PALARDY v. TOWNSHIP OF MILLBURN et al

Filing 37

OPINION. Signed by Judge Susan D. Wigenton on 5/2/2016. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL J. PALARDY, JR.,

Civil Action No. 15-02089(SDW)(LDW)

Plaintiff,
v.
OPINION
TOWNSHIP OF MILLBURN, TIMOTHY P.
GORDON, and JOHN DOES 1-5,
Defendants.
May 2, 2016

WIGENTON, District Judge
Before this Court is the Motion for Judgment on the Pleadings of Defendants Township of
Millburn and Timothy P. Gordon (collectively, “Defendants”), pursuant to Federal Rule of Civil
Procedure 12(c). This Court, having considered the parties’ submissions decides this matter
without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated
below, Defendants’ Motion is GRANTED in part and DENIED in part.
I.

JURISDICTION AND VENUE
This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Venue is proper

in this District pursuant to 28 U.S.C. § 1391(b).

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II.

BACKGROUND
Plaintiff Michael J. Palardy, Jr. (“Plaintiff”) filed the operative Amended Complaint (Dkt.

No. 28) in this matter on February 22, 2016, against Defendants Township of Millburn and
Timothy P. Gordon, alleging a number of claims arising out of Plaintiff’s employment as a police
officer for the Department of Police in the Township of Millburn. (See Am. Compl. ¶ 1.)
According to Plaintiff, while employed by the Department of Police, he was an active member of
the Police Benevolent Association (“PBA”) and the Superior Officers Association (“SOA”), both
of which acted as collective bargaining representatives for individuals in the “police bargaining
unit.” (Id. ¶¶ 6-7.) In his roles with the PBA and SOA, Plaintiff represented employees “in matters
of discipline, in matters of terms and conditions of employment, and in contract negotiation with
Millburn.” (Id. ¶ 7)
According to Plaintiff, as a result of his activities with the PBA and SOA, Defendants
“labeled [Plaintiff] a thorn in their side, thwarting the unilateral desire of senior Millburn municipal
staff in the manner, method, and means (and cost) of labor service to be provided by Millburn
employees in the covered unit.” (Id. ¶¶ 8-9.) As a result, Plaintiff claims, Defendants “took
affirmative steps to derail, stymie, and thwart [P]laintiff’s career.” (Id. ¶ 10.) In addition to hiring
an expert to determine whether the captain position in the Department of Police was needed
(Plaintiff was the only captain), Defendants also denied Plaintiff credit for his last year of
employment in calculation of his retirement annuity. (Id. ¶¶ 10-12.) Specifically, Plaintiff claims
he was entitled to a retroactive wage increase which should have increased his pension entitlement.
(Id. ¶ 13.) However, Plaintiff claims, Defendants denied him this entitlement in retaliation for his
union activities. (Id. ¶ 14.)

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Plaintiff’s Amended Complaint includes eight counts: “unconstitutional interference with
the employment contract between plaintiff and defendant” (“Count One”); retaliation for
Plaintiff’s free speech and association under 42 U.S.C. § 1983, and in violation of the New Jersey
Constitution (“Count Two”); violation of the Free Speech Clause of the First Amendment (“Count
Three”); violation of the Due Process Clause of the Fifth Amendment (“Count Four”); violation
of the “Equal Protection Clause of the Fifth Amendment” (“Count Five”); violation of the Free
Speech Clause of the New Jersey Constitution (“Count Six”); violation of the “Equal Protection
Clause” of the New Jersey Constitution and the Fifth Amendment (“Count Seven”); and
conspiracy to deprive Plaintiff of his civil rights pursuant to 42 U.S.C. § 1985(3) (“Count 8”). (Id.
¶¶ 21-59.) On February 26, 2016, Defendants filed their Motion for Judgment on the Pleadings
seeking dismissal of all eight counts. (Dkt. No. 29.)
III.

