The opinion of the court was delivered by: Honorable Joseph E. Irenas
This employment retaliation suit arises out of the events that transpired over the course of New Jersey State Trooper John Oliva's employment with the New Jersey State Police. According to Oliva's estate, the Plaintiff in this case, Oliva was continually harassed by other members of the State Police on account of Oliva's "whistle-blowing" about alleged racial profiling in conducting traffic stops. This harassment, Plaintiff alleges, was so severe that it caused Oliva to take his own life.
The 16-count Second Amended Complaint asserts federal and state law claims for damages and injunctive relief*fn1 against the State of New Jersey*fn2 and 21 individual defendants.*fn3 All Defendants presently move for summary judgment on all remaining claims.*fn4
Immediately following graduation from the State Police Academy in November, 1998, Oliva was assigned to Troop A, Bellmawr Station as a "new recruit."*fn5 (Attwood Cert. Ex. B-D; Buckman Cert. Ex. 6, 18) There he was paired with Trooper Patrick Gallagher,*fn6 who was assigned to be his Trooper Coach*fn7 (Attwood Cert. Ex. D; Buckman Cert. Ex. 9, 18), and direct supervisor. (Buckman Cert. Ex. 41, NJSP532*fn8
As part of his training, Oliva accompanied Trooper Gallagher on traffic patrol, where Trooper Gallagher was to instruct Oliva on the proper procedures for making traffic stops. (Attwood Cert. Ex. E) However, according to Oliva, Trooper Gallagher taught him to "profile" (i.e., make traffic stops without probable cause).*fn9
Specifically, Oliva claimed that Trooper Gallagher identified cars that he believed looked like "a good car stop" based on the race of the occupants, the type of car, or whether the car had out-of-state plates.*fn10 (Attwood Cert. Ex. E; Buckman Cert. Ex. 41, NJSP559*fn11
Additionally, Oliva claimed that Trooper Gallagher instructed him to make false statements in police reports so as to cover-up the illegal stops and attendant searches. (Attwood Cert. Ex. E) Oliva explained,
[Trooper Gallagher] would tell me, you know pretty much verbatim what to say in the [police] reports.... The only thing that changes in these reports are people and the mileposts. You know, that's the only thing that changes.... it's cars are traveling, failure to maintain lanes, it was the statute to get us to stop these cars, and then... he would tell me to write that the [driver] said that he just went to Camden [New Jersey] to buy drugs, something that that [sic] outrageous. I mean nobody... nobody says that. This is the kind of stuff he was telling me to write and I was writing it, you know, the [driver] said this, people said that.... this happened a lot and low and behold he'd find an empty baggy or whatever the case was, and then we'd lock these people up,*fn12 bring them back to the station and then he'd tell me what to write....
[T]hat's how we basically MO'd. (Id.)
Oliva was immediately disturbed by Trooper Gallagher's actions. He was concerned about his own liability for violating citizen's civil rights,*fn13 even though he was acting under his supervisor's orders. (Buckman Cert. Ex. 41, NJSP567-569) After his first night on patrol with Trooper Gallagher, Oliva spoke to several peers--local police officers and fellow state troopers--to voice his concerns.*fn14 (Id., NJSP569, NJSP573-576)
Then, approximately two weeks later, still troubled by Trooper Gallagher's practices, Oliva reported his concerns to Sergeant Manny Gordillo.*fn15 (Id., NJSP564, OL02700) Oliva stated,
[I]t got to the point that it got that bad for me that my conscious [sic] took over despite... everything that could happen if I went and complained about my coach. It came a time where my conscious [sic] took over between right and wrong despite the fact that I knew it could be... my career could be ruined if I complained [about] my coach.... So, what I was dealing with internally throughout the time, my first two weeks... I went to my Sergeant and complained.... I complained to him that I was uncomfortable with the practices that were going on*fn16.... I went and complained about my coach.... the primary concern was these illegal things we were doing on the road.... So when I went to my Sergeant that was why I went to him, to complain about--that I can't do this anymore. (Id., NJSP548, NJSP565-NJSP567) According to Oliva, Sergeant Gordillo responded by telling Trooper Gallagher to "cut this crap off that day" and "suspending" him from the location in Camden where he was making all of the traffic stops. (Id., NJSP572, OL02709, OL02728) Sergeant Gordillo, however, denies that Oliva complained to him about profiling activities. (Attwood Cert. Ex. F)
Oliva believed that the other troopers knew that he had complained about his Trooper Coach. Specifically, Oliva stated that his complaint had become "the talk of the station... because in the history of the State Police... nobody's ever complained about their coach before." (Buckman Ex. 41, OL02709) He also reported that salt was placed in his work mailbox shortly after he made his complaint.*fn17 (Buckman Ex. 41, OL02729, OL02731)
After completing the two-month Trooper Coach training, Oliva remained at Belmawr Station for approximately four months. (Buckman Ex. 47, OL00924; Buckman Ex. 41, OL02695) Nothing in the record indicates that any other incidents occurred during that time.
