FISCELLA v. TOWNSHIP OF BELLEVILLE et al
OPINION fld. Signed by Judge Katharine S. Hayden on 12/1/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VINCENT FISCELLA, JR.,
Civil No.: 2:16-cv-760 (KSH) (CLW)
TOWNSHIP OF BELLEVILLE, WILLIAM
GILBERT, KEVIN ESPOSITO, GIUSEPPE
COFONE, GARY NOBILE, JOHN DOE(S) 1–10
(fictitious individuals presently unknown); and
ABC CORP(S) 1–10 (fictitious corporations
Katharine S. Hayden, U.S.D.J.
Plaintiff Vincent Fiscella alleges federal and state constitutional violations under 42
U.S.C. Section 1983 and Article I Paragraph 6 of the New Jersey Constitution and seeks
statutory remedies under the New Jersey Conscientious Employee Protection Act (“CEPA”),
N.J.S.A. 34:19-1 et seq. Defendants Township of Belleville, William Gilbert, Kevin Esposito,
Giuseppe Cofone, and Gary Nobile have moved to dismiss the complaint (D.E. 2), pursuant to
Federal Rule of Civil Procedure 12(b)(6).
For purposes of this motion, the Court accepts all allegations in the complaint as true.
See Fed. R. Civ. P. 12(b)(6).
Belleville hired Fiscella as a laborer at the Department of Public Works (“DPW”) on
October 3, 2013. (Compl. ¶ 8.) Over the course of his employment at DPW, Fiscella reported
various maintenance issues to his supervisors regarding Belleville’s garbage pick-up vehicles,
specifying issues such as improperly functioning gear shifts, horns, breaks, lights, signals, four
way flashers, pigtails, 1 windows, handles, and overall interior cleanliness. (Compl. ¶¶ 19–22.)
Fiscella also reported “the deplorable conditions of certain work areas[,]” including “unkempt
and filthy” bathrooms. (Compl. ¶¶ 25–26.)
At some point, other Belleville employees learned that Fiscella was not supporting the
reelection of Belleville Mayor Raymond Kimble. (Compl. ¶ 12). Although the exact timeline of
events is unclear, in the months leading up to the May 2014 mayoral election, Fiscella claims he
was alienated and harassed as a result of his political affiliation and “whistleblowing”
complaints. Specifically, he was: (1) forced to work the most undesirable jobs alone; (2) sent out
on “emergency jobs” while other DPW employees held campaign strategy meetings for Mayor
Kimble’s reelection; (3) prohibited from using certain bathrooms; (4) forced (along with one
other employee) to move his locker outside of the building next to a dumpster; and (5) subjected
to “random” drug tests more frequently than other DPW employees. (Compl. ¶¶ 13–18, 28–36.)
On May 5, 2014, Fiscella injured his back on the job, and was taken to a nearby hospital
for immediate treatment. He was told not to return to work until he had further medical followup. (Compl. ¶¶ 37–39.) After two follow-up appointments—one on May 7 and one on May
12—Fiscella was cleared to return to work with physical restrictions. 2 (Compl. ¶¶ 40–43.)
Belleville attempted to find light duty work for him, but he was reluctant to return to work.
(Compl. ¶¶ 44, 47.) Accordingly, on May 12, 2014, Gilbert, the DPW Superintendent, approved
Pigtails are the coiled up portion of wire that connects the power from the front of a truck to the trailer.
See Fiscella’s Opp. Br. (D.E. 4), at p. 7, n.1.
Fiscella was told that he could not stand for greater than fifteen (15) minutes or push, pull or pickup
anything over fifteen (15) pounds. (Compl. ¶ 43).
Fiscella’s use of sick time beginning May 13, 2014 up to and including Friday May 16, 2014.
(Compl. ¶ 46.)
The first day of Fiscella’s approved sick time, May 13, 2014, was Election Day in
Belleville. Fiscella voted at the Belleville Senior Building, where Cofone, a DPW laborer, was
using vacation time to volunteer on behalf of Mayor Kimble’s campaign. (Compl. ¶¶ 49–51.)
Cofone told Esposito, the Interim Township Manager, that he saw Fiscella at the Senior
Building. (Compl. ¶¶ 52–53.) After he voted, Fiscella brought lunch to his wife at another
polling site, the Little League Field House, where Nobile, another DPW laborer, was using his
vacation time to volunteer on behalf of Kimble’s campaign. (Compl. ¶¶ 55–56.) Nobile told
Fiscella’s superiors about seeing Fiscella there. (Compl. ¶¶ 57–58.) Based upon these reported
sightings, Esposito and Gilbert drove to Fiscella’s house and, “[i]n an effort to harass and cause
[him] anxiety, . . . telephoned [him] from [his] own front door to interrogate [him] as to why he
was not home.” (Compl. ¶¶ 59–60.)
