HARLEY v. CITY OF JERSEY CITY et al

Filing 19

OPINION. Signed by Judge John Michael Vazquez on 6/27/2017. (ld, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

FLOYD HARLEY,

Plaintiff;
Civil Action No. 16-5 135
V.

CITY OF NEW JERSEY CITY, et al.,

OPINION

Defendants.

John Michael Vazguez, U.S.D.J.

The present matter comes before the Court on Defendants’1 motion to dismiss the
Complaint for failure to state a claim.

Plaintiff opposes the motion.2

This case concerns

allegations of a deprivation of Plaintiffs constitutional rights, racial discrimination, defamation,
and conspiracy in connection with the release of a document containing, as it pertains to Plaintiff,
a racial slur. This motion was decided without oral argument pursuant to Federal Rule of Civil

The entity defendants include City of Jersey City, Jersey City’s Department of Public Safety, the
Jersey City Police Department, and Jersey City’s Office of Equal Opportunity (collectively, the
“Entity Defendants”). The individual defendants include Stephen Fulop, James Shea, Terrence
Crowley, Jeana Albuan, and Amanda Kahn (the “Individual Defendants,” and with the Entity
Defendants, “Defendants”).
2

Defendants’ brief in support of their motion to dismiss the Complaint will be referred to
hereinafier as “Def. Br.” (D.E. 10); Plaintiffs opposition to Defendants’ motion to dismiss will be
referred to “P1. Opp’n” (D.E. 14); and Defendants’ reply brief will be referred to “Def. R.Br.”
(D.E. 15).

Procedure 78 and Local Civil Rule 78.1. The Court has considered the parties’ submissions and
grants Defendants’ motion.
I. INTRODUCTION

In 2010, Plaintiff was involved in a motor vehicle accident in Jersey City (or the “City”).
As a result, a Jersey City Police Department (“JCPD”) accident report (the “Report”) was created.
The Report contained vulgar and derogatory terms, including referring to Plaintiff with a
contemptible racial slur. Plaintiff is, and was at the time of the accident, a messenger for the City.
The Report also attributed vulgar and derogatory language to a police fficer involved in the
accident. The Report, moreover, contained profanity and a pejorative description of the lead
investigator. As far as the Court can determine, the Report maligned at least four persons: Plaintiff,
the officer involved in the accident, a woman driver also involved in the accident, and the lead
investigator of the accident.

The officer whose name appears as the author of the Report

strenuously denied any involvement in drafting the inappropriate language, noting that the
signature was not his and that a variety of persons had access to the computer from which the
Report was generated.
In 2014, the officer involved in the crash filed a grievance over the contents of the Report.
As a result, EEO launched a confidential investigation and interviewed several persons, including
Plaintiff. The City also submitted the report to outside law enforcement agencies, hoping to find
forensic evidence that would reveal the culprit. The Report, however, was also published on a
non-city website. How the Report fell into the hands of the person or entity who posted it online
is not clear, although Plaintiff claims that it was disclosed in response to an Open Public Records
Act (“OPRA”) request.

2

Plaintiff thereafter instituted the current action against the officer whose name appears on
the report, Jersey City, the City’s Department of Public Safety and its police department, Jersey
City’s Office of Equal Opportunity (“EEC”), the mayor, the public safety director, and two
representatives of EEO. Plaintiffs Complaint contains numerous deficiencies. Plaintiff conflates
the words derogatory, discriminatory, and defamatory, seemingly using them in an interchangeable
(and not entirely consistent) fashion. Plaintiff also mistakes proper policy as proof of some
nefarious intent. Plaintiff further makes arguments that are inherently contradictory. For example,
on the one hand, Plaintiff argues against the EEC confidential investigation while, on the other, he
claims that Defendants failed to take corrective and remedial action when they learned of the
Report.
Plaintiff has every right to be concerned (indeed, outraged) that the Report was generated
in the first place and then later posted on the internet. However, as pled, Plaintiffs Complaint
must be dismissed for a myriad of reasons.
II. BACKGROUND3

Plaintiff is employed by Jersey City as a messenger. Compl.

¶ 20.

Plaintiff alleges that on

May 27, 2010, while he was working, he was riding in a car driven by JCPD Officer Michael
Maietti. They were involved in an automobile accident with another car being driven by a female.
Id.

¶

24.

After the accident, the Report, formally called a Crash Investigation Report, was

The following facts are derived from Plaintiffs Complaint (“Compi.”) and the exhibits attached
to the Complaint. D.E. 1. When reviewing a motion to dismiss, the Court accepts as true all well
pleaded facts in the complaint. fowler v. UFMC Shadyside, 578 f.3d 203, 210 (3d Cir. 2009).
The Court can also consider “the factual allegations contained in other documents, such as
documents referred to in the complaint and matters of public record if the claims in the complaint
are based upon those documents.” In re Milestone Sd. Sec. Litig., 103 F. Supp. 2d 425, 450 (D.N.J.
2000). While Defendants contest many of Plaintiffs factual allegations, they accept as true the
alleged facts for the purposes of this Motion. Def. Br. at 3.
3

generated. Id. ¶ 25. Defendant Sergeant Terrence Crowley is indicated as the author of the Report.
The allegedly racially offensive and gender-based discriminatory language in the Report is the
basis for this lawsuit. Id.

¶ 27.

The “Conclusion and Recommendation” Section of the Report states as follows:
The primary cause of the accident was the inattention of P.O. Maietti
Floyd around the city.
eating a sandwich while driving
f**** dumb b**** just stopped and I
Officer Maietti stated “the
hit the c***!” P. 0. Maietti should be credited for saving the
female[’]s life, because his boy Floyd wanted “to put a cap in her
a**!” The ultimate Buffoon arrived on the scene as the accident
investigator and totally f**** that up, so I couldn’t tell you who
the f’ is at fault.
Compi. Ex. B. Plaintiff alleges that on or about June 3, 2010, Crowley gave Maietti the Report.
Id.

¶

26.

Subsequently, Maietti gave the Report to his commanding officer, Captain Joseph

Ascolese. Id.

¶ 28.

Crowley then issued a memorandum in which he claimed that the Report was

a fake, that the signature on the Report was not his, that he authored a legitimate (and non
controversial) report, and that his report and the Report were generated from an “unsecured” office
computer. Id.

¶

30. On December 30, 2014, over four years later, Maietti lodged a formal

grievance against Crowley with EEO regarding the Report. Id. ¶ 33. Afler the Report was created,
but prior to Plaintiffs knowledge of it, the EEO/Affirmative Action Liaison Officer (“EEO/AA
Officer”), Jenna Abuan, began an investigation. Id.

