CARMICHAEL v. THOMSON et al
Filing
20
OPINION. Signed by Chief Judge Jerome B. Simandle on 3/6/2015. (drw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
LT. ANTHONY CARMICHAEL,
Plaintiff,
v.
HONORABLE JEROME B. SIMANDLE
POLICE CHIEF JOHN SCOTT
THOMSON, DEPUTY CHIEF ORLANDO
CUEVAS, DEPUTY CHIEF MICHAEL
LYNCH, LOUIS VEGA, CITY OF
CAMDEN, COUNTY OF CAMDEN,
COUNTY OF CAMDEN POLICE
DEPARTMENT, CHIEF JOHN SCOTT
THOMSON, DEPUTY CHIEF ORLANDO
CUEVAS, DEPUTY CHIEF MICHAEL
LYNCH, JOSEPH WYSOCKI, J.L.
WILLIAMS
Civil No. 14-3323 (JBS/AMD)
OPINION
Defendants.
APPEARANCES:
Cheryl Cooper, Esq.
LAW OFFICES OF CHERYL L. COOPER
342 Egg Harbor Rdd, Suite A-1
Sewell, NJ 08080
-andPaul D. Brandes, Esq.
VILLARI BRANDES & GIANNONE, PC
8 Tower Bridge
161 Washington Street
Suite 400
Conshohocken, PA 19428
Attorneys for Plaintiff
Christine O’Hearn, Esq.
Benjamin S. Teris, Esq.
BROWN & CONNERY, LLP
360 Haddon Ave.
PO Box 539
Westmont, NJ 08108
Attorneys for Defendants County of Camden, et al.
Daniel Edward Rybeck
John C. Eastlack, Jr.
WEIR & PARTNERS LLP
457 Haddonfield Rd., Suite 310
Cherry Hill, NJ 08002
Attorneys for Defendants City of Camden, et al.
SIMANDLE, Chief Judge:
I.
INTRODUCTION1
This is an action by Plaintiff Lt. Anthony Carmichael, a
police officer currently employed with the Camden County Police
Department. Plaintiff alleges that his current employer, his
former employer, the City of Camden Police Department, and
various superior officers, some of who are currently employed at
the Camden County Police Department, engaged in a pattern of
retaliation and harassment against Plaintiff after he spoke out
against certain internal disciplinary procedures and practices
that violated New Jersey statutes as well as guidelines
promulgated by the Attorney General.
Presently before the Court are two motions to dismiss and
Plaintiff’s cross-motion to amend the complaint, which
Defendants oppose. For the reasons set forth below, the Court
will grant in part and deny in part Plaintiff’s motion to amend.
1
The facts recited here are drawn from Plaintiff’s Complaint,
filed May 27, 2014, which are presumed to be correct for
purposes of these motions.
2
Defendants’ motions to dismiss the original complaint will be
denied without prejudice as moot.
II.
BACKGROUND
A. Factual Background2
Plaintiff Lieutenant Anthony Carmichael was a member of the
Camden City Police Department, from September 1994 until April
15, 2013. Since April 15, 2013, he has been employed as a
Lieutenant with the Camden County Police Department. Plaintiff
is African American. (Compl. ¶¶ 4, 11.)
Plaintiff was hired by the City Police Department in 1994.
In 2003, he was promoted to Lieutenant. In July 2008, he was
assigned to Internal Affairs as an “acting Captain” awaiting
appointment to a permanent position of Captain. (Compl. ¶¶ 1112, 19.) In being made acting Captain, Plaintiff became the
direct supervisor of Lt. Sosinavage, who previously ran the
Internal Affairs unit. (Compl. ¶¶ 19, 39.) Plaintiff became the
immediate supervisor of the entire unit. (Compl. ¶ 19.)
At the time, the City Police Department was under a federal
Consent Decree imposed by the District of New Jersey as a result
of past irregular Internal Affairs practices. Under the Consent
Decree, the police department was required to follow certain
2
The facts of this case are drawn from Plaintiff’s Complaint,
filed May 27, 2014.
3
specified policies and procedures and had certain reporting
requirements. As acting Captain of the Internal Affairs Unit,
Plaintiff was charged with ensuring that the City complied with
the Decree, overseeing the reporting requirements, and making
sure that the Internal Affairs Department complied with the New
Jersey Attorney General Guidelines, including the guidelines on
investigating internal and external complaints of officer
misconduct. (Compl. ¶¶ 28-32.) The Guidelines required the
Internal Affairs unit to conduct full and complete
investigations into all allegations of officer misconduct.
