduled for August 4, 2021.
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72. Plaintiff complied, and Popeyes’ rough plumbing was approved on or about July
16, 2021.
73. On or about December 28, 2021, and with issues still outstanding, Popeyes’
developer requested that the TCO be issued right away.
74. Mr. Wall emailed Mr. O’Connor, asking him to expedite the TCO.
75. While Plaintiff was on site at Popeyes, he witnessed employees present in the
restaurant and a line of cars at the Popeyes’ drive through.
76. It appeared that based upon the people inside the restaurant and cars lining up
at the drive through that the restaurant had opened without being issued a TCO.
77. Plaintiff called Mr. O’Connor and told him he had seen people in the restaurant
and drivers lined up at the drive through.
78. It was later determined that the premises were occupied for staff training and
the cars waiting in the drive through lane, like Plaintiff, believed they were open.
79. Mr. Wall became irate and threatened that individuals in the Building
Department would be punished for making false accusations.
80. Mr. Wall sent an email wanting to know who was making false accusations
against Popeyes and promised the general contractor he would get to the bottom of it.
81. Pressure continued to escalate from the Township to the Building Department
officials to issue permits for the Project.
82. According to Mr. O’Connor, the Developer was pressuring the Township in
closed meetings to not delay the construction of the Project because of issues relating to permits.
83. In or about late December 2021, Mr. O’Connor called an emergency meeting
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with the entire Building Department.
84. In the meeting, Mr. O’Connor said that he had just come out of a meeting with
Mr. Wall and Mayor Reina and was threatened that if the Building Department did not start
approving the Developer’s permits, the entire Building Department staff would be terminated.
85. Consistent with Mr. Wall and Mayor Reina’s threats of termination, the
Township posted job openings for Plaintiff’s job, as well as the electrical, building, and fire Sub-
Code/Inspectors and a Technical Assistant to Construction Official shortly after the meeting.
86. As work progressed on the Project throughout 2022, many inspections were not
scheduled by the developers and work was performed on the Project without updates or permits.
87. The Building Department was increasingly harassed by Township officials and
falsely accused of holding up the Project.
88. Upon information and belief, Mr. O’Connor left his employment because of the
harassment, retaliation and other unlawful conduct directed at him in connection with the
Project.
89. Plaintiff’s health began to significantly suffer because of the harassment and
retaliation directed at him.
90. Plaintiff sought medical treatment for worsening anxiety due to the pressures
the Township placed on him at work, including the threatening of his termination of employment
if he failed to participate in what he believed to be unlawful conduct in connection with the
issuance of permits.
91. As a result of the unlawful conduct and hostile work environment being
directed at him at work, Plaintiff and other Building Officials decided to retain an attorney to
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protect their rights and employment.
92. By letter sent to the Township on their behalf on February 18, 2022, Plaintiff’s
Counsel set forth the factual basis for Plaintiff’s claims against the Township, including by
describing the unlawful business activities being undertaken by the Township in connection with
the Project, the protected activity undertaken by Plaintiff opposing and refusing to participate in
same and the retaliation and harassment directed at him.
93. Plaintiff’s Counsel further demanded that the Township stop taking any further
harassing or retaliating actions immediately.
94. In the letter, Plaintiff’s Counsel wrote, in relevant part:
…At the beginning of the project, Mr. Schmalz, Mr. O’Connor and
Mr. Rudolph were put on notice by Mayor Michael Reina and
Business Administrator Terrance Wall that the project took priority
over all other projects, applications, and permits -- with the
expectation that any applications, plan reviews, and permits would
be expedited. However, Mayor Reina and Mr. Wall not only
wanted the project’s applications, plan reviews, and permits to be
expedited but that they wanted these items to be approved
without question or the building department would be disciplined.
For example, Mayor Reina and Mr. Wall stated to Mr. O’Connor
that he along with the entire building department would be
terminated or replaced if the project’s applications, plans reviews,
and permits were not approved. These threats of termination
continued as the project was progressing and issues with the
project arose…
…
The latest example of this reckless disregard of Jackson’s own
codes, rules and regulations relates to the opening of the Taco Bell
and Popeye’s Chicken restaurants. Mr. Cardinale’s office pushed
to get temporary certificates of occupancy for these restaurants.
However, Jackson’s Building was unable to issue the TCOs because
required documentation in accordance with the New Jersey UCC
regulations was not issued.
As a result, Mr. Wall retaliated against Mr. Schmalz, Mr. O’Connor,

