Defalco v. Rutgers University Police Department et al

BRIEF in Opposition

D.N.J.May 22, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY WILLIAM DEFALCO, Plaintiff, v. RUTGERS UNIVERSITY and KEN COP, both in his individual capacity as Chief of Police, and MICHAEL J. REIN, both in his individual capacity and in his official capacity as Deputy Chief, Defendants. Civil Action No.: 3:15-cv-06607-FLW-LHG Document Electronically Filed BRIEF IN OPPOSITION TO PLAINTIFF’S MOTION TO AMEND THE COMPLAINT _______ McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 1300 Mount Kemble Avenue Morristown, New Jersey 07960-2075 973-993-8100 Attorneys for Defendants James P. Lidon, Of Counsel and on the Brief. Seth Spiegal, On the Brief. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 1 of 33 PageID: 295 i TABLE OF CONTENTS TABLE OF AUTHORITIES..........................................iii PRELIMINARY STATEMENT...........................................1 PROCEDURAL HISTORY..............................................2 STATEMENT OF PLAINTIFF’S PROPOSED ALLEGATIONS...................3 LEGAL ARGUMENT..................................................8 STANDARD OF REVIEW.........................................8 POINT I THE FIRST COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE.................................................10 POINT II THE SECOND COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE.................................................13 A. The Second Count Is Futile Because Plaintiff Fails to Identify Any Contract That Defendants Allegedly Breached..............13 B. The Second Count Is Futile Because the CNA Expressly Governs Plaintiff’s Employment......................................15 POINT III THE THIRD COUNT OF THE PROPOSEED AMENDED COMPLAINT IS FUTILE.................................................17 POINT IV THE FOURTH COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE.................................................18 COUNT V THE FIFTH COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE.................................................22 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 2 of 33 PageID: 296 ii COUNT VI THE SIXTH COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE.................................................23 CONCLUSION.....................................................26 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 3 of 33 PageID: 297 iii TABLE OF AUTHORITIES Page(s) CASES Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000) ..................................8 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ..........................9, 12, 13, 20, 23 Baklayan v. Ortiz, 2012 U.S. Dist. LEXIS 48705 (D.N.J. Apr. 5, 2012) ...........12 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..........................................9 Bishop v. GNC Franchising LLC, 248 F. App’x 298 (3d Cir. 2007) .............................10 Brangan v. Ball Plastic Container Corp., 2012 U.S. Dist. LEXIS 53860 (D.N.J. Apr. 17, 2012) ..........24 Brennan v. Palmieri, 2008 U.S. Dist. LEXIS 118626 (D.N.J. June 4, 2008) ..........12 Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006) .................................10 Cayuse, LLC v. United States, 2017 U.S. Dist. LEXIS 43435 (D.N.J. Mar. 24, 2017) ...........8 County of Hudson v. Janiszewski, 351 F. App’x 662 (3d Cir. 2009) ..............................8 Cutler v. Dorn, 196 N.J. 419 (2008) .........................................11 Dillin v. Constr. & Turnaround Servs., LLC, 2015 U.S. Dist. LEXIS 124873 (D.N.J. Sept. 18, 2015) .......................................................24 Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super. 366 (App. Div. 2014) ....................11, 12 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 4 of 33 PageID: 298 iv Ferraioli v. City of Hackensack Police Dep’t, 2010 U.S. Dist. LEXIS 8527 (D.N.J. Feb. 2, 2010) ............22 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ..................................9 Gerasimov v. Caravan Ingredients, Inc., 2013 U.S. Dist. LEXIS 92665 (D.N.J. July 1, 2013) .......20, 21 Green v. Brennan, 136 S. Ct. 1769 (May 23, 2016) ..............................25 Grossberger v. Ruane, 2012 U.S. Dist. LEXIS 41562 (D.N.J. Mar. 27, 2012) ..........12 Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738 (1976) ..........................................9 In re NAHC, Inc. Sec. Litig., 306 F.3d 1314 (3d Cir. 2002) .................................8 In re Samsung DLP Television Class Action Litig., 2009 U.S. Dist. LEXIS 100065 (D.N.J. Oct. 27, 2009) .....14, 22 Iwanicki v. Bay State Milling Co., 2011 U.S. Dist. LEXIS 140944 (D.N.J. Dec. 7, 2011) ......15, 22 Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993) .........................................11 Mahmoud v. v. Rite Aid Corp., 2012 U.S. Dist. LEXIS 115726 (D.N.J. Aug. 16, 2012) .....15, 22 Marjam Supply Co. v. Firestone Bldg. Prods. Co., 2014 U.S. Dist. LEXIS 46572 (D.N.J. Apr. 4, 2014) ............8 McMullen v. Ocwen Loan Servicing, LLC, 2017 U.S. Dist. LEXIS 25339 (D.N.J. Feb. 23, 2017) ..........14 Neitzke v. Williams, 490 U.S. 319 (1989) .........................................10 Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008) ..................................9 Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980) ...........................................24 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 5 of 33 PageID: 299 v Ricketti v. Barry, 2015 U.S. Dist. LEXIS 28503 (D.N.J. Mar. 9, 2015) ...........14 Rodridguez v. Ready Pac Produce, 2014 U.S. Dist. LEXIS 64139 (D.N.J. May 9, 2014) ............21 Rodriguez v. Springhill Suites by Marriott, 2014 U.S. Dist. LEXIS 16605 (D.N.J. Feb. 10, 2014) ..........24 Russelman v. ExxonMobil Corp., 2012 U.S. Dist. LEXIS 103454 (D.N.J. July 25, 2012) .........24 Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1 (2002) ...........................................12 Spence-Parker v. Del. River & Bay Auth., 656 F. Supp. 2d 488 (D.N.J. 2009) ...........................11 United States ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837 (3d Cir. 2014) ..................................8 Ware v. Prudential Ins. Co., 220 N.J. Super. 