FOSTER v. TOWNSHIP OF PENNSAUKEN et al
Filing
45
OPINION. Signed by Judge Jerome B. Simandle on 8/7/2018. (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
Table of Contents
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . 2
FACTUAL AND PROCEDURAL HISTORY . . . . . . . . . . . . . . 3
A. Factual Background . . . . . . . . . . . . . . . . . . . 3
B.
Procedural Background . . . . . . . . . . . . . . . . .
14
1. Case to Date and Instant Motions . . . . . . . . . . . . 14
2. Collateral Estoppel-Related Effect of Decisions of
Administrative Law Judge and Appellate Division . . . .
17
III. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . .
IV. DISCUSSION . . . . . . . . . . . . . . . . . . . . . . .
20
21
A. First Amendment Retaliation (Freedom of Speech): Speech or
Conduct as a “Private Citizen” . . . . . . . . . . . . . . . 22
B.
First Amendment Retaliation (Freedom of Association) . . 47
1. Allegations of Associational Conduct . . . . . . . . . . 49
2. Allegations of Causal Link . . . . . . . . . . . . . . . 64
C.
Qualified Immunity . . . . . . . . . . . . . . . . . . . 70
D.
Monell Liability . . . . . . . . . . . . . . . . . . . . 89
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . 96
SIMANDLE, District 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 what he alleges were
his 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.
The Court previously granted Defendants’ motion to dismiss
without prejudice under Rule 12(b)(6), Fed. R. Civ. P. [Docket
Items 27 & 28.] Plaintiff subsequently filed an Amended
Complaint [Docket Item 29], and Defendants filed another Motion
2
to Dismiss pursuant to Rule 12(b)(6) [Docket Item 32], which is
presently before the Court.
The principal issues to be decided include: whether the
Amended Complaint contains adequate allegations that Plaintiff
engaged in the allegedly-protected speech and/or conduct as a
private citizen; whether the Amended Complaint contains adequate
allegations of protected associational conduct; whether the
Amended Complaint contains adequate allegations of a causal link
between any protected associational conduct and the alleged
retaliation; whether the Defendants may assert a qualified
immunity defense; and whether Plaintiff adequately pleads
municipal liability under Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690 (1978). For the following reasons, the motion to
dismiss will be denied without prejudice.
FACTUAL AND PROCEDURAL HISTORY1
A. Factual Background
The underlying facts of this suit were recited in the
Court’s previous Opinion on the earlier motion to dismiss
[Docket Item 27] and will not be repeated at length here. The
1
For purposes of the pending motions, the Court accepts as true
the version of events set forth in Plaintiff’s Amended
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).
3
Court incorporates the facts as set forth in that Opinion to the
extent that the Amended Complaint restates those facts. The
Court therefore recounts only the additional allegations
contained in the Amended Complaint, writing primarily (if not
exclusively) for the parties and assuming the reader’s
familiarity with the facts, focusing on only those additional
facts that are relevant to the Court’s determination.
Plaintiff, a police officer with the Pennsauken Police
Department and an active member of the labor union representing
Pennsauken police officers (the Fraternal Order of Police
(“FOP”)), alleges that he was retaliated against for his speech
and/or conduct advocating a move to a twelve-hour-shift for
Pennsauken police officers, and/or his union association in
relationship to the union’s advocacy of that position in
violation of his First Amendment rights and 42 U.S.C. § 1983.
(Am. Compl. ¶¶ 256, 257.)
Plaintiff was hired by the Pennsauken Police Department in
2003, and in or around late 2009 to early 2010, Pennsauken and
its police department “began considering switching police
officers to twelve hours shifts.” Id. ¶¶ 11, 15, 55. As
Plaintiff describes, this issue implicated not only internal
disputes between police officers and the Department regarding
hours, but also public safety (the switch to twelve-hour shifts
would enable enough police coverage so that one of Pennsauken’s
4
six [districts] would have a police officer assigned to it
overnight, whereas without twelve-hour shifts, only five out of
six [districts] had such coverage on any given night) and the
municipal budget (not having twelve-hour shifts led to
Pennsauken being required to pay substantial overtime wages to
police officers that Plaintiff believed would be alleviated with
the proposed change). Id. ¶¶ 16, 23, 27, 34-51.
“Throughout the first half of 2010, Foster learned more
about the issue and became adamant in his support of twelve hour
shifts.” Id. ¶ 56. Although many of Plaintiff’s supervisors were
against the switch to twelve-hour shifts and “regularly spoke
out against the switch,” Plaintiff “actively campaigned and
advocated in favor of switching[,]” “arguing that the change
would improve officer safety, public safety, and save the
municipality a substantial sum of money.” Id. ¶¶ 18-19, 21, 23.
Plaintiff also alleges that he “associated with the FOP in
their efforts to switch to twelve hour shifts” and that he “was
an active member of FOP leadership, and advocated for the switch
through his association with the FOP[,]” thereby “exercising his
First Amendment rights in two ways[:]” “First, Foster would
regularly speak out in favor of twelve hour shifts, clearly
articulating his belief that it was the best option for public
safety and for the citizens of Pennsauken” (including “regular
criticism” of his supervisor for not supporting the switch) “as
5
a private citizen criticizing public leaders for failing to
embrace a necessary public policy”; and secondly, “Foster
exercised his First Amendment rights . . . by freely associating
with his union--the FOP[,]” becoming “a leader in their union
and their efforts to push for twelve hour shifts[,]”
representing (at the election of his co-workers) “his shift at
union meetings focused on developing the new contract that would
include twelve hour shifts[,]” performing both of these alleged
First Amendment activities (“his own private speech” and “his
association with his union”) in advocating for the switch
“because it would serve the best interest of the public.” Id.
¶¶ 24-33.
Plaintiff alleges that his advocacy was aimed not only at
his coworkers but also “regularly” “to other citizens[,]” as his
“interest in twelve hour shifts went well beyond his employment
as a Pennsauken police officer, and was rooted in what he felt
was best for Pennsauken township[,]” because he had previously
lived there for eighteen years, and, at the time, his mother,
“siblings, relatives, and life-long friends still lived in
Pennsauken.” Id. ¶¶ 50-54. He describes, in the summer of 2010,
advocating for the switch to (and convincing) two Pennsauken
police officers, stating that he “focused on the benefits” to
them as “Pennsauken resident[s]--namely, the increased safety
and the savings in the public budget.” Id. ¶ 60-65. Plaintiff
6
alleges that it was during the summer of 2010 that “it was
discovered and well known by FOP leadership [sic] (including the
Defendants), that Foster was speaking out in favor of twelve
hour shifts to [those] Pennsauken residents” (and police
officers). Id. ¶ 67.
He advocated for the same to his family members during the
summer and fall of 2010, including his mother and sister
(specifically focusing on the increased public safety that would
result in the Fourth District of Pennsauken, where they lived),
“because he felt it was an important issue for Pennsauken
residents” and urged them to support the switch publicly
“because he felt the community should be educated on and
supportive of the measure.” Id. ¶¶ 68-75. He made some of these
comments in front of his then-brother-in-law, as well, who
relayed Plaintiff’s remarks to Sgt. Lenny Rebilas of the
Pennsauken Police Department, who told Defendant Coffey “that
Foster was speaking as a private citizen in favor of twelve hour
shifts to citizens of Pennsauken.” Id. ¶¶ 76-84. Plaintiff also
mentions speaking to two other residents (the Brownells) who
were active community members and convincing them to support the
switch. Id. ¶¶ 85-89.
Similarly, Plaintiff advocated for his position in favor of
the switch at a social Halloween party hosted by a fellow police
officer at his home on October 30, 2010, which was attended by
7
officers and their families, as well as “many Pennsauken
residents, not only police officers,” who were present for the
discussion and heard Plaintiff’s advocacy which, Plaintiff again
alleges, “was at a function with many non-police Pennsauken
residents and focused on why the policy benefited the public at
large.” Id. ¶¶ 90-100. Plaintiff alleges that the leadership of
the Police Department (including the Defendants) learned about
the party, the lively debate that ensued there, and that
Plaintiff was advocating in favor of twelve-hour shifts. Id.
¶¶ 99-100.
Also in the fall of 2010, Plaintiff alleges he convinced a
former twelve-hour shift opponent (a fellow officer) to support
the switch “as one private citizen to another, both of whom were
concerned about family members who lived in Pennsauken,” on the
grounds that the switch “would increase public safety” and
“would have a positive impact on the municipal budget.” Id.
¶¶ 101-110.
Plaintiff alleges that his “advocacy continued even after
the twelve hour shifts were implemented” and he “worked toward
the implementation of twelve hour shifts by associating with his
union -- the FOP.” Id. ¶¶ 111-12.
Plaintiff alleges that, although he was a FOP member when
he joined the Department, “he did not become actively involved
in the FOP’s activities or a member of its leadership until the
8
fall of 2010[,]” when he became a shift leader for the union,
whose role “was to attend meetings, and then convince members of
his shift to support union positions, such as the twelve hour
shifts.” Id. ¶¶ 113-15. As part of that role, Plaintiff names
three people whom he “lobbied” to support twelve hour shifts.
Id. ¶¶ 116-17.
Plaintiff also served as “an alternate on the union’s
negotiating team for the collective bargaining negotiations that
included the twelve hour shifts”; although he “never was needed
to attend the negotiations,” he “frequently met with the
negotiating team to discuss issues relating to the CBA--most
prominently, the twelve hour shifts,” and relayed news and
concerns between the negotiating team and other union members.
Id. ¶¶ 118-20.
Plaintiff alleges that, “[p]rior to the debate over the
twelve hour shifts, Defendant Coffey did not concern himself
with FOP dealings and did not hold any animosity towards the
FOP” (although neither he nor Defendant Probasco were FOP
members); the debate over twelve-hour shifts, however, led to
“many contentious meetings” between Coffey and “FOP leadership,”
involving Coffey and other Police Department supervisors
“arguing against the twelve hour shifts.” Id. ¶¶ 123-25.
Plaintiff alleges that “Coffey than attempted to improperly
influence the FOP, even though he was not a member[,]” “vot[ing]
9
in an FOP executive board election, even though he was not
permitted to do so” and “constantly sen[ding] the FOP president
memo after memo, harassing the president and trying to get him
against twelve hour shifts.” Id. ¶¶ 126-28. When these tactics
did not influence the FOP away from supporting twelve hour
shifts, “Coffey began to retaliate against the FOP and against
anyone who associated with the FOP[,]” focusing particularly on
“FOP leadership.” Id. ¶¶ 129-30.
Twelve hour shifts, despite the alleged opposition from
some in Department leadership, were implemented in 2011;
however, Plaintiff claims, “the animosity escalated” as
Defendants Coffey and Probasco (and other Department leadership)
“continued to be vocally opposed to the switch”; Plaintiff
“continued to advocate for twelve hour shifts even after they
went into effect[,]” including advocating for twelve hour shifts
at a different party in summer of 2011, where several police
officers were still “debat[ing] about twelve hour shifts-including whether the election would be reversed.”
Id. ¶¶ 131-
39.
Plaintiff alleges that Defendants began retaliating against
him “[i]mmediately following the implementation of twelve hours
shifts” by (primarily) “taking meritless disciplinary action
against” Plaintiff, when he had never been disciplined “[p]rior
to the campaign for twelve hour shifts.” Id. ¶¶ 140-42; 143-192
10
(describing several incidents of alleged retaliation prior to
chain of events leading to Plaintiff’s ultimate removal).
As part of a campaign of retaliation (detailed in the
Court’s earlier Opinion), Plaintiff alleges that Defendant
Probasco “compared Foster to all the other ‘babies’ in the
department that caused their own problems--a reference to the
other officers who advocated for twelve hour shifts” and “stated
that Foster was going to be his ‘project’ now.” Id. ¶¶ 156-57.
In one incident, on our around June 14-15, 2011, Plaintiff
went to a two-day training class with two other officers,
neither of whom had advocated for twelve hour shifts; those
officers “were reassigned days off and given training days for
the two days of the class” and “were given the benefit of not
having to use their own time off because of it[,]” whereas
Plaintiff “was not permitted to reassign days or use training
days, and had to use two holidays.” Id. ¶¶ 166-70.
After more incidents of what Plaintiff characterizes as
retaliation (id. ¶¶ 171-92 (including an incident where twentyfive disciplinary charges were given to “officers who had
advocated for twelve hour shifts, while other officers who did
not advocate for twelve hour shifts were not charged” regardless
of the fact that some who were charged, like Plaintiff, did
nothing wrong, id. ¶¶ 183-91)), Plaintiff was accused of
falsifying his logbook in a manner he contends was pretextual
11
and targeted at him because of his advocacy for twelve hour
shifts, due to alleged discrepancies in his logbook for June 45, 2014, and was ultimately removed from his position. Id.
¶¶ 193-255.
Plaintiff alleges that there “is no policy, procedure, or
custom as to how Pennsauken’s officers prepare their activity
logs, or that specifies which clock to use” and it is therefore
“common for activity logs to have inaccuracies as officers
switch clocks and do not have a uniform method for filling them
out.” Id. ¶¶ 207-08. Plaintiff alleges that he was targeted by
Coffey for review of his log book; his log sheets “were the only
ones that” Coffey “had questions about”; that when he adequately
answered Coffey’s first challenge to his log sheets, Coffey
asked the Internal Affairs Officer to investigate the situation
because Coffey “was hoping to find something he could charge
Foster with in continuing retaliation for his advocacy of twelve
hour shifts.” Id. ¶¶ 209-18.
The investigation continued through July 2, 2014, when the
IA officer questioned Plaintiff, who blamed his use of several
different (apparently inaccurate) clocks to fill out his log
book on the night in question; Plaintiff alleges that the IA
officer did not ask him about the different clocks or to explain
alleged discrepancies because the IA officer “was not interested
in a fair investigation”; “[a]s an ally to Defendant Coffey,
12
[the IA officer] Defendant Gehring was simply carrying out
Coffey’s mission to retaliate against Foster.” Id. ¶¶ 222-26.
The IA officer recommended charges to Defendant Connor, another
“ally to Defendant Coffey” who pursued disciplinary charges
against Plaintiff, which Plaintiff alleges, “both collectively
and individually, were brought in retaliation for Foster’s
exercise of his First Amendment Rights.” Id. ¶¶ 227-34.
Plaintiff alleges that “[o]ther police officers on duty the
morning of June 5, 2014 were at HQ as long as Foster, and had
discrepancies in their log books, but were not disciplined[,]”
naming two officers whose “logs were not consistent with the
video from that evening[,]” one of whom received a written
reprimand, and the other a one day suspension, whereas Plaintiff
“was suspended and Defendant Pennsauken sought termination”;
Plaintiff contends that this constituted “selective enforcement”
that “was motivated by a desire to retaliate against Foster[,]”
as the other two officers “did not exercise their First
Amendment rights by advocating for twelve hour shifts.” Id.
¶¶ 235-44.
Plaintiff alleges that, after the charges against him were
filed, he “tried to meet with Pennsauken’s Township
Administrator in the hopes of resolving them” because he
believed them “to be a meritless form of retaliation.” Id.
¶ 245. Plaintiff “requested a meeting” that was subsequently
13
held with Plaintiff, “the Public Safety Director, the Township
Administrator, and Officer Biazzo in his capacity as the union
representative[,]” where Plaintiff “complained of the Chief’s
‘furious campaign to destroy’ him.” Id. ¶¶ 246-47. However, he
“was told there was nothing they could do to help him, and that
he would have to wait for the process to play out.” Id. ¶ 248.
Plaintiff alleges that, one to two weeks later, Coffey
recommended Plaintiff “receive an additional disciplinary charge
for being a ‘repeat offender[,]’” allegedly “in retaliation for
Foster exercising his First Amendment rights in going to
complain to the Township Administrator.” Id. ¶¶ 249-50.
