CHESLER et al v. CITY OF JERSEY CITY et al
Filing
133
OPINION. Signed by Judge Susan D. Wigenton on 9/29/2020. (lag, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KELLY CHESLER and JOSEPH ASCOLESE,
Case No: 15-1825 (SDW) (ESK)
Plaintiffs,
v.
OPINION
CITY OF JERSEY CITY, JAMES SHEA in his
individual and official capacities, PHILIP
ZACCHE in his individual and official
capacities, JOSEPH CONNORS in his
individual and official capacities, JOHN
PETERS in his individual and official capacities,
TERRENCE CROWLEY in his individual and
official capacities, and ROBERT SJOSWARD
in his individual and official capacities,
September 29, 2020
Defendants,
WIGENTON, District Judge.
Before this Court are Defendants James Shea (“Shea”), Philip Zacche (“Zacche”), Joseph
Connors (“Connors”), John Peters (“Peters”), Terrence Crowley (“Crowley”), Robert Sjosward
(“Sjosward,” collectively, “Individual Defendants”), and City of Jersey City’s (“Jersey City,” with
the Individual Defendants, “Defendants”) Motion to Dismiss Plaintiffs Kelly Chesler (“Chesler”)
and Joseph Ascolese’s (“Ascolese,” collectively, “Plaintiffs”) Second Amended Complaint. (D.E.
113.) Subject matter jurisdiction is proper pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. Venue
is proper pursuant to 28 U.S.C. § 1391(b). This opinion is issued without oral argument pursuant
to Rule 78. For the reasons stated below, Defendants’ motion is DENIED.
I.
BACKGROUND AND PROCEDURAL HISTORY1
Plaintiff Chesler is a police officer for the Jersey City Police Department (“JCPD”), and
Plaintiff Ascolese is a former JCPD officer. (D.E. 113 ¶¶ 6-7.) Defendant Jersey City is an
1
For the limited purposes of this Opinion, this Court assumes the facts alleged in the Complaint are true.
incorporated municipality in Hudson County, New Jersey; Shea is Jersey City’s Director of Public
Safety; Zacche was Jersey City’s Acting Chief of Police, and later Chief of Police from July 2014
to 2017; Connors was Jersey City’s Deputy Chief of Police and at times Zacche’s Chief of Staff
from October 2013 to 2018; and Crowley, Peters, and Sjosward were JCPD officers, with Sjosward
additionally part of JCPD’s Internal Affairs Unit (“IA”). (Id. ¶¶ 8-14, 35.)
In July 2013, Steven Fulop (“Fulop”) became mayor of Jersey City, and Robert “Bubba”
Cowan (“Cowan”) was named Chief of the JCPD patrol division. (Id. ¶¶ 21-22.) In the following
months, Plaintiffs developed a Special Operations unit for the JCPD (“Special Operations”), for
which Chesler was Executive Officer and Ascolese, a commander. (Id. ¶¶ 23-27, 72.)
During this time, Peters began harassing Chesler based on her gender, for example, stating
Chesler was “going down” and that he would “get her” due to her gender, asking other officers if
they had sex with Chesler, and falsely accusing her of misconduct. (Id. ¶ 28.) Plaintiffs
complained to their superiors and to IA about Peters’ conduct several times from March to July
2014, and multiple times after. (Id. ¶¶ 30, 60, 62, 75, 77, 79.)
On July 25, 2014, Zacche replaced Cowan as Chief. (Id. ¶ 78.) Days later, on July 30,
Plaintiffs met with Connors, Sjosward, Deputy Chief Joseph Delaney (“Delaney”), Cowan,
Zacche, and another IA officer, to discuss Peters’ harassment (“July Meeting”). (Id. ¶¶ 35, 80.)