Mr. Rudolph and several other building department employees by
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posting advertisements on Jackson’s town website, seeking to have

their positions replaced. As of January 3, 2022, these positions
were also listed on the New Jersey League of Municipalities. Mr.
Wall’s efforts to post these jobs in response to the building
department’s reports and/or objections to Jackson’s improper and
illegal policies allowing Adventure Crossing to proceed without
valid permits or inspections is a direct threat to their jobs and civil
service careers.
Mayor Reina’s and Mr. Wall’s actions against Mr. Schmalz, Mr.
O’Connor, Mr. Rudolph and the rest of the building department
amount to retaliation, harassment and actions which rise to the
level of causing a hostile work environment under New Jersey
Conscientious Employee Protection Act…
95. Despite receiving the February 18, 2022 letter, the Township continued to
pressure Plaintiff and others to unlawfully issue permits, and harass and retaliate against Plaintiff
for refusing to act unlawfully.
96. In or about May 2022, Mr. Wyer was appointed Acting Construction Official for
Defendant Township.
97. The Township placed Mr. Wyer in the position to increase the pressure,
harassment and retaliation of Building Township officials to issue permits for the Project,
regardless of whether they complied with the UCC and other relevant law.
98. Upon his hire, Mr. Wyer began harassing and retaliating against Plaintiff for
engaging in protected activity.
99. In retaliation for his complaints, and refusal to participate in what he reasonably
believed to be unlawful business activities, the Township continued to retaliate against Plaintiff,
including by attempting to maliciously interfere with Plaintiff’s part-time employment at
Plumsted in further retaliation for him engaging in protected activity.
100. On or about July 19, 2022, the Township instructed outside counsel to submit
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an Open Public Records Act (“OPRA”) request to Plumsted for Plaintiff’s payroll records for the
prior three (3) years.
101. The Township had no legitimate reason or basis to believe Plaintiff had
committed any wrongdoing in connection with his employment with Plumsted.
102. The Township’s OPRA request was a fishing expedition to intimidate Plaintiff
and retaliate against him for engaging in protected activity.
103. All documents and/or other evidence obtained from Plumsted by the Township
proved that Plaintiff had not committed any wrongdoing.
104. On or about September 13, 2022, during an inspection, Plaintiff discovered that
one of the Project’s buildings was being used contrary to its permitted and approved use, without
a CO and thus illegally.
105. Specifically, Plaintiff discovered that a building approved for maintenance use
housed batting cages that were open to the public.
106. Plaintiff reported this violation to David Rudolph.
107. Mr. Rudolph reported the violation to Mr. Wyer and Mr. Wilton, including in
writing.
108. Mr. Rudolph stated in his email to Mr. Wyer and Mr. Wilton, “as I have
mentioned to you previously,” and then listed several UCC violations occurring at the Project site.
109. Mr. Rudolph instructed that a Notice of Violation (“NOV”) be issued and stated,
“this is not the first time this has happened.”
110. Mr. Wyer refused to issue the NOV contrary to the Township’s legal obligations
to do so.
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111. Thereafter, Mr. Rudolph and Plaintiff were in contact with Scott Borsos, a
representative of the New Jersey Department of Community Affairs (“NJDCA”) regarding their
obligations to provide a NOV for this issue.
112. Mr. Borsos confirmed that they were.
113. However, Mr. Wyer continued to refuse to issue a NOV.
114. On or about September 29, 2022, Mr. Wyer approached Plaintiff in the Building
Department office and demanded that Plaintiff sign off on the maintenance building that was
improperly being used for the batting cages.
115. Plaintiff indicated to Mr. Wyer that two issues prevented him from signing off,
namely a required update to delete a backflow device, and the building was in violation of the
approved use.
116. Mr. Wyer disregarded Plaintiff and repeated his directive to sign off on the CO.
117. Plaintiff told him he could not do so because of the issues that were present.
118. Mr. Wyer became increasingly agitated and threatened Plaintiff.
119. Plaintiff said the batting cages needed to be removed and the building needed
to be returned to its approved use in order for the Township to issue a CO.
120. Again, Mr. Wyer insisted Plaintiff sign off despite knowing of the violation.
121. Plaintiff refused.
122. The next day, Mr. Wyer confronted Plaintiff and told him that the batting cages
had been removed and that he needed for Plaintiff to sign off on the CO.
123. Plaintiff stated he would need to personally verify the batting cages were
removed.
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124. Mr. Wyer said that Plaintiff did not have to do that since Mr. Wyer had done it
already.
125. Plaintiff responded that he would need to personally see as the licensed official
on the permit.
126. Plaintiff visited the site with the Fire Subcode Official.
127. Upon returning to the office, after having verified that the building had been
returned to its approved use, Plaintiff signed off on the permit for the CO for the approved use
of a maintenance building.
128. Plaintiff sent Mr. Wyer a letter dated September 29, which reads, in relevant
part:
Please be advised that the attached Notice of Violation #V-22--0024 has

