FOSTER v. TOWNSHIP OF PENNSAUKEN et al

Filing 27

OPINION. Signed by Judge Jerome B. Simandle on 6/27/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DOUGLAS FOSTER,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-5117 (JBS/KMW)

v.
TOWNSHIP OF PENNSAUKEN, et
al.,

OPINION

Defendants.

APPEARANCES:
Mark Robert Natale, Esq.
Leo B. Dubler, III, Esq.
LAW OFFICES OF LEO B. DUBLER, III, LLC
20000 Horizon Way
Suite 300
Mount Laurel, NJ 08054
Attorneys for Plaintiff
Corey S.D. Norcross, Esq.
Francis X. Manning, Esq.
STRADLEY RONON STEVENS & YOUNG LLP
2005 Market Street
Suite 2600
Philadelphia, PA 19103
Attorneys for Defendants

SIMANDLE, Judge:
INTRODUCTION
Plaintiff Douglas Foster (hereinafter, “Plaintiff”) brings
this suit against Defendants John Coffey, Michael Probasco,
Scott Gehring, Thomas Connor, and the Township of Pennsauken
(hereinafter, “Defendants”) for their alleged retaliatory

actions following Plaintiff’s exercise of First Amendment rights
of free speech and association. Plaintiff, a former police
officer with the Pennsauken Police Department, alleges that his
termination in May 2015 was motivated by a campaign of
retaliation by the Defendants, his supervisors and employer, in
response to his advocacy for changes in the length of officer
shifts and his association with his police union.
This matter comes before the Court upon the Defendants’
motion to dismiss Plaintiff’s Complaint under Rule 12(b)(6),
Fed. R. Civ. P. For the following reasons, the motion to dismiss
will be granted without prejudice.
II.

FACTUAL AND PROCEDURAL HISTORY1
Plaintiff was hired by the Pennsauken Police Department in

2003. (Compl. at ¶ 11.) Plaintiff was an active member of the
Fraternal Order of Police (hereinafter, “FOP”), a labor union
representing police officers in Pennsauken. (Id. at ¶ 14.) On
March 22, 2013, Plaintiff, along with six other active members
of the FOP, filed a lawsuit before Judge Renee Bumb alleging
that Defendants Coffey, Probasco, the Township of Pennsauken,
along with the Township Administrator Ed Growchowski, had

1

For purposes of the pending motions, the Court accepts as true
the version of events set forth in Plaintiff’s Complaint,
documents explicitly relied upon in the Complaint, and matters
of public record. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014).
2

retaliated against them for their exercise of First Amendment
rights. Killion v. Coffey (“Killion I”), No. 13-1808, 2015 WL
7345749, at *1-2 (D.N.J. Nov. 19, 2015).2 The Killion I
plaintiffs alleged that these and other actions by the
defendants were motivated by a desire to retaliate against the
plaintiffs for their advocacy in favor of a proposal to
implement twelve-hour shifts for police officers. Id. at *2. The
plaintiffs claimed that this violated 42 U.S.C. § 1983 (Count I)
and the New Jersey Civil Rights Act (Count II). Id.
On November 19, 2015, Judge Bumb dismissed the complaint in
Killion I without prejudice, for failure to adequately plead
that the plaintiffs’ advocacy for twelve-hour shifts was
constitutionally protected or that the defendants’ conduct
toward plaintiffs was motivated by retaliation. Id. at *1. Judge
Bumb gave the plaintiffs twenty-one days to amend their
complaint. Id. at *11. Five of the seven plaintiffs refiled an
amended complaint, but Plaintiff Foster was not among them.3 (Pl.

2

The Killion I complaint included all the facts outlined supra
that predate the initial filing of that complaint in March of
2013. Id. at *1-2, *10.
3 The amended complaint of the plaintiffs who chose to refile
Killion I was dismissed with prejudice for failure to state a
claim. Killion v. Coffey, No. 13-1808, 2016 WL 5417193, at *13
(D.N.J. Sep. 27, 2016). Judge Bumb’s dismissal of the complaint
was recently affirmed by the Third Circuit in a non-precedential
opinion. Killion v Coffey, -- F. App’x --, 2017 WL 2628881 (3d
Cir. June 19, 2017). The parties have submitted supplemental
briefing regarding the impact of the Third Circuit’s Killion
affirmance, which will be addressed in Part IV, below.
3

Opp’n at 2.) Instead, after the deadline to amend the Killion I
complaint had lapsed, Plaintiff filed a separate action in this
Court – the present Complaint – on August 22, 2016. (Id.)
Plaintiff’s Complaint alleges that Defendants’ decision to
charge, suspend, and terminate Plaintiff following their 2014
investigation into his inaccurate activity log – an incident
which occurred after Killion I was filed in 2013 – was the
culmination of Defendants’ campaign to retaliate against him for
speaking out in favor of twelve-hour shifts and associating with
the FOP. (Compl. at ¶ 173.) Plaintiff claims that the
Defendants, through their alleged retaliation, deprived him of
his First Amendment rights of free speech and association, in
violation of 42 U.S.C. § 1983. (Id. at ¶¶ 174-75.)
Beginning around 2009, the Pennsauken Police Department had
begun to consider implementing twelve-hour shifts for police
officers. (Id. at ¶ 15.) While Defendants Coffey, Probasco,
Gehring, and Connor – supervisors at Pennsauken Police
Department – were opposed to twelve-hour shifts and “regularly
spoke out against” the prospective change, Plaintiff, along with
several other officers, “actively campaigned and advocated” in
favor of twelve-hour shifts. (Id. at ¶¶ 18-21.)
Plaintiff alleges he advocated, both as an active member of
the FOP and “through his own private speech,” that
implementation of twelve-hour shifts would improve officer and
4

public safety. (Id. at ¶¶ 23, 33.) The prior setup of officer
shifts often left only five officers on the overnight shift to
cover Pennsauken’s six districts, leaving an entire district
without an officer on patrol on “countless” nights. (Id. at ¶¶
34-36.) Plaintiff claimed that this shortage presented a safety
issue to both officers and the public, one which could be
remedied by switching to twelve-hour shifts. (Id. at ¶ 37.)
Additionally, Pennsauken’s means of addressing these coverage
issues was to hold an officer over from the prior shift and pay
that officer overtime. (Id. at ¶¶ 41-42.) At the time the switch
to twelve-hour shifts was being considered, Pennsauken was
paying a “substantial” amount of overtime, and the Plaintiff
argued that twelve-hour shifts would mean the department would
no longer need to hold anyone onto the overnight shift, which
would “drastically reduce” overtime and save the municipality
money. (Id. at ¶¶ 40, 43-44.)
Plaintiff “regularly” spoke out and advocated in favor of
twelve-hour shifts and criticized the supervisors at the Police
Department for their refusal to embrace the change. (Id. at ¶¶
27-29.) In addition, Plaintiff took on responsibilities as a
leader in the FOP, representing his shift at union meetings
focused on developing the new contract, which would include
twelve-hour shifts. (Id. at ¶¶ 31-32.)

