KHAN et al v. CITY OF PATERSON et al

Filing 13

OPINION. Signed by Judge John Michael Vazquez on 5/2/18. (cm, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

lU-IAN, et al.,
Plaintiffs,

Civil Action No. 17-5006 (JMV)
V.

OPINION
CITY Of PATERSON, et al.,
Defendants.

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

This case arises out of alleged religious discrimination, among other things. involving
members of the Paterson Board of Adjustment. Plaintiffs Aheya Khan, Montaha Deeb, and Alaur
Khondokar (collectively, “Plaintiffs”) allege that Defendants City of Paterson (the “City”) and
City of Paterson Board of Adjustment (the “Board”) are responsible for the harassment and
removal of Plaintiffs from the Board based on Plaintiffs’ Muslim faith and respective ethnicities.
Currently pending before the Court is Defendants’ motion to dismiss Plaintiffs’ Complaint
pursuant to Fed. R. Civ. P. 12(b)(6). D.E. 6. The Court reviewed the submissions in support and
in opposition,’ and considered the motion without oral argument pursuant to fed. R. Civ. P. 78(b)

Plaintiffs’ Complaint will be referred to hereinafter as “Compl.” (D.E. 1); Defendants’ brief in
support of its motion to dismiss the Complaint will be referred to hereinafter as “Defs. Br.” (D.E.
6); Plaintiffs brief in opposition will be referred to hereinafter as “P1. Opp. Br.” (D.E. 10);
Defendants’ reply brief will be referred to hereinafter as “Defs. Reply.” (D.E. 11).

and L. Civ. R. 78.1(b). For the reasons stated below, Defendants’ motion to dismiss is GRANTED
in part and DENIED in part.
I.

FACTUAL BACKGROUND2

Plaintiffs are former board members of the Board. Compl.

¶ 6-7, 11. Plaintiff Khan was

appointed as an Alternate Commissioner to the Board on July 1, 2013 and was subsequently
reappointed to the Board on July 1, 2015. Id. at

¶ 11-12. Plaintiff Deeb was appointed as a

Commissioner to the Board in 2011. Id. ¶J 11-12. Plaintiff Khondokar was appointed to the Board
in 2012. Id. at

¶J 11-12. Plaintiffs were the only Muslims on the Board.

Id. at ¶ 14, 17.

Beginning in 2015, Plaintiffs claim that they were subjected to discrimination from nonMuslim Board members. Id. at

¶ 15. For example, when individuals with seemingly Islamic

names would appear before the Board, non-Muslim Board members would request that Plaintiffs
recuse themselves due to a “conflict of interest.” Id. at

¶ 16. When Muslim, Bengali, or Arab

applicants appeared before the Board, the other Board members would question Plaintiffs’ actions
vis-à-vis the applicants. Id. at ¶ 18.
Plaintiffs contend that the harassment intensified on July 9, 2015 at the Board Re
Organization meeting. Id. at ¶ 19. At the Re-Organization meeting, Khan nominated Deeb to be
chairwoman of the Board

—

a position that Deeb had held since 2011. Id. at ¶jJ 20-21. Board

Member Geraldine Rayfield requested that Khan withdraw his nomination of Deeb. Id. at

¶ 22-

23. Rayfield cited articles in the paper regarding the ethics of the Board and referred to a “conflict

The factual background is taken from the Plaintiffs’ Complaint, D.E. 1. When reviewing a
motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. fowler v.
UFi1vlCShadyside, 57$ f.3d 203, 210 (3d Cir. 2009).

2

The Court notes that the Complaint describes the facts in a somewhat non-linear,
confusing, and repetitive fashion. Accordingly, the Court reorders some factual allegations in an
attempt to make more sense of Plaintiffs’ allegations.
2

of interest” among certain Board members. Id. Rayfield continued that there was a conflict of
interest in a current matter because Deeb knew the person appearing before the Board. Id. at ¶ 25.
According to Plaintiffs, Rayfield was mistaken because the applicant was not Deeb’s friend; rather,
the person was just of Middle Eastern descent. Id. Gerald Thaxton, another Board member, then
challenged Deeb’s Paterson residency status. Id. at

¶J 28-30. The Board’s attorney, Marco A.

Laracca, did not stop the Board from discussing Deeb’s “conflict of interest” or her residency. Id.
at ¶ 32.
Khan did not withdraw Deeb’s nomination. Id. at

¶ 33. Deeb received four votes, but

Thaxton received five votes and was appointed Chairperson. Id. at

¶

35. Also attending the

meeting were Board secretory Margarita Rodriguez, Councilman Mendez, and members of the
media. Id. at

¶ 37-39. Plaintiffs claim that Mendez later told Khan that he did not like Deeb

because “she was sleeping with the black guy.” Id. at ¶ 38.
On July 14, 2015, Deeb submitted a letter to Ruben Gomez, the City’s Director of
Economic Development, regarding the events at the Re-Organization meeting, including the
actions of Rayfield and Thaxton. Id. at

¶J 40-41. In the letter, Deeb described how disparaging

remarks were made only when Arab applicants appeared before the Board. Id. at ¶ 44. Deeb also
wrote that Rayfield repeatedly accused her of having personal relationships with applicants who
were before the Board.

Id. at

¶

45.

Deeb’s letter requested that Gomez investigate the

discriminatory conduct. Id. at ¶ 43. Plaintiffs claim that the City did nothing to investigate Deeb’s
complaint for eight months. Id. at ¶ 46, 149.
At a Board meeting held on September 26, 2015, some Board commissioners introduced a
resolution to remove Deeb based on her repeated absences from Board meetings. Id. at

¶ 47.

Initially Deeb’s absences were due to a medical condition. Id. Khan opposed the motion. Id.

