FRATERNAL ORDER OF POLICE, LODGE 1 et al v. CITY OF CAMDEN et al
Filing
154
OPINION. Signed by Judge Noel L. Hillman on 3/31/2015. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRATERNAL ORDER OF POLICE,
LODGE 1, JOHN WILLIAMSON,
ANTHONY GALIAZZI, and CHARLES
J. HOLLAND,
CIVIL NO. 10-1502 (NLH)(AMD)
OPINION
Plaintiffs,
v.
CITY OF CAMDEN, SCOTT
THOMSON, ORLANDO CUEVAS, and
LIEUTENANT JOSEPH WYSOCKI,
Defendants.
Appearances:
GREGG L. ZEFF
JENNIFER L. PRIOR
ZEFF LAW FIRM, LLC
100 CENTURY PARKWAY
SUITE 305
MT. LAUREL, NJ 08054
On behalf of plaintiffs
JOHN C. EASTLACK, JR.
WESLEY L. FENZA
WEIR & PARTNERS LLP
THE LIBERTY VIEW BUILDING
457 HADDONFIELD ROAD, SUITE 310
CHERRY HILL, NJ 08002
On behalf of defendants
HILLMAN, District Judge
Plaintiffs, Fraternal Order of Police, Lodge 1, and John
Williamson, Anthony Galiazzi, and Charles J. Holland, Camden Police
Officers, filed a complaint against defendants, the City of Camden,
Scott Thomson, City of Camden Police Chief, Orlando Cuevas, City of
Camden Police Inspector, and Joseph Wysocki, City of Camden Police
Lieutenant, claiming that defendants imposed, and continue to
impose, an unlawful quota policy on Camden City police officers, 1
Plaintiffs further contend that the implementation of that policy,
as well as the ramifications of plaintiffs’ expression of their
disagreement with the policy, constitute violations of N.J.S.A.
40A:14-181.2 (Quotas for arrests or citations prohibited; use of
numbers in law enforcement officer evaluations), 2 N.J.S.A. 34:19-1,
1
Plaintiffs’ claims are asserted against the City of Camden,
which is the proper defendant in a claim asserted against the
former Camden City Police Department. Boneberger v. Plymouth
Township, 132 F.3d 20, 25 n.4 (3d Cir. 1997) (a municipality
and its police department are a single entity for the purposes
of § 1983 liability). Plaintiffs’ claims against the
individual defendants are in their individual and official
capacities, and the official capacity claims are actually
claims against the City of Camden. See Monell v. New York City
Dept. of Social Services, 436 U.S. 658, 690 n.55 (1978)
(official capacity suits “generally represent only another way
of pleading an action against an entity of which an officer is
an agent”). Previously, the Court raised the issue of the
effect of the May 1, 2013 Camden County takeover of the City of
Camden’s policing duties on plaintiffs’ claims, particularly
with regard to their request for injunctive and declaratory
relief. Because the Court has found that none of plaintiffs’
claims are viable, the issue of the Camden Police Department
becoming defunct is now moot.
2
It appears that the FOP’s only claims relate to N.J.S.A.
40A:14-181.2.
2
et seq. (Conscientious Employee Protection Act), and their First
Amendment rights under the federal and New Jersey constitutions. 3
Plaintiff Holland has also asserted a claim for a violation of his
rights under the federal and New Jersey Family Medical Leave Acts.
Defendants have moved for summary judgment on all of plaintiffs’
claims.
Plaintiffs have opposed the motion.
For the reasons
expressed below, defendants’ motion will be granted.
BACKGROUND
The policy that is the central issue in this case is the
Camden City Police Department’s policy regarding “directed
patrols.” 4
This Court recently addressed another Camden police
officer’s suit against the City of Camden regarding the directed
patrol policy, and that officer’s claims that he was retaliated
against because he spoke out against the policy.
See Davila v.
City of Camden, --- F. Supp. 3d ---, 2014 WL 7011159 (D.N.J. Dec.