However, according to Oliva, news of his complaint had spread to Woodbine Station, where he was transferred in May, 1999. He explained, "it was the whole stigma that I had gotten labeled from the beginning because [I complained about Trooper Gallagher.]... I was someone who was not gonna go along with the program." (Buckman Ex. 41, OL2731, OL02736)
Within Oliva's first few months at Woodbine Station, his immediate supervisor, Defendant Edward Sokorai, issued allegedly unwarranted negative performance evaluations of Oliva. (Buckman Cert. Ex. 47, OL00925-26; Buckman Cert. Ex. 41, OL02736) On August 22, 1999, Oliva received a Performance Notice for "failing to continually take proper traffic enforcement action... after repeatedly being advised to desist from this course of action by his supervisor."*fn18 (Attwood Cert. Ex. G)
Oliva received another negative Performance Notice on November 27, 1999, which stated that "Oliva failed to make corrections to [an] accident report prior to departing the station after being advised to do so." (Id.) According to Oliva, both Performance Notices were unwarranted and, although he did not formally contest the notices through the established grievance procedure, he did raise the issue with Assistant Station Commander, Defendant Sergeant Gary Austin. (Buckman Cert. Ex. 47, OL00926-28)
Then in mid-November, 1999, Defendant Sergeant Bruce Meyers approached Oliva at the beginning of Oliva's shift. (Buckman Cert. Ex. 47, OL00928-29) According to Oliva, Defendant Meyers summoned him into an office, shut the door, and presented Oliva with an anonymous note. (Id.) Defendant Meyers, however, denies giving the note to Oliva. (Attwood Cert. Ex. I) The note reads in its entirety,
HEY OLIVA, EVERYONE AROUND HERE IS GETTING TIRED OF YOUR SHIT. WHETHER YOU LIKE IT OR NOT, YOU'RE STILL A RECRUIT. IF YOU DON'T LIKE IT YOU CAN GO BACK TO YOUR OLD DEPARTMENT WHERE YOU CAME FROM. YOU BETTER START DOING WHAT YOU'RE TOLD TO DO. WE'RE ALL WATCHING YOU OLIVA. (Attwood Cert. Ex. H)(caps in original).
A few months later, in February, 2000, Oliva was transferred to the Buena Vista Station, where his situation allegedly worsened. Oliva alleges that his supervisor, Defendant Waldron, engaged in profiling and expected Oliva to model his practices. Oliva explained, [Defendant Waldron] would drive... to the Budget Lodge Motel and profile cars, stop somebody... lock somebody up for narcotics.... He brings me to the Budget Lodge and he is telling me that this is where all the scumbags... come out of this motel and they're all drug dealers, and you know, you look for cars with out of state tags... he's going on and on... and I'm listening to the radio and it's going in one ear and out the other because if he thinks I'm going to do this for him, he's out of his mind....
