Opinion
Civil No. 02-1600 (JBS).
January 27, 2003
Richard L. Press, Esquire, Press Long, P.A., Northfield, NJ, Attorney for Plaintiff William McKnight, III.
Charles A. Ercole, Esquire, Mary B. Halfpenny, Esquire, Adam E. Laver, Esquire, Klehr, Harrison, Harvey, Branzburg Ellers, LLP, Cherry Hill, NJ, Attorneys for Defendants City of Atlantic City, Chief of Police Arthur Snellbaker, and Deputy Chief of Police Robert Schwartz.
OPINION
This case arises out of a series of allegedly hostile and retaliatory events that occurred in the Atlantic City Police Department upon the arrival of a new deputy chief of police after the plaintiff, a police captain, had testified in a lawsuit previously brought by the deputy chief. Plaintiff William McKnight, III, brings this cause of action against defendants alleging hostile work environment and retaliation under 42 U.S.C. § 1983, retaliation under the New Jersey Conscientious Employee Protection Act, violations of the Atlantic City Policy Department personnel policies and procedures, and retaliation under 42 U.S.C. § 1983 for filing his complaint. This matter is before the Court upon motion by defendants City of Atlantic City (the "City"), Deputy Chief of Police Robert Schwartz, and Police Chief Arthur Snellbaker (collectively "Defendants") to dismiss plaintiff's complaint for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. For reasons discussed herein, defendants' motion will be granted in part and denied in part.
I. BACKGROUND
Plaintiff William J. McKnight, III, has been with the Atlantic City Police Department for approximately 25 years, from 1978 to the present date. (Id. at 2, ¶ 1.) In May 2000, plaintiff was assigned as Accreditation Manager after working to achieve accreditation from the Commission of Accreditation of Law Enforcement Agencies ("CALEA"). (Id.) At that time, Chief of Police Arthur Snellbaker had assigned plaintiff the responsibility of the CALEA project, and then-Deputy Chief Alfred Rongione had supervised plaintiff. (Id. at 3, ¶ 2.)
In February 2001, defendant Robert Schwartz was made Deputy Chief when Al Rongione retired. (Amended Compl. at 3, ¶ 2.) McKnight alleges that Deputy Chief Schwartz held considerable dislike for McKnight because he had testified on behalf of defendant in an action brought by Schwartz against the City of Atlantic City and several others. (Id.) During that time, plaintiff worked with Chief James DiNoto and Director of Public Safety George Pugh, both of whom Deputy Chief Schwartz had sued and with whom he had previously had disagreements. (Pl.'s Report, Compl. Ex. A.) Plaintiff alleges that Deputy Chief Schwartz had tape-recorded private conversations he had had with plaintiff and plaintiff's family during that time for purposes of bolstering his case. (Amended Compl. ¶ 8.) The appointment of Schwartz to Deputy Chief, and his supervision of plaintiff, had allegedly occurred almost immediately after that trial had concluded. (Id.)
What followed was a series of acts of harassment and retaliation for plaintiff's involvement in the previous court proceeding, according to plaintiff's Amended Complaint. Plaintiff alleges that Deputy Chief Schwartz substantially reduced plaintiff's participation in certain programs for which he held significant responsibilities. Plaintiff participated in various programs, including the West Point Command and Leadership Program, the New Jersey State Association of the Chiefs of Police, police in-service training programs, Supervisor Officer training programs, personnel evaluation training programs, ethics training for city police and employee programs, Methods of Instruction ("MOI") class, and hostage negotiation retraining programs. (Id. at 17, ¶¶ 2-3; Pl.'s Report, Compl. Ex. A.) Although plaintiff had been involved in the Field Training Officers ("FTO") training since January 2001, Deputy Chief Schwartz denied plaintiff's participation in the FTO training in a report dated March 12, 2001, relegating plaintiff to observer status. (Pl.'s Report, Compl. Ex. A.) Although plaintiff had revamped the MOI Class program, and had been assigned to coordinate the class for two weeks by special order signed by Chief Snellbaker, an interoffice memo from Deputy Chief Schwartz dated March 23, 2001, reduced plaintiff's responsibilities with the MOI class by limiting plaintiff's participation to only two days, allegedly due to plaintiff's CALEA responsibilities. (Pl.'s Report, Compl. Ex. A.) Plaintiff alleges that this reduction in responsibility with the MOI class after putting in a great deal of effort into the program had caused him severe stress and devastation. (Id.)
Facts are also taken from plaintiff's report to Chief Snellbaker, dated April 18, 2001, which is referred to throughout plaintiff's Amended Complaint. The report is attached as Exhibit A to plaintiff's original Complaint.
Plaintiff also describes several instances in which Deputy Chief Schwartz questioned plaintiff about discrepancies with his time sheets. For example, according to the Complaint, Deputy Chief Schwartz called plaintiff to his office on March 19, 2001, regarding a time sheet error of plaintiff's secretary. (Amended Compl. at 3-4, ¶¶ 3-4.) During their conversation, Deputy Chief Schwartz allegedly asked, "When are you retiring?" and referred to "you older guys" needing replacement. (Id.) Also, plaintiff alleges that on April 10, 2001, he asked to speak with Deputy Chief Schwartz about a time sheet issue, and it became apparent to plaintiff that Schwartz was documenting very trivial events involving time sheets for disciplinary purposes. (Id. at 4; Pl.'s Report, Compl. Ex. A.) According to plaintiff's Complaint, Deputy Chief Schwartz allegedly stated that he believed plaintiff to be a smart man and that he could not believe why plaintiff made such deliberate errors. After plaintiff stated that there was no reason he would do such a thing, Deputy Chief Schwartz began repeatedly stating, "It's in the court records." (Id.)