11, 2014) (Civil Action 11-554 NLH/AMD). 5
In Davila, the Court
Plaintiffs have withdrawn their claims for violations of their
Due Process rights.
3
4
It is unclear whether the directed patrol policy is still in
effect.
5
The plaintiff in Davila was a Camden police sergeant who
thought that the directed patrol policy was generally a good one
but was nonetheless concerned that the police department would
be subjected to lawsuits by Camden citizens because of the
collection and retention of personal information. Davila v.
City of Camden, --- F. Supp. 3d ---, 2014 WL 7011159, *4 (D.N.J.
3
summarized the directed patrol policy:
[D]irected patrols were a police investigative tactic
which required police officers to patrol targeted crime “hot
spots” in an effort to concentrate police presence in areas
of the city that were known high-crime areas. The policy
required officers to “engage” members of the public who were
not suspected of committing any offense in an attempt to
obtain information about the community and make the police
presence known in the community. The policy required
officers to approach citizens in the neighborhoods and
attempt to obtain information about criminal activity in the
neighborhood, and also obtain personal identifying
information from individuals if they agreed to provide it,
such as the person’s name, date of birth, residence, and
social security number.
Davila, 2014 WL 7011159, *1.
The Court further noted:
It appears that “directed patrols” fall into two
categories. One type of police contact with an individual
constitutes a constitutionally protected encounter, where an
officer has reasonable suspicion to stop an individual
suspected of committing a crime. In that type of encounter,
an individual is not free to walk away and is required to
provide identifying information. The other type of police
contact with an individual – called a “mere inquiry” - does
not implicate any constitutional rights, and a party is free
to refuse to provide personal information and can walk away
from the officer.
Dec. 11, 2014). The plaintiff voiced his objection to the
policy at a roll call meeting, and he was disciplined for
insubordination. Id. The Court granted summary judgment to the
defendants on the plaintiff’s First Amendment and NJ CEPA
claims, finding that the plaintiff did not offer sufficient
evidence to demonstrate that his discipline was in retaliation
for protected speech or a whistleblower activity, and was not an
effort to promote workplace efficiency and avoiding workplace
disruption. Id. at *5, *6.
4
Id. at *1 n.2. 6
6
The Court also pointed out in Davila that police officers are
required to understand the parameters of detaining and speaking
to citizens. See, e.g., Ashcroft v. al-Kidd, ––– U.S. ––––, 131
S. Ct. 2074, 2083 (2011) (“A Government official's conduct
violates clearly established law when, at the time of the
challenged conduct, the contours of a right are sufficiently
clear that every reasonable official would have understood that
what he is doing violates that right.”). The law on police
encounters with citizens is clearly established:
Even a brief detention can constitute a seizure. Terry v.
Ohio, 392 U.S. 1, 16 (1968). However, “[t]he police do not
violate the fourth amendment by ‘merely approaching an
individual on the street or in another public place, by
asking him [or her] if he [or she] is willing to answer
some questions....' ” Davis, 104 N.J. at 497, 517 A.2d 859
(quoting Florida v. Royer, 460 U.S. 491, 497 (1983)). On
the other hand, “mere field interrogation” is
constitutional “so long as the officer does not deny the
individual the right to move.” State v. Sheffield, 62 N.J.
441, 447, 303 A.2d 68, cert. denied, 414 U.S. 876 (1973).
A police officer may conduct an investigatory stop if,
based on the totality of the circumstances, the officer had
a reasonable and particularized suspicion to believe that
an individual has just engaged in, or was about to engage
in, criminal activity. Terry, 392 U.S. at 21. This Court
has upheld the constitutionality of a temporary street
detention based on less than probable cause.
State v. Stovall, 788 A.2d 746, 752 (N.J. 2002); Florida v.
Royer, 460 U.S. 491, 497-98 (U.S. 1983) (“[L]aw enforcement
officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public
place, by asking him if he is willing to answer some questions,
by putting questions to him if the person is willing to listen,
or by offering in evidence in a criminal prosecution his
voluntary answers to such questions. Nor would the fact that the
officer identifies himself as a police officer, without more,
convert the encounter into a seizure requiring some level of
objective justification. The person approached, however, need
not answer any question put to him; indeed, he may decline to
listen to the questions at all and may go on his way.”).