LEGAL STANDARD
When a party makes a motion for judgment on the pleadings based on the defense of failure

to state a claim upon which relief can be granted, the Court “appl[ies] the same standards as under
Rule 12(b)(6).” Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir. 1991); see Caprio v.
Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 146 (3d Cir. 2013); see also Fed. R. Civ.
P. 12(h)(2)(B). Under the Rule 12(b)(6) standard, the movant bears the burden of establishing that
the complaint has failed to sufficiently state a claim. Animal Sci. Products, Inc. v. China
Minmetals Corp., 654 F.3d 462, 470 (3d Cir. 2011), as amended (Oct. 7, 2011). In addition, “[a]
court must accept all factual allegations in the complaint as true and draw all reasonable inferences
in favor of the plaintiff.” N.J. Carpenters & the Trustees Thereof v. Tishman Const. Corp. of N.J.,
760 F.3d 297, 302 (3d Cir. 2014) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008)). Furthermore, the question before the Court on such a motion is “not whether a plaintiff

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will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.”
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).
Under Federal Rule of Civil Procedure 8(a)(2), a plaintiff’s complaint need only contain
“‘a short and plain statement of the claim showing that the pleader is entitled to relief’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011) (quoting Bell Atlantic v.
Twombly, 550 U.S. 555 (2007)) (internal quotation marks omitted). Although the plaintiff is not
required to make “detailed factual allegations,” the complaint must state a claim that is “plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Twombly, 550 U.S. at 555)
(internal quotation marks omitted). In other words, “the pleaded factual content [must allow] the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 662.
In addition, a defendant may move to dismiss a complaint for lack of subject-matter
jurisdiction by challenging jurisdiction facially or factually. Constitution Party of Pennsylvania
v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial challenge to subject-matter jurisdiction
“considers a claim on its face and asserts that it is insufficient to invoke the subject-matter
jurisdiction of the court because, for example, it does not present a question of federal law.” Id. at
358. In contrast, a factual challenge “is an argument that there is no subject matter jurisdiction
because the facts of the case . . . do not support the asserted jurisdiction.” Id. Drawing this
distinction is important because it “determines how the pleading must be reviewed.” Id. at 35758 (citing In re Schering Plough Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In analyzing a
facial challenge, “the court must only consider the allegations of the complaint and documents
referenced therein and attached thereto.” Constitution Party of Pennsylvania, 757 F.3d at 348

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(citing In re Schering Plough Corp. Intron, 678 F.3d at 243). Whereas in considering a factual
challenge to subject-matter jurisdiction, the court “may look beyond the pleadings to ascertain the
facts.” Constitution Party of Pennsylvania, 757 F.3d at 348. Furthermore, in considering a factual
challenge to subject matter jurisdiction, “the plaintiff's allegations enjoy no presumption of
truthfulness, and [the plaintiff] bears the burden of establishing jurisdiction.” Meehan v. Taylor,
No. CIV. 12-4079 RBK/KMW, 2013 WL 4517943, at *2 (D.N.J. Aug. 26, 2013) (first citing CNA
v. United States, 535 F.3d 132, 139 (3d Cir. 2008); then citing Mortensen v. First Fed. Saving and
Loan Assoc., 549 F.2d 884, 891 (3d Cir. 1977)).
IV.

DISCUSSION
A. Count One
In Count One of the Amended Complaint, Plaintiff claims that Defendants’ refusal to pay

Plaintiff additional money for his time as an employee of the Millburn Department of Police
constitutes “unconstitutional interference with the employment contract between plaintiff and
defendant.” (Am. Compl. ¶ 22.) In response, Defendants’ argue that Count One should be
dismissed because Plaintiff failed to follow the grievance procedures in the applicable collective
bargaining agreement. (Defs.’ Br. Supp. Mot. J. Pleadings (“Defs.’ Br. Supp.”) 14-17.)
According to Defendants, the “employment contract” Plaintiff references in Count One is
the collective bargaining agreement (“CBA”) between the Township of Millburn, the PBA, and
the SOA. (DelGaudio Cert. Ex. 2.) In addition, Defendants point out that the “retroactive wage
increase” to which Plaintiff claims he is entitled, (See Am. Compl. ¶ 13), is outlined in the April
21, 2014 Memorandum of Agreement which supplemented the CBA. (See DelGaudio Cert. Ex.
3.) Plaintiff does not dispute either of these claims. (See generally Pl.’s Mem. L. Opp. Defs.’
Mot. (“Pl.’s Br. Opp.”).)

