NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2411-14T3
RICHMOND LAPOLLA, APPROVED FOR PUBLICATION Plaintiff-Appellant, March 28, 2017 v. APPELLATE DIVISION
COUNTY OF UNION and GEORGE DEVANNEY, County Manager and Individually,
Defendants-Respondents.
______________________________________
Argued June 7, 2016 – Decided March 28, 2017
Before Judges Espinosa, Rothstadt and Currier.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L- 3547-11.
Susan B. Fellman argued the cause for appellant (Breuninger & Fellman, attorneys; Ms. Fellman and Patricia Breuninger, of counsel and on the briefs; Kathleen P. Ramalho, on the briefs).
Robert F. Varady argued the cause for respondent County of Union (LaCorte, Bundy, Varady & Kinsella, attorneys; Mr. Varady, of counsel and on the brief; Christina M. DiPalo, on the brief).
Robert F. Renaud argued the cause for respondent George Devanney (Palumbo Renaud & DeAppolonio, LLC, attorneys; Mr. Renaud, on the brief). The opinion of the court was delivered by
ESPINOSA, J.A.D.
Plaintiff claimed to be the victim of political patronage,
suffering adverse employment actions in part because his
politically active brother sparred with the chairwoman of the
Union County Democratic Party. Plaintiff's appeal from the
dismissal of his complaint presents the question whether his
familial and social affiliations qualify as constitutionally
protected conduct that satisfies an essential element of his
claims for violation of the New Jersey Civil Rights Act (NJCRA),
N.J.S.A. 10:6-1 to -2, and retaliation. We hold that they do
not.
Plaintiff Richmond Lapolla, a long-time employee of Union
County, filed suit, alleging violations of the NJCRA and Article
I, Sections 6 and 18, of the New Jersey Constitution, based upon
political affiliation (count one) and intentional infliction of
emotional distress (count two). He later amended the complaint
to add a third count, alleging retaliation for filing this
action. After summary judgment was granted, dismissing the
complaint, plaintiff filed this appeal, challenging the
dismissal of his NJCRA and retaliation claims. He also appeals
2 A-2411-14T3 from the denial of his motion to file a third amended complaint 1 to add another defendant. We affirm.
I.
The evidence, viewed in the light most favorable to
plaintiff, R. 4:46-2(c), can be summarized as follows.
Plaintiff began his employment with the County in 1979 as a
maintenance repair carpenter. Over the next twenty years
plaintiff was promoted several times.
Plaintiff was a member of the Union County Democratic
Committee (UCDC) for approximately ten years. He made
donations, handed out literature, and did some fundraising but
never ran for office.
Plaintiff described two factions in the UCDC. Charlotte
DeFilippo was the chairwoman of the UCDC. Plaintiff described
the other faction as including his brother, Michael Lapolla,2 and
"anybody who didn't walk in lockstep with Charlotte DeFilippo."
At his deposition, plaintiff was asked who belonged to this
faction besides Michael. He named the mayor of Elizabeth, J.
Christian Bollwage, State Senator Joseph Suliga and former
1 Plaintiff does not appeal from the dismissal of count two. His argument regarding the denial of his motion to file a third amended complaint lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). 2 We refer to plaintiff's brother by his first name to avoid confusion.
3 A-2411-14T3 Freeholder Daniel Sullivan. As to his own affiliation with that
faction, plaintiff added, "I was not a part of it." He was then
asked, "So you were not part of the Lapolla faction?" He
replied, "As you call it, no."
Michael became County Manager in 1997. According to
plaintiff, DeFilippo was miffed because she had wanted defendant
George Devanney to become County Manager and was not satisfied
by the appointment of Devanney to Deputy County Manager. In
1999, while his brother was County Manager, plaintiff became the
head of the Division of Buildings and Grounds in the Department
of Operational Services. He obtained the Civil Service title of
Director, Repair and Maintenance, a title he still holds.
Michael served as County Manager until 2002. During his
tenure, he clashed with DeFilippo over what he perceived as her
attempts to unduly influence the day-to-day operations of the
county. In 2002, after DeFilippo told Michael she thought it
was time for him to move on, he left his position to become
Executive Director of the New Jersey Turnpike Authority.