5

In 2011, in spite of several contentious meetings during
which Defendant Coffey and other supervisors protested the
change, the Department implemented twelve-hour shifts. (Id. at
¶¶ 52-53.) Defendants Coffey and Probasco continued to vocally
oppose the switch to twelve-hour shifts after the change had
occurred. (Id. at ¶ 57.) Defendant Coffey – with whom Plaintiff
had a “positive” relationship prior to the debate over twelvehour shifts – began to completely ignore Plaintiff as their
relationship turned “hostile.” (Id. at ¶¶ 97-99.)
Plaintiff had never received discipline as an officer prior
to his campaign for twelve-hour shifts. (Id. at ¶ 60.) His clean
disciplinary record began to change in May of 2011, when
Plaintiff was given a roadwork assignment. (Id. at ¶¶ 62, 64.)
The roadwork was completed thirty minutes before his shift was
scheduled to end; Plaintiff, according to “common custom and
practice” for Pennsauken police offers on roadwork shifts, left
his shift once the roadwork was complete. (Id. at ¶¶ 65-67.)
Plaintiff received a written reprimand from Defendant Connor for
leaving the assignment early. (Id. at ¶ 69.) Defendant Probasco
called Plaintiff a “thief and a criminal” following the
incident. (Id. at ¶ 70.) Additionally, Defendant Probasco
compared Plaintiff to other “babies” in the department –

in

reference to the officers who advocated for twelve-hour shifts –

6

and stated that Plaintiff was going to be his “project.” (Id. at
¶¶ 74-75.)
That same month, Plaintiff responded to a report of a fight
at Pinsetters Bar in Pennsauken between two off-duty Pennsauken
police officers and two patrons (hereinafter, the “Pinsetters
Incident”). (Id. at ¶¶ 101-02.) Plaintiff responded to the scene
and followed standard operating procedure in investigating the
incident. (Id. at ¶ 103.) Following the incident, Defendant
Coffey filed twenty-five disciplinary charges against eight
officers who had advocated in favor of twelve-hour shifts,
including the Plaintiff, who was charged with “neglect of duty”
and received a 30-day suspension despite not being involved in
the incident in any way. (Id. at ¶¶ 105-06, 108-09.)
Defendant Probasco began to monitor the GPS on Plaintiff’s
police vehicle. (Id. at ¶ 76.) In June of 2011, Plaintiff
responded to an ambulance call at a residence. (Id. at ¶ 78.)
Afterwards, Defendant Probasco ordered Plaintiff to produce a
written report to justify his response time to the incident.
(Id. at ¶¶ 78, 80.) Plaintiff wrote the report explaining his
response time; Defendant Probasco did not charge Plaintiff with
any discipline, but did assign Plaintiff to desk duty, a “common
form of punishment” in the department. (Id. at ¶¶ 81-82.)
Then, on June 14 and 15 of 2011, Plaintiff attended a
training class in Pennsylvania with two other officers. (Id. at
7

¶¶ 84-85.) Plaintiff was required to use two holidays to attend
the training, but the other two officers – who were not among
those who had advocated for twelve hour shifts – were not
required to use holidays. (Id. at ¶¶ 86-87.)
On or around July 26, 2011, Plaintiff was accused of
leaving the sally port door open; though another officer stepped
forward and admitted that he was the one to leave the door open,
Defendant Probasco issued Plaintiff a written reprimand and
again assigned Plaintiff to desk duty. (Id. at ¶¶ 90-93.)
Plaintiff, along with six other officers, filed Killion I
in March of 2013. Killion I, 2015 WL 7345749, at *2. The
complaint alleged, inter alia, that Plaintiff’s receipt of
“major” discipline for the Pinsetters Incident, his compulsory
use of holidays to attend training sessions, and the “silent
treatment” he received from Defendant Coffey were part of a
campaign of retaliation for the plaintiffs’ advocacy in favor of
twelve-hour shifts. Id. at *1-2, *10.
On the night of June 4, 2014, while Killion I was pending,
Plaintiff was assigned the overnight (7:00 P.M. – 7:00 A.M.)
shift. (Compl. at ¶ 112.) When leaving headquarters after having
a dinner break and relieving the Information Officer, Plaintiff
took a mental note of the time on the large clock outside of
headquarters to document in his activity log. (Id. at ¶¶ 11317.) He continued his shift in his vehicle, and used the
8

vehicle’s car clock and the clock on the laptop in his vehicle
to continue documenting his time in the activity log. (Id. at ¶
120.) Both of those clocks show different times relative to the
large clock outside of headquarters, it is “common” for
Pennsauken police officers’ activity logs to have inaccuracies,
as there is no policy, procedure or custom that dictates how
Pennsauken’s officers prepare their activity logs or specifies
which clocks they must use. (Id. at ¶¶ 124-26.)
Later that month, Defendant Coffey reviewed the activity
logs and had some concerns with Plaintiff’s log, mainly that
Plaintiff had spent a longer time than usual in headquarters.
(Id. at ¶ 130.) At Defendant Coffey’s request, Plaintiff
prepared a memo explaining that he was in headquarters for a
long time because he was covering for the Information Officer.
(Id. at ¶¶ 132-33.) Defendant Coffey asked the Internal Affairs
Officer to investigate Plaintiff’s situation; the officer found
that while Plaintiff had documented that he was patrolling
Highland Park starting at 1:50 A.M., he had actually not left
headquarters until 2:17 A.M. (Id. at ¶¶ 135, 137-38.)
Plaintiff was questioned on July 2, 2014 by Defendant
Gehring, who did not ask Plaintiff what clocks he used to
complete the activity log or whether there was an explanation
for the discrepancy. (Id. at ¶¶ 141-42.) Defendant Gehring
prepared a report for Defendant Connor, recommending charges
9

against Plaintiff. (Id. at ¶ 145.) Defendant Connor decided to
pursue charges against Plaintiff, and Plaintiff was served with
a Preliminary Notice of Disciplinary Action including a number
of charges relating to Plaintiff’s inaccurate logbook
(hereinafter, “the logbook incident”) on August 22, 2014. (Id.
at ¶¶ 149-50.) As a result of these charges, Plaintiff was
suspended, and Defendant Pennsauken sought his termination. (Id.
at ¶ 158.) Two officers who were on duty the morning of June 5,
2014 were at headquarters for as long as Plaintiff and also had
discrepancies in their logbook; they received a written
reprimand and a one-day suspension. (Id. at ¶¶ 153-57.)
Plaintiff requested a meeting with Pennsauken’s Township
Administrator in hopes of resolving the charges; he complained
that the Defendants were part of a “furious campaign to destroy”
him. (Id. at ¶¶ 163, 165.) The Township Administrator responded
that there was nothing they could to do help him, and that he
would have to wait for the process to play out. (Id. at ¶ 166.)
One to two weeks after Plaintiff’s meeting with the Township
Administrator, Defendant Coffey recommended that Plaintiff
receive an additional disciplinary charge for being a “repeat
offender”; Plaintiff received notice of this additional charge
in November of 2014. (Id. at ¶ 167.)
On May 22, 2015, the Police Department’s appointing
authority upheld these charges, removing Plaintiff from his
10

position with the department. (Id. at ¶ 170.) The removal was
affirmed by the Civil Service Commission on December 18, 2015;
the Civil Service Commission’s decision is currently up for
reconsideration. (Id. at ¶¶ 171-72.)
In his Complaint, Plaintiff seeks relief for his charges
(Count III), suspension (Count II), and termination (Count I)
from the logbook incident, which he alleges was motivated by
retaliation for his exercise of the First Amendment rights of
speech and association, in violation of 42 U.S.C. § 1983. (Pl.
Opp’n at 3-4.) He also seeks relief for the disproportionate
charges filed against him as compared to other officers who did
not advocate for twelve-hour shifts (Count IV) and the
“unjustified” decision to seek termination rather than other
forms of discipline (Count V). (Id. at 4.)
III. STANDARD OF REVIEW
Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need
only contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Specific facts are not
required, and “the statement need only ‘give the defendant fair
notice of what the . . . claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations
omitted).