been issued and sent to the owner via regular mail and certified mail
(#70123050000197476534) of the property noted in accordance with
N.J.A.C. 5:23-2.30.
This Notice of Violation is being issued in accordance with N.J.A.C. 5:23-

2.30 after you were notified on September 13, 2022 and failed to act to
address the violation with the owner. Because of this failure to act on your
part in a timely manner to address the issue, the Plumbing Sub-Code can
not be signed off until the outstanding violations are abated. This delay
upon your part to act in a timely manner has caused a delay in issuing the
Certificate of Occupancy.
Once the outstanding violations are abated and verified, I will revisit
issuing a Certificate of Occupancy for the plumbing.
Our conversation this morning in your office where you dismissed my

concerns and pressured me to sign off the plumbing sub-code with known
violations was found to be extremely unprofessional and unethical upon
your part.
129. The following day, Mr. Wyer confronted Plaintiff about the letter and
complaints and specifically threatened him that he was “not going to have a job much longer.”
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130. Plaintiff emailed Ms. Horta informing her of the retaliatory and threatening
conduct of Mr. Wyer.
131. Ms. Horta did not respond to the email.
132. In fact, neither Ms. Horta, nor anyone else from the Township, took any action
to investigate Plaintiff’s protected complaints, including the written complaints he made to both
Mr. Wyer and Ms. Horta.
133. On or about October 3, 2022, Plaintiff filed a complaint with NJ Office of
Regulatory Affairs regarding Mr. Wyer’s refusal to follow the UCC and issue a NOV against the
Project for the illegal batting cages.
134. Instead of investigating Plaintiff’s complaints of harassment, retaliation and
unlawful conduct on the part of the Township, Ms. Horta joined Mr. Wyer and the Township to
take further retaliatory action against Plaintiff.
135. On or about October 5, 2022, Plaintiff was called into a meeting with Ms. Horta
as well as Mr. Wyer, Mr. Wilton, and Plaintiff’s union representative.
136. In the meeting, Plaintiff was issued a formal written discipline that included a
five (5) day suspension.
137. In the written disciplinary notice setting forth the reasons for the adverse
employment action, the Township admitted that the reason for taking the adverse action was
because of his protected complaints.
138. The written notice further warns Plaintiff that further discipline up to
termination will proceed if his protected conduct continues.
139. During the meeting, Ms. Horta accused Plaintiff of arguing with Mr. Wyer on or
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about September 29, 2022, regarding the illegal building use and Plaintiff’s refusal to sign off on
it, stating “you were disagreeing with [Wyer].”
140. Ms. Horta further admitted to Plaintiff that the basis for the insubordination
charge was because “there’s things that [Wyer] would ask you to do that you wouldn’t do.”
141. Ms. Horta then began falsely accusing Plaintiff of being out of the office for long
periods of time.
142. Ms. Horta’s false accusations that Plaintiff was out of the office for long periods
of the day were presented to him as a pretext for retaliation.
143. Plaintiff explained that his job entails site work, which often requires him to be
out of the office for extended periods, and it had been that way for the entire time he had worked
at the Township.
144. Ms. Horta responded that Plaintiff would be made to clock in and out going
forward.
145. Ms. Horta further threatened Plaintiff that the Township was investigating him
regarding his work for Plumsted Township.
146. Ms. Horta accused Plaintiff of falsifying his time sheets to state that he was
working for Jackson Township and Plumsted Township at the same time because Plaintiff was
punching out of work for Jackson Township at 3:00 p.m. and punching into work for Plumsted
Township at 3:01 p.m.
147. Plaintiff responded that he is on the clock for Plumsted Township starting at
3:01 p.m., after he punches out of work for Jackson Township.
148. Plaintiff explained that Plumsted Township paid him for his travel to the
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Township to Plumsted Township because he regularly performed inspections on his way.
149. Plaintiff also explained that Plumsted Township was aware that his workday for