¶ 34.

The investigation was “handled on a

confidential basis.” Id.
Plaintiff alleges that during the investigation, Defendants released the Report to other law
enforcement agencies. Id.

¶ 41.

Specifically, in furtherance of the investigation, Defendants sent

the Report for laboratory testing and handwriting analysis. Id.

¶ 40.

Additionally, Plaintiff asserts

that the Report was released pursuant to OPRA to private citizens and an internet blogger. Id.

4

¶J

41-42. On March 24, 2016, Plaintiff became aware of the Report when it was published on the
website realjerseycity.com. Id.

¶ 43.

Following the public release of the Report, Plaintiff alleges that he “received (and
continues to receive) comments and questions from family members, friends, co-workers,
acquaintances and others regarding the defamatory and racially discriminatory report.” Id.

¶ 44.

Other than the contents of the Report, Plaintiff does not allege that he has been subject to any
additional derogatory or discriminatory comments or actions. There is also no indication that
Plaintiffs job position has changed in any manner since the accident or since the public posting
of the Report. Nonetheless, Plaintiff alleges that he has “continued to work in a hostile work
environment.” Id.

¶ 46.

III. PROCEDURAL HISTORY
Plaintiff filed his Complaint on August 22, 2016 alleging eight causes of action: (1) Hostile
Work Environment Violation, 42 U.S.C.

§

§

1981; (2) Fourteenth Amendment Violation, 42 U.S.C.

1983; (3) Monell Liability (Fourteenth Amendment), 42 U.S.C.

Interfere with Civil Rights, 42 U.S.C.

§§

§

1983; (4) Conspiracy to

1985, 1986; (5) New Jersey Civil Rights Act (“NJCRA”),

N.J.S.A. 10:6-2, et seq.; (6) New Jersey Law Against Discrimination (“NJLAD”), N.J.$.A. 10:5.1,
et seq.; (7) Common Law Defamation; and (8) Civil Conspiracy.4 In lieu of answering, Defendants
filed their motion to dismiss on October 12, 2016. Def. Br. Plaintiff opposes this motion. P1.
Opp’n.
IV. STANDARD OF REVIEW

Counts I and II are brought against the Individual Defendants only; Count III is against the Entity
Defendants only; and the remainder of the Counts (IV-VIII) are against all Defendants.
5

Rule 1 2(b)(6) of the federal Rules of Civil Procedure permits a defendant to move to
dismiss a count for “failure to state a claim upon which relief can be granted[.]” To withstand a
motion to dismiss under Rule 12(b)(6), a plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A
complaint is plausible on its face when there is enough factual content “that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ash croft v.
Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard “does not impose a probability
requirement, it does require a pleading to show more than a sheer possibility that a defendant has
acted unlawfully.” Connelly v. Lane Const. Corp., 809 f.3d 780, 786 (3d Cir. 2016) (internal
quotation marks and citations omitted). As a result, a plaintiff must “allege sufficient facts to raise
a reasonable expectation that discovery will uncover proof of [his] claims.” Id. at 789.
In evaluating the sufficiency of a complaint, a district court must accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff.
Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008).

A court, however, is “not

compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions
disguised as factual allegations.” Baraka v. McGreevey, 481 f.3d 187, 211 (3d Cir. 2007). If,
after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears
that no relief could be granted under any set of facts consistent with the allegations, a court may
dismiss the complaint for failure to state a claim. Defazio v. Leading Edge Recoveiy Sols., LLC,
No. 10-2945, 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).
V. DISCUSSION

Before addressing the specific counts, the Court notes at the outset that Plaintiff appears to
confuse or conflate the contents of the Report in general with the specific, inappropriate statements

6

that relate to him. The Report uses a racial slur in referring to Plaintiff, attributes to him a particular
comment (slang language to describe a potential shooting), and refers to Plaintiff as Officer
Maietti’s “boy.” The remaining, objectionable comments concern Officer Maietti, the female
driver of the other car, and the accident investigator

—

not Plaintiff. Plaintiff also misconstrues

wholly appropriate conduct, a confidential investigation into the Report and attempts to
forensically determine who actually authored the document, with some type of improper action.
To the contrary, the Entity Defendants could be accused of malfeasance if they did not investigate
the source of the Report upon learning of it.
Hostile Work Environment under Section 1981 (Count One)
Plaintiffs first count alleges a hostile work environment against the Individual Defendants
pursuant to 42 U.S.C.

§ 1981. Compi. ¶J 48-60. Defendants

argue that Section 1981 does not

create a private cause of action and therefore should be dismissed. Def. Br. at 24-26. Additionally,
Defendants contend that even if there were a valid cause of action under Section 1981, Plaintiffs
Complaint fails to plausibly plead a hostile work enviromnent claim. Id. at 26-28. Plaintiff
responds by arguing that his Section 1981 violations “are subsumed within the [d]ue [p]rocess and
[e]qual [p]rotection [c]ounts.” P1. Opp’n at 30. Plaintiff also argues that he has sufficiently pled
each element for a hostile work environment claim. Id. at 30-32.
At the outset, Plaintiff provides no support to demonstrate that Section 1981 creates a
private cause of action, and the Court has found none. Since “no implied private right of action
exists against state actors under 42 U.S.C.

§ 1981,” Plaintiff is required to plead his claim pursuant

to Section 1983. McGovern v. City ofPhIla., 554 F.3d 114, 122 (3d Cir. 2009); see also Morris v.
United States, No. 12-2926, 2014 WL 1272104, at *6 (D.N.J. Mar. 27, 2014) (finding that
“[Sjection 1983

.

.

