DAVILA v. THOMPSON et al
Filing
45
OPINION. Signed by Judge Noel L. Hillman on 12/10/2014. (drw)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SUSO DAVILA,
Plaintiff,
CIVIL NO. 11-554 (NLH)(AMD)
OPINION
v.
CITY OF CAMDEN, SCOTT
THOMSON, ORLANDO CUEVAS,
INSPECTOR MICHAEL LYNCH, and
CHRISTINE JONES-TUCKER,
Defendants.
Appearances:
LAW OFFICES OF CHERYL L. COOPER
342 EGG HARBOR RD
SUITE A-1
SEWELL, NJ 08080
On behalf of plaintiff
JAMES H. WALLER
611 WHITE HORSE PIKE
HADDON HEIGHTS, NJ 08035
On behalf of defendant City of Camden
JEAN SHARON CHETNEY
JEAN S. CHETNEY, ATTORNEY AT LAW
18 NORTH MAIN STREET
WOODSTOWN, NJ 08098
On behalf of the individual defendants
HILLMAN, District Judge
Presently before the Court is the motion of defendants for
summary judgment on plaintiff’s claims that his rights were
violated when he spoke out against a police policy at a pre1
shift roll call meeting.
For the reasons expressed below,
defendants’ motion will be granted.
BACKGROUND
Plaintiff, Suso Davila, a now-retired Camden City police
sergeant, filed a complaint against defendants, the City of
Camden; 1 Scott Thomson, City of Camden Police Chief; Orlando
Cuevas, City of Camden Police Inspector; Michael Lynch, Deputy
Chief of the City of Camden Police Department; and Christine
Jones-Tuckers, the Business Administrator for the City of Camden,
claiming that defendants violated his First Amendment rights and
committed violations of the New Jersey Conscientious Employee
1Plaintiff’s
claims are asserted against the City of Camden,
which is the same entity as 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). Plaintiff’s
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”). As of May 1, 2013, the Camden City Police Department
became defunct, and the County of Camden took over the policing of
Camden. Because plaintiff’s claims arose prior to the transition,
the City of Camden is the proper party in this action. See The
Camden County Police Department: FAQs, available at
http://camdencountypd.org/wp-content/themes/ccpd/pdf/Police-FAQ.pdf
, at page 3 (“Camden County would NOT be responsible for or cover
in any way any and all legal challenges and costs associated with
prior events attributable to the municipality that wishes to join a
County police department.”).
2
Protection Act (“CEPA”), N.J.S.A. 34:19–1, et seq., when he was
disciplined and transferred because he spoke out about a Camden
Police Department policy regarding “directed patrols.”
As
described by defendants, directed 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.
Plaintiff believed that the directed patrol policy was
sound, but he took issue with one aspect of it.
Plaintiff
believed that the practice of collecting personal information
from innocent citizens and commingling that information with
personal information of suspected and known criminals was
“illegal.”
Plaintiff also believed that the repeated requests by
police of innocent citizens for their personal information would
3
expose the police officers and the department to lawsuits for
harassment.
In his capacity as a union board member, as vice-
president of the Camden Organization of Police Superiors, and as
a homeowner in Camden, plaintiff spoke out against the collection
of personal information from regular citizens, and informed other
Camden residents that they were not required to provide such
personal information to a police officer simply because they were
asked for that information from an officer. 2
On March 17, 2009, plaintiff conducted roll call as he
usually did at the beginning of the midnight shift.
That day,
defendant Lynch attended roll call to speak to the officers about
2
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.
Plaintiff’s concern with the directed patrols is that the
general public does not know that they may refuse to provide
personal information, including social security numbers, to a
police officer pursuant to a “mere inquiry,” particularly when
they are asked for the same information multiple times. (Pl.
Dep., Def. Ex. B, at 71, 77, 79.) The Court notes that putting
aside the place and manner in which they were raised, Sergeant
Davila’s concerns were not frivolous from a policy perspective.
That having been said, the Court takes no position on the
propriety of the directed patrol policy and need not do so in
order the resolve plaintiff’s First Amendment and NJ CEPA
claims.
4
the engagement of citizens in Camden.
Plaintiff, along with
several other officers, voiced their concerns about collecting
personal information from citizens not suspected of any crime,
recording that information on contact cards, and commingling that
recorded data with information of suspected and known criminals
that is supplied to the attorney general’s office.