Plaintiff was ultimately removed from his position on May 22,
2015. Id. ¶¶ 252.
B. Procedural Background
1. Case to Date and Instant Motions
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 retaliated against them for their exercise of
First Amendment rights. Killion v. Coffey (“Killion I”), No. 13-
14
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
Instead, after the deadline to amend the Killion I complaint had
lapsed, Plaintiff filed a separate action in this Court on
August 22, 2016, alleging (inter alia) that the retaliation
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)(“Killion II”). Judge Bumb’s dismissal of
the complaint was recently affirmed by the Third Circuit in a
non-precedential opinion. Killion v. Coffey, 696 F. App’x 76 (3d
Cir. 2017).
15
against him culminated in the log-book incident described above
and his termination. [Docket Item 1 ¶¶ 158-71.] Plaintiff
claimed 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 ¶¶ 17475.)
This Court previously determined in Foster v. Twp. of
Pennsauken, No. 16-5117, 2017 WL 2780745, *5-9 (D.N.J. June 27,
2017) that Plaintiff’s Complaint was not barred by the doctrines
of res judicata or collateral estoppel [Docket Item 27 at 1226], but dismissed the Complaint without prejudice, finding that
Plaintiff did not adequately allege claims of retaliation for
exercising his First Amendment rights of speech and association,
id. at 26-44.
Plaintiff subsequently filed the Amended Complaint [Docket
Item 29], seeking 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. Id. at ¶¶ 255-301. 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.
16
at ¶¶ 302-354. Count VI is a parallel claim asserted against
John Doe defendants. Id. at ¶¶ 355-68.
Defendants filed this Motion to Dismiss [Docket Item 32],
and Plaintiff filed a Response in Opposition [Docket Item 36],
to which Defendants filed a Reply [Docket Item 39]. By leave of
the Court [Docket Item 41], Plaintiff filed a short sur-reply
[Docket Item 42].
2. Collateral Estoppel-Related Effect of Decisions of
Administrative Law Judge and Appellate Division
Subsequently, Defendants filed a letter requesting leave to
file supplemental briefing in further support of its Motion to
Dismiss. [Docket Item 43.] This request was made after the
Appellate Division of the Superior Court of New Jersey affirmed
the final agency decision by the Civil Service Commission
upholding an Administrative Law Judge’s decision to remove
Plaintiff from the Pennsauken Police Department; Defendant
argues that this is relevant to the instant motion as the
Appellate Division’s judgment was “final and non-appealable” and
their collateral estoppel defense, previously rejected by this
Court as premature, “is now ripe.” Id. at 1 (citing Bridge v.
Fogelson, 681 F. App’x 137 (3d Cir. 2017)).
Plaintiff opposed this request, as he asserted that it was
“based on a fundamental misstatement of the facts”: although
Defendants contend that “retaliation was a central theme to
17
Douglas Foster’s defense in the administrative hearing[,]” it
“undisputabl[y]” “was not[.]” [Docket Item 44 at 1.]
Accordingly, according to Foster, the Appellate Division “was
not presented with nor did it consider the issue of
retaliation”; and because “that issue was not reviewed by the
state court, preclusion would be inappropriate,” citing
Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir.
1993).
Per the filings included by the parties, the Appellate
Division affirmed the ALJ’s decision because it found that the
ALJ’s findings were supported by the record, and therefore were
“entitled to [its] deference” when the ALJ 1) concluded that
Plaintiff’s log book “undisputed[ly]” was incorrect; 2)
“deduced” that Plaintiff “covered” the half-hour when he “either
had to leave the time unaccounted for or list himself at
headquarters for some reason that he might not be able to
justify, or for no reason at all” “by asserting in an official
record that he was on patrol . . . , which of course he was
not”; and 3) “meticulously debunked” Plaintiff’s contention that
the inaccuracy “resulted from inaccurate clocks” and found
Plaintiff’s story “simply not credible[.]” [Docket Item 44-1 at
3, In the Matter of Douglas Foster, No. A-1826-16T3, 2018 WL
2011656, at *1-*2 (N.J. Super. App. Div. May 1, 2018).] The
court noted its “limited appellate role” and “extend[ed] a
18
strong presumption of reasonableness’ to an administrative
agency’s exercise of its statutorily delegated
responsibility[,]” concluding that “the ALJ’s findings were
well-supported by the record and that this decision was not
arbitrary, capricious or unreasonable.” Id. at *1 (quotations
omitted).
The Court will address Defendant’s request for leave to
file a supplemental brief more fully in a letter that shall be
filed to the docket separately from this Opinion. The Court
notes that, while the parties dispute the application of the
doctrine of collateral estoppel to the claims at issue here,
there is a further, more fundamental dispute about the contours
of the First Amendment claims pressed by Plaintiff. The present
opinion and order are aimed at settling that dispute, and
leaving for further briefing and future decision by this Court
the narrower question of how the specific factual circumstance
at issue here on this point of collateral estoppel (namely, that
the ALJ found and the Appellate Division affirmed that Plaintiff
was removed for cause) will affect the maintenance of
Plaintiff’s claims and the course of this case. Accordingly, the
Court denies without prejudice Defendant’s request to file
supplemental briefing regarding collateral estoppel, in
accordance with the Letter filed to the docket. In short, this
Opinion addresses all issues the parties have briefed, and
19
leaves to future briefing and analysis the collateral estoppel
effects of the Appellate Division’s affirmance of the ALJ’s
decision upholding Foster’s termination for cause.
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
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.”
20
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
The Court previously ruled that Plaintiff’s earlier
Complaint adequately alleged: that Plaintiff engaged in speech
on a matter that may be of public concern [Docket Item 27 at 3033]; that Defendants unjustifiably engaged in adverse conduct
towards him that could constitute retaliation, see Pickering v.
Bd. of Ed. of Township High Sch. Dist. 205, 391 U.S. 563, 568-74
(1968) [Docket Item 27 at 33-35]; and that the Complaint
adequately alleged a causal link between Plaintiff’s allegedly
protected speech and the alleged retaliation (id. at 35-39). See
Foster, 2017 WL 2780745, at *11-13.
In contrast, the Court found that Plaintiff’s Complaint did
not adequately plead: that Plaintiff engaged in the allegedlyprotected speech or conduct as a private citizen (id. at 27-30);
that Plaintiff engaged in protected associational conduct (id.
at 40-42); and that there was a causal link between Plaintiff’s
allegedly protected associational conduct and the alleged
retaliation (id. at 42-44). The Court noted Defendants’
21
qualified immunity argument but did not reach that issue in
light of the disposition it reached. (Id. at 44-45.) See Foster,
2017 WL 2780745, at *10, *14-16.
The Amended Complaint attempts to address these defects;
Defendants argue that Plaintiff’s Amended Complaint is likewise
unsuccessful and that a dismissal with prejudice is now
appropriate. In the alternative, Defendants argue that the
individual Defendants are entitled to qualified immunity, and/or
that the Amended Complaint does not state a claim for municipal
liability pursuant to Monell. The Court addresses these
arguments in turn.
A. First Amendment Retaliation (Freedom of Speech): Speech or
Conduct as a “Private Citizen”
Defendants argue that Plaintiff has again 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, 696
F. App’x at 77-78.
22
Defendants claim that Plaintiff has failed to cure the
defect of the previous complaint in alleging 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. [Docket Item 32 at 15-23.] Plaintiff
asserts that the details of his advocacy are sufficiently pled
to establish that it constituted protected speech. [Docket Item
36 at 11-23.]
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, 696 F. App’x at 78; Knight
v. Drye, 375 F. App'x 280, 282 (3d Cir. 2010).
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
23
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
of a First Amendment retaliation claim. Id. at 421. See also
Lane v. Franks, 134 S. Ct. 2369, 2378 (2014)(“Whereas speech [by
a public employee] as a citizen may trigger protection [under
the First Amendment, the [Garcetti] Court held that ‘when public
employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their
communications from employer discipline.’”)(quoting Garcetti,
547 U.S. 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); Lane, 134 S. Ct. at
2379 (2014) (clarifying that a public employee’s speech
concerning information acquired by virtue of special knowledge
24
or experience from his employment is only one non-dispositive
factor out of many).
In Lane, the Court held that an employee who provides
truthful sworn testimony, compelled by subpoena, outside the
scope of his ordinary job responsibilities, is protected by the
First Amendment. Id. at 2378. There, it was undisputed that
providing sworn testimony was outside the petitioner’s job
responsibilities, and the Court expressed no opinion about the
applicability of its decision to employees within whose job
responsibilities it was to provide sworn testimony. Id. at 2378
n.4. The Lane Court ruled that “the Eleventh Circuit read
Garcetti far too broadly” when it “reasoned that, because Lane
learned of the subject matter of his testimony in the course of
his employment with CITY, Garcetti requires that his testimony
be treated as the speech of an employee rather than that of a
citizen. It does not.” Lane, 134 S. Ct. at 2379 (internal
citation omitted). The Court distinguished Garcetti, where the
petitioner’s alleged protected speech was
made pursuant to the employee’s “official
responsibilities” because “[w]hen [the employee] went
to work and performed the tasks he was paid to perform,
[he] acted as a government employee. The fact that his
duties sometimes required him to speak or write does
not mean that his supervisors were prohibited from
evaluating his performance.” 547 U.S. at 422, 424.
But Garcetti said nothing about speech that simply
relates to public employment or concerns information
learned in the course of public employment or concerns
25
information learned in the course of public employment.
The Garcetti Court made explicit that its holding did
not turn on the fact that the memo at issue “concerned
the subject matter of [the prosecutor’s] employment,”
because “[t]he First Amendment protects some
expressions related to the speaker’s job.” Id. at 421.
In other words, the mere fact that a citizen’s speech
concerns information acquired by virtue of his public
employment does not transform that speech into
employee--rather than citizen--speech. The critical
question under Garcetti is whether the speech at issue
is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.
Lane, 134 S. Ct. at 2379. See also Lane, 134 S. Ct. at 2383
(Thomas, J., concurring)(“Because petitioner did not testify to
‘fulfil[l] a [work] responsibility,’ Garcetti, supra, at 421, he
spoke ‘as a citizen,’ not as an employee.”).
The Court in Lane found 1) that the petitioner was speaking
as a private citizen (and not “pursuant to [his] official
duties,” per Garcetti) on a matter of public importance, id. at
2379-80; and 2) that the respondent did not have “‘an adequate
justification for treating the employee differently from any
other member of the public’ based on the government’s needs as
an employer,” citing Garcetti, 547 U.S. at 418 and Pickering,
391 U.S. at 568-74.
The Court nevertheless agreed that the individual
defendant, Franks, was entitled to qualified immunity because,
“at the time he fired Lane,” “Eleventh Circuit precedent did not
preclude Franks from reasonably holding” the belief “that a
government employer could fire an employee on account of
26
testimony the employee gave, under oath and outside the scope of
his ordinary job responsibilities” and “no decision of this
Court was sufficiently clear to case doubt on the controlling
Eleventh Circuit precedent.” Lane, 134 S. Ct. at 2381. The Court
stated that, at “best, Lane can demonstrate only a discrepancy
in Eleventh Circuit precedent, which is insufficient to defeat
the defense of qualified immunity.” Id. at 2383.
Defendants, here, argue that Plaintiff has not sufficiently
alleged in the Amended Complaint facts that, if taken as true,
would suffice to allow for a finding that he engaged in speech
advocating for twelve-hour shifts as a citizen, rather than
pursuant to his job responsibilities. The Court disagrees.
A panel of the Third Circuit, in its non-precedential
opinion in Killion, described “its prior holdings, in line with
those of other circuits” that find “that First Amendment
activity might be considered part of a public employee’s
official duties--and thus not exercised in one’s capacity as a
private citizen--if it embodies ‘special knowledge’ acquired
through the job. See Foraker v. Chaffinch, 501 F.3d 231, 240 (3d
Cir. 2007)(citing similar holdings issued by the Fifth and Ninth
circuits), abrogated on other grounds by Borough of Duryea v.
Guarnieri, 564 U.S. 379 (2011).” Killion, 696 F. App’x at 78-79.
At the outset, the Court notes that Killion contemplates that
such activity “might” be considered as part of the employee’s
27
official duties (implying, of course, that it “might” not be) if
it “embodies” (i.e., suggesting a relationship closer than that
of mere association or connection) “special knowledge” “acquired
through the job.” It is by no means clear that Plaintiff’s
advocacy of twelve-hour shifts could fairly be said (much less
when every reasonable inference is to be taken in his favor at
this pleading stage) to “embody” special knowledge he gained as
a police officer (e.g., overnight coverage, vel non, of
Pennsauken’s six districts, or how often overtime was paid that
could otherwise be avoided if twelve-hour shifts were adopted).
The Court looks to this line of cases to square their holdings
and rationales with Lane and its progeny.
Foraker, a 2007 (i.e., pre-Lane) Third Circuit opinion,
addressed whether two state troopers were “functioning within
the scope of their employment duties either when they made their
statements [concerning hazardous conditions at the Firearms
Training Unit and governmental corruption, misconduct, and
mismanagement] to the State Auditor or complained up the chain
of command” under Garcetti. Foraker, 501 F.3d at 238, 239. That
question was “presented in detail at a jury trial,” id. at 240,
and the court determined that “[r]eporting problems at the
firing range was among the tasks that Price and Warren were paid
to perform. Their positions in the DSP required them to report
up the chain of command, and their positions as instructors who
28
regularly used and performed light maintenance on the equipment
at the range on a daily basis put any environmental concerns
there within the scope of their routine operations.” Id. at 24142.
The court stated: “We recognize that giving statements to
the State Auditor was not part of their everyday duties . . . .
However, Price explained that he spoke to the auditors because
‘[i]t was my duty to speak with the auditors. . . . ’ Although
this speech was compelled by their employer, this fact alone
does not locate the speech within the realm of Price and
Warren’s job duties. Rather, what is dispositive is that the
prior statements of Price and Warren within the chain of command
prompted the order to speak with the State Auditor. Because the
speech that motivated the order was within their job duties, the
responsibility to respond to the subsequent order was also
within the scope of their duties.” Id. at 243.4
4
In support of its holding, the court cited the decisions of the
Fifth Circuit (per curiam) in Williams v. Dallas Indep. Sch.
Dist., 480 F.3d 689 (5th Cir. 2007) and the Ninth Circuit in
Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), cert. denied,
549 U.S. 1323 (2007). In Williams, the Fifth Circuit
“foreclose[d] the retaliation claim of a high school athletic
director who was discharged after writing a memo to his
principal concerning the handling of school athletic funds”
because, applying Garcetti, it held “that it was within
Williams’ ‘daily operations’ to manage the athletic department,
and because he needed information on the athletic accounts in
order to be able to do that, his memorandum to his superior
concerning accounts was necessary for him to complete his job.
[Williams, 480 F.3d] at 694. The [c]ourt noted that this outcome
29
was dictated by the fact that ‘Williams had special knowledge
that $200 was raised at a basketball tournament,’ and that he
was ‘experienced with standard operating procedures for athletic
departments.” Id. (emphasis added [in Foraker]).” Foraker, 501
F.3d at 240. The Foraker court found that “Price and Warren were
acting within their job duties when they expressed their
concerns up the chain of command because they needed to have a
functioning bullet trap to conduct their educational programs
and it was their special knowledge and experience with the
bullet trap that demonstrated their responsibility for ensuring
its functionality by reporting problems to their superiors.” Id.