Plaintiff thereafter met with Chief Snellbaker on April 11, 2001, to explain the situation and to seek some sort of resolution. (Id. at 5, ¶¶ 5-6; Pl.'s Report, Compl. Ex. A.) On April 13, 2001, plaintiff requested a transfer to a patrol command position, which was denied by Deputy Chief Schwartz on April 17, 2001. (Pl.'s Report, Compl. Ex. A.) Plaintiff presented his complaint of the above events to Chief Snellbaker in a report dated April 18, 2001, which documented the above events with Deputy Chief Schwartz. (Id.) Plaintiff additionally alleges that, after submitting his complaint, Chief Snellbaker took out a tape recorder to record a conversation and presented it to Deputy Chief Schwartz in order to mock plaintiff because his recounting of Deputy Chief Schwartz's actions of previously tape recording him had been included in his report. (Id. at 7-8, ¶ 11.) Plaintiff asserts that Chief Snellbaker at that time refused to effect a transfer or to take any action to resolve the issue. (Amended Compl. at 6, ¶ 9.) Plaintiff's complaint was subsequently forwarded from Chief Snellbaker to Internal Affairs, then to the City Solicitor's Office.
Because an investigation by the City Solitor's Office into the above matters was continuing, Chief Snellbaker did sign a transfer order which transferred plaintiff from his position in the Office of Accreditation to ALPHA Swing Captain and appointed Captain Frank Bongiovanni from Swing Captain to Office of Accreditation. (Amended Compl. at 7-8, ¶ 11.) However, without notification and without giving reasons, Chief Snellbaker reversed his order on June 11, 2001, and transferred plaintiff back to the position of Accreditation Manager. (Id.) Plaintiff additionally alleges that Deputy Chief Schwartz had ordered a sergeant to conduct an investigation of plaintiff concerning a city vehicle. (Id. at 8-9, ¶ 13.) Plaintiff again brought up the continued difficulties in his work situation to Chief Snellbaker in November 2001, yet no transfer was effected. (Amended Compl. at 9, ¶ 16.)
Plaintiff's problems with his working conditions had been referred to the City Solicitor's Office which, after failing to interview Deputy Chief Schwartz, sent plaintiff a memo on February 7, 2002, advising him that "there is insufficient factual evidence to show either Schwartz or Snellbaker harassed you, created a hostile work environment or retaliated against you for making the complaint." (Amended Compl. ¶ 9; City Solicitor Memo, Compl. Ex. C.) However, the City Solicitor's Office allegedly was unaware of the transfer and expressed surprise that Chief Snellbaker had done so without conferring with them. (Amended Compl. ¶ 12.)
Plaintiff alleges that further harassment continued, and that overall, he was denied a number of essential resources for his employment, including specific training that was required for the Accreditation Department such as Police Academy classes, additional personnel, a laser printer, a radio, and seminars and assignments required for his completion of the CALEA project. (Amended Compl. at 7-8, ¶ 11; id. at 10, ¶¶ 21-22.) Plaintiff also alleges that Deputy Chief Schwartz, at a staff meeting he conducted on February 5, 2002, contributed to spreading the false rumor that plaintiff was retiring. (Id. at 10, ¶ 20.) In addition, plaintiff asserts Chief Snellbaker and Deputy Chief Schwartz failed to provide their annual evaluations of plaintiff in February 2002. (Id. at 11, ¶ 24.)
Plaintiff alleges that he has lost significant income and continuing career opportunities from his reduced participation in the various programs detailed above as a result of his participation and testimony in the previous trial brought by Deputy Chief Schwartz. (Amended Compl. at 17, ¶ 4.) Plaintiff filed this cause of action on April 10, 2002, alleging retaliation under 42 U.S.C. §§ 1983 and 1985 (Count One), retaliation under the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 (Count Two), and violations of the City of Atlantic City's internal policies and procedures (Count Three). (Compl.) Plaintiff filed an Amended Complaint on August 1, 2002, alleging retaliation under 42 U.S.C. § 1983 for having filed this Complaint and that defendants damaged his reputation under Article I, Paragraph 1 of the New Jersey Constitution (Count Four). (Amended Compl. at 16-18, ¶¶ 1-7.) In lieu of filing an Answer, defendants filed this motion to dismiss on September 11, 2002, claiming that plaintiff has failed to state a claim for relief under Rule 12(b)(6), Fed.R.Civ.P.
II. DISCUSSION
Defendants City of Atlantic City, Deputy Chief of Police Robert Schwartz, and Police Chief Arthur Snellbaker ("Defendants") move to dismiss plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6), Fed.R.Civ.P. Defendants argue that plaintiff is unable to substantiate his retaliation claims because he has pled neither that his constitutionally protected conduct was a substantial or motivating factor for the retaliation, nor that defendants' actions constituted "adverse employment actions." In addition, defendants assert that Atlantic City, as a municipality, cannot be held liable for the constitutional torts of its employees, because the employees were not acting pursuant to a City policy or custom. Furthermore, defendants argue that plaintiff's claim of violation of police department policy is based on contract and plaintiff has failed to plead the requisite elements of a contract cause of action. Lastly, defendants argue that plaintiff fails to allege facts supporting his claim for damage to his reputation under the New Jersey Constitution.
