TURANO et al v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY et al

Filing 35

OPINION. Signed by Judge Esther Salas on 02/07/2018. (ek)

Not for Publication
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JESSE TURANO, et al.,
Plaintiffs,
Civil Action No. 16-2578 (ES) (JAD)
v.
PORT AUTHORITY OF NEW YORK
AND NEW JERSEY, et al.,

MEMORANDUM

Defendants.
SALAS, DISTRICT JUDGE
This matter comes before the Court on Defendants’ motion to dismiss Plaintiffs’ Amended
Complaint (D.E. No. 24 (“AC”)).

(D.E. No. 29).

The Court has considered the parties’

submissions in support of and in opposition to the instant motion and decides the matter without
oral argument under Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the
Court DENIES Defendants’ motion to dismiss.
Factual and Procedural Background.1 Plaintiffs initiated this action on May 6, 2016.
(D.E. No. 1). In their original Complaint, Plaintiffs alleged (i) violations of 42 U.S.C § 1983 by
depriving Plaintiffs of their “right to hold employment without infringement of their First
Amendment right to freedom of speech and association” (id. ¶¶ 383-90); (ii) violations of the
“provision of the promotional announcement[]” such that Plaintiffs invoke an action in lieu of a
prerogative writ under New Jersey Court Rule 4:69 (id. ¶¶ 391-97); (iii) violations of the New
Jersey Civil Rights Act and the New Jersey Constitution (id. ¶¶ 398-407); (iv) violations of the

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The Court must accept Plaintiff’s factual allegations as true for purposes of resolving Defendants’ motion to
dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012) (“As
such, we set out facts as they appear in the Complaint and its exhibits.”).

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New York Constitution (id. ¶ 407-15); (v) fraud by knowingly misrepresenting that “the
promotional process would be consistent with the provisions set forth in the promotional
announcement[]” (see id. ¶¶ 416-20); and (vi) estoppel based on Defendants’ misrepresentation
that they would follow the provisions of the promotional announcement (see id. ¶¶ 421-25).
Defendants moved to dismiss the original Complaint on July 28, 2016. (D.E. No. 10).
Plaintiffs opposed Defendants’ motion on September 6, 2016. (D.E. No. 16). Defendants replied
on September 30, 2016. (D.E. No. 17). On March 31, 2017, this Court granted Defendants’ motion
and dismissed Plaintiffs’ claims without prejudice to Plaintiffs’ right to file an amended complaint.
(D.E. No. 21 (“March 2017 Opinion”); D.E. No. 22 (“March 2017 Order”)).
On April 27, 2017, Plaintiffs filed an Amended Complaint alleging (i) violations of 42
U.S.C § 1983 by depriving Plaintiffs of their “right to hold employment without infringement of
his First Amendment right to freedom of speech and association” (Count I) (AC ¶¶ 393-401); (ii)
violations of the New Jersey Civil Rights Act (“NJCRA”) and the New Jersey Constitution (Count
II) (see id. ¶¶ 402-10); (iii) violations of the New York Constitution (Count III) (see id. ¶¶ 41119); and (iv) fraud by knowingly misrepresenting that “the promotional process would be
consistent with the provisions set forth in the promotional announcements” (Count IV) (see id. ¶¶
420-25).
Defendants moved to dismiss the Amended Complaint on June 19, 2017. (D.E. No. 29-4
(“Defs. Mov. Br.”)). Plaintiffs opposed Defendants’ motion on July 21, 2017. (D.E. No. 31-1
(“Pls. Opp. Br.”)). And Defendants submitted a reply in further support of their motion on July
31, 2017. (D.E. No. 32 (“Defs. Reply Br.”)). The matter is now ripe for resolution.
In its March 2017 Opinion, the Court provided a detailed overview of the factual
background and procedural history of this matter. (See March 2017 Opinion at 1-5). Therefore,
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the Court writes primarily for the parties and assumes familiarity with the underlying factual and
procedural history. See Schindler Elevator Corp. v. Otis Elevator Co., No. 09-0560, 2010 WL
4687746, at *1 (D.N.J. Nov. 10, 2010).2 Specifically, the Court will evaluate whether Plaintiffs
have cured the deficiencies addressed in the Court’s March 2017 Opinion.
Legal Standard. Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth
“a short and plain statement of the claim showing that a pleader is entitled to relief.” That
statement must “give the defendant fair notice of what the claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Although the pleading standard
announced by Rule 8 does not require detailed factual allegations, it demands “more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
To withstand a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
“When reviewing a motion to dismiss, [a]ll allegations in the complaint must be accepted
as true, and the plaintiff must be given the benefit of every favorable inference to be drawn
therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). But the court is not required to
accept as true “legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action,