3

Paterson City Ordinances provide for removal of a commissioner if they miss three consecutive
meetings, but Plaintiffs claims that Thaxton was not removed from the Board when he missed
meetings over several months. Id. at ¶J 49-50.
On October 13, 2015, Khan wrote a letter to Laracca, counsel to the Board, copying Gomez
and McKoy, and described “unfair treatment of applicants to this Commission who are of Middle
Eastern decent [sic],” and disrespect to Plaintiffs, based on their religion, by Thaxton, Rayfield,
and Rodriguez. Id. at

¶J 62-63. The letter stated that because of “unacceptable behavior of

appointed officials to the City of Paterson, Commissioners Deeb, Khan, and Khondokar will not
be participating in further Commission meetings until the Paterson Municipal Council resolves
this matter.” Id. at ¶ 64.
On October 22, 2015, Deeb sent a letter to Council President William C. McKoy discussing
the resolution to remove her based on absences, as well as Deeb’s complaints regarding
discrimination by Commissioners and the Board Secretary. Id. at ¶ 50. Her letter stated, in part:
[O]n numerous occasions, there have been vocal disparaging
remarks made during public meetings about the circumstances
surround [sic] my pending lawsuit. There were also circulated
disparaging statements made to the effect that I have been engage
[sic] in a personal relationship with applications [sic] of the BOA
who are of Middle Eastern Decent [sic]. The Board Secretary has
publically accused me or orchestrating her removal as Board
Secretary. The Board Secretary refused to reassign my seat during
the board meeting, afier receiving directive from Ruben Gomez.
Instead, she began yelling and screaming in a public setting that I
was very difficult to deal with. Chairwoman Thaxton and Board
Secretary [sic] informed me that Mr. Gomez had no authority over
the BOA. The Board Secretary’s final statement was that she would
not be seating me in third chair because she claimed that I would be
spying on her.
Id. at

¶ 51.

4

Plaintiffs claim that on October 27, 2015, the Board considered an application to operate a
poultry slaughter house and retail store of products certified as Halal. Id. at ¶ 68. Rayfield asked
“{w]hy they have to be different?,” accused Khan of testifying for the applicant, and argued that
Khan had a “conflict” based on the applicants’ Islamic name. Id. at ¶ 71.
On February 2, 2016, Khan attended a City Council meeting to publically inquire why the
Council had not investigated Plaintiffs’ discrimination complaints after eight months. Id. at ¶ 73.
On February 3, 2016, the City Council members called for a hearing to resolve the disputes among
the members of the Board. Id. at

¶ 74. In the four months preceding the Council’s decision to

hold a hearing, Plaintiffs had been boycotting Board meetings. Id. at ¶ 75.
On february 29, 2016, Deeb signed a settlement agreement (the “Settlement Agreement”)
with the City as to a lawsuit pursuant to the New Jersey Law Against Discrimination (“NJLAD”),
N.J.S.A. 10:5-1, et seq., and 42 U.S.C.

§ 1983 (“Section 1983”).

Id. at

¶

53. The Settlement

Agreement released the City of Paterson from “any conduct which has occurred up until and
through the date of this Agreement.” Id. at

¶ 54. Plaintiff claims that after the Settlement

Agreement was executed and before the first payment to Deeb, Defendants made her submit to a
“Patriot Act Search.” Id. at ¶ 55.
In March 2016, the Council again held hearings in an attempt to resolve the disputes among
Board members. Id. at ¶ 77. At the meeting, Plaintiffs claim that the Council focused on Plaintiffs’
absences rather than Plaintiffs’ complaints regarding discrimination. Id. at

¶ 7$. At the hearing,

Councilperson Davila asked why Khondokar was not present. Id. at ¶ 82. When Khan stated that
Khondokar’s mother recently died and that Muslim practice forbid Khondokar from participating
in any public function for forty days, Plaintiffs allege that Davila criticized the Muslim faith and
said that “in her religion we continue to work.” Id. at ¶ 82.

5

On March 24, 2016, Deeb wrote a letter to members of the Council and the Board stating
that “when applicants come before the Board, some of the Board members focus on the applicant’s
personal characteristics and background, rather than merit and the substance of the project request
before the Board.” Id. at

¶ $4. Deeb also wrote that some of the Board members ask applicants

“[h]ow many children they have? And [w]hy so many?” Id. at ¶ $5.
At some point in time, Rodriguez accused Deeb of having an improper relationship with a
married Muslim applicant. Id. at ¶ $6. Plaintiffs claim that Rodriguez started this rumor, and that
Rayfield repeated the rumor while indicating that Deeb should not be allowed to attend, review,
or vote on the applicant’s project. Id. at

¶ $7. Deeb also found out that Rodriguez called the

applicant at his home at 1:00 A.M. and asked if he was having a romantic relationship with Deeb.
Id. at ¶ $9. Deeb contacted Gomez and two other municipal directors to tell them what Rodriguez

had said, Id. at

¶ 88, and Gomez suggested that Deeb confront Rodriguez,

Id. at

¶ 90. Deeb tried

meeting with Rodriguez (along with Gomez and Barbara McLennon3), but Rodriguez refused to
discuss the problem, became aggressive towards Deeb, and left. Id. at ¶J 91-97. Khan confronted
Rodriguez about her conduct towards Deeb, and Rodriguez allegedly stated that “you are all the
same.” Id. atJ 100.
In May 2016, after the City Council election, the Board passed a resolution to remove
Plaintiffs from the Board. Id. at
appointed to the Board. Id. at

¶ 10$. On July 5, 2016, Rayfield and Khondokar were not re

¶ 109. In September 2016, the City Council voted to remove the

Muslim members of the Board before their terms were up. Id. at ¶J 111, 125 (Khan’s term ended

Plaintiffs state that McLennon is a “municipal director.” Compl. at ¶J 88.
6

in 2019), 126 (Deeb and Khan were terminated before the end of their terns).4 Plaintiffs had been
compensated $75 for regular meetings and $150 for special meetings of the Board. Id. at

¶

127.