While a complaint is not required to contain detailed

factual allegations, the plaintiff must provide the “grounds” of
his “entitle[ment] to relief”, which requires more than mere
11

labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007).
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P.,
may be granted only if, accepting all well-pleaded allegations
in the complaint as true and viewing them in the light most
favorable to the plaintiff, a court concludes that the plaintiff
failed to set forth fair notice of what the claim is and the
grounds upon which it rests. Id.

A complaint will survive a

motion to dismiss if it contains sufficient factual matter to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

Although a court

must accept as true all factual allegations in a complaint, 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.
IV.

DISCUSSION

A. Res Judicata
First, Defendants argue that Plaintiff’s Complaint should
be dismissed on res judicata grounds, because Killion I was a
final judgment, and Plaintiff did not timely amend his complaint
in Killion I following Judge Bumb’s dismissal of the case
without prejudice. (Def. Br. at 7.) Res judicata – also known as
claim preclusion – prohibits a party from reopening and
relitigating issues that were or could have been decided in a
12

previous case involving the same parties and arising out of the
same cause of action. Sutton v. Sutton, 71 F. Supp. 2d 383, 389
(D.N.J. 1999). Under federal law, res judicata requires the
defendant to demonstrate (1) that there was a final judgment on
the merits in a prior suit involving (2) the same parties or
parties in privity, and (3) that the present case is based on
the same cause of action. Lubrizol Corp. v. Exxon Corp., 929
F.2d 960, 963 (3d Cir. 1991) (citation omitted). The Court will
begin its analysis by focusing on the third prong of the res
judicata analysis to determine whether Plaintiff’s Complaint and
Killion I are based on the same cause of action.
Defendants argue that Plaintiff’s Complaint is based on the
same cause of action as Killion I, because both complaints plead
the same allegations under the same theory of recovery, and –
apart from Plaintiff’s charges, suspension and termination
following his inaccurate logbook in June of 2014 – include the
same facts and events. (Def. Br. at 11-12.) Defendants claim
that Plaintiff’s inclusion of the logbook incident, which did
not occur until fifteen months after the filing of Killion I,
amounts only to “the addition of new facts to support the [same]
general legal theories” and therefore does not suffice to
distinguish the successive causes of action. (Def. Br. at 12.)
Plaintiff contends that Killion I and the present Complaint are
not based on the same cause of action because they are
13

predicated on “separate adverse actions” with different proofs
and material facts. (Pl. Opp’n at 7.)
The term “cause of action” is difficult to precisely
define; for purposes of res judicata, it is often thought to
turn on the “essential similarity of the underlying events”
giving rise to the complaint. United States v. Athlone Indus.,
Inc., 746 F.2d 977, 983 (3d Cir. 1984) (quoting Davis v. U.S.
Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982)). While res
judicata extends to claims that “could have been brought” as
well as those actually brought forth in the prior action, the
extent of claims that could have been brought includes only
those that could have been filed on the date of the initial
complaint, as events that postdate the initial filing of the
previous action arise from a separate cause of action. Morgan v.
Covington Twp., 648 F.3d 172, 178 (3d Cir. 2011).
1. Whether the Complaint Arises from Events That
Are Essentially Similar to Those in Killion I
Four factors determine whether the events underlying
successive cases are sufficiently similar to support a finding
that they are based on the same cause of action: (1) whether the
acts complained of and the demand for relief are the same, (2)
whether the theory of recovery is the same, (3) whether the
evidence necessary at trial is the same, and (4) whether the
material facts alleged are the same. Athlone, 746 F.2d at 984.

14

Noting that the theory of recovery – predicated on
Defendants’ alleged retaliation for Plaintiff’s exercise of
First Amendment rights, in violation of Section 1983 - is the
same in both cases, the analysis turns on whether the acts
complained of, the necessary evidence, and the material facts
are the same in both cases.
The acts complained of in the present case are largely
those related to the charges and termination stemming from the
2014 logbook incident, which was not at issue in the prior
action as it occurred after the plaintiffs filed their complaint
in Killion I. For the purposes of evaluating successive causes
of action, the relevant acts are those “wrong[s] for which
redress is sought.” Id. Here, Plaintiff describes in his
Complaint the events of June 5, 2014 (the date of his logbook
inaccuracies), the investigation by Internal Affairs, the list
of disciplinary charges he received for the inaccuracies, and
his suspension and termination following the investigation.
(Compl. at ¶¶ 119, 135-37, 151, 158, 170-71.) None of these
events were included in the Killion I complaint, as the acts for
which Plaintiff sought redress in Killion I included, inter
alia, Defendants suspending him for his role in the May 2011
brawl at Pinsetters Bar, and forcing him to use holidays to
attend a training session in June of 2011. Killion I, 2015 WL
7345749, at *2, *10. While those earlier events are pled within
15

Plaintiff’s present Complaint, Plaintiff has included them only
to demonstrate the “context and history” of the alleged
retaliation, “not to establish liability;” the specific acts for
which Plaintiff seeks redress are those pertaining to the
logbook incident. (Compl. at ¶¶ 84-87, 101-09; Pl. Opp’n at 34.)
Because the relevant acts underlying the two cases are
different, it follows that both the evidence and material facts
required to establish liability in this case (here, the
evidentiary support necessary to prove that the acts comprising
logbook incident constituted retaliation) are not the same as
those required to establish liability in Killion I, where the
necessary support for Plaintiff included sufficient facts and
evidence to establish that the discipline for the Pinsetters’
Incident and compulsory use of holidays for training sessions
amounted to retaliation. Killion I, 2015 WL 7345749, at *2, *10.
Accordingly, the events underlying the two claims are not
sufficiently similar to support a finding that the claims arise
from the same cause of action.
2. Whether the Complaint Could Have Been Brought in Killion
I
Defendants argue that the logbook incident - though not
part of the pleadings in Killion I - falls within the ambit of
claims that could have been brought under the same cause of

16

action for the purposes of res judicata, because the logbook
incident occurred before the judgment in Killion I was issued.
(Def. Reply Br. at 5.) The Court does not agree.
The Third Circuit’s decision in Morgan v. Covington Twp.,
648 F.3d 172 (3d Cir. 2011) compels this Court to deny the
motion for res judicata. There, a plaintiff police officer filed
a claim alleging that the defendants retaliated by initiating a
criminal investigation against him after he requested a hearing
following a disciplinary suspension. After filing the complaint,
the plaintiff was terminated as a result of the criminal
investigation; the plaintiff tried to amend his complaint to
include the facts of his termination, but the district court
denied the motion. Morgan, 648 F.3d at 175-76. Plaintiff then
filed a separate case alleging that the defendants retaliated
against him for his request of a hearing and for his filing of
the initial action by terminating him. The jury eventually found
for the defendants. Id. The district court then dismissed the
subsequent action on res judicata grounds, holding that it arose
out of the same cause of action and the same “operative facts”
as the initial action. Id. at 176-77.
On appeal, the Third Circuit reversed, holding that res
judicata does not bar claims that are predicated on actions that
postdate the filing of the initial complaint. Id. at 178. In