After Michael resigned, Devanney became County Manager and
plaintiff became director of the newly formed Department of
Operations and Facilities. Plaintiff continued to hold the
titles of head of the Division of Operations within that
department and chief of the Bureau of Construction Management,
4 A-2411-14T3 which is included in the Division of Operations. As the head of
a department, plaintiff reported directly to the County Manager.
Plaintiff received criticisms from Devanney regarding his
performance, beginning in early 2004, which he has termed "petty
and unsubstantiated."
In early 2005, while plaintiff was on a month-long medical
leave of absence, Devanney notified plaintiff he was being
transferred to Union County Vocational Technical Schools (Vo-
Tech) as Facilities Manager. Devanney did not need the approval
of the Board of Freeholders to reassign plaintiff or remove him
from the position of department director. Plaintiff asked to be
allowed to retain his position as Division Head or Bureau Head,
positions consistent with his Civil Service title. Devanney
refused.
Although Vo-Tech was an autonomous body, the County
continued to pay plaintiff's salary. According to plaintiff,
there was no purpose to his being assigned to Vo-Tech; he had no
responsibilities and his role did not meet the requirements of
his Civil Service title.3 However, plaintiff retained the Civil
3 N.J.A.C. 4A:3-3.9 establishes a procedure for an employee to request a "desk audit" to challenge assignment to a position when its duties do not conform to his Civil Service title. Although we do not accept defendant Devanney's argument that this was a necessary pre-requisite to plaintiff's commencement (continued)
5 A-2411-14T3 Service title of Director, Repair and Maintenance, that he had
as Director of Operations and Facilities and continued to
receive the same salary, which was $128,000 when the complaint
was filed. Plaintiff did not file a complaint alleging this
transfer constituted a politically-motivated violation of his
constitutional rights until September 2011, more than six years
after the transfer.
When Michael learned about the transfer, he contacted
Devanney to try to work something out that would permit
plaintiff to stay where he was. Although Devanney agreed, the
transfer went through and Devanney later explained, "Charlotte
[DeFilippo] said no." Michael believed this decision was
motivated by DeFilippo's animus toward him, which he considered
political in nature.
At his deposition, Devanney stated he had "lost all faith
and confidence" in plaintiff after his "continual[] resistance,
stonewalling and insubordination . . . throughout the years."
He further explained that "department directors . . . are
confidential aides" and that he could not "see eye to eye
enough" with plaintiff to keep him as a department head.
(continued) of this action, we note that plaintiff did not avail himself of this opportunity.
6 A-2411-14T3 Devanney restructured the County's departments once again,
and transferred the duties of the Department of Operations &
Facilities back to a division in the Department of Public Works.
Several of plaintiff's friends and coworkers provided
certifications in which they stated that, beginning in late
2004, DeFilippo and Devanney discouraged them from associating
with plaintiff and warned that doing so would be detrimental to
their careers with the County.
At the end of July 2010, plaintiff's assignment to Vo-Tech
came to an end because the construction projects he was
ostensibly overseeing were completed. Devanney assigned
plaintiff to the Juvenile Detention Center (JDC). He admitted
he did not look for any job openings for plaintiff as a director
or department head. The stated purpose for this assignment was
to "organize, develop, and perform work on all matters
pertaining to the maintenance and repair of [the JDC]."
Devanney admitted, however, he had no idea who plaintiff would
supervise or if there were people for him to supervise.
Plaintiff was assigned to a room approximately twelve by
sixteen feet that resembled an electronics storage room. He did
not have a computer for approximately one month and the
telephone he had was restricted to internal use only.
7 A-2411-14T3 Plaintiff testified that one of his supervisors at the JDC,
Greg Lyons, told him he was "dumped" there. When he asked the
other supervisor, Michael Brennan, what he was to do there, the
supervisor "shrugged his shoulders," said, "I don’t know," and
left. Lyons was asked at his deposition whether plaintiff ever
did anything throughout his assignment at JDC and replied, "Not
as far as I know." Plaintiff testified that, for his entire
tenure, he never did any work at the JDC.
In August 2011, Devanney retired. The Freeholders
appointed Alfred Faella, a friend of Mayor Bollwage, to the
position. Faella knew that Bollwage and DeFilippo did not like
each other. Prior to his appointment, he met with DeFilippo,
who advised him she had no objection to his appointment because
Devanney recommended him.