(Compl. ¶ 41.) In the five years prior 2009, when Sosinavage in
charge of the unit, the Internal Affairs unit had been in
compliance with the Guidelines. (Compl. ¶ 39.)
Shortly after Plaintiff moved to Internal Affairs, in
August 2008, Louis Vega was hired as a civilian police director
for the City’s police department. At around the same time, John
Scott Thomson was promoted from Captain to Police Chief. As
Chief, Thomson oversaw the Camden City Police Department and the
Camden County Police Department and had final authority over
decisions made in the department. (Compl. ¶¶ 13, 16-17.) Vega
and Thomson consulted with each other on almost all decisions
made within the police department.
Vega met with Plaintiff shortly after he first joined the
4
City Police Department and told Plaintiff that he wanted to
reprioritize Internal Affairs cases. According to Plaintiff,
Vega wanted Plaintiff to “focus more on the rule infractions
rather than the pending criminal/serious infractions.” (Compl. ¶
23.) He also told Plaintiff that he “wanted to put the officers
out of work, ‘teach them a lesson,’ and have them fight to get
their jobs back.” (Compl. ¶ 24.)
At another meeting with Vega and Thomson, Plaintiff was
told that it was not necessary to follow the Attorney General
Guidelines on investigating and charging in administrative
cases. (Compl. ¶ 25.) Plaintiff voiced objections to violating
the AG Guidelines to “several members of the City of Camden
administration,” but the administration members told Plaintiff
to discontinue the past practice of Internal Affairs. ((Compl.
¶¶ 25-26.)
On or around March 23, 2009, Plaintiff had a meeting with
Thomson to brief him on the status of pending Internal Affairs
investigations. Plaintiff told Thomson of one complaint alleging
that certain officers with the rank of Inspector committed some
misconduct against subordinate officers. (Compl. ¶¶ 42-45.) The
investigation was not yet completed but the complaint appeared
to be corroborated by eyewitnesses, and Plaintiff told Thomson
that there should be a full and complete investigation into the
5
allegations before disciplinary charges were filed against the
Investigators. (Compl. ¶¶ 45, 47.) Thomson responded that “the
tail is not going to wag the dog.” (Compl. ¶ 49.)
At the same meeting, Plaintiff told Thomson of another
Internal Affairs investigation in which Inspectors wrote a memo
stating that a Sargent had committed several rule infractions.
Again, Plaintiff stated his opinion that a full investigation
was required before disciplinary charges were filed, since the
Sergeant was alleged to have committed serious rule infractions
and any disciplinary charges brought against him could result in
severe penalties. (Compl. ¶¶ 51-54.) Plaintiff added that the
department, including Thomson, could be in trouble for not fully
investigating the allegations. (Compl. ¶ 57.) Thomson was
“annoyed” and indicated that he would direct Plaintiff what to
investigate and what not to investigate. (Compl. ¶ 55.)
On April 7, 2009, Thomson met with Sosinavage and asked
about the two matters Plaintiff had raised during the March 23rd
meeting. Sosinavage told Thomson that the investigations into
those cases were not yet complete but that he would be able to
complete them within time. Despite this, Thomson emailed
Plaintiff the next day asking Plaintiff to prepare the Notices
of Discipline for the officers and to have the document on his
desk by noon. (Compl. ¶¶ 58-59.) Plaintiff objected to Thomson’s
6
order but asked Sosinavage to comply because Thomson was their
superior officer. The order was drafted and placed on Thomson’s
desk that day. (Compl. ¶ 60.)
On April 10, 2009, two days after Sosinavage and Plaintiff
Carmichael submitted the Notices of Discipline to Thomson, Vega
and Inspector Michael Lynch met with Sosinavage and told him
that he was also being transferred out of Internal Affairs. They
told Sosinavage that he was being transferred into the midnight
shift in the patrol division and assigned to supervise the
“problem people” on that shift. (Compl. ¶¶ 62, 64.)
Also on April 10, 2009, Plaintiff Carmichael met with
Thomson and Vega, who told him that there would no longer be a
Captain in Internal Affairs and that Plaintiff was going to be
transferred out. (Compl. ¶¶ 63.) Shortly thereafter, Vega told
Plaintiff that he was being transferred to the midnight shift of
the patrol division, where he would be on the same shift as
Sosinavage. (Compl. ¶¶ 67-68.)
Then-Sergeant Joseph Wysocki, who is Caucasian, replaced
Plaintiff in Internal Affairs and was made acting Lieutenant,
even though Plaintiff was senior in rank within the unit.