17

doing so, the Third Circuit adopted the reasoning of its sister
Courts of Appeals:
Five other Courts of Appeals have already adopted a
bright-line rule that res judicata does not apply to
events post-dating the filing of the initial
complaint. Smith v. Potter, 513 F.3d 781, 783 (7th
Cir. 2008) ("Res judicata does not bar a suit based on
claims that accrue after a previous suit was filed. .
. . It does not matter whether, as in the case of
harassment, the unlawful conduct is a practice,
repetitive by nature . . . that happens to continue
after the first suit is filed, or whether it is an
act, causing discrete, calculable harm, that happens
to be repeated."); Rawe v. Liberty Mut. Fire Ins. Co.,
462 F.3d 521, 529 (6th Cir. 2006) ("'Simply put,
[Rawe] could not have asserted a claim that [she] did
not have at the time'" the complaint was filed.)
(citation omitted); Mitchell v. City of Moore, 218
F.3d 1190, 1202-03 (10th Cir. 2000) ("[W]e agree with
those courts holding the doctrine of claim preclusion
does not necessarily bar plaintiffs from litigating
claims based on conduct that occurred after the
initial complaint was filed."); Computer Assocs.
Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369-70 (2d
Cir. 1997) ("For the purposes of res judicata, '[t]he
scope of the litigation is framed by the complaint at
the time it is filed.'") (citation omitted); Manning
v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.
1992) ("[W]e do not believe that the res judicata
preclusion of claims that 'could have been brought' in
earlier litigation includes claims which arise after
the original pleading is filed in the earlier
litigation."); see also Los Angeles Branch NAACP v.
Los Angeles Unified Sch. Dist., 750 F.2d 731, 739 (9th
Cir. 1984) (noting that res judicata would encompass
acts "occurring prior to the commencement" of the
prior litigation).
We see no reason to part with our sister Circuit
Courts.
Id. at 177-78.

18

Here, following the Third Circuit’s instructions in Morgan,
it would be inappropriate to bar Plaintiff’s claim regarding the
logbook incident – which postdates the commencement of Killion I
by over a year – on grounds of res judicata.
Additionally, Defendants rely on Elkadrawy v. Vanguard
Grp., Inc., 584 F.3d 169, 174 (3d Cir. 2009), for the notion
that res judicata dismissal should be granted in the present
case in spite of the new acts in the complaint related to the
logbook incident.

In Elkadrawy, the court dismissed the

complaint on claim preclusion grounds – despite the pleadings
containing some discriminatory acts not alleged in the preceding
complaint – because the allegations could have been brought as
part of the first complaint. Elkadrawy, 584 F.3d at 173-74.
However, the critical distinction between Elkadrawy and the
present case is that the newly-pled acts in Elkadrawy occurred
more than five months prior to the filing of the initial
complaint in the prior action, whereas here, the acts related to
the logbook incident did not occur until fifteen months after
the Killion I complaint was filed. Id. at 174.
Because the scope of claims that could have been brought
for res judicata purposes includes only those that could have
been brought at the time of the initial filing of the complaint
– and naturally, Plaintiff could not have brought claims about
an incident that had not yet occurred – the operative acts
19

alleged in the present Complaint are not subject to claim
preclusion. The Court thus denies Defendants’ motion to dismiss
Plaintiff’s Complaint on res judicata grounds.4
B. Collateral Estoppel
Next, Defendants move to dismiss Plaintiff’s Complaint on
grounds of collateral estoppel. Collateral estoppel, or issue
preclusion, prevents a party from successive litigation of a
factual or legal issue that was previously litigated and
resolved as an essential part of the prior court’s
determination, even if the issue reappears as part of a
different claim. Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
The doctrine of collateral estoppel is intended to avoid
repetitive litigation, permit parties to rely on prior
judgments, and allow an adversary a sense of repose following
the resolution of an issue by the courts. Hailey v. City of
Camden, 650 F. Supp. 2d 349, 354 (D.N.J. 2009) (quoting 18

4

Regarding the two remaining elements of res judicata, the Court
finds that Judge Bumb’s grant of 12(b)(6) dismissal without
prejudice in Killion I amounted to a final decision on the
merits with respect to Plaintiff once the deadline to amend
lapsed. See, e.g., Hoffman v. Nordic Naturals, Inc., 837 F.3d
272, 279 (3d Cir. 2016) (holding that a district court’s
12(b)(6) dismissal without prejudice constituted a decision on
the merits, which became a final judgment once the time to amend
had expired). Because the Court finds that Plaintiff’s Complaint
is not barred by res judicata because Plaintiff’s Complaint and
Killion I are not based on the same cause of action, it need not
reach the question of whether the additional parties to the
present Complaint are in privity with those who were parties to
Killion I.
20

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 4416 (2d ed. 2002)).
The prerequisites for the application of collateral
estoppel are satisfied when: (1) the issue sought to be
precluded is the same as that involved in the prior action; (2)
that issue was actually litigated; (3) the issue was determined
by a final and valid judgment; and (4) the determination was
essential to the prior judgment. Hailey, 650 F. Supp. 2d at 354
(quoting Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir.
2007)). The Court will focus on the first and fourth prongs of
the collateral estoppel analysis to determine whether the issues
in Plaintiff’s Complaint differ materially from those
adjudicated in Killion I, and whether the issues on which the
defendant seeks estoppel were essential to the judgment in
Killion I.
1. Whether the Issues are the Same as in Killion I
Defendants contend that the difference between the issues
in Plaintiff’s Complaint and those in Killion I are legally
insignificant and thus do not prevent application of collateral
estoppel. (Def. Br. at 14.) While Plaintiff concedes that the
theory of liability is the same in his Complaint and Killion I,
he contends that collateral estoppel is inapplicable because the
factual and legal issues in his Complaint differ from Killion I.
(Pl. Opp’n at 9-10.) Plaintiff argues that the “gravamen” of his
21

Complaint is the 2014 logbook incident, which was not (and could
not have been) pled in Killion I, and so he should not be
estopped from litigating the facts and issues related to that
incident. (Id. at 9.)
The party moving to collaterally estop an issue bears the
burden of establishing the similarity of the issue or issues in
the successive claims. See Chisholm v. Defense Logistics Agency,
656 F.2d 42, 50 (3d Cir. 1981). Issues are sufficiently similar
to permit collateral estoppel when "the same general legal rules
govern both cases and the facts of both cases are
indistinguishable as measured by those rules." Hailey, 650 F.
Supp. 2d at 354 (quoting Suppan v. Dadonna, 203 F.3d 228, 233
(3d Cir. 2000)).
Materially-distinguishable facts between successive cases
can themselves be sufficient to defeat collateral estoppel by
showing that the issues in those cases are not the same. In
Suppan v. Dadonna, 203 F.3d 228, 231 (3d Cir. 2000)
(hereinafter, “Suppan II”), police officers brought First
Amendment retaliation claims, alleging that supervisors
deliberately lowered the plaintiffs’ scores on tests used to
rank officers for upcoming promotions, in retaliation for the
plaintiffs’ exercise of their First Amendment rights. A prior
case, Suppan v. City of Allentown, No. 97–2102, 1997 WL 476359
(E.D. Pa. Aug. 20, 1997) (hereinafter,
22

“Suppan I”) – which included the same defendants as Suppan II,
and centered on whether a change in the seniority policy
constituted retaliation against an adversely-affected plaintiff
– had already been adjudicated in favor of the defendants. The
court in Suppan II nevertheless denied the defendants’ assertion
of collateral estoppel because the defendants failed to
establish that the issues in the two cases were the same. The
challenged conduct in Suppan I was “not the same retaliatory
conduct at issue” in Suppan II, and the latter case involved
potential harms including “mental anxiety, stress [and] loss of
reputation” that were not present in the former case; the court
thus held that because the threshold for an actionable claim
under Section 1983 was a question of fact, the factual
differences between the cases were not legally
indistinguishable. Suppan II, 203 F.3d at 233.
Here, as in Suppan II, the retaliatory conduct at issue in
Plaintiff’s Complaint is broader than in Killion I.
Additionally, the anxiety, embarrassment, and “tremendous amount
of stress” that Plaintiff claims he suffered as a result of the
loss of his job following the logbook incident is separate from
the harm inflicted by the alleged retaliatory actions – a short
term suspension and compulsory use of vacation days for training
– in Killion I. (Compl. at ¶¶ 180-81.) Thus, the Court cannot
say that the factual differences between the present Complaint
23

and that of Killion I are legally indistinguishable for the
purposes of collateral estoppel.
2. Whether the Issues were Necessarily Decided in Killion I
Even if the issues underlying the respective cases in this
instance were identical, their determination was not essential
to the judgment in Killion I. If issues are determined but the
judgment is not dependent upon the determinations, relitigation
of those issues in a subsequent action between the parties is
not precluded. RESTATEMENT (SECOND)

OF

JUDGMENTS § 27 cmt. h (AM. LAW.