135 (App. Div. 1987) ........................16 Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284 (N.J. 1985) .................................15, 16 STATUTES 42 U.S.C. § 1983.........................................2, 3, 25 N.J.S.A. 10:5-1, et seq.........................................1 N.J.S.A. 10:5-3, 10:5-4.1......................................11 N.J.S.A. 34:19-1, et seq........................................1 N.J.S.A. 34:19-3...............................................20 N.J.S.A. 34:19-3(a)............................................19 N.J.S.A. 34:19-3(c)............................................19 RULES Federal Rule of Civil Procedure 12(b)(6)..............2, 8, 9, 10 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 6 of 33 PageID: 300 vi OTHER AUTHORITIES 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004) ...................10 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 7 of 33 PageID: 301 1 PRELIMININARY STATEMENT This brief is submitted on behalf of defendants, Rutgers, The State University of New Jersey (“Rutgers” or “University”), Kenneth Cop, and Michael Rein (collectively “defendants”) in support of their in opposition to plaintiff’s motion to amend the Complaint. For the reasons stated below, the motion must be denied in its entirety. Plaintiff’s motion is entirely without merit. The factual allegations in plaintiff’s proposed Amended Complaint1 are identical to those in the Amended Complaint, which the Court dismissed by its Order of March 10, 2017. The proposed Amended Complaint contains six counts: (1) hostile work environment under the New Jersey Law Against Discrimination (“LAD”) (First Count), N.J.S.A. 10:5-1, et seq.; (2) breach of contract (Second Count); (3) “Retaliation” (Third Count); (4) Conscientious Employee Protection Act (“CEPA”), N.J.S.A. 34:19-1, et seq. (Fourth Count); (5) breach of the implied covenant of good faith and fair dealing (Fifth Count); and (6) “wrongful constructive termination/discharge in violation of public policy” (Sixth Count). In the proposed new pleading, plaintiff simply asserts 1 The current operative pleading is the Amended Complaint. Thus, plaintiff’s proposed new pleading is more properly characterized as the proposed Second Amended Complaint. Nevertheless, for purposes of this brief, defendants will refer to the proposed new pleading as the proposed Amended Complaint. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 8 of 33 PageID: 302 2 in conclusory fashion multiple various new causes of action (and in some cases, pleads causes of action identical to those dismissed in the March 10 Order). He makes no attempt to support any of his causes of action with factual allegations sufficient state a plausible claim. Moreover, the brief plaintiff submitted in accordance with the Court’s order contains virtually no discussion as to the merits of any of the claims. Because each proposed new cause of action would fail to survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), plaintiff’s proposed Amended Complaint is futile. Accordingly, plaintiff’s motion to amend must be denied in its entirety. PROCEDURAL HISTORY On September 3, 2015, plaintiff initiated this action by filing a Complaint. On February 9, 2016, plaintiff filed an Amended Complaint, which contained: (1) a claim under 42 U.S.C. § 1983 for violation of due process (First Count); (2) a claim under § 1983 for violation of his right to free association (Second Count); (3) a claim for “retaliation” based on his filing a grievance through his union (Third Count); and (4) a CEPA claim (Fourth Count). On August 29, 2016, defendants filed a motion to dismiss the Amended Complaint. On September 30, 2016, plaintiff filed a Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 9 of 33 PageID: 303 3 cross-motion to amend the Amended Complaint, but failed to attach the proposed Second Amended Complaint. By Opinion and Order dated March 10, 2017, the Court dismissed the Amended Complaint in its entirety and denied plaintiff’s cross-motion to amend, but provided plaintiff with an opportunity to file a new motion to amend. In the March 10 Opinion, the Court found all § 1983 allegations based on events occurring prior to September 3, 2013, and all CEPA allegations based on events occurring prior to September 3, 2014, to be time-barred. On April 7, 2017, plaintiff filed a new motion to amend but failed to file a supporting brief. On April 28, 2017, the Court ordered plaintiff to file the necessary brief and a redlined version of the proposed amendment. On May 12, 2017, plaintiff filed a brief and a purported redline proposed amendment. STATEMENT OF PLAINTIFF’S PROPOSED ALLEGATIONS2 Since February 2007, plaintiff has been employed by Rutgers in the RUPD-New Brunswick as a patrol officer (Proposed Amended Complaint, ¶6). He is a member of Lodge 62 of the New Jersey Fraternal Order of Police (“FOP or “Union”), the bargaining representative for most RUPD officers (Id., ¶7). 2 For purposes of this motion only, defendants assume that the well-pleaded factual allegations of the proposed Amended Complaint are true. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 10 of 33 PageID: 304 4 On or about July 23, 2012, as a member of FOP Lodge 62, plaintiff “let it be publicly known” that he was a candidate for the post of Vice President of that lodge (Id., ¶9). On August 2, 2012, defendant Rein, who at the time held the rank of Captain, instituted an Internal Affairs investigation against plaintiff concerning allegations that he had submitted a false time card (Id., ¶11). Ultimately, plaintiff received discipline by way of a Corrective Training Form that was placed in his personnel file (Id., ¶12). On September 28, 2012, then-Captain Rein issued a Corrective Training Form against plaintiff for failing to upload a photograph of an arrested subject to the new Interact Reporting System (Id., ¶14). On October 12, 2012, then-Captain Rein filed an Internal Affairs Complaint Notification against plaintiff (Id., ¶16). The Notification advised plaintiff that an investigation was commenced concerning whether he violated RUPD professional standards by responding untimely to a report of a burglary (Id.). Following the investigation, plaintiff was issued a reprimand that was made part of his personnel file (Id., ¶17). On December 19, 2012, then-Captain Rein served plaintiff with another Internal Affairs Investigation Notification, which involved a November 2012 incident in which plaintiff, while off duty in his personal vehicle, was involved in a motor vehicle Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 11 of 33 PageID: 305 5 chase (Id., ¶18). Plaintiff was placed on the “Early Warning System,” in which an officer deemed to be in need of heightened supervision is subject to intense monitoring and weekly performance evaluations (Id., ¶19). In March 2013, plaintiff was elected Vice President of FOP Lodge 62 and also as Board Member of the New Jersey State FOP Labor Council (Id., ¶21). On May 18, 2013, plaintiff was issued another Corrective Training Form for working one-half hour in excess of the RUPD professional guidelines’ 16-hour limitation for continuous working hours (Id., ¶22). On July 23, 2013, plaintiff was transferred from the day shift to the night shift (Id., ¶44). On August 27, 2013, plaintiff received a Personnel Counseling Form based on an incident in which there had been a conflict in overtime assignments (Id., ¶23). On September 1, 2013, plaintiff filed a grievance under the collectively negotiated agreement (“CNA”) between RUPD and FOP Local 62 (Id., ¶25). The grievance was denied (Id.). On September 3, 2013, plaintiff filed three separate Internal Affairs complaints against supervisory officers, alleging violations of RUPD professional standards (Id., ¶26). Two complaints were against Sgt. Wilmot, alleging that (1) he violated RUPD policy by improperly assigning overtime work to a Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 12 of 33 PageID: 306 6 Lieutenant; and (2) on several occasions over the past month, he violated RUPD conduct policy by disparaging plaintiff’s efforts on behalf of the membership of FOP Local 62 and insinuating that plaintiff was responsible for negative employment conditions (Id.). Plaintiff also alleged that Sgt. Wilmot disparaged plaintiff by asserting to another officer that Sgt. Wilmot had been mandated to work overtime because plaintiff had “double booked” himself (Id.). The third complaint was against Lieutenant Matthew Gulsby, alleging that Lt. Gulsby had submitted a false report regarding the time that he had arrived at an assignment to cover a public event (Id.). On September 4, 2013, then-Captain Rein initiated an Internal Affairs complaint against plaintiff alleging violations of the RUPD professional standards (Id., ¶27). Then-Captain Rein, in his capacity of supervisor of Internal Affairs, ruled all of plaintiff’s Internal Affairs complaints unfounded (Id., ¶28). On December 18, 2013, an Internal Affairs complaint was initiated against plaintiff based on an allegation that plaintiff had improperly used official time to engage in FOP Lodge 62 business without permission (Id., ¶29). Plaintiff was exonerated (Id.). Plaintiff filed an Internal Affairs Complaint against the supervising officer who filed the complaint against him; plaintiff’s complaint was dismissed (Id., ¶30). Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 13 of 33 PageID: 307 7 On January 1, 2014, plaintiff was elected President of FOP Lodge 62 (Id., ¶34). On February 6, 2014, plaintiff was notified that the RUPD was considering whether to suspend him for the November 2012 off-duty car chase incident (Id., ¶31). Ultimately, plaintiff was found to be in violation of RUPD professional standards (Id.). He was suspended for 12 hours and his “Early Warning” status was extended (Id.). While on “Early Warning” status, plaintiff was subject to intense supervision of his activities (Id., ¶32). On January 3, 2015, plaintiff discovered and reported a theft of FOP Local 62 funds (Id., ¶34). An RUPD disciplinary matter was opened against the officer suspected of the theft and she was charged criminally (Id.). On January 11, 2015, Deputy Chief Rein advised plaintiff that he wished to interview him the following day regarding the theft of funds from FOP Lodge 62 (Id., ¶35). Plaintiff declined to submit to that interrogation (Id., ¶38). On or about January 13, 2015, plaintiff was charged with a violation of RUPD professional standards (Id., ¶40). On April 20, 2015, plaintiff was found responsible for violating RUPD professional by standards for failing to submit to the interrogation by Deputy Chief Rein and received a 96-hour suspension (Id., ¶41). Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 14 of 33 PageID: 308 8 On July 22, 2015, plaintiff was notified that his request for Senior Officer status was denied (Id., ¶45). LEGAL ARGUMENT STANDARD OF REVIEW “A district court may deny leave to amend a complaint where it is apparent from the record that (1) the moving party has demonstrated undue delay, bad faith or dilatory motives, (2) the amendment would be futile, or (3) the amendment would prejudice the other party.” United States ex rel. Schumann v. AstraZeneca Pharms. L.P., 769 F.3d 837, 849 (3d Cir. 2014). “An amendment is futile if the amended complaint would not survive a motion to dismiss . . . .” County of Hudson v. Janiszewski, 351 F. App’x 662, 666 (3d Cir. 2009) (quoting Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000)); see also In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002) (“An amendment would be futile when the complaint, as amended, would fail to state a claim upon which relief could be granted.”) (internal citation omitted). Therefore, “[t]he futility analysis on a motion to amend is essentially the same as a Rule 12(b)(6) motion.” Cayuse, LLC v. United States, 2017 U.S. Dist. LEXIS 43435, at *7-8 (D.N.J. Mar. 24, 2017) (citing Marjam Supply Co. v. Firestone Bldg. Prods. Co., 2014 U.S. Dist. LEXIS 46572, at *9-10 (D.N.J. Apr. 4, 2014)). Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 15 of 33 PageID: 309 9 A motion under Rule 12(b)(6) admits the well-pleaded allegations of the complaint but denies their legal sufficiency. See Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740 (1976). To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id., 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In reviewing a Rule 12(b)(6) motion, a district court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). But, “[t]he tenet that a court must accept as true all of the allegations in a complaint is inapplicable to legal conclusions.” Iqbal, 556 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 16 of 33 PageID: 310 10 U.S. at 678. A district court may grant a Rule 12(b)(6) motion on a dispositive issue of law. Bishop v. GNC Franchising LLC, 248 F. App’x 298, 299 (3d Cir. 2007) (citing Neitzke v. Williams, 490 U.S. 319, 326-27 (1989)). “In evaluating a motion to dismiss, [a court] may consider documents that are attached to or submitted with the complaint and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (citing 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004)). POINT I THE FIRST COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE. In the First Count of the proposed Amended Complaint, plaintiff asserts a claim for hostile work environment under the LAD. He alleges that “[d]efendants violated Off. DeFalco’s rights protected under [the LAD] as the conditions of his employment were altered and the working environment were hostile and abusive” (Proposed Amended Complaint, ¶51). Because plaintiff fails to meet the pleading requirements for this claim, the cause of action is futile. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 17 of 33 PageID: 311 11 The LAD proscribes discrimination against individuals on the basis of race, creed, color, national origin, ancestry, age, sex, affectional or sexual orientation, marital status, familial status, liability for service in the Armed Forces of the United States, nationality, or handicap. N.J.S.A. 10:5-3, 10:5-4.1. As it relates to plaintiff’s particular claim, the LAD “prohibits unlawful employment practices and discrimination in the form of harassment, ‘based on race, religion, sex, or other protected status, that creates a hostile work environment.’” Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J. Super. 366, 375 (App. Div. 2014) (quoting Cutler v. Dorn, 196 N.J. 419, 430 (2008)); see generally Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587 (1993)). As discussed above, a viable claim under the LAD must allege discrimination based on an enumerated protected class, and this one does not. “A plaintiff claiming to have been wrongly discriminated against in violation of the NJLAD must identify the protected class that forms the basis of her discrimination claim; where it [is] not apparent whether [the plaintiff] allege[s] that [he] [was] [discriminated against] on the basis of race, gender, age, or a different protected class, dismissal of an NJLAD claim . . . is appropriate.” Spence- Parker v. Del. River & Bay Auth., 656 F. Supp. 2d 488, 505 (D.N.J. 2009). Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 18 of 33 PageID: 312 12 At no point in the proposed Amended Complaint does plaintiff identify himself as being a member of any of the classifications listed above. Accordingly, his LAD claim must be dismissed. See id.; Brennan v. Palmieri, 2008 U.S. Dist. LEXIS 118626, at *13-14 (D.N.J. June 4, 2008) (dismissing LAD hostile environment claim where plaintiff did not allege membership in a protected class); Grossberger v. Ruane, 2012 U.S. Dist. LEXIS 41562, at *1 (D.N.J. Mar. 27, 2012) (court dismissed discrimination claim where plaintiff did not identify protected class); Baklayan v. Ortiz, 2012 U.S. Dist. LEXIS 48705, at *23 (D.N.J. Apr. 5, 2012) (dismissing LAD claim where plaintiff did not identify protected class). In addition, the allegations in the proposed Amended Complaint come nowhere close to the level necessary to satisfy the Iqbal plausibility standard. To establish a cause of action under the LAD based on a hostile work environment, a plaintiff must show that the relevant conduct (1) would not have occurred but for the employee’s protected status, and was (2) severe or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment have been altered and that the working environment is hostile or abusive. Dunkley, 437 N.J. Super. at 375 (citing Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 24 (2002)). Plaintiff’s allegations consist only of various disciplinary actions and contain nothing to suggest any Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 19 of 33 PageID: 313 13 “severe or pervasive” conduct that would result in a “hostile or abusive” environment. Further, plaintiff’s brief contains no discussion on the merits of the hostile work environment claim. Because plaintiff’s hostile environment claim is futile, the motion to amend must be denied as to the proposed First Count. POINT II THE SECOND COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE. A. The Second Count Is Futile Because Plaintiff Fails to Identify Any Contract That Defendants Allegedly Breached._____________________________________________ The Second Count of plaintiff’s proposed Amended Complaint contains a claim for breach of contract. Because plaintiff fails to identify any contract or contractual provision that would give rise to his claim, he cannot, under Iqbal, establish a plausible cause of action. Thus, plaintiff’s breach-of- contract claim is futile. Plaintiff alleges the following: 54. At all times relevant to this action, Defendant Rutgers has represented to employees in various writings including, but not limited to, written employment contracts, personnel policies and procedure manual, retirement and profit-sharing plan employee guidelines, that their employment would be based upon the defendant's good faith compliance with the law, that employees would be treated fairly and equitably, that empoyees (sic) would be judged on the basis of individual merit and ability, and that Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 20 of 33 PageID: 314 14 employees would receive just complensation (sic) for their services. These provisions and representations form part of Off. Defalco’s employment contract and relationship with the defendants. 55. Defendant Rutgers breached Off. Defalco's employment contract and wrongfully failed to judge him on the basis of merit and ability, and wrongfully and without cause harassed him, intimidated him, and bullied him pushing him into a position where he had to leave his employment. (Proposed Amended Complaint, ¶¶54-55) (emphasis added). Plaintiff’s failure to identify a specific contract or contractual provision that defendants allegedly breached – or how defendants allegedly breached any contract – is fatal to his claim. “[I]t is axiomatic that contract-based claims that do not adequately identify the contract at issue fail to set forth fair notice of a claim and the grounds upon which it rests and do not raise a right to relief above the speculative level.” Ricketti v. Barry, 2015 U.S. Dist. LEXIS 28503, at *17 (D.N.J. Mar. 9, 2015) (citing In re Samsung DLP Television Class Action Litig., 2009 U.S. Dist. LEXIS 100065 (D.N.J. Oct. 27, 2009) (dismissing contract claims where plaintiffs “simply allude to ‘contracts and agreements’”)); see also McMullen v. Ocwen Loan Servicing, LLC, 2017 U.S. Dist. LEXIS 25339, at *8-9 (D.N.J. Feb. 23, 2017) (“Without the identification of a contract in the complaint, Plaintiffs have failed to state a viable breach of contract claim at the most basic level.”) (collecting cases)). Specifically, where an employee asserting a breach-of-contract Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 21 of 33 PageID: 315 15 claim alleges only the breach of undefined employment-based documents, such as nonspecific policy manuals, the claim cannot survive dismissal. See, e.g., Mahmoud v. v. Rite Aid Corp., 2012 U.S. Dist. LEXIS 115726, at *22 (D.N.J. Aug. 16, 2012) (dismissing contract claim based on “oral representations and/or [defendants’] handbook, termination letter, and other employment documents” where plaintiff failed to identify specific portions of the contract allegedly breached); Iwanicki v. Bay State Milling Co., 2011 U.S. Dist. LEXIS 140944, at *11 (D.N.J. Dec. 7, 2011) (dismissing contract claim based on “[employment] manuals and documentation” where plaintiff did not identify contract allegedly breached or the provisions of the contract allegedly breached). Absent any reference to a specific contract or contractual provision, plaintiff’s breach-of- contract claim would not survive a motion to dismiss and therefore is futile. Because plaintiff’s breach-of-contract claim is futile, the motion to amend must be denied as to the proposed Second Count. B. The Second Count Is Futile Because the CNA Expressly Governs Plaintiff’s Employment._______________________ To the extent plaintiff asserts a claim under Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284 (N.J. 1985), that an implied contract based on various policy manuals may be enforceable, the claim is futile because, as plaintiff admits in Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 22 of 33 PageID: 316 16 paragraph 25, his employment was governed by the CNA. “The basic principle of Woolley is that ‘. . . when an employer of a substantial number of employees circulates a manual that, when fairly read, provides that certain benefits are an incident of the employment (including, especially, job security provisions), the judiciary . . . should construe them in accordance with the reasonable expectations of the employees.’” Ware v. Prudential Ins. Co., 220 N.J. Super. 