The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge
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
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
In the present case, Corrente has cited numerous reasons for
dismissal of each count contained in Plaintiff's complaint.
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
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) ...