5
In this case, plaintiffs claim that the directed patrol
policy constituted an impermissible “quota” system, and that
they were retaliated against for not fulfilling the policy and
for speaking out against the policy.
When the directed patrol
policy was implemented, officers on supplemental patrol were
required to conduct a minimum of 27 directed patrols, and
officers on regular patrol were required to perform a minimum of
18 directed patrols.
Two of the plaintiffs, Holland and
Galiazzi, were considered “low performers” on their directed
patrol requirements, and they claim that they were transferred
to other positions solely because of their low directed patrol
numbers, which is a violation of the New Jersey quota law.
When Holland and Galiazzi were counseled for being low
performers, they both objected to the directed patrol policy,
calling it an illegal quota system.
Williamson, the FOP
president, filed grievances on behalf of officers placed on the
low performers list, he led a rally against the directed patrol
policy, and he filed a state court complaint on behalf of the
FOP seeking to declare the policy as invalid. 7
These plaintiffs
claim that they were retaliated against by being transferred to
7
The resolution of the state court declaratory judgment action
is unclear.
6
lesser positions in the department and by being investigated by
internal affairs because of the expression of their views on an
illegal policy.
Holland also claims that his FMLA rights were
violated during this time period as well because he was cited
for excessive absences despite receiving approval to take
intermittent leave to care for his mother who was suffering from
breast cancer.
DISCUSSION
A.
Subject matter jurisdiction
Plaintiffs have brought their claims pursuant to 42 U.S.C. §
1983, as well as pursuant to the New Jersey constitution and New
Jersey state law.
This Court has jurisdiction over plaintiffs’
federal claims under 28 U.S.C. § 1331, and supplemental
jurisdiction over plaintiffs’ state law claims under 28 U.S.C. §
1367.
B.
Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied
that the materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory answers,
demonstrate that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 330
7
(1986); Fed. R. Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
(1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
suit.
Id.
In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party's
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.”
Marino v. Industrial Crating Co., 358
F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
Once the moving party has met
this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
for trial.
Id.
Thus, to withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.
Anderson, 477 U.S. at 256-57.
A party opposing
summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.
8
Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
C.
Analysis
1.
New Jersey Quota Law
Plaintiffs claim that the directed patrol policy violates the
New Jersey statute that prohibits the imposition of quotas on
police officers.
N.J.S.A. 40A:14-181.2, entitled “Quotas for
arrests or citations prohibited; use of numbers in law enforcement
officer evaluations,” provides:
a. A State, county or municipal police department or
force engaged in the enforcement of Title 39 of the Revised
Statutes or any local ordinance adopted pursuant to this title
shall not establish any quota for arrests or citations. The
department or force may, however, collect, analyze and apply
information concerning the number of arrests and citations in
order to ensure that a particular officer or group of officers
does not violate any applicable legal obligation.
b. The department or force shall not use the number of
arrests or citations issued by a law enforcement officer as
the sole criterion for promotion, demotion, dismissal, or the
earning of any benefit provided by the department or force.
Any such arrests or citations, and their ultimate
dispositions, may be considered in evaluating the overall
performance of a law enforcement officer.
Setting aside the issue of whether plaintiffs can maintain a
private cause of action for violations of this provision,
plaintiffs have not demonstrated that the directed patrol policy
falls under this statutory provision.
The language of the statute
is clear that a police department cannot implement quotas for
“arrests or citations.”
By reference to a companion provision,
9
the statute expressly defines “citation” to mean “any summons,
ticket, or other official document issued by a police officer for
a traffic violation, containing an order which requires the
motorist to respond.”
N.J.S.A. 40A:14-181.1 (providing that
“Citation” means a citation as defined in section 4 of P.L.1983,
c. 46 (C.39:5F-4)). 8
The term “arrest” is defined in the common
law as “the taking of a person into the custody of the law in
order that he may be held to answer for a criminal offense or be
prevented from committing one.”