them started as soon as he finished his workday at Jackson Township.
150. Plaintiff then handed Ms. Horta a letter that he obtained directly from Plumsted
Township that expressly refuted Ms. Horta’s accusation that Plaintiff had done anything wrong
in connection with his employment with Plumsted Township by clocking into work at 3:01 p.m.
151. Ms. Horta questioned Plaintiff about what made him get the letter.
152. Plaintiff told Ms. Horta that he had been told that his work for Plumsted would
be made an issue.
153. Despite Plaintiff’s explanation of his work schedule and agreement with
Plumsted Township, Ms. Horta continued to harass Plaintiff, stating “you are here and then
somewhere else at 3, and another job at 3?”
154. Plaintiff again explained that he began work for Plumsted at 3:01 p.m., after he
punched out of work for the Township at 3:00 p.m.
155. Ms. Horta insisted that Ms. Wyer needed to be made aware of Plaintiff’s
Plumsted work schedule.
156. Plaintiff stated that he did not work for the Township after 3:00 p.m.
157. Ms. Horta continued to insist, “3:00 and 3:00” despite Plaintiff’s repeated
explanations and the letter from Plumsted.
158. Ms. Horta then stated, “We just have to look into this going forward. When you
need to leave except for your lunch one hour, please tell [Wyer] or Rich where you are going.”
159. Plaintiff stated that he would let them know in writing every day.
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160. Ms. Horta asked why he could not tell them verbally.
161. Plaintiff stated that he felt that he could not trust them.
162. Ms. Horta responded that she was not making false accusations, and it was “a
little arrogance” on Plaintiff’s part to think so.
163. Ms. Horta then asked Plaintiff, “why are you still working here?... If you don’t
trust them, what is there to work for?”
164. Plaintiff responded that he had always been happy at his job, and it had only
been in the past year or two that he was being asked to do things that were illegal and that he
refused to do.
165. Ms. Horta asked, “you don't bring them up to administration?”
166. Plaintiff responded that he had.
167. Ms. Horta asked Plaintiff if he had ever brought this up to herself or Mr. Wall.
168. Plaintiff responded that he had.
169. Plaintiff also stated that he had filed a complaint with the ORA against Mr. Wyer
for attempting to coerce him into signing off on the illegal building use.
170. Ms. Horta confirmed to Plaintiff that she was aware of his ORA complaint.
171. Ms. Horta then attempted to coerce Plaintiff into recanting his statement that
the building had been used illegally and without the proper permits.
172. Plaintiff refused.
173. As the meeting continued, Ms. Horta continued interrupting and challenging
Plaintiff when he tried to explain what was happening within the Township and why Plaintiff
could not perform illegal tasks, telling Plaintiff that he had a “problem with authority.”
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174. When the meeting ended, Plaintiff was suspended without pay for one (1)
week.
175. The following week, on or about October 12, 2022, Plaintiff continued to seek
medical treatment for his worsening anxiety.
176. When Plaintiff returned to work following his suspension, Ms. Horta began
harassing him about his hours spent in the field.
177. Upon seeing Plaintiff place papers in the office recycling bin, Ms. Horta told
Plaintiff that he was not allowed to throw any papers out anymore.
178. Ms. Horta then removed the recycling bin from the office and began to search
through its contents.
179. Plaintiff began experiencing chest pains and heightened anxiety because of the
harassment and retaliation.
180. Plaintiff was treated in the Emergency Room and was ordered him to stay out
of work.
181. As a result of the foregoing, Plaintiff was unable to continue medically to work
at the Township and/or was constructively discharged on or about October 31, 2022.
182. After Plaintiff’s separation of your employment, upon information and belief,
the batting cages were re-installed and re-commenced the illegal use without proper permits.
183. As a result of the harassing and discriminatory conduct, Plaintiff has suffered
economic damages, physical injury, emotional distress and continues to experience ongoing
emotional distress and significant economic damages.
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FIRST COUNT
CONSCIENTIOUS EMPLOYEE PROTECTION ACT (“CEPA”)