He goes out, he gets on the street, within 45 minutes he's got someone under arrest... he wants you to lock people up and I'm not gonna go pull you over because you look in my eyes like some scumbag. There's no probable cause for the stop because you're white and you're driving a car that looks like a shit bag or you're black driving a car with out of state tags.... [H]e took me out there to the Budget Lodge and try [sic] to tell, to get me on line with this. (Buckman Ex. 41, OL02740, OL02743)
According to Oliva, in late April, 2000, when Defendant Waldron verbally advised him that he was not "locking up enough people," Oliva objected, stating that he was "not going to go sit in the Budget Lodge parking lot and profile." (Buckman Cert. Ex. 41, OL02746) Allegedly, Defendant Waldron raised his voice and stated that as long as the police report stated a violation, "it's okay to profile." (Id., OL02746)
Defendant Waldron's version of the conversation is significantly different. He testified,
I remember having that discussion with [Oliva] about the difference between racial profiling and [criminal] profiling at the time. And the feeling I got from that conversation with him... was that he... didn't want to work and he was beginning to take things that... were current hot issues, which was racial profiling say at the time, and... manipulating them into a way that, well, because I believe that this is what this is, I'm not going to do it. Meaning I don't want to arrest anybody because I'm lazy... and because of that, I am going to say... I think that every arrest might lead to me being civilly sued by somebody and, therefore, I am not going to do my job.... [Oliva] objected to arresting people, not to targeting people without probable cause and it was explained to him in no uncertain terms what was legal and what was not legal regarding car stops. (Attwood Cert. Ex. K)
A week later, Oliva received a routine performance evaluation from Defendant Waldron. (Buckman Cert. Ex. 41, OL02749) Oliva perceived the evaluation as unjustifiably negative and immediately wrote Sergeant Callen a letter summarizing his version of the above conversation, and requesting to speak with Callen about the evaluation. Oliva wrote, "I believe that my evaluation was based not upon four months of hard work, but rather a conversation between me and Tpr. I. Waldron that took place one week prior to the deadline of said evaluation." (Attwood Cert. Ex. L) The letter states that "documentation" is enclosed which substantiates Oliva's contention that he has performed "in an exemplary fashion" (Id.), however, those documents are not included in the record before the Court.*fn19
According to Oliva, after Sergeant Callen read the letter, he called Oliva at home (Oliva was off-duty at the time) to discuss the issue. Oliva stated that he told Sergeant Callen that he believed the negative evaluation was just one instance of harassment in a general pattern of retaliation that he had experienced since he began with the State Police. (Buckman Ex. 41, OL02757) Oliva further explained,
I went on about the whole thing, about my coach...
I said this should never have happened... I'm not gonna do it... if he*fn20 wants to profile that's his business, I said I'm not doing it.... And when I said this to Callen about the profiling and I'm not gonna do it he said whoa, easy on that P word. Like he didn't want to go there, he didn't want to talk about it, cause it was a hot topic back then profiling. (Buckman Ex. 41, OL02757, OL02761) Ultimately, Sergeant Callen directed Defendant Waldron to create a new evaluation, which gave Oliva highest marks in all rating categories. (Attwood Cert. Exs. K, L)
In August, 2000, Oliva was transferred back to Woodbine Station. Shortly after arriving, in late September, another incident occurred. A negative letter about a trooper was anonymously posted on a website called "Troop Rumblings." (Buckman Cert. Ex. 47, OL00935-36) Defendants Sergeant Gary Austin and Lieutenant Horace MacFarland allegedly confronted Oliva, accusing him of making the posting. (Id., OL00936) Oliva described the incident as "a closed door meeting" where Defendants Austin and MacFarland "interrogated" Oliva for an hour, while he denied authoring the posting. (Id.)
Then, on October 9, 2000, Oliva received another anonymous letter. (Buckman Ex. 47, OL00937) Oliva came to work at the beginning of his shift to discover that the gear in his locker had been tampered with,*fn21 and a note had been placed inside. (Id.)
The note stated, "HEY'THERE BIG FUCKIN DADDY' TAKE YOUR SALTY FUCKIN ATTITUDE BACK TO THE LOCAL DEPTS. WE'RE ALL WATCHING YOU OLIVA. FILL OUT A TRANSFER REQUEST, IT'S TIME YOU MOVED ON." (Attwood Cert. Ex. H)(caps in original) An identical note was also taped to the top of a toilet seat in the bathroom. (Buckman Cert. Ex. 47, OL00938) At the time, Oliva did not report this incident to anyone because he believed that nothing would be done about it. (Id., OL00939-40)
Three days later, Oliva came to the Woodbine Station to begin his shift. (Buckman Cert. Ex. 47, OL00940) Trooper James Harris*fn22 was to accompany Oliva on patrol that night. (Id.) According to Oliva, he sat down in an empty office to wait for Trooper Harris, who was watching a baseball game. (Id., OL00941) When Trooper Harris found Oliva in the office, he accused Oliva of sleeping on the job. (Id.) Oliva denied that he was sleeping and attempted to explain that he was waiting for Trooper Harris. (Id.)