.

provides the remedy for violations of [S jection 1981 by state actors.”) (citing

7

McGovern, 554 F.3d at 117). Thus, Count I is dismissed because Plaintiff cannot proceed pursuant

to Section 1981.
Moreover, even assuming that Counts II and III are “subsumed” in Plaintiffs Section 1981
(which would have to be brought pursuant to Section 1983) claim, as Plaintiff argues, he
nonetheless fails to state a claim for a hostile work environment. To establish aprimafacie claim
for a hostile work environment under Section 1981, a plaintiff must show that:

Section 1981(a) provides in pertinent part that:
All persons within the jurisdiction of the United States shall have
the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
The elements of a hostile work enviromnent are the same under Section 1981 as they are
under Title VII. See Griffin v. Harrisburg Prop. Servs., Inc., 421 F. App’x 204, 207 n.3 (3d Cir.
2011). Nonetheless, there are some differences between actions brought pursuant to Section 1983
and those brought under Title VII. For instance, Section 1983 only applies to state actors, while
Title VII applies to both private and public employers. See Johnson v. Transportation Agency,
Santa Clara Cty., Cal., 480 U.S. 616, 628 (1987) (“Congress expressly indicated the intent that []
Title VII principles be applied to governmental and private employers alike.”); Mark v. Borottgh
ofHatboro, 51 F.3d 1137, 1141 (3d Cir. 1995) (finding that liability under Section 1983 is limited
to state actors or those acting under the color of law). Since Section 1983 applies to a person
acting “under the color of law,” it applies to individuals as well as entities, whereas Title VII does
not apply to individuals. See Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 247 (2009) (“
1983 equal protection claims may be brought against individuals as well as state entities.”); Did
v. Com. of Pa., 91 F.3d 542, 552 (3d Cir. 1996) (“[I]ndividual employees cannot be held liable
under Title VII.”). Additionally, a Section 1983 action requires intentional discrimination, see
Personnel Administrator ofMassachusetts v. Feeney, 442 U.S. 256, 274 (1979), while a Title VII
claim can be brought pursuant to a theory of intentional discrimination or disparate impact. See
Watson v. Fort Worth Bank & Trjtst, 487 U.S. 977, 1002 (1988) (discussing two theories of Title
VII liability and noting that a disparate impact theory focuses on the effect of the employment
practice rather than an employer’s intent).
Despite these distinctions, among others, as relevant to this case “[t]he elements of a
racially hostile work environment are the same under Title VII and § 1981.” Griffin, 421 F. App’x
8

(1) he suffered intentional discrimination because of his
membership in a protected class; (2) the discrimination was
pervasive and regular; (3) the discrimination detrimentally affected
[Plaintiff]; (4) the discrimination would detrimentally affect a
reasonable person of the same protected class in that position; and
(5) the existence of respondeat superior liability.
Verdin v. Weeks Marine Inc., 124 F. App’x 92, 95 (3d Cir. 2005) (citing Kitnin v. Sears Roebuck

& Co., 175 F.3d 289, 293 (3d Cir. 1999)). To determine whether harassment is sufficiently
“pervasive and regular,” courts invoke a “totality of the circumstances” analysis and consider the
following factors: “the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Harris v. Forkltft Sys., Inc., 510 U.S. 17, 23
(1993). In other words, “to be actionable, ‘the harassment must be so severe or pervasive that it
alters the conditions of the victim’s employment and creates an abusive environment.”
Grassmyer v. Shred-It USA, Inc., 392 F. App’x 18, 30 (3d Cir. 2010) (quoting Weston v.
Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2000)).

“The sine qua non of a hostile work environment claim is a workplace

...

permeated with

discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” Fitzgerald
v. Shore Mern’l Hosp., 92 F. Supp. 3d 214, 240 (D.N.J. 2015) (internal quotations marks and
citation omitted).

“Isolated incidents generally will not suffice to establish a hostile work

environment unless they are extraordinarily severe.” Kavtor v. Elec. Boat Corp., 609 F.3d 537,
547 (2d Cir. 2010); Greer v. Mondelez Glob., Inc., 590 F. App’x 170, 173 (3d Cir. 2014) (“Simple

at 207. Therefore, the Court will rely on both Section 1981 (brought through Section 1983) and
Title VII cases in its analysis.

9

teasing, offhand comments, and isolated incidents do not amount to discriminatory changes in the
terms and conditions of employment.”) (internal quotation marks omitted).

Thus, severe or

pervasive harassment is distinguished from the “mere utterance of an ethnic or racial epithet which
engenders offensive feelings in an employee.” Nuness v. Simon & Schuster, Inc., 221 F.Supp.3d
596, 601 (D.N.J. 2016) (internal quotation marks omitted).

Here, Plaintiff alleges that he was informed of the Report on March 24, 2016, nearly six
years after it was reportedly written. Compi.

¶ 43. Up to that point, Plaintiff was not aware of the

Report or its contents. Plaintiff goes on to state that “[t]he defamatory and racially discriminatory
Crash Review Evaluation report

[] is so severe and pervasive that a reasonable person in plaintiff

Harley’s position would find his work environment to be hostile and abusive.” Id. ¶ 55. He further
alleges that “[f]rom March 2, 2016 to the present, Plaintiff Harley continues to work in a hostile
work environment.” Id.

¶ 45.

Thus, Plaintiffs only non-conclusory allegation of a hostile work environment is the
Report. That, on its own, is not sufficient to show that the alleged harassment was so “severe and
pervasive” as to “alter the conditions of [Plaintiffs] employment

.

.

.“

Harris, 510 U.S. at 21.

Pursuant to the Complaint, it appears this was an isolated incident rather than a continuing issue
of harassment. See Exantus v. Harbor Bar & Brasserie Rest., 386 Fed. Appx. 352, 354 (3d Cir.

2010) (finding that defendant’s use of the epithet “Haitian F***” several times was “indeed
unpalatable and inappropriate,” but was not “severe or pervasive”); Woodard v. PHB Die casting,
255 F. App’x 608, 610 (3d Cir. 2007) (finding that a single incident of “KKK-related graffiti” and

the allegation that it was not promptly removed, was insufficient at the summary judgment stage
“for a trier of fact to conclude that discriminatory conduct in the workplace amounted to a change
in the terms or conditions of [plaintiffs] employment.”); Lawrence

10

F. C. Kerbeck & Sons, 134

F. App’x 570, 572 (3d Cir. 2005) (holding that while defendant’s racial remark was “disrespectful
and inexcusable,” Plaintiff could not show a hostile work environment “based on this one isolated
incident”). Moreover, it appears that Plaintiff alleges that the publication of the Report was done
by a private citizen rather than by any of the named Defendants. Plaintiff does not plausibly allege
that any of the Defendants intentionally caused the Report to be published online.
Moreover, Plaintiff was not even aware of the Report for nearly six years, and there is no
allegation that Plaintiff suffered from a hostile work environment in the intervening time period.
Once Officer Maietti filed a complaint concerning the Report, EEO investigated the matter. Since
the investigation began and since Plaintiff became aware of the Report, Plaintiffs only allegation
of harassment or hostility at work is the conclusory statement that he “continues to work in a
hostile work environment.” Compi.