INST. 1982). The primary focus of the analysis is whether a
particular issue was critical to the judgment or merely dicta.
O'Leary v. Liberty Mut. Ins. Co., 923 F.2d 1062, 1067 (3d Cir.
1991). Collateral estoppel extends only to issues essential to
the judgment because non-essential issues may not be as
carefully considered in the prior action, and losing parties
might be dissuaded from appealing a non-essential issue that was
incorrectly resolved if they are likely to lose on appeal due to
other issues on which the prior judgment rested. RESTATEMENT
(SECOND)

OF

JUDGMENTS § 27 cmt. i (AM. LAW. INST. 1982).

Here, the issues that Defendants argue should be
collaterally estopped – whether Plaintiff’s conduct was
constitutionally protected, whether his facts adequately plead
retaliation, and whether there is a causal link between
Plaintiff’s conduct and the retaliation - were not issues on
24

which the judgment in Killion I depended. (Def. Br. at 13-14.)
Killion I was dismissed for failure to state a claim, on grounds
that the plaintiffs failed to adequately identify the
constitutional conduct in which they engaged, and failed to
plead a causal link between their protected activity and the
alleged retaliation (because the court was unable to assess
temporal proximity between conduct and the alleged retaliation
without more specifics as to the plaintiffs’ conduct). Killion
I, 2015 WL 7345749, at *11. Essentially, the case was dismissed
without prejudice for a failure to meet standards of pleading
specificity. The court’s dismissal when Foster was a plaintiff
did not depend on a finding that the plaintiffs’ conduct as
alleged was not constitutionally-protected, nor a finding that
the defendants’ acts failed to amount to retaliation, nor a
finding that there was no causal link between the conduct and
retaliation.5 It would be inappropriate to preclude Plaintiff

5

Similarly, the Third Circuit’s decision read the remaining five
plaintiffs’ amended complaint as deficient in getting past the
“initial hurdle of showing the ‘private citizen’ aspect for
purposes of their § 1983 claims,” Killion v. Coffey, -- F. App’x
--, 2017 WL 2628881, at *2 (3d Cir. June 19, 2017). The
pleading was seen as deficient because it contained only
essentially a “cursory statement,” made with “scant elaboration
that their ‘speech was made in their capacities as citizens for
First Amendment purposes’” arguing “that they had an ‘obligation
[] as citizen[s] . . . to speak out on behalf of public and of
FOP 3.’(Appellant’s Br. 16-17 (second alteration in original).)”
Id. at *2. Thus, as discussed infra, it remains unclear whether
Foster may plead sufficient factual grounds for the “private
citizen” aspect of his claims of protected speech and
25

from the opportunity to litigate any of these issues in the
present case. As a result, the Court denies Defendants’ motion
to dismiss Plaintiff’s Complaint on collateral estoppel grounds.
C. First Amendment Retaliation Claim
Next, Defendants argue that Plaintiff has failed to
adequately plead a retaliation claim that would entitle him to
relief. To state a First Amendment retaliation claim under
Section 1983, Plaintiff must allege that (1) he engaged in a
protected activity, (2) the retaliatory action was sufficient to
deter a person of ordinary firmness from exercising his
constitutional rights, and (3) there was a causal link between
the plaintiff’s conduct and the defendant’s retaliation. Thomas
v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006); Lauren
W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Killion v.
Coffey, -- F. App’x --, 2017 WL 2628881, at *1 (3d Cir. June 19,
2017)(non-precedential).
1. Whether Plaintiff Alleges Constitutionally-Protected
Conduct with Sufficient Specificity
Defendants claim that Plaintiff has failed to allege the
specific facts required to show that his conduct in advocating
for twelve-hour shifts was protected private speech of a public
employee under the First Amendment. (Def. Br. at 18.) Plaintiff

associational activity, and his patrolmen-colleagues’ failure to
meet that pleading standard does not preclude him from having an
opportunity to do so if his facts are different.
26

asserts that the details of his advocacy are sufficiently pled
to establish that it constituted protected speech. (Pl. Opp’n at
11.) When speaking on conditions of their employment, public
employees – including police officers – are entitled to First
Amendment protections only when speaking about public affairs
under particular circumstances. Garcetti v. Ceballos, 547 U.S.
410, 417 (2006). A public employee's speech is protected by the
First Amendment when (1) in making it, the employee spoke as a
private citizen, (2) the statement involved a matter of public
concern, and (3) the government employer lacked adequate
justification for differential treatment of the employee
relative to any other member of the general public. Hill v.
Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (citing
Garcetti, 547 U.S. at 417); Killion v. Coffey, -- F. App’x --,
2017 WL 2628881 (3d Cir. June 19, 2017); Knight v. Drye, 375 F.
App'x 280, 282 (3d Cir. 2010).
a. The Complaint Does Not Plead Facts Showing the Plaintiff
Spoke as a Private Citizen
The Supreme Court has held that a public employer may
restrict speech that “owes its existence” to the public
employee’s professional responsibilities without infringing upon
that employee’s First Amendment rights. Garcetti, 547 U.S. at
421-22. Thus, public employees who make statements “pursuant to
their official duties” are not private citizens for the purposes

27

of a First Amendment retaliation claim. Id. at 421. To determine
whether an employee’s speech was made pursuant to his official
duties, courts evaluate whether the speech fell within the
individual's job responsibilities, whether it related to special
knowledge or experience acquired on the job, whether it was made
inside or outside the work place, and whether it concerned the
job's subject matter. Houston v. Twp. of Randolph, 934 F. Supp.
2d 711, 727-28 (D.N.J. 2013). But see Garcetti, 547 U.S. at 420
(2006) (noting that statements made inside the workplace rather
than publicly are not dispositive of whether the employee spoke
as a private citizen); see Lane v. Franks, 134 S. Ct. 2369, 2379
(2014) (clarifying that a public employee’s speech concerning
information acquired by virtue of special knowledge or
experience from his employment is only one non-dispositive
factor out of many).
Here, Plaintiff has alleged two general forms of advocacy
for twelve-hour shifts: (1) his speech as a union representative
for the FOP, and (2) his “own private speech.” (Compl. at ¶ 33.)
Plaintiff’s advocacy for the shifts in his position as a
representative for the union was not done as a private citizen,
because those statements were made pursuant to his duties as a
representative of the union in negotiating their new contract.
See Hill v. City of Phila., 331 F. App'x 138, 142 (3d Cir. 2009)
(affirming the district court’s grant of summary judgment to
28

defendants on grounds that the plaintiff did not show that he
was acting as a private citizen in speaking as a union
representative); see also Beresford v. Wall Twp. Bd. of Educ.,
No. 08-2236, 2010 WL 445684, at *6 (D.N.J. Feb. 3, 2010)
(dismissing plaintiff’s retaliation claim because his speech was
made in his capacity as the negotiator of his union). The
statements in Plaintiff’s Complaint outlining his alleged
advocacy outside the context of his union representation are too
bare-boned and conclusory to allow this court to draw the
reasonable inference that his conduct was protected. Plaintiff
claims that he advocated for twelve-hour shifts “both to his
coworkers and to other citizens,” and that he criticized his
supervisors “as a private citizen criticizing public leaders.”
(Compl. at ¶¶ 29, 49-50.) Had the specifics of this conduct been
included in his Complaint, Plaintiff’s speech could amount to
speech made as a private citizen. As currently pled, however,
Plaintiff’s statements as to his conduct are baldly conclusory,
failing to provide the “form, timing, content and context” of
his advocacy necessary to substantiate his claim. Killion v.
Coffey (“Killion II”), No. 13-1808, 2016 WL 5417193, at *10
(D.N.J. Sep. 27, 2016), aff’d, -- F. App’x --, 2017 WL 2628881
(3d Cir. June 19, 2017). Plaintiff has thus provided
insufficient facts to support his claim that his advocacy for
twelve-hour shifts was done as a private citizen. The Court
29

therefore grants Defendants’ motion to dismiss without
prejudice.