During this meeting, Sjosward informed Chesler that they have not investigated because she
needed to make a complaint to the Equal Employment Opportunity Commission (“EEOC”) first,
advice which was contrary to the JCPD’s antidiscrimination policy. (Id. ¶ 36.) No one investigated
or acted against Peters after any of Plaintiffs’ complaints or this meeting. (Id. ¶¶ 32, 37.)
Around July and August 2014, Cowan criticized Fulop, and Ascolese supported these
criticisms. (Id. ¶¶ 81-82.) Ascolese was known to be a “supporter of Cowan” and so was
2
“considered to oppose Mayor Fulop.” (Id.) On September 3, 2014, Connors instructed Ascolese
not to oppose Fulop or discuss Cowan’s opposition of Fulop, or it “could be bad for you.” (Id. ¶
83.) Later that month, Zacche told Chesler that she had the “Bubba stink,” referring to her
association with Cowan and his lack of support for Fulop. (Id. ¶ 40.)
On September 14, 2014, Timothy Crowley, a former officer and Crowley’s brother, called
Chesler and Ascolese, individually, asking for a donation for the Hudson County Democratic
Organization (“HCDO”), to which both declined, stating their political neutrality. (Id. ¶¶ 39, 84.)
On October 2, 2014, IA investigated Chesler’s arrangement of a police escort for the Don
Bosco High School football team, which had been approved of, and complied with proper practice
(“Don Bosco Investigation”). (Id. ¶ 41.) On November 12 and 13, 2014, Shea effectively demoted
both Plaintiffs from their Special Operations positions. (Id. ¶¶ 46, 85.)2
Around this time, Plaintiffs received a report which stated Crowley had made racially and
sexually disparaging remarks on a 2010 police report (“2010 Crowley Report”), which they
forwarded to their superiors, including Zacche. (Id. ¶¶ 88-89.) On November 24, 2014, Ascolese
learned from JCPD Officer Anthony Ruocco (“Ruocco”) that Crowley pressured him to create
false reports suggesting Ascolese committed misconduct, which Ascolese also reported to Zacche
on December 5, 2014. (Id. ¶¶ 90, 93.) Zacche was reportedly “pissed off” that Ascolese
complained about Crowley. (Id. ¶ 94.)3 Also around this time, Connors pressured Ascolese into
resigning, stating if Ascolese did not, he would baselessly charge, discipline, or terminate
Ascolese. (Id. ¶ 97.) Ascolese retired on January 29, 2015. (Id. ¶¶ 98-99.)
On February 4, 2015, Chesler was informed that Peters stated he would do “everything I
can to destroy” Plaintiffs for reporting him, and that he had filed a complaint against her with the
2
3
On January 22, 2015, Shea further transferred Plaintiffs to less desirable positions on patrol. (Id. ¶¶ 50, 95.)
On March 16, 2015, Chesler reported Crowley to IA for further misconduct. (D.E. 113 ¶¶ 55-56.)
3
Hudson County Prosecutor’s Office (“HCPO”). (Id. ¶¶ 58-59.) This complaint accused Plaintiffs
of approving improper payments for an ongoing detail related to anticipated traffic issues resulting
from a closure of Pulaski Skyway. (Id. ¶ 101.) Peters, who originally contacted the HCPO in
December 2014, knew this would lead to an IA investigation led by Sjosward, Zacche, and Shea,
and believed that they would find wrongdoing because they “had a history of misusing IA
investigations to retaliate against officers.” (Id. ¶¶ 101-03.)4
The HCPO enlisted IA to help investigate (“Pulaski Investigation”), using Sjosward as its
primary conduit for information. (Id. ¶ 105.) In this role, Sjosward, between December 2014 and
October 2018, withheld evidence and provided misleading information to the HCPO with the
assistance and encouragement of Zacche and Shea. (Id. ¶ 106.) This included producing evidence
that Defendants “knew to be false and/or misleading,” such as documents showing that Plaintiffs
improperly signed off on pay vouchers, and a “false narrative” that Plaintiffs did not follow
procedures verifying officers were present at their posts, among other things. (Id. ¶¶ 107-11.)