A. Standard for Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a complaint may be dismissed "for failure to state a claim upon which relief can be granted." Rule 12(b)(6), Fed.R.Civ.P. A district court must accept as true all of the well-pleaded allegations in the complaint and any and all reasonable inferences derived from those facts. Glenside West Corp. v. Exxon Co., U.S.A., 761 F. Supp. 1100, 1107 (D.N.J. 1991);Gutman v. Howard Sav. Bank, 748 F. Supp. 254, 260 (D.N.J. 1990). Further, the court must view all allegations in the complaint in the light most favorable to the plaintiff. See Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
The question before the court is not whether plaintiff will ultimately prevail; rather, it is whether he can prove any set of facts in support of his claims that would entitle him to relief.Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Therefore, in deciding a motion to dismiss, a court should look to the face of the complaint and decide whether, taking all of the allegations of fact as true and construing them in a light most favorable to the nonmovant, plaintiff's allegations state a legal claim. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Motions to dismiss should be granted "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)). Only the allegations in the complaint, matters of public record, orders, and exhibits attached to the complaint matter, are taken into consideration. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).
B. Analysis
1. Plaintiff's Section 1983 Claims Against Defendants Chief Snellbaker and Deputy Chief Schwartz
Section 1983 provides a remedy for individuals whose Federal Constitutional rights have been violated by persons acting under color of state law. See, e.g., McCullough v. City of Atlantic City, 137 F. Supp. 2d 557, 564 (D.N.J. 2001) (citing McCusker v. City of Atlantic City, 959 F. Supp. 669, 671 (D.N.J. 1996)). To prevail under § 1983, a plaintiff must show (1) a violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted). The parties here do not dispute that, for purposes of this motion, persons acting under color of state law committed the complained-of conduct. Rather, defendant contends that plaintiff has failed to allege a violation of the First Amendment.
Plaintiff brings his § 1983 claims contending that his First Amendment rights to free speech were violated due to the retaliation he faced as a result of his participation and testimony in the lawsuit previously filed by Deputy Chief Schwartz, and that further retaliation occurred as a result of filing his Complaint, both of which he alleges were protected activities. Defendants assert that plaintiff has failed to plead a causal connection between the allegedly retaliatory conduct and his speech, that is, that plaintiff's constitutionally-protected speech was a substantial or motivating factor behind the retaliation against him.
The Supreme Court in Mount Healthy Board of Education v. Doyle, 429 U.S. 274 (1977), set forth the burden-shifting framework for First Amendment retaliation claims under § 1983, requiring that the plaintiff must show that his conduct was constitutionally protected, and that this conduct was a "substantial" or "motivating" factor in the relevant decision.See Mt. Healthy, 429 U.S. at 287 (citing Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270-71, n. 21 (1977)); see also Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir.) (citations omitted), cert. denied, 522 U.S. 816 (1997). Plaintiff having satisfied his burden, the burden then shifts to defendant to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct. See Mt. Healthy, 429 U.S. at 287; see also Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 144 (3d Cir. 2000) (citing Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000) (quoting Mt. Healthy, 429 U.S. at 287)). Because this Rule 12(b)(6) motion only considers the factual allegations of plaintiff's Amended Complaint, the Court need only focus on the first two steps. See Pollock v. City of Ocean City, 968 F. Supp. 187, 191 (D.N.J. 1997).
Here, plaintiff alleges that he faced retaliation because he had testified and participated in the lawsuit previously brought by Deputy Chief Schwartz against, inter alia, the City of Atlantic City. In addition, plaintiff alleges that he experienced retaliation upon the filing of his Complaint in this case. Such allegations that plaintiff participated and testified in a case brought by defendant Deputy Chief Schwartz, and that plaintiff filed his Complaint in this case constitute protected activity under the First Amendment, satisfying the first prong of theMount Healthy framework. See, e.g., Pollock, 968 F. Supp. at 192 ("The First Amendment . . . protects a public employee from employer retaliation for participating in a legal proceeding, either as a party or as a witness.") (citing San Filippo v. Bongiovanni, 30 F.3d 424, 434-43 (3d Cir. 1994),cert. denied, 513 U.S. 1082 (1995); Carter v. Kane, 938 F. Supp. 282, 288 (E.D. Pa. 1996)).
Under the second prong, plaintiff mentions throughout the Amended Complaint that the adverse employment actions taken against him were the result of his participation in aiding the defense in Deputy Chief Schwartz's lawsuit. For example, plaintiff describes a "bizarre" encounter with Deputy Chief Schwartz over a time sheet discrepancy, which became clear to plaintiff when he "realized that Deputy Chief Schwartz held a deep-seeded hostility and resentment towards plaintiff for his having participated in and having testified on behalf of the City of Atlantic in the trial by Deputy Chief Schwartz against the City of Atlantic City." Amended Compl. at 4. Plaintiff indisputably makes this point when he alleges that
Because of Plaintiff having assisted the City in a lawsuit brought against them by [Deputy Chief Schwartz], co-defendant, Snellbaker, expressed his hatred of plaintiff to witnesses and, in fact, failed to take any action of any kind to stop Deputy Chief Schwartz from continuing his pattern [of] severe harassment and conduct in making plaintiff's efforts to complete the CALEA project virtually impossible.
Amended Compl. at 7, ¶ 10. Plaintiff also alleges in his Amended Complaint that upon serving defendants with his initial Complaint on April 26, 2002, plaintiff was told that he could work on patrol duty and that he would never represent the police department in training programs, such as the West Point Command and Leadership Program, again. See Amended Compl. at 16, ¶ 2. These allegations that plaintiff subsequently faced retaliatory conduct as a result of his participation in the previous lawsuit, as well as his filing his initial Complaint herein, both of which are constitutionally-protected actions, sufficiently pleads under the second prong that the protected activity was a substantial or motivating factor in the alleged retaliation under § 1983. See, e.g., Pollock, 968 F. Supp. at 192 (denying 12(b)(6) motion because plaintiff's allegations that defendants removed him from his position in retaliation for asserting legal claims against them constituted a substantial or motivating factor in the retaliation).