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Article X of the CBA governs salaries, including the salaries of police officers with the
rank of captain. (See DelGaudio Cert. Ex. 2.) Moreover, Article III of the CBA, titled “Grievance
Procedure,” outlines the “sole and exclusive method for resolving grievances between the parties”
and defines “grievances” as “any controversy arising over the interpretation or adherence to the
terms and conditions of this Agreement.” (See id.) Accordingly, it appears that a dispute as to
Plaintiff’s entitlement to wages under Article X of the CBA would be subject to the grievance
procedures in Article III. However, despite this apparent applicability of the CBA’s grievance
procedures to Plaintiff’s claim in Count One, Plaintiff does not challenge the validity of the CBA,
nor does he dispute that his claim under Count One falls within Article III’s scope. (See Pl.’s Br.
Opp.) Furthermore, Plaintiff does not claim to have followed the grievance procedures. (See id.)
Yet, “in situations involving collective bargaining agreements, it has long been the rule in New
Jersey that the aggrieved employee must exhaust the remedies provided by the agreement before
resorting to the court for redress.” Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 940, 951 (D.N.J.
1991) (first citing Jorgensen v. Pennsylvania R.R. Co., 138 A.2d 24 (N.J. 1958); then citing
Thompson v. Joseph Cory Warehouses, Inc., 521 A.2d 881 (N.J. Super. Ct. App. Div. 1987)).
Accordingly, Plaintiff has failed to establish this Court’s jurisdiction over Count One. Therefore,
Count One is dismissed. 1

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This Court also notes that insofar as Count One references constitutional protections, it does not state a
cognizable claim under the contract clauses of either the U.S. or New Jersey Constitutions. Skoutelas v.
Port Auth. of Allegheny Cty., No. 2:07CV1077, 2008 WL 1773876, at *3 (W.D. Pa. Apr. 16, 2008) (“In
order to prove a violation of the Contract Clause, a plaintiff must demonstrate that ‘a change in state law
has operated as a substantial impairment of a contractual relationship.’”) (quoting Transport Workers Union
of America, Local 290 v. Southeastern Pennsylvania Transportation Authority, 145 F.3d 619, 621 (3d Cir.
1998)); New Jersey Educ. Ass'n v. State, 989 A.2d 282, 290 (N.J. Super. Ct. App. Div. 2010) (stating that
the contract clauses in the U.S. and New Jersey Constitution “are applied coextensively and provide the
same protection.” (internal quotation marks and citation omitted)).

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B. Counts Four and Five
Count Four and Count Five of the Amended Complaint assert claims for violation of
Plaintiff’s due process and equal protection rights under the Fifth Amendment, respectively. (Am.
Compl. ¶¶ 37-45.)

However, the Fifth Amendment only limits intrusions by the federal

government and does not apply to state actions. See Santos v. Sec’y of D.H.S., 532 F. App’x 29,
33 (3d Cir. 2013) (“[T]he Fifth Amendment applies to actions of the federal government, not state
actions.”) (citing Citizens for Health v. Leavitt, 428 F.3d 167, 178 n.11 (3d Cir. 2005)); Pitt v. Pine
Valley Golf Club, 695 F. Supp. 778, 781 (D.N.J. 1988) (“The Fifth Amendment is a limitation on
the federal government and has no reference to state actions.”) (citation omitted). As Plaintiff has
not alleged any actions by the federal government, Counts Four and Five are dismissed.
C. Count Seven
In Count Seven of the Amended Complaint, Plaintiff claims Defendants violated his equal
protection rights under the New Jersey Constitution. 2 (Am. Compl. ¶¶ 50-54.) Specifically,
Plaintiff claims that Defendants subjected him to “differential treatment [which was] motivated by
vindictiveness and an illegitimate animus.” (Id. ¶ 52.) However, as discussed below, Plaintiff’s
Amended Complaint fails to state a claim for violation of his equal protection rights under the New
Jersey Constitution.
The New Jersey Constitution does not contain an equal protection clause but the New
Jersey courts have found there to be “[a] concept of equal protection . . . implicit in Art. I, par. 1
of the 1947 New Jersey Constitution . . . .” McKenney v. Byrne, 412 A.2d 1041, 1047 (N.J. 1980).
Although the right to equal protection in the New Jersey Constitution “can in some situations be