State v. Evans, 438 A.2d 340, 342
(N.J. Super. App. Div. 1981) (citations omitted).
As presented by the plaintiffs in this case, the directed
patrol policy required police officers to engage citizens and
record any information provided, and it required that officers
perform 18 to 27 inquiries during a shift in order for the policy
to be effective.
The policy did not require 18 to 27 arrests to
be performed or 18 to 27 citations to be issued.
Thus, as a
matter of law, N.J.S.A. 40A:14-181.2 is inapplicable to the
directed patrol policy, and it cannot form a basis to support any
8
The statute also defines “quota” to mean “any requirement, in
writing or otherwise, regarding the number of arrests made or the
number of citations issued within a defined period of time by a
law enforcement officer, or regarding the proportion of the
arrests made and citations issued by the law enforcement officer
relative to the arrests made and citations issued by another law
enforcement officer or group of officers.” N.J.S.A. 40A:14-181.1.
10
of their claims.
2.
NJ CEPA claims
The New Jersey Legislature enacted CEPA to “protect and
encourage employees to report illegal or unethical workplace
activities and to discourage public and private sector employers
from engaging in such conduct.”
Abbamont v. Piscataway Township
Bd. of Educ., 650 A.2d 958, 971 (N.J. 1994).
In furtherance of
that goal, the statute provides, in relevant part: An employer
shall not take any retaliatory action against an employee because
the employee does any of the following: . . . c. Objects to, or
refuses to participate in any activity, policy or practice which
the employee reasonably believes: (1) is in violation of a law, or
a rule or regulation promulgated pursuant to law . . .; (2) is
fraudulent or criminal; or (3) is incompatible with a clear
mandate of public policy concerning the public health, safety or
welfare or protection of the environment.
N.J.S.A. 34:19-3(c).
A plaintiff who brings a cause of action pursuant to N.J.S.A.
34:19-3(c) must demonstrate that: (1) he or she reasonably
believed that his or her employer's conduct was violating either a
law, rule, or regulation promulgated pursuant to law, or a clear
mandate of public policy; (2) he or she performed a “whistleblowing” activity described in N.J.S.A. 34:19-3(c); (3) an adverse
employment action was taken against him or her; and (4) a causal
11
connection exists between the whistle-blowing activity and the
adverse employment action.
Kolb v. Burns, 727 A.2d 525, 530 (N.J.
Super. Ct. App. Div. 1999) (citation omitted).
Plaintiffs’ claims are deficient on at least two of the
required elements.
First, plaintiffs maintain that they
reasonably believed that the directed patrols constituted
impermissible quotas, and that they suffered demotions and
investigations as a result of their expression of their views.
While the Court accepts plaintiffs’ contention that they
subjectively believed the directed patrol policy established
improper quotas on police officers, that believe was not
objectively reasonable.
Any officer who reads the clear and plain language of the
statute would immediately understand that it only applies to
“arrest” and “citations,” as those basic terms are understood
under the common law and defined by the statute itself, and that
the directed patrol policy does not encompass arrests or
citations.
Nevertheless, the Court will accept for present
purposes the reasonableness of their belief.
The Court also
accepts that Holland and Galiazzi were transferred because they
did not fulfill the “quotas” of directed patrols, and that
Williamson was placed under investigation for the first time in
his thirteen year career.
The Court also accepts that plaintiffs’
12
superiors knew they objected to the directed patrol policy.
The
missing fundamental element of plaintiffs’ NJ CEPA claims is the
causal connection between their “whistle-blowing” and their
adverse employment actions.
a.
Holland and Galiazzi
In the case of Holland and Galiazzi, it is undisputed that
they did not comply with the directed patrol policy by fulfilling
the number of inquiries required for their shifts.
Between
January 2009 and February 2009, they were verbally counselled and
then given written warnings.
These plaintiffs claim that despite
their improving statistics, they were transferred to lesser
positions.