When Fiscella came back to work on Monday, May 19, 2014, Gilbert served him with a
preliminary notice of disciplinary action (“PDNA”) that immediately suspended him without pay
and ultimately sought his termination. (Compl. ¶ 67.) Later that morning, Fiscella missed a
scheduled follow-up appointment with his worker’s compensation doctor “because he was upset
after receiving the PDNA.” (Compl. ¶¶ 70–72.) The next day, Belleville approved his request to
convert his sick leave of May 13–16 to vacation time, which Fiscella made after receiving the
first PDNA “in an effort to resolve the pending dispute and get back to work.” (Compl. ¶¶ 73–
74.) Shortly afterwards, Belleville issued another PDNA based on Fiscella’s failure to show up
for the May 19 doctor’s appointment. (Compl. ¶ 75–78.)
After months of administrative activity, Belleville held a hearing on both PDNAs on
October 31, 2014. (Compl. ¶¶ 79–89.) Ultimately, on January 29, 2015, Belleville issued a
Final Notice of Discipline under which Fiscella was fired. (Compl. ¶93.)
Fiscella filed the instant action on January 22, 2016 alleging violations of his
constitutional rights under 42 U.S.C. Section 1983 and Article I Paragraph 6 of the New Jersey
Constitution; and invoking remedies under the New Jersey Conscientious Employee Protection
Act, N.J.S.A. 34:19-1 et seq. (D.E. 1). In lieu of answer, Belleville and the named individual
defendants jointly filed this motion to dismiss the complaint for failure to state a claim pursuant
to Federal Rule of Civil Procedure 12(b)(6) (D.E. 2). Fiscella opposed (D.E. 4) and defendants
filed a reply (D.E. 5).
The Court makes its decision on the papers.
Under Rule 12(b)(6), a complaint must allege “sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While “detailed
pleading is not generally required[,]” see Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d
Cir. 2016), “the pleadings’ factual content must independently permit the court to infer more
than the mere possibility of misconduct.” Giurguis v. Movers Specialty Svcs., 346 Fed. Appx.
774, 776 (3d Cir. 2009). “Where a complaint pleads facts that are merely consistent with a
defendant’s liability it stops short of the line between possibility and plausibility.” Ashcroft v.
Iqbal, 556 U.S. 662, 668 (2009). In making this determination, the Court “must accept all
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.”
New Jersey Carpenters & Trs. Thereof v. Tishman Constr. Corp. of N.J., 760 F.3d 297, 302 (3d
A. Federal Claim (42 U.S.C. § 1983)
To state a claim under 42 U.S.C. § 1983, a plaintiff “must show that defendant, under the
color of state law, deprived them of a federal constitutional or statutory right.” Miller v.
Mitchell, 598 F.3d 139, 147 (3d. Cir. 2010); see also Anderson v. Davila, 125 F.3d 148, 159 (3d.
Cir. 1997). Specifically, a plaintiff must “plead that each Government-official defendant,
through his own individual actions, has violated the constitution.” Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009).
1. As to defendants Cofone and Nobile
To satisfy the color of state law requirement, a plaintiff must show that the defendant
“used authority derived from the state in causing the alleged harm.” Harvey v. Plains Twp.
Police Dep't, 421 F.3d 185, 189 (3d Cir.2005) (citing Abbott v. Latshaw, 164 F.3d 141, 146 (3d
Cir.1998)). “The traditional definition of acting under color of state law requires that the
defendant in a § 1983 action have exercised power possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.” West v. Atkins,
487 U.S. 42, 49 (U.S. 1988) (internal quotation omitted).
Although a public employee generally acts under color of state law “while acting in his
official capacity or while exercising his responsibilities pursuant to state law[,]” see West, 487
U.S. at 49, “a state employee or officer whose purely private acts were not furthered by any
actual or purported state authority will not be found to have acted under color of state law.”
Showalter v. Brubaker, 283 F. App'x 33, 35 (3d Cir. 2008) (citations omitted).