Nonetheless, Defendant Sergeant Raymond Lupu issued Oliva a negative Performance Notice for "failure to get the appropriate rest before arriving for work."*fn23 (Attwood Cert. Ex. P)*fn24
Then, on October 18, 2000, Oliva received a third anonymous note--just nine days after the previous note. The note, which was placed in Oliva's work mailbox, states, "Boy....... I Think [sic] I'll come in and'work' an overtime, and go to sleep in the back room cause [sic] I'm all caught up. Move on there tough guy, you still have Bridgeton, Port and Woodstown." (Attwood Cert. Ex. H) At the time, Oliva did not report the note to anyone for the same reasons he did not report the previous note. (Buckman Cert. Ex. 47, OL00942)
Less than a week later, Oliva injured his back while off-duty and took sick leave. (Attwood Cert. Ex. Q) During his sick leave, Oliva confided in Lieutenant Colonel Vincent Modarelli, stating that he was considering resigning from the State Police because of the harassment he had experienced.*fn25 (Attwood Cert. Ex. S)
Colonel Modarelli contacted Defendant Lieutenant William Meddis, Acting Bureau Chief, Quality Control and Adjudication Bureau, to help Oliva find a solution to his problem other than quitting the State Police. (Id.; Attwood Cert. Ex. T)
Soon after, on December 27, 2000, Defendant Meddis and Defendant Sergeant Robin Blaker*fn26 interviewed Oliva about the harassment he experienced. (Buckman Cert. Ex. 47, OL00923-OL00944) Oliva requested to have his attorney present for the interview, but Defendant Meddis would not allow it, stating that State Police policy does not allow it. (Attwood Cert. Ex. T) While Oliva described the incidents involving the anonymous notes, and the negative Performance Notes, he did not tell Defendants Meddis and Blaker what he believed to be the reason for the harassment--his refusal to engage in illegal profiling. Indeed, Oliva made no reference at all to alleged racial profiling by anyone. Oliva did state, however, that he believed that a secret group of State Police officers, called the "Lords of Discipline," were responsible for the harassment. (Attwood Cert. Ex. X; Buckman Cert. Ex. 28)
After the interview, Internal Investigation 2001-01HI was opened on the matter. (Attwood Cert. Ex. X) The stated purpose of the investigation was to "explore the existence of'The Lords of Discipline' (L.O.D.), an alleged group of troopers located in the Troop'A' area who operate covertly for the purpose of hazing and harassing enlisted members who violate the behavioral expectations of their peers." (Buckman Cert. Ex. 28)
On January 4, 2001, Oliva was transferred within Troop A from the Woodbine Station to the Tuckerton Station, thereby removing him from his alleged harassers. (Attwood Cert. Ex. T, V) Oliva had requested a transfer to the Bass River Station, which was in Troop B,*fn27 but Defendant Dunbar determined that there was no reason to transfer Oliva out of Troop A. (Attwood Cert. Ex. V) Oliva never actually reported for duty at Tuckerton Station, however. He took "stress leave" beginning January 1, 2001, and never returned to active duty. (Attwood Ex. Q, OL05498)
Even while on leave, Plaintiff asserts, the harassment of Oliva continued. On January 5, 2001, Defendant Sergeant Kenneth Schairer and Defendant John Zulawski, both from the State Police Internal Affairs Investigation Bureau (hereafter "Internal Affairs"), went to Oliva's home, purportedly in an attempt to secure the anonymous notes and other physical evidence Oliva was holding.*fn28 (Attwood Cert. Ex. W) When it appeared that Oliva was not at home, and that he had not called any station to request permission to leave his home,*fn29 Defendants Schairer and Zulawski decided to go to Oliva's gym, in an attempt to locate him. (Id.) At the gym, they found Oliva in the sauna, and entered the sauna to question him.*fn30 (Id.) After Defendants Schairer and Zulawski informed Oliva that they believed they had an appointment with him at his home that morning, Oliva became agitated, stating that he believed Defendants Schairer and Zulawski were harassing him. (Id.) Oliva further stated that he had left a message at their office that morning. (Id.) Then Oliva used his cell phone to call his lawyer. (Id.)