(Compl. ¶¶ 70, 94-95.) Before leaving for the patrol division,
Sosinavage trained Wysocki on the proper procedures for
conducting Internal Affairs investigations and told Wysocki to
7
conduct full investigations as required by the the Attorney
General Guidelines. While Sosinavage was training Wysocki, he
received another memo by Inspectors about misconduct where the
Inspectors recommended disciplinary charges without further
investigation. Despite the requirements under the Guidelines,
Sosinavage was ordered to follow the Inspectors’ recommendations
and issue a Notice of Discipline without any additional inquiry.
(Compl. ¶¶ 72-73.)
Around the time Plaintiff was being asked to transfer out
of Internal Affairs, he was to be promoted to Captain. Plaintiff
was third on the promotional list and, for unrelated reasons,
the two candidates above him were not going to be promoted.
(Compl. ¶ 75.) Vega asked Plaintiff to decline the promotion to
Captain, but Plaintiff refused to do so. (Compl. ¶ 74.)
Approximately two weeks later, on April 23, 2009, during a
meeting with the City of Camden Business Administrator,
Chirstine Jones-Tucker, Jones-Tucker told Sosinavage that the
Captain position had been given to an officer Burnett. (Compl. ¶
79.)
As a result of Defendant’s treatment, Plaintiff took family
medical leave from his position in the patrol division. (Compl.
¶ 98.) When he returned from medical leave wearing his Captain
bars, he was told by Deputy Chief Orlando Cuevas that he had
8
been demoted to Lieutenant. Plaintiff was then transferred to
Special Operations, where he was assigned to work under nowCaptain Burnett. (Compl. ¶¶ 99-102.) At around the same time,
Sosinavage, who is Caucasian, was promoted to acting Captain in
the patrol division. Sosinavage, who is lower on the promotional
list than Plaintiff and junior in rank, took over Plaintiff’s
position in the patrol division unit when Plaintiff left.
(Compl. ¶¶ 100, 103.)
Plaintiff alleges that in addition to being passed over for
a promotion and demoted, he was humiliated, fined, disciplined,
and discriminated against (Compl. ¶¶ 97, 109.) He states that
Cuevas once ordered Plaintiff to be “charged with AWOL less than
5 days” for attending a union meeting while other union members
were permitted to attend the meeting on administrative leave and
not punished. (Compl. ¶ 104.) Deputy Chief Michael Lynch once
imposed disciplinary action against Plaintiff, approved by
Thomson, “that was unwarranted, unsupported by the evidence and
excessive.” (Compl. ¶ 106.) Plaintiff also states that, as
Captain, he was forced to work “split shifts” when his Caucasian
counterparts were not told to do so. (Compl. ¶ 144.)
When the City of Camden Police Department was disbanded in
May 2013, Plaintiff was hired by the Camden County Police
Department. He disclosed that he had filed a complaint against
9
Defendants, including Thomson, Lynch, and Cuevas, alleging race
discrimination, retaliation, and other torts. Nevertheless,
Thomson was named Police Chief of the Camden County Police
Department, and Cuevas and Lynch were named Deputy Chiefs.
(Compl. ¶¶ 169-76.) Plaintiff asserts that the hiring of
Thomson, Lynch, and Cuevas violated New Jersey law on the hiring
and promotion of officers in the Camden County Police
Department. (Compl. ¶ 178.) Plaintiff also alleges that he spoke
out against the improper practices and demanded that his union
grieve the hirings in the newly created Camden County Police
Department, and was subject to retaliation by Thomson, Lynch,
and Cuevas as a result. (Compl. ¶¶ 181-84.)
B. Procedural Background
Plaintiff filed his complaint on May 27, 2014, naming as
defendants the City of Camden, the County of Camden, the County
of Camden Police Department, and six individual officers: John
Scott Thomson, Orlando Cuevas, Michael Lynch, Louis Vega, Joseph
Wysocki, and J.L. Williams, all in their individual and official
capacities as employees of the City of Camden and the County of
Camden.
Plaintiff’s complaint states that he was subject to
retaliation by the City Defendants for objecting to the City
Police Department’s unlawful disciplinary practice. Plaintiff
10
states that he was transferred to a less desirable post,
demoted, passed over for a promotion, disciplined, harassed,
fined, and forced to work split shifts as a result of his
actions. Plaintiff argues that Defendant’s retaliatory conduct
violated the New Jersey Law Against Discrimination (“LAD”), the
Conscientious Employee Protection Act (“CEPA”), and Plaintiff’s
free speech rights guaranteed by the U.S. and New Jersey
Constitutions. (Counts One, Two, Three, Four, Six, and Seven.)