The complaint alleges that Fiscella’s co-workers Cofone and Nobile reported seeing him
at two polling sites. (Compl. ¶¶ 52–58.) There are no allegations that they had any say in
DPW’s decision to suspend and ultimately fire him. It cannot be said that by simply reporting
Fiscella’s whereabouts they were exercising any power vested in them by state law. Moreover,
the fact that when they reported seeing him at the polling sites they were using vacation time
suggests that they were acting outside the scope of their employment. Thus, the complaint must
be dismissed as to defendants Cofone and Nobile. See Showalter v. Brubaker, 283 F. App'x 33,
35 (3d Cir. 2008) (dismissing § 1983 claim against defendants where the complaint provided “no
facts from which [the court] could reasonably infer that they invoked their state authority or
otherwise attempted to exercise the power vested in them by state law[,]” and where the
defendants “acted outside the scope of their state employment . . . .”)
2. As to defendant Esposito
With respect to Esposito, the complaint alleges that on Election Day he drove to
Fiscella’s house and called him to ask why he was not at home on a sick day. (Compl. ¶ 60.)
Although the complaint does not indicate whether Esposito was “on-duty” at the time, drawing
all reasonable inferences in Fiscella’s favor, the Court accepts that, as Interim Belleville
Manager, Esposito was acting under color of state law when he visited Fiscella’s house.
However, to state a claim under 42 U.S.C. § 1983, Fiscella must further allege that Esposito
deprive him of “a federal constitutional or statutory right.” Miller, 598 F.3d at 147 (3d. Cir.
2010); see also Anderson, 125 F.3d at 159 (3d. Cir. 1997).
Fiscella is specific in his papers on this motion that the constitutionally protected activity
around which his federal claim is formed is his right to vote. See Fiscella Opp. Br., at p. 13.
Fiscella does not (and cannot) allege that Esposito’s driving to his house and calling him to
inquire as to his whereabouts on Election Day (which happened after he had voted) deprived him
of his constitutional right to vote. Moreover, although Fiscella was told to report to Esposito’s
office on the morning of his suspension, it was Gilbert who served him with the first PDNA.
(Compl. ¶¶ 66–67.) See Zaloga v. Borough of Moosic, No. 15-2723 (3d Cir. Oct. 24, 2016) (“it
has never been established that a government official who does not himself retaliate . . . can be
held personally liable”). Thus, because there are no plausible allegations that Esposito deprived
Fiscella of any constitutional rights, the complaint must be dismissed as to him. See Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (plaintiff must “plead that each Government-official defendant,
through his own individual actions, has violated the constitution”) (emphasis added).
3. As to defendant Gilbert
As Fiscella’s immediate supervisor, Gilbert was acting with state-vested power when he
suspended him. However, defendants argue that Fiscella fails to allege that the suspension was
in any way causally related to his constitutional rights. See Moving Br., at p. 22. To establish a
constitutional retaliation claim, a plaintiff must show: “(1) that he engaged in constitutionallyprotected activity; (2) that the government responded with retaliation; and (3) that the protected
activity caused the retaliation.” Id. at 147. The causation element is established where the
protected activity is a “substantial or motivating” factor in the retaliatory action. Marrero v.
Twp. of N. Bergen, 2015 WL 4606683, at *4 (D.N.J. July 31, 2015) (McNulty, J.) (citing Miller,
598 F.3d at 147).
As noted above, in his papers on this motion, Fiscella is specific that the constitutionally
protected activity around which his federal claim is formed is his right to vote. See Fiscella Opp.
Br., at p. 13. Specifically, he alleges that his act of voting on Election Day was a “substantial or
motivating” factor in Belleville’s decision to suspend and ultimately terminate him. 3
Although the complaint alleges at paragraph 112 that Fiscella’s constitutionally protected activity in this
case included visiting two polling sites, Fiscella concedes in his opposition brief that bringing his wife
The alleged facts are that Fiscella injured his back in the week leading up to Election
Day. (Compl. ¶ 37.) After one hospital visit and two follow-up doctor’s appointments, he
received medical clearance to resume work with certain physical restrictions. Because he was
still reluctant to return to work, he sought and received approval to remain out on sick leave for
an additional three days. (Compl. ¶¶ 38–47.) On his first day of that extension of his sick
leave—which coincided with Belleville’s Election Day—Fiscella voted at one polling site and
then visited another. Two DPW coworkers who were using vacation time to volunteer for Mayor
Kimble’s reelection campaign reported seeing him at the polling sites. (Compl. ¶¶ 52–53, 57–
On his first day back at work, Fiscella was suspended without pay and informed that
DPW intended to fire him. (Compl. ¶ 67.) He did not keep a follow-up appointment with his
worker’s compensation doctor, and as a consequence DPW issued a second disciplinary notice.