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Insofar as Count Seven of the Amended Complaint includes a claim under the Fifth Amendment, that
claim is dismissed because Plaintiff has not alleged any actions by the federal government. See Santos, 532
F. App’x at 33 (“[T]he Fifth Amendment applies to actions of the federal government, not state actions.”)
(citing Citizens for Health, 428 F.3d at 178 n.11).
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broader than the right conferred by the Equal Protection Clause,” Doe v. Poritz, 662 A.2d 367, 414
(N.J. 1995), the Superior Court of New Jersey, Appellate Division, has found that the United States
Supreme Court’s class-of-one analysis in Engquist v. Oregon Department of Agriculture, 553 U.S.
591 (2008), applies to equal protection claims under the New Jersey Constitution. See Cuozzo v.
Cimino, No. A-5431-10T1, 2012 WL 3116814, at *3 (N.J. Super. Ct. App. Div. July 20, 2012).
A class-of-one theory of equal protection is one in which an individual claims she was
subjected to infringement of her equal protection rights “not because she was a member of an
identified class . . . , but simply for ‘arbitrary, vindictive, and malicious reasons.’” Engquist, 553
U.S. at 595 (citation omitted). Although equal protection claims most often allege that a plaintiff
has “been arbitrarily classified as [a] member[] of an ‘identifiable group,’ . . . . “an equal protection
claim can in some circumstances be sustained even if the plaintiff has not alleged class-based
discrimination, but instead claims that she has been irrationally singled out as a so-called “class of
one.” Id. at 601. However, in Engquist, the Supreme Court held “that such a ‘class-of-one’ theory
of equal protection has no place in the public employment context.” Id. at 594. This is because
“[t]o treat employees differently is not to classify them in a way that raises equal protection
concerns . . . . [but r]ather, it is simply to exercise the broad discretion that typically characterizes
the employer-employee relationship.” Id. at 605.
In this instance, Plaintiff has not alleged that he was discriminated against as a member of
an identifiable group, but instead, that he has been subjected to “differential treatment . . .
motivated by vindictiveness and an illegitimate animus . . . .” (See Am. Compl. ¶ 52.) However,
Plaintiff brings this action as a public employee claiming discrimination in the context of his
employment. (See generally Am. Compl.) Therefore, Count Seven relies on the class-of-one
theory despite the fact that the theory “does not apply to public employment.” Cuozzo, No. A-

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5431-10T1, 2012 WL 3116814, at *3 (adopting the U.S. Supreme Court’s class of one analysis in
the context of an equal protection claim under the New Jersey Constitution). Accordingly Count
Seven of Plaintiff’s Amended Complaint is dismissed for failure to state a claim upon which relief
can be granted.
D. Count Eight
Plaintiff claims, in Count Eight of the Amended Complaint, that Defendants conspired to
deprive Plaintiff of his civil rights in violation of 42 U.S.C. § 1985(3). (Am. Compl. ¶¶ 55-59.)
However, to state a claim for conspiracy to deprive a person of his rights or privileges under
§ 1985(3), a Plaintiff must allege that the conspiracy was “motivated by ‘some racial, or perhaps
otherwise class-based, invidiously discriminatory animus.’” Mendez v. N.J. State Lottery Comm’n,
532 F. App’x 41, 45 (3d Cir. 2013) (quoting Farber v. City of Paterson, 440 F.3d 131, 135 (3d
Cir. 2006)) (internal quotation marks omitted). Plaintiff’s Amended Complaint does not allege
such a motivation and, therefore, fails to allege sufficient facts to state a claim under § 1985(3).
E. Counts Two, Three, and Six
In Counts Two, Three, and Six of the Amended Complaint, Plaintiff claims he was
subjected to retaliation for his union-related speech and association, in violation of the First
Amendment and the New Jersey Constitution. (Am. Compl. ¶¶ 24-36, 46-49.) In response,
Defendants argue this Court lacks jurisdiction over these claims because they are subject to the
exclusive jurisdiction of the New Jersey Public Employment Relations Commission (“PERC”).
(Defs.’ Br. Supp. 10-13.) However, Defendants have not identified, nor has this Court found, any
authority supporting Defendants’ claim that PERC has exclusive jurisdiction over free speech
claims under the First Amendment and the New Jersey Constitution. Accordingly, Defendants’
Motion is denied as to Counts Two, Three, and Six.