Less than three weeks later, a story entitled, "N.J. trooper: Even now, fighting profiling costs him," appeared on the front page of the Philadelphia Inquirer. (Attwood Cert. Ex. Y) The story reported,
John Oliva's two-year career as a New Jersey state trooper has, he says, already passed these landmarks:
* He has been instructed by two senior troopers--as recently as February--in profiling techniques to single out motorists for stops he believes are illegal.
* When he objected, the supervisors gave him poor performance evaluations, and a sub-rosa group of troopers calling themselves the'Lords of Discipline' threatened him, vandalized his gear, and he believes, initiated a rumor that discredited him.
* After complaining to supervisors and being offered help by internal affairs, he says, state police agents pursued him as if he were a culprit.
On May 21, 2001, while Internal Investigation 2001-01HI was ongoing, Oliva filed this lawsuit.*fn31 Thereafter, Internal Affairs officers Defendant Sergeant Debra Armitage and Defendant Gayle Cameron,*fn32 were assigned to join the investigation. (Attwood Cert. Exs. VV, WW) Defendant Colonel Dunbar chose Defendant Cameron because of Defendant Cameron's previous experience investigating the alleged Lords of Discipline group. (Attwood Cert. Ex. VV)
On December 10, 2001, Defendants Armitage and Cameron re-interviewed Oliva,*fn33 this time at his attorney's office. (Buckman Cert. Ex. 41, OL02693)*fn34 During the interview, Oliva described the racial profiling incidents involving Trooper Gallagher and Defendant Waldron, and explained why he believed those incidents were the motivation for the harassment he experienced. (Id.) When asked why he did not disclose the profiling incidents during his first interview, Oliva explained,
[T]hat part was not at the forefront at the time, at the time I went to see Lt. Meddis, was when I had these guys, the Lords of Discipline clowns threatening my life and breaking into my locker and handing me anonymous notes where I couldn't go back to work. So that was at the forefront of the, Pat Gallagher was not my, you know, I went to see him not because of Pat Gallagher.... But, when you have these two guys following me into the sauna in the gym in my underwear well, then, that was it. I went out on stress leave after that episode. Well, now, you put it all together you know, and this is how it all started. (Buckman Cert. Ex. 41, OL02737)
After Oliva's second interview, a separate internal investigation (Internal Investigation 2002-0067) was opened to investigate the profiling allegations against Trooper Gallagher. (Attwood Cert. Ex. BB) Defendant Armitage's reason for treating Trooper Gallagher separately from the pre-existing investigation was that "Trooper Gallagher has no alleged involvement with any hazing, harassment, or anonymous notes which have been defined by Trooper Oliva as behavior indicative of the'Lords of Discipline.'" (Id.)
On May 21, 2002, while Oliva was still on stress leave, Defendant Superintendent Joseph Santiago informed Oliva by letter that "I am hereby putting you on notice that I am contemplating not reappointing you to the Division of State Police upon the expiration of your present enlistment."*fn35 (Attwood Cert. Ex. JJ) Defendant Santiago testified that his decision was based on the fact that Oliva had been on stress leave for an extended period of time, and the recommendation of the panel of officers who conducted the re-enlistment review of all the troopers up for re-enlistment. (Attwood Cert. Ex. LL) Specifically, with respect to Oliva, the re-enlistment report stated, Tpr. Oliva did not appear before the panel. He has been on extended sick leave. In reviewing Tpr. Oliva's disciplinary record he has abused the sick leave policy more than once in addition to other violations. Due to the limited amount of full duty time and continued violations, Tpr. Oliva should not be re-enlisted. (Attwood Cert. Ex. FFF)
In July, 2002, Defendant Meddis wrote to Oliva to inform him that the first internal investigation, 2001-001HI, had been completed. (Attwood Cert. Ex. AAA) The letter reported that Oliva's allegations were unsubstantiated, except that "the investigation partially substantiated [the] allegation against Sergeant Edward M. Sokorai*fn36.... However, Sergeant Sokorai retired prior to the implementation of discipline." (Id.)
As the Gallagher internal investigation (investigation number 2002-0067) progressed throughout 2002, Defendant Armitage identified and interviewed several motorists who were stopped by Trooper Gallagher and Oliva during the Trooper Coach period. (Attwood Cert. Ex. EE) According to Defendant Armitage, by July, 2002, "four motorists [had] provided taped statements which suggest[ed] Trooper Oliva [was] more culpable than Trooper Gallagher. Two of these four motorists submitted to polygraph testing and were found to be truthful."*fn37 (Attwood Cert. Ex. GG) Based on this information, Defendant Armitage formally requested that Oliva be designated a principal (i.e., target) in the Gallagher internal investigation. (Id.) On August 18, 2002, Oliva was formally notified by letter that his status in the investigation had been changed from complainant to principal. (Id.)