This compensation ended in May 2016. Id. Plaintiffs claim that the City Council never completed
its investigation and retaliated against Plaintiffs because they complained about the discrimination
that they faced on the Board. Id. at ¶ 112.
Plaintiffs claim a variety of damages, including emotional stress and loss of public
reputation. Plaintiffs allege that Khan has been pushed out of Paterson and his reputation has been
tarnished in his community. Id. at ¶J 114-115, 117. Khan, Deeb, and Khondokar all suffer from
emotional distress stemming from embarrassment, humiliation, and harassment. Id. at

¶J 116,

120-121. Khan and Deeb specifically claim that they were unable to freely express their Islamic
culture and religion because of the Board’s actions. Id. at ¶J 119, 124.
II. PROCEDURAL HISTORY

On July 7, 2017, Plaintiffs filed a Complaint against the Defendants. D.E. 1. On August
2$, 2017, Defendants filed this motion to dismiss the Complaint pursuant to Fed. R. Civ. P.

12(b)(6). D.E. 6. Plaintiffs submitted a brief in opposition, D.E. 10, to which Defendants replied,
D.E. 11.
III. LEGAL STANDARD

Rule 12(b)(6) permits a motion to dismiss for “failure to state a claim upon which relief
can be granted[.j” For a complaint to survive dismissal under the rule, it must contain sufficient
factual matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Belt Ati. Corp. v. Twombty, 550 U.S. 544, 570 (2007)). A claim is facially

The exact method by which Plaintiffs were removed from the Board, and the legal relationship
between the Board and the Council, are not set forth in the Complaint.
‘

7

plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678.
Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery
will uncover proof of her claims.” Connelty v. Lane Const. Corp., 809 f.3d 780, 789 (3d Cir.
20 16).
In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowlerv. UPMCShadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, not entitled to a presumption of
truth. Burtch v. Mi/berg factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). A court, however, “must
accept all of the complaint’s well-pleaded facts as true.” fowler, 578 F.3d at 210.

Even if

plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do
not state “a legally cognizable cause of action.” Turner v. IF. Morgan C’hase & so., No. 14-7 148,
2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
IV. ANALYSIS
Plaintiffs bring ten counts: violations of the New Jersey Law Against Discrimination,
N.J.S.A.

§ 10-5-1 et seq., (“NJLAD”) based on Plaintiffs’ religion (Count One); violations of

NJLAD based on Plaintiffs’ ethnicity (Count Two); violations of NJLAD based on a hostile work
environment (Count Three); deprivation of Plaintiffs’ First Amendment rights of expressive
association pursuant to 42 U.S.C.

§ 1983 (“Section 1983”) (Count F our); deprivation of Plaintiff s

procedural due process rights pursuant to Section 1983 (Count Five); violations of NJLAD based
on acts of retaliation taken against Deeb (Count Six); violations of NJLAD based on acts of
retaliation taken against Khan (Count Seven); violations of NJLAD based on acts of retaliation
taken against Plaintiffs (Count Eight); violations of Plaintiffs’ First Amendment rights to associate

8

based on acts of retaliation against Plaintiffs pursuant to Section 1983 (Count Nine); and
discrimination and retaliation against Deeb based on Defendants’ “Patriot Act Search” (Count
Ten). Compl. at ¶j 129-276. Defendants move to dismiss based on Deeb’s Settlement Agreement,
lack of a private cause of action under the Patriot Act, and failure to plausibly plead claims under
Section 1983 and NJLAD.
a. The Settlement Agreement
As an initial matter, Defendants argue that the express terms of the Settlement Agreement

between Deeb and the City relieve the City from any liability as to Deeb for conduct that occurred
through February 29, 2016. Defs. Br. at 6. The Court has limited information about the Settlement
Instead, the Complaint briefly describes the

Agreement because neither party provided it.

agreement. Compi. at ¶J 53-55. The Complaint states that “Deeb signed a Settlement Agreement
and Release on February 29, 2016 releasing the City of Paterson from a lawsuit based on the New
Jersey Law Against Discrimination.

.

.

and 42 U.S.C.

§ 1983.” Compl. at ¶ 53. The Complaint

continues that the agreement released the City from “any conduct which has occurred up until and
through the date of this Agreement.” Id. at ¶ 54. Plaintiffs admit that “Defendants’ liability arises
from the fact that they removed Deeb after the Settlement Agreement was executed; this fonTis the
basis of her liability. Other allegations in the Complaint discussing Ms. Deeb prior to February
29, 2016 describe the circumstances that the other Plaintiffs Khan and Khondokar had to endure.”
P1. Opp. at 7. The Court accepts Plaintiffs’ admission that all factual allegations related to Deeb
up to and including the date of the Settlement Agreement are not the basis for her claims. Deeb
reserves the right to make an in liinine motion before trial to determine if any of the factual
allegations prior to the date of the Settlement Agreement can be otherwise used as evidence to
support her current claims.