Zacche additionally ordered Ruocco to give a false statement to the HCPO against Plaintiffs, when
Defendants knew he had indicated he had no knowledge of such claims. (Id. ¶¶ 112-13.)
On May 10, 2016, Sjosward testified before a Hudson County grand jury, during which he
“repeatedly provided knowingly false and/or misleading testimony” against Plaintiffs, including
failing to advise the grand jury of the falsity of Ruocco’s statement. (Id. ¶¶ 113-16.) The grand
jury returned a 107-count indictment against Plaintiffs on June 14, 2016. (Id. ¶ 117.)
The same day, Chesler was suspended without pay and, as a result of the indictment,
Ascolese’s pension payments were stopped. (Id. ¶¶ 119-20.) On July 7, 2016, Chesler was
suspended indefinitely, pending the outcome of the criminal case. (Id. ¶¶ 121-123.) Over the next
4
On February 5 and 11, 2015, Chesler made two more complaints of sexual harassment to IA. (D.E. 113 ¶¶ 60, 62.)
Subsequently, Shea instructed IA to “find dirt” on Chesler. (Id. ¶ 63.)
4
two years, Chesler was passed over for promotion three times. (Id. ¶¶ 125-27.) Plaintiffs’ trial
began on September 5, 2018, however, on October 23, 2018, prior to the end of trial, the HCPO
dismissed all criminal charges. (Id. ¶¶ 128-29.)
Plaintiffs filed this action on March 11, 2015. (D.E. 1.) On June 27, 2016, this Court
administratively terminated this action, pending the resolution of the criminal action against
Plaintiffs, and reopened the case on February 22, 2019. (D.E. 37, 41.) Plaintiffs subsequently
amended their complaint on December 4, 2019. (D.E. 73.) Plaintiffs were granted further leave
to amend, filing the operative Second Amended Complaint (“SAC”) on May 19, 2020. (D.E. 113.)
Defendants filed the instant motion to dismiss on June 2, 2020 (D.E. 116), and the parties timely
briefed the motion. (D.E. 123, 127.)
II.
LEGAL STANDARD
A defendant may move to dismiss a complaint for failing to state a claim under Rule
12(b)(6). An adequate complaint must be “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above the speculative level[.]” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted); see also Phillips v. Cty. of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).
In considering a motion to dismiss under Rule 12(b)(6), a court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Phillips, 515 F.3d at 231 (external citation omitted). However, “the tenet that a court must accept
as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
5
Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fowler v. UPMC Shadyside,
578 F.3d 203 (3d Cir. 2009). Determining whether the allegations in a complaint are “plausible”
is “a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. If the “well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct,” the complaint should be dismissed for failing to
show “that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.
III.
DISCUSSION
Defendants move to dismiss (1) Counts 1 and 2, under 42 U.S.C. § 1983 (“Section 1983”),
for First and Fourteenth Amendment violations against Jersey City and the Individual Defendants,
minus Sjosward; (2) Count 5 for violations of the New Jersey Civil Rights Act, N.J. Stat. Ann. §
10:6-2, et seq. (“NJCRA”) against all Defendants; and (3) several counts against Sjosward,
specifically (a) Count 3 for violations of the Conscientious Employee Protection Act, N.J. Stat.
Ann. § 34:19, et seq. (“CEPA”); (b) Count 7 for retaliation in violation of the New Jersey Law
Against Discrimination, N.J. Stat. Ann. § 10:5, et seq. (“NJLAD”); and (c) Count 4 for conspiracy.
A. Counts 1 and 2: 42 U.S.C. § 1983, First and Fourteenth Amendment Violations
against Jersey City and Individual Defendants
Section 1983 prohibits persons, “under color of any statute, ordinance, regulation, custom,
or usage,” to deprive another of “any rights, privileges, or immunities secured by the Constitution
and laws.” 42 U.S.C. § 1983. It does not create substantive rights, but “provides only remedies
for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneip v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “As a general matter, there is no vicarious liability
under Section 1983.” Borntrager v. Zisa, Civ, No. 09-3076, 2011 WL 1211349, at *2 (D.N.J. Mar.