In Freitag, per Foraker, the Ninth Circuit held that the
reports submitted by a female corrections officers “documenting
sexual harassment by prisoners and inaction on the part of her
superiors” “were pursuant to her official duties[,]” “[468 F.3d]
at 546[,]” but excluded from that determination “a letter she
wrote to the Director of the California Department of
Corrections and Rehabilitation explaining the hostile work
environment she had encountered” and “remanded that issue to the
District Court. Id.” Foraker, 501 F.3d at 240. The Third Circuit
stated: “Apart from the minor factual distinctions between a
prison guard’s duty to write internal reports about prisoner
misconduct and her supervisors’ dilatory response and Price and
Warren’s responsibility to report required bullet trap
maintenance, Freitag helps to illustrate the connection between
Price and Warren’s speech and their job duties[,]” citing the
“fact-intensive nature of this inquiry” and noting that “the
question of whether a particular incident of speech is made
within a particular plaintiff’s job duties is a mixed question
of fact and law.” Id. “[T]he controlling fact in the case at bar
is that Price and Warren were expected, pursuant to their job
duties, to report problems concerning the operations at the
range up the chain of command. . . . [and] were likewise
expected to report truthfully to the State Auditor upon being
ordered to do so.” Id. at 241.
Because the Killion court looked to Foraker’s invocation of
“special knowledge” to show that a given act of speech was made
“pursuant to official job duties,” and because that doctrine
stemmed from Williams, this Court looks to Williams’s analysis
for further guidance. In Williams, the Fifth Circuit noted that
Williams’s statements in his memoranda focus on his
daily operations. He needed information regarding the
athletic account so that he could “operate the
athletic department based on standard operating
procedures and norms throughout the State of Texas.”
He accused the office manager of “hurt[ing his]
30
ability to provide . . . student/athletes with
critical items and/or materials necessary for
competition.” Moreover, Williams was responsible for
buying sports equipment and for arranging and paying
tournament fees. Because the office manager and
principal were in charge of allocating and monitoring
the athletic accounts . . . in order for Williams to
purchase equipment and enter competitions, he needed
to consult with his superior about his budget. We thus
find that Williams’s speech was made in the course of
performing his employment.
Simply because Williams wrote memoranda, which were
not demanded of him, does not mean he was not acting
within the course of performing his job. He needed
account information so that he could properly execute
his duties as Athletic Director, namely, taking the
students to tournaments and paying their entry fees.
The memoranda were not written from Williams’s
perspective as a “father” and “taxpayer.” Unlike
Pickering, whose “position as a teacher in the
district did not qualify him to speak with any greater
authority than any other taxpayer,” Pickering, 391
U.S. at 1736, Williams had special knowledge that $200
was raised at a basketball tournament. He was also
experienced with standard operating procedures for
athletic departments. Even his language accusing the
principal of engaging in “network of friends and house
rules” was part-and-parcel of his concerns about the
program he ran.
We thus hold that Williams’s memoranda to the office
manager and principal Wright were written in the
course of performing his job as Athletic Director;
thus, the speech contained therein is not protected by
the First Amendment.
Williams, 480 F.3d at 694. See also Charles v. Grief, 522 F.3d
508, 513-14 (5th Cir. 2008)(distinguishing Williams and
rejecting as dispositive defendant’s position that where
employee’s speech “concerned ‘special knowledge’ that he had
obtained through his employment at the Commission,” Garcetti
precluded that speech from First Amendment protection; noting
that “[t]o hold that any employee’s speech is not protected
merely because it concerns facts that he happened to learn while
at work would severely undercut First Amendment rights”; and
31
In contrast to Foraker (and the Third Circuit’s citation to
its test in Killion, 696 F. App’x at 78, including the “special
knowledge” element), precedential and non-precedential Third
Circuit opinions have directly applied Lane (and Garcetti) to
the “practical” “inquiry,” Garcetti, 547 U.S. at 424, of whether
public employees were speaking as citizens or “pursuant to”
(again, per Garcetti) their job responsibilities (i.e., as
employees).
In Dougherty v. Sch. Dist. of Philadelphia, a precedential
Third Circuit opinion, the court found that the plaintiff “did
not speak ‘pursuant to his official duties’” when he made
certain disclosures to a newspaper regarding a matter that he
learned of through the course of his employment. 772 F.3d 979,
988 (3d Cir. 2014). “Unlike the employees in Garcetti, Foraker,
and Gorum[ v. Sessoms, 561 F.3d 179 (3d Cir. 2009)], nothing
about Dougherty’s position compelled or called for him to
provide or report this information, whether to the School
finding that the speech (unlike in Garcetti and Williams “was
not made in the course of performing or fulfilling his job
responsibilities, was not even indirectly related to his job,
and was not made to higher-ups in his organization . . . but was
communicated directly to elected representatives of the people”;
and describing necessary “nexus” between “job duties” and the
speech); Dougherty, infra, 772 F.3d at 988 (describing Gorum as
finding unprotected under the First Amendment “an employee’s
technically-off-duty speech related to ‘special knowledge’ or
‘experience’ acquired through his de facto job duties” as Gorum
was “a de facto advisor to students with disciplinary issues”).
32
District, the press, or any other source.” Id.
(internal
citations and quotations omitted). Applying Lane, the court
stated: “Lane reinforces Garcetti’s holding that a public
employee may speak as a citizen even if his speech involves the
subject matter of his employment[,]” and stated that
“Appellants’ argument” that Lane’s holding was “limited to [the]
context” of “compelled testimony” was “misguided.” Dougherty,
772 F.3d at 990. The Third Circuit continued: “If anything, Lane
may broaden Garcetti’s holding by including ‘ordinary’ as a
modifier to the scope of an employee’s job duties. See Mpoy[ v.
Rhee,] 758 F.3d [285,] 294-95 [(D.C. Cir. 2014)](‘[T]he use of
the adjective “ordinary”--which the [C]ourt repeated nine times-could signal a narrowing of the realm of employee speech left
unprotected by Garcetti.’)[,]” but concluded that “that question
is not before us today.” Id. Finally, the court concluded, on
the Appellants’ qualified immunity argument, that,
[v]iewing the facts the District Court identified in
the light most favorable to Dougherty, we find that
the illegality of the Appellants’ actions was
sufficiently clear in the situation they confronted.
Since at least 1967, “it has been settled that a State
cannot condition public employment on a basis that
infringes the employee’s constitutionally protected
interest in freedom of expression.” Connick[ v.
Myers,] 461 U.S. [138,] 142 [(1983)]; see also Rankin[
v. McPherson,] 483 U.S. [378,] 383 [(1987)](finding
the same principle “clearly established”). In the case
at bar, Dougherty’s particular type of speech--made as
a concerned citizen, purporting to expose the
malfeasance of a government official with whom he has
no close working relationship--is exactly the type of
33
speech deserving protection under the Pickering and
Garcetti rules of decision and our subsequent case
law. . . . Thus, Appellants had fair notice that their
retaliation against Dougherty’s constitutionally
protected speech would not be shielded by qualified
immunity. . . .
Given the citizen-like nature of Dougherty’s
disclosure to The Philadelphia Inquirer, the lack of
close working relationships with either Dr. Ackerman
or Dr. Nunery, and the disputed issue of fact with
regard to the cause of the disruption, it is
sufficiently clear that Dougherty’s speech was
protected under the First Amendment. “When the balance
of cognizable interests weighs so heavily in an
employee’s favor, our cases make plain that the law is
clearly established.” McGreevy[ v. Stroup,] 413 F.3d
[359,] 367 [(3d Cir. 2005)]. We conclude, therefore,
that Appellants are not entitled to qualified
immunity.
Dougherty, 772 F.3d at 993-94
The Third Circuit next applied Lane (and Dougherty) in
Flora v. Cty. of Luzerne, 776 F.3d 169 (3d Cir. 2015), and ruled
that 1) “[w]hether a particular incident of speech is made
within a particular plaintiff’s job duties is a mixed question
of fact and law” (citing Dougherty, 772 F.3d at 988) and “there
was a factual dispute as to whether Flora’s job duties
encompassed making the statements at issue,”; and 2) “‘[t]he
critical question under Garcetti is whether the speech at issue
is itself ordinarily within the scope of an employee’s duties,
not whether it merely concerns those duties.’ [Lane,] 134 S. Ct.
at 2379 (emphasis added).” Flora, 776 F.3d at 175, 178.
34
The defendants in Flora cited the “special knowledge”
element discussed in Foraker and Gorum, but the court stated
that those cases
considered how the employee learned of the information
as only one non-dispositive factor among many. Indeed,
[we have] never applied the “owes its existence to”
test . . . and for good reason: this nearly allinclusive standard would eviscerate citizen speech by
public employees simply because they learned the
information in the course of their employment, which
is at odds with the delicate balancing and policy
rationales underlying Garcetti.
To this end, it bears emphasis that whether an
employee’s speech “concern[s] the subject matter of
[his] employment” is “nondispositive” under Garcetti.
547 U.S. at 421. This is because the First Amendment
necessarily “protects some expressions related to the
speaker’s job.” Id. In fact, as the Supreme Court
recently reiterated, speech by public employees “holds
special value precisely because those employees gain
knowledge of matters of public concern through their
employment.” Lane, 134 S. Ct. at 2379 (emphasis
added). . . .
Flora, 776 F.3d at 177-78 (quoting Dougherty, 772 F.3d at 98889).
Flora reiterated Lane in its holding that “the term
‘official responsibilities’ means the responsibilities undertook
when he ‘went to work and performed the tasks he was paid to
perform,’ which did not, in that case, encompass testifying in
legal proceedings. . . . The Court therefore concluded that
giving grand jury testimony was not part of that employee’s
‘ordinary job responsibilities’ even though the testimony
‘relate[d] to [the employee’s] public employment or concern[ed]
35
information learned during that employment.’ Id. at 2378
(emphasis added).” 776 F.3d at 178. The court ruled that the
district court, in framing the test under Garcetti as whether
the statements “related to” the plaintiff’s employment, erred:
not only was this error apparent with the Flora Court having
“the benefit of Lane and Dougherty when it ruled, Garcetti alone
should have steered [the district court] away from applying the
‘related to’ standard. With the further light that Lane and
Dougherty provide, the proper framing of the question is whether
[the plaintiff’s speech and/or actions] were within Flora’s
ordinary job duties as the Chief Public defender, not whether
they concerned or were related to those duties. Lane, 134 S. Ct.
at 2379.” Flora, 776 F.3d at 179.
Finally, the court, in applying Lane to the facts in Flora
noted that the plaintiff “allege[d] that his obligations as an
attorney, rather than as the Chief Public Defender, compelled
him to make the statements at issue.” Id. at 180. This was one
factor that led the Third Circuit to state that a
“straightforward application of Lane leads us to conclude that,
given those allegations, Flora’s speech [which involved filing a
lawsuit and making public statements] . . . was not part of his
ordinary responsibilities--it was not part of the work he was
paid to perform on an ordinary basis[,]” which was to represent
indigent clients. Id. This was so notwithstanding that “his
36
speech was partially aimed at vindicating the rights of indigent
criminal defendants” and “may have, indirectly, benefitted his
clients,” because those facts do “not bring the speech within
the realm of his ordinary job duties” (comparing the case to
Pickering, 391 U.S. at 568, and Dougherty, 772 F.3d at 988-89):
“To view it otherwise would unduly restrict First Amendment
rights, because reporting malfeasance or misfeasance will
regularly benefit an employee in the execution of his job duties
by, presumably, removing impediments to proper government
functioning.” Id.
In Jerri v. Harran, 625 F. App’x 574 (3d Cir. 2015), a
panel of the Third Circuit found that some statements by a fire
chief were made as an employee and others were made as a
citizen. The court stated that when a fire chief “made his
complaints directly to the defendants, who are all Township
officials[,]” he was speaking as an employee rather than as a
citizen because “[o]ne of his job responsibilities as chief was
to liaise with the Township on matters that concerned [the fire
company], and he did so when, for example, he ‘complained to
Defendants’ about ‘waste occurring on the part of Defendants
with respect to a non-functional fire training center.’ And, as
a general matter, expressing concern about an employer’s actions
‘up the chain of command,’ Foraker, 501 F.3d at 240,
particularly when the employee is not advocating ‘ideas,
37
principles and projects,’ Hill v. Kutztown, 455 F.3d at 240,
that a supervisor opposes, is unlikely to be protected. When
Jerri, Sr. sought to bring Defendants’ attention to alleged
waste that harmed [the fire company], he was doing what a fire
chief is meant to do, and thus he cannot be said to have acted
in those contexts as a citizen.” 625 F. App’x at 580-81. The
court stated that it is not whether the speech “concerned his
employment as fire chief” that was dispositive; “[i]ntead, the
crucial question is whether the plaintiff is ‘expected, pursuant
to [his or her] job duties,’ to make the relevant speech.
Foraker, 501 F.3d at 241[,]” and found that certain other speech
by the plaintiff was made as a citizen “when he complained about
the boat business to all and sundry.” Jerri, 625 F. App’x at
581. The court declined to affirm on qualified immunity grounds,
stating that “[a]s Garcetti and our precedential opinions make
clear, a person who speaks outside his job duties speaks as a
citizen.” Id.
Compare, then, Fraternal Order of Police, Lodge 1 v. City
of Camden, 842 F.3d 231 (3d Cir. 2016), a precedential opinion
wherein the Third Circuit reversed the District Court’s grant of
summary judgment on the plaintiff-police officers’ state
whistleblower (“Conscientious Employee Protection Act” or
“CEPA”) claims, 842 F.3d at 243. The plaintiffs also alleged
First Amendment retaliation, alleging that they engaged in
38
protected speech by “writing, among other things, ‘QUOTA[]S ARE
ILLEGAL![]’” “on police department counseling forms[.]” Id.
However, the court stated, “the plaintiff-officers were not
speaking as citizens when they wrote on the counseling forms.
Citizens do not complete internal police counseling forms.
Rather, completing counseling forms as part of the police
disciplinary process falls under officers’ official duties.
Therefore, the plaintiff-officers’ speech here ‘owe[d] its
existence to [their] public employee[] professional
responsibilities[,]” and the court affirmed the grant of summary
judgment on the First Amendment retaliation claim. Id. at 244,
citing Gorum, 561 F.3d 179, 185 (3d Cir. 2009)(citation
omitted).
Defendants assert that Gorum controls here:
Foster adds that his “interest” in the shifts “went
beyond his employment” because he had been a resident
of Pennsauken and has family and friends that live
there. Regardless of what motivations prompted his
advocacy, the fact remains that Foster learned about,
and had the ability to speak on, the municipal budget
and public safety improvements related to twelve-hour
shifts precisely because of the experience he gained
as a police officer in that Township. This is closely
akin to plaintiff’s speech in Gorum[]. There,
plaintiff asserted that the assistance he provided to
a student during a disciplinary hearing was protected
citizen speech because it “went beyond his specified
resposnibilities in the Collective Bargaining
Agreement.” Nonetheless, the [c]ourt found that
plaintiff’s assistance of the student came within the
scope of his official duties because it was his
‘special knowledge of, and experience with, the DSU
disciplinary code’ that made him an advisor to DSU
39
student. Id. at 186 (rejecting plaintiff’s First
Amendment retaliation claim and affirming the District
Court’s grant of summary judgment). Likewise, even if
Foster’s advocacy for the shifts went beyond his
specified job duties, his ability to advocate was
entirely the product of the knowledge and experience
he acquired as a Pennsauken police officer.
[Docket Item 32 at 17-18.]
In light of Lane, Dougherty, and Flora, this Court can
definitively say that this is not the test under Garcetti. See
Dougherty, 772 F.3d at 989 (Appellants “replace Garcetti’s
‘pursuant to official duties’ test with one that precludes First
Amendment protection for speech that ‘owes its existence to a
public employee’s professional responsibilities[.]’ . . . After
plucking Garcetti’s language to canonize a new standard,
Appellants rely on Gorum to argue that, because the content of
Dougherty’s speech was gained from ‘special knowledge’ and
‘experience’ with the camera project entrusted to Dougherty, his
speech ‘owes its existence to’ his professional duties. These
arguments ask us to read Garcetti far too broadly.”)(citations
omitted; emphasis added). Moreover, the Third Circuit in
Dougherty characterized Gorum’s holding as simply an application
of Garcetti’s “fact-intensive”5 “practical inquiry”: “We
concluded that, although advising at disciplinary hearings was
not listed in the professor’s formal job description, his
5
Foraker, 501 F.3d at 240.