The reason for their transfer, plaintiffs claim, is
that they objected to the directed patrol policy, which is
evidenced by the fact that a fellow low performing officer who did
not object to the policy was not transferred. 9
The evidence in the record does not support a causal
connection between their objections to the policy and their
adverse employment actions.
On January 28, 2009, Holland and
Galiazzi, and non-party McCausland, were counseled for not only
Galiazzi and Holland state in their depositions that they were
told by other officers that they were transferred and investigated
because of what they wrote on their counseling forms with regard
to the quota system. The Court cannot consider this inadmissible
hearsay, and no affidavits or testimony from these officers is
provided as part of the record.
13
9
low performance on their directed patrols, but also for marginal
performance in pedestrian/vehicle stops, moving violations, and
quality of life enforcement.
(Docket No. 144-10 at 41, Memo from
Lieutenant Cook to Inspector Cuevas, Feb. 2, 2009.)
Their
supervisor informed them that their December statistics were low,
and reminded them “that they are assigned to a unit which requires
self-motivation and personnel must perform at levels higher than
other units.”
(Id.)
Their supervisor noted that “all three
officers acknowledge our finding and have committed to improving
[their] performance.”
(Id.)
On February 3, 2009, Holland and Galiazzi received written
warnings about their performance, and at that time Holland and
Galiazzi voiced their objection to the directed patrols.
They
also questioned the use of statistics to evaluate their overall
performance in all areas.
(Docket No. 144-10 at 45, 50,
Counseling forms.)
On February 16, 2009, plaintiffs’ sergeant informed their
lieutenant that their directed patrols doubled, and their other
performance parameters had gone up.
(Docket No. 124-15 at 2, 4.)
That same day, however, the lieutenant sent a memo to Inspector
Cuevas, attaching the sergeant’s report of plaintiffs’ most recent
statistics, and stated, “Although there has been some improvement
I can only measure the effort as being less than favorable,
14
therefore I am recommending their transfer out of the unit.”
(Docket No. 144-10 at 52.)
The record does not reveal the exact statistics of plaintiffs’
performance from December 2008 through February 2009.
Even though
their sergeant reports that their directed patrols doubled, it is
unclear whether they increased from 0 to 2 or 10 to 20.
Nonetheless, it is clear that plaintiffs remained deficient for
several months on the 18 to 27 directed patrols required as part
of their duties.
Moreover, even accepting that plaintiffs’
failure to comply with the directed patrol policy was due to their
objection to the policy, plaintiffs were evaluated on other areas
of performance.
Those areas remained deficient even after their
counseling.
Although plaintiffs attempt to evidence the causal connection
between their reassignment and their objection to the directed
patrol policy with the fact that fellow low-performer McCausland
was not reassigned because he did not object to the policy, the
record does not support that conclusion.
On his counseling form,
McCausland did not explain his objection to his low-performer
warning in writing like Holland and Galiazzi, but he did circle
that he did not concur with his counseling session.
144-10 at 48.)
(Docket No.
Moreover, the record contains the sergeant’s
February 16, 2009 follow-up memo as to McCausland’s performance,
15
which indicates that it had improved over Holland’s and
Galiazzi’s.
As stated above, a police department is prohibited from
establishing any quota for arrests or citations.
A police
department is also prohibited from using the number of arrests or
citations issued by an officer as the sole criterion for
promotion, demotion, or dismissal.
N.J.S.A. 40A:14-181.2.
A
police department is not prohibited, however, by the very same
statute from collecting, analyzing and applying information
concerning the number of arrests and citations in order to ensure
that a particular officer or group of officers does not violate
any applicable legal obligation, or from being considered in
evaluating the overall performance of a law enforcement officer.
Id.
Thus, the fact that the Camden police department evaluated
Holland and Galiazzi’s performance based on statistics in various
areas, including directed patrols, and transferred them to
different positions as a result of that evaluation is permissible
and not evidence of retaliatory animus.
In addition to Holland and Galiazzi’s reassignments, they
claim other incidents of retaliation.