9

b. Count 10 (Patriot Act)
Plaintiffs claim that after the parties reached a settlement, “Defendants made Deeb submit
to a Patriot Act Search.” Compl. at ¶ 269. According to Plaintiffs, nothing was discovered during
the search, Id. at ¶ 274, and the “demand for the Patriot Act Compliance was done to harass Deeb
and to continue to retaliate against her,” Id. at ¶ 276. The Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act
of 2001 provides no private cause of action. Ray v. first Nat. Bank of Omaha, 413 F. App’x 427,
430 (3d Cir. 2011) (finding that “courts that have considered the question have concluded that the
Patriot Act does not provide for a private right of action for its enforcement”) (citing Hanninen v.
Fedoravitch, 583 F.Supp.2d 322, 326 (D. Conn. 2008); Med. Supply Chain, Inc. v. Neoforma, Inc.,
419 F.Supp.2d 1316, 1330 (D. Kan. 2006)); see also Grady

United States Dep’t ofDef No. 16,

14293, 2017 WL 35531, at *5 (S.D. Fla. Jan. 4,2017). affd 702 F. App’x 929 (11th Cir. 2017);
Ibn-Durtya v. Curty, No. 306-473, 2007 WL 1191715, at *2 (W.D. Ky. Apr. 18, 2007).
Accordingly, Count Ten is dismissed with prejudice.
b. Plaintiffs’ Section 1983 Claims (Counts Four, Five, and Nine)5
Plaintiffs bring Counts Four, Five, and Nine pursuant to Section 1983. Specifically, Count
Four alleges that the “conduct of Defendants constitutes an attempt to deprive Plaintiffs of their
Rights to Freedom of Association, in violation of 42 U.S.C. 1983, the First Amendment of the
United States Constitution, and Article I of the New Jersey Constitution, Paragraphs 5 and 6,”
Compl. at

¶

16$; Count Five alleges that “Defendants deprived Plaintiffs of their procedural due

The parties provide no analysis regarding the legal status of the Board vis-à-vis the City or the
Council, nor any analysis about how this may impact Plaintiffs’ claims. The parties analyze the
City, Board, and Council together although the Council is not a named Defendant. Accordingly,
the Court assumes for the purposes of this motion that the City, Board, and Council are part of a
single municipal entity.
10

process rights, in violation of 42 U.S.C. 1983, the Fourteenth Amendment.

.

.

,

and Article I of the

New Jersey Constitution,” Id. at ¶ 185; and Count Nine alleges that “Defendants deprived Plaintiff
Khan of his rights to freedom of speech and was retaliatory [sic], in violation of 42 U.S.C. 1983,

the First Amendment.

.

.,

and Articles I, IV, and VI of the New Jersey Constitution, Id. at ¶ 260.6

i. Monet! Liability

Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress[.]
Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state a claim under Section 1983, a plaintiff must demonstrate that “(1) a person
deprived him of a federal right; and (2) the person who deprived him of that right acted under color
of state or territorial law.” Burtv. CfGHeatth $ys.,No. 15-2279, 2015 WL 1646849, at *2 (D.N.J.
Apr. 14, 2015).
Plaintiffs bring their claims against the City and the Board. ‘While a municipality may be
liable under Section 1983, it cannot be held liable under a theory of respondeat superior. Monell
v. Dep’t ofSoc. Servs. of üy of New York, 436 U.S. 658, 691 (1978). “A municipality may only

be held liable under

§ 1983 if the plaintiff identifies a municipal ‘policy’ or ‘custom’ that was the

Plaintiffs repeatedly claim that Defendants violated the New Jersey State Constitution.
However, Plaintiffs do not identify any vehicle, such as the New Jersey Civil Rights Act, by
which they bring these claims. Accordingly, the Court dismisses without prejudice any claims
based on the New Jersey State Constitution.
6

11

‘moving force’ behind the injury.” Jewett v. Ridley Twp., 497 F. App’x 182, 185 (3d Cir. 2012)
(quoting Monell, 436 U.S. at 694). “In other words, the plaintiff must show that the municipality,
through one of its policymakers, affirmatively proclaimed the policy, or acquiesced in the
widespread custom, that caused the violation.” Noble v. Cit’ of camden, 112 F. Supp. 3d 208, 221
(D.N.J. 2015) (internal citation omitted). “A plaintiff may show the existence of a policy when a
decision-maker with final authority issues an official proclamation, policy, or edict.... [A c]ttstorn
may be established by showing that a given course of conduct, although not specifically endorsed
or authorized bylaw, is so well-settled and permanent as virtually to constitute law.” Id. (emphases
added) (internal quotations and citations omitted).
Additionally, a plaintiff must show that the unlawful policy or custom was the proximate
cause of the plaintiffs injuries. The United States Supreme Court has observed the following as
to proximate cause:
As our § 1983 municipal liability jurisprudence illustrates, however,
it is not enough for a § 1983 plaintiff merely to identify conduct
properly attributable to the municipality. The plaintiff must also
demonstrate that, through its deliberate conduct, the municipality
was the ‘moving force’ behind the injury alleged. That is, a plaintiff
must show that the municipal action was taken with the requisite
degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
3d. of Cty. Comm’rs ofBiyan Cty., Oki. v. Brown, 520 U.S. 397, 404 (1997); see also Watson v.
Abington Tp., 47$ F.3d 144, 156 (3d Cir. 2007); Bielevicz v. Dttbinon, 915 F.2d 845, 850 (3d
Cir. 1990).
The City and the Board can only be liable under Section 1983 pursuant to a Monell theory
of liability. In this case, the Court finds that Plaintiffs fail to plausibly state a claim for municipal
liability because Plaintiffs fail to allege a policy or custom.

Plaintiffs do not allege even a

conclusory claim of policy or custom, much less the necessary plausible facts to properly allege a
12

policy or custom. Accordingly, Plaintiffs’ Counts F our, Five, and Nine are dismissed without
prejudice. See, e.g., Pttrvis v. City ofNewark. No. 16-1830, 2017 WL 1032991, at *3 (D.N.J. Mar.
16, 2017) (dismissing claim against city because plaintiff failed to plausibly plead facts
demonstrating a policy or custom); Benjamin v. F. Orange Police Dep ‘t, 937 F. $upp. 2d 582, 596
(D.N.J. 2013) (same).