135, 142-143 (App. Div. 1987) (citation and internal quotation marks omitted). Where an employer is unionized, a Woolley claim by an employee fails because “it may be concluded that the ‘reasonable expectation’ of [the employees] was that their employment relations were not governed by any personnel manual but rather, in the case of non- supervisory employees, by collective bargaining agreements.” Id. Here, the CNA expressly governs plaintiff’s employment and disciplinary matters.3 Article 5, Section 1 of the CNA states, “No officer shall be discharged, suspended or disciplined except for just cause[.]” Article 5, Section 2 of the CNA provides that “in the case of any disciplinary action, the sole right and remedy under this Agreement shall be to file a grievance through and in accordance with this grievance procedure.” Because the 3 A true and correct copy of the CNA is attached as Exhibit A. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 23 of 33 PageID: 317 17 CNA governs disciplinary matters, a breach-of-contract claim for unlawful discipline referencing any other contract is inconsistent with the reasonable expectations of the parties. Further, plaintiff’s brief contains no discussion on the merits of the breach-of-contract claim. Due to the fact that plaintiff’s breach-of-contract claim would not survive a motion to dismiss, the claim is futile, and accordingly the motion to amend must be denied as to the proposed Second Count. POINT III THE THIRD COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE. In the Third Count of the proposed Amended Complaint, plaintiff alleges that defendants retaliated against him for exercising his right under the First Amendment to the United States Constitution to petition the government for the redress of grievances. Plaintiff alleges that he petitioned the government by filing grievances with the University through his union under the collectively negotiated agreement between the union and the University (Proposed Amended Complaint, ¶59). This claim is identical to the claim contained in the Third Count of the Amended Complaint. In its March 10 Order, the Court dismissed this claim. Thus, plaintiff’s proposed retaliation claim is futile for the reason discussed in Section Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 24 of 33 PageID: 318 18 II(C) of the Court’s March 10, 2017 Opinion: that plaintiff fails to allege that the union grievances upon which his claim is based were the statements of a private citizen. Plaintiff contends on pages 4 and 5 of his brief that he “added the count of retaliation” and offers a conclusory assertion that he “can make out the elements of retaliation.” To the contrary, the same retaliation claim was included in the previous Amended Complaint, and plaintiff’s bald statement is entirely unpersuasive. Because plaintiff’s retaliation claim is futile, the motion to amend must be denied as to the proposed Third Count. POINT IV THE FOURTH COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE. Plaintiff’s CEPA claim in the Fourth Count of the proposed Amended Complaint is futile because plaintiff does not plead any facts to support any of the elements of a CEPA claim. CEPA provides, in relevant part, that an employer may not take retaliatory action against an employee who: (a) Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes: (1) is in violation of a law, or a rule or regulation promulgated pursuant to law, including any violation involving deception Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 25 of 33 PageID: 319 19 of, or misrepresentation to, any shareholder, investor, client, patient, customer, employee, former employee, retiree or pensioner of the employer or any governmental entity, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care; or (2) is fraudulent or criminal . . . . N.J.S.A. 34:19-3(a). CEPA also protects an employee who “[o]bjects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes” either satisfies the above standard or “is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.” N.J.S.A. 34:19-3(c). “Thus, in sum, CEPA applies to employee reports or complaints of activities the employee reasonably believes are (i) in violation of specific statute or regulation; (ii) fraudulent or criminal; or (iii) incompatible with policies concerning public health, safety or welfare or the protection of the environment.” Clark v. Acme Mkts., Inc., 2014 U.S. Dist. LEXIS 23031, at *23 (D.N.J. Feb. 24, 2014). To state a claim under CEPA, a plaintiff must allege facts establishing that (1) he reasonably believed that his employer was violating a law, rule, regulation, or public policy; (2) he performed a whistle-blowing activity; (3) an adverse employment action was taken against him; and (4) there Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 26 of 33 PageID: 320 20 was causation. Gerasimov v. Caravan Ingredients, Inc., 2013 U.S. Dist. LEXIS 92665, at *7-8 (D.N.J. July 1, 2013). Plaintiff’s CEPA claim is based on the following allegations: 66. Up until April 20, 2015, when Off. Defalco was suspended for 96 hours without pay and at various times before and after that date, Off. DeFalco disclosed to his supervisor and to RU/RUPD as a public body violations of law and of rules and regulations promulgated pursuant to law committed by employees of RU/RUPD. 67. As a result of those reports of violations of law and/or violations of rules and regulations promulgated pursuant to law, agents, servants and employees of RU/RUPD have committed acts of retaliation against him, including but not limited to the filing of disciplinary charges against him on April 20, 2015 in violation of N.J.S.A. 34:19-3. 