Fiscella retroactively got approval to convert his sick time to vacation time. (Compl. ¶¶70–78.)
Ultimately, he was fired after hearings on both disciplinary charges. (Compl. ¶ 93.)
The factual allegations of Fiscella’s back injury, reluctance to return to work after
receiving limited medical clearance, request for additional sick time, missed worker’s
compensation doctor’s appointment, and retroactive request to convert the sick time to vacation
time, are chronological events that fail to establish a plausible connection between voting on
Election Day and getting fired. This is especially true when these same facts establish a
straightforward basis for Fiscella’s termination for showing up at two polling sites when he was
supposed to be home sick despite having been cleared to go back to work. That he voted in the
course of his excursions cannot, standing alone, establish plausibly that he was suspended and
lunch at the second polling site was not a constitutionally protected activity. See Fiscella Opp. Br., at p.
13 (“the constitutionally protected activity here is [Fiscella’s] right to vote”).
fired on account of casting his vote. Fiscella claims he was subjected to harassment in the
workplace based on a difference of political opinion between him and other Belleville
employees. Putting aside the problem that there are no factual assertions causally linking the
asserted workplace difficulties to political differences, Fiscella specifically represented to the
Court in his motion papers that his federal claim rests on DPW’s retaliation against him because
he exercised his right to vote. See Fiscella Opp. Br., at p. 13. As such, these allegations of
workplace harassment implicate neither the alleged constitutionally protected activity (voting)
nor the alleged retaliation (suspension and termination). Taking the allegations as true, Fiscella
endured unpleasant assignments before exercising his constitutionally-protected right to vote on
Election Day, which is at best barely consistent with—but not indicative of—section 1983
liability. See Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009) (“Where a complaint pleads facts that
are merely consistent with a defendant’s liability it stops short of the line between possibility and
plausibility.”); Davis v. City of Newark, 2010 WL 4116975, at *2 (D.N.J. Oct. 18, 2010) (Brown,
J.) (“A complaint cannot survive where a court can only infer that a claim is merely possible
rather than plausible.”), aff'd, 417 F. App'x 201 (3d Cir. 2011).
The Third Circuit has cautioned that courts “must be diligent in enforcing [section 1983’s
causation requirement] because otherwise a public actor cognizant of the possibility that
litigation might be filed against him, particularly in his individual capacity, could be chilled from
taking action that he deemed appropriate and, in fact, was appropriate.” Lauren W. ex rel. Jean
W. v. DeFlaminis, 480 F.3d 259, 267–68 (3d Cir. 2007). Here, the complaint does not indicate
the reasons Gilbert gave Fiscella for issuing the first disciplinary notice, leaving the Court to
infer causation based solely on the notice’s temporal proximity to Election Day. Fiscella admits
that he failed to attend a scheduled worker’s compensation doctor’s appointment, which gave
rise to the second disciplinary notice without implicating a constitutionally-protected right.
Fiscella does not suggest that the reasons given for his termination in the disciplinary actions
were insufficient to support a termination. If the Court were to allow this action to proceed in
the absence of allegations suggesting that Fiscella was suspended and fired because he voted, it
would not be “diligently” enforcing section 1983’s causation requirement consistent with the
Third Circuit’s mandate. See Kundratic v. Thomas, 407 F. App'x 625, 628 (3d Cir. 2011)
(affirming dismissal of § 1983 retaliation claim based on “flimsy” causal nexus where “nothing
suggests [defendants’] conduct was propelled by a retaliatory impulse”); see also Warren v.
Fisher, 2013 WL 1164492, at *12 (D.N.J. Mar. 19, 2013) (Simandle, J.) (dismissing retaliation
claim where the “pleadings suggest that Township Defendants' antipathy toward Plaintiffs’
existed wholly independent of [plaintiff’s alleged constitutionally-protected conduct]”).
Simply put, Fiscella asks the Court to take inferential leaps that are impermissible under
Rule 12(b)(6)’s plausibility standard. Thus, Fiscella’s federal retaliation claim against Gilbert is
4. As to defendant Belleville
Even if the complaint made out a plausible retaliation claim as to any of the individual
defendants (which it does not), a municipality such as Belleville cannot be held liable for the acts
of its employees on a theory of respondeat superior. See Monell v. Dep't of Soc. Servs. of City of
New York, 436 U.S. 658, 691 (1978). Rather, a plaintiff must show a “direct causal link between
a municipal policy or custom and the alleged constitutional deprivation in order for there to be
municipal liability.” Keahey v. Bethel Twp., Pa., 562 F. App'x 119, 122 (3d Cir. 2014) (quoting
City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989)).