Plaintiff filed his complaint in this action in mid-
September 2011. On October 24, 2011, he was informed that,
effective November 1, he was being transferred to the Watchung
Stables Administrative Building, where he would be "responsible
for the supervision of maintenance and repair of the facilities
at the Watchung Stable, Trailside Nature & Science Center[,] and
the Deserted Village of Feltville." Plaintiff's requests to
meet with Faella were denied. On November 2, 2011, plaintiff
was told "the County Manager sees no reason to meet" with him.
8 A-2411-14T3 In the fall of 2013, the head of the Division of Facilities
Management resigned. Plaintiff contacted Faella on two
occasions to express his interest in the position he had
previously held, and, after the job vacancy was formally posted,
submitted an application for the position. Faella formed a
committee to interview candidates. He testified the committee
found two other candidates more impressive than plaintiff and
that he decided to appoint one of those candidates. Plaintiff
alleges the candidate selected was less qualified than he.
According to plaintiff, he saw County Freeholder Alexander
Mirabella at a social function in September 2014, and brought up
"the fact that he was not given his job [of Division Head]
back." He stated that Mirabella responded, "You have a lawsuit
against the County. Do you really think we're going to give you
your job back?"
Plaintiff maintained his Civil Service title throughout his
transfers and never suffered a reduction in pay, though he did
lose "portal to portal" use of a County vehicle upon his
transfer to Vo-Tech. At no point prior to the filing of the
complaint in this action did plaintiff ever complain to Devanney
or the Civil Service Commission about his position at Vo-Tech.
II.
The NJCRA provides, in pertinent part:
9 A-2411-14T3 Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c).]
A plaintiff who alleges retaliation for political
affiliation must show: (1) he was "employed at a public agency
in a position that does not require political affiliation"; (2)
he was "engaged in constitutionally protected conduct"; and (3)
the conduct was "a substantial or motivating factor in the
government's employment decision." Galli v. N.J. Meadowlands
Comm'n., 490 F.3d 265, 271 (3d Cir. 2007). The statute of
limitations for claims under the NJCRA is two years. See
N.J.S.A. 2A:14-2(a).
The trial judge reviewed plaintiff's proofs to determine
whether he presented a prima facie case of political affiliation
and discrimination. Considering the first of the three Galli
factors, she noted plaintiff was employed at a public agency in
a position that does not require political affiliation.
10 A-2411-14T3 Turning to the second Galli prong, the trial judge
described plaintiff's claim of constitutionally protected
political affiliation as "murky" and distinguishable from the
facts in Montone v. City of Jersey City, 709 F.3d 181 (3d Cir.
2013) and Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 663 (3d Cir.
2002), cases in which this prong was clearly satisfied. The
judge concluded plaintiff "was not engaged in constitutionally
protected conduct. He was just existing, he was just being."
Because this failure of proof required dismissal of the NJCRA
claim against the County, it was unnecessary for the judge to
consider the application of the statute of limitations to
plaintiff's claim. Nevertheless, she found the NJCRA claim
time-barred. The trial judge also concluded Devanney had
qualified immunity, requiring the dismissal of the NJCRA claim
against him. In addition to dismissing the intentional
infliction of emotional distress claim, the trial judge
dismissed the retaliation claim.
In his appeal, plaintiff argues the trial judge erred in
granting summary judgment because: the evidence presented a
material issue of fact (Point I); there was sufficient evidence
to satisfy the second element of a prima facie case for
political retaliation (Point II); Devanney is not entitled to
qualified immunity (Point III); the County is liable for
11 A-2411-14T3 political affiliation retaliation (Point IV); defendants failed
to offer facts to support their claim that plaintiff held a
position in which political affiliation is required (Point V);
the trial court failed to recognize that plaintiff presented
prima facie evidence of the third Galli element (Point VI);
plaintiff's NJCRA claim is not time-barred (Point VII); and
plaintiff has a cognizable claim of retaliation against the
County (Point VIII). Plaintiff also argues the trial court
erred in denying his motion to file a third amended complaint to
name Faella as a defendant in his retaliation claim.
In reviewing a summary judgment decision, we view the
evidence "in the light most favorable to the non-moving party,"
and determine whether a genuine issue exists as to any material
fact that precludes summary judgment. Rowe v. Mazel Thirty,
LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 529 (1995)). We review questions
of law de novo. Davis v. Devereux Found., 209 N.J. 269, 286
(2012).