Plaintiff alleges that Defendants created an official custom or
policy of violating the Attorney General Guidelines with respect
to investigating charges and imposing discipline.
Plaintiff also alleges that the adverse employment actions
he suffered were a result of unlawful race discrimination, in
violation of the LAD and rights under the U.S. Constitution.
(Counts Two, Four, and Five.)
Finally, Plaintiff alleges that the County and City
Defendants retaliated against him after he initiated a state
civil suit against these practices and spoke out against
unlawful promotion and hiring practices in the new Camden County
Police Department. Plaintiff alleges constitutional violations
under § 1983. (Counts Eight and Nine.)3
3
The Court exercises subject matter jurisdiction over
Plaintiff’s federal claims pursuant to 28 U.S.C. § 1331, and
exercises supplemental jurisdiction over Plaintiff’s state law
11
Defendants filed their first motion to dismiss on June 16,
2014, on behalf of the City of Camden and the individually named
defendants in their role as employees of the City of Camden
(“City Defendants.”) [Docket Item 5.] Plaintiff filed an
opposition to Defendant’s motion to dismiss on July 31 [Docket
Item 9]. On August 28, 2014, Defendants filed a second motion to
dismiss on behalf of the County of Camden, County of Camden
Police Department, and the individually named defendants in
their role as employees of Camden County (“County Defendants”).4
[Docket Item 11.] No opposition to the County Defendants’ motion
to dismiss was filed. Instead, on November 1, 2014, Plaintiff
filed a cross-motion to amend his complaint. [Docket Item 16.]
The proposed Amended Complaint primarily added some new facts
detailing events after the filing of his lawsuit in 2010, and
the claims arising out of those facts. [Docket Item 16].
The County and City Defendants filed a single brief
opposing Plaintiff’s motion to amend on the grounds of futility
[Docket Item 19].
III. STANDARD OF REVIEW
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) may be
granted only if, accepting all well-pleaded allegations in the
claims pursuant to 28 U.S.C. § 1367.
4 Vega, who is not employed with Camden County, was not a party
to the second motion to dismiss.
12
complaint as true and viewing them in the light most favorable
to the plaintiff, a court concludes that plaintiff failed to set
forth fair notice of what the claim is and the grounds upon
which it rests that make such a claim plausible on its face.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although
Rule 8 does not require “detailed factual allegations,” it
requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555). A court must accept as
true all factual allegations in a complaint; however, that tenet
is “inapplicable to legal conclusions,” and “[a] pleading that
offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Id. at 678.
If a responsive pleading has been served, “a party may
amend its pleading only with the opposing party's written
consent or the court's leave.” Fed. R. Civ. P. 15(a). “The court
should freely give leave when justice so requires.” Id. The
decision to grant leave to amend a complaint rests within the
sound discretion of the trial court. Massarsky v. General Motors
Corp., 706 F.2d 111, 125 (3d Cir. 1983). The district court may
deny leave to amend only if (a) the moving party's delay in
seeking amendment is undue, motivated by bad faith, or
prejudicial to the non-moving party; or (b) the amendment would
13
be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir.
1984). “Futility” means that the complaint, as amended, would
fail to state a claim upon which relief could be granted.
Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 243 (3d
Cir. 2010); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
In assessing “futility,” the court applies the same standard of
legal sufficiency as applies under Rule 12(b)(6). Shane, 213
F.3d at 115. Thus, if a claim is vulnerable to dismissal under
Rule 12(b)(6) and the Court finds that an amendment would not
cure the deficiency, the request to amend will be denied.
IV.
ANALYSIS
A. Plaintiff’s motion to amend
Plaintiff’s Amended Complaint introduces a few new facts
which primarily serve to add detail and clarify portions of the
original complaint. The most significant of these facts pertain
to Plaintiff’s claim that he was subject to retaliation after
filing suit against Defendants in civil court. In the original
complaint, Plaintiff did not specify how he was retaliated
against, but his Amended Complaint provides new detail.
Plaintiff now pleads that his state complaint was filed in April
2010, while he was still with the City Police Department. (Am.