29, 2011). Defendants must have “personally participated in the alleged wrong” to be liable. Id.
6
Plaintiffs bring Section 1983 claims, alleging Defendants, except Sjosward, violated their
First and Fourteenth Amendment rights under the United States Constitution. Namely, Plaintiffs
allege that Defendants retaliated against them for their political neutrality and lack of support for
Fulop, in violation of their rights of (1) freedom of association and (2) freedom of speech.
Plaintiffs further argue (3) Jersey City had policies and/or customs allowing such violations.
i. Freedom of Association
The “freedom to associate with others for the common advancement of political beliefs and
ideas is . . . protected by the First and Fourteenth Amendments.” Kusper v. Pontikes, 414 U.S. 51,
56-57 (1973). To make a prima facie case of discrimination based on political patronage, plaintiff
“must show that (1) she was employed at a public agency in a position that does not require
political affiliation, (2) she was engaged in constitutionally protected conduct, and (3) this conduct
was a substantial or motivating factor in the government’s employment decision.” Galli v. New
Jersey Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007). At issue is whether Plaintiffs
sufficiently plead the second element. (See D.E. 116-1 at 17.)
Plaintiffs assert that their political neutrality and lack of support for the HCDO or Fulop is
constitutionally protected. (See D.E. 113 ¶¶ 136-144; D.E. 123 at 24.) As alleged, both declined
to donate to the HCDO, while affirmatively stating their political neutrality. (D.E. 113 ¶¶ 39, 84.)
Additionally, they plead that Connors threatened Ascolese to “not oppose Mayor Fulop.” (Id. ¶
83.)5 These allegations lead to the reasonable inference that Plaintiffs expressed their political
Plaintiffs also allege that Defendants imputed “Cowan’s lack of support for Mayor Fulop” onto Chesler, which,
though it could be clearer, adds at least some support that Chesler expressed, or was perceived to express, a lack of
support for Fulop. (D.E. 113 ¶ 40.) See Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412, 1418 (2016) (finding
retaliation based on mistaken perception employee engaged in protected “political activity” is actionable); see also
Owens v. Sadsbury Twp., Civ. No. 07-742, 2008 WL 4441990, at *5-6 (E.D. Pa. Sept. 30, 2008) (denying defendants’
summary judgment motion on plaintiff’s claim “that he was fired for his perceived lack of political support for”
defendants because his “lack of political involvement [did] not disqualify him from protection from being fired for
failing to support [defendants’] politics”).
5
7
neutrality and lack of support for Fulop or the HCDO, both protected conduct. See Galli, 490 F.3d
at 273 (finding failure to support a political campaign or party constitutionally protected).6
Defendants also argue that Plaintiffs fail to sufficiently plead that Defendants were “aware
of [Plaintiffs’] allegiances,” challenging whether Plaintiffs plead the third element. (D.E. 116-1
at 20.) Plaintiffs’ allegations are sufficient. They allege Defendants perceived them to not support
Fulop, including through Connors’ alleged threat to Ascolese to not oppose Fulop, and that both
Plaintiffs notified Defendant Crowley’s brother, himself a former officer, when declining to donate
to the HCDO. (D.E. 113 ¶¶ 39-40, 82-84.) Viewed in the light most favorable to Plaintiffs, their
allegations give rise to an inference that Defendants knew Plaintiffs’ allegiances.7
ii. Freedom of Speech
“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.” Hill v. Borough of
Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418
(2006)). At issue is whether Plaintiffs plead the second element, a protected statement which
involved a matter of public concern.8
6
Defendants analogize this case to Goldrich v. City of Jersey City, which was before this Court. Civ. No. 15-885,
2017 WL 6209205 (D.N.J. Dec. 8, 2017). Goldrich is distinguishable. First, Goldrich was decided at summary
judgment, with the benefit of discovery. Second, this Court in Goldrich found that plaintiff’s affiliation with Cowan
himself was not a cognizable political affiliation. Id. at *4. Here, viewing the SAC in the light most favorable to
Plaintiffs, while Plaintiffs expressed support for Cowan, they also expressed their political neutrality, and their
allegations support a reasonable inference that they did not support, or previously support, Fulop. (See D.E. 113 ¶¶
40, 82.) Defendants further argue that Plaintiffs’ single acts of neutrality are insufficient to plead constitutionally
protected activity, but provide no law directly supporting this assertion at the pleading stage. (D.E. 116-1 at 18-19.)