“Policy is made when a ‘decision maker possess[ing] final authority to establish
municipal policy with respect to the action’ issues an official proclamation, policy, or edict.”
Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting 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.” Id. (quoting Monell, 436 U.S. at 690).
Fiscella argues that municipal liability is appropriate here because the allegations in the
complaint “demonstrate a custom in [Belleville] whereby supporting Mayor Kimble is the only
tolerated political expression.” Fiscella’s Opp. Br., at p. 20. To support the requisite custom, the
complaint must allege facts from which the Court may reasonably infer that Belleville
discriminates against political expressions contrary to Mayor Kimble in a manner that is “so
permanent and well settled as to virtually constitute law.” Andrews, 895 F.2d at 1480. Although
Fiscella’s opposition papers do not direct the Court to any particular such allegations and leave
the Court to sift through the complaint on its own, at its core, Fiscella’s “custom” argument
seemingly revolves around a vague allegation that during his employment, on some unknown
date, at some unknown time, at some unknown place, some unknown Belleville employee or
employees became aware that he did not support Mayor Kimble and he was subjected to unequal
treatment as a result. (Compl. ¶ 12.)
There is no indication that the complained-of treatment in this case was in fact unequal,
let alone supportive of a “permanent and well settled” custom of discrimination based upon
political affiliation. See Andrews, 895 F.2d at 1480. Fiscella claims that he was forced to work
“undesirable jobs” alone and sent out on “emergency jobs” during campaign strategy meetings,
but does not suggest or allege that these undesirable tasks were outside the scope of his duties, or
that these emergency jobs were not in fact emergencies. He alleges that he was prohibited from
using certain bathrooms, but does not suggest or allege that this prohibition applied only to those
who did not support Mayor Kimble. He alleges that he was forced to move his locker outside
next to a dumpster, but admits that another employee’s locker was relocated in the same manner.
And he alleges that he was “randomly” selected for drug tests more often than other employees
who, “[u]pon information and belief were suspected substance abusers.” (Compl. ¶¶ 13–18, 28–
36.) Viewing all of these allegations in a light most favorable to Fiscella, the complaint fails to
plausibly allege an “ongoing pattern” of discrimination based on political affiliation that rises to
the level of custom. See Peppers v. Booker, 2012 WL 1806170, at *7 (D.N.J. May 17, 2012) (no
custom found where “[p]laintiffs failed to present any factual assertions that would support the
inference of an ongoing pattern of transferring officers based on their political preferences”).
Moreover, even if such a custom did exist, Fiscella’s claim against Belleville fails for the
same reason it fails against Gilbert, namely, the lack of a “direct causal link between [the]
custom and the alleged constitutional deprivation.” Keahey v. Bethel Twp., Pa., 562 F. App'x at
122 (quotation and citation omitted). As the Court has noted, the constitutionally protected
activity around which Fiscella’s federal claim is formed is his right to vote. To find that, after
coming to an unsubstantiated revelation as to Fiscella’s political affiliation, Belleville fired him
because he voted on Election Day would be to pass beyond the realm of reasonable 12(b)(6)
inferences and into a stratosphere of pure speculation. Accordingly, Fiscella’s claim against
Belleville is dismissed.
B. State Law Claims
Supplemental jurisdiction allows federal courts to hear state law claims “when they are so
related to claims in the action within such original jurisdiction that they form part of the same
case or controversy.” Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 387 (1998).
The district court has discretion to decline to exercise jurisdiction if it “has dismissed all
claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). “Where the federal
claims are dismissed at an early stage in the litigation, courts generally decline to exercise
supplemental jurisdiction over state claims.” Mattern v. City of Sea Isle, 131 F.Supp.3d 305, 320
(D.N.J.2015); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988) (“When the
single federal-law claim in the action [is] eliminated at an early stage of the litigation, the
District Court [has] a powerful reason to choose not to continue to exercise jurisdiction.”).
Accordingly, and given well established law on CEPA in the New Jersey courts, the Court will
not entertain Fiscella’s state law claims and they are dismissed.
For the foregoing reasons, defendants’ motion to dismiss is granted, and the clerk of the
court is direct to close this case. An accompanying Order will be filed.
s/ Katharine S. Hayden___________
Katharine S. Hayden, U.S.D.J.
Dated: December 1, 2016
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?