Defendants additionally assert that plaintiff has failed to plead an employment action that is sufficiently "adverse" under § 1983, arguing that the actions here, that of reducing plaintiff's participation in several work-related programs and denying him transfers from Deputy Chief Schwartz's supervision, do not reach the magnitude of egregious conduct alleged in Marrero v. Camden County Bd. of Soc. Servs., 164 F. Supp. 2d 455 (D.N.J. 2001),Kadetsky v. Egg Harbor Township Bd. of Educ., 82 F. Supp. 2d 327, 337 (D.N.J. 2000), and Pollock, supra, 968 F. Supp. at 191.
While Marrero involved a plaintiff who was ultimately terminated from his employment, termination is not required to demonstrate an "adverse" employment action. The district court inMarrero noted that both "the Supreme Court and the Third Circuit have recognized that any retaliatory conduct `sufficient to deter a person of ordinary firmness from exercising his First Amendment rights' is actionable under § 1983." Marrero, 164 F. Supp. 2d at 467 (citing Dadonna, supra, 203 F.3d at 235). The court in Kadetsky likewise stated that "retaliatory harassment could, under certain circumstances, constitute an `adverse employment action' which is actionable under the rubric of a First Amendment cause of action." Kadetsky, 82 F. Supp. 2d at 337 (citing cases). In Kadetsky, the plaintiff, a high school band director, filed a grievance with his union, and thereafter experienced a series of harassing incidents including false letters of reprimand placed in his personnel file as well as receiving a letter from a parent alleging that he had sexual relations with a student. In Kadetsky, where plaintiff was ultimately granted tenure and not fired, the court determined that plaintiff's allegations of harassment were "unqualifiedly egregious" and sufficiently alleged an adverse employment action for purposes of the retaliation claim. Moreover, in Pollock, plaintiff was removed from the specific position of deputy coordinator, but was not terminated from employment.
In this case, plaintiff alleges a pattern of retaliatory harassment, including Deputy Chief Schwartz drastically reducing his long-standing participation in various work-related programs such as the West Point Command and Leadership Program, the New Jersey State Association of the Chiefs of Police, police in-service training programs, Supervisor Officer training programs, personnel evaluation training programs, ethics training for city police and employee programs, Methods of Instruction ("MOI") class, and hostage negotiation retraining programs. See Amended Compl. at 17, ¶¶ 2-3; Pl.'s Report, Compl. Ex. A. Plaintiff also alleges that he was denied access to personnel, equipment, and training courses necessary to complete the CALEA project, see Amended Compl. at 7-8, ¶ 11; id. at 10, ¶¶ 21-22, and that his requests to transfer out of Deputy Chief Schwartz's supervision and department were denied by both Chief Snellbaker and Deputy Chief Schwartz, who he alleges violated the Department's personnel policies regarding transfer and harassment in doing so. See Pl.'s Report, Compl. Ex. A; Amended Compl. at 6, ¶ 9; id. at 7-8, ¶ 11; id. at 16, ¶ 4. Moreover, once plaintiff filed this cause of action, plaintiff was told that he would never represent the police department in training programs again, including the West Point Command and Leadership Program, and was essentially removed from participating in all of his training programs. See Amended Compl. at 17, ¶ 3. Plaintiff was then transferred, though not terminated, to a patrol position of Swing Captain upon service of the lawsuit on defendants. See id. ¶ 5. Plaintiff alleges that this reduction will continue to have an immediate monetary impact on his career, and will result in the loss of numerous career opportunities upon his retirement. See Amended Compl. at 17, ¶ 4.
The Court finds that the above allegations of retaliatory harassment, if proved, are more than sufficient "to deter a person of ordinary firmness from exercising his First Amendment rights." Dadonna, supra, 203 F.3d at 235. Like Kadetsky andPollock, plaintiff experienced a number of actions that, when viewed in their totality, adversely affected his employment conditions and significantly reduced the substantive component of his duties, and are likely to have a continuing detrimental effect on his career. Chief Snellbaker's and Deputy Chief Schwartz's conduct initially resulted in plaintiff's severely reduced participation in programs with which he had been involved in and for which he had held prestigious positions; plaintiff's participation was entirely eliminated once his complaint had been filed in this Court. Furthermore, contrary to defendant's assertion, plaintiff alleges loss of income as a result of this reduction of his duties. See Amended Compl. at 12, ¶ 26. Notwithstanding plaintiff's continued employment at the police department, it is evident that such actions constitute adverse employment actions, and defendant's motion therefore fails on this ground.
Plaintiff has sufficiently alleged § 1983 retaliation claims against Chief Snellbaker and Deputy Chief Schwartz in Counts One and Four of his Amended Complaint. Specifically, plaintiff has alleged that his constitutionally-protected speech was a motivating or substantial factor in the alleged retaliation, and that the actions of which he complains constitute adverse employment actions which are cognizable under § 1983. Defendants' motion to dismiss Counts One and Four will therefore be denied with respect to defendants Chief Snellbaker and Deputy Chief Schwartz.
2. Plaintiff's § 1983 Claims Against Defendant City of Atlantic City
Plaintiff's § 1983 claims against the City are twofold. First, plaintiff claims that he has alleged a § 1983 claim directly against the City based on the allegation that Atlantic City's Solicitor's Office failed to follow its own procedures in conducting an investigation into plaintiff's allegations against defendants Snellbaker and Schwartz. Second, plaintiff claims he has alleged a § 1983 claim indirectly through Chief Snellbaker and Deputy Chief Schwartz's unofficial custom of ignoring the police department's harassment and transfer policies.