7
Defendants do not appear to otherwise challenge this element.
8
The parties argue the first element, however, do not appear to disagree. Neither party contests (and this Court agrees)
that Plaintiffs spoke as citizens when making politically related speech, but spoke as part of their official duties (and
thus, not as citizens) when making speech related to workplace misconduct. See Falco v. Zimmer, 767 F. App’x 288,
305 (3d Cir. 2019) (noting “supporting political candidates is presumably outside the ordinary job duties of [Police]
officers”); Morris v. Philadelphia Hous. Auth., 487 F. App’x 37, 39 (3d Cir. 2012) (finding complaints “related to an
8
“An employee’s speech addresses a matter of public concern when it can be ‘fairly
considered as relating to any matter of political, social, or other concern to the community,’” as
“determined by its ‘content, form, and context.’” Holder v. City of Allentown, 987 F.2d 188, 195
(3d Cir. 1993) (quoting Connick v. Myers, 461 U.S. 138, 146-48 (1983)).9
Plaintiffs sufficiently pled speech when they allegedly stated their political neutrality and
“supported” criticisms of Fulop. (D.E. 113 ¶¶ 39-40, 82-84.) In turn, given the speech’s political
nature and the context in which it was made, Plaintiffs adequately plead it was of public concern.
Namely, Plaintiffs stated their political neutrality in order to affirmatively refuse to support a
political entity, the HCDO, while the criticisms against Fulop were in the context of his role as
mayor. (Id.)10 Giving Plaintiffs all favorable inferences, this Court finds they adequately plead
political speech of public concern.
iii. Jersey City Policy and Custom
When suing a municipality under Section 1983, a plaintiff must additionally show “(1) an
unconstitutional policy or custom (2) attributable to the municipality (3) caused an official to inflict
a constitutional injury upon the plaintiff.” Mahmoud v. City of Paterson, 611 F. App’x 95, 98 (3d
Cir. 2015) (citing Monell v. Dept. of Soc. Servs., 436 U.S. 658, 663 (1978)).
employee’s workplace duties—for example . . . misconduct by other employees—are within an employee’s official
duties”). Defendants only contest this element in that they argue Plaintiffs have not pled any political “speech” at all.
9
If it finds a public employee’s speech a matter of public concern, the court “must then determine whether the interest
of the state in promoting the efficiency of the public services it performs through its employees outweighs the interest
of the employee in commenting upon matters of public concern.” Holder, 987 F.2d at 195. This is not at issue here.
10
The support of a political candidate is “squarely within the[] parameters” of being a matter of public concern. Falco,
767 F. App’x at 305. By extension, Plaintiffs’ speech, at this stage and in this context, affirmatively declining to
support, or criticizing, a political entity is as well. While Plaintiffs, particularly Chesler, could have pled their speech
supporting criticisms of Fulop more clearly, giving Plaintiffs all favorable inferences, they sufficiently plead such
speech. Notably, the alleged perception that Plaintiffs were anti-Fulop tends to bolster their allegations. See
Heffernan, 136 S. Ct. at 1418 (finding where “employer mistakenly thought that the employee had engaged in
protected speech,” or other “political activity that the First Amendment protects,” and demoted him in retaliation, the
“employee is entitled to challenge that unlawful action” (emphasis in original)).