Plaintiff
claims that he was respectful in his criticism, while other
officers were much more vocal.
Despite plaintiff’s deferential and respectful expression of
his view on the propriety of collecting personal information from
regular Camden citizens, plaintiff claims that he was the victim
of retaliation.
Immediately following the meeting, plaintiff was
sent home from work, where he remained on administrative leave,
with pay, for three days.
At the end of the three days, he was
transferred to Central Complaint where he no longer supervised
directed patrols, and he was placed on a different shift that
caused him to lose a shift deferential in pay.
Plaintiff was
charged interdepartmentally with a violation of Rules and
Regulations of the Camden Police Department Disciplinary Code,
Chapter 8, Rule 8.1.6(k), “Insubordination or Serious Breach of
Discipline.”
The specifications of the Preliminary Notice of
Personnel Action provided:
5
On March 17, 2009, Sergeant Suso Davila #420, a seventeen
year veteran of the Camden Police Department, interrupted
Inspector Lynch during roll call and stated, “Officers
cannot stop people for no reason.” Inspector Lynch
attempted to clarify the difference between investigative
detentions and mere inquiries to which sergeant Davila
contradicted Inspector Lynch’s direction and stated, “You
couldn’t do this in any other town.” Sergeant Davila also
stated the department was violating the Attorney General
guidelines by completing field contact cards. Inspector
Lynch corrected Sergeant Davila to which Sergeant Davila
laughed and stated, “That’s why you guys should not have
gotten rid of the 1A.” Sergeant Davila’s comments and
demeanor were insubordinate, disruptive and adversely
impacted the efficient operation of the Department, not to
mention under minded Inspector Lynch’s authority as
Commanding Officer. Furthermore, instructing subordinates
incorrectly regarding the legal exercise of their authority
either exhibits his inexcusable lack of basic police
knowledge or his intent to subvert the good order and
effectiveness of the Department, either way Sergeant Davila
failed to carry out his responsibilities as a first line
supervisor. Such failure jeopardizes the safety of our
officers as well as the citizens we are sworn to protect.
Def. Ex. C, Docket No. 25-8.
Plaintiff claims that his expression of his view of the
directed patrol policy as it concerned the collection of
personal information constituted speech protected under the
First Amendment to the federal and New Jersey constitutions.
also claims that his reassignment and shift change were in
retaliation for his protected speech, and also constituted a
violation of NJ CEPA because he “blew the whistle” on the
department’s harmful activity.
Defendants have moved for summary judgment on all of
6
He
plaintiff’s claims.
Plaintiff has opposed their motion.
DISCUSSION
A.
Subject matter jurisdiction
Plaintiff has brought his 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 plaintiff’s
federal claims under 28 U.S.C. § 1331, and supplemental
jurisdiction over plaintiff’s 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 (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
7
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.
Saldana v.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
C.
Analysis
1.
First Amendment claims
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.’”
8
Dougherty v. School Dist. of Philadelphia, --- F.3d ---, 2014 WL
6600421, 5 (3d Cir. Nov. 21, 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). 3
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.’”
3
Id. (quoting Pickering v.
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
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 plaintiff cannot support a claim that defendants
violated his constitutional rights, the qualified immunity
analysis ends there.
9
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).
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 plaintiff’s view of the
police department’s collection of personal information from
10
ordinary citizens involves a matter of public concern, plaintiff
cannot meet the other two elements of his First Amendment
retaliation claim.
First, plaintiff’s expression of his concerns
about the data collection aspect of the directed patrols falls into
the category of an employee speaking, rather than the speech of a
citizen.
Plaintiff states that he did not dispute the legality of
gathering personal information from citizens pursuant to a “mere
inquiry” stop by police.
Plaintiff agrees that police officers are
permitted to engage in this interaction with anyone on the street. 4
4
As a police officer, plaintiff was 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 speaking 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
11
Instead, plaintiff was concerned that lawsuits could be filed
against him and his fellow officers by citizens because they felt
harassed.
He was also generally concerned about the commingling of
criminal information with innocent citizen information.
