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RUIZ v. MORRIS COUNTY SHERIFF'S DEPARTMENT

November 1, 2005.

HENRY RUIZ, Plaintiff,
v.
MORRIS COUNTY SHERIFF'S DEPARTMENT, FRANK CORRENTE, EDWARD ROCHFORD, RALPH McGRANE, and JONH DOES 1 through 10 Defendants.



The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge

OPINION

This action was commenced by Plaintiff, a Morris County Sheriff's Department ("MCSD") Correctional Officer, based on alleged violations of 42 U.S.C. § 1983 (for violations of the First Amendment Rights to Free Speech, Political Belief, Assembly and Association; and Fourteenth Amendment Rights to Equal Protection, and Procedural/Substantive Due Process), Titles VII and XI of the Civil Rights Act, The New Jersey Constitution, the Conscientious Employee Protection Act, N.J.S.A. 34:19-1, et seq., ("CEPA"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., ("NJLAD"), the Public Employers Relations Act, N.J.S.A. 34:13A-1, and State common law tort claims for civil conspiracy and intentional infliction of emotional distress caused by his employer and several senior officers. Defendant Frank Corrente ("Corrente") now moves to dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Defendants MCSD and Sheriff Edward Rochford ("Rochford") have joined in Corrente's motion. For the reasons set forth below Defendants' motion is granted in part, and denied in part.

  FACTS AS ALLEGED IN THE COMPLAINT

  Plaintiff is an employee of the Morris County Sheriff's Department, Bureau of Corrections, and has been employed as a corrections officer since 1988. (Compl. at 2.) On or about 1994, Plaintiff was elected delegate of the PBA Union at his workplace, and in 2000, he was elected president of the union. (Compl. at 8.) Plaintiff alleges that his numerous union related activities often put him at odds with the administration of his employer MCSD, namely Defendants McGrane (the Warden of the Jail), Corrente (a supervisory officer in Plaintiff's chain of command), and Rochford. (Compl. at 8)

  Plaintiff claims that during the course of his service as an elected union official, he advocated numerous contentious issues on behalf of the union including: opposition to the Sheriff's attempts to privatize the Jail, opposition to the administration's attempts to transfer the transportation of inmates from Corrections to Sheriffs Officers, representation of individual officers as to on-the-job grievances, challenging the Warden's Standard Operating Procedure, publicly opposing the jail staffing plan at Freeholder meetings, bypassing the chain of command to raise complaints with the Sheriff, Enlisting State PBA Assistance, publicly opposing efforts by defendants to remove protective vests from approved and compensated clothing worn by corrections officers, assisting the local PBA in filing an unfair labor practices complaint against the MCSD, communicating with County Freeholders about Union problems at the Jail, and refusing to lie for the administration in its defense of discrimination cases brought by minority officers. (Compl. at 8-10)

  Plaintiff alleges he was subjected to numerous acts of retaliation and intimidation for advocating those issues on behalf of the union. In particular, Plaintiff alleges he was forced to suffer: removal from the prestigious Sheriff's Emergency Response Team ("SERT"), verbal berating and criticism both in public and private by Defendants McGrane and Corrente, removal from the Sheriff's Labor Assistance Program ("SLAP") which was a preferential working position, removal from steady day shifts, denied time off to go to State PBA offices for union related work, warnings about his union activity, suspension for posting memos about the protective vest issue, assignment to "relief officer" posts (the least desirable in the jail), being passed over for promotion to Corporal and Sergeant, a widely publicized internal affairs investigation, denial of suspension of punishment while pending appeal, and denial of preferential work details for which he had seniority. (Compl. at 12-13).

  On April 6, 2005, Plaintiff filed a complaint with this Court. Corrente, MCSD, and Rochford now move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

  DISCUSSION

  A. Standard for Dismissal — 12(b)(6)

  Corrente argues that Plaintiff's complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) Failure to State a Claim Upon Which Relief May be Granted.

  Rule 12(b)(6) states in part:
Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted . . .
  Pursuant to Rule 12(b)(6), a complaint shall be dismissed for failure to state a claim upon which relief can be granted only if a court finds "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46 (1957); Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980); Craftmatic Sec. Litig. v. Kraftsow, 890 F.2d 628, 634 (3d Cir. 1989). Allegations contained in the complaint will be accepted as true, Cruz v. Beto, 405 U.S. 319, 322 (1972), and the plaintiff shall be "given the benefit of every favorable inference that can be drawn from those allegations." Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). The court is limited to facts contained and alleged in the complaint and may not consider facts raised for the first time by parties in legal briefs. Hauptmann v. Wilentz, 570 F. Supp. 351, 364 (D.N.J. 1983), aff'd without opinion, 770 F.2d 1070 (3d Cir. 1985). The Court will accept the alleged facts as true and view them in the light most favorable to the non-moving party. Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000). The question the court must answer is not whether Plaintiff will prevail, but rather whether there are any circumstances that would entitle him to relief. Hishon v. Spalding, 467 U.S. 69, 73 (1984).

  In the present case, Corrente has cited numerous reasons for dismissal of each count contained in Plaintiff's complaint.

  B. Title VII

  Corrente contends that Plaintiff cannot maintain a Title VII claim because he failed to file a complaint with the Equal Employment Opportunity Commission ("EEOC") and receive a "right to sue" letter within 180 days from the date of the alleged violation pursuant to 42 U.S.C.A. § 2000 et al. Additionally, Corrente notes that Plaintiff is bringing claims as a union member, not as a member of a protected class under title VII, Title XI, or 42 U.S.C. § 1983 as alleged.

  In his opposition brief, Plaintiff states that he does not allege any violation of his rights under Title VII based upon race, creed or national origin. Plaintiff states that "to the extent that Defendant's motion deals with an allegation that Plaintiff alleges violation of his rights under Title VII based upon race, creed, or national origin, the Defendants are incorrect."

  Accordingly, based upon Plaintiff's concession to the motion on this claim, all claims for relief under Title VII will be dismissed.

  C. First Amendment

  Defendants argue that Plaintiff's Count I claim of violation of the First Amendment rights to free speech and association does not allege any conduct by defendants that even if true would constitute such a violation. Defendants cite the limitations on the right to freedom of speech by public employees as reason to the dismiss that claim, and the failure of Plaintiff to file his freedom of association claim with the National Labor Relations Board as reasons to dismiss that claim.

  "A public employee has a constitutional right to speak on matters of public concern without fear of retaliation." Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001). "While the government's role as employer . . . gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large, this hand cannot act with impunity." Id. Therefore, "public employers cannot silence their employees simply because they disapprove of the content of such speech." Id. Courts employ a three step analysis when balancing the First Amendment rights of public employees against competing interests of their employers: (1) plaintiff must establish that the activity in question was protected (if it is purely personal in nature then it is not, if it is a matter of public concern then it is); (2), if the speech in question is protected, plaintiff must demonstrate that 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; and (3) ...


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