2

Unless otherwise indicated, all internal citations and quotation marks are omitted, and all emphasis is added.

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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Additionally,
“[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached
to the complaint, matters of the public record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230
(3d Cir. 2010).
Finally, Federal Rule of Civil Procedure 9(b) “imposes a heightened pleading requirement
concerning allegations of fraud or mistake.” Giercyk v. Nat’l Union Fire Ins. Co. of Pittsburgh,
No. 13-6272, 2015 WL 7871165, at *2 (D.N.J. Dec. 4, 2015). “In alleging fraud or mistake, a
party must state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ.
P. 9(b). A plaintiff may satisfy Rule 9(b) by pleading the “date, place or time” of the fraud, or
through “alternative means of injecting precision and some measure of substantiation into their
allegations of fraud.” Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004). “Plaintiffs also must
allege who made a misrepresentation to whom and the general content of the misrepresentation.”
Id.
Count I: First Amendment Claim. To establish a claim under 42 U.S.C. § 1983, a plaintiff
must establish that a person acting under color of state law deprived him or her of a federal right.
42 U.S.C. § 1983; Berg v. Cty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000). Generally, the
First Amendment prohibits public employers from taking adverse action against an employee
because of an employee’s actual or perceived engagement in constitutionally protected political
activity. See Heffernan, 136 S. Ct. at 1419 (“When an employer demotes an employee out of a
desire to prevent the employee from engaging in political activity that the First Amendment
protects, the employee is entitled to challenge that unlawful action under the First Amendment and
42 U.S.C. § 1983.”). To sustain a First Amendment retaliation claim, a plaintiff must establish
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that “(i) [the plaintiff] engaged in activity protected by the First Amendment;3 (ii) [the] defendants
retaliated in response; and (iii) [the] defendants could not rebut the claim by demonstrating that
they would have taken the same action even in the absence of the protected speech.” Ober v.
Brown, 105 F. App’x 345, 346-47 (3d Cir. 2004) (citing Baldassare, 250 F.3d at 194-95).
Relevant here, courts have also developed a three-part test for a plaintiff to establish a
prima facie claim of discrimination based on political patronage in violation of the First
Amendment: a plaintiff must show that “(i) [the plaintiff] was employed at a public agency in a
position that does not require political affiliation; (ii) [the plaintiff] engaged in constitutionally
protected conduct; and (iii) this conduct was a substantial or motivating factor in the [public
employer’s] employment decision.” Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 271 (3d
Cir. 2007). If a plaintiff establishes this prima facie claim, the public employer may “avoid a
finding of liability by proving by a preponderance of the evidence that the same employment action
would have been taken even in the absence of the protected activity.” Id.
In the March 2017 Opinion, this Court concluded that Plaintiffs failed to establish that
Defendants violated their First Amendment rights because they failed to sufficiently plead a prima
facie claim of political patronage. (March 2017 Opinion at 15-16).4 The Court reasoned that
Plaintiffs failed to sufficiently (i) allege the nature of their political non-affiliation as needed to
establish that they engaged in constitutionally protected conduct because “Plaintiffs’ Complaint
lacks any allegations that they were unaffiliated with any of the preferred political candidates,

3

A court determines as a matter of law whether activity is protected by the First Amendment. Baldassare v.
New Jersey, 250 F.3d 188, 195 (3d Cir. 2001).

4

For the reasons stated in the Court’s March 2017 Opinion, the Court finds that the position of Port Authority
police sergeant does not require political affiliation and Plaintiffs therefore have sufficiently pleaded the first element
of a prima facie political patronage claim. (March 2017 Opinion at 11-12).