Defendants contend that plaintiff's § 1983 claim against the City of Atlantic City must be dismissed because a municipality cannot be liable on the theory of respondeat superior for the constitutional torts of its employees, citing McCullough v. City of Atlantic City, 137 F. Supp. 2d 557, 569-70 (D.N.J. 2001), and because plaintiff has failed to identify a custom or official policy through which the municipality may be held liable. InMcCullough, plaintiffs asserted that they suffered demotion as a result of speaking on matters of public concern in violation of their First Amendment rights. The district court dismissed plaintiff's § 1983 claims against the city based in part onMonell v. Dep't of Soc. Servs., 436 U.S. 658 (1978), in which the Supreme Court held that municipalities are not liable through respondeat superior for the constitutional acts of its employees, but are included among those "persons" to whom § 1983 applies, and could be sued directly if the municipality is alleged to have caused a constitutional tort by implementing or executing "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Id. at 690. The district court in McCullough dismissed the § 1983 claims against the city, determining that because plaintiff complained of unlawful conduct by the former chief of police and director of public safety, plaintiff's retaliation claim stemmed from their individual employee conduct, not any policy of the city.
The Third Circuit elaborated on the concept of municipal liability:
A government policy or custom can be established in one of two ways. Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, such practices of state officials [are] so permanent and well-settled as to virtually constitute law.Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296 (3d Cir. 1997) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)).
Plaintiff cites Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), cert. denied, 455 U.S. 1008, reh'g denied, 456 U.S. 9509 (1982), and Pembaur v. City of Cincinnati, et al., 475 U.S. 469, 481 (1986), as support for his claim. In Black, the Third Circuit, on appeal from denial of judgment n.o.v. or for new trial, examined whether the city was liable for a police chief's implementation of a regulation which caused the filing of unwarranted charges against the plaintiff. Noting that the Supreme Court emphasized that a city's liability can be triggered by persons other than official lawmakers, the Third Circuit determined that the police chief "may fairly be said to represent official policy" for the city because he wrote and implemented an official police regulation concerning disciplinary hearings which the jury had found proximately caused unwarranted charges to be filed against plaintiff. Black, 662 F.2d at 191 (citingMonell, 435 U.S. at 694). The Third Circuit determined that the chief's promulgation of the regulation was an official act of policy that provided sufficient basis for municipal liability under Monell and § 1983.
In this case, plaintiff has not alleged that Chief Snellbaker of Deputy Chief Schwartz implemented or created any official police regulation, nor to the extent rendering defendant liable in Black. Rather, plaintiff alleges that the City's policies and procedures regarding harassment and transfers were customarily ignored, and that the Solicitor's Office failed to follow its own procedures in conducting an initial investigation into plaintiff's allegations against defendants Schwartz and Snellbaker. See Amended Compl. at 15-16. While it may be true, as plaintiff points out, that the Police Chief's job specifications provide that Chief Snellbaker "determines internal organization of the police department and formulates police rules/regulations," Department of Personnel Job Specification — Police Chief, Pl.'s Br. Ex. B, plaintiff has not alleged that Chief Snellbaker wrote, created and promulgated the harassment or transfer policies as in Black. Rather, plaintiff alleges that Chief Snellbaker and Deputy Chief Schwartz ignored the existing transfer and harassment policies in their actions toward plaintiff. As the Third Circuit has explained, "the municipal policy requirement discussed in Monell `was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible." Langford v. City of Atlantic City, 235 F.3d 845, 848 (3d Cir. 2000) (citing Pembaur, 475 U.S. at 479). Plaintiff fails to distinguish how these acts are anything other than those of the individual employees, as in McCullough.
Plaintiff also provides no legal support for his contention that the City is liable for the acts of the City Solicitor's Office in failing to follow its procedures when it conducted its investigation into plaintiff's internal complaint against Chief Snellbaker and Deputy Chief Schwartz. Plaintiff alleges in his Amended Complaint that the City Solicitor's Office failed to interview Deputy Chief Schwartz before issuing its determination that there was insufficient evidence to find that defendants engaged in retaliatory harassment against plaintiff. See Amended Compl. at 6, ¶ 9. Even if plaintiff's § 1983 claim is based on the theory that the City Solicitor's Office promulgated a policy or custom that infringed on plaintiff's constitutional rights, plaintiff fails to identify what policy, if any, was being improperly promulgated or implemented and which caused his injury. Furthermore, inasmuch as plaintiff alleges that the City Solicitor's Office failed to follow its own procedures in conducting the investigation, he does not allege that the City Solicitor's Office or the City instituted a policy that was unlawful. Rather, what plaintiff complains of is more appropriately attributable to the failure of an individual employee or employees to investigate his allegations. There is likewise no allegation that the City Solicitor took any action against plaintiff.
Similar to McCullough, plaintiff complains of Chief Snellbaker's and Deputy Chief Schwartz's individual employee conduct. Even assuming that Chief Snellbaker has final authority to establish policy, plaintiff has not alleged that any adverse action taken against him was the result of an "official policy" for which the municipality is responsible. Accordingly, defendants' motion will be granted on this ground, and plaintiff's § 1983 claims against the City of Atlantic City in Counts One and Four will be dismissed.
