The opinion of the court was delivered by: Martini, U.S.D.J.
This matter comes before the Court on Defendants Morris County, Morris County Sheriff's Office, Sheriff Edward V. Rochford and Chief Ralph McGrane's ("Defendants") motion for partial summary judgment. There was no oral argument. Fed. R. Civ. P. 78. For the following reasons, Defendants' motion is granted in part and denied in part.
Plaintiff Ronald Flammer ("Flammer") is a corrections officer for the Morris County Sheriff's Office (the "MCSO"). (Compl. ¶¶ 3, 18; Pl.'s Statement of Undisputed Material Facts at ¶ 1-2 [hereinafter Pl.'s SMF]; Deft.'s Statement of Undisputed Material Facts at ¶ 1-2 [hereinafter Deft.'s SMF]). He is also the president of PBA Local 298 ("PBA"). (Pl.'s SMF at 3; Deft.'s SMF at 3). The PBA is the collective bargaining unit within the MCSO. (Pl.'s SMF at 3; Deft.'s SMF at 3).
Flammer alleges that, beginning in 2004, he complained about abuses of sick time and misuse of county funds by defendants Ralph McGrane ("McGrane") and Frank Corrente ("Corrente"). (Compl. ¶ 20-21). McGrane and Corrente are Flammer's supervisors. (See id. ¶¶ 7-10). Flammer alleges that McGrane and Corrente authorized staff to receive sick time pay at levels reaching $100,000, while county policy and the Morris County collective budgeting agreement provided only for maximum payments of $15,000. (See id. ¶ 21).
Flammer claims that he voiced these complaints, specifically, to Edward V. Rochford ("Rochford"), McGrane and Corrente. (See id. ¶ 23, 28, 38). He alleges that, in response, McGrane and Corrente subjected him to harassment and retaliation. (See id. ¶¶ 15-17, 23-30, 32-46). For instance, he was allegedly admonished for engaging in PBA activities (see id. ¶¶ 22-24), denied compensation for serving as a police academy instructor (see id. ¶¶ 25), admonished for taking sick time even though he had sick time remaining (see id. ¶ 26), denied overtime (see id. ¶ 35), and had his PBA office taken away (id. ¶ 38). This retaliation supposedly reached a fever pitch when Flammer, himself, became the target of a fitness for duty examination for alleged psychological problems. (See id. ¶ 36). As a result of this examination, Defendants allegedly placed Flammer on sick leave, which Flammer claims was akin to a suspension. (See id. ¶ 34). In addition, Flammer alleges that Defendants hired a private investigator to follow him off-duty after he filed a notice of tort claim setting forth his intention to sue Morris County for various violations of federal and state rights. (Id. 37).
After allegedly enduring months of retaliation, Flammer filed suit against the Defendants on October 19, 2005. Defendants now move for partial summary judgment to dismiss Counts I, II, III, and V of Flammer's complaint.*fn1 Count I alleges that Defendants violated Flammer's rights to freedom of speech and association as guaranteed by the First Amendment and are thus liable to Flammer under 42 U.S.C. § 1983. Count II alleges that Defendants violated the Equal Protection Clause, Substantive Due Process Clause, and Procedural Due Process Clause of the Fourteenth Amendment and are therefore liable under § 1983. Count III alleges that Defendants violated Flammer's rights to freedom of speech, assembly, and association, as guaranteed by Article I, paragraphs 6, 18, and 19 of the New Jersey Constitution. Finally, Count V alleges that defendants intentionally violated Flammer's statutory rights as guaranteed by N.J.A.C. Title 4A, N.J.S.A. Title 11A, and the Public Employers Relations Act, N.J.S.A. 34:13A-1, et seq.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56. Rule 56(e) requires that when a motion for summary judgment is made, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See id.; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Only disputes over facts that might affect the outcome of the lawsuit under governing law will preclude the entry of summary judgment. See Anderson, 477 U.S. at 247-48. If the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II. Counts I and III - First Amendment Retaliation
Defendants claim that Counts I and III should be dismissed because Flammer's speech is not protected under the First Amendment.*fn2 For a government employee's speech to be protected under the First Amendment, it must involve a matter of public concern. Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001) (citing Connick v. Myers, 461 U.S. 138, 147 (1983)). "'A public employee's speech involves a matter of public concern if it can 'be fairly considered as relating to any matter of political, social or other concern to the community.'" Green, 105 F.3d at 885-86 (quoting Connick, 461 U.S. at 147-48). To determine whether speech involves a matter of public concern "we focus on the content, form, and context of the activity in question." Baldassare, 250 F.3d at 195 (citing Connick, 461 U.S. at 147-48; Watters, 55 F.3d at 892). "The content of the speech may involve a matter of public concern if it attempts 'to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.'" Id. (quoting Holder, 987 F.2d at 195).
Flammer's alleged speech clearly involved a matter of public concern. The main thrust of his speech involved the alleged misuse of public funds by defendants Rochford, McGrane and Corrente and his efforts, through using his position in the PBA, to advance his and his co-workers' interests. Such speech clearly touches upon matters of public concern. See Feldman v. Phila. Hous. Auth., 43 F.3d 823, 839 (3d Cir. 1995) (citing Swineford, 15 F.3d at 1274) (""Disclosing corruption, fraud and illegality in a government agency is a matter of significant public concern."); Crane v. Yurick, 287 F. Supp. 2d 553, 560 (D.N.J. 2003) (noting that union-related speech "implicates one of the most recognized First Amendment protections").
The Defendants argue that Flammer's speech did not involve a matter of public concern because it only concerned departmental policies and the internal workings of the MCSO. This is incorrect. In determining whether speech involves a public matter, "our inquiry focuses on the nature of the information, not its audience." Baldassare, 250 F.3d at 198 (emphasis added); see also Swineford v. Snyder County, 15 F.3d 1258, 1271 (3d Cir. 1994) (citing Zamboni v. Stamler, 847 F.2d 73, 77 (3d Cir.); Muti v. Schmidt, 118 Fed. Appx. 646, 648 (3d Cir. 2004); ...