9
Primarily at issue is the first element. (See D.E. 116-1 at 24.) “A policy is made when a
decisionmaker possess[ing] final authority to establish municipal policy with respect to the action
issues a final proclamation, policy or edict. A custom is an act that has not been formally approved
by an appropriate decisionmaker, but that is so widespread as to have the force of law.” Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (internal citations and quotation
marks omitted, alteration in original).
Plaintiffs allege that the heads of IA, Zacche and Shea, who were also Police Chief and
Director of Public Safety, respectively, “had a history of misusing IA investigations to retaliate
against officers.” (D.E. 113 ¶¶ 9-10, 103.) Plaintiffs then detail how IA, including Zacche and
Shea, allegedly used investigations to retaliate against them, for example, by initiating the Don
Bosco Investigation, allegedly providing false information for the Pulaski Investigation, and
instructing IA to “find dirt” on Chesler. (See, e.g., D.E. 113 ¶¶ 41-44, 63, 85, 105-06.) These
allegedly led to Plaintiffs’ demotions, Chesler’s suspension, and Ascolese’s resignation. (See id.
¶¶ 46, 50, 95-99, 119-20.) At this stage, Plaintiffs’ allegations are sufficient. See Davis v. City of
Philadelphia, Civ. No. 05-4571, 2009 WL 2461777, at *4 (E.D. Pa. Aug. 11, 2009) (finding
custom pled where plaintiff “identified a specific custom of [officers and internal affairs]
retaliating against officers who speak out against the harassment of other officers”).11
B. Count 5: The New Jersey Civil Rights Act
The NJCRA gives a cause of action to “[a]ny person who has been deprived of any
substantive due process or equal protection rights, privileges or immunities secured by the
11
The Davis Court ultimately found that plaintiff failed to state a claim because he failed to connect the custom to a
policymaker with “final, unreviewable authority.” See Davis, 2009 WL 2461777 at *4 (only identifying a “captain,
lieutenant, sergeant, inspector or deputy”). Giving Plaintiffs all reasonable inferences, this is not the case here, where
Zacche and Shea, the Chief of Police and Director of Public Safety, were the alleged policymakers. (See D.E. 113 ¶¶
9-10, 103.) See also Davis, 2009 WL 2461777 at *4 (noting the Police Commissioner could be such policymaker).
10
Constitution or laws of the United States, or any substantive rights, privileges or immunities
secured by the Constitution or laws of this State.” N.J. Stat. Ann. § 10:6-2. New Jersey courts
have interpreted the NJCRA analogously to Section 1983. See Trafton v. City of Woodbury, 799
F.Supp.2d 417, 443 (D.N.J. 2011). Thus, for the same reasons Plaintiffs’ Section 1983 claims
survive, their NJCRA claims survive.
C. Counts 3, 4 and 7 Against Sjosward
Defendants move to dismiss the following claims against Sjosward, only: (1) Count 3, for
violations of CEPA; (2) Count 7, for violations of NJLAD; and (3) Count 4, for conspiracy.
i. Count 3: Retaliation Under CEPA
“To establish a CEPA violation, a plaintiff must prove that: (1) she reasonably believed her
employer was violating a law or rule; (2) she performed a protected whistleblowing activity; (3)
an adverse employment action was taken against her; and (4) there is a causal connection between
the whistleblowing activity and the adverse action.” Fraternal Order of Police, Lodge 1 v. City of
Camden, 842 F.3d 231, 240 (3d Cir. 2016).12 CEPA is to “be construed liberally in employees’
favor.” Id. Plaintiffs assert that Defendants violated CEPA by retaliating against them for making
complaints of sexual harassment and for reporting Crowley’s alleged misconduct. Defendants
argue Plaintiffs have not plausibly alleged the third and fourth elements as to Sjosward.