N.J.S.A. 34:19-1 et seq.
184. Plaintiff repeats and realleges each of the prior allegations of the within Complaint
as if set forth at length herein.
185. Plaintiff’s disclosures, complaints and/or objections about Defendants’ violations
and refusal to participate in unlawful activities or directives is protected under the New Jersey
Conscientious Employee Protection Act (“CEPA”), N.J.S.A. §34:19-1, et. seq.
186. Plaintiff reasonably believed Defendants’ conduct was in violation of laws, rules
and/or regulations; criminal; and/or incompatible with a clear mandate of public policy, including
the UCC and other applicable laws.
187. The adverse treatment of Plaintiff set forth herein, including the constant
harassment, constant threats, the malicious interference into his employment with Plumsted, his
5 days suspension, constructive discharge, causing and/or exacerbating a mental health
condition, and other unlawful conduct by the Township set forth herein, was in retaliation for
Plaintiff’s complaints, disclosures and/or objections, refusal to participate and for retaining
counsel.
188. Defendants’ conduct was in violation of CEPA, N.J.S.A. §34:19-1, et. seq.
189. Defendants engaged in, participated in, condoned, ratified, perpetuated and/or
aided and abetted the CEPA violations.
190. Defendants’ conduct and actions were malicious and/or undertaken with a
wanton and willful disregard of and for Plaintiff.
22
191. As a result of Defendants’ conduct, Plaintiff has suffered emotional distress,
compensatory and other damages.
WHEREFORE, Plaintiff demands judgment against Defendants, jointly and severally, for
harm suffered as a result of the violations of CEPA, N.J.S.A. 34:19-1, et seq., as follows:
A. Back pay and benefits;
B. Front pay and benefits;
C. Compensatory damages;
D. Consequential damages;
E. Punitive damages;
F. Pre-judgment interest and enhancements to off-set negative tax consequences;
G. Any and all attorney’s fees, expenses and/or costs, including, but not limited to,
court costs, expert fees and all attorney’s fees incurred by Plaintiff in the
prosecution of this suit (including enhancements thereof required to off-set
negative tax consequences and/or enhancements otherwise permitted under
law); and
H. Such other relief as may be available and which the Court deems just and
equitable.
SMITH EIBELER, LLC
By: /s/ Christopher J. Eibeler

CHRISTOPHER J. EIBELER
Dated: September 29, 2023
23
DEMAND FOR DISCOVERY OF INSURANCE COVERAGE
Pursuant to R. 4:10-2(b), demand is hereby made that Defendants disclose to Plaintiff’s
attorneys whether or not there are any insurance agreements or policies under which any person
or firm carrying on an insurance business may be liable to satisfy part or all the judgment which
may be entered in this action or indemnify or reimburse for payments made to satisfy the
judgment and provide Plaintiff’s attorneys with true copies of those insurance agreements or
policies, including but not limited to, any and all declaration sheets. This demand shall include
and cover not only primary insurance coverage, but also any excess, catastrophic and umbrella
policies.
SMITH EIBELER, LLC

CERTIFICATION
Pursuant to R. 4:5-1, it is hereby stated to the best of my knowledge and belief that the
matter in controversy is not the subject of any other action pending or contemplated in any other
Court or of a pending arbitration proceeding. Further, Plaintiff is unaware of any non-party who
should be joined in the action pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-
1(b) because of potential liability to any party on the basis of the same transactional facts. I
further certify that confidential personal identifiers have been redacted from documents now
24
submitted to the Court, and will be redacted from all documents submitted in the future in
accordance with Rule 1:38-7(b).
SMITH EIBELER, LLC

JURY DEMAND
Plaintiff hereby demands trial by jury on all issues so triable.
SMITH EIBELER, LLC

DESIGNATION OF TRIAL COUNSEL
Pursuant to Rule 4:25-4, CHRISTOPHER J. EIBELER, Esq. is designated as trial counsel for
the above-captioned matter.
SMITH EIBELER, LLC

25
OCN-L-002241-23 09/29/2023
OCN-L-002241-23 09/29/20231:16:17
1:16:17PM
PM Pg 1 of 1 Trans
TransID:
ID:LCV20232978892
LCV20232978892
Civil Case Information Statement

Case Details: OCEAN | Civil Part Docket# L-002241-23
Case Caption: SCHMALZ KEVIN VS TOWNSHIP OF Case Type: WHISTLEBLOWER / CONSCIENTIOUS EMPLOYEE
JACKSON PROTECTION ACT (CEPA)
Case Initiation Date: 09/29/2023 Document Type: Complaint with Jury Demand
Attorney Name: CHRISTOPHER J EIBELER Jury Demand: YES - 6 JURORS
Firm Name: SMITH EIBELER LLC Is this a professional malpractice case? NO
Address: 101 CRAWFORDS CORNER RD STE 1-126 Related cases pending: NO
HOLMDEL NJ 07733 If yes, list docket numbers:
Phone: 7324441300 Do you anticipate adding any parties (arising out of same
Name of Party: PLAINTIFF : SCHMALZ, KEVIN transaction or occurrence)? NO
Name of Defendant’s Primary Insurance Company Does this case involve claims related to COVID-19? NO
(if known): Unknown
Are sexual abuse claims alleged by: KEVIN SCHMALZ? NO
THE INFORMATION PROVIDED ON THIS FORM CANNOT BE INTRODUCED INTO EVIDENCE