These
concerns evidence a police sergeant’s worry for his department’s
exposure to lawsuits by citizens who do not understand the legality
of the police inquires, rather than for violations of citizens’
rights, which plaintiff agrees was not occurring as a matter of
policy. 5
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 his opposition to defendants’ motion for summary judgment,
plaintiff provides an affidavit, in which he states, “I reasonably
believe that the stopping of citizens and members of the public on
the streets of Camden, asking them all kinds of questions
including information about crimes, and criminal activity, and
personal information including their social security numbers, was
a violation of the Fourth Amendment.” (Pl. Ex. M ¶ 18.) This
statement in his affidavit is in complete contrast to his
deposition testimony. There, when asked, “What did you think
12
Moreover, although plaintiff expressed these concerns to his
neighbors and members of his private organizations, no evidence
shows that he was retaliated against for that expression. 6
The
evidence in the record demonstrates that it was in his expression
of his concerns at the police department’s March 17, 2009 roll call
that resulted in the alleged retaliation.
Plaintiff disputes that
his expression of his views on the information gathering policy was
not delivered in a respectful and deferential manner, but the
would happen if we put information of people who are not criminals
with information of people who were criminals?” plaintiff
answered, “Lawsuits . . . based on gathering information,
harassment. My concern was harassment. Why are we trying to get
the information? That was my big concern; us getting sued [,] by
the general public. The ones we’re stopping.” (Pl. Dep., Def.
Ex. B, at 71.; see also id. at 77.)
When asked, “Is it your
contention that any requirement of the directed patrol policy as
of March 17th of 2009 was illegal?”, plaintiff responded, “No.”
When asked, “Was it your position at any time that you were given
an illegal order?”, plaintiff answered, “No.” (Id. at 77.)
“[C]onclusory, self-serving affidavits are insufficient to
withstand a motion for summary judgment.” Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009)
(citations omitted). Plaintiff’s affidavit is this type of
submission.
6
In his affidavit in support of his opposition to defendants’
motion for summary judgment, plaintiff states that defendants were
well aware that he was against the directed patrol policy. (Pl.
Ex. M ¶ 7.) Plaintiff does not provide any other evidence to
demonstrate that statement. To defeat summary judgment, plaintiff
must identify specific facts and affirmative evidence that
contradict those offered by the moving party, and plaintiff must
do more than just rest upon mere allegations, general denials, or
vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d
Cir. 2001).
13
undisputed evidence in the record shows that plaintiff’s discipline
was for the time, place and manner in which he delivered his
opinions rather than for the content of his views.
Plaintiff was
as supervisory officer who was in charge of ensuring that the
officers he supervised understood their duties, including the
parameters of the directed patrol policy.
(See Pl. Dep., Def. Ex.
B, at 79, explaining his understanding of the difference between an
“investigative detention” and a “mere inquiry.”)
Plaintiff was
disciplined for insubordination because his comments and demeanor
were deemed by his supervisors to be disruptive and undermining,
and an incorrect instruction to subordinates on the legal exercise
of their authority.
(Def. Ex. C, Docket No. 25-8.)
As the Third Circuit reiterated,
Garcetti establishes that when public employees speak
“pursuant to their official duties,” that speech does not
receive First Amendment protection. This is because, when
doing so, “employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” The rationale
underlying this distinction “promote[s] the individual and
societal interests that are served when employees speak as
citizens on matters of public concern,” while “respect[ing]
the needs of government employers attempting to perform their
important public functions.”
Dougherty, --- F.3d ---, 2014 WL 6600421, *6 (quoting Garcetti,
547 U.S. at 421).
Plaintiff has not provided any proof, other
than his own perception of the events during the roll call, to
cast doubt that his conduct was not as described in the Notice of
14
Disciplinary Action. 7
Relatedly, plaintiff has failed to demonstrate that defendants
lacked an “adequate justification” for treating him differently
than the general public based on its needs as an employer under
the Pickering balancing test.
A public employer has a legitimate
and countervailing interest, as an employer, in “promoting
workplace efficiency and avoiding workplace disruption,” and a
public employer may limit an employee’s speech where it “impairs
discipline by superiors or harmony among co-workers, has a
7
In an attempt to support his claim that he calmly and
respectfully voiced his concern about the directed patrol policy,
rather than how it was described by defendant Lynch, plaintiff
contends that Captain Grimes, who attended the roll call meeting
and subsequently sent plaintiff home at the direction of defendant
Lynch, did not agree with Lynch’s report of the incident, he did
not agree with the punishment, and he altered his own report at
the behest of Lynch. (Pl. Statement of Facts ¶ 32.) The hearing
transcript testimony of Captain Grimes cited does not, however,
support that proposition. (Pl. Ex. G at 77-78.) The hearing
testimony of Lieutenant John Sosinavage, who was in charge of
internal affairs administrative hearings and investigations,
testified that when he reviewed defendant Lynch’s report of the
roll call meeting with Captain Grimes, Captain Grimes felt that
plaintiff’s conduct was not as severe as defendant Lynch felt it
was, but that Grimes perceived plaintiff’s demeanor to be
“unprofessional,” spilled over to the other officers, and he did
not stop talking when the conversation should have ended. (Pl.