¶ 45. Plaintiff, however, pleads no facts to support this

conclusion. For example, while Plaintiff alleges that others have contacted him since the Report
was published online, he does not indicate that such contacts have been hostile, offensive, or
racially insensitive. In addition, Plaintiff claims that persons who have contacted him concerning
the Report include family, friends, and acquaintances; Plaintiff has not alleged that these persons
are part of his working environment. Plaintiffs allegations are not sufficient to plausibly plead a
claim for a hostile work environment. Count I is dismissed without prejudice.
Hostile Work Environment pursuant to the NJLAD (Count VI)
In Count VI, Plaintiff brings an NJLAD clam against all Defendants, alleging that
Defendants are liable “for workplace harassment by way of invidious racial discrimination that
created a hostile work environment for Plaintiff.” Compl.

¶ 111. Plaintiff also alleges that “the

circulation and publication of the Crash Review Evaluation report alters the conditions of [his]
employment and makes his working environment

11

[] hostile or abusive.” Id. ¶ 115.

Defendants argue that Plaintiff has not adequately pled his NJLAD claim against Jersey
City6 because he has not “pled any facts to support a hostile work environment claim, or any
specific discrimination in the workplace.” Def. Br. at 30. Defendants also argue that the Individual
Defendants cam-lot be liable since there can be no “aiding and abetting” liability when the claims
against the employer fail. Def. Br. at 30-33. Additionally, Defendants contend that aiding and
abetting liability requires “active and purposeful conduct,” which Plaintiff has failed to allege. Id.
Plaintiff responds by reiterating his arguments: that the creation, publication, and “cover-up” of
the Report created an ongoing and pervasively hostile work environment. P1. Opp’n at 34-35.
The NJLAD prohibits unlawful employment practices and discrimination by an employer.
O’Toole v. Tofutti Brands, Inc., 203 F. Supp. 3d 458, 467 (D.N.J. 2016). “New Jersey courts treat

hostile work environment claims under the NJLAD the same as the Supreme Court treats hostile
work environment actions under Title VII.” Sgro v. BloombergL.P., 331 F. App’x 932, 941 (3d
Cir. 2009). Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (holding that the elements of a
hostile work environment claim under NJLAD “closely resemble the first four elements of [a] Title
VII hostile work environment claim”). Moreover, as discussed in note 5, supra, hostile work
enviromnent claims under Title VII and Section 1981 are reviewed in the same manner. See
Verdin, 124 F. App’x at 96 (“[C]ourts utilize the same analysis for the merits of Title VII and
Section 1981 claims.”).

6

Defendants also argue that Plaintiffs NJLAD claims must be dismissed as against the EEO and
the JCPD, since they are not Plaintiffs employer. Def. Br. at 29 n.5. The Court agrees. “[T]he
lack of an employment relationship between the plaintiff and the defendant will preclude liability
[under the NJLADJ.” Norris v. Securitas Sec. Seres. USA, Inc., No. 10-06809, 2011 WL 3206484,
at *3 (D.N.J. July 27, 2011) (quoting Thomas v. Cty. of Camden, 366 N.J. Super. 582, 594 (App.
Div. 2006)). Since Plaintiff only alleges that he was employed by the City, Count VI is dismissed
as to the remaining Entity Defendants. See Compl. ¶J 19-20.
12

As discussed in the context of Plaintiffs Section 1981 claim, Plaintiff does not adequately
plead a hostile work environment. Fitzgerald, 92 F. Supp. 3d at 240. Accordingly, for the same
reasons, Plaintiffs NJLAD claim for hostile work environment is dismissed as to Jersey City. See
Sanchez v. StmGard Availability Servs. LP, 362 F. App’x 283, 286 (3d Cir. 2010) (dismissing
NJLAD claim for the same reasons as dismissed Title VII claim).
In addition, the LAD, through N.J.S.A. 10:5—12(a), prohibits unlawful employment
practices and discrimination by an employer.

Tarr v. Ciasitili, 181 N.J. 70, 83 (N.J. 2004).

“[I]ndividual liability of a supervisor for acts of discrimination or for creating or maintaining a
hostile environment can only arise through the aiding and abetting mechanism.” Cicchetti v.
Morris Cty. Sheriffs Office, 194 N.J. 563, 594 (N.J. 200$). However, “[t]he NJLAD does not

provide for individual liability for aiding and abetting if the employer is not found liable.”
Toitrtellotte v. Eli Lilly & Co., 636 F. App’x 831, 856 (3d Cir. 2016).

N.J.S.A. 10:5-12(e) governs aiding and abetting liability, which dictates that it is unlawful
“for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce
the doing of any of the acts forbidden under this act, or to attempt to do so.” See Norris V. Securitas
Sec. Servs. USA, Inc., No. 10-06809, 2011 WL 3206484, at *3 (D.N.J. July 27, 2011) (citing
Httrley v. Atlantic City Police Dep ‘t, 174 F.3d 95, 126 (3d Cir. 1999)). New Jersey courts have

broadly interpreted persons subject to aiding and abetting liability. See, e.g., O’Toole, 203 F. Supp.
3d 458, 467 (D.N.J. 2016) (“[C]ourts construe the aiding and abetting theory broadly, such that an
individual supervisor can aid and abet his own conduct.”); DeSantis v. N.J Transit, 103 F. Supp.3d
583, 591 (D.N.J. 2015) (“New Jersey courts have held that an individual can aid and abet, not only
the conduct of another person, but that person’s own conduct.”); Mann v. Estate ofMeyers, 61 F.
Supp. 3d 508, 529-30 (D.N.J. 2014) (concluding that supervisor was a proper party under the

13

NJLAD because “an individual can be held liable under the aiding and abetting provision even
where the individual perfornied the acts of discrimination himself’).7 Nonetheless, “an individual
employee can only be found liable of aiding and abetting if actively involved in the discriminatory
conduct” feraro-Bengte v. Randstad N. Am., LP., No. 03-1650, 2006 WL 2524170, at *12
(D.N.J. Aug. 30, 2006) (internal quotation marks omitted); Failla v. City ofPassaic, 146 F.3d 149,
15$ (3d Cir. 199$) (finding that an “employee aids and abets a violation of the [NJ]LAD when he
knowingly gives substantial assistance or encouragement to the unlawful conduct of his
employer”):
Here, Plaintiff alleges that the Individual Defendants aided and abetted discriminatory
employment practices when they “prepared, disseminated, covered up, circulated, released and
caused to be published the defamatory and racially discriminatory [Report].” Compl. ¶ 122. These
claims are conclusory and lack plausible factual support. Moreover, since the Court finds that the
Complaint does not set forth plausible allegations as to the employer, the City, the aiding and
abetting argument also fails as to the Individual Defendants. Toztrteltotte, 636 F. App’x at $56.
Therefore, this Count is dismissed as to each of the Individual Defendants.
Section 1983 Fourteenth Amendment (Counts II & Ill)
-

Counts II and III raise violations of the Fourteenth Amendment pursuant to Section 1983:
Count II against the Individual Defendants and Count III against the Entity Defendants. Compl.