3. Plaintiff's CEPA Claim
Plaintiff brings his claim under the New Jersey Conscientious Employee Protection Act ("CEPA" or "Act"), alleging that his testimony and participation in the trial brought by Deputy Chief Schwartz resulted in the retaliatory harassment he has allegedly received from Chief Snellbaker and Deputy Chief Schwartz. CEPA provides that
An employer shall not take any retaliatory action against an employee because the employee does any of the following:
a. Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer . . . that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law. . . .;
b. Provides information to, or testifies before, any public body conducting an investigation, hearing or inquiry into any violation of law, or a rule or regulation promulgated pursuant to law. . . .
N.J.S.A. 34:19-3(a) (b). "`CEPA is designed to protect employees who blow the whistle on illegal or unethical activity committed by their employers or co-employees.'" Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 358 (App.Div.) (quotingEstate of Roach v. TRW, Inc., 164 N.J. 598, 609-10 (2000)),certif. granted, 174 N.J. 191 (2002). Courts construe CEPA liberally to achieve its remedial purpose. See Regan v. City of New Brunswick, 305 N.J. Super. 342, 353 (App.Div. 1997) (citing Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431 (1994)). To state a claim under CEPA, a plaintiff must show that (1) he or she reasonably believed that his or her employer's conduct was violating either a law, a rule or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she disclosed or threatened to disclose the activity to a supervisor or public body; (3) retaliatory employment action was taken against him or her; and (4) there was a causal connection between the whistle-blowing and the adverse employment action. See Hancock, 347 N.J. Super. at 358-59 (citing Kolb v. Burns, 320 N.J. Super. 467, 476 (App.Div. 1999)); Sunkett v. Misci, 183 F. Supp. 2d 691, 715 (D.N.J. 2002) (citing Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir. 1999)). Under the third prong, "retaliatory action" is defined as "the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment." N.J.S.A. 34:19-2(e).
The issue in dispute is whether the alleged harassment plaintiff received from defendants Snellbaker and Schwartz constitute a retaliatory employment action under CEPA. Defendants have not contested that plaintiff's testimony and assistance to Atlantic City in the lawsuit brought by defendant Schwartz constitute a form of "whistle-blowing" under the Act. Rather, defendants contend that plaintiff fails to allege an adverse employment action that is recognized under the Act. Plaintiff counters that the defendants' actions toward plaintiff can be considered a "constructive demotion" or "other adverse action" under CEPA.
This was noted by plaintiff in his opposition brief, and defendants failed to address this issue in either their moving brief or reply brief.
Defendants cite to Hancock for the contention that the plaintiff's rank or compensation must be affected in order to constitute a retaliatory action. In Hancock, plaintiffs alleged that they were subjected to fraudulent disciplinary charges and disparate treatment, and received various chastising memos and orders for petty matters regarding taking meal breaks, receiving personal mail at work, and switching shifts with other patrolmen. The Appellate Division affirmed the trial court which concluded that these actions are not cognizable retaliatory actions under CEPA. The court reasoned that defendants did not effectuate plaintiffs' termination from their positions, nor did they engage in "other adverse employment action" in the terms of plaintiffs' employment because they were "minor and [had] no impact on either plaintiffs' compensation or rank." Hancock, 347 N.J. Super. at 359-60 (citing Zamboni v. Stamler, 847 F.2d 73, 82 (3d Cir.), cert. denied, 488 U.S. 899 (1988)). The court stated that plaintiffs' allegations of retaliation were related to "general actions that made plaintiffs' jobs mildly unpleasant or specific disciplinary charges brought by defendants against plaintiffs," for which plaintiffs were subsequently found guilty. As such, these were not adverse employment actions that "impact[ed] in a substantial way on either plaintiffs' work or conditions at work or constitute[d] a de facto termination." Id. at 360.
The New Jersey Supreme Court granted certification on July 16, 2002. See Hancock v. Borough of Oaklyn, 174 N.J. 191 (2002).
The district court in Sunkett v. Misci, 183 F. Supp. 2d 691 (D.N.J. 2002), elaborated on the doctrinal differences between plaintiffs' CEPA claims and their free speech claims under § 1983, which are similarly presented in this case:
[W]hereas a free speech claim can be premised on any speech of "public concern," made in virtually any context, CEPA applies only to disclosures of violations of law, regulation, or clearly mandated public policy, made in circumstances proscribed by the statute — generally, the plaintiff must have disclosed the information to a supervisor or public body, or flat out refused to participate in the activity.Id. at 716 (citing N.J.S.A. 34:19-3). The district court explained further that the phrase "terms and conditions of employment," which, similar to the language of Title VII, requires "materially adverse" acts by the employer, a considerably more demanding standard than for free speech claims.See id. (citing Robinson, supra, 120 F.2d at 1300-01). The district court determined that plaintiff's claim that she was put "on the outs" with the head of the City Attorney's Office in retaliation for her objections to illegal contracts was not a "sufficiently `adverse' act" to be actionable under CEPA. Id. The court also determined, however, that the pay raise withheld from plaintiff as a result of her complaints about a co-worker was sufficient to meet this burden under CEPA. Id. at 716-17.
The McCullough case is particularly helpful because it involves facts similar to the case at bar. See McCullough, 137 F. Supp. 2d at 572. In McCullough, plaintiffs, police officers in the Atlantic City Police Department, had provided testimony in other lawsuits regarding unlawful or wrongful actions of the Atlantic City and/or its police department, and thereafter faced retaliation in the form of "constructive demotions," which left them with no responsibilities, and resulted in their being the target of special investigations by their supervisors. The district court determined that these constructive demotions amounted to adverse employment actions as defined under the CEPA statute, and therefore denied defendants' summary judgment motions.