40
extensive knowledge and experience with disciplinary actions as
a de facto disciplinary advisor rendered that speech within his
job duties nonetheless. . . . Accordingly, Appellant’s attempt
to preclude First Amendment protection from Dougherty’s report - a duty absent from both his de facto and de jure
responsibilities--is inapt.” 772 F.3d at 989 (citations
omitted).
Moreover, in City of Camden, it was the form (or forum) of
the speech that led to the conclusion (under Garcetti) that it
the speech was part of the plaintiffs’ job responsibilities, 842
F. 3d at 244--not the fact that it related to the special
knowledge they had gained as police officers. Cf. Dougherty, 772
F.3d at 994 (citing plaintiff’s “citizen-like nature” of
disclosure to local newspaper); Garcetti, 547 U.S. at 423-24
(“Employees who make public statements outside the course of
performing their official duties retain some possibility of
First Amendment protection because that is the kind of activity
engaged in by citizens who do not work for the government. The
same goes for writing a letter to a local newspaper, see
Pickering, 88 S. Ct. at 1731, or discussing politics with a coworker, see Rankin, 483 U.S. at 378. When a public employee
speaks pursuant to employment responsibilities, however, there
is no relevant analogue to speech by citizens who are not
government employees.”)(emphasis added).
41
Similarly, it was on the basis of a particular “practical
inquiry” that the Third Circuit affirmed a finding that speech
was made as an employee and not as a citizen where the plaintiff
explicitly stated that his “role as ‘the person responsible for
training’ the RIT included the ‘duty to correct errors and
deviations in [RIT] procedures[,]’” thereby rendering his
“complaints regarding RVFD’s training and dispatch protocols for
its RIT” ones “made ‘pursuant to [his] official duties[.]’”
Houston v. Twp. of Randolph, 559 F. App’x 139, 142 (3d Cir.
2014). It was not that the complaints were based on his special
knowledge, but rather that it was his particular role “to
correct errors and deviations”--which his statements were meant
to do, as he made them “up the chain of command.” Houston v.
Twp. of Randolph, 934 F. Supp. 2d 711, 728 (D.N.J. 2013)(citing
Foraker, 501 F.3d at 240).6 Similarly, the Third Circuit ruled in
Kimmett v. Corbett, 554 F. App’x 106, 112 (3d Cir. 2014), that
certain speech and conduct by the plaintiff, a supervisor, (but
not all) “was made pursuant to his job duties.”7
6
To the extent the District Court in Houston cited as
justification for this finding the fact that all of Houston’s
speech “ar[ose] from and relate[d] to special job-related
experience,” 934 F. Supp. 2d 711, 728 n.17, such findings are
dicta, as the court also found that the plaintiff “does not seem
to allege” that he was suspended in retaliation for the
complaints he made to “fellow firefighters and others” rather
than up the chain of command.
7 To the extent that Kimmett’s approach to assessing whether
speech was made as a citizen or as an employee varies from that
42
The Court finds that Plaintiff’s Amended Complaint alleges
advocacy that was of the character of citizen speech and not
speech made “pursuant to” Plaintiff’s job responsibilities as a
Pennsauken police officer. While his advocacy may have related
to internal working conditions at the Police Department, it also
related to issues of public concern like public safety and the
municipal budget. See Foster, 2017 WL 2780745, at *11. While his
substantive position on the issue may have stemmed from the
special knowledge he gained as a police officer, it was neither
de jure nor de facto his “job responsibility” as a Pennsauken
police officer to have an opinion about, make a recommendation
about, administer, or determine the proper length of police
officer shifts. See Dougherty, 772 F.3d at 988 (“[N]othing about
Dougherty’s position compelled or called for him to provide or
report this information”)(citation omitted). And while he may
have advocated his position to his supervisors (among others),
he did not have a specific, supervisory or ordinary
responsibility, as a Pennsauken police officer, to report issues
or problems he saw with the length of shifts “up the chain of
command” as in Foraker. Moreover, he also advocated, on the same
grounds upon which he now premises his claim that his speech
described in Lane, Dougherty, and Flora, this Court is bound by
the latter holdings and not by Kimmett. See Third Circuit L.
App. R., Appendix I, I.O.P. 5.7.
43
related to a matter of public concern to Pennsauken residents
generally (per the Amended Complaint) to: fellow officers (cf.
Garcetti, 547 U.S. at 4238); to family members; and to other
members of the Pennsauken community. Whether he reached their
“hearts and minds” is of no decisive importance, as Defendants
urge [Docket Item 32 at 22]. What is important about his
audience and the character of his advocacy is that it shows that
his speech was of a type that could be pressed by any nonemployee citizen. Cf. City of Camden, 842 F.3d at 244; Garcetti,
547 U.S. at 423-24.
Accordingly, the Court, applying Lane, finds that
Plaintiff’s speech, as alleged in the Amended Complaint, was not
made “pursuant to” Plaintiff’s “official responsibilities.”
Lane, 134 S. Ct. at 2379. Nor was the advocacy of the switch to
twelve-hour shifts “ordinarily within the scope of” his “duties”
as a Pennsauken police officer, although it “concern[ed] those
duties.” Flora, 776 F.3d at 169 (citing Lane, 134 S. Ct. at
2379). The Court notes that, while such advocacy by Plaintiff
may have been also in part pursuant to his duties as a member of
FOP leadership, this does not alter the Court’s analysis under
8
“Employees who make public statements outside the course of
performing their official duties retain some possibility of
First Amendment protection because that is the kind of activity
engaged in by citizens who do not work for the government. The
same goes for writing a letter to a local newspaper or
discussing politics with a co-worker[.]” (citations omitted)
44
Garcetti and Lane; although the plaintiff in Flora felt
“compelled” to engage in the speech at issue, he felt compelled
to do so “as a lawyer” rather than as “the Chief Public
Defender.” 776 F.3d at 180. This did not alter the Third
Circuit’s conclusion that he adequately alleged that his speech
was made “outside the scope of his ordinary job
responsibilities” as the Chief Public Defender. Id. at 179, 180.
Here, too, the Court finds that the Amended Complaint
alleges speech and advocacy of the switch to a twelve-hour shift
by Plaintiff to several parties that was “outside the scope of”
Plaintiff’s “ordinary job responsibilities” and was therefore
made as a citizen, entitling him to the protection of the First
Amendment. See Flora, 776 F.3d at 179 (“Because Lane now
controls, . . . the responsibility of a district court in
evaluating whether a public employee’s speech was made as a
private citizen is to ask whether the speech at issue was
‘outside the scope of his ordinary job responsibilities.’ [Lane,
134 S. Ct.] at 2378.”); cf. Matthews v. City of New York, 779
F.3d 167, 174 (2d Cir. 2015)(“Matthews’s speech to the
Precinct’s leadership in this case was not what he was ‘employed
to do,’ unlike the prosecutor’s speech in Garcetti . . . . Such
policy-oriented speech was neither part of his job description
nor part of the practical reality of his every day work. . . .
[T]he NYPD Patrol Guide . . . lists 20 specific duties, but none
45
includes a duty to provide feedback on precinct policy or any
other policy-related duty. . . . Matthews had no role in setting
policy; he was neither expected to speak on policy nor consulted
on formulating policy.”).
Moreover, although the Court already found that Plaintiff
adequately alleged a plausible causal link between his advocacy
for twelve-hour shifts and the alleged retaliation, see Foster,
2017 WL 2780745, at *12-13, Defendants here submit that
Plaintiff does not adequately allege a causal link between the
advocacy Plaintiff undertook as a citizen (including his private
advocacy to Pennsauken residents and his own family members) and
the alleged retaliation he faced, arguing that all Plaintiff has
alleged is that Defendants were aware of that private advocacy,
and that “[m]ere knowledge is insufficient to establish
causation in a retaliation case[,]” citing Perna v. Twp. of
Montclair, No. Civ. A. 05-4464 (JLL), 2009 WL 2778389, at *6
(D.N.J. Aug. 31, 2009) and Davila v. City of Camden, 66 F. Supp.
3d 529, 535 (D.N.J. 2014) [Docket Item 32 at 22-23.] The Court
does not find this argument persuasive. Defendants concede, for
purposes of this argument, that they knew of Plaintiff’s private
speech, but Plaintiff does not rely simply on the fact that they
knew of his advocacy to link his advocacy with the alleged
retaliation he suffered; Plaintiff’s Amended Complaint cites to
other evidence of the retaliatory animus (e.g., different levels
46
of discipline for supporters compared to non-supporters,
Probasco calling supporters “babies,” etc.), and the invocation
of the knowledge Defendants had about his private advocacy
merely serves as a prerequisite for showing a causal link; after
all, Defendants could not bear a retaliatory animus if they did
not know about Plaintiff’s protected conduct. Here, Plaintiff is
alleging (and Defendants are apparently conceding) that they did
in fact know, clearing the way for a finding of a causal link.
See Ambrose v. Twp. of Robinson, 303 F.3d 488, 493-94 (3d Cir.
2002)(Third Circuit “h[e]ld” that if decisionmakers were
“unaware of” protected speech, “it could not possibly have been
a substantial or motivating factor” in the adverse employment
decision and the concomitant “First Amendment retaliation claim
would necessarily fail”).9
B. First Amendment Retaliation (Freedom of Association)
The Court next turns to Plaintiff’s advocacy for the shifts
in his position as a representative for the union. The Court
previously stated that this advocacy “was not done as a private
9
While the Court denies without prejudice Defendant’s request
for supplemental briefing to further argue for dismissal on
collateral estoppel grounds, see supra Section II.B.2., the
Court notes that, should Plaintiff be precluded from arguing
that he was not terminated for cause upon application of the
doctrine of collateral estoppel, he shall be required to plead
(and ultimately, prove) that, notwithstanding that for-cause
termination, retaliatory animus was also a substantial or
motivating factor in that (or any) adverse employment decision
made by Defendants.
47
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 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)[,]” and
that Plaintiff did not adequately allege a causal link between
the alleged retaliation and his union activities specifically.
Foster, 2017 WL 2780745, at *10; *14-15. Plaintiff was given the
opportunity to address these pleading deficiencies in an Amended
Complaint. With the benefit of the additional allegations of the
Amended Complaint, the Court finds that Plaintiff adequately
alleges that he was retaliated against in violation of his First
Amendment right to free association.
Similarly to a free-speech retaliation claim, a public
employee who claims that his employer retaliated against him for
exercise of his right to associate (here, Plaintiff’s unionrelated activities) 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
48
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)).
The Court finds that Plaintiff has adequately pled that
Defendants took an adverse employment action against him, and
must therefore assess whether the Amended Complaint states a
claim that, first, Plaintiff engaged in constitutionallyprotected free association with regard to his union related
activities, and that, second, there is a causal link between
those activities and the adverse employment action.
1. Allegations of Associational Conduct
The Court, in assessing the previous Complaint in this
case, fleetingly addressed whether Plaintiff’s conclusory
Complaint alleged that his union-related activities constituted
protected associational conduct before “focusing” on the
question of allegations of the causal link. Foster, 2017 WL
2780745, at *10 (describing allegations regarding union-related
conduct as “bare-boned and conclusory”).
Because Plaintiff now alleges substantially more detail
with regard to his union-related activities, the Court more
squarely addresses whether the Amended Complaint in its present
49
form alleges a plausible claim that Plaintiff engaged in
protected associational conduct. The Court finds that it does.
“Public employees are, like all citizens, entitled to
associate freely without retaliation by the government for doing
so.” Ferraioli v. City of Hackensack Police Dep’t, No. 09-2663
(SRC), 2010 WL 421098, at *6 (D.N.J. Feb. 2, 2010)(citing Smith
v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465
(1971)(per curiam) and Bradshaw v. Twp. of Middletown, 296 F.
Supp. 2d 526, 544 (D.N.J. 2003), aff’d, 145 F. App’x 763
(2005)). “[S]ome union activity presumably comes within the
right to associate for expressive purposes. See, e.g., Roberts
v. United States Jaycees, 468 U.S. 609, 622 (1984)(‘implicit in
the right to engage in activities protected by the First
Amendment [is] a corresponding right to associate with others in
pursuit of a wide variety of political, social [and] economic .
. . ends”).” Hotel and Restaurant Employees and Bartenders
Intern. Union Local 54 v. Read, 832 F.2d 263, 265 (3d Cir.
1987).
“[I]t is well-settled that First Amendment protections
extend to the right to associate with a union.” Mrazek v.
Stafford Twp., Nos. 13-1091(FLW) & 14-5945(FLW), 2016 WL
5417197, at *10 (D.N.J. Sept. 28, 2016)(citations omitted).
“Plainly efforts of public employees to associate together for
the purpose of collective bargaining involve associational
50
interests which the first amendment protects from hostile state
action.” Labov v. Lalley, 809 F.2d 220, 222-23 (3d Cir.
1987)(citing Hague v. C.I.O., 307 U.S. 496 (1939)). See also
Bradshaw v. Twp. of Middltown, 296 F. Supp. 2d 526, 544 (D.N.J.
2003)(First Amendment “right to freely associate with others
without fear of retaliation” “extends to union-related
activity”)(citing Suppan v. Dadonna, 203 F.3d 228, 230-31, 236
(3d Cir. 2000); Robb v. City of Philadelphia, 733 F.2d 286, 295
(3d Cir. 1984); McGrogan v. SEPTA, No. 01-1342, 2002 WL 1586979,
at *2 (E.D.Pa. July 19, 2002)); Glass v. Snellbaker, No. 051971(JBS), 2007 WL 1723472, at *4 (D.N.J. June 14, 2007)(“The
right to associate, whether with a union or other organization,
is protected by the First Amendment. . . . Further, nothing in
the Garcetti case casts doubt upon the First Amendment
associational protections of public employees expressing
themselves through lawful union activities, such as meetings and
grievances”).
In Bradshaw, the court recognized that the plaintiff stated
a claim of protected union activity where he alleged “that in
his capacity as a member of the Board of Trustees of the” union,
“he ‘took a stand’ against’” one defendant’s “proposal to change
the police officers’ uniforms and make the officers pay half the
cost.” 296 F. Supp. 2d at 545. To the extent that he was
retaliated against for that action, the court held that he
51
“stated a claim for retaliation for engaging in the protected
conduct of union activity” against those defendants. Id. See
also Crane v. Yurick, 287 F. Supp. 2d 553, 560 (D.N.J.
2003)(plaintiff “easily satisfies the first element of the
retaliation test, as his union-related speech is protected under
the First Amendment” because it involved a matter of public
concern; specifically, it “involved a central union activity,
the negotiation of a new collective bargaining agreement . . . .
The First Amendment’s protection of the right to freedom of
speech extends broadly over union activities. See Thomas v.
Collins, 323 U.S. 516 (1945); Thornhill v. Alabama, 310 U.S. 88
(1940); Hotel & Restaurant Employees & Bartenders Intern. Union
Local 54 v. Read, 832 F. 2d 263, 265 (3d Cir. 1987). . . .
Plaintiff’s speech clearly related to his union activities, as
it involved contract negotiations, and it was also clearly a
matter of public concern.”).
In a case where the plaintiffs alleged that they were
discriminated against for their political affiliation based on
their support for a specific candidate in a union election, the
court “reviewed two lines of cases discussing freedom of
association under the First Amendment”: “[o]ne line” that “deals
generally with one’s right to associate with groups engaged in
expressive activity” (citing Roberts, 468 U.S. at 611 and Boy
Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000)) and the “other”
52
dealing “more particularly with discrimination against a public
employee for his or her political affiliation” under “the
Supreme Court’s political patronage trilogy” of Elrod v. Burns,
427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507 (1980), and
Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990).