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organizations, or associations, or that they were generally apolitical” (id. at 12-13); (ii) “plead both
knowledge and causation. Plaintiffs have neither specifically alleged that Defendants knew of
their political inactivity or non-support of any of the alleged preferred groups, nor alleged facts
that allow for an inference of such knowledge” (id. at 14); and (iii) “plead the third prong of a
prima facie political discrimination claim—that their conduct was a substantial or motivating
factor in Defendants’ decision not to promote them” (id. at 15).
The Court finds that Plaintiffs’ Amended Complaint has cured those deficiencies. (See,
e.g., AC ¶¶ 44, 352-67). Plaintiffs now allege, for example, that:


“A pattern and practice has existed and continues to exist, whereby officers were graded in
the exam in an arbitrary manner, not based on merit, in a manner to benefit favored
candidates, and based on the political affiliation and/or associations of those candidates
who had political connections with political candidates, organizations, unions, elected
officials in New York or New Jersey, politically appointed Port Authority officials and/or
other individuals who were politically appointed in New York and New Jersey. That
included but was not limited to associations with a former governor of New York, a New
Jersey senator, heads of local civil organizations, politically-appointed members of the Port
Authority Board of Commissioners, unions, and other quasi-political organizations, as well
as race and religious based organizations.”



“As discussed herein, various individuals were promoted based on political connections
and/or affiliations with other organizations.”



“Defendants gave preference in the promotional process to those candidates who supported
or were associated with preferred political candidates, political organizations, unions,
elected officials in New York or New Jersey, appointed Port Authority officials and/or
political appointments in New York or New Jersey. As set forth below, that included but
was not limited to associations with a former governor of New York, a New Jersey senator,
heads of local civil organizations, politically-appointed members of the Port Authority
Board of Commissioners, unions, and other quasi-political organizations, as well as race
and religious based organizations.”



“As a direct result, Plaintiffs were not promoted, since none of the Plaintiffs were
politically affiliated or perceived as such.”



“Plaintiffs were actually and/or were perceived as being apolitical and/or not sufficiently
supportive of the preferred political candidates and/or organizations.”



“Plaintiffs were perceived by the Defendants as not supporting and/or not being sufficiently
supportive of favored political candidates and organizations.”

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

“Defendants based promotional decisions on whether candidates were sufficiently
supportive of favored political candidates and/or political organizations. Whether an
officer was sufficiently supportive was a motivating factor in making promotions.”



“The preference given to those who supported and/or were perceived as supporting the
aforementioned political candidates directly caused the promotion of certain candidates
over others, including [P]laintiffs.”



“Making promotions based on political association was not necessary for the operations
of the Port Authority.”



“Promotions based on political affiliations or support constitute an impermissible
infringement on the right to free expression of public employees, including the Plaintiffs.”

(Id.). Accepting Plaintiffs’ allegations as true and giving Plaintiffs “the benefit of every favorable
inference to be drawn therefrom,” Malleus, 641 F.3d at 563, the Court finds that Plaintiffs have
“state[d] a claim to relief that is plausible on its face,” Iqbal, 556 U.S. at 678. Accordingly,
Defendants’ motion to dismiss Count I of Plaintiffs’ Amended Complaint is denied.5
Counts II and III: New Jersey and New York State Law Claims. The parties agree that
Plaintiffs’ state-law claims (Counts II and III) are coextensive with their First Amendment claims.
(Defs. Mov. Br. at 19-21; Pl. Opp. Br. at 24-25). Indeed, federal courts construe claims under the
New Jersey Civil Rights Act as coextensive with claims under § 1983. See Lee v. Padilla, No. 111463, 2011 WL 3475480, at *5 (D.N.J Aug. 9, 2011) (construing claims under the New Jersey
Civil Rights Act as coextensive with First Amendment claims under § 1983); Chapman v. N.J.,
No. 08-4130, 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009). Likewise, “freedom of speech
claims are subject to the same analysis under the federal and New York State Constitutions.”