Plaintiff will have one final opportunity to plead

factual grounds for his conclusory allegation that he acted as a
“private citizen.”
b. The Complaint Provides Sufficient Facts to Support the Notion
That Twelve-Hour Shifts May be a Matter of Public Concern
Although the Court grants Defendants’ dismissal motion for
failure to state sufficient facts under the “private citizen”
prong, the Court will also address the remaining elements of
Plaintiff’s First Amendment retaliation claim. While public
employees do not relinquish all First Amendment rights by virtue
of their employment, the State does have a legitimate interest
in the efficient provision of government services performed
through those employees. Pickering v. Bd. of Educ., 391 U.S.
563, 568 (1968). Courts thus balance the interest of public
employees in exercising free speech with the interest of the
State in promoting public service by extending First Amendment
protections for public employees only to matters of “public
concern.” Id. An employee's speech addresses a matter of public
concern when it can be "fairly considered as relating to any
matter of political, social, or other concern to the community."
Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993)
(quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). Issues of
concern to the community include topics that extend beyond the

30

plaintiff and relate to “officer and public safety”, the quality
of a government office’s service to the public, or instances of
misconduct by public officials. Beyer v. Borough, 428 F. App'x
149, 154, 159 (3d Cir. 2011); Sanguigni v. Pittsburgh Bd. of
Pub. Educ., 968 F.2d 393, 398 (3d Cir. 1992).
Here, Defendants claim that “shift length” is not a public
concern because it relates only to working conditions and does
not touch on a matter of public interest. (Def. Br. at 23.) The
Court disagrees. Plaintiff argues that his actions touch on
issues of public concern relating to public safety and
government expenditures. (Compl. at ¶¶ 37-40.) Plaintiff notes
that, in advocating for twelve-hour shifts, he frequently cited
the fact that the current system often left only five officers
to patrol the six covered districts on the overnight shifts.
(Compl. at ¶¶ 34-36.) This presented a safety issue for both
officers and the public – one which Plaintiff argued would be
cured by twelve-hour shifts – that, accepted as true, suffices
to raise the issue of twelve-hour shifts to one of public
concern. (Compl. at ¶ 37.) See Beyer, 428 F. App’x. at 159
(finding that a police officer’s posts on the internet
criticizing a local council and advocating for AR-15 rifles to
be purchased for the police force amounted to an issue of public
concern because it implicated officer and citizen safety); see
also Shefcik v. Vill. of Calumet Park, 532 F. Supp. 2d 965, 97531

76 (N.D. Ill. 2007) (holding that an officer’s letter to his
Chief of Police – concerning issues related to manpower
shortages on various shifts and the safe amount of hours worked
by officers per day – amounted to speech on issues of public
concern because allocation of police officers and officer safety
are matters of concern to the public).
Plaintiff also claims that the current system of addressing
manpower shortages, which involved paying substantial amounts of
overtime to officers to cover overnight shifts, resulted in
expenditures of taxpayer money that could be “drastically
reduce[d]” by moving to twelve-hour shifts. (Compl. at ¶¶ 4144.) Again, if true, this amounts to an issue of public concern.
See Czurlanis v. Albanese, 721 F.2d 98, 104 (3d Cir. 1983)
(holding that wastes of taxpayer money concern the function of a
segment of the government and are thus of public importance).
Plaintiff argues that his report to the Township
Administrator regarding the Police Chief's alleged retaliation
was also on a topic of public concern. (Compl. at ¶ 203.)

Here,

the Court disagrees. Police misconduct, including official
malfeasance, abuse of office, and neglect of duties, can amount
to an issue of public concern.

Garcia v. Newtown Twp., 483 F.

App'x 697, 702 (3d Cir. 2012). However, Plaintiff notes that he
arranged the meeting solely to discuss the Chief’s “campaign of
retaliation” against him. (Compl. at ¶ 201.) Internal complaints
32

articulated “solely because of their personal effect on the
employee” do not fall under the scope of public concern. Garcia,
483 F. App'x at 702. Nevertheless, the Complaint as a whole
alleges sufficient facts pertaining to the public importance of
twelve-hour shifts to fulfill this element of the claim.6
c. The Complaint Has a Plausible Basis for Asserting That There
May Be No Adequate Justification for Defendants’ Differential
Treatment of the Plaintiff
Next, Defendants argue that Plaintiff’s Complaint should be
dismissed because the Complaint itself includes Defendants’
justifications for their discipline of Plaintiff. (Def. Br. at
26-29.) When public employees speak about matters of public
concern, employer restrictions on their speech must be
“necessary for [the] employers to operate efficiently and

6

The Court recognizes that Judge Bumb in Killion II held that
the plaintiffs failed to plead that they were speaking on a
matter of public concern, because the plaintiffs support of
twelve-hour shifts “related only to their working conditions”
and the plaintiffs did not “seek to communicate [the benefits of
twelve-hour shifts] to the public.” Killion II, 2016 WL 5417193,
at *12. However, the fact that a public employee does not
communicate an issue to the public is not dispositive of whether
that issue is a public concern. See Garcetti, 547 U.S. at 420
(“That Ceballos expressed his views inside his office, rather
than publicly, is not dispositive. Employees in some cases may
receive First Amendment protections for expressions made at
work.”). In light of the Third Circuit’s inclusion of officer
and public safety in Beyer – as well as governmental waste of
taxpayer money in Czurlanis – as matters of public concern, this
Court finds that Plaintiff has stated facts sufficient to
support his claim that twelve-hour shifts for police officers
are a matter of public concern.
33

effectively.” Garcetti, 547 U.S. at 419. The inquiry here
centers on whether there is a justification for the differential
treatment of the plaintiff relative to “any other member of the
general public.”