Approximately a month later, on September 17, 2002,*fn38 Oliva was interviewed for a third and final time, as a principal in the Gallagher investigation. (Buckman Cert. Ex. 41, NJSP529-590) The interview took place in a conference room at State Police Division Headquarters in Trenton, New Jersey. (Id., NJSP529) Because Oliva was a principal, his "Weingarten Representative"*fn39 was present at the interview. (Id.)
It appears from the record that the Gallagher Internal Investigation was completed the following day (September 18, 2002), with Defendant Armitage issuing a completed internal investigation report. (Attwood Cert. Exs. EEE; HHH) Defendant Armitage found the racial profiling allegations against Gallagher to be "unsubstantiated." (Attwood Cert. Ex. EEE) However, Defendant Armitage found "substantiated" by a "preponderance of the evidence" Oliva's other allegations--that Gallagher instructed him to falsify police reports and failed to properly train and supervise him. (Id.)
As to the allegations that Oliva created false police reports, and provided false information during his December 10, 2001 interview, Defendant Armitage concluded the allegations were "substantiated" by a "preponderance of the evidence." (Attwood Cert. Ex. EEE) Specifically, Defendant Armitage found that Oliva had, in fact, conducted searches of motorists' vehicles, despite his "adamant" assertions to the contrary during the December 10, 2001 interview. (Id.)
On September 19, 2002, the day after Defendant Armitage completed the Gallagher Internal Investigation, Lieutenant Thomas Flarity sent the following email to Major Joseph Brennan*fn40
Major you recently forwarded a completed internal investigation report transmittal related to the above captioned matter [Hearings Pending for Tpr. Gallagher and Tpr. Oliva in OPS case number 02-67] for the Supt.'s*fn41 review/decision/offer. The following is a verbatim directive from the Supt.: Schedule GDH*fn42 for both. . . . Offer resignation to both. Oliva, who can be terminated as part of "enlistment" failures as well as this case. If he testifies against Gallagher . . . [ellipsis in original] Gallagher: Offer resignation; if not, GDH; profiling is profiling whether black or white[.]
(Attwood Cert. Ex. HHH)(underlines in original) It is undisputed that news of Defendant Superintendent Santiago's decision never reached Oliva. Less than two weeks after the email was sent, Oliva committed suicide.*fn43
Oliva's medical records demonstrate that immediately after taking stress leave, Oliva sought psychological help because of the harassment he experienced at work. (Buckman Cert Ex. 31) He kept regular appointments with a private psychologist in order to address his anxiety about returning to work, and the symptoms--hypervigilance, nightmares, and lack of sleep--that he experienced as a result.*fn44 (Id.) His anxiety and distress worsened throughout his stress leave, particularly after he received Defendant Santiago's letter advising him that he might not be re-enlisted.*fn45
On May 9, 2001, Oliva's treating psychologist, Dr. Ange Puig, wrote to the State Police Medical Office to report that Oliva had been in treatment since January 9, 2001, and continued to require treatment. (Buckman Cert. Ex. 31) The letter described Oliva's symptoms, and then concluded, "[i]n my opinion as the current treating psychologist, this individual should not return to duty. No reasonable time frame can be projected for a future date to return to work at this time." (Id.) Almost identical letters were sent from Dr. Puig to the State Police Medical Services Unit on September 4, 2001; December 27, 2001; March 6, 2002; May 22, 2002; June 17, 2002; August 22, 2002; and September 17, 2002. (Id.)