Ferraioli, 2010 WL 421098 at *6. There, the court found that the
alleged retaliatory actions for the plaintiff’s support of one
union candidate “infringed their First Amendment right in that
it burdened their association with a labor union.” Id. at *7.
When assessing a free-association retaliation claim, some
courts have held, a plaintiff must allege, under Third Circuit
precedent, “that the plaintiff must be acting as a private
citizen” because such an allegation is “an essential element of
a First Amendment Claim, whether it is a freedom of speech claim
or a freedom of association claim.” Cindrich v. Fisher, 512 F.
Supp. 2d 396, 404 (W.D.Pa. 2007)(citing Hill v. Kutztown, 455
F.3d at 241-242). As this question is now squarely before the
Court due to the additional allegations in the Amended Complaint
regarding Plaintiff’s union-related activities, the Court will
look closely at this proposition in order to ascertain whether
Plaintiff’s union-related activities constituted protected
associational conduct under the First Amendment.
In Hill v. Kutztown, the plaintiff brought First Amendment
retaliation claims based on several incidents of speech, as well
53
as a claim based on political association. 455 F.3d at 241-243.
The Third Circuit assessed “whether [the plaintiff’s]
allegations [we]re sufficient to establish that his constructive
discharge occurred in retaliation for [his] exercise of his
First Amendment rights.
To state a First Amendment retaliation claim, a
plaintiff must allege two things: (1) that the
activity in question is protected by the First
Amendment, and (2) that the protected activity was a
substantial factor in the alleged retaliatory action.
See, e.g., Phyllis Hill v. City of Scranton, 411 F.3d
118, 125 (3d Cir. 2005). The first factor is a
question of law; the second factor is a question of
fact. Curinga v. City of Clairton, 357 F.3d 305, 310
(3d Cir. 2004).
Id. at 241.
The Third Circuit first turned to “Hill’s [s]peech” and
noted that a “public employee’s statement is protected activity
when (1) in making it, the employee spoke as a citizen, (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.” Id. at
241-42 (quoting Garcetti, 547 U.S. at 410). Under this heading,
regarding “Hill’s Speech,” the Third Circuit delineated the
distinction between speaking as an employee and speaking as a
private citizen: namely, that the employee does the latter when
he does not speak “pursuant to [his] official duties.” Id. at
54
242 (citing Garcetti).10 The court then ruled that, given the
posture of the case (“on a 12(b)(6) motion,” where “the court
examined whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief”), the court would read
the complaint “to allege that Hill was speaking [on at least one
occasion] ‘as a citizen’”; that the court could not determine
whether the speech involved a matter of public concern, nor
whether the employer “had an adequate justification” for
treating Hill differently, but that “Hill has alleged the
requisite causality by claiming that his support for the
telecommunications project and other projects and ideas the
Mayor opposed, was one of the reasons that Mayor Marino
retaliated against him” and held that “Hill’s First Amendment
claim . . . should not have been dismissed at this stage of the
proceeding.” Id. at 242-43 (citation and emphasis omitted).
The Third Circuit only then turned to Hill’s next claim, in
a subsection entitled “Hill’s political association,” stating
that “Hill also bases his First Amendment retaliation claim on
his support for ‘the policies and programs of the previous
mayor.’
To make out a claim of discrimination based on
political association, a public employee must allege
(1) that the employee works for a public employer in a
position that does not require a political
affiliation, (2) that the employee maintained a
10
Cf. Section IV.A., supra.
55
political affiliation, and (3) that the employee’s
political affiliation was a substantial or motivating
factor in the adverse employment decision. Goodman v.
Pa. Tpk. Comm’n, 293 F.3d 655, 663-64 (3d Cir. 2002).
Id. at 243. The court then concluded that Hill could not sustain
such a claim. Id.
This Court therefore does not read Hill v. Kutztown to
directly assess or describe the elements of a First Amendment
free-association retaliation claim (e.g., “public concern”;
“private citizen”; “substantial factor”), as it assessed Hill’s
direct “First Amendment” retaliation claim only insofar as it
related to his speech, and assessed his association claim under
the rubric of political association discrimination--a cause of
action neither pleaded by, nor directly relevant to, Plaintiff’s
free-association retaliation claim in this case.11
Given this reading of Hill v. Kutztown, the Court cannot
now fairly state, as the Cindrich court cited (per the
plaintiff’s brief in that case, 512 F. Supp. 2d at 404), that
the Third Circuit held in that case that the “private citizen”
requirement of Garcetti applies to free association retaliation
claims as well as free speech retaliation claims.
11
See Goodman, 293
Amendment-grounded
Elrod, 427 U.S. at
Rutan, 497 U.S. at
F.3d at 663 (describing this type of Firstclaim as a “political patronage” claim under
372-73; Branti, 445 U.S. at 514-15; and
75).
56
Another court in this District has stated the elements of a
First Amendment free-association retaliation claim in more
general terms, as follows:
As with a freedom of speech claim, an employee who
raises an adverse employment action based upon the
exercise of their associational rights must show that
he was engaged in a constitutionally protected
activity and that such conduct was a substantial and
motivating factor of the [adverse employment action].
[Rode, 845 F.2d at 1204] (citing Mt. Healthy, 429 U.S.
at 287). While the activity in question must be
protected, the Third Circuit has recognized but not
addressed the fact that there is a circuit split as to
whether the freedom of association claims are governed
by the “public concern” requirement. Sanguigni v.
Pittsburgh Bd. of Pub. Educ., 968 F.2d 393, 400 (3d
Cir. 1992).
Beresford, 2010 WL 445684 at *5. In Beresford, the court found
that the plaintiff did not adduce sufficient evidence to show
that his speech was made as a private citizen, rather than
pursuant to his union duties, and simply concluded that the
plaintiff’s “freedom of association claim mirrors his freedom of
speech claim in that it relates to the same union speech and
attendant circumstances.” Id. at *5-7.
Applying this test in the general fashion, it would seem
that Plaintiff could adequately allege that he engaged in a
constitutionally protected activity (i.e., union leadership
activities, including advocating for the twelve-hour shift as
part of his duties as a leader in the FOP), and that his union
leadership activities (including, or even primarily, his
57
advocacy for the twelve-hour shift) constituted a substantial
and motivating factor in Defendants’ alleged course of conduct
against him (see infra Section IV.B.2.). Attempting to map
Garcetti’s “private citizen” requirement onto the question of
whether Plaintiff’s union leadership activities were conducted
as a “private citizen” complicates the matter somewhat, because
Plaintiff, arguably, was not engaged in his union-related
activities as a private citizen in the same way he advocated for
the twelve-hour shifts to his coworkers and other Pennsauken
residents as a private citizen. However, the Court nevertheless
finds (to the extent such a finding is necessary under Third
Circuit precedent) that it would be unwise to hold that
Plaintiff’s Amended Complaint alleges that his union-related
activities (and their consonant associational conduct) were
conducted “pursuant to [Plaintiff]’s official duties” and are
therefore unprotected under Garcetti.
As an initial matter, much of the moving force of Garcetti
was the concern the Court had for an employer who may need or
wish to discipline an employee whose work performance is not up
to snuff, notwithstanding that the form of such performance was
in the nature of speech or writing. The plaintiff there was
disciplined for writing a memorandum, the content of which
allegedly displeased his superiors. The Court held that the
plaintiff could, notwithstanding the First Amendment, be
58
“disciplined” (or what the plaintiff styled as “retaliated
against”) for what was, essentially, his work product,
notwithstanding that his work product took the form of speech.
Garcetti, 547 U.S. at 422 (“Refusing to recognize First
Amendment claims based on government employees’ work product
does not prevent them from participating in public debate”).
Here, there is no allegation that Plaintiff’s union
leadership activities are analogous to his “work product.” Just
as it was not necessary, or part of his ordinary duties as a
Pennsauken police officer, see Lane and Flora, for Plaintiff to
have an opinion on shift lengths (much less advocate that
opinion vocally), Plaintiff’s allegations in the Amended
Complaint do not suggest that it was necessary or part of his
ordinary duties as a Pennsauken police officer to undertake the
union leadership activities he performed (including advocating
for the twelve-hour shift). It follows that those activities did
not effectively constitute his work performance or work product
as a Pennsauken police officer, upon which Defendants could
reasonably require to discipline him.12 However, Plaintiff was
12
See Montero v. City of Yonkers, 890 F.3d 386, 398 (2d Cir.
2018)(citing Lane and concluding that plaintiff “sufficiently
pled” that he “made his remarks as union vice president, a role
in which he was not required to serve” although they “may have
touched on matters that he learned through the course of his
employment” and ruled that the “district court erred in
concluding on a motion to dismiss that Montero spoke as an
employee” because his speech “was not composed of statements
59
undoubtedly engaged in this conduct in a way that was closely
linked with his role as a police officer, so in that way, it
might be analytically difficult to conceive of his activities in
this role as having occurred “as a private citizen” under
Garcetti. Cf. Garcetti, 547 U.S. at 421-22 (“Restricting speech
that owes its existence to a public employee’s professional
responsibilities does not infringe any liberties the employee
must have enjoyed as a private citizen”).
Nevertheless, and secondly, the Court shares the concerns
well articulated by Judge Robinson in Justice v. Danberg, 571 F.
Supp. 2d 602, 608 (D. Del. 2008). In that case, the plaintiff, a
corrections officer, asserted “that he was denied [a] promotion
. . . because he engaged in constitutionally protected activity
by associating with a union.” Id. at 608. The court stated:
For plaintiff, as a government employee, to engage in
constitutionally protected activity, he must do so as a
citizen and not as a government official or agent
speaking merely in the course of his official
activities. Garcetti, 547 U.S. at 418. Defendants
contend that plaintiff did not engage in protected
activity because his union activity was pursuant to his
official duties as a corrections officer. Defendants
rely on Garcetti, which holds that speech by a public
employee in the course of his or her official duties is
not protected under the First Amendment because the
employee would not be speaking as a “citizen on a
made as a ‘means to fulfill’ or ‘undertaken in the course of
performing’ his responsibilities as a police officer[,]” citing
Weintraub v. Bd. of Educ. of City Sch. Dist. of City of N.Y.,
593 F.3d 196, 203 (2d Cir. 2010), holding instead that “he
engaged in citizen speech for purposes of the First Amendment”).
60
matter of public concern.” [footnote 7 omitted; see
infra.] 547 U.S. at 418; see also Connick, 461 U.S. at
147 (“[W]hen a public employee speaks not as a citizen
upon matters of public concern, but instead as an
employee upon matters only of personal interest . . . a
federal court is not the appropriate forum in which to
review the wisdom of a personnel decision taken by a
public agency allegedly in reaction to the employee’s
behavior.”). Garcetti disallows claims in circumstances
only where the activity is one required by the public
employee’s duties since this would necessarily mean the
employee was not speaking as a citizen but as a
government official. 547 U.S. at 418. Put another way,
Garcetti stands for the principle that the Constitution
does not absolutely insulate employees, speaking as
employees, from employer discipline when their
respective interests are in conflict, reflecting the
simple fact that “a government employer may impose
certain restraints on the speech of its employees . . .
that would be unconstitutional if applied to the
general public.” City of San Diego v. Roe, 543 U.S. 77,
80 (2004)(per curiam).
Applying this rule to the instant case, the initial
question for the court is whether plaintiff was acting
as a citizen or as an employee when he took part in
the union negotiations. Defendants argue that since
plaintiff is required to be a member of [the union] by
Delaware law, as are all other DOC employees of his
rank or below, plaintiff’s activity is not protected.
This is a broad reading of the rule that seeks to
disallow First Amendment protections to government
employees if their activity was related in any way to
their employment, a reading that has been rejected by
a number of courts, including this court, since
Garcetti. [citations omitted.] In the first instance,
while plaintiff was required by Delaware law to be a
member of [the union], he was not required to be a
vice president in the union nor was he required to
even be active in the union beyond that required by
law. Defendants do not identify any evidence that the
job requirements of plaintiff’s position as Vacation
Holiday Relief Sergeant include being a vice president
representing MCCC or taking part in collective
bargaining and contract negotiations. Secondly, if the
court were to adopt defendants’ interpretation of the
rule, union activity would cease to be a fundamental
61
right protected under the Constitution, a holding that
would contradict decades of Supreme Court precedent.
[footnote 9 omitted, see infra.] The court declines to
find that Garcetti represents the abrogation of such a
well established right. Consequently, the court finds
that plaintiff was acting as a citizen when
participating in union negotiation activities.
Justice v. Danberg, 571 F. Supp. 2d at 608-10.13
The Court, here, similarly finds that the Amended Complaint
adequately alleges that Plaintiff “was acting as a citizen” in
his FOP leadership activities, to the extent such a finding is
13
See also id. at 609 n.7 (“Defendants cite to a recent Third
Circuit opinion, Hill v. Borough of Kutztown, for their
interpretation of the Garcetti rule. 455 F.3d [at] 242-43 . . .
. This reliance is misplaced since the Hill Court affirmed the
dismissal, via Garcetti, of only the portion of Hill’s claims
that concerned reporting requirements that he, himself, conceded
were required as ‘pursuant to his official duties.’ Id. The
Court actually reversed the dismissal of Hill’s First Amendment
claim based on other activities that were not affected by his
concession. Id.”); 609 n.9 (citing Thomas v. Collins, 323 U.S.
516, 532 (1945)(“Free discussion concerning the conditions in
industry and the causes of labor disputes appears to us
indispensably to the effective and intelligent use of the
processes of popular government to shape the destiny of modern
industrial society.”); N.L.R.B. v. Jones & Laughlin Steel Corp.,
301 U.S. 1, 33 (1937)(“[T]he right of employees to selforganization and to select representatives of their own choosing
for collective bargaining or other mutual protection without
restraint or coercion by their employer . . . is a fundamental
right.”); United Fed’n of Postal Clerks v. Blount, 325 F. Supp.
879, 883 (D.D.C. 1971)(per curiam), aff’d, 404 U.S. 802
(1971)(“The right [of public employees] to organize collectively
and to select representatives for the purposes of engaging in
collective bargaining is . . . a fundamental right.”); Labov v.
Lalley, 809 F.2d 220, 222-23 (3d Cir. 1987)(“Plainly efforts of
public employees to associate together for the purpose of
collective bargaining involve associational interests which the
first amendment protects from hostile state action.”).)
62
necessary under Garcetti and Third Circuit precedent. There is
no allegation in the Amended Complaint suggesting that
Plaintiff’s de facto or de jure job requirements mandated that
he undertake those union leadership activities, including the
advocacy for the twelve-hour shift he engaged in as part of that
role.14 Further, it would be ironic and contrary to well-
14
Cf. Thomas v. Delaware State University, No. 10-522-GMS, 2014
WL 5020275, at *3-*4 (D. Del. Oct. 6, 2014)(plaintiff complained
of retaliation “for exercising her First Amendment right to
freedom of speech in connection with her union activities[,]”
“i.e., the grievances she filed on behalf of the union”;
defendants claimed that “she was not speaking as a private
citizen on matters of public concern”; court recognized that
plaintiff’s “actions as Union President were distinct from her
DSU job obligations, and therefore she spoke as a private
citizen rather than a public employee. . . . Thomas was not
required to serve as AFSCME Union President as part of her DSU
employment, making her activity on behalf of the union that of a
private citizen. A contrary holding would severely undermine
employees’ ability to participate in unions without fear of
retaliation, and ‘union activity would cease to be a fundamental
right protected under the Constitution, . . . contradict[ing]
decades of Supreme Court precedent[,]’” citing Justice, 571 F.
Supp. 2d at 609-10, and distinguishing Hill v. Phila., 331 F.