Applying these principles, we conclude summary judgment was
properly granted because the trial judge correctly concluded
plaintiff lacked prima facie evidence of the second element of
his political affiliation discrimination claim. As a result, we
need not address the arguments raised in Points V, VI and VII.
12 A-2411-14T3 We also conclude Devanney is entitled to qualified immunity and
that the retaliation claim was properly dismissed. Plaintiff's
remaining arguments lack sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E).
III.
We first address plaintiff's NJCRA claim.
In Elrod v. Burns, 427 U.S. 347, 372-73, 96 S. Ct. 2673,
2689, 49 L. Ed. 2d 547, 565 (1976), the United States Supreme
Court held that termination of public employees' employment
because of their political affiliation violates the First
Amendment unless the position at issue involves policymaking.
See also Branti v. Finkel, 445 U.S. 507, 513-17, 100 S. Ct.
1287, 1292-95, 63 L. Ed. 2d 574, 580-83 (1980). The Elrod-
Branti doctrine was later expanded to hold "the First Amendment
[also] protects public employees . . . from promotion, transfer,
recalls, and other hiring decisions conditioned on political
affiliation, unless the government can demonstrate that party
affiliation is a proper requirement for the position." Galli,
supra, 490 F.3d at 270-71 (citing Rutan v. Republican Party of
Ill., 497 U.S. 62, 75, 110 S. Ct. 2729, 2737, 111 L. Ed. 2d 52,
67 (1990)).
As the trial judge observed, the pivotal question is
whether plaintiff was engaged in constitutionally protected
13 A-2411-14T3 conduct. See Galli, supra, 490 F.3d at 271. Typically, this
factor contemplates situations where the plaintiff is required
to join or support the political party in power or suffers
retaliation for supporting a losing candidate or for failing to
engage in the political process whatsoever. See Galli, supra,
490 F.3d at 272-73 (collecting cases). In addition, "adverse
employment actions taken against public employees merely 'to
make positions available for political supporters' could amount
to political discrimination." Id. at 273 (quoting Bennis v.
Gable, 823 F.2d 723, 731 (3d Cir. 1987)). The second prong may
also be satisfied when the public agency takes an adverse
employment action against an employee based upon a mistaken
belief he is engaging in protected political activity.
Heffernan v. City of Paterson, 578 U.S. ___, ____, 136 S. Ct.
1412, 1418, 194 L. Ed. 2d 508, 514 (2016) (holding police
officer demoted for picking up campaign sign as favor to
bedridden parent was entitled to seek relief based on the city's
mistaken belief the officer was engaging in political speech).
"This does not mean that every public act inspired by
political partisanship is subject to challenge because it has a
harmful consequence upon an individual." Commc'ns Workers of
Am. v Whitman, 335 N.J. Super. 283, 289-90 (App. Div. 2000)
(finding no NJCRA violation where public employment positions
14 A-2411-14T3 were abolished as a result of a change in public policy that
privatized motor vehicle agencies). The constitutionally
protected interests "emanate from every person's right to be
insulated from governmental retaliation for expressive exercises
or beliefs protected by the First Amendment." Id. at 289
(emphasis added). Therefore, the interest of a plaintiff who
asserts a claim of political affiliation discrimination "must be
sufficiently similar to those of the plaintiffs in the seminal
cases," i.e., Elrod, supra, 427 U.S. 347, 96 S. Ct. 2673, 49 L.
Ed. 2d 547; Branti, supra, 445 U.S. 507, 100 S. Ct. 1287, 63 L.
Ed. 2d 574; Rutan, supra, 497 U.S. 62, 110 S. Ct. 2729, 111 L.
Ed. 2d 52; Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 116 S.
Ct. 2342, 135 L. Ed. 2d 843 (1996); and O'Hare Truck Serv., Inc.
v. City of Northlake, 518 U.S. 712, 116 S. Ct. 2353, 135 L. Ed.
2d 874 (1996). Commc'ns Workers, supra, 335 N.J. Super. at 290.
In Elrod, the Court decided a newly elected Democratic
sheriff could not constitutionally engage in the patronage
practice of replacing certain office staff with members of his
own party "when the existing employees lack or fail to obtain
requisite support from, or fail to affiliate with, that party."