¶ 6 1-90.

Defendants argue that these counts suffer from multiple deficiencies. First, as to Count

III, Defendants argue that Plaintiff fails to allege that the Entity Defendants adopted a policy or
custom that caused Plaintiffs injuries. Def. Br. at 5-7. Additionally, Defendants argue that Count

But see Amender v. 69 Main St., LLC, No. 08-351, 2012 WL 28194, at *13 (D.N.J. Jan. 3, 2012)
(“A party [under the NJLAD] caimot aid and abet its own unlawful conduct.”).

14

II must be dismissed because “Plaintiff has not made a single non-conclusory factual assertion that
a specific action by any of the Individual Defendants led to the alleged constitutional deprivation.”
Id. at 7. This includes allegations of supervisory liability; which Defendants allege Plaintiff has

not plausibly pled. Id. at 7-10. Also, as to Count II, Defendants argue that the Individual
Defendants are entitled to the protection of qualified immunity. Id. at 10-11. With respect to
Counts II and III, Defendants further argue that Plaintiff fails to plausibly plead either an equal
protection or a due process claim. Id. at 11-17.
1) Monell Liability (Count III)
“A local government may be sued under

§ 1983 only for acts implementing an official

policy, practice or custom.” Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 910 (3d Cir.
1984); Watson v. Abington T14p., 478 F.3d 144, 155 (3d Cir. 2007) (observing that a plaintiff can
establish municipal liability under Section 1983 through either an official policy or custom). “This
type of municipal liability claim is generally referred to as a Monet! claim, based on Monell

i’.

Department ofSocial Services, 436 U.S. 658, 690-91 (1978).” Jtttrowski v. Twp. ofRiverdale, No.

13-7351, 2017 WL 1395484, at *6 (D.N.J. Apr. 17, 2017). The Monet! Doctrine provides “that
liability may not be proven under the respondeat superior doctrine, but must be founded upon
evidence that the government unit itself supported a violation of constitutional rights.” Bietevicz
v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). Thus, “municipal liability attaches only when
execution of a government’s policy or custom, whether made by its lawmakers or by those whose
edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. (internal
quotation marks omitted).
A plaintiff shows that an official policy existed “when a ‘decisionmaker possess[ing] final
authority to establish municipal policy with respect to the action’ issues an official proclamation,

15

policy, or edict.” Id. (quoting Bielevicz, 915 F.2d at 850). On the other hand, custom is established
by “showing that a given course of conduct, although not specifically endorsed or authorized by
law, is so well-settled and permanent as virtually to constitute law.” Id. at 156. Ultimately, to
plausibly plead Monell liability, “[a] plaintiff must identify the challenged policy, attribute it to
the [municipality] itself, and show a causal link between execution of the policy and the injury
suffered.” Kranson v. Valley Crest Nursing Home, 755 F.2d46, 51 (3dCir. 1985) (internal citation
and quotation marks omitted).
In Count III, Plaintiff brings a Fourteenth Amendment claim against three municipal
Defendants: Jersey City, the EEO, and the JCPD.8 Compi.

¶

79-90. Because the City is a

municipality, this Count is subject to the Monell Doctrine.
Plaintiff fails to plausibly plead Moneti liability. Plaintiffs Complaint is replete with
conclusory statements of “policies” and “customs.” See Compi.

¶J 80-85.

For example, Plaintiff

alleges that the Entity Defendants “had in effect policies, procedures, customers and practices that
permitted, condoned and fostered the unconstitutional conduct of the individual defendants.” Id.

¶ $0.

Plaintiff continues that the Entity Defendants “failed to supervise and train its Police and

[]

officers,” and that they “had a general policy, pattern and/or practice of not disciplining Police and
[]officers/supervisors/employees.” Id.

¶ 86.

Further, Plaintiff alleges that the Entity Defendants

“deliberately overlooked and covered up individual employee misconduct.” Id. However, the
Complaint sets forth no plausible facts suggesting improper training, failure to supervise, or failure

8

Arms of municipalities and the municipality itself are treated as a single entity for the purposes
of Section 1983 liability. See Hernandez v. Borough ofPalisades Park Police Dep ‘t, 58 F. App’x
909, 912 (3d Cir. 2003) (“Police departments cannot be sued alongside municipalities because a
police department is merely an administrative arm of the municipality itself.”). However, since
Defendants do not raise this argument, the Court will not raise it sua sponte.
16

to address employee misconduct. Instead, the basis for each of Plaintiffs allegations is solely the
Report.
Plaintiff argues that the investigation of the Report should result in Defendants’ liability.
P1. Opp’n at 2-4. However, Plaintiff does not specifically describe an official policy that violates
the law, nor does he allege a proper causal link between any policy of Defendants and the alleged
harm. See Kranson, 755 F.2d at 51. There are no facts that demonstrate that the investigation into
the Report was handled in a discriminatory manner.9 In fact, the opposite appears true: Plaintiff
alleges that EEO undertook a full, confidential investigation of the Report, including forensic
testing.’0

Throughout Plaintiffs opposition brief, he appears to misunderstand the “policy” inquiry under
the Monell Doctrine. Plaintiff relies on three Jersey City policies: (1) a non-discrimination policy;
(2) a policy requiring police officers to create crash evaluation reports; and (3) investigation
policies. P1. Opp’n at 3-6. Monell referred to policies that, by their nature, lead to a constitutional
tort. Monell, 436 U.S. at 691. The policies cited by Plaintiff could be followed without any
constitutional violation. Indeed, the non-discrimination policy is designed to avoid discrimination,
not countenance it. Further, there is no indication that these facially neutral policies were
implemented in a discriminatory maimer. There is also no indication that the policies were subject
to some unwritten custom that would cause them to result in a constitutional tort.
Plaintiff continues that because the Report was generated on JCPD premises, it can be
reasonably inferred that it was not an isolated instance, but rather a formal policy. P1. Opp’n at
12. This is not a reasonable inference. Regardless of the amount of training provided or the
number of policies implemented, a rogue employee can always type something inappropriate on
an employer’s computer. If this occurs, it does not mean (nor can it be inferred) that the employer
has a formal policy condoning such behavior. Similarly, Plaintiff argues that Defendants failed to
train their subordinates by permitting “unfettered, unchecked and unsecured access to JCPD
computers and equipment.” Id. at 13. first, it appears that Plaintiff actually alleged that a certain
number of persons, rather than all JCPD subordinates, had access to the computer from which the
Report was generated. Second, and more importantly, access to a computer does not lead to a
logical inference that JCPD encouraged or countenanced any person to use the computer
improperly.
10