App’x at 142; “acknowledging that it draws a fine distinction,”
court found “that Hill [v. Phila.] did not squarely address the
issue of whether one participating in union activity acts as an
employee or as a citizen. . . . Rather, the Third Circuit
focused on the plaintiff’s burden of proof” where it held that
the appellant “fail[ed] to demonstrate” that his union
representation of a third party “is the type of speech which
entitles him to First Amendment protection” and that the
“appellant did not show that he was acting as a citizen in his
union representation”; finding that “the law is not well
defined” but that “Thomas was acting as a private citizen when
filing grievances on behalf of union members”); see also id. at
*3 n.4 (plaintiff only belatedly asserted First Amendment free
association right as basis for alleged retaliation and court
disregarded as improper amendment to claim); Glass, 2007 WL
1723472, at *5 (“In his conversations with the union, Plaintiff
63
established precedent if Plaintiff’s status as a public
employee, a requirement for membership in his union, were deemed
sufficient to negate the protection of his exercise of the right
of association against retaliation.
Accordingly, the Court next turns to allegations of a
causal link between Plaintiff’s union-related activities (i.e.,
his alleged protected associational conduct) and the alleged
retaliation he suffered.
2. Allegations of Causal Link
The Court previously found that, in the original Complaint,
although “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.” Foster, 2017 WL 2780745, at
*14.
Much of the Court’s concern with this claim as pled in
Plaintiff’s original Complaint centered on the lack of
was not acting pursuant to his official duties to the
Department, but as an associate of the union”); Montero, 890
F.3d at 398-99 (noting that “some circuits have” “decide[d]
categorically” “that when a person speaks in his or her capacity
as a union member, he or she speaks as a private
citizen”)(citing Boulton v. Swanson, 795 F.3d 526, 534 (6th Cir.
2015); Ellins v. City of Sierra Madre, 710 F.3d 1049, 1060 (9th
Cir. 2013); Nagle v. Vill. of Calumet Park, 554 F.3d 1106, 1123
(7th Cir. 2009)).
64
specificity about Plaintiff’s personal involvement in the FOP,
and the lack of factual information from which the Court could
infer a causal link between Plaintiff’s association with the FOP
and the retaliation against him. Specifically, without Plaintiff
having stated the dates of his association with the FOP (and/or
the date around which his involvement increased to the point of
alleged significance), the Court was unable to assess how
Plaintiff’s FOP association squared with the behavior by
Defendants (including its temporal relationship) that was
alleged to constitute retaliation for that association. Foster,
2017 WL 2780745, at *15.
As Plaintiff notes in his Response, the Amended Complaint
now includes the additional allegations that “Plaintiff became
actively involved in the FOP and a member of FOP leadership in
the fall of 2010 when he became a shift leader” (Am. Compl.
¶¶ 113-14); that, as union shift leader, “Plaintiff was
responsible for attending union meetings and convincing
employees to support union positions (including twelve-hour
shifts[,]” id. at ¶¶ 115-17; that Plaintiff also served as an
alternate on the CBA negotiating team, thereby serving as a
“liaison between union members and the negotiating team[,]” id.
at ¶¶ 118-20; and that “Defendant Coffey, who previously did not
interfere with the FOP became incensed with the FOP during the
twelve hour shift debate and began retaliating against FOP
65
leadership--including the Plaintiff[,]” id. at ¶¶ 124-30.
[Docket Item 36 at 8.]
As pled, the Amended Complaint adequately alleges that the
Defendants, including Defendant Coffey, retaliated against
Plaintiff because of his union-leadership activities. Although
Plaintiff may have been an FOP member in the years predating the
fall of 2010, the Amended Complaint alleges that it was his
increased role in FOP leadership, at the time that FOP was
advocating for twelve-hour shifts (and against Defendants’ own
preference), that coincided with Defendants’ pattern of
antagonism toward him, a pattern that allegedly culminated in
his termination in 2015. Cf. Foster, 2017 WL 2780745, at *13
(“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”). Specifically, Plaintiff’s allegation that Defendant
Coffey’s attitude towards the FOP and its members had previously
been cordial but noticeably cooled (and was followed by
allegedly retaliatory action) once the FOP began to advocate for
twelve-hour shifts is sufficient, at this pleading stage of the
proceedings, to infer that Plaintiff’s association with a union
that was effectively now “going up against” Defendant Coffey was
part of Defendants’ motivation in allegedly retaliating against
66
Plaintiff shortly thereafter. The Amended Complaint describes
Coffey’s previous “lack of animosity” towards the FOP before the
twelve-hour shift debate; the “many contentious meetings”
Defendant Coffey “and other Police Department supervisors” held
with FOP leadership about twelve hour shifts; Defendant Coffey’s
attempt “to improperly influence the FOP” by, e.g.,
voting “in
an FOP executive board election, even though he was not
permitted to do so” and “harassing” the FOP president by sending
him repeated memoranda; and the allegation that “when
influencing the FOP did not work, Coffey began to retaliate
against the FOP and against anyone who associated with the FOP,”
“focus[ing] on FOP leadership.” (Am. Compl. ¶¶ 124-30.) The
Court further notes that this question of whether the protected
conduct was a substantial factor in motivating the alleged
retaliatory conduct is a question of fact, making it
particularly inapposite for the Court to dismiss this claim on
this basis at this stage of the proceedings prior to an
opportunity to exchange disclosures and discovery. See Hill v.
Kutztown, 455 F.3d at 241.15
15
The Court notes that, when other courts dismiss claims on this
basis, it tends to be in circumstances where the plaintiff does
not adequately allege that the defendant knew of the protected
activity, as knowledge is a necessary predicate to a retaliatory
animus. In Gorum, the Third Circuit addressed whether summary
judgment was appropriate on the question of whether “the
protected activity was a substantial factor in the alleged
retaliatory action,” noting that this “is a question of fact[,]”
67
Plaintiff adequately alleges that it was his association
with the FOP, as it was advocating in favor of the twelve-hour
shifts, that led to the retaliatory animus and actions
undertaken by Defendant; Plaintiff also adequately alleges that
it was his speech as a private citizen, advocating the same,
citing Hill v. Kutztown, 455 F.3d at 241. Gorum, 561 F.3d at
184. There, the Third Circuit found that the plaintiff could not
“show that his remarks and actions were substantial factors
behind President Sessoms’s alleged retaliatory decision” where
“no evidence exist[ed] that Sessoms had any knowledge of
Gorum’s” allegedly protected activity. Id. at 188. See also
Ambrose v. Twp. of Robinson, 303 F.3d 488, 493-94 (3d Cir.
2002)(Third Circuit “h[e]ld” that if decisionmakers were
“unaware of” protected speech, “it could not possibly have been
a substantial or motivating factor” in the adverse employment
decision and the concomitant “First Amendment retaliation claim
would necessarily fail”).
In contrast, in Hill v. Kutztown, the Third Circuit found
that “Hill has alleged to requisite causality by claiming that
his support for the telecommunications project and other
projects and ideas the Mayor opposed, was one of the reasons
that Mayor Marino retaliated against him” and reversed the grant
of dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Hill v.
Kutztown, 455 F.3d at 243. See also Crane, 287 F. Supp. 2d at
560-61 (court denied summary judgment where plaintiff “at least
creates suspicion as to Defendants’ retaliatory motive[,]”
noting temporal proximity of alleged protected conduct and
retaliatory actions, although defendant “expressly denied any
knowledge of Plaintiff’s discussions with the Attorney General
in his deposition” as the court “believe[d] that this matter
should be considered by a jury, and is inappropriate for summary
judgment disposition”); Thomas, 2014 WL 5020275, at *5
(plaintiff failed to demonstrate a causal link via a pattern of
antagonism where demonstrated “pattern of antagonism” “was not
even directed primarily at Thomas” because to “establish a
retaliation claim, the pattern of antagonism must be causally
connected to--i.e., a product of--the protected activity” and
evidence “shows any antagonism” from defendant “was his ordinary
demeanor and not causally related to Thomas’ specific protected
activity”).
68
that led to the retaliation. It is not necessary, to state a
retaliation claim, to state that the allegedly motivating
conduct was the sole cause of the retaliation; rather, the test
is whether the motivating conduct by the plaintiff was “a
substantial or motivating factor in the allegedly retaliatory
action,” Springer v. Henry, 435 F.3d 268, 275 (3d Cir.
2006)(emphasis added). As Plaintiff states, “[t]hroughout
discovery and litigation, it could be discovered that speech was
the root cause of the retaliation, that associational conduct
was the root cause of the retaliation, or that both were root
causes of the retaliation.” [Docket Item 36 at 24.] To the
extent that some future finder of fact may find that the alleged
retaliation was, in fact, motivated by Plaintiff’s speech as a
private citizen but not by his association with the FOP as it
advocated the same position Plaintiff did (or vice versa), such
a finding is perfectly consonant with the Court’s denial of
Defendants’ 12(b)(6) motion on the same point.16
Accordingly, the Court finds that Plaintiff has adequately
alleged retaliation in violation of his First Amendment right to
16
See supra, n.9; if Plaintiff is ultimately collaterally
estopped from claiming that he was terminated without just
cause, he shall be required to plead, and eventually prove, that
retaliatory animus for the exercise of his First Amendment right
to association was also a substantial or motivating factor in
any adverse employment decisions against him made by Defendants,
in addition to the misconduct attributed to him by the ALJ and
the Appellate Division.
69
free association, and the Court will deny Defendant’s motion as
to that claim.
C. Qualified Immunity
Finally, Defendants contend that they are entitled to
qualified immunity even if Plaintiff had stated a valid
retaliation claim on either free speech or free association
grounds. 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 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)).
“‘The relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.’ Saucier, 533 U.S. at 202. To be
clearly established, the very action in question need not have
70
previously been held unlawful. Anderson v. Creighton, 482 U.S.
635, 640 (1987). Rather, the ‘contours of the right’ must be
sufficiently clear such that the unlawfulness of the action is
apparent in light of pre-existing law. Id.” Dougherty, 772 F.3d
at 993. “‘Qualified immunity will be upheld on a 12(b)(6) motion
only when the immunity is established on the face of the
complaint.’” Thomas v. Independence Twp., 463 F.3d 285, 291 (3d
Cir. 2006)(quoting Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir.
2001)). “[A] plaintiff has no obligation to plead a violation of
clearly established law in order to avoid dismissal on qualified
immunity grounds.” Thomas, 463 F.3d at 293. See also Zion v.
Nassan, 727 F. Supp. 2d 388, 404 (W.D.Pa. 2010)(“Even in
applying the Iqbal standard, the Court of Appeals for the Third
Circuit has warned that ‘it is generally unwise to venture into
a qualified immunity analysis at the pleading stage as it is
necessary to develop the factual record in the vast majority of
cases.’ Newland v. Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir.
2009).”).
When assessing the “clearly established” prong of the
qualified immunity test, it is obviously critically important to
frame the inquiry properly: when drawn too broadly, all (or
nearly all) alleged violations are “clearly established” (as it
is, e.g., clearly established that a person has a constitutional
71
right to free speech)17; but when drawn too narrowly, the inquiry
would seem never to be satisfied unless the precise factual
scenario had, however improbably, arisen in the past (where a
Court of Appeals or the Supreme Court had ruled that a person in
a position analogous to the plaintiff’s position in all relevant
respects had had his or her constitutional rights violated).
Thus, the Court looks to other cases addressing qualified
immunity in the First Amendment retaliation context for guidance
on the proper frame for the inquiry, as well as the larger
question of whether the “immunity is established on the face of”
the Amended Complaint here. See Thomas, 463 F.3d at 291.
The Court begins with Lane, as Lane both provides the
applicable rule of decision with regard to whether Plaintiff
spoke as a citizen or as an employee and found qualified
immunity for the individual defendant. In Lane, which was issued
on June 19, 2014, the Supreme Court found that the plaintiff
alleged retaliation in violation of his constitutional right to
free speech under Garcetti and Pickering, but ruled that the
17
See De Ritis v. McGarrigle, 861 F.3d 444, 458 n.12 (3d Cir.
2017)(describing as too “general” the question of “whether a
public employee has a clearly established right to ‘alleg[e]
misconduct or wrongdoing by public officials’” as “[t]hat
description of the right” “is so general as to encompass not
only cases where speech alleging misconduct or wrongdoing is
protected, but also those where it is not[.]”)(citing DeRitis v.
Roger, 165 F. Supp. 3d 231, 245 (E.D.Pa. 2016); other citations
omitted).
72
individual defendant, Franks, was entitled to qualified immunity
because, “at the time he fired Lane,” “Eleventh Circuit
precedent did not preclude Franks from reasonably holding” the
belief “that a government employer could fire an employee on
account of testimony the employee gave, under oath and outside
the scope of his ordinary job responsibilities” and “no decision
of this Court was sufficiently clear to case doubt on the
controlling Eleventh Circuit precedent.” Lane, 134 S. Ct. at
2381. The Court stated that, at “best, Lane can demonstrate only
a discrepancy in Eleventh Circuit precedent, which is
insufficient to defeat the defense of qualified immunity.” Id.
at 2383.
Shortly after Lane was decided, on November 21, 2014, the
Third Circuit issued its opinion in Dougherty, 772 F.3d at 98294. In that case, the plaintiff disclosed alleged misconduct
relating to information he learned in the course of his
employment as the “Deputy Chief Business Officer for Operations
and Acting Chief of Operations for the Office of the Deputy
Superintendent” to a local newspaper, and subsequently
complained to the FBI, “several state representatives,” and “the
Office of Inspector General for the U.S. Department of
Education.” 772 F.3d at 982-83.
The District Court, “[v]iewing the facts in the light most
favorable to Dougherty,” found his allegations “sufficient to
73
establish a First Amendment retaliation claim[,]” finding “no
evidence ‘suggesting [Dougherty’s speech] fell within the scope
of his duties to recognize the alleged misconduct as such and
report it” and concluding that his speech was citizen speech
under Garcetti. Id. at 985. The District Court also rejected a
qualified immunity defense, finding that the right was “clearly
established” and “that a reasonable governmental official would
have been on notice that retaliating against Dougherty’s speech
was unlawful.” Id.
The Third Circuit looked to Garcetti and Lane to determine,
first, whether Dougherty’s speech was protected under the First
Amendment, and second, whether qualified immunity served as a
defense. Id. at 987-89, 993-94. The Third Circuit found a
constitutional violation, and then turned to the qualified
immunity inquiry. Id. The court stated that, when “[v]iewing the
facts the District Court identified in the light most favorable
to Dougherty,” “the illegality of the Appellants’ actions was
sufficiently clear in the situation they confronted[.]” Citing
Connick, 461 U.S. at 142, and Rankin, 483 U.S. at 383, the court
held that since at least 1967, “it has been settled that a State
cannot condition public employment on a basis that infringes the
employee’s constitutionally protected interest in freedom of
expression.” Dougherty, 772 F.3d at 993 (quotation omitted). The
court continued: “Dougherty’s particular type of speech--made as
74
a concerned citizen, purporting to expose the malfeasance of a
government official with whom he has no close working
relationship18--is exactly the type of speech deserving
protection under the Pickering and Garcetti rules of decision
and our subsequent case law.” Id. (also citing O’Donnell v.
Yanchulis, 875 F.2d 1059, 1060, 1061-63 (3d Cir. 1989); Watters
v. City of Phila., 55 F.3d 886, 897-98 (3d Cir. 1995);
Baldassare v. New Jersey, 250 F.3d 188, 199-200 (3d Cir. 2001)).
Alternatively, the defendants in Dougherty “contend[ed]
that their actions were so close to the constitutional line that
it was eminently reasonable for them to conclude they had failed
to cross it”; however, the court found “this contention
unpersuasive.” Dougherty, 772 F.3d at 993-94. Although “both
Garcetti and Pickering are fact-dependent inquiries, giving some
leeway for termination based on disruptive speech if made
pursuant to an employee’s job duties, we cannot conduct our
analysis with Appellants’ desired version of the facts. . . .
Given the citizen-like nature of Dougherty’s disclosure to The
Philadelphia Inquirer, the lack of close working relationships”
with two individual defendants whose alleged misconduct
18
The alleged facts that the speech purported to expose the
malfeasance of a government official with whom Dougherty had no
close working relationship were important factors in the Court’s
finding that Dougherty passed the Pickering balancing-test
analysis. 772 F.3d at 990-93.