Nevertheless, because the Court will allow Plaintiffs to amend their

Complaint, the Court will engage in a short analysis of whether each Section 1983 claim is
otherwise plausibly pled.
ii. Count Four (Expressive Association)

Count Four brings a claim for deprivations of Plaintiffs’ First Amendment rights to
freedom of association pursuant to Section 1983. Compl. at

¶J

166-169. Specifically, Plaintiffs’

claim that “Deeb, Khondokar, and Khan are unable to freely express or associate with their Islamic
culture and religion as they are afraid of the continued harassment and public ridicule.” Id. at

¶

167. The Court construes Plaintiffs’ pleadings as alleging violations of the First Amendment’s
protection of freedom of expressive association.
The First Amendment provides a “right to associate with others in pursuit of a wide variety
of political, social, economic, educational, religious, and cultural ends.” Roberts v. US. Jaycees,
468 U.S. 609, 622 (1984). “{T]he expressive associational right is reserved for groups that engage
in some form of protected expression, and ‘there is no constitutional right to associate for a purpose
that is not protected by the First Amendment.” Coles

Car/mi, 162 F. Supp. 3d 380, 394 (D.N.J.

2015) (quoting Salvation Army v. Dep’t of Comtv. Affairs of New Jersey, 919 F.2d 183, 199 (3d
Cir. 1990)). As the Third Circuit summarized, the Supreme Court “has cast a fairly wide net in its
definition of what comprises expressive activity,” Pi Lambda Phi Fraternity, Inc. v. Univ. of

13

Pittsburgh, 229 f.3d 435, 443, however, it has also cautioned that “protected expression does not

include any possible expression,” Id. at 444.
Here, the Court finds that Plaintiffs do not provide sufficient allegations that they were
engaged in any expressive association. Plaintiffs’ repeated allegation that “Deeb, Khondokar, and
Khan are unable to freely express or associate with their Islamic culture and religion as they are
afraid of the continued harassment and public ridicule,” Compl. at

¶J 156, 167, are conclusory

allegations that do not provide the neccesary basis from which the Court can draw a reasonable
inference that Defendants violated Plaintiffs’ first Amendment rights. See Ashcroft, 556 U.S. at
67$ (stating that a claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”).
Accordingly, Count Four is dismissed without prejudice.
iii. Count Five (Procedural Due Process)

Count five brings a claim for deprivations of Plaintiffs’ procedural due process rights.
Compi. at

¶ 170-1 86. The Complaint appears to claim that Defendants deprived them of their

property interest in their employment as Commissioners without due process when they were
terminated from the Board. However, as noted by Defendants, Plaintiffs identify two additional
property interests in their Opposition: (1) reputational harm in their community, and (2) the right
to continued employment, P1. Opp. at 14-16, but later clarify that they only bring their procedural
due process claim based on harm to Plaintiffs’ reputation. See P1. Opp. at 12-16. In fact, in their
opposition, Plaintiffs take an even broader position, claiming the Count Five encompasses their
right to serve their community as well as their freedom of speech and association. Id. at 13-16.
Generally, “[tb state a claim under

§ 1983 for deprivation of procedural due process rights,

a plaintiff must allege that (1) he was deprived of an individual interest that is encompassed within

14

the fourteenth Amendment’s protection of ‘life, liberty, or property,’ and (2) the procedures
available to him did not provide “due process of law.” Hill v. Boroitgh ofKtttztown, 455 f.3d 225,
233—34 (3d Cir. 2006) (citation omitted). As explained below, claims regarding the right to
continued employment are claims based on a deprivation of Plaintiffs’ property interests.
Plaintiffs’ reputational claims are considered “stigma-plus” claims based on a deprivation of a
liberty interest.
1. Detrimental Employment Action

“It is well established that there is generally not a property interest in continued public
employment unless a claimant can demonstrate a legitimate claim of entitlement to it.” Dungan
Stater, 252 F.3d 670, 676 (3d Cir. 2001) (internal quotation omitted); see also Board ofRegents
v. Roth, 408 U.S. 564, 577 (1972)). “To have a property interest in ajob.

.

.

a person must have

more than a unilateral expectation of continued employment; rather, she must have a legitimate
entitlement to such continued employment.” Hill, 455 f.3d at 234 (quoting Elmore v. Cleary, 399
F.3d 279, 282 (3d Cir.2005)). “Whether a person has a legitimate entitlement to—and hence a
property interest in—his government job is a question answered by state law.” Hill, 455 f.3d at
234.

Here, Plaintiffs admit in their Opposition that “Plaintiffs are not averring that their
protected interest is their pay, their removal of their fixed term, or their position of Commissioner.
The Plaintiffs’ property interest is to be protected [sic] is their right to practice any religion they
choose free from discrimination.” P1. Opp. at 13. Accordingly, Plaintiffs admit they do not bring
their procedural due process claim based on their termination from the Board.

15

2. Reputational Harm

Plaintiffs assert that their procedural due process claim is based on harm

to their

reputations. The Third Circuit has held that, generally, “to make out a due process claim for
deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation phts
deprivation of some additional right or interest.” Hill v. Borough ofKtttztown, 455 F.3d 225, 236
(3d Cir. 2006) (emphasis in original) (citing cases). Courts refer to this as the “stigma-plus” test.
See, e.g., Graham v. City of Philadelphia, 402 F.3d 139, 142 (3d Cir. 2005). The Third Circuit

has explained:
In the public employment context, the “stigma-plus” test has been
applied to mean that when an employer creates and disseminates a
false and defamatory impression about the employee in connection
with his tenriination, it deprives the employee of a protected liberty
interest. The creation and dissemination of a false and defamatory
impression is the “stiia,” and the termination is the “plus.” When
such a deprivation occurs, the employee is entitled to a nameclearing hearing.
Hill, 455 F.3d at 236 (internal quotations and citations omitted).