Holland claims that in
April 2009, his request to be put on bike patrol was denied; in
June 2009, he was told that he would be placed in the “chronic
sick” category; in August 2009, he was told that he would be
16
marked AWOL from a shooting; in October 2009, he was visited at
home by a supervisor to confirm that he was not abusing sick leave
time; in November 2009, he received a preliminary notice of
disciplinary charges for failure to report, but the charges were
never resolved because he asked to be transferred to the Brooklawn
police department due to enormous stress.
Galiazzi claims that in March 2009 he was placed on an “abuse
of sick time” list despite using his accumulated 20 days of sick
time to care for his son who had broken his arm; in March 2009, he
was transferred to a different squad, which had the same hours and
compensation, but changed the days worked, requiring him to adjust
his childcare obligations; in August 2009, his vacation was
ordered to be cancelled due to manpower shortage, but instead of
reporting to work, he went out on sick leave due to work-related
stress, and an internal affairs officer visited him at home to
confirm he was there.
These additional allegations of retaliation are either too
attenuated from their objections to the directed patrol policy, or
they do not amount to adverse employment actions.
Klein v.
University of Medicine and Dentistry of New Jersey, 871 A.2d 681,
691-92 (N.J. Super. Ct. App. Div. 2005) (explaining that the
Legislature has defined a “retaliatory action” under the CEPA
statute as “the discharge, suspension or demotion of an employee,
17
or other adverse employment action taken against an employee in
the terms and conditions of employment,” N.J.S.A. 34:19-2e, and
the courts have interpreted this provision as requiring an
employer's action to have either impacted on the employee's
“compensation or rank” or be “virtually equivalent to discharge”
in order to give rise to the level of a retaliatory action
required for a CEPA claim); Hancock v. Borough of Oaklyn, 790 A.2d
186, 193 (N.J. Super. Ct. App. Div. 2002) (explaining that the
imposition of a minor sanction is insufficient to constitute a
retaliatory action under the statute).
Consequently, defendants are entitled to summary judgment on
Holland’s and Galiazzi’s NJ CEPA claims.
b.
Williamson
Williamson’s claims are different from Holland’s and
Galiazzi’s.
Williamson contends that in his role of FOP President
and his involvement in filing a state court lawsuit regarding the
directed patrol policy, he was retaliated in four ways: (1) in
August 2009, Williamson received a written reprimand for an
incident that occurred in April 2009 at a hospital where an
officer was being treated for a shooting and a nurse had claimed
Williamson was verbally engaged in a loud confrontation with her
and physically touched her; (2) in May 2009, Williamson was
charged with a disciplinary action for not reporting that an
18
attorney had a thumb drive containing information about the Camden
police department, but the charges were dropped; (3) during an FOP
meeting on October 6, 2009, two women got into an argument and
Williamson states that he was investigated as a result, but he
does not know the result of the investigation; and (4) Williamson
was told in December 2009 that he was being investigated for
procedural violations that occurred on November 21, 2009.
These four alleged claims of retaliation do not support a NJ
CEPA violation because they appear to be unrelated incidents, not
causally connected to Williamson’s stance on the directed patrol
policy, and because they do not constitute adverse employment
actions.
See N.J.S.A. 34:19-2e (“retaliatory action” under the
CEPA is defined as “the discharge, suspension or demotion of an
employee, or other adverse employment action taken against an
employee in the terms and conditions of employment”); cf. Espinosa
v. County of Union, 212 F. App’x 146, 153 (3d Cir. 2007) (citing
Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir.
1997) (citation omitted) (explaining that employees can
demonstrate a causal link between protected activity and adverse
employment action using circumstantial evidence.
For example, the
temporal proximity between the employee's expression and the
adverse employment action or a “pattern of antagonism” on the part
of the employer following the protected expression can raise the
19
inference of causation). 10
Therefore, defendants are entitled to
summary judgment on Williamson’s NJ CEPA claim.
3.