Hill v. Borough of Kutztown, 455 F.3d 225,

241-42 (3d Cir. 2006).
Here, Defendants argue that their decision to discipline
the plaintiff for the logbook incident was justified in light of
his falsified activity log from June 5, 2014. (Def. Br. at 29.)
If that were the extent of Plaintiff’s Complaint, Defendants
would be correct, as law enforcement agencies have “wide
latitude to regulate an employee’s [conduct].” Ober v. Evanko,
80 F. App'x 196, 201 (3d Cir. 2003). However, Plaintiff also
alleges that other officers who were present at headquarters on
June 5 had inconsistent logbooks and yet were subject to
significantly lesser punishments, including a written reprimand
and a one-day suspension. (Compl. at ¶¶ 154-57.) It is thus
plausible, from the face of Plaintiff’s Complaint, that the
Defendants’ differential treatment of his punishment relative to
others in his department was not adequately justified.
2. Whether Plaintiff Adequately Pled Facts That Could
Constitute Retaliatory Conduct
The second prong of a retaliation claim requires that the
alleged retaliatory conduct must have been sufficient to “deter
a person of ordinary firmness from exercising his First

34

Amendment rights." Thomas, 463 F.3d at 296. Even an act as small
as withholding a “birthday party for a public employee” can
constitute actionable retaliation for exercise of free speech
rights. Suppan v. Dadonna, 203 F.3d at 234 (quoting Rutan v.
Republican Party, 497 U.S. 62, 76 n. 8 (1990)). Here, the effect
of the alleged retaliation far exceeds the absence of a birthday
cake, as Plaintiff was terminated from his job. This action, as
pled, is therefore sufficient to fulfill the element of the
plaintiff’s claim regarding retaliatory conduct.
3. Whether Plaintiff Adequately Pled Facts That Could
Plausibly Establish Causation
Finally, Defendants argue that Plaintiff failed to include
sufficient facts in his Complaint to allow a trier of fact to
infer a causal link between his advocacy for twelve-hour shifts
and his termination. To meet the causational element of a First
Amendment retaliation claim, Plaintiff must allege facts
sufficient to infer that their protected conduct was a
“substantial or motivating factor” behind the defendants’
retaliation. Springer v. Henry, 435 F.3d 268, 275 (3d Cir.
2006). The two primary ways of establishing this causal link are
to show temporal proximity and/or evidence of a pattern of
antagonism. Norman v. Reading Sch. Dist., 441 F. App'x 860, 866
(3d Cir. 2011) (quoting Abramson v. William Paterson Coll., 260
F.3d 265, 288 (3d Cir. 2001)). Temporal proximity by itself must

35

be “unusually suggestive” of a retaliatory motive in order to
infer causality. Thomas v. Town of Hammonton, 351 F.3d 108, 114
(3d Cir. 2003). If temporal proximity is not unusually
suggestive, then “timing plus other evidence” can suggest a
pattern of antagonism sufficient to establish causation. Id.
Such evidence is “not limited to evidence of timing or
demonstrative proof” of animus or retaliatory motive, but
instead includes evidence “gleaned from the record as a whole”
that may support an inference of causation. Watson v. Rozum, 834
F.3d 417, 424 n.16 (3d Cir. 2016) (quoting Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)); see also
Schlegel v. Koteski, 307 F. App'x 657, 662 (3d Cir. 2009) (“[The
court] may review the broader record to determine if there is
sufficient evidence from which a reasonable jury could find that
a link exists between the plaintiff's protected conduct and the
defendant's adverse action.”).
Here, Plaintiff does not plead specific facts to indicate
an unusually suggestive proximity between Plaintiff’s conduct
and Defendants’ alleged retaliation. Plaintiff’s advocacy
culminated in the implementation of twelve-hour shifts in 2011,
and the events of the logbook incident did not occur until June
2014. (Compl. at ¶¶ 53, 127.); see, e.g., Dolan v. Penn Millers
Ins. Co., 625 F. App'x 91, 94 (3d Cir. 2015) (holding that a
proximity of three months between plaintiff’s conduct and
36

defendants’ retaliation was not unusually suggestive). However,
taking Plaintiff’s Complaint as a whole, he plausibly pleads a
pattern of antagonism beginning at the time of his 2011 advocacy
and continuing to his termination sufficient to fulfill the
causational element of this claim.
For instance, Plaintiff alleges that prior to his advocacy
for twelve-hour shifts, he had never been disciplined. (Compl.
at ¶ 60.) Plaintiff then claims that the retaliatory actions
began in May of 2011 with the roadwork incident, followed by his
being called one of the “babies” by his supervisor in an alleged
reference to his support for twelve-hour shifts, his assignment
to desk duty for his response to an ambulance call in June of
2011, his compulsory use of holidays to attend training sessions
that same month, his reprimand for leaving the sally port door
open in July, his 30-day suspension for the Pinsetters Bar
incident in August of 2012, and finally his charges, suspension
and termination following the logbook incident in 2014. (Compl.
at ¶¶ 62-68, 75, 78-82, 84-87, 90-93, 111, 149, 158, 170-71;
Coffey Decl. at ¶¶ 2-3.) By the terms of Plaintiff’s Complaint,
the discipline he received for each of these incidents, when
accepted as true, could suggest a pattern of antagonism: His
decision to leave the roadwork assignment upon completion was
“common custom and practice”; he responded to the ambulance call
“just as he always had for years without ever receiving any
37

discipline”; he was not responsible for leaving the sally port
door open; and he had no involvement in the Pinsetters Bar
incident yet was punished. (Compl. at ¶¶ 71, 79, 92, 94, 106.)
Thus, despite the absence of temporal proximity between
Plaintiff’s actions and the alleged retaliation for which he
seeks relief, the facts of the chronology of retaliation pled in
his Complaint are sufficient for a jury to plausibly infer that
the logbook incident was the culmination of Defendants’ pattern
of antagonism in retaliation for his advocacy for twelve-hour
shifts. See Robinson v. Se. Pa. Transp. Auth., 982 F.2d 892, 895
(3d Cir. 1993) (affirming the trial court’s ruling awarding
plaintiff damages for a Title VII claim despite an absence of
temporal proximity, because the defendants repeatedly
disciplined the plaintiff over “minor matters” and subjected him
to a “constant barrage” of disciplinary action soon after he had
complained about his supervisors).7 The Plaintiff therefore
pleads sufficient facts to meet the causation prong of his
retaliation claim. Overall, for reasons stated above, the
Complaint does not sufficiently plead a cause of action for

7

“In evaluating the merits of [plaintiff’s] Title VII . . .
claims, the Court may also consider First Amendment retaliation
cases under [Section] 1983, as retaliation claims under [both]
statutes are subject to essentially the same analysis.” Brown v.
Pennsylvania, No. 14-201, 2017 WL 762009, at *4 n.5 (M.D. Pa.
Jan. 30, 2017) (citing Zappan v. Pennsylvania Bd. of Prob. &
Parole, 152 F. App'x 211, 217 (3d Cir. 2005)).
38

retaliation due to Plaintiff’s exercise of free speech as a
private citizen, and it will be dismissed without prejudice with
permission to file an Amended Complaint attempting to correct
these noted deficiencies.
D. Freedom of Association
Defendants also move to dismiss Plaintiff’s claim of
retaliation for his exercise of the right to free association
with his police union. (See, e.g., Compl. at ¶¶ 24, 25, 30-33,
174, 185, 204, 229, 231, 258-259.) As with claims pertaining to
retaliatory violations of free speech rights, a public employee
who claims that his employer retaliated against him for exercise
of his right to associate must allege that (1) he was engaged in
constitutionally-protected conduct, (2) his employer undertook
an adverse employment action against him, and (3) there exists a
causal link between his protected conduct and the employer’s
action whereby the protected conduct was a “substantial” or
“motivating factor” in the government employer’s adverse
employment decision. Rode v. Dellarciprete, 845 F.2d 1195, 1204
(3d Cir. 1988) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ.
v. Doyle, 429 U.S. 274, 287 (1977)); Killion v. Coffey, -- F.
App’x --, 2017 WL 2628881, at *1 (3d Cir. June 19, 2017).
Because the elements of a freedom of association
retaliation claim are the same as the elements of a freedom of
speech retaliation claim, the Court refers to its analysis of
39

the first two elements of Plaintiff’s freedom of speech claim in
holding that (1) Plaintiff has failed to allege that he was
engaged in constitutionally-protected conduct, and (2) Plaintiff
adequately pled that his employer undertook an adverse
employment action by terminating him. See Killion II, 2016 WL
5417193, at *5 (“As the claims share the same elements, the
Court will address the freedom of speech and freedom of
association claims together.”).8 The Court will thus focus on the
third element of the claim to determine whether Plaintiff has