1. Adverse Employment Action
Under CEPA, retaliation is the “discharge, suspension or demotion of an employee, or
other adverse employment action taken against an employee in the terms and conditions of
employment.” N.J. Stat. Ann. § 34:19-2(e). Other adverse employment actions may include
CEPA, in relevant part, states that “[a]n employer shall not take any retaliatory action against an employee because
the employee . . . [d]iscloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice
of the employer . . . that the employee reasonably believes . . . is in violation of a law.” N.J. Stat. Ann. § 34:19-3(a).
12
11
altering “salaries, hours, and fringe benefits; physical arrangements and facilities; and promotional
procedures.” Beasley v. Passaic Cty., 873 A.2d 673, 685-86 (N.J. App. Div. 2005) (internal
citations omitted).
Primarily at issue is whether, as alleged, Sjosward violated CEPA through his role in the
Pulaski Investigation. Defendants argue that he did not because investigations, “if conducted
properly,” are “not normally considered retaliation.” Id. at 684-85. A “strong showing” that an
investigation was illegitimate, however, may allow “an affirmative CEPA claim.” Id. at 685.
Plaintiffs plausibly allege that the Pulaski Investigation, as conducted by Sjosward, was an
adverse employment action. Initially, Plaintiffs plead that Sjosward was significantly involved,
acting as the “primary conduit” between IA and the HCPO. (D.E. 113 ¶ 105; see also id. ¶¶ 10203.) They further detail how, from December 2014 to October 2018, Sjosward allegedly provided
the HCPO false or manipulated documents, withheld evidence, and provided false testimony to
the ensuing grand jury. (See id. ¶¶ 106-16.) Viewed in the light most favorable to Plaintiffs, their
allegations lead to a reasonable inference that Sjosward facilitated an illegitimate investigation that
amounted to an adverse employment action.13
2. Causation
Causation in CEPA claims is determined: “(1) by draw[ing] an inference from all of the
circumstances relating to the decision, (2) by evaluat[ing] the response of the employee’s
supervisor to the complaint, including looking at whether the employer ratified or ignored the
complaint, and (3) by looking for an indirect causal link such as a supervisor who might have
sufficiently tainted the views of the actual decision maker to support relief.” Peters v. Silverton
Volunteer Fire Co. No. 1, Civ. No. 3498-14T1, 2016 WL 6518595, at *4 (N.J. Super. Ct. App.
13
The Pulaski Investigation led to clearly adverse employment consequences for Plaintiffs, including indictment,
suspension without pay, suspension of pension benefits, and denials of promotion. (D.E. 113 ¶¶ 119-20, 122-27.)
12
Div. Nov. 3, 2016) (quotation marks omitted). Additionally, while plaintiffs often point to close
“temporal proximity” or “timing and ongoing antagonism” as the basis for a causal link between
protected activity and alleged retaliatory action, they may also “substantiate a causal connection
for purposes of the prima facie case through other types of circumstantial evidence.” Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 280-81 (3d Cir. 2000).
Plaintiffs plausibly plead a causal connection between Sjosward’s alleged retaliation and
their complaints against Peters and Crowley. Plaintiffs allege they began complaining to IA of
Peters’ harassment in March 2014, leading to the July Meeting, which Sjosward attended. (See,
e.g., D.E. 113 ¶¶ 30-31, 36, 60, 62, 75, 77.) Sjosward’s allegedly retaliatory conduct began in
December 2014, when he purportedly began feeding the HCPO false or misleading information
for the Pulaski Investigation. (See id. ¶¶ 101-102, 105-11, 113-16.) Thus, Sjosward’s conduct
began around five months after the July Meeting.14
Notably, Defendants never investigated or acted on Plaintiffs’ complaints, which Plaintiffs
continued to make after the July Meeting. (Id. ¶¶ 32, 37, 49, 60-62, 88-89.) Additionally, at the
July Meeting, Sjosward allegedly said IA was not investigating because Chesler needed to first
“make an EEOC complaint,” but this advice was contrary to JCPD’s anti-discrimination policy.