Compl. ¶ 182.) Where Plaintiff previously stated that he spoke
truthfully about his lawsuit against the City, he now states
14
that he testified truthfully under oath as to Defendant’s
unlawful actions. (Compl. ¶ 184.) Plaintiff also adds that he
was passed over for a promotion in the County Police Department
as a result of his lawsuit and testimony. Specifically, he
states that Thomson, Lynch, and Cuevas “placed Caucasian less
senior officers in front of Plaintiff who was more qualified and
promoted the Caucasian officers over Plaintiff.” (Compl. ¶ 213.)
Plaintiff alleges that the individually named County Defendants
“promoted and/or placed and/or hired officers” into the County
Police Department in a manner that violated the Civil Service
Pilot Program and the Civil Service rules and regulations, and
that Defendants had a custom and policy of doing so.5 (Compl. ¶
214-217.) He further states that Defendants passed over him for
promotion and hiring in retaliation for his filing the civil
suit. (Compl. ¶ 186.) Plaintiff pleads that he spoke out against
these unlawful hiring and promotion practices but “suffered
adverse employment actions” for doing so. (Compl. ¶ 190.)
In addition to these new facts, Plaintiff’s Amended
Complaint amends some claims and adds new claims, some
duplicative, most of which relate to the new facts. Plaintiff
states that Thomson, Lynch, and Cuevas passed him up for a
5
Plaintiff does not specify what the Civil Service Pilot Program
is, nor does he state precisely which rules or regulations
Defendants violated.
15
promotion in retaliation for his lawsuit, his testimony against
Defendants, and his objections to the County Police Department’s
unlawful hiring and promotion practices. Plaintiff states that
such conduct violated his free speech rights under the U.S. and
New Jersey Constitutions. (Counts Eight, Nine, Thirteen,
Fifteen, and Sixteen.) Plaintiff also states general claims
under § 1983, alleging that he “suffered damages” as a result of
the County Defendants’ failure to stop the unlawful hiring and
promotion custom or practice. (Counts Ten and Fourteen.)
Finally, Plaintiff pleads that Defendants’ failure to promote
him constituted discrimination on the basis of race, in
violation of the Constitution and the LAD. (Counts Eleven and
Twelve.)
Defendants challenge Counts Five, Ten, Eleven, Twelve,
Thirteen, Fourteen, and Fifteen of Plaintiff’s Amended Complaint
on the grounds of futility, arguing that the new allegations are
still insufficient to state claims for retaliation, race
discrimination, and general violations under § 1983.
Defendants do not challenge Counts Eight, Nine, and
Sixteen, which are retaliation claims based on protected speech
against City Defendants Thomson, Lynch, Cuevas, and the City of
Camden. Accordingly, in light of the liberal policy of amendment
embodied in Rule 15(a), see Forman v. Davis, 371 U.S. 178, 182
16
(1962), and because the original complaint gave Defendants
notice of the general nature of these claims, the Court will
accept amendment of these claims as unopposed.6
a. Counts 13 & 15: Plaintiff’s Amended Complaint states
a plausible claim for retaliation by the remaining
County Defendants under the First Amendment and the
New Jersey Constitution.
Counts Thirteen and Fifteen of Plaintiff’s Amended
Complaint allege that the County Defendants, in violation of the
First Amendment and the New Jersey Constitution, failed to
promote Plaintiff because Plaintiff filed a lawsuit and spoke
out against Defendants’ unlawful hiring and promotion practices.7
6
Although Defendants have not moved to dismiss the Camden County
Police Department as a party, the Court notes that “[i]n Section
1983 actions, police departments cannot be sued in conjunction
with municipalities, because the police department is merely an
administrative arm of the local municipality, and is not a
separate judicial entity.” Padilla v. Twp. of Cherry Hill, 110
Fed. App’x 272, 278 (3d Cir. 2004) (quoting DeBellis v. Kulp,
166 F. Supp. 2d 255, 264 (E.D. Pa. 2001)). If all counsel agree,
they are invited to submit a consent order dismissing the Camden
County Police Department as a party.
7 Plaintiff’s “First Amendment” claim under the state
Constitution (Count Thirteen) appears to be a free speech
retaliation claim, since Plaintiff alleges that he “suffered
retaliation, which included, but is not limited to being skipped
and/or passed over for promotion” as a direct and proximate
result of engaging in protected speech. (Am. Compl. ¶ 232.)
There is no First Amendment to the New Jersey Constitution;
however, Article 1, Paragraph 6 protects the freedom of speech,
and the Court assumes Plaintiff asserts a claim under that
section. The analysis for free speech retaliation claims under
the New Jersey Constitution is identical to that for claims
arising under the First Amendment, and the Court will address
these claims together. See Borden v. School Dist. of Twp. of E.