427 U.S. at 351, 373, 375, 96 S. Ct. at 2679, 2689, 2690, 49 L.
Ed. 2d at 552, 565, 566 (plurality opinion; Stewart, J., joined
by Blackmun, J., concurring in judgment). In a similar case of
15 A-2411-14T3 patronage, assistant public defenders alleged their employment
was terminated because they were members of the Republican
party; the Court upheld an injunction against their termination.
Branti, supra, 445 U.S. at 508, 520, 100 S. Ct. at 1289, 1296,
63 L. Ed. 2d at 578, 585. In Rutan, supra, 497 U.S. at 66, 110
S. Ct. at 2732, 111 L. Ed. 2d at 61, the Governor's Office
imposed a hiring freeze that required agencies to obtain the
"express permission" of the Governor's office for employment
decisions such as "new hires, promotions, transfers, and recalls
after layoffs." The criteria reviewed to determine whether
approval was given included
whether the applicant voted in Republican primaries in past election years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels.
[Ibid.]
The Court extended this protection to independent contractors in
Umbehr, supra, 518 U.S. at 684-85, 116 S. Ct. at 2352, 135 L.
Ed. 2d at 857 (termination of independent contractor's contract
in retaliation for public criticism of the county and the board
was violation of First Amendment) and O'Hare, supra, 518 U.S. at
726, 116 S. Ct. at 2361, 135 L. Ed. 2d at 886 (towing company
16 A-2411-14T3 dropped from list of approved companies used by city after owner
declined to contribute to city administration's re-election and
supported opposition).
Although plaintiff identifies a number of employment
actions he claims infringed upon his First Amendment rights, he
has not identified any "expressive exercises or beliefs" of his
that were "sufficiently similar to those of the plaintiffs in
the seminal cases" to be protected by the First Amendment. See
Commc'ns Workers, supra, 335 N.J. Super. at 289-90. He did not
support a losing candidate, fail to yield to pressure to support
any particular candidate or exercise his right to refrain from
any political activity.
Plaintiff described his political participation as minimal,
all in support of the UCDC, and not any particular faction. His
contention is that he was discriminated against because his
brother was a member of a faction of the Democratic Party that
clashed with the other faction led by DeFilippo. But, in his
deposition testimony, he maintained he was not a member of the
disfavored faction. Thus, he has not presented a case in which
his "political affiliation" was separate from the interest
identified with DeFilippo based on a divergence from
"commonality of political purpose, partisan activity and
political support." See Erb v. Borough of Catawassa, 749 F.
17 A-2411-14T3 Supp. 2d 244, 254 (M.D. Pa. 2010) (citing Curinga v. City of
Clairton, 357 F.3d 305, 311 (3d Cir. 2004)). And, the act of
retaliation he cites -- the decision not to assign him to his
former position as the head of the Division of Facilities
Management in 2013 -- was made by Faella, whom he described as
closely aligned with the faction at odds with DeFilippo.
As we discern no evidence of constitutionally protected
conduct by plaintiff that could support a prima facie case of
the second Galli element, plaintiff's NJCRA claim was properly
dismissed.
IV.
Plaintiff's failure to show he engaged in constitutionally
protected conduct substantially erodes his claim that Devanney
was not shielded from liability by qualified immunity.
The qualified immunity doctrine is an affirmative defense
that "shields government officials from a suit for civil damages
when 'their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.'" Gormley v. Wood-El, 218 N.J. 72, 113 (2014)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.
2727, 2738, 73 L. Ed. 2d 396, 410 (1982)). This defense is
available when a plaintiff asserts a claim for money damages
under the NJCRA. Ramos v. Flowers, 429 N.J. Super. 13, 24 (App.
18 A-2411-14T3 Div. 2012).
In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,
2156, 150 L. Ed. 2d 272, 281 (2001), the Supreme Court
identified a two-pronged analysis to be employed in determining
whether qualified immunity applies:
One prong asks whether "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right[.]" The other prong asks "whether the right was 'clearly established' at the time of defendant's alleged misconduct." In other words, "[q]ualified immunity is applicable unless the official's conduct violated a clearly established constitutional right."
[Ramos, supra, 429 N.J. Super. at 27-28 (alteration in original) (citations omitted).]