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Under the New Jersey Employer-Employee Relations Act (the “Act”), N.J. Stat. Ann.
(“N.J.S.A.”) §§ 34:13A-1 to -21, it is unlawful for a public employer to subject an employee to
adverse actions “because of his or her union activity.” Matter of Bridgewater Twp., 471 A.2d 1,
2 (N.J. 1984). Under the Act, the Public Employment Relations Commission is granted “exclusive
power . . . to prevent anyone from engaging in any unfair practice listed [in sections 34:13A-5.4(a)(b)].” N.J.S.A. § 34:13A-5.4. Furthermore, although “PERC can only remedy discrimination
regarding the exercise of rights guaranteed by the [Act] . . . . [PERC may consider federal
constitutional claims when] such a resolution is necessary to resolve statutory claims properly
before it.” Peterson v. City of Long Branch, N.J., No. CIVA08-3452, 2009 WL 749589, at *9
(D.N.J. Mar. 19, 2009) (citations omitted). In fact, when PERC has already ruled on a plaintiff’s
constitutional claims, or when there is a matter including such claims pending before PERC,
federal courts often abstain from hearing the claims. See, e.g., Local 194, Int'l Fed'n of Prof'l &
Tech. Engineers, AFL-CIO v. The New Jersey Tpk. Auth., No. CIV.A. 11-1653 JLL, 2011 WL
1547473, at *9 (D.N.J. Apr. 21, 2011) (dismissing a complaint based on Younger abstention where
a related action was pending before PERC). However, Defendants do not claim that there is a
related matter currently pending before PERC.

(See generally Defs.’ Br. Supp.)

Nor do

Defendants claim (despite relying exclusively on cases which were on appeal from PERC) that
PERC previously ruled on Plaintiff’s free speech claims. (Id.); see Matter of Bridgewater Twp.,
471 A.2d at 1 (on appeal from PERC); In re City of Garfield, No. A-5842-12T3, 2014 WL
6090524, at *1 (N.J. Super. Ct. App. Div. Nov. 17, 2014) (same); Matter of Hunterdon Cty. Bd. of
Chosen Freeholders, 561 A.2d 597, 599 (N.J. 1989) (same); Galloway Twp. Bd. of Educ. v.
Galloway Twp. Ass'n of Educ. Secretaries, 393 A.2d 207 (N.J. 1978) (same).

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As this matter is not on appeal from PERC, nor is there a related matter pending before
PERC, it appears Defendants argue that this Court lacks jurisdiction over Counts Two, Three, and
Six because Plaintiff failed to first bring his free speech claims before PERC. (See. Defs.’ Br.
Supp. 10-13.) However, plaintiffs need not exhaust state administrative remedies before bringing
civil rights claims pursuant to 42 U.S.C. § 1983. See James v. Richman, 547 F.3d 214, 217 (3d
Cir. 2008) (“[T]here is no general requirement that plaintiffs exhaust state administrative remedies
before bringing a § 1983 action.”) (first citing Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982);
then citing Monroe v. Pape, 365 U.S. 167, 183 (1961)). Moreover, although Defendants cite
numerous cases that were on appeal from PERC, they did not cite a single case holding that
plaintiffs must bring free speech claims under the New Jersey Constitution to PERC before seeking
relief in court. Nor has this Court, in its review, found authority to support such a proposition.
Accordingly, at this stage of the proceedings, this Court cannot determine that it is precluded from
considering Plaintiff’s free speech claims under the New Jersey Constitution. See, e.g., Clayton v.
City of Atl. City, 722 F. Supp. 2d 581, 588 n.7 (D.N.J. 2010). As a result, Defendants’ Motion is
denied as to Counts Two, Three and Six.
V.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Judgment on the Pleadings is

GRANTED in part and DENIED in part. Specifically, the Motion is granted as to Counts One,
Four, Five, Seven, and Eight. The Motion is denied as to Counts Two, Three, and Six. An
appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

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Orig:
cc:

Clerk
Magistrate Judge Leda D. Wettre
Parties

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