8

The Third Circuit extends the requirement that a public
employee’s association only amounts to constitutionallyprotected conduct if done as a private citizen. See Cindrich v.
Fisher, 512 F. Supp. 2d 396, 404 (W.D. Pa. 2006) (citing Hill v.
Borough of Kutztown, 455 F.3d at 241-242 (3d Cir. 2006)) (“The
Third Circuit has recently held that an essential element of a
First Amendment Claim, whether it is a freedom of speech claim
or a freedom of association claim, is that the plaintiff must be
acting as a private citizen.”). Here, as discussed in the
section pertaining to his freedom of speech claim, Plaintiff has
failed to meet the private-citizen requirement with the
requisite factual specificity.
The Third Circuit has not yet determined whether freedom of
association claims share with speech claims the requirement that
the association must relate to an issue of public concern.
Killion II, 2016 WL 5417193, at *6. See also Sanguigni, 968 F.2d
393 at 400 (noting that the Sixth and Seventh Circuits have
applied the public-concern requirement to freedom of association
claims, while the Eleventh Circuit has refused to apply the
requirement to association claims). However, as addressed in the
section regarding Plaintiff’s speech claim, he has already pled
facts sufficient to establish that twelve-hour shifts may
plausibly relate to a matter of public concern, and so the Court
need not reach the issue of whether to extend this requirement
to the Plaintiff’s associational claim.

40

adequately pled a plausible causal link between his protected
associational conduct and Defendants’ adverse employment action.
Defendants argue that there is no causal link between
Plaintiff’s association with the FOP and their decision to
charge, suspend and terminate him for his inaccurate logbook.
(Def. Br. at 36-37.) To establish such a causal link, Plaintiff
must plead facts sufficient to infer that his association with
the FOP was a "substantial or motivating factor" behind
Defendants’ punishment. Rode, 845 F.2d at 1204. While Plaintiff
pleads facts sufficient to infer that his speech in favor of
twelve-hour shifts was a substantial or motivating factor in the
Defendants’ alleged retaliation, he fails to draw the same
causal connection between his union association and the
retaliation.
It is unclear from the allegations of the present Complaint
what Foster did or said as a union member or officer that was
protected activity leading to the adverse employment action that
he claims.

The Complaint, though lengthy, has few factual

statements about his actual associational activity and instead
uses conclusory, generalized language that does not suffice for
this element under the Iqbal pleading test, supra. For example,
the Complaint alleges that Foster “associated with the FOP in
their efforts to switch to twelve hour shifts” (Compl. at ¶ 24),
and that he “was an active member of the FOP, and advocated for
41

the switch in that role as well.” (Id. at ¶ 25.)

Foster, at an

unstated point in time, “took on added responsibilities as a
leader in the union” (id. at ¶ 31) and was “chosen by his
coworkers to represent his shift at union meetings focused on
developing the new contract that would include twelve hour
shifts.” (Id. at ¶ 32.) His exercise of First Amendment rights
included “freely associating with the FOP, including taking
leadership positions there.” (Id. at ¶ 185.) During Defendants’
alleged “illegal campaign of retaliation and harassment,” Foster
arranged a meeting with Pennsauken’s Township’s Township
Administrator, Pennsauken’s Public Safety Officer, and the FOP
representative in order to discuss Defendant Coffey’s
retaliation (id. at ¶ 201), but it is unclear whether Foster was
acting in his union leader capacity, or whether is merely
claiming, as ¶ 204 states, that his associational activity arose
from the fact that “his union, the FOP, who was present.” The
Complaint does, however, claim he was disciplined more severely
than other officers who were “not active in the union and did
not hold leadership roles in the union.” (Id. at ¶ 231; see also
¶ 258.)
Several statements in Plaintiff’s Complaint draw specific
connections between his advocacy for twelve-hour shifts and his
adverse treatment, but his Complaint fails to plead facts that
could establish the temporal or motivational link between
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Plaintiff’s association with the union and Defendants’
retaliation. Plaintiff’s Complaint claims that Defendants’
retaliation began “immediately following” the implementation of
twelve-hour shifts, and that his relationship with Defendant
Probasco was “positive” up until the implementation, at which
point it turned “hostile.” (Id. at ¶¶ 58, 99.) However,
Plaintiff does not specify when he joined the FOP – mentioning
only that he was hired by the police department in 2003 – and so
the Court cannot ascertain whether the Plaintiff’s association
with the union has any temporal relation with the onset of
Defendants’ retaliation. (Id. at ¶¶ 11, 14.) If anything, it
appears he was associated with the FOP during at least part of
the eight years he was employed by the department prior to the
implementation of twelve-hour shifts: a timeframe in which the
Plaintiff himself pleads that “he had never been disciplined,”
that he had a “positive” relationship with Defendant Coffey, and
that retaliation had not yet begun. (Id. at ¶¶ 58, 60, 99.) As
noted above, it is unclear when his union leadership duties
began and what they entailed as related to the issues herein.
Additionally, there is no evidence in the Complaint that
Defendants’ purportedly antagonistic behavior was motivated by
his union association, rather than his support for twelve-hour
shifts. For example, the Complaint alleges that Defendant
Probasco called Plaintiff one of the “babies” because Plaintiff
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favored twelve-hour shifts, not because he was a member of the
union. (Id. at ¶ 75.) Similarly, Plaintiff claims that following
the Pinsetters Incident, Defendants filed disciplinary charges
targeted at officers who supported twelve-hour shifts, not at
officers who participated in the FOP. (Id. at ¶ 107.)
As currently pled, Plaintiff’s Complaint does not include
sufficient facts to allow for the reasonable inference that the
Defendants’ alleged retaliation was substantially motivated by
his association with the union. It is conceivable these factual
grounds can be supplied in an amended complaint clarifying his
union activities and advocacy and how the alleged retaliation
was triggered by his associational conduct. For these reasons,
the Court will dismiss Plaintiff’s freedom of association claim
without prejudice.
E. Qualified Immunity
Finally, Defendants contend that they are entitled to
qualified immunity even if Plaintiff had stated a valid
retaliation claim. Qualified immunity protects government
officials from standing suit, provided that their conduct “does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); Kelly v. Borough of
Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). To defeat qualified
immunity, a plaintiff must (1) have actually asserted a
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violation of a constitutional right, and (2) the
constitutionality of that right must have been “clearly
established” at the time of the defendants’ alleged
infringement. Larsen v. Senate of Com. Of Pa., 154 F.3d 82, 86
(3d Cir. 1988); Rossiter v. City of Philadelphia, No. 16-1187,
2016 WL 7478494, at *3 (3d Cir. Dec. 29, 2016) (quoting Saucier
v. Katz, 533 U.S. 194, 201 (2001)).
For the reasons discussed above, Plaintiff has failed to
fulfill the first prong of these requirements, because he has
not adequately alleged a violation of his constitutional rights.
Because the Court will grant Plaintiff leave to amend his
Complaint, the Court will refrain from addressing the issue of
whether Defendants are entitled to qualified immunity at this
time. See, e.g., King v. Harmotta, No. 15-297, 2016 WL 3661566,
at *5 (W.D. Pa. July 5, 2016).
V.

CONCLUSION
For the foregoing reasons, the Court will dismiss

Plaintiff’s claims without prejudice. Plaintiff will be granted
leave to amend his pleadings within 14 days of the entry of this
Opinion, in order to attempt to cure the deficiencies identified
herein.

An appropriate Order shall issue on this date.

June 27, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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