“To satisfy the ‘stigma’ prong of the test, it must be alleged that the purportedly
stigmatizing statement(s) (1) were made publicly, and (2) were false.” Id. (internal citations
omitted). However, the Third Circuit has held that “a public employee who is defamed in the
course of being terminated or constructively discharged satisfies the ‘stigma-plus’ test even if, as
a matter of state law, he lacks a property interest in the job he lost.” Id. at 23$ (emphasis added).
Yet, the “stigma” element “requires the plaintiff public employee to demonstrate that the defendant
government employer created and disseminated to the public defamatory statements that were
injurious to the plaintiffs reputation.” Pasqua v. Cty. of Httnterdon, No. 14-4203, 2016 WL
425395$, at *14 (D.N.J. Aug. 11,2016), appeal dismissed, No. 16-3586, 2017 WL 4117342 (3d

Cir. Feb. 10, 2017), and affd, No. 16-3585, 201$ WL 343746 (3d Cir. Jan. 10, 2018).
16

Here, Plaintiffs have not sufficiently pled facts to raise a reasonable inference that
Defendants made public and false statements, as required under the “stigma” prong.

First,

examining Plaintiffs’ allegations in the most favorable light, Board members publically questioned
whether Plaintiffs had “conflicts of interest,” presumably based on knowing (or being friends with)
applicants appearing before the Board or because the applicants were Muslim or of Middle Eastern
descent. See, e.g., Compi. at

¶ 22. At this point, while these allegations would be clearly

inappropriate if true, the Court does not find that they are plausible allegations under the “stigma”
element because Plaintiffs do not adequately explain how such statements are defamatory. As to
the allegations regarding a purported sexual relationship between Deeb and another person, the
Complaint does not plausibly allege that the statements were made in public.

Instead, the

Complaint make a conclusory allegation that “Rodriguez publically accused Deeb of having an
improper relationship with a married Muslim applicant.” Compl. at ¶ $6. Moreover, Plaintiffs fail
to claim any actual reputational harm beyond the conclusory statement that “Khan has many
friends and family in Paterson who acknowledge that his reputation became tarnished all because
he spoke out about Muslim discrimination at the [Board].” Id. at ¶ 117. Lastly, as described above,
Plaintiffs admit they are not bringing their due process claims related to their termination

—

as

would be required under the “stigma-plus” test. In sum, at this point the Court finds that Plaintiffs’
have not plausibly pled allegations that state a claim for any deprivations of due process.
iv. Count Nine
The Court construes Count Nine as bringing a First Amendment retaliation claim on behalf

of Khan.7 Specifically, Plaintiffs claim that the City Council “never completed its investigation

Plaintiffs’ confusingly stylize Count Nine as bringing a claim for “1983 Retaliation Violation
of 1St Amendment Right to Freedom of Speech,” while later mentioning that Plaintiffs violated
N.J.S.A. 10:5-1 etseq., Compi. at ¶J 241, and “42 U.S.C. § 1983, the First Amendment of the
—

17

and retaliated against [Plaintiffs] for complaining about discrimination.”

Compi. at

¶

259.8

Plaintiffs claim that Defendants’ conduct “deprived Plaintiff Khan of his rights of freedom of
speech and was retaliatory.” Id. at ¶ 260.
To bring a first Amendment retaliation claim pursuant to Section 1983, plaintiffs “must
show (1) that they engaged in a protected activity, (2) that defendants’ retaliatory action was
sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there
was a causal connection between the protected activity and the retaliatory action.” Lauren W. ex
rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); see Futtz v. Dunn, 165 F.3d 215,
218 (3d Cir. 1998) (stating the test in a similar way: “A public employee alleging an adverse
employment action because he engaged in protected first Amendment activity must show that (1)
he engaged in protected activity, and (2) the protected activity was a substantial or motivating
factor for the adverse action.

.

.

.

If the plaintiff satisfies the first two prongs, the defendant can

escape liability by showing that (3) he would have taken the same action absent the protected
activity.”).

“In order to establish the required causal connection, a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal
link.” Rinkv. Ne. Edttc. Intermediate Unit 19, 717 F. App’x 126, 133 (3d Cir. 2017) (citing Lauren
W, 480 F.3d at 267).

United States Constitution, and Articles I, IV, and VI of the New Jersey Constitution,” Id. at ¶
260. The Court construes Count Nine as bringing claims pursuant to Section 1983 based on
violations of the First Amendment. If Plaintiffs want to bring claims based on violations of the
New Jersey Constitution, Plaintiffs will need to assert the legal basis by which they are asserting
such claims.
8

It seems that Plaintiffs intend to bring Count Nine on behalf of Khan. However most of the
allegations included in Count Nine refer to all Plaintiffs.
18

Regarding the requirement that the speech be protected, the Supreme Court has cautioned
that “[w]hen a public employee sues a government employer under the First Amendment’s Speech
Clause, the employee must show that he or she spoke as a citizen on a matter of public concern.”
Borough of Dtuyea, Pa. v. Gttarnieri, 564 U.S. 379, 386 (2011) (citation omitted). This is a

question of law. Miller v. Clinton County, 544 F.3d 542, 548 (3d Cir. 200$). “If an employee
does not speak as a citizen, or does not address a matter of public concern, a federal court is not
the appropriate forum in which to review the wisdom of a personnel decision taken by a public
agency allegedly in reaction to the employee’s behavior.”

Id. (internal quotation omitted).