Brunswick, 523 F.3d 153, 168 (3d Cir. 2008).
17
“A public employee has a constitutional right to speak on
matters of public concern without fear of retaliation.” Brennan
v. Norton, 350 F.3d 399, 412 (3d Cir. 2001) (quoting Baldassare
v. New Jersey, 250 F.3d 188, 194 (3d Cir.2001) (citations
omitted)). To state a First Amendment claim, a plaintiff must
sufficiently allege (1) that he engaged in protected First
Amendment activity, and (2) that the protected activity was a
“substantial factor” in the alleged retaliatory action. Hill v.
Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006); Phyllis
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). The
employer may rebut this claim by demonstrating that it would
have reached the same decision even in the absence of protected
conduct. Brennan, 350 F.3d at 414. Determining whether a public
employee’s speech is a matter of public concern is a question of
law for the court. Id. at 413.
A public employee's statement is protected activity when
(1) in making it, the employee spoke as a citizen rather than
pursuant to his official duties, (2) the statement involved a
matter of public concern, and (3) the government employer did
not have “an adequate justification for treating the employee
differently from any other member of the general public” as a
result of the statement he made. Garcetti v. Ceballos, 547 U.S.
410, 418 (2006); Kimmett v. Corbett, 554 Fed. App’x 106, 112 (3d
18
Cir. 2014). A public employee does not speak “as a citizen” when
he makes a statement “pursuant to [his] official duties.”
Garcetti, 547 U.S. at 1960. “Whether an employee's speech
addresses a matter of public concern must be determined by the
content, form, and context of a given statement.” Rankin v.
McPherson, 483 U.S. 378, 384 (1987) (quoting Connick v. Myers,
461 U.S. 138, 147-148 (1983)).
Plaintiff has alleged enough facts to show that he engaged
in protected speech. He states that he filed a legal complaint
in New Jersey Superior Court in or around April 2010, which
alleged “serious misconduct by Defendants.” (Am. Compl. ¶ 182.)
In addition, he states that since the lawsuit, he has “testified
truthfully under oath” regarding certain Defendants’ illegal
conduct. (Am. Compl. ¶ 184.) In combination with the facts pled
in an earlier section, it is apparent that Plaintiff’s lawsuit
and testimony sought to bring attention to Defendants’ alleged
violation of the Attorney General Guidelines and other
regulations with respect to administrative investigations and
discipline. Speech that “bring[s] to light actual or potential
wrongdoing or breach of public trust” is a matter of public
concern. Connick v. Myers, 461 U.S. 138, 148 (1983). Moreover, a
public employee’s “truthful testimony, even if voluntary, is
inherently a matter of public concern protected by the First
19
Amendment.” Green v. Philadelphia Hous. Auth., 105 F.3d 882, 886
(3d Cir. 1997). Plaintiff’s lawsuit and testimony relate to a
matter of public concern and thus constitute protected speech.
Kimmett, 554 Fed. App’x at 114 (holding that plaintiff’s lawsuit
“concerning allegations of actual or potential wrongdoing” in
the Office of the Attorney General related to matter of public
concern and was protected speech); Czurlanis v. Albanese, 721
F.2d 98, 104 (3d Cir. 1983) (holding that allegations of
“inefficient, wasteful, and possibly fraudulent” government
practices were matters of public concern); McCullough v. City of
Atlantic City, 137 F. Supp. 2d 557, 568 (D.N.J. 2001) (holding
that plaintiff’s testimonies regarding alleged OSHA violations
and lack of police resources is a matter of public concern
because “they implicate the judicial and public interest in the
integrity of the truth seeking process and the effective
administration of justice.”).
Plaintiff has also sufficiently pleaded that he was subject
to retaliation. Plaintiff states that he was the most senior
Lieutenant at the County Police Department and that more junior
officers who had fewer years in the service were inexplicably
promoted over him. (Compl. ¶ 213; 225.) He states that Thomson
and others knew about his lawsuit because he was forced to
disclose it when he was hired by the County in 2013. (Compl. ¶
20
242.) Plaintiff alleges that he believes he was “skipped for
promotion” because he filed a lawsuit and spoke out against the
unlawful practices. Plaintiff also alleges that Defendants were
motivated to take action against him. For example, Plaintiff
alleges that the decisions to hire and promote in the County
Police Department were made by Thomson, Lynch, and Cuevas, the
same people against whom Plaintiff had filed suit. (Compl. ¶
213.) Plaintiff also alleges that there were several previous
incidents at the City Police Department where Thomson, Cuevas,
or Lynch retaliated against Plaintiff for complaining about
Internal Affairs practices.8
Accordingly, Counts Thirteen and Fifteen state a plausible
claim for relief against the County Defendants.
b. Counts 11 & 12: Plaintiff’s Amended Complaint states
a plausible claim for relief against the County
Defendants for race discrimination.