Plaintiff later contradicts these allegations in his brief and states that “EEO investigations turn a
blind eye to genuine racial discrimination within the Report and pay lip service to the City’s anti
discrimination policy.” P1. Opp’n at 12. Plaintiff provides no plausible allegations to support this
17

Lastly, Plaintiff argues that the Report, “in and of itself’ violates his fourteenth
Amendment rights “against racial discrimination.” P1. Opp’n at 2. Essentially, Plaintiff appears
to be arguing that the Report itself established that the Entity Defendants maintained a forbidden
policy or custom. However, more than a single instance of discrimination is necessary to establish
Monet/liability. See Brown v. City ofPiusburgh, 586 F.3d 263, 292 (3d Cir. 2009) (“[P]roof of a
single incident of unconstitutional activity is not sufficient to impose liability under lionel!, unless
proof of the incident includes proof that it was caused by an existing.

.

.

municipal policy, which

policy can be attributed to a municipal policymaker.”). More importantly, the Report itself does
provide sufficient proof of an unconstitutional policy or custom by the Entity Defendants. Indeed,
the actual policies cited to by Plaintiff are either neutral or expressly designed to combat
discrimination. Thus, Plaintiff fails to plausibly plead a Monet! claim and Count III is dismissed
without prejudice.
2) Individual Defendants’ Liability (Count II)
“Under Section 1983, a plaintiff must plead a deprivation of a constitutional right and that
the constitutional deprivation was caused by a person acting under the color of state law.” Phi/tips,
515 F.3d at 235.

Here, Plaintiff brings a Section 1983 claim, alleging that the Individual

Defendants violated Plaintiffs constitutional rights, including denying him equal protection under
the law, discriminating against him because of his race, and depriving him of “life, liberty and
property without notice and opportunity to be heard.” Compi.

¶J 6 1-78. Analysis of a Section

1983 claim begins by identifying the “exact contours of the underlying right said to have been
violated” and then determining “whether the plaintiff has alleged a deprivation of a constitutional

allegation. To the contrary, Plaintiffs other allegations indicate that EEO acted extensively and
swiffly (even prior to Plaintiffs knowledge of the Report) in investigating the Report.
18

right at all.” A.M ex rel. 1MK. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 579 (3d Cir.
2004). Thus, the Court will first analyze whether Plaintiff has stated a claim for a violation of
equal protection or due
As to Plaintiffs equal protection claim,’2 Plaintiff alleges that “Defendants violated the
provisions of 42 U.S.C.

§ 1983 by denying Plaintiff [] the equal protection of the laws in violation

of the Fourteenth Amendment.” Compl.

¶ 76;

see also Id.

¶ 76 (“The [I]ndividual [D]efendants

acted under color of law to deny Plaintiff Floyd Harley equal protection of the laws and
discriminated against him on the basis of his race in violation of 42 U.S.C

§ 1983”). Plaintiff

provides no factual allegations to support his equal protection argument other than those on which
he premised his hostile work environment claim in Count I. As discussed, Plaintiff fails to

“Defendants also argue that Plaintiff cannot maintain a Section 1983 action against the Individual
Defendants because Iqbal changed the theory of supervisory liability under Section 1983. Def.
Br. at 8-9. Defendants argue that following Iqbal, the Third Circuit has at least narrowed, if not
eliminated, supervisory liability under Section 1983. Id. The Third Circuit has yet to conclusively
detennine the reach of Iqbal and whether “supervisory liability” is no longer applicable to Section
1983 actions. See Jankowski v. Lellock, 649 F. App’x 184, 187 (3d Cir. 2016) (“[W]e have
refrained from answering the question of whether Iqbal eliminated—or at least narrowed the scope
of—supervisory liability because it was ultimately unnecessary to do so in order to dispose of the
appeal then before us.”); Bistrian v. Levi, 696 F.3d 352, 366 n.5 (3d Cir. 2012).
Nonetheless, even under the pre-Iqbal standard, “personal involvement by a defendant
remains the touchstone for establishing liability for the violation of a plaintiffs constitutional
right.” Williams v. Lackawanna Cty. Prison, No. 07-1137, 2010 WL 1491132, at *5 (M.D. Pa.
Apr. 13, 2010). Since the Complaint does not plausibly allege personal involvement concerning
any constitutional violation as to anyone except Crowley, it is not plausibly pled as to the
remaining Individual Defendants. See Argueta v. US. Immigration & Customs Enf’t, 643 F.3d 60,
71 (3d Cir. 2011) (holding that in Section 1983 actions, a plaintiff must “plead that each
Government-official defendant, through the official’s own individual actions, has violated the
Constitution”). Since Plaintiff alleges that Crowley wrote the Report (or at least his signature was
on the Report), the Court will address the equal protection and due process claims as to him.
12

To state a claim for an equal protection violation, a plaintiff must allege that “(1) []he is a
member of a protected class; (2) that {]he was treated differently from similarly situated
individuals; and (3) that this disparate treatment was based on [his] membership in the protected
class.” Knox v. Union Twp. Rd. ofEduc., No. 13-5875, 2015 WL 769930, at *13 (D.N.J. Feb. 23,
2015).
19

sufficiently allege a violation of a hostile work environment pursuant to Section 1981. IfPlaintiffs
equal protection claim in Count Ills based on a theory other than hostile work environment, then
Plaintiff will have to plausibly plead it in an amended complaint. The present Complaint, however,
fails to put Defendants on notice of the precise nature of Plaintiffs equal protection claim. Thus,
the equal protection claims raised in Counts II and III are dismissed.
The due process claims contained in these counts likewise fail.