“[W]hen public employees make statements pursuant to their official duties, the employees are
not speaking as citizens for F irst Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)
(emphasis added).
If the employee is speaking as a citizen, the Supreme Court has reviewed the “public
concern” standard:
Speech deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other
concern to the community, or when it is a subject of legitimate news
interest; that is, a subject of general interest and of value and concern
to the public.
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotations omitted); see also Miller, 544 f.3d

at 54$ (“Speech implicates a matter of public concern if the content, form, and context establish
that the speech involves a matter of political, social, or other concern to the community.”).
Importantly, matters of personal interest do not generally constitute protected speech. Brennan v.
Norton, 350 F.3d 399, 412 (3d Cir. 2003) (“If the speech in question is purely personal, it does not

fall under the protective umbrella of the First Arnendment[.]”); Feldman v. Philadelphia Housing

19

Attthoritv, 43 F.3d 823, $29 (3d Cir.1994) (stating that public speech cannot “constitute[] merely

personal grievances”). “This does not, however, suggest that speech which is motivated by private
concern can never qualify as protected speech. It clearly can if it addresses a matter that concerns
the public as well as the speaker.” Brennan, 350 F.3d at 412. Nevertheless, “even if the speech
by a public employee touches on a topic of general importance, such as discrimination or
harassment, that speech is a not matter of public concern if the employee complains ‘only about
isolated acts directed solely at them.” Hashern

Hunterdon

Cry.,

No. 15-8585, 2016 WL

5539590, at *19 (D.N.J. Sept. 29, 2016) (quoting Rowan v. City of3avonne, 474 Fed. Appx. $75,
$78 (3d Cir. 2012)). For example, in Rowan, the Third Circuit found that plaintiffs did not engage
in protected speech because they “did not seek to expose discriminatory or harassing practices by
the City; rather, they complained only about isolated acts directed solely at them.” Rowan, 474
Fed. Appx. at $78.
Once a court determines speech is about a matter of public concern, then the court engages
in a balancing of “the interests of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Pickering v. 3d. of Ethic., 391 U.S. 563, 568
(1968). For an employee to succeed, “the government must lack an adequate justification for
treating the employee differently than the general public based on its needs as an employer under
the Pickering balancing test.” Dougherty v. Sch. Dist. of Philadelphia, 772 f.3d 979, 987 (3d
Cir.2014) (internal quotations omitted).
Here, Plaintiffs allege that their complaints related to anti-Muslim comments of Board
members caused the retaliation against them, namely, being removed from the Board. Plaintiffs’
complaints did not only concern their own status on the Board. Plaintiffs complained about

20

discriminatory anti-Muslim comments made by fellow Board members towards Plaintiffs and also
about applicants. See, e.g., Compi. at

¶J 84-85

(alleging that “when applicants come before the

Board, some of the Board members focus on the applicant’s personal characteristics and
background, rather than the merit and the substance of the project request before the Board”). At
this stage, Plaintiffs have plausibly pled that they spoke on a matter of public concern and were
retaliated against because of that speech. Additionally, Plaintiffs have sufficiently alleged that
their removal from the Board was causally linked to their complaints.9
Therefore, Plaintiffs’ Section 1983 claims are dismissed for failing to plausibly allege a
practice or custom pursuant to Monell.

Besides the Monell deficiencies which infect all of the

Section 1983 counts, Counts Four and Five are also not plausibly pled.
c. Plaintiffs’ NJLAD Claims

Plaintiffs bring Counts One, Two, Three, Six, Seven, and Eight under NJLAD. NJLAD
provides that it is unlawful for an employer “to refuse to hire or employ or to bar or to discharge
or require to retire, unless justified by lawful considerations other than age, from employment”
due to the person’s membership in a protected class. N.J.S.A. 10:5-12(a))°
The Court finds that the Pickering balancing analysis is better lefi for the summary judgment
stage. Without a full record, the Court cannot effectively engage in the necessary review.
The McDonnell Douglas burden-shifling framework apply to some NJLAD claims at the
summary judgment and trial stage when a plaintiff brings a claim based on circumstantial
evidence. Specifically, the framework will apply to Plaintiffs claims of disparate treatment
(Counts One and Two), Rogers v. Alternative Res. Corp., 440 F. Supp. 2d 366, 369 (D.N.J.
2006), and retaliatory discharge (Counts Six, Seven, and Eight). The framework provides the
following steps:
10

(1) the plaintiff must come forward with sufficient evidence to
constitute a prima Icicle case of discrimination; (2) the defendant
then must show a legitimate non-discriminatory reason for its
decision; and (3) the plaintiff must then be given the opportunity to
show that defendant’s stated reason was merely a pretext or
discriminatory in its application.
21

The Court notes, as an initial matter, that if Plaintiffs are unable to successfully plead their
Section 1983 claims in an Amended Complaint, this Court will not have jurisdiction over
Plaintiffs’ NJLAD claims. See Borough of West Muffin v. Lancaster, 45 f.3d 780, 788 (3d
Cir. 1995) (“[W]here the claim over which the district court has original jurisdiction is dismissed
before trial, the district court must decline to decide the pendent state claims unless considerations
of judicial economy, convenience, and fairness to the parties provide an affirmative justification
for doing so.”). The Court nevertheless will briefly address whether Plaintiffs plausibly plead their
NJLAD claims.’1
i. Counts One and Two

Counts One and Two allege that Plaintiffs were discriminated against and removed from
the Board because of their religious faith and respective ethnicities. “In order to establish a prima
facie case for allegations of disparate treatment [under NJLAD], a plaintiff must establish that: (1)
he belongs to a protected class; (2) he was performing his job at a level that met his employer’s
legitimate expectations; (3) he suffered an adverse employment action; and (4) others not within

El-Sioufi v. St. Peter’s Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005) (citations omitted);
see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell Dotuglas Corp. v.
Green, 411 U.S. 792 (1973); Peper v. Princeton Univ. Bc!. of Trttstees, 77 N.J. 55, 82—83 (N.J.
1978). At this stage, the Court’s inquiry is limited to whether Plaintiffs plead aprimafacie case.