Using the flexible approach later endorsed by the Supreme
Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808,
818, 172 L. Ed. 2d 565, 576 (2009), we apply "either or both of
the two prongs" of this analysis. Ramos, supra, 429 N.J. Super.
at 27. And, as we observed, "[q]ualified immunity is applicable
unless the official's conduct violated a clearly established
constitutional right." Id. at 28 (alteration in original).
"For a right to be clearly established, '[t]he contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.'"
19 A-2411-14T3 Gormley, supra, 218 N.J. at 113 (alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.
3034, 3039, 97 L. Ed. 2d 523, 531 (1987)). It is imperative
that this inquiry "be undertaken in light of the specific
context of the case, not as a broad general proposition."
Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 598, 160
L. Ed. 2d 583, 589 (2004) (quoting Saucier, supra, 533 U.S. at
201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281). Thus, courts
are required to review the "case law existing at the time of the
defendant's alleged improper conduct" and determine whether
there was "sufficient precedent at the time of action, factually
similar to the plaintiff's allegations, to put defendant on
notice that his or her conduct is constitutionally prohibited."
McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001), cert.
denied, 535 U.S. 989, 122 S. Ct. 1543, 152 L. Ed. 2d 469 (2002).
In describing the clearly established right he asserts,
plaintiff states,
[T]he key issue is not simply whether political affiliation with [his brother] is protected conduct, but whether a County employee is protected from adverse actions orchestrated by a purely political person (DeFilippo) for political reasons – to solidify her power by sending the chilling message to County employees to walk "in lockstep" with her or risk their jobs, which action was effectuated by Defendant Devanney.
20 A-2411-14T3 Even if we accept plaintiff's view that there was a
political motive for the employment actions he complains of, the
dispositive issue is whether any of those actions infringed upon
plaintiff's exercise of a right protected by the First
Amendment. As we have noted, the political activity and
association he has described does not fit within the traditional
political affiliation categories that are "clearly established"
as constitutionally protected. In the absence of any precedent
that established plaintiff's association and activities as
constitutionally protected, it follows that Devanney could not
be on notice that the actions he took regarding plaintiff's
employment were constitutionally prohibited. Therefore,
Devanney was correctly afforded qualified immunity, and
plaintiff's NJCRA claim against him was properly dismissed.4
V.
Finally, we turn to the dismissal of plaintiff's
retaliation claim. We agree that this claim was properly
dismissed, albeit for reasons different from those given by the
trial judge.
Plaintiff's complaint alleges that, after the lawsuit was
4 Although plaintiff's complaint requested equitable relief, he does not argue that this demand precludes the availability of the qualified immunity defense. Because plaintiff's NJCRA claim is fatally deficient, this issue merits no further discussion. R. 2:11-3(e)(1)(E).
21 A-2411-14T3 filed, he was transferred to another "non-job" assignment and
was not appointed to the position of County Division Head,
Division of Facilities Management when that position became
vacant. The complaint cites only one authority as legal support
for his claim, that the actions were taken to retaliate for his
filing a lawsuit asserting his rights under the NJCRA.
Like 42 U.S.C.A. § 1983, on which it was modeled, the NJCRA
provides a means of vindicating substantive rights guaranteed by
federal law and New Jersey's Constitution and laws and is not a
source of rights itself. Gormley, supra, 218 N.J. at 97-98.
Unlike the Law Against Discrimination, N.J.S.A. 10:5-1 to -49,
and the Conscientious Employee Protection Act (CEPA), N.J.S.A.
34:19-1 to -8, the NJCRA does not explicitly authorize an action
for retaliation based upon the filing of a lawsuit. See
N.J.S.A. 10:5-12(d); N.J.S.A. 34:19-3.
The NJCRA authorizes a private right of action in the
following provision:
Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of
22 A-2411-14T3 law, may bring a civil action for damages and for injunctive or other appropriate relief.
[N.J.S.A. 10:6-2(c) (emphasis added).]
Two types of private claims are recognized under this
statute: (1) a claim when one is "deprived of a right," and (2)
a claim when one's rights have been "interfered with by threats,
intimidation, coercion or force." Felicioni v. Admin. Office of
Courts, 404 N.J. Super. 382, 400 (App. Div. 2008), certif.
denied, 203 N.J. 440 (2010); see also Ramos, supra, 429 N.J.
Super. at 21.