CASE CHARACTERISTICS FOR PURPOSES OF DETERMINING IF CASE IS APPROPRIATE FOR MEDIATION
Do parties have a current, past, or recurrent relationship? YES

If yes, is that relationship: Employer/Employee
Does the statute governing this case provide for payment of fees by the losing party? YES
Use this space to alert the court to any special case characteristics that may warrant individual
management or accelerated disposition:
Do you or your client need any disability accommodations? NO

If yes, please identify the requested accommodation:
Will an interpreter be needed? NO

If yes, for what language:
Please check off each applicable category: Putative Class Action? NO Title 59? NO Consumer Fraud? NO
I certify that confidential personal identifiers have been redacted from documents now submitted to the
court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(b)
09/29/2023 /s/ CHRISTOPHER J EIBELER

Dated Signed

Schmalz Vs Jackson (Terence Wall Conduct)

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OCN-L-002241-23 09/29/2023 1:16:17 PM Pg 1 of 25 Trans ID: LCV20232978892

SMITH EIBELER, LLC

John/Jane Does (1-10) (fictitious names of unknown individuals), says as follows:

FACTS COMMON TO ALL COUNTS

1. Defendant Township of Jackson (the “Township”) is a township within the State of

and the Mayor of Jackson Township.

3. Terrance Wall, at times relevant herein, is an individual employed by Defendant

Township as the Business Administrator.

4. Kevin Wyer (“Wyer”), at times relevant herein, is an individual employed by

Official and was Plaintiff’s supervisor.

5. Marianne Horta (“Horta”) at times relevant herein, is an individual employed by

Defendant Township in the position of Human Resources Director.

6. Brent O’Connor (“O’Connor”) at times relevant herein, was an individual

employed by Defendant Township in the position of Construction Official.

7. David Rudolph (“Rudolph”) at times relevant herein is an individual employed by

Defendant Township in the position of Electrical Sub-Code Official.

8. Rich Wilton (“Wilton”) at times relevant herein, is an individual employed by

Defendant Township in the position of Construction Official, replacing Mr. O’Connor.

to him engaging in protected activity as set forth in detail herein.

10. On or about January 2, 2001, Plaintiff began his employment at Defendant

above Defendant Township’s expectations.

his full-time position with Defendant Township.

no issues with him accepting the position.

not conflict with his required hours at the Township.

15. Plaintiff began his employment with Plumsted in or about 2013.

entertainment complex commonly known as Adventure Crossing.

Mr. Wall to complete as expeditiously as possible.

violation of the Uniform Construction Code (“UCC”).

serve as its Construction Official.

26. Additionally, Township introduced new and amended existing ordinances to

Project, including the permit fees for domes and warehouses.

plans and without required inspections and permit updates.

required inspections being completed or issuance of a permit.

administration and with the Developer, Mr. Vito Cardinale.

accordance with the UCC and other applicable law.

by law in these meetings.

if they did not comply with these unlawful directives.

employees who had more experience and higher qualifications.

in the Building Department have a bad reputation.”

42. Plaintiff understood Mr. Wall’s comment to be in response to the Building

for the Project in violation of the UCC.

just rubber stamp things.”

Plaintiff’s statement to accuse him of threatening to “rubber stamp things.”

in his field anywhere else.

performs his duties and responsibilities in accordance with the law.

and other applicable law.

to be granted so that Taco Bell could open to the public.

asking the general contractor to do for two (2) weeks.

(“COAH”) fees, and secure final approvals.

outstanding issues that made the issuance of a TCO unlawful.

Official at the time.

issued for Taco Bell immediately.

County soils and site engineering and unpaid COAH fees.

61. In response to Plaintiff explaining to the general contractor what needed to be

TCO, he would “open the restaurant” anyway.

62. Unbeknownst to the general contractor, several ORA representatives were

responsible if he issued the permits under these circumstances.

the TCO, we are coming after you.”

67. Throughout the Project, priority inspections continued to be required by the