Counts Eleven and Twelve allege that County Defendants
discriminated against Plaintiff on the basis of race when they
failed to promote him, in violation of 42 U.S.C. § 1983 and the
New Jersey Law Against Discrimination. Plaintiff’s race
8
Although Plaintiff’s lawsuit was brought in 2010, three years
before he was up for a promotion at the County Police
Department, the lack of “close temporal proximity” between the
protected activity and the adverse action “is not legally
conclusive proof against retaliation.” Robinson v. Se. Pa.
Transp. Auth., 982 F. 2d 892, 894 (3d Cir. 1993); Lee v. City of
Philadelphia, at *3 (E.D. Pa. Feb. 26, 2014).
21
discrimination claim appears to be based on the sole fact that
certain unidentified Caucasian officers lower in rank to him
were promoted while he was not. He does not allege additional
facts which would raise an inference of race discrimination.
As an initial matter, the Court notes that at the pleading
stage, the plaintiff need not be held to the precise
requirements of a prima face case of employment discrimination.
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Krieger
v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000) (complaints “‘need
not plead law or match facts to every element of a legal
theory’” (quoting Bennett v. Schmidt, 153 F.3d 516, 518 (7th
Cir. 1998))). Rather, a plaintiff need only present “enough
facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s]” of a cause of
action. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d
Cir. 2008).
Plaintiff alleges (1) that he is African American; (2) that
he was not given a promotion; and (3) that Caucasian individuals
who were less qualified than he was and who had spent fewer
years in service were promoted over him at the County Police
Department. These allegations, although not rich with detail as
the Court may prefer, are sufficient to state a claim of race
discrimination. See Fowler, 578 F.3d at 211 (holding that
22
plaintiff stated a claim for relief after under Twombly and
Iqbal when she alleged that she suffered a disability, her job
was terminated and she did not get a similar position to which
she applied, and she believed that her employer’s actions were
based on her disability); Sparrow v. United Air Lines, Inc., 216
F.3d 1111, 1114 (D.C. Cir. 2000) (reversing dismissal of race
discrimination claim even though plaintiff alleged only that a
similarly situated male Caucasian employee would not have
experienced disparate treatment).
Defendants argue that there is no evidence Plaintiff even
applied for a promotion. At this juncture, however, the Court
must treat the complaint’s factual allegations as true, and must
grant plaintiff the benefit of all inferences that can be
derived from the facts alleged. Plaintiff has stated that he was
“skipped” over for a promotion despite his seniority. It is
therefore reasonable to infer from the allegations that
Plaintiff was up for a promotion and did not receive it.
Although Plaintiff’s complaint does not supply much factual
basis for his failure to promote claim, it need only set forth
sufficient facts to support a plausible claim. See Twombly, 550
U.S. at 556 (“[A] well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts alleged
is improbable and that a recovery is very remote and unlikely.”
23
(internal quotations omitted)). The Court will allow Counts
Eleven and Twelve to proceed.9
c. Counts Ten and Fourteen of Plaintiff’s Amended
Complaint do not state a claim for relief under §
1983.
Counts Ten and Fourteen against County Defendants fail to
state a claim upon which relief may be granted. Both Counts
assert a claim under 42 U.S.C. § 1983 for the Defendants’ hiring
and promotion practice. Count Ten states that Plaintiff
“suffered damages” as a result of the individual Defendants’
custom and practice of violating the “laws, rules, and statutes
of the State of New Jersey in particular the Civil Service and
Civil Service Pilot Program.” (Compl. ¶¶ 201-09.) It also
alleges that the County of Camden knew of the improper behavior
and “acquiesced” in it. (Compl. ¶ 207.) Count Fourteen likewise
states that the County of Camden “acquiesced” in Defendant’s
“improper acts” and the unlawful custom and practice, and that
Plaintiff “suffered damages” as a result. (Compl. ¶¶ 236-39.)
Neither Count states a claim upon which relief may be granted.
9
The Court holds only that Counts 11 & 12 contain a plausible
basis for a claim of failure to promote on grounds of race under
42 U.S.C. § 1983 and the NJLAD, by indulging in the inference
that Plaintiff is alleging that he applied for such promotions
and was qualified for them. If in fact he did not apply, then
such claims of failure to promote cannot be proved and
Plaintiff’s counsel is invited to voluntarily dismiss these
claims.