Plaintiff contends he was subjected to retaliation for
engaging in activity protected under the First Amendment and
Article 1, Sections 6 and 18 of the New Jersey Constitution. He
argues the correct analysis of his retaliation claim is a
tripartite test enunciated in Baldassare v. New Jersey, 250 F.3d
188 (3d Cir. 2001), as follows:
First, plaintiff must establish the activity in question was protected. For this purpose, the speech must involve a matter of public concern. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. . . . [P]laintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Lastly, the public employer can rebut the claim by demonstrating it would
23 A-2411-14T3 have reached the same decision . . . even in the absence of the protected conduct.
[Id. at 194-95 (emphasis added) (citations and quotations omitted).]
Plaintiff contends the filing of his lawsuit satisfies the
requirement that he engaged in protected conduct because it
"pertained to a matter of public concern, to wit, political
retaliation being carried out by, inter alia, Defendant
Devanney." We reject this argument.
Returning to the claims available to plaintiff under the
NJCRA, it is evident plaintiff was not "deprived" of the right
to file this lawsuit. Therefore, to sustain this action he must
show interference with that right by threats, intimidation,
coercion or force. See Tumpson v. Farina, 218 N.J. 450, 473
(2014). Although it is questionable that the employment actions
complained of constitute "threats, intimidation, coercion or
force," within the meaning of the NJCRA, plaintiff's retaliation
claim ultimately fails because his lawsuit seeking redress for
adverse employment actions personal to him does not merit
protection under the First Amendment.
In Borough of Duryea v. Guarnieri, 564 U.S. 379, 386, 131
S. Ct. 2488, 2493, 180 L. Ed. 2d 408, 420 (2011) the Supreme
Court held that when a public employee sues a government
employer under either the First Amendment's Speech Clause or
24 A-2411-14T3 Petition Clause, the employee must show he spoke as a citizen on
a matter of public concern. "[W]hether an employee's petition
relates to a matter of public concern will depend on 'the
content, form, and context of [the petition], as revealed by the
whole record.'" Id. at 398, 131 S. Ct. at 2501, 180 L. Ed. 2d
at 428 (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.
Ct. 1684, 1690, 75 L. Ed. 2d 708, 720 (1983)).
The Court cautioned that the right of a public employee
under the Petition Clause is "not a right to transform everyday
employment disputes into matters for constitutional litigation
in the federal courts." Id. at 399, 131 S. Ct. at 2501, 180 L.
Ed. 2d at 428. Thus, a lawsuit that seeks to advance interests
personal to the plaintiff will not satisfy the public concern
requirement. See ibid., 131 S. Ct. at 2501, 180 L. Ed. 2d at
428. ("A petition that 'involves nothing more than a complaint
about a change in the employee's own duties' does not relate to
a matter of public concern . . . ." (citation omitted)); United
States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 466, 115 S.
Ct. 1003, 1013 130 L. Ed. 2d 964, 979 (1995) (observing
"employee comment on matters related to personal status in the
workplace" does not fall within category of protected speech).
Cf. Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 445
(2004) (To satisfy CEPA's requirement under N.J.S.A. 34:19-
25 A-2411-14T3 3(c)(3) that employer activity is incompatible with a clear
mandate of public policy, "the complained of activity must have
public ramifications, and . . . the dispute between employer and
employee must be more than a private disagreement."); see also
Turner v. Associated Humane Soc'ys., Inc., 396 N.J. Super. 582,
593-94 (App. Div. 2007); Cosgrove v. Cranford Bd. of Educ., 356
N.J. Super. 518, 525-26 (App. Div. 2003) (holding an employee
who claims employer retaliatory action for complaining about the
unfair allocation of overtime does not have a claim under
N.J.S.A. 34:19-3(c)(3) because such a complaint deals with the
employee's personal harm, not harm to the public).
Although plaintiff attempts to cast his complaint as
raising issues of public concern, his allegations regard the
conditions of his employment and the remedies sought are limited
to relief designed to rectify employment actions he contends
were adverse to him. Because his lawsuit essentially concerns
an employment dispute rather than a matter of public concern,
plaintiff cannot satisfy the first prong of the tripartite test
applicable to his retaliation claim, see Baldassare, supra, 250
F.3d at 194-95, and therefore fails to support a claim under the
NJCRA. His retaliation claim was properly dismissed.
Affirmed.
26 A-2411-14T3