75
Dougherty was reporting,19 “and the disputed issue of fact with
regard to the cause of the disruption,”20 “it is sufficiently
clear that Dougherty’s speech was protected under the First
Amendment. ‘When the balance of cognizable interests weighs so
heavily in an employee’s favor, our cases make plain that the
law is clearly established.’ McGreevy, 413 F.3d at 367. We
conclude, therefore, that Appellants are not entitled to
qualified immunity.” Id. at 993-94.
Subsequently, in Flora (which was decided on January 15,
2015), the Third Circuit did not directly conduct a qualified
immunity analysis due to the posture of the case. 776 F.3d at
179 n.11. On the merits question, however, the Third Circuit
held that “the District Court did not apply the correct test”
for distinguishing citizen speech from employee speech “under
Garcetti, as Lane has made clear. Lane, 134 S. Ct. at 2379[.] .
. . [T]he District Court did not have the benefit of Lane and
Dougherty when it ruled . . . With the further light that Lane
and Dougherty provide, the proper framing of the question is
whether the filing of [Flora’s law]suit and [Flora’s other]
reporting . . . were within Flora’s ordinary job duties as the
Chief Public Defender, not whether they concerned or were
19
As was relevant to the Pickering balancing test the Third
Circuit applied.
20 Also relevant to the Pickering balancing test.
76
related to those duties.” Flora, 776 F.3d at 178-79. The Third
Circuit expressly did “not decide whether Lane modified or
merely clarified Garcetti.” Id. at 179. As the court noted,
“Lane introduced the word ‘ordinary’ to modify ‘job duties’ in
the First Amendment retaliation test[,]” but the court did not
decide “whether this new adjective signals a shift in the law
that broadens the scope of First Amendment protection for public
employees” or “merely clarified the Garcetti holding”; the court
had similarly not decided the question of whether Lane modified
Garcetti or not in Dougherty, 772 F.3d at 990-91, and again
declined to do so, simply applying Lane directly to Flora’s
actions to determine whether his speech was pursuant to his
ordinary job duties. Flora, 776 F.3d at 179 n.11.
Here, Defendants argue that the individual Defendants are
entitled to qualified immunity because “the right to advocate
for twelve-hour shifts was not ‘clearly established.’” [Docket
Item 32 at 32-33.] See also Def. Reply, Docket Item 39 at 13
(“There was no clearly established constitutional right to
speech and activity in support of twelve-hour shifts which would
have put Defendants on notice that their alleged conduct was
unlawful.”) Defendants further argue that, at the very least,
the position of the individual defendants that their alleged
retaliation was not unlawful was objectively reasonable because
“established law holds that an employee’s speech is not
77
protected if he speaks pursuant to his job responsibilities or
based on knowledge or experience gained while in the job[.]” Id.
at 14.
However, as discussed supra, the Court does not agree that
“established law holds that an employee’s speech is not
protected if he speaks . . . based on knowledge or experience
gained while in the job.” Lane, Dougherty, and Flora expressly
disclaim this as the operative standard under Garcetti. Instead,
those three cases make clear that the question is, instead,
whether the employee spoke “pursuant to his job
responsibilities,” i.e., whether his speech was in the scope of
his ordinary job responsibilities. See Lane, 134 S. Ct. at 2379;
Dougherty, 773 F.3d at 990; Flora, 776 F. 3d at 179. This was
established Supreme Court (and Third Circuit) precedent by, at
the latest, January of 2015. Plaintiff was not terminated until
the summer of 2015. Moreover, it would be unduly narrow to frame
the answer to the question of which right needed to have been
“clearly established” as “the right to advocate for a twelvehour shift”; this is undoubtedly too narrow a framing. Cf.
Reichle v. Howards, 566 U.S. 658, 665 (2012)(“Here, the right in
question is not the general right to be free from retaliation
for one’s speech, but the more specific right to be free from a
retaliatory arrest that is otherwise supported by probable
cause”).
78
Instead, the Court is persuaded that the most apt framing
of the question is whether the right to speak about a matter
related to, but outside the scope of, one’s ordinary
professional duties on a matter of public concern, free from
retaliation, was clearly established when Defendants allegedly
retaliated against Plaintiff. The Court is persuaded that,
pursuant to Third Circuit precedent (Dougherty and Flora) that
clearly explained how Lane clarified (or modified) Garcetti,
that the answer is yes.21
21
See also Jerri, 625 F. App’x at 581 (“[I]t would be
inappropriate to affirm on the basis of qualified immunity”
because as “Garcetti and our precedential opinions make clear, a
person who speaks outside his job duties speaks as a citizen”);
Hunter v. Town of Mocksville, 789 F.3d 389, 397 (4th Cir.
2015)(recognizing Lane as having “admonished lower courts for
‘reading Garcetti’ and its employee speech implications ‘far too
broadly’” and reiterating that “the critical question is whether
the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those
duties”)(internal quotation omitted); Mpoy, 758 F.3d at 294
(recognizing Lane as “holding that an employee’s speech is
unprotected only when it is within the scope of the employee’s
‘ordinary job responsibilities’ or ‘ordinary job duties[]’”);
Hurst v. Lee Cty., 764 F.3d 480, 485 (5th Cir. 2014)(plaintiff’s
statements were “ordinarily within the scope of [his] duties and
did not merely concern those duties” and were unprotected
pursuant to Lane); Olendzki v. Rossi, 765 F.3d 742, 747 (7th
Cir. 2014)(“Our circuit has consistently held that when a public
employee speaks in his capacity as a union official, his speech
is not within the purview of his ‘official duties’”); Cutler v.
Stephen F. Austin State Univ., 767 F.3d 462, 472 (5th Cir.
2014)(denying qualified immunity where “[s]everal pre-2010
decisions have . . . given the Defendants the ‘fair warning’
they need. This circuit began the task of embroidering
Garcetti’s general rule with new fact patterns in 2007”);
Matthews v. City of New York, 779 F.3d 167, 173 (2d Cir.
2015)(Pursuant to Garcetti and Weintraub, 593 F.3d at 203-04,
79
While the Pickering balancing test has been held in other
cases to affect the qualified-immunity analysis in analogous
contexts,22 the particular dimensions of the Pickering balancing
test that have weighed in favor of (at least) a finding of
qualified immunity are not present here, as the Court’s
relatively simple application of the Pickering balancing test in
Foster I illustrates. Foster, 2017 WL 2780745, at *12.
Accordingly, the Court finds Plaintiff’s Amended Complaint
alleges facts suggesting that Defendants, when they allegedly
retaliated against him, violated his clearly-established First
Amendment rights to speak as a citizen on matters related to his
employment that were nevertheless outside the scope of his
duties as a police officer, pursuant to Garcetti, and that his
speech (as currently described in the Amended Complaint) was on
a matter of public concern (i.e., public safety and municipal
budget), a term that has been defined broadly and whose broad
holding that “when a public employee whose duties do not involve
formulating, implementing, or providing feedback on a policy
that implicates a matter of public concern engages in speech
concerning that policy, and does so in a manner in which
ordinary citizens would be expected to engage, he or she speaks
as a citizen, not as a public employee”).
22 See Bifano v. Borough, No. 3:16-0245, 2016 WL 7404610, at *11*12 (M.D.Pa. Dec. 22, 2016)(qualified immunity appropriate
because of “the unique and unclear Pickering balancing that
occurs in the law enforcement context as applied to the facts
alleged in the plaintiffs’ complaint” where “many cases suggest
that the Pickering analysis favors the government’s interest in
speech cases involving police departments”)(citations omitted).
80
definition was well-settled before Defendants embarked on their
alleged course of conduct against Plaintiff. See Lane, 134 S.
Ct. at 2380 (“Speech involves matters of public concern when it
can be fairly considered as relating to any matter of political,
social, or other concern to the community, or when it is a
subject of legitimate news interest; that is a subject of
general interest and of value and concern to the
public.”)(citations omitted). The Amended Complaint adequately
alleges that Plaintiff was advocating for the twelve hour shift,
specifically as it would improve public safety and municipal
fiscal responsibility, in a way (or ways) that were, “beyond
debate,”23 not within the scope of his ordinary job duties as a
Pennsauken police officer, and that Defendants knew of his
advocacy and its character as going beyond his own personal
employment conditions. The Court finds that the Amended
Complaint allows for a reasonable inference that it would have
been “plainly incompetent”24 for Plaintiff’s employers to believe
that part of his “ordinary job responsibilities” were to have an
opinion (and to advocate that opinion to “all and sundry”25)
about the optimal length of shifts as they related to issues of
public safety and municipal budgeting.
23
Werkheiser v. Pocono Twp., 780 F.3d 172, 177 (3d Cir.
2015)(quoting Stanton v. Sims, 571 U.S. 3, 6 (2013)).
24 See Malley v. Briggs, 475 U.S. 335, 341 (1986).
25 See Jerri, 625 F. App’x at 581.
81
Moreover, although Defendants argue that it was not clearly
established that the content of Plaintiff’s speech was a matter
of public concern, the Court disagrees. Although the Court is
mindful of the (non-binding) cases that “generally recognize
that speech regarding working conditions and other issues in
union members’ employment are personnel matters which are not of
interest to the broader community,”26 the Court also notes the
many binding precedents that hold that speech on issues of
public safety27 and municipal budget28 are, obviously, matters of
26
Palardy v. Twp. of Millburn, No. 15-02089(SDW)(LDW), 2017 WL
2968394, at *5 (D.N.J. July 11, 2017)(citing Thomas, 626 F.
App’x at 389; Beresford, 2010 WL 445684 at *6; Garcia v. Newtown
Twp., 483 F. App’x 697, 703 (3d Cir. 2012); holding that
plaintiff did not speak on matters of public concern where he
represented union members in disciplinary matters, in “terms and
conditions of employment and in contract negotiation” and
engaged in “speech pertain[ing] to matters of employee
discipline, promotion, salaries, and work hours”).
27 See, e.g., Watters, 55 F.3d at 895 (efficacy of police
employee assistance plan is matter of public concern because it
“could have affected the delivery of police services”); Green v.
Philadelphia Housing Authority, 105 F.3d 882, 887 (3d Cir.
1997)(testifying voluntarily at a bail hearing as a character
witness is a matter of public concern where “the court depends
upon accurate testimony by those familiar with the defendant in
order to determine whether the defendant is likely to flee or
endanger the community”); see also Beyer v. Borough, 428 F.
App’x 149, 154 (3d Cir. 2011)(discussion of weapons “relate[s]
to issues about the safety of the Duncannon Borough’s Police
Force, which implicates public safety and extends beyond issues
specific to Beyer”). See also Mt. Healthy, 429 U.S. at 284
(affirming as protected by the First Amendment teacher’s
disclosure of memorandum regarding teacher dress code to radio
disc jockey).
28 See, e.g., Garcetti, 547 U.S. at 425 (“Exposing governmental
inefficiency . . . is a matter of considerable significance”);
Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 170
82
public concern. Plaintiff’s Amended Complaint alleges that he
broached his shift-length advocacy in terms of those concerns.
This is not the case, like Thomas, where the plaintiff’s
grievances “relate[] to working conditions and other issues in
union members’ employment and [plaintiff] offers nothing that
would transform those personnel matters into issues of interest
to the broader community.” 626 F App’x at 389 (emphasis added;
quotation omitted).29 Accordingly, the Court declines to dismiss
based on qualified immunity on the theory that the right to
advocate on matters concerning public safety or the municipal
budget, as matters of public concern, was not clearly
established.
(3d Cir. 2008)(speech is on a matter of public concern if it,
e.g., regards speaker’s thoughts of how “government[ was]
wasting taxpayer’s money”)(citing Czurlanis v. Albanese, 721
F.2d 98, 104 (3d Cir. 1983)(plaintiff “spoke as a concerned
citizen and taxpayer” about governmental practices “that he
considered inefficient, wasteful, and possibly fraudulent”)).
29 The Court distinguishes Killion II and Killion, 696 F. App’x
at 78-79, on these grounds. There, the District Court and the
Third Circuit panel were each assessing a complaint that did not
allege how or why shift length related to issues beyond the
plaintiffs’ own concerns about the conditions of their personal
employment. That is plainly not the case here, and as such, the
Court finds that those cases are not on point. See Foster, 2017
WL 2780745, at *11. Moreover, Defendants cannot say that they
nevertheless reasonably relied on the Killion decisions in
undertaking the allegedly retaliatory course of conduct against
Plaintiff, because those opinions were not published until after
Plaintiff was terminated in May 2015. See Mpoy, 758 F.3d at 295
(“Winder was decided approximately a year after the defendants
fired Mpoy, and hence could not itself have been the basis for
reasonable belief on the part of the defendants.”).
83
Accordingly, to the extent that Plaintiff’s Amended
Complaint alleges that he was terminated in retaliation for
speech that he undertook outside the scope of his ordinary job
responsibilities as a Pennsauken police officer, on a matter of
public concern, the individual Defendants’ qualified immunity is
certainly not apparent on the face of the Amended Complaint.
This conclusion is supported by the decisions of other district
courts in analogous cases.
In Keeton v. Bd. of Educ. of Sussex Tech. Sch. Dist., the
magistrate judge declined to recommend dismissal of a First
Amendment retaliation claim on qualified immunity grounds where
the plaintiff “clearly alleges that he spoke out to his
supervisor as a public citizen--that is, that his complaints did
not fall within the ambit of his official employment duties. At
least by the time of the Supreme Court’s 2014 decision in Lane,
the caselaw was clear that so long as a public employee’s speech
(of the kind at issue here) was not offered as part of his
ordinary job duties, it qualifies as ‘citizen speech’--even if
(as here) the employee acquired information relating to the
speech by virtue of his employment, and spoke up the ‘chain of
command’”; that the plaintiff’s speech “would have clearly
qualified as being of ‘public concern’”; and that he was fired
as a result. No. 15-1036-LPS, 2016 WL 5938699, at *12 (D. Del.
Oct. 12, 2016)(citing Flora, 776 F.3d at 179, Dougherty, 772
84
F.3d at 990). The court framed the inquiry as whether, accepting
the allegations of the complaint as true, “the Individual
Defendants’ conduct would be seen as violating” the “‘clearly
established’ right” “to be free from retaliation for exercising
one’s First Amendment rights.” Id.
In Brown v. Office of State Comptroller, the court,
accepting the plaintiff’s allegations as true, found that, even
before Lane, “the law was clearly established that an employer
could not retaliate against an employee who speaks as a citizen
on a matter of public concern. Furthermore, it was clear that an
employee who spoke outside of her official duties would be
considered to be speaking as a citizen. No reasonable employer
in [the defendant’s] shoes would have believed that she would be
permitted to take adverse action against Brown for statements
made to the Auditors that were made outside Brown’s official
duties”; because the court was required to “take as true the
allegations that Brown was not speaking pursuant to her official
duties[,]” the court denied the motion to dismiss on qualified
immunity grounds. 211 F. Supp. 3d 455, 474 (D. Conn. 2016).30
30
See also O’Donnell v. Knott, 283 F. Supp. 3d 286, 204 (E.D.Pa.