Here, it is not disputed that plaintiff's allegations satisfy the first, second, and fourth prongs of the CEPA inquiry. That is, plaintiff has alleged that he reasonably believed his employer's conduct was violating law when he first submitted his memo report on April 18, 2001, to Chief Snellbaker regarding Deputy Chief Schwartz's actions toward him and thereafter filed his internal complaint with Chief Snellbaker, which was then forwarded to the Internal Affairs and then submitted to the Solicitor's Office. Amended Compl. at 13-14, ¶ 3. In addition, plaintiff asserts that he testified in a lawsuit previously brought by Deputy Chief Schwartz with respect to Deputy Chief Schwartz's actions. See, e.g., McCullough, 137 F. Supp. 2d at 574 ("Plaintiffs' testimony in other lawsuits regarding unlawful or wrongful actions of the ACPD and/or Atlantic City are clearly `whistle-blowing' activities under CEPA."). Plaintiff further satisfies the fourth prong by alleging that Deputy Chief Schwartz and Chief Snellbaker retaliated against him for doing so. Id. at 14, ¶ 4.
Despite the determination in Hancock, which has been granted certification by the New Jersey Supreme Court, the issue of whether plaintiff has sufficiently alleged an adverse employment action under CEPA is one that resolves in favor of plaintiff. Under the third prong, defendants' actions did not make plaintiff's employment merely "mildly unpleasant," as inHancock, nor did these actions result merely in plaintiff simply being "on the outs" with his supervisors, as in Sunkett. Plaintiff's allegations, rather, depict an extremely tense and strained working environment, causing plaintiff "severe embarrassment and humiliation." Amended Compl. at 13. Plaintiff's allegations of his substantially reduced, and eventually eliminated, participation as an instructor in numerous work-related training programs, the loss of income as a result of his reduced participation, and his apparent demotion from his position as an Accreditation Manager for the Department to a swing patrol captain after almost twenty-five years of service, if proved, make clear the fact that defendants' actions severely and substantially affected plaintiff's employment conditions to an extent cognizable under CEPA, similar to the demotions inMcCullough. See also Kolb v. Burns, 320 N.J. Super. 467 (App.Div. 1999) (determining that a withholding of a normal salary increment constituted an adverse employment action).
The New Jersey Supreme Court held oral argument on this case on January 7, 2003, and the matter is still pending as of the date of this Opinion.
Because plaintiff has sufficiently alleged an adverse employment action under CEPA, this Court finds that he has adequately stated a claim for relief under CEPA. Therefore, defendants' motion to dismiss will be denied on this ground.
4. Plaintiff's Claim for Alleged Violation of Workplace Policy
Defendant Atlantic City asserts that plaintiff's claims based on employee policies in Count Three are evaluated under contract law, and that plaintiff has not pled the requisite elements of a contract claim, and that even if plaintiff had pled such requirements, his claim would be barred because by filing a CEPA claim, he has waived any implied contract claim. Plaintiff alleges in Count Three that defendants violated the City of Atlantic City's own internal policies and procedures, including but not limited to its policy regarding Harassment in the Workplace. See Amended Compl. at 15; Compl., Ex. B.
Plaintiff contends that Count Three is not an implied contract claim. Plaintiff states that "[t]o the contrary, it is asserted that the City of Atlantic City's complete failure to follow its own policy, despite notice by plaintiff to do so, is further evidence of retaliatory conduct pursuant to 42 U.S.C. § 1983." Pl.'s Opp. Br. at 17. According to plaintiff, Count Three is "simply a further charge of retaliation based upon the City's ignoring of their own harassment policies." Pl.'s Opp. Br. at 17. The Court agrees that Count Three is redundant. To the extent that plaintiff in Count Three is merely asserting another factual basis of defendants' conduct for his retaliation claim under § 1983, the facts provided therein are subsumed under plaintiff's claims of retaliation based on his participation in the previously filed lawsuit in Count One and his filing of the initial Complaint in Count Four, and his Count Three will be dismissed.
5. Plaintiff's Claim Under the New Jersey Constitution
Defendants argue that plaintiff has alleged no facts and no confidential information in particular, which they assert are required under Doe v. Poritz, 142 N.J. 1, 88 (1995), to support his claim of damage to reputation under the New Jersey Constitution. Plaintiff's Amended Complaint alleges that defendants have damaged plaintiff's reputation and right to privacy in the policing community, see Amended Compl. at 17, ¶ 3, through his forced resignation from the West Point Command and Leadership Program, for example, and the tape recording of plaintiff and his family, see Amended Compl. at 6, ¶ 8.
Plaintiff raises Kadetsky as support for his state constitutional claim. In that case, the district court determined that plaintiff had not sufficiently alleged a Federal due process violation because plaintiff had eventually received tenure at his high school band director position, and "a due process violation arises only when the stigma to reputation is accompanied by [a] tangible deprivation such as the loss of present or future employment, or what is commonly known as `stigma plus.'"Kadetsky, 82 F. Supp. 2d at 338 (citing Robb v. City of Philadelphia, 733 F.2d 286, 294 (3d Cir. 1984); Shovlin v. Univ. of Med. Dentistry of New Jersey, 50 F. Supp. 2d 297, 316 (D.N.J. 1998)). The district court did, however, conclude that plaintiff sufficiently alleged a state constitutional claim for damage to his reputation, quoting Poritz, in which the New Jersey Supreme Court stated:
Under the State Constitution, we find protectable interests in both privacy and reputation. Our analysis differs from that under the Federal Constitution only to the extent that we find a protectable interest in reputation without requiring any other tangible loss. In interpreting the State Constitution, we look to both the federal courts and other state courts for assistance . . . but the ultimate responsibility for interpreting the New Jersey Constitution . . . is ours. In fulfilling that responsibility, we have been more willing to find State-created interests that invoke the protection of procedural due process than have our federal counterparts.Kadetsky, 82 F. Supp. 2d at 338 (quoting Poritz, 142 N.J. at 104). Plaintiff's allegation of damage to his reputation, consisting of false reprimand letters in his personnel file and false allegations of sexual misconduct with a student, even in the absence of a tangible loss, was accordingly deemed sufficient to maintain a state constitutional claim.