Ex. D, at 14-17.) Plaintiff notes that Sosinavage subsequently
filed a lawsuit against Lynch. These minor disputes as to the
tone of Plaintiff’s objections are not material. Nowhere does
Plaintiff dispute that he expressed his concerns during a meeting
designed to insure the officers under his command followed the
disputed policy. Whether he shouted or whispered, his expressed
views undermined departmental goals.
15
detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the
performance of the speaker's duties or interferes with the regular
operation of the enterprise.”
Dougherty, --- F.3d ---, 2014 WL
6600421, *10 (quoting Rankin, 483 U.S. at 388).
Plaintiff has not
offered sufficient evidence to demonstrate that his discipline was
in retaliation for protected speech, and not an effort to promote
workplace efficiency and avoiding workplace disruption. 8
2.
NJ CEPA
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
8
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 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).
16
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.
34:19-3c 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. 34:19-3c; (3) an adverse
employment action was taken against him or her; and (4) a causal
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).
At the March 17, 2009 roll call meeting, plaintiff voiced his
objection to the information gathering procedure he and his fellow
officers were instructed to undertake as part of their directed
patrols.
Even accepting as true that plaintiff suffered an
adverse employment action as a result, plaintiff’s CEPA claim
fails for the same reasons as his First Amendment retaliation
17
claims.
As explained above, the evidence in the record shows that
it was the manner, time, and place in which plaintiff expressed
his concerns with the information gathering policy, and not for
the content of his views, that subjected him to discipline.
See
Connick v. Myers, 461 U.S. 138, 152-53 (1983) (citation omitted)
(“When a government employee personally confronts his immediate
superior, the employing agency's institutional efficiency may be
threatened not only by the content of the employee's message but
also by the manner, time, and place in which it is delivered.”);
see also Fleming v. Correctional Healthcare Solutions, Inc., 751
A.2d 1035, 1039 (N.J. 2000) (explaining that the requirement that
a whistleblower submit her complaint to a supervisor is not
limited to her immediate supervisor, and observing, “This does not
mean that an employer may not fire an employee, even a
whistleblower, who is unreasonable in expressing his or her
complaints. For example, a state employee who repeatedly called
the Governor at the Governor's residence late at night to report
violations of law at a state agency could justly be said to be
insubordinate if requested not to do so.”).
Additionally, the record evidence does not demonstrate that at
the time of the roll call meeting plaintiff could point to a law,
rule or regulation that the information gathering policy was
violating.
The Court does not question that plaintiff felt that
18
the police’s often duplicative obtaining of personal information
from regular citizens on the street simply for the sake of
fulfilling a quota was not effective or desirable for many
reasons, but the evidence does not demonstrate that plaintiff
believed that the police were violating the law by doing so. 9
In
short, the evidence in the record does not support the elements of
a CEPA violation.
CONCLUSION
For the reasons expressed above, defendants are entitled to
summary judgment on all of plaintiff’s claims against them.
An
appropriate Order will be entered.
Date:
December 10, 2014
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
9
Again, as noted above, plaintiff’s contention in his complaint
and affidavit filed in opposition to summary judgment that the
directed patrol policy, as implemented by the Camden police, was a
violation of the citizens’ Fourth Amendment rights, does not
demonstrate that as of March 17, 2009, plaintiff viewed the policy
as violating citizens’ constitutional rights. Plaintiff has not
pointed to any evidence that as of March 17, 2009, the information
gathering part of the directed patrol policy required officers to
exceed the bounds of the Fourth Amendment, which plaintiff was
required to understand. See supra note 4. In other words,
because plaintiff, as a police officer, was required to know the
clearly established law on an officer’s authority to stop and
question citizens, he would have been capable of articulating how
the information gathering policy was violating the Fourth
Amendment rights of Camden citizens, rather than generally stating
that it was “improper,” “illegal,” or “harassing.”
19
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?