According to Plaintiff, despite Oliva's deteriorating mental health, and Dr. Puig's recommendation that he not return to work, State Police medical personnel pressured Oliva to return to active duty. On August 3, 2001, Oliva attended a meeting with Defendant Dr. Donald Izzi*fn46 and Defendant Lieutenant Robert Kilmurray, of the Medical Services Unit, where Dr. Izzi reviewed the results of an independent psychological evaluation of Oliva which had been conducted several months earlier in connection with his stress leave. (Attwood Cert. Ex. OO) Based on the results of the independent evaluation,*fn47 Defendant Dr. Izzi recommended Oliva return to full duty, despite having knowledge of Dr. Puig's recommendation and another recommendation from Dr. Joel Glass.*fn48
(Id.; Buckman Cert. Ex. 39) Shortly thereafter, Oliva received a letter ordering him to report for duty at Tuckerton Station, at 9 a.m. on August 13, 2001. (Attwood Cert Ex. PP)
However, on August 8, 2001, Oliva met with "troop physician" Dr. Robert Carty, for a duty examination prior to returning to work. (Attwood Cert. Ex. PP) Dr. Carty concluded that Oliva should remain on leave, although it appears from the record that at the time, he was unaware of Dr. Izzi's recommendation to the contrary or the order directing Oliva to report for duty. (Id.) Ultimately, Dr. Izzi and Dr. Carty consulted with each other, and it was determined that Oliva should remain on stress leave. (Attwood Cert. Ex. QQ) On September 28, 2001, Dr. Izzi sent Oliva a letter informing him that Oliva would be allowed to continue "in an [sic] temporary off duty capacity." (Attwood Cert. Ex. RR)
Oliva continued to see Dr. Carty on a regular basis for the rest of 2001, and throughout the first eight months of 2002. (Attwood Cert Ex. Q) By August, 2002, Oliva was telling all of his doctors that he was ready to return to work.*fn49 Despite Oliva's statements, Dr. Puig did not believe Oliva was fit to return to duty and advised the State Police of his opinion. (Buckman Cert. Ex. 31) On September 24, 2002, Defendant Dr. Izzi wrote to Oliva notifying him that another independent evaluation had been scheduled "in order to make a proper medical determination of your current duty status." (Attwood Cert Ex. UU) Oliva's appointment was scheduled for October 15, 2002 (Id.), however, Oliva took his life on October 1, 2002.
The 38-page Second Amended Complaint originally asserted 16 claims against all 23 individual Defendants and the State of New Jersey. The following claims remain at this time*fn50 Conscientious Employee Protection Act ("CEPA") claim under New Jersey law, N.J.S.A. 34:19-1 et. seq. (Count 1); Law Against Discrimination ("LAD") claim under New Jersey law, N.J.S.A. 10-5:1 et. seq. (Count 9); and claims pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3), and 1986 (Counts 5-8 and 16).*fn51 As to the Section 1983 claim, Plaintiff alleges that "defendants" "deprived [Oliva] of his liberty and property without due process of law in violation of his substantive due process and procedural due process rights under the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution." (Second Amend. Compl. ¶ 145) Notably, Plaintiff has never pled a First Amendment violation.
In addition to the State of New Jersey*fn52, the following individual Defendants remain at this time: John Farmer, Jr., Attorney General of New Jersey, in his individual capacity only; State Police Superintendent Colonel Carson Dunbar, in his individual capacity only; Sergeant Bruce Meyers; Trooper Albert Waldron; Sergeant Ray Lupu; Lieutenant George Gilman; Sergeant Gary Austin; Lieutenant Horace MacFarland; Sergeant Frances Donlan; Lieutenant William Meddis; Sergeant Kenneth Schairer; Sergeant John Zulawski; Sergeant Edward Sokorai; Major Glen Miller; John Hagerty; Sergeant Robin Blaker; Lieutenant Robert Kilmurray; Dr. Donald Izzi; former State Police Superintendent Joseph Santiago in his individual capacity only*fn53; Captain Gayle Cameron; and Sergeant Debra Armitage.
All Defendants move for summary judgment on all remaining claims. For the reasons that follow the Motion will be granted in its entirety, except that the Motion will be denied as to the § 1981 and CEPA claims asserted against Defendant Waldron.
Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted if "pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See also, Anderson V. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a motion for summary judgment, the court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is material only if it will affect the outcome of a lawsuit under the applicable law, and a dispute of a material fact is genuine if the evidence is such that a reasonable fact finder could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 252.
Only evidence that would be admissible at trial may be considered when deciding a summary judgment motion. See Blackburn v. United Parcel Service, Inc., 179 F.3d 81 (3d Cir. 1999)(noting that hearsay statements that are inadmissible at trial should not be considered when determining whether the nonmoving party has established a triable issue of fact).
The Court addresses Plaintiff's claims in the ...