24
With respect to Count Ten, Plaintiff alleges only that the
individual Defendants created a “practice and custom” that
violated New Jersey law, and that the County of Camden was aware
of and acquiesced in those practices. Plaintiff’s claim appears
to be premised on Defendants’ violation of state law and as
such, does not state a claim for relief under 42 U.S.C. § 1983.
The “plain language of section 1983 . . . solely supports causes
of action based upon violations . . . of federal statutory law
or constitutional rights. Section 1983 does not provide a cause
of action for violation of state statutes.” Benn v. Univ. Health
Sys. Inc., 371 F.3d 165, 174 (3d Cir. 2004) (Alito, J.) (quoting
Brown v. Grabowski, 922 F.2d 1097, 1113 (3d Cir. 1990). For the
same reason, Count Fourteen’s allegation that the County
acquiesced in a “custom and practice” which violated state law
does not state a claim for relief under § 1983.
To the extent Count Fourteen may be interpreted as a
supervisory liability claim against the County for acquiescing
in violations of Plaintiff’s First Amendment and due process
rights, it appears to be no different from Plaintiff’s claim
against the County in Counts Eleven and Fifteen. Count Eleven,
Plaintiff’s § 1983 race discrimination claim, specifically
alleges that the County “acquiesced and/or ratified the behavior
of Thomson and the other individually named Defendants.” (Am.
25
Compl. ¶ 215.) Count Fifteen, Plaintiff’s § 1983 First Amendment
claim, alleges that the County “knew of, acquiesced in and/or
ratified the behavior of the individually named Defendants.”
(Am. Compl. ¶ 252.)
The Court will therefore dismiss Counts Ten and Fourteen
for failure to state a claim upon which relief may be granted.
Count Fourteen will alternatively be dismissed for being
duplicative of Counts Eleven and Fifteen.
d. Count Five does not state a claim for relief under §
1983.
Count Five asserts a claim of “Discrimination – LAD”
against all Defendants for participating in “discrimination
and/or retaliation against Plaintiff.” (Am. Compl. ¶ 150.)
Plaintiff asserts broadly that “Thomson, Cuevas, Lynch and/or
Vega utilized Defendants Williams and/or Wysocki to intimidate,
threaten and retaliated against Plaintiff.” (Am. Compl. ¶ 148.)
He also states that Thomson “was made aware of the harassment,
discrimination and retaliation against Plaintiff Carmichael” and
“participated in, and/or affirmed and/or ratified the acts of
the other individually named Defendants. (Am. Compl. ¶ 153.)
The Court agrees with Defendants that Count Five fails to
put County Defendants on notice of the claims against them.
First, the Count does not distinguish between the individual
Defendants’ conduct as City employees and their later conduct as
26
employees of the County. Instead, it “lumps all of the
defendants together and accuses every defendant” of committing
the same harm. Pietrangelo v. NUI Corp., 2005 WL 1703200, at *10
(D.N.J. July 20, 2005). Without distinguishing between
allegations against Defendants as City employees and those
against Defendants as County employees, it is impossible to
identify which claims are against which defendant and when the
claims arose. In addition, the Count does not state the
purported basis of discrimination against Plaintiff, which is an
essential element of a claim of retaliation and a
discrimination. The allegations in this Count therefore fail to
state a claim for relief. Dismissal is further warranted because
the Count states that Defendants “discriminated,” “retaliated,”
and “harassed” Plaintiff, but does not elaborate on the specific
acts of discrimination or retaliation that occurred. Such
allegations are merely conclusory and do not set out the
“sufficient factual matter” for a facially plausible claim. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating that a
court is not bound to accept as true a legal conclusion couched
as a factual allegation (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).10
10
To the extent Count Five asserts a claim of retaliation for
protected speech or race discrimination, it appears to be
duplicative of Counts Two (retaliation under the NJLAD), Three
27
The Court will therefore dismiss Count Five.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Plaintiff’s
motion to amend with respect to Counts Eight, Nine, Eleven,
Twelve, Thirteen, Fifteen, and Sixteen. Counts Five, Ten, and
Fourteen will be dismissed. Defendants’ motions to dismiss will
be denied without prejudice as moot. The accompanying Order will
be entered.
March 6, 2015
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
(retaliation under the NJLAD), and Twelve (discrimination under
the NJLAD).
28
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