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The Court recognizes Defendants’ argument that “[t]he sheer overbreadth and vagueness of these factual
allegations, coupled with the lack of a protected right, cannot give rise to a First Amendment claim.” (Defs. Mov. Br.
at 14). But when reviewing a motion to dismiss, “[a]ll allegations in the complaint must be accepted as true, and the
plaintiff must be given the benefit of every favorable inference to be drawn therefrom.” Malleus, 641 F.3d at 563.
And Plaintiffs’ allegations in the Amended Complaint—accepted as true and drawing all inferences in Plaintiffs’
favor—satisfy Plaintiffs’ burden of “stat[ing] a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678.
So, while Plaintiffs’ allegations indeed may be overinclusive, the Court notes that the “plausibility standard is not akin
to a ‘probability requirement.’” Id. Given the liberal pleading standard here, Defendants’ argument is unpersuasive
at this stage of the litigation. See Roberts v. Harvey, No. 03-5181, 2007 WL 1101438, at *1 (D.N.J. Apr. 10, 2007)
(noting the “liberal notice pleading standards of the Federal Rules of Civil Procedure”); The PRC Grp. v. Indivero,
No. 04-4693, 2005 WL 1522583, at *1 (D.N.J. June 27, 2005) (noting the “liberal motion to dismiss standard”).

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Wandering Dago Inc. v. N.Y. State Office of Gen. Servs., 992 F. Supp. 2d 102, 129 (N.D.N.Y.
2014).

Accordingly, for the reasons discussed above (see supra at 4-7), the Court finds that

Defendants’ motion to dismiss Counts II and III of Plaintiffs’ Amended Complaint is denied.
Count IV: Fraud. “To state a claim for fraud under New Jersey law, a plaintiff must allege
(1) a material misrepresentation of fact; (2) knowledge or belief by the defendant of its falsity; (3)
intention that the other person rely on it; (4) reasonable reliance thereon by the other person; and
(5) resulting damage.” Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (citing Gennari
v. Weichert Co. Realtors, 691 A.2d 350, 367-68 (N.J. 1997)). Additionally, a plaintiff alleging
fraud must adhere to Rule 9(b)’s heightened pleading standard and therefore must provide some
“means of injecting precision and some measure of substantiation into their allegations of fraud.”
In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 216 (3d Cir. 2002).
The Court previously dismissed Plaintiffs’ fraud claim:
Assuming that Plaintiffs can establish the first two elements of a
fraud claim, the Court finds that Plaintiffs have not pleaded sufficient facts
for the Court to infer the next required element—Defendants’ intention that
Plaintiffs rely on the alleged misrepresentation. The Complaint contains
only conclusory statements that Defendants “knew that the policies and
procedures set forth with regard to promotions to the rank of [s]ergeant were
false, intended to mislead and fraudulent” and that “Defendants expected
and/or intended that Plaintiffs would act upon these misrepresentations.”
(Compl. ¶¶ 360, 423). Plaintiffs’ conclusory assertions, however, are
insufficient to meet the heightened pleading standard of Rule 9(b). Even
considering Rule 9(b)’s allowance for general allegations as to intent,
“formulaic recitation of the elements” is not entitled to the presumption of
truth. Kaminski v. Twp. of Toms River, No. 10-2883, 2011 WL 2600920, at
*4 (D.N.J. June 29, 2011) (quoting Iqbal, 556 U.S. at 681). Here, Plaintiffs
have provided no more than conclusory allegations as to intent and therefore
have failed to sufficiently allege the third element of fraud. Accordingly,
the Court dismisses Count V of the Complaint without prejudice.
(March 2017 Opinion at 21-22). In their Amended Complaint, however, Plaintiffs have added
several factual allegations that cure the deficiency previously noted by the Court. (See, e.g., AC
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¶¶ 45, 51-53, 58-59, 82, 358-70, 374, 380-81; see also Pls. Opp. Br. at 21-24). Plaintiffs allege,
for example, that:




“What was once a mandated random selection process – with oversight by the inspector
general – is now completely at the discretion of the Port Authority, and presumably
Defendant Fedorko, to promote whomever he wants without regard to the seniority and/or
qualifications and/or written exam ratings of the candidates. The written exam is the only
objective portion of the examination process.”



“This was changed to further enable the Port Authority to promote officers who are
affiliated with the political figures and/or political organizations set forth in paragraph 44,
and as set forth herein.”