The Fourteenth

Amendment’s Due Process Clause has both a procedural and a substantive component. Nicholas
v. Penn. State Univ., 227 F.3d 133, 138—39 (3d Cir. 2000). Procedural due process requires the
government to follow fair procedures before depriving a person of a protected property interest.
DeBlasio v. Zoning 3d. of Adjustment for Twp. of W Amwell, 53 F.3d 592, 597 (3d Cir. 1995),
abrogated on other groitnds, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316

F.3d 392 (3d Cir. 2003). For a substantive due process claim challenging the validity of nonlegislative state action, a plaintiff must first establish that he has a protected, fundamental property
interest. Nicholas, 227 F.3d at 139—42. Thus, to state a claim for either procedural or substantive
due process, a plaintiff must allege a protectable interest encompassed by the Fourteenth
Amendment. See Nicholas, 227 F.3d at 139—40 (substantive due process); Houston v. Twp. of
Randolph, 934 F. Supp. 2d 711, 733 (D.N.J. 2013) (procedural due process).
Although not clear from his Complaint, Plaintiff contends in his brief that the harm to his
reputation resulting from the Report, plus the Report’s content, violates his right to due process.
P1. Opp’n at 20. Additionally, Plaintiff alleges that he has a property interest in “employment free
from intentionally or willfully indifferent publication from racially discriminatory and defamatory
material.” Id. at 21.

20

“[R]eputation alone is not an interest protected by the Due Process Clause.” Hilt v.
Borough ofKutztown, 455 F.3d 225, 236 (3d Cir. 2006). Instead, a plaintiff must show “a stigma
to his reputationptus deprivation of some additional right or interest.” Id. (hereinafter the “stigmaplus test”). Generally, courts have found that nothing short of a plaintiff losing his job can qualify
as the “plus” factor. See, e.g., Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 492 (3d Cir. 1998)
(plaintiff suspended with pay, but not fired, did not rise to the level of a due process claim); Kelly
v. Borough of Sayreville, Ni, 107 F.3d 1073, 1077—1078 (3d Cir. 1997) (plaintiff, who was

reprimanded and disciplined, but was never suspended, removed, fined or reduced in rank did not
“suffer[] a deprivation beyond the injury to his reputation”). Here, there is no indication that
Plaintiff suffered any employment repercussions regarding the Report (apart from the claimed
injury to his reputation). It appears that Plaintiff remained an employee of Jersey City at the time
of filing this action. See Compl.

¶ 6 (“Plaintiff.

.

.

is employed with the City of Jersey City.”).

Plaintiff has not alleged that any adverse employment action has been taken against him, much
less his termination. Thus, Plaintiff does not plausibly plead a violation of the stigma-plus test,
and his procedural due process claims are dismissed without prejudice.
The standard to plead a claim for substantive due process is even higher, and requires
plaintiff to plead a “constitutionally fundamental” interest. Nicholas, 227 F.3d at 140. In other
words, “[n]ot all property interests entitled to procedural due process protection are entitled to
substantive due process protection.” Whittaker v. Cty. of Lawrence, 674 F. Supp. 2d 668, 699
(W.D. Pa. 2009), aff’d, 437 F. App’x 105 (3d Cir. 2011). Since the Court finds Plaintiffs stated
interests insufficient under a procedural due process inquiry, they necessarily fail under the more

21

demanding substantive due process inquiry. Therefore, Plaintiffs substantive due process claims
in Counts II and III are dismissed without prejudice.13
NJCRA (Count V)
Count V is brought pursuant to the NJCRA, alleging that Plaintiff was deprived of “substantive
due process and other privileges and immunities secured by the Constitution of the State of New
104. Again, Plaintiff contends that the discriminatory Report is the basis for

Jersey.” Compi.

¶

his claim. Id.

103-109. Defendants argue that since the NJCRA is interpreted analogously to

¶J

Section 1983, this claim should be dismissed for the same reasons discussed under the analysis of
the 1983 substantive due process count.14 Def. Br. at 17-19.
The Court agrees. The NJCRA is interpreted analogously to Section 1983. See Co/es v.
Car/mi, 162 F. Supp. 3d 380, 404 (D.N.J. 2015) (“[C]ourts have repeatedly construed the NJCRA
in terms nearly identical to its federal counterpart: Section 1983.”). Since Plaintiffs substantive
due process claim fails under Section 1983, it necessarily fails under the NJCRA.’5 Therefore,
Count V is dismissed without prejudice as to all Defendants.

13

Because the Court is dismissing Counts II and III on these grounds, it does not reach Defendants’
argument that the Individual Defendants are entitled to qualified immunity.
14

The Court notes, that while not necessary to detennine this motion, Defendants’ argument that
their actions do not “shock the conscience” is also persuasive. Def. R.Br. at 7. Defendants’ actions
were not “shocking” to the extent they responded reasonably with a diligent investigation in
response to the Report. This investigative response does not meet the standard for a due process
claim.
15

The NJCRA does not provide a means to recover based on a violation of procedural due process.
See Tumpson v. Farina, 218 N.J. 450, 477 (2014) (“Section 1983 provides remedies for the
deprivation of both procedural and substantive rights while [the NJCRA] provides remedies only
for the violation of substantive rights.”). Also, while Plaintiffs Complaint does not explicitly
bring an equal protection claim pursuant to the NJCRA, the United States and New Jersey
Constitutions have extremely similar prohibitions on racial discrimination. See Major Tours, Inc.
v. Co/orel, 720 F. Supp. 2d 587, 604 (D.N.J. 2010).
22

Conspiracy (Counts IV & VIII)
Plaintiff brings two counts of conspiracy against Defendants
Sections 1985 and 1986, and Count VIII

—

—

Count IV pursuant to

Civil Conspiracy.’6 To sufficiently plead a Section

1985(3) claim, a plaintiff must establish:
(1) a conspiracy; (2) for the purpose of depriving a person or class
of persons equal protection under the law or equal privileges and
immunities under the law; (3) an act in furtherance of the
conspiracy; and (4) injury to a plaintiffs property or his person, or
deprivation of a right or privilege of a U.S. citizen.
McArdle v. Hufnagel, 588 F. App’x 118, 120 (3d Cir. 2014). Section 1985(3) actions are limited
to conspiracies predicated on “racial, or perhaps otherwise class based, invidiously discriminatory
animus.” Lake v. Arnold, 112 F.3d 622, 685 (3d Cir. 1997); Falat v. Cty. ofHunterdon, No. 126804, 2014 WL 6611493, at *13 (D.N.J. Nov. 21, 2014) (“The conspiracy must be directed at the
plaintiff because he belongs to a given class.”). In addition, a claim for conspiracy “must contain
supportive factual allegations.” Ivan v. Cty. ofMiddlesex, 595 F. Supp. 2d 425, 484 (D.N.J. 2009).
“The factual allegations supporting the conspiracy claim may not be generalized or conclusory.”
Id.; see also Schlichten v. dy. ofNorthampton, 279 F. App’x 176, 179 (3d Cir. 2008) (requiring a
conspiracy to be pled with specificity). Thus, mere conclusory allegations that a conspiracy exists

16

It is unclear whether Plaintiffs allegations in Count VIII are brought pursuant to Section 1983
or common law conspiracy. See Compl. ¶ 140(a) (alleging a violation of Plaintiffs rights “as
secured by the United States Constitution, New Jersey State Statutes and Common [L]aw”). If
brought pursuant to Section 1983, the same analysis applies to a conspiracy under Section 1983
and Section 1985(3). See Scheib v. Butcher, 602 F. App’x 67, 68 (3d Cir. 2015). If brought
pursuant to common law conspiracy, there are “similar requirements.” Major Tours, Inc., 720 F.
Supp. 2d at 610; see also Galicki v. New Jersey, No. 14-169, 2015 WL 3970297, at *9 (D.N.J.
June 29, 2015) (requiring a complaint alleging New Jersey common law conspiracy to include “the
who, what, when, where, and how of the conspiracy”). Thus, the Court’s analysis in this section
applies to Counts IV and VIII.