First Amendment claims
Plaintiffs also claim that their First Amendment rights were
violated with regard to their expression of their disagreement with
the directed patrol policy.
It is well-established that a
governmental entity “‘may not discharge an employee on a basis that
infringes that employee’s constitutionally protected interest in
freedom of speech.’”
Dougherty v. School Dist. of Philadelphia,
772 F.3d 979, 986 (3d Cir. 2014) (quoting Rankin v. McPherson, 483
U.S. 378, 383 (1987)).
To establish a First Amendment retaliation
claim, a public employee must show that (1) his speech is protected
by the First Amendment and (2) the speech was a substantial or
motivating factor in the alleged retaliatory action, which, if both
are proved, shifts the burden to the employer to prove that (3) the
same action would have been taken even if the speech had not
occurred.
Id. (citation omitted). 11
10
To the extent that Williamson contends that he was retaliated
against because he led protests against the policy in March 2009
and filed the state court action in April 2009, Williamson has not
provided the requisite temporal proximity or other causal
connection between those activities and his alleged adverse
employment actions, even if they could be considered as such.
11
For plaintiff’s claims against the individual defendants acting
in their personal capacity, the qualified immunity doctrine
governs the analysis of those claims. “Qualified immunity shields
20
The Third Circuit recently noted that “the Supreme Court has
reiterated time and time again, [that] ‘free and unhindered debate
on matters of public importance’” is “‘the core value of the Free
Speech Clause of the First Amendment.’”
Id. (quoting Pickering v.
Board of Education, 391 U.S. 563, 573 (1968)).
Accordingly,
“public employees do not surrender all their First Amendment rights
by reason of their employment.”
547 U.S. 563, 417 (2006)).
Id. (quoting Garcetti v. Ceballos,
“At the same time, the Supreme Court
also aptly recognizes the government's countervailing interest - as
an employer - in maintaining control over their employees' words
and actions for the proper performance of the workplace.
Thus, so
long as employees are speaking as citizens about matters of public
concern, they must face only those speech restrictions that are
necessary for their employers to operate efficiently and
effectively.”
Id. (citation and quotation omitted).
government officials from civil damages liability unless the
official violated a statutory or constitutional right that was
clearly established at the time of the challenged conduct.”
Reichle v. Howards, ––– U.S. ––––, ––––, 132 S. Ct. 2088, 2093
(2012). The qualified immunity analysis is a two-step process,
where a court must first decide whether the facts, taken in the
light most favorable to plaintiff, establish that defendants’
conduct “violated a constitutional right,” and, second, whether
that right was “clearly established” at the time of the challenged
conduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). Because the
Court finds that plaintiffs cannot support their claims that
defendants violated their constitutional rights, the qualified
immunity analysis ends there.
21
Under this backdrop, a court must conduct a three-step inquiry
to determine whether a public employee’s speech is protected: (1)
the employee must speak as a citizen, not as an employee, under the
test established in Garcetti and recently reiterated by the Supreme
Court in Lane v. Franks, ––– U.S. ––––, ––––, 134 S. Ct. 2369,
2378–802 (2014); (2) the speech must involve a matter of public
concern; and (3) the government must lack an “adequate
justification” for treating the employee differently than the
general public based on its needs as an employer under the
Pickering balancing test.
Id.
In this case, even accepting that plaintiffs’ opposition to
the directed patrol policy was a matter of public concern,
plaintiffs cannot meet the other two elements of their First
Amendment violation claims.
For the same reasons explained above
with regard to their NJ CEPA claims, plaintiffs have not provided
sufficient evidence to go to a jury that their speech was a
substantial or motivating factor in the alleged retaliatory
actions, or that the Camden Police Department would not have taken
the same action even if the speech had not occurred. 12
12
For the same reasons, plaintiff’s First Amendment violation
claim under the New Jersey constitution is also unavailing. See E
& J Equities, LLC v. Board of Adjustment of Tp. of Franklin, 100
A.3d 539, 549 n.5 (N.J. Super. App. Div. 2014) (explaining
“[b]ecause we ordinarily interpret our State Constitution's free
speech clause, N.J. Const. art. I, ¶ 6, to be no more restrictive
22
Consequently, defendants are entitled to summary judgment on
plaintiffs’ First Amendment violation claims. 13
4.