Examination of these cases which allowed a state constitutional claim to proceed provides significant guidance in this case.Kadetsky involved a situation in which plaintiff, a high school band director, had been falsely accused of sexual misconduct with a student, while the plaintiff in Poritz alleged that certain classifications under the sex offender notification and community registration statutes that identified him not only as a sex offender but also as potentially currently dangerous inflicts a greater stigma and would damage his reputation and standing within the community. In Poritz, the New Jersey Supreme Court determined that a protectable interest in reputation is cognizable in certain circumstances, relying on cases such asValmonte v. Bane, 18 F.3d 992, 1000 (2d Cir. 1994), and Bohn v. County of Dakota, 772 F.2d 1433, 1436 n. 8 (8th Cir. 1985),cert. denied, 475 U.S. 1014 (1986), both of which involved damage to reputation due to the identification of the individuals as suspected child abusers. See Poritz, 142 N.J. at 103-04. The New Jersey Supreme Court determined that plaintiff was entitled to a hearing prior to notification to the community, noting that "[p]ublic notification implicates a privacy interest in nondisclosure, and therefore triggers due process." Poritz, 142 N.J. at 100. The New Jersey Supreme Court also emphasized that the nature of the stigmatization involved strengthens the finding of a protectable interest, relying on State v. Howard, 110 N.J. 113, 129 (1988), in which it previously held that, after conviction, "classification as a `repetitive' and `compulsive' sex offender under N.J.S.A. 2C:47-3a inflicts a greater stigma than that resulting from the conviction for a sex offense."Poritz, 142 N.J. at 105 (quoting Howard, 110 N.J. at 129).
The New Jersey Supreme Court additionally relied on Wisconsin v. Constantineau, 400 U.S. 433 (1971), in which a statute authorized the posting of a notice prohibiting the sale of liquor to any person known to have "excessive drinking" tendencies. The Supreme Court, noting that the posting would expose an individual to "public embarrassment and ridicule," id. at 436, held that a protectable liberty interest is implicated "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him."Poritz, 142 N.J. at 100-01 (quoting Constantineau, 400 U.S. at 436).
It is clear that the instant case does not involve even arguably the same level of personal information, nor the same degree of damaging, impugning governmental action upon which thePoritz and Kadetsky cases were based. This case deals with the removal of plaintiff from several prestigious positions with certain programs within the Atlantic City Police Department and with certain alleged incidents that resulted in decreasing plaintiff's position and power within his department. UnlikePoritz, Valmonte, Bohn, and Kadetsky, this case does not involve allegations that plaintiff is or was a child abuser or had been involved in any allegations of sexual misconduct, and the implications on one's protectable interests under due process, raised by the identification of plaintiff as either a suspected child abuser or possible sex offender, are therefore not at issue here. Moreover, the defendants have not even alleged that plaintiff is guilty of some sort of official misconduct as a police officer, and thus no claim of damage to reputation of State constitutional dimension arises. Defendants' motion to dismiss plaintiff's state constitutional claim will therefore be granted.
III. CONCLUSION
As discussed above, defendants' motion to dismiss plaintiff's § 1983 claims in Counts One and Four will be denied with respect to defendants Chief Snellbaker and Deputy Chief Schwartz because plaintiff sufficiently alleges a causal connection between the allegedly retaliatory conduct and his protected actions, and an employment action that is sufficiently "adverse" under § 1983. Defendants' motion will be granted with respect to plaintiff's § 1983 claims in Counts One and Four against the City of Atlantic City because plaintiff fails to allege an unlawful policy or custom of either the City Solicitor's Office or Chief Snellbaker and Deputy Chief Schwartz that establishes municipal liability under Monell. Plaintiff has also adequately stated a claim for relief under CEPA, and therefore, defendants' motion to dismiss plaintiff's CEPA claim in Count Two will be denied. Because plaintiff concedes that he merely alleges another factual basis of defendants' conduct in Count Three for his § 1983 retaliation claim, pled elsewhere, plaintiff's Count Three will be dismissed. Lastly, plaintiff's state constitutional claim in Count Four will be dismissed because it fails to implicate a protectable liberty interest as in Poritz and cases cited therein. The accompanying Order will be entered.ORDER
THIS MATTER having come before the Court upon motion by defendants City of Atlantic City, Deputy Chief of Police Robert Schwartz, and Police Chief Arthur Snellbaker, to dismiss plaintiff's Amended Complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6), Fed.R.Civ.P.; and the Court having considered the parties' submissions; and for the reasons discussed in the Court's Opinion of today's date; and for good cause shown;IT IS on this day of January, 2003, hereby
ORDERED that defendants' motion to dismiss plaintiff's Amended Complaint [Docket Items 14-1, 15-1] be, and hereby is DENIED as to plaintiff's § 1983 claims against defendants Snellbaker and Schwartz in Counts One and Four; GRANTED as to plaintiff's ¶ 1983 claims against defendant City of Atlantic City in Counts One and Four, and those claims against City of Atlantic City will be DISMISSED ; DENIED as to plaintiff's CEPA claim in Count Two; GRANTED as to plaintiff's Count Three, and Count Three will be DISMISSED as redundant; and GRANTED as to plaintiff's state constitutional claim in Count Four, and that claim will be DISMISSED.