2017)(qualified immunity defense rejected without prejudice
where, when facts were “taken in the light most favorable to
Plaintiff, it is plausible that a reasonable detective should
have been aware that” threatening to arrest the plaintiff for
fraudulent impersonation for maintaining social media account
that it was plausible “no reasonable reader” would actually
attribute to target of social media account, violated account85
holder’s constitutional right, as such a social media account
was plausibly satirical and therefore protected under “clearly
established” precedent); Cope v. Brosius, No. 4:12-CV-2382, 2018
WL 2091359, at *18 (M.D.Pa. Mar. 14, 2018)(no qualified immunity
where defendant retaliated against plaintiff “for speaking out
about her own self-dealing and other improper conduct as mayor”
because “right was clearly established, as Third Circuit
precedent established that a citizen’s interest in speaking out
about alleged governmental impropriety ‘occupies the highest
rung of First Amendment protection’” and a “reasonable
government official in Brosius’ position would know that
retaliating against someone for exercising his First Amendment
rights was a violation of the law” and finding that the record
did not necessarily “support[] a finding that Brosius would have
taken the same action even had Cope not spoken out against
her”)(quoting Dougherty, 772 F.3d at 991 and Swineford v. Snyder
Cty., 15 F.3d 1258, 1273 (3d Cir. 1994); citing Larsen v. Senate
of the Commonwealth, 154 F.3d 82, 94-95 (3d Cir. 1998)). But see
Holt v. Pennsylvania, No. 10-5510, 2014 WL 4055864, at *5
(E.D.Pa. Aug. 14, 2014)(holding, as alternative ground, that
even if “Lane constituted an intervening change in law,”
qualified immunity would be appropriate because of holding in
Lane that Franks was entitled to qualified immunity “since the
First Amendment protection of a public employee’s sworn
testimony outside of the course of his ordinary job
responsibilities was not a right that was ‘clearly established
[in the Eleventh Circuit]’ at the time the testimony was made”
where conduct at issue in Holt similarly pre-dated Lane
decision; state of the law protected defendants in Holt);
Meagher v. Andover Sch. Comm., 94 F. Supp. 3d 21, 41-44 (D.
Mass. 2015)(qualified immunity appropriate where plaintiff sent
email as part of union activities and was terminated because
“reasonably competent official in McGrath’s position could have
believed that she was not violating the First Amendment by
terminating Meagher under the circumstances” where defendant
“obtained the advice of counsel” before deciding to terminate
plaintiff; and, “[m]ore importantly, at the time of the
termination in 2012, the Supreme Court had not had occasion to
clarify ‘the scope of a public employee’s employment duties and
what it means to speak pursuant to those duties’ following its
decision in Garcetti” and it “was not until 2014, when the
Supreme Court decided Lane, that the Court explained that ‘the
mere fact that a citizen’s speech concerns information acquired
by virtue of his public employment does not transform that
speech into employee--rather than citizen--speech[,]’ and that
the ‘critical question’ for purposes of the First Amendment
86
Such a holding would only be strengthened with the benefit of
Lane, Dougherty, and Flora--as Defendants had (or should have
had) at the time Plaintiff was terminated in mid-2015.
Finally, the Court disagrees that the Third Circuit’s nonprecedential opinion in Houston v. Randolph renders Defendants’
position reasonable. There, the court found that the plaintiff
was speaking as an employee because of his particular role: as
the plaintiff, the former captain and current “training officer”
of the Rapid Intervention Team (“RIT”) of the Randolph Volunteer
Fire Department (“RVFD”), stated in a letter to the chief of the
RVFD (and individual defendant), the plaintiff’s “role as ‘the
person responsible for training’ the [RIT] included the ‘duty to
correct errors and deviations in [RIT] procedures.’ Thus, [the
plaintiff’s] complaints regarding [RVFD’s] training and dispatch
protocols for its RIT were made ‘pursuant to [his] official
analysis ‘is whether the speech at issue is itself ordinarily
within the scope of an employee’s duties, not whether it merely
concerns those duties[,]’” citing Lane, 134 S. Ct. at 2379;
qualified immunity also appropriate because “both before and
after Lane” “each case must turn on [its] specific factual
context” and “the contours of the [First Amendment] right were
still cloudy” and because outcome of Pickering balancing test
“was not so clear as to put all reasonable officials on notice
that firing” Meagher “would violate” the First Amendment, under
First Circuit precedent). Cf. Holt v. Pennsylvania, 683 F. App’x
151, 159 (3d Cir. 2017)(qualified immunity granted where Third
Circuit “has not considered” and “sister circuits are split on
the issue” of “whether the initiation of an internal
investigation can constitute an ‘adverse action’ for purposes of
a First Amendment retaliation claim”).
87
duties’ and receive no First Amendment protection.” 559 F. App’x
at 142. It would not be reasonable to extend that holding, on
that opinion alone, to a situation where the employee did not
describe his own role as including the duty to correct errors
and deviations in the procedures about which he now complained.
The comparison is not persuasive.
The Court similarly finds that the right to freely
associate with a union, certainly with regard to “speak[ing] on
matters of public concern,” see Rossiter v. City of Phila., 674
F. App’x 192, 197-98 (3d Cir. 2016)(citing Connick, 461 U.S. at
154 (1983))31, was clearly established, and will decline to grant
the motion to dismiss as to that claim on qualified immunity
grounds. See also Labov, 809 F.2d at 222-23 (“Plainly efforts of
public employees to associate together for the purpose of
collective bargaining involve associational interests which the
first amendment protects from hostile state action.”).
Accordingly, the Court finds that the individual
Defendants’ qualified immunity is not apparent from the face of
the Amended Complaint. Their motion to dismiss on those grounds
will therefore be denied at this time.
31
The Court notes again that the Third Circuit has not
definitively held that the “public concern” requirement also
applies to a free-association retaliation claim. See Sanguigni,
968 F.2d at 400.
88
D. Monell Liability
Defendants argue that the § 1983 claims against the
municipality in the Amended Complaint must be dismissed because
Plaintiff does not plead that he was retaliated against, in
violation of his First Amendment rights, “pursuant to a
municipal policy or custom.” [Docket Item 32 at 40, citing Fagan
v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994).] See Monell,
436 U.S. at 690-91. Defendants argue that Plaintiff “fails in
the Amended Complaint to identify any Township policies, much
less how the violation of those policies caused a civil rights
violation.” [Docket Item 32 at 41.]
In response, Plaintiff argues that he is relieved of the
burden of alleging an “official written policy of retaliating
against officers who exercise their First Amendment [r]ights”
because “Plaintiff was retaliated against by a municipal
policymaker, specifically, the Chief of Police.” [Docket Item 36
at 27.] In support, Plaintiff states that “[f]ederal courts have
consistently held that Chiefs of Police in New Jersey are
official policymakers whose conduct binds the municipality they
serve.” Id. at 27-28 (citing Hernandez v. Borough of Palisades
Park Pol. Dep’t, 58 F. App’x 909, 913 (3d Cir. 2003).
In order for a municipality to be liable for a
constitutional tort committed by its employees, it is not
sufficient for a plaintiff to rely on the doctrine of respondeat
89
superior. See Natale v. Camden Cty. Corr. Fac., 318 F.3d 575,
583 (3d Cir. 2003)(citing Monell, 436 U.S. at 691). Instead, the
plaintiff must allege that there was a relevant municipal
“policy or custom, and that the policy caused the constitutional
violation they allege.” Natale, 318 F.3d at 584 (citing Bd. of
Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)).
“A government policy or custom can be established in two ways.
Policy is made when a ‘decisionmaker possess[ing] final
authority to establish municipal policy with respect to the
action’ issues an official proclamation, policy, or edict.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). A
course of conduct is considered to be a ‘custom’ when, though
not authorized by law, ‘such practices of state officials [are]
so permanent and well settled’ as to virtually constitute law.
Monell, 436 U.S. at 690[.] . . . In either of these cases, it is
incumbent upon a plaintiff to show that a policymaker is
responsible either for the policy or, through acquiescence, for
the custom.” Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d
Cir. 1990), superseded by statute on other grounds. In general,
“a municipality may only be liable for the torts of its
employees in one of three ways: First, the municipality will be
liable if its employee acted pursuant to a formal government
policy or a standard operating procedure long accepted within
the government entity, Jett v. Dallas Indep. Sch. Dist., 491
90
U.S. 701, 737 (1989); second, liability will attach when the
individual has policy making authority rendering his or her
behavior an act of official government policy, Pembaur v. City
of Cincinnati, 475 U.S. 469, 480-81 (1986); third, the
municipality will be liable if an official with authority has
ratified the unconstitutional actions of a subordinate,
rendering such behavior official for liability purposes, City of
St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988).” McGreevy,
413 F.3d at 367.
“[A]n official with policymaking authority can create
official policy, even by rendering a single decision.” Id. at
367-68 (citing Pembaur, 475 U.S. at 480). Whether a given
individual was a “final policymaker [is] a question of state
law.” McGreevy, 413 F.3d at 368. “In order to ascertain if an
official has final policy-making authority, and can thus bind
the municipality by his conduct, a court must determine (1)
whether, as a matter of state law, the official is responsible
for making policy in the particular area of municipal business
in question, McMillian v. Monroe Cty., 520 U.S. 781, 785 (1997)
and []Praprotnik, [485 U.S at 123], and (2) whether the
official’s authority to make policy in that area is final and
unreviewable. Praprotnik, 485 U.S. at 126; Pembaur, 475 U.S. at
483; McGreevy, 413 F.3d at 369[.]” Hill v. Kutztown, 455 F.3d at
245-46. “However, if a municipal employee’s decision is subject
91
to review, even discretionary review, it is not final and that
employee is therefore not a policymaker for purposes of imposing
municipal liability under § 1983.” Brennan v. Norton, 350 F.3d
399, 428 (3d Cir. 2003).
In Hernandez, the Third Circuit looked to “both New Jersey
statutes and the Borough’s own Police Manual” to “establish that
the Chief of Police was the relevant policymaker.” 58 F. App’x
at 913 (“See N.J.S.A. § 40A:14-118 (where position of Chief of
Police is established, this position ‘shall be the head of the
police force and . . . shall be directly responsible to the
appropriate [municipal governing] authority for the efficiency
and routine day-to-day operations thereof”); Police Manual
5:1.1-1.2, 6.1, 6.1.4 (noting that Chief of Police is highest
ranking officer, that ‘command shall be exercised by the virtue
of rank’ and that the Chief shall have ‘complete authority over
all police personnel functions and operations’ and shall ‘set[]
the administrative policies of the department’).”) See also
Estate of Bard v. City of Vineland, No. 1:17-cv-01452-NLH-AMD,
2017 WL 4697064, at *3 (D.N.J. Oct. 19, 2017)(“Under New Jersey
law, the chief of police is the relevant policymaker for a
municipal police department”)(citing Hernandez and N.J.S.A.
40A:14-118); Zampetis v. City of Atlantic City, No. 15-1231
(NLH), 2016 WL 5417195, at *2 n.1 (D.N.J. Sept. 28, 2016)(same);
Payano v. City of Camden, No. 13-2528(NLH), 2016 WL 386040, at
92
*6 (D.N.J. Feb. 1, 2016)(same); Merman v. Camden, 824 F. Supp.
2d 581, 596 n.30 (D.N.J. 2010)(“. . . a reasonable fact finder
could conclude that the Chief of Police [was the relevant
municipal decision-maker] and knew or should have known [of the
alleged constitutional violations].”)(citing Hernandez, 58 F.
App’x at 913)); Cordial v. Atlantic City, No. 1;11-cv01457(RMB/AMD), 2014 WL 2451137, at *3 (D.N.J. June 2,
2014)(chief of police is policymaker under New Jersey law,
notwithstanding statutory language providing that chief of
police is “directly responsible to the appropriate
authority”)(citations omitted); Glass, 2007 WL 1723472, at *7
(chief of police was policymaker “for purposes of transfers in
the police department, as is evidence from the Director of
Public Safety’s inability to curtail him”).
The particular area of policymaking is relevant to this
analysis: in Hill v. Kutztown, the Third Circuit distinguished
between the ability to fire and the ability to constructively
discharge, and ruled that, although the defendant-mayor did not
have policymaking authority as to the former, he did have that
authority as to the latter, and accordingly, the plaintiff
stated a claim for municipal liability where he alleged he was
constructively discharged rather than fired. 455 F.3d at 246.32
32
“Hill alleges that [Mayor] Marino constructively discharged
him. As Hill points out, as a matter of state law, no government
93
See also Mrazek v. Stafford Twp., No. 13-1091(FLW), 2017 WL
1788655, at *11 (D.N.J. May 5, 2017)(“New Jersey’s ‘Chief’s Bill
of Rights’ does not confer ‘final and unreviewable’ authority to
Chief Giberson to make policy or decisions in the particular
context of promoting officers” and distinguishing Hernandez as
finding chief of police final policymaker “for ‘personnel
functions and operations’ and in setting ‘administrative
policies of the department’”)(emphasis added); Black v.
Stephens, 662 F.2d 181, 189-91 (3d Cir. 1981)(Allentown,
Pennsylvania chief of police was final policymaker regarding
investigation of complaints, discipline of officers, and
encouragement of excessive force where chief testified that he
“was the ‘disciplinary agent’ for the police department” and
“wrote and implemented the disciplinary regulation at issue,”
and “is a member of the Mayor’s cabinet, proposes and manages
the budget and establishes policies and procedures for the
employee or body is permitted to constructively discharge an
employee by making his working environment intolerable. As we
discussed, however, Hill has alleged that the Mayor had the
power to constructively discharge him, though he (Marino) lacked
the power as Mayor to fire him outright. Moreover, Marino’s
constructive discharge of Hill was final in the sense that it
was not reviewable by any other person or any other body or
agency in the Borough. That is, there was no one ‘above’ the
Mayor who had the power to curtail his conduct or prevent him
from harassing Hill to the point where Hill had no alternative
but to leave his position. In this sense, Marino was a final
policy-maker for the purpose of constructively discharging
Hill.” Id. at 246.
94
entire police department”); Miller v. City of East Orange, 509
F. Supp. 2d 452, 458 (D.N.J. 2007)(chief of police who allegedly
intentionally lied before the grand jury was not “making
‘policy’ for the City of East Orange” by doing so because
“implicit limitation” of “policymaking authority granted to the
East Orange Police Chief” is abiding “by state and federal law”;
commission of a criminal act would be “acting outside the scope
of his policymaking authority for the City”).
Here, in response to Plaintiff’s argument that Defendant
Coffey was a municipal policymaker pursuant to Hernandez and
McGreevy for Monell purposes, Defendants submit that Hernandez
is distinguishable because “the Third Circuit found there was no
proof of any municipal custom because the policymaker had no
notice of the alleged constitutional violations. Similarly, . .
. Defendants did not have notice that Foster’s speech and
conduct . . . was a constitutionally protected activity.”
[Docket Item 39 at 16.] The Court finds that this mistakes the
holding of Hernandez, where the claim pressed did not rely on
the municipal policymaker having affirmatively committed the
tort (in Hernandez, officers robbing citizens). Here, Plaintiff
certainly adequately alleges that Defendant Coffey (the Chief of
Police) had the requisite knowledge of the activity constituting
the tort, i.e., the alleged retaliation, as it alleges that he
committed it. Hernandez does not stand for (or even discuss) the
95
proposition that the municipal policymaker must appreciate the
wrongfulness of the conduct alleged to be the tort; this
argument seems, to the Court, to repackage Defendants’ qualified
immunity argument.
Accordingly, the Court finds that the Amended Complaint
adequately alleges that the retaliatory conduct aimed at
Plaintiff occurred pursuant to the decisions and actions of the
relevant municipal policymaker, namely, Defendant Coffey as the
Chief of Police, and thereby adequately states a claim against
the Township of Pennsauken pursuant to Monell. Accordingly,
Defendants’ Motion to Dismiss the claims against the Township
will be denied at this time.
V.
CONCLUSION
For the foregoing reasons, the Court will deny Defendants’
Motion to Dismiss. This Opinion does not address whether
Plaintiff shall be collaterally estopped from asserting any or
all of his claims due to a recent, unfavorable decision of the
Appellate Division of the Superior Court of New Jersey, and a
process for addressing such issues is addressed in a separate
Letter filed today.
An appropriate Order shall issue, and the Clerk shall
reopen this case upon the docket. Defendants shall file their
96
Answer on or before fourteen (14) days from the date of entry of
this Opinion upon the docket.
August 7, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
97
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?