(Id. ¶ 36.) Taken as true and in the light most favorable to Plaintiffs, Defendants’ non-action and
Sjosward’s misdirection support Plaintiffs’ causation theory. See Battaglia v. United Parcel Serv.,
Inc., 70 A.3d 602, 626 (N.J. 2013) (finding “where the response to an allegation of [unlawful]
behavior was to . . . ignore the complaint rather than to undertake an investigation, the jury could
infer that the employer was complicit”).
The timeframe between Plaintiffs’ reports against Crowley and the start of Sjosward’s alleged retaliation is even
shorter, with Plaintiffs first reporting Crowley around November or December 2014. (D.E. 113 ¶¶ 46-49, 87-90.)
14
13
Giving Plaintiffs all favorable inferences, they sufficiently plead a causal connection, and
“should be afforded the opportunity to develop proof of causation through discovery.” See Conard
v. Pennsylvania State Police, 902 F.3d 178, 183 (3d Cir. 2018).
ii. Count 7: Retaliation Under NJLAD
To establish retaliation under the NJLAD, Plaintiffs must show: (1) that she engaged in
“protected employee activity; (2) adverse action by the employer either after or contemporaneous
with the employee’s protected activity; and (3) a causal connection between the employee’s
protected activity and the employer’s adverse action.” Tinio v. Saint Joseph Reg’l Med. Ctr., 645
F. App’x 173, 176 (3d Cir. 2016) (internal quotation marks omitted). The parties agree the
standards for Plaintiffs’ NJLAD and CEPA claims are substantively similar. (See D.E. 116-1 at
34; D.E. 123 at 34 n. 7.) See also Abbamont v. Piscataway Twp. Bd. of Educ., 650 A.2d 958, 964
(1994). For the same reasons Plaintiffs’ CEPA claims survive, their NJLAD claims survive.
iii. Count 4: Conspiracy
Conspiracy under New Jersey law is “a combination of two or more persons acting in
concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal
element of which is an agreement between the parties to inflict a wrong against or injury upon
another, and an overt act that results in damage.” Banco Popular N. Am. v. Gandi, 876 A.2d 253,
263 (N.J. 2005) (internal citations and quotation marks omitted).
Plaintiffs sufficiently plead conspiracy against Sjosward. Plaintiffs plead that, when
allegedly retaliating, Sjosward acted “with the assistance and encouragement of Zacche and Shea,”
who were also involved with IA. (D.E. 113 ¶ 106; see also id. ¶¶ 102-03, 107-09.) Defendants
primarily contend that there was no conspiracy because the Pulaski Investigation was proper (see
14
D.E. 116-1 at 35) however, as discussed above, at this stage, Plaintiffs have sufficiently pled that
the investigation was not proper.15
IV.
CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is DENIED.
An
appropriate Order follows.
s/ Susan D. Wigenton_______
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
Orig:
cc:
Clerk
Edward S. Kiel, U.S.M.J.
Parties
15
Defendants also argue in their reply that Plaintiffs fail to plead an agreement between Sjosward and the other
Defendants. (D.E. 127 at 11-12.) This Court finds agreement may reasonably be inferred from Plaintiffs’ allegations
that Sjosward acted with Zacche and Shea’s “assistance” while they were working together at IA to “falsely implicate
Plaintiffs by providing false documents.” (D.E. 113 ¶¶ 106-116.) See also Shan Indus., LLC v. Tyco Int’l (US), Inc.,
Civ. No. 04-1018, 2005 WL 8156842, at *10 (D.N.J. Sept. 12, 2005) (noting “the question of whether an agreement
exists should not be taken from the jury in a civil conspiracy case so long as there is a possibility that the jury can
infer [agreement] from the circumstances” (internal citations and quotation marks omitted)).
15
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