“This promotional system and exam was intended to mislead candidates to believing that
an Inspector General selection may in fact occur, when in reality the Defendants had no
intention of utilizing this process, because Defendants instead based promotions on who
possessed political association and connections, which benefitted those politicallyconnected candidates in the selection process.”



“This was intended to mislead candidates to believing that QRM selection would be
provided evenly and based on merit, when in reality the Defendants had no intention of
utilizing this process in such a manner, and instead was done to deny QRM’s when they
wanted to and provide QRM’s whenever it wanted.”



“In reality, this was pretext that favored those candidates who were politically connected
or affiliated with political candidates, organizations, unions, elected officials in New York
or New Jersey, appointed Port Authority officials and/or political appointments in New
York or New Jersey. That included but was not limited to associations with a former
governor of New York, a New Jersey senator, heads of local civil organizations, politicallyappointed members of the Port Authority Board of Commissioners, unions, and other
quasi-political organizations, as well as race and religious based organizations.”



“The QRM process was intended to mislead candidates to believing that it would be applied
evenly and in good faith based on merit, when in reality the Defendants intended to use the
QRM process to promote and deny promotion to whomever it wanted.”



“Defendants intended to mislead candidates, including the plaintiff, by issuing a
promotional announcement – which candidates would believe would be followed and also
applied in a good faith manner. In reality, as set forth below, Defendants intended to not
follow the promotional policies and to also manipulate them in a manner designed to
promote preferred candidates, who had political affiliation and/or association with political
candidates, organizations, unions, elected officials in New York or New Jersey, politically
appointed Port Authority officials and/or other individuals who were politically appointed
in New York and New Jersey, rather than engaging in a fair, good faith effort to promote
the best candidates.”

“Defendants based promotional decisions on whether candidates were sufficiently
supportive of favored political candidates and/or political organizations. Whether an
officer was sufficiently supportive was a motivating factor in making promotions.”
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

“The Port Authority Police Department developed and maintained a pattern and practice
whereby the procedure for promotion of police officers to the rank of Sergeant is
manipulated to achieve desired promotions.”



“Despite its promulgation of the policy procedure set forth in the various promotional
announcements and postings, upon information and belief, the Port Authority has
intentionally and knowingly ignored and violated said policies. Upon information and
belief, the defendants knew that the policies and procedures set forth with regard to
promotions to the rank of Sergeant were false, intended to mislead and fraudulent.”



“Rather, the promotional policies were adopted as pretext with the intention to mislead the
candidates, including Plaintiffs, into believing that the promotional process would occur in
a good faith manner based on merit.”



“Upon information and belief, certain individuals who were promoted did so even though
they did not adhere to the promotional guidelines and/or they used improper connections
to obtain promotion. Rather, the Port Authority’s decisions were tainted by cronyism and
nepotism, and not on merit.”



“This includes Officer Albin, the former Port Authority Police Chief’s son, and officer
Clyburn, who worked in the academy and who prematurely walked out of the QRM yet
was still highly recommended. Like the 2010 exam, the officers promoted were
disproportionately from the academy. Moreover, officers Gonzalez and Perez were
Fedorko’s driver and were promoted, just like in 2011 when Fedorko’s drivers Masouridis
and Cocodrilli were improperly promoted. Further, Officer Lisa Orlando was promoted,
even though she was in the academy and wrote portions of the prep materials for the exam.”

(AC ¶¶ 45, 51-53, 58-59, 82, 358-70, 374, 380-81). Accepting Plaintiffs’ allegations as true and
giving Plaintiffs “the benefit of every favorable inference to be drawn therefrom,” Malleus, 641
F.3d at 563, the Court again finds that Plaintiffs have “state[d] a claim to relief that is plausible on
its face,” Iqbal, 556 U.S. at 678. Accordingly, Defendants’ motion to dismiss Count IV of
Plaintiffs’ Amended Complaint is denied.
Conclusion. For the reasons above, the Court DENIES Defendants’ motion to dismiss.
An appropriate Order accompanies this Memorandum.
s/Esther Salas
Esther Salas, U.S.D.J.

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