Defendants first argue that Plaintiffs’ NJLAD claims must fail because there was no
employment relationship between Defendants and Plaintiffs. Defs. Br. at 16-17; see Pls. Opp. at
28-30 (arguing that Plaintiffs were “employees” of the Board). At this point, Plaintiffs have
provided enough at the pleading stage to make a plausible showing that they could be considered
employees. See Greenman v. City ofHackensack, No. 15-3274, 2016 WL 831794, at *2 (D.N.J.
Mar. 2, 2016) (finding that at the pleading stage, a City Council member who “did work” and
“was paid” had alleged enough to survive a motion to dismiss). This argument is more
appropriate for summary judgment after the parties have engaged in discovery. As a result, for
the purposes of the Court’s analysis in this Opinion, the Court assumes the necessary
employment relationship exists.
‘

22

the protected class did not suffer similar adverse employment action.” Rogers v. Alternative Res.
Corp., 440 F. Supp. 2d 366, 371 (D.N.J. 2006) (citing El—Sioufi, 382 N.J. Super. at

167).12

Here, the Court finds that Plaintiffs have plausibly pled that they were removed from the
Board based on their religious affiliation and ethnicity. The parties do not dispute that Plaintiffs
were members of a protected class. Plaintiffs also allege that they were removed from the Board,
when non-Muslim members of the Board remained. Therefore, the Court finds that Counts One
and Two are plausibly pled.
ii. Count Three

Count Three alleges that Defendants’ actions were “severe or pervasive enough to make a
reasonable person believe that the conditions of employment were altered and the working
environment was hostile or abusive.” Compi. at

¶ 160. “Under the NJLAD, a plaintiff states a

claim for a religiously hostile work environment by showing that the complained-of conduct (1)
would not have occurred but for the employee’s [religion]; and it was (2) severe or pervasive
enough to make a (3) reasonable [Muslim] believe that (4) the conditions of employment were
altered and the working environment was hostile or abusive.” Abramson v. William Paterson Colt.
of New Jersey, 260 F.3d 265, 277 (3d Cir. 2001) (citation and quotation omitted).
Here, based on Plaintiffs’ allegations, a reasonable factfinder could view the evidence as
showing that Plaintiffs’ treatment was attributable to their Muslim faith. Plaintiffs allege that they
were removed from the Board based on their religious faith and that there was no competent

Plaintiffs may arguably be attempting to bring a claim based in discriminatory discharge under
NJLAD, a claim that has slightly different elements. “In order to establish a prima facie case in
a discriminatory discharge claim, a plaintiff must prove by a preponderance that: (1) he is a
member of a protected class; (2) he performed his job in a satisfactory manner; (3) he was
discharged; and (4) someone else performed his job afier he lefi.” Rogers, 440 F. Supp. 2d at
375 (citing Baker v. Nat’l State Bank, 312 N.J. Super. 268, 284 (App. Div. 1998)). Plaintiffs
should clarify their claims in Counts One and Two in an Amended Complaint.
12

23

investigation into their complaints. Plaintiffs’ claims are not merely based on “epithets, insults,
rudeness, [or] severe personality conflicts,” Shnaidman v. State, Dep’t of Human Servs., Div. of

Mental Health Servs., No. A-4120-l 1T4, 2013 WL 177609$, at *9 (N.J. App. Div. Apr. 26, 2013),
which fail to state a valid claim under NJLAD.
Accordingly, Count Three plausibly pleads a claim for a religiously hostile workplace
under NJLAD.
iii. Counts Six, Seven, and Eight

Counts Six, Seven, and Eight bring NJLAD claims based on the retaliatory removal of
Plaintiffs from the Board following their complaints. NJLAD makes it unlawful
For any person to take reprisals against any person because that
person has opposed any practices or acts forbidden under this act or
because that person has filed a complaint, testified or assisted in any
proceeding under this act or to coerce, intimidate, threaten or
interfere with any person in the exercise or enjoyment of, or on
account of that person having aided or encouraged any other person
in the exercise or enjoyment of, any right granted or protected by
this act.
N.J.S.A. 10:5-12(d). “To establish aprimafacie case of retaliation under [NJ]LAD, [plaintiffs
have] to show that 1) [they were] engaged in a protected activity known to the defendant; 2) [they
were] thereafter subjected to an adverse employment decision by the defendant; and 3) there was
a causal link between the two.” Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super.
543, 548—49 (App. Div. 1995).

Defendants argue that Plaintiffs fail to claim that there was an adverse employment action.
Defs. Br. at 23-24; Defs. Reply at 15-16. However, Plaintiffs explicitly claim that they were
removed from the Board based on their complaints about the harassment directed towards them.
See Compl. at

¶J 210,

211, 232, 233, 237, 238. The removal allegations sufficiently allege an

adverse employment action. Plaintiffs also sufficiently identify a causal link.
24

Accordingly, Counts Six, Seven, and Eight plausibly plead claims for retaliation pursuant
to NJLAD.
V. CONCLUSION

Defendants’ motion to dismiss is GRANTED in part and DENIED in part. Count Ten is
dismissed with prejudice. Counts Four, Five, and Nine are dismissed without prejudice. Plaintiffs
have thirty (30) days to file an Amended Complaint, if they so choose, consistent with this Opinion.
If Plaintiffs fail to file an Amended Complaint, the dismissal of Counts Four, Five, and Nine will
be with prejudice.’3 An appropriate Order accompanies this Opinion.

Dated: May 2, 201$

John’Michael Vazquz, L)$.D.J.

‘

As explained, if Plaintiffs are unable to successfully replead their Section 1983 claims, then
this Court will not have jurisdiction over Plaintiffs’ NJLAD claims.
25