Holland’s FMLA claims
Holland claims that defendants interfered with this right
under the Family Medical Leave Act. 14
The Family and Medical Leave
Act of 1993, 29 U.S.C. § 2601, et seq., was enacted to provide
leave for workers whose personal or medical circumstances
necessitate leave in excess of what their employers are willing or
able to provide.
Victorelli v. Shadyside Hosp., 128 F.3d 184, 186
(3d Cir. 1997) (citing 29 C.F.R. § 825.101).
The FMLA is both
intended and expected to benefit employers as well as their
employees in order to balance the demands of the workplace with
the needs of families.
29 C.F.R. § 825.101(b),(c).
than the First Amendment to the United States Constitution, we
rely on federal constitutional principles in interpreting the free
speech clause of the New Jersey Constitution,” but noting that two
exceptions to the general rule are political expression at
privately-owned-and-operated shopping malls).
13
Because plaintiffs cannot sustain their First Amendment claims,
their claims against the City of Camden also fail. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (explaining that
state a claim for municipal liability under § 1983, a plaintiff
must establish a violation of a constitutional right, and that
such violation was committed or caused by a policy or custom of
the municipality).
14
Holland has also advanced an FMLA interference claim pursuant to
New Jersey’s FMLA. N.J.S.A. 34:11B-9. The analysis of Holland’s
claims is the same for both the federal and state FMLA.
23
The FMLA affords eligible employees “a total of 12 workweeks
of leave during any 12-month period” in order “to care for the
spouse . . . of the employee, if such spouse . . . has a serious
health condition.”
29 U.S.C. § 2612(a)(1)(C).
Following FMLA
leave, an employee is entitled to be reinstated to the former
position or an alternate one with equivalent pay, benefits and
working conditions.
See id. § 2614(a)(1).
The FMLA provides relief for interference with these FMLA
rights. 15
The FMLA declares it “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to
exercise, any right provided” in the FMLA.
29 U.S.C. § 2615(a)(1).
Such a claim is typically referred to as an “interference” claim.
Sommer v. The Vanguard Group, 461 F.3d 397, 398-99 (3d Cir. 2006).
To assert an interference claim, “the employee only needs to show
that he was entitled to benefits under the FMLA and that he was
denied them.”
Sommer, 461 F.3d at 399 (citation omitted).
“An
interference action is not about discrimination, it is only about
whether the employer provided the employee with the entitlements
15
The FMLA also provides relief for retaliation for an employee’s
exercise of his FMLA rights. The “retaliation theory protects
employees from suffering discrimination because they have exercised
their rights under the FMLA.” Santosuosso v. Novacare Rehab., 462
F. Supp. 2d 590, 596 (D.N.J. 2006) (internal citation and quotes
omitted). Holland has not asserted a retaliation claim.
24
guaranteed by the FMLA.”
Id. (citation omitted).
Holland claims that defendants interfered with his FMLA rights
by being visited at home on one occasion, being told he was using
too much sick time, and by being placed on the “chronic sick”
category for his use of his intermittent FMLA leave to care for his
mother who was suffering from cancer.
Holland has not shown,
however, that he was denied FMLA time, precluded from using his
FMLA time, or otherwise prejudiced by defendants’ actions.
Holland’s FMLA interference claim is unsupportable.
Thus,
See Ragsdale
v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002) (“To prevail
[on an FMLA interference claim], an employee must prove, as a
threshold matter, that the employer violated § 2615 by interfering
with, restraining, or denying his or her exercise of FMLA rights.
Even then, § 2617 provides no relief unless the employee has been
prejudiced by the violation.”).
CONCLUSION
For the reasons expressed above, defendants are entitled to
summary judgment on all of plaintiffs’ claims against them.
appropriate Order will be entered.
Date: March 31, 2015
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
25
An
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