68. As a result of the acts of retaliation committed against Off. DeFalco as a result of his reports of violations of laws and/or rules and regulations promulgated pursuant to law by RU/RUPD employees, Off. DeFalco has been harmed. (Proposed Amended Complaint, ¶¶66-68). Plaintiff’s claim is simply a bare listing of certain elements of a CEPA cause of action, which, under Iqbal, is insufficient. At no point in any of the allegations of the proposed Amended Complaint does plaintiff present and plausible allegations that: (1) he reasonably believed that his employer was violating a law, rule, regulation, or public policy; (2) he performed a whistle-blowing activity; or (3) the existence of causation. Most notably, plaintiff fails to allege that he made any specific reports or Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 27 of 33 PageID: 321 21 complaints that he would even argue is protected under CEPA. The omission of any allegations supporting any CEPA element is fatal to a successful CEPA cause of action. See Gerasimov v. Caravan Ingredients, Inc., 2013 U.S. Dist. LEXIS 92665, at *7-8 (D.N.J. Jul. 2, 2013) (dismissing CEPA claim where plaintiff failed to allege facts supporting the elements of the claim) ; Rodridguez v. Ready Pac Produce, 2014 U.S. Dist. LEXIS 64139, at *28-30 (D.N.J. May 9, 2014) (dismissing CEPA claim where plaintiff failed to identify any activity that he reasonably would have believed was in violation of a law, rule, or regulation or a clear mandate of public policy). To the extent plaintiff asserts under CEPA that his protected conduct was in the form of his alleged September 3, 2013 complaints of violations by Sgt. Wilmot and Lt. Gulsby of internal RUPD procedures, his claim would be duplicative of the CEPA claim asserted in his Amended Complaint, and it is futile for the reason discussed by the Court in Section II(D) of the March 10, 2017 Opinion: that these complaints were of internal rule violations and therefore are not covered by CEPA. Finally, plaintiff’s brief contains no discussion on the merits of the CEPA claim. Because plaintiff’s proposed CEPA claim would not satisfy a motion to dismiss, the claim is futile. Accordingly, the motion to amend must be denied as to the proposed Fourth Count. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 28 of 33 PageID: 322 22 POINT V THE FIFTH COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE. In the Fifth Count of the proposed Amended Complaint, plaintiff asserts a conclusory claim for breach of the implied covenant of good faith and fair dealing. This claim is futile for the reason that plaintiff’s breach-of-contract claim is futile: the failure to identify any contract allegedly breached. “[T]here can be no claim for breach of the implied covenant of good faith and fair dealing without identifying a contract, the performance or non-performance of which may serve as the predicate for the claim.” Ferraioli v. City of Hackensack Police Dep’t, 2010 U.S. Dist. LEXIS 8527, at *37-38 (D.N.J. Feb. 2, 2010). Plaintiff’s failure to identify a contract allegedly breached defeats his claim for breach of the implied covenant of good faith and fair dealing. See, e.g., id. (dismissing claim for implied covenant of good faith and fair dealing, along with claim for breach of contract, where plaintiff did not identify the contract allegedly breached); Iwanicki, 2011 U.S. Dist. LEXIS 140944 at *12-13 (same); In Re Samsung, 2009 U.S. Dist. LEXIS 100065 at *17 (same); Mahmoud, 2012 U.S. Dist. LEXIS 115726 at *22 (same). Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 29 of 33 PageID: 323 23 In addition, plaintiff’s brief contains no discussion on the merits of the claim for breach of the implied covenant of good faith and fair dealing. Because plaintiff’s claim for breach of the implied covenant of good faith and fair dealing is futile, the motion to amend must be denied as to the proposed Fifth Count. POINT VI THE SIXTH COUNT OF THE PROPOSED AMENDED COMPLAINT IS FUTILE. In the Sixth Count of the proposed Amended Complaint, entitled “Wrongful Constructive Termination/Discharge in Violation of Public Policy,” plaintiff alleges the following: “The acts and omissions of the Defendants constitute a wrongful constructive termination/discharge in violation of public policy by which Off. Defalco has been damaged and will continue to suffer damages.” (Proposed Amended Complaint, ¶73). This claim is futile for multiple reasons. First, the proposed Amended Complaint contains no allegations to support that plaintiff’s employment with the University ever ceased. Absent this basic allegation, a claim for constructive termination is not possible. Second, in contravention of the standards enunciated in Iqbal, plaintiff fails to include any allegations supporting his cause of action. “The New Jersey Supreme Court has held that an Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 30 of 33 PageID: 324 24 employee may have a cause of action for wrongful discharge if the employee was discharged contrary to a clear mandate of public policy.” Dillin v. Constr. & Turnaround Servs., LLC, 2015 U.S. Dist. LEXIS 124873, at *20 (D.N.J. Sept. 18, 2015) (citing Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72 (1980)). “To establish a case for common law wrongful discharge, the employee must identify the clear mandate of public policy and that the discharge itself was in violation of that public policy.” Id. (citing Brangan v. Ball Plastic Container Corp., 2012 U.S. Dist. LEXIS 53860 (D.N.J. Apr. 17, 2012). Plaintiff fails to identify any public policy allegedly violated. This omission dooms his claim. See Brangan v. Ball Plastic Container Corp., 2012 U.S. Dist. LEXIS 53860, at *11 (D.N.J. Apr. 17, 2012) (dismissing complaint because “Plaintiff has not identified the clear mandate of public policy, and thus failed to establish the first element of the prima facie case”); Rodriguez v. Springhill Suites by Marriott, 2014 U.S. Dist. LEXIS 16605, at *5 (D.N.J. Feb. 10, 2014) (granting motion to dismiss, reasoning that “Plaintiff's failure identify the public policy allegedly violated by her termination from employment is fatal to her common law wrongful discharge claim”); Russelman v. ExxonMobil Corp., 2012 U.S. Dist. LEXIS 103454, at *13-14 (D.N.J. July 25, 2012) (“Plaintiff’s Amended Complaint fails to identify a specific expression of public policy, and . . . Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 31 of 33 PageID: 325 25 failure to do so empowers the court to grant a motion to dismiss.”). Plaintiff’s conclusory, standalone statement on page 5 of his brief that he “has proofs to satisfy the elements of constructive discharge” is entirely insufficient to justify the inclusion of this proposed claim. Moreover, his discussion on pages 5 and 6 of his brief concerning the application of the statute of limitations to his claim for wrongful discharge is difficult to understand and in any event has no application to this case. Defendants are not arguing that plaintiff’s wrongful discharge claim is untimely; they are arguing that the claim is extraordinarily deficient under the federal pleading standards.4 4 To the extent plaintiff argues that the Court’s application of the statute of limitations to his § 1983 and CEPA claims, as set forth on pages 5 and 6 of the March 10 opinion, was somehow incorrect, his claim is baseless. First, plaintiff has not moved for reconsideration of the March 10 order, and the brief in support of his new motion to amend is not the proper venue in which to object to the Court’s prior opinion. In any event, his argument lacks merit. Citing Green v. Brennan, 136 S. Ct. 1769 (May 23, 2016), plaintiff states that “[b]ecause the clock should have started running with Officer DeFalco’s constructive discharge, his claims are not time barred as suggested by the Defendants.” Green stands only for the proposition that the statute of limitations on a claim for constructive discharge begins to run only after the employee resigns. Id. at 1774. Again, defendants are not asserting that plaintiff’s wrongful discharge claim is untimely. In addition, Green does not speak to the principle by which the Court found that some allegations based on “discrete acts,” which purportedly were part of plaintiff’s § 1983 and CEPA claims, were untimely. Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 32 of 33 PageID: 326 26 Because plaintiff’s wrongful discharge claim is futile, the motion to amend must be denied as to the proposed Sixth Count. CONCLUSION For all the foregoing reasons, plaintiff’s motion to amend must be denied. Respectfully submitted, McElroy, Deutsch, Mulvaney & Carpenter, LLP Attorneys for Defendants By _/s/ James P. Lidon_____ James P. Lidon A Member of the Firm Dated: May 22, 2017 Case 3:15-cv-06607-MAS-LHG Document 32 Filed 05/22/17 Page 33 of 33 PageID: 327 EXHIBIT A Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 1 of 33 PageID: 328 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 2 of 33 PageID: 329 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 3 of 33 PageID: 330 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 4 of 33 PageID: 331 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 5 of 33 PageID: 332 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 6 of 33 PageID: 333 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 7 of 33 PageID: 334 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 8 of 33 PageID: 335 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 9 of 33 PageID: 336 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 10 of 33 PageID: 337 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 11 of 33 PageID: 338 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 12 of 33 PageID: 339 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 13 of 33 PageID: 340 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 14 of 33 PageID: 341 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 15 of 33 PageID: 342 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 16 of 33 PageID: 343 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 17 of 33 PageID: 344 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 18 of 33 PageID: 345 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 19 of 33 PageID: 346 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 20 of 33 PageID: 347 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 21 of 33 PageID: 348 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 22 of 33 PageID: 349 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 23 of 33 PageID: 350 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 24 of 33 PageID: 351 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 25 of 33 PageID: 352 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 26 of 33 PageID: 353 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 27 of 33 PageID: 354 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 28 of 33 PageID: 355 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 29 of 33 PageID: 356 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 30 of 33 PageID: 357 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 31 of 33 PageID: 358 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 32 of 33 PageID: 359 Case 3:15-cv-06607-MAS-LHG Document 32-1 Filed 05/22/17 Page 33 of 33 PageID: 360 CERTIFICATE OF SERVICE Seth Spiegal, Esq. hereby certifies that on May 22, 2017, I caused the above Opposition Brief to be served via ECF on: Anthony J. Fusco, Jr., Esq. Fusco & Macaluso Partners, LLC 150 Passaic Avenue Passaic, NJ 07055 I hereby certify that all of the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. s/Seth Spiegal_____ SETH SPIEGAL Dated: May 22, 2017 Case 3:15-cv-06607-MAS-LHG Document 32-2 Filed 05/22/17 Page 1 of 1 PageID: 361