23

will not survive a motion to dismiss. Garlanger v. Verbeke, 223 F. Supp. 2d 596, 605 (D.N.J.
2002). Instead, “a plaintiff must set forth allegations that address the period of the conspiracy, the
object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that
purpose.” Ivan, 595 F. Supp. 2d at 484.
Additionally, “[a] plaintiff must establish a valid
under

§ 1986.”

§ 1985 claim in order to state a claim

Carrington v. City ofJersey City, No. 06-5367, 2008 WL 2061147, at *7 (D.N.J.

May 12, 2008); see also Muhammad v. Dempsey, 531 F. App’x 216, 219 n.4 (3d Cir. 2013) (finding
that since plaintiffs Section 1985 claim fell short, his Section 1986 claim necessarily failed as
well since “liability under [Section 1986] is predicated on actual knowledge of § 1985 violation”).
Here, Plaintiff fails to support his conspiracy claim with sufficient factual allegations.
Plaintiff merely pleads that “Defendants conspired against Plaintiff

[] and violated his

constitutional rights by collaborating to disseminate, investigate, cover up, release and public
defamatory and racially discriminatory Crash Review Evaluation Report.” Compl.

¶J 92, 96, 138.

In short, Plaintiff alleges the conspiracy in a wholly conclusory fashion. Plaintiff does not address
the necessary elements with sufficient factual particularity. He does not address “the period of the
conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken
to achieve that purpose,” as required by Section 1985. Ivan, 595 F. Supp. 2d at 484. Therefore,
Plaintiffs conspiracy claims in Counts IV & VIII are dismissed without prejudice.
Defamation (Count VII)
Count VII is a claim for Common Law Defamation. Compl.

¶J 128-136. It alleges that

Defendants “had knowledge that the content of the Crash Review Evaluation report

[] was false

and caused that report to be published with reckless disregard of its truth or falsity.” Id.
Plaintiff further alleges that the Report “amount[s] to defamation and libel per se.” Id.

24

¶ 130.

¶ 136.

Defendants argue for dismissal of this claim for numerous reasons. First, because Plaintiff
did not file a timely notice of tort claim as required by the New Jersey Tort Claims Act (“NJTCA”).
Def. Br. at 3 3-34. Second, Defendants argue that they are entitled to a qualified privilege defense.
Id. at 34-36. And third, Defendants assert that Plaintiff fails to state a prima fade claim of

defamation. Id. at 36-39.
Since the Court finds Defendants’ third argument dispositive, it will not address the first
two. Defamation requires a plaintiff to allege that the defendant “(1) made a false and defamatory
statement concerning the plaintiff, (2) communicated the statement to a third party, and (3) had a
sufficient degree of fault.” Mangan v. Corp. Synergies Grp., Inc., 834 F. Supp. 2d 199, 204 (D.N.J.
2011) (citing Singer v. Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005)). Under New
Jersey law, “whether a statement is defamatory depends on ‘its content, verifiability, and context.”
Id. at 204-05 (quotingLynch v. N.J Edttc. Assoc., 161 N.J. 152, 167 (1999)).

Here, Plaintiff fails to meet the first element. The Report uses a loathsome racial slur in
describing Plaintiff, but a slur is not the same as defamation. Sims-Felton v. Hegedits, No. 114923, 2013 WL 1844512, at *4 (D.N.J. Apr. 30, 2013) (“[E]ven though plaintiffs allegation that
defendants used racial epithets is reprehensible, name-calling does not constitute actionable
defamation.”). Although such statements are morally repugnant, courts have found them nonactionable as defamation. See Taylor v. Metzger, 152 N.J. 490, 526 (1998) (“Recognizing the
chilling effect such a holding would cast over a person’s freedom of expression, most courts do
not find words of bigotry or racism to constitute actionable defamation, thus protecting the freedom
to express even unpopular, ugly and hateful, political, religious, and social opinions.”) (internal
quotation marks omitted).

25

Thus, as pled, Plaintiffs allegations do not state a claim for defamation. Count VII is
dismissed without prejudice)7
VI. CONCLUSION

In sum, the Court GRANTS Defendants’ motion. Plaintiffs Complaint is dismissed as to
all counts without prejudice. Plaintiff has thirty (30) days to file an amended complaint, if he so
chooses, consistent with this Opinion and in accordance with Local Civil Rule 15.1.18

p

appropriate Order accompanies this Opinion.
Date: June 27, 2017

fl2O Q\\ç
JohN MICHAEL AZUEZ
UNITED STATES DISTRICT JUDGE

17

Defendants also argue that the official capacity claims throughout the Complaint must be
dismissed against the Individual Defendants. Def. Br. at 3 9-40. Defendants reason that suits
against government officials in their official capacity are the same as suits against the entity, and
therefore are redundant and should be dismissed. Id. Plaintiff admits, “an ‘official capacity’ claim
against a local government official is functionally a claim against the local government entity,”
but argues that “[a]t this early stage of pre-discovery litigation, there is no laudable purpose to
dismiss the official capacity claims against the individual defendants.” P1. Opp’n at 39.
Since the entire Complaint is otherwise dismissed without prejudice, the Court does not
reach the official capacity arguments at this time.
18

Effective May 10, 2017, Local Civil Rule 15.1 states, in part, that:
A party who files an amended pleading in response to an Order
authorizing the filing of that pleading to cure a defect in its pleading
shall file:
(1) a copy of the amended pleading, complete with a handwritten or
electronic signature; and
(2) a form of the amended pleading that shall indicate in what
respect(s) it differs from the pleading that it amends, by
bracketing or striking through materials to be deleted and
underlining materials to be added.
26