The opinion of the court was delivered by: The Hon. William J. Martini
Plaintiff Peter Hilburn (―Plaintiff‖) filed a complaint (―Compl.‖), (Doc. No. 1), in the present action on December 21, 2007. On January 9, 2008, Plaintiff filed an amended ten-count complaint (―Am. Compl.‖), (Doc. No. 2), against the State of New Jersey Department of Corrections (the ―DOC‖) and six individual defendants, Al Ortiz, Gerald Kennedy, Fred Armstrong, James Barbo, George Hayman,*fn2 and William Plantier (the ―Individual Defendants,‖ and, collectively with the DOC, the ―Defendants‖). Generally, Plaintiff alleges that he was wrongfully terminated by his employer, the DOC, on or about April 8, 2006,*fn3 at a time when he was an employee at East Jersey State Prison in or at Rahway, New Jersey.
Plaintiff puts forward three federal claims. In Count One, Plaintiff alleges that Defendants deprived him of his First Amendment free expression and petition rights. He asserts his First Amendment rights under the Fourteenth Amendment and under 42 U.S.C. § 1983. In Count Two, Plaintiff alleges that Defendants engaged in retaliatory conduct that violated Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. (―Title VII‖). In Count Six, Plaintiff alleges that Defendants violated the Family and Medical Leave Act of 1993 (the ―FMLA Count‖), codified as amended at 29 U.S.C. § 2601 et seq.*fn4
The remaining counts are grounded in state law. In Count Three, Plaintiff alleges intentional and/or negligent infliction of emotional distress. In Count Four, Plaintiff alleges that the DOC negligently appointed, hired, and retained the individual defendants by failing to oversee their work. In Count Five, Plaintiff alleges that the DOC and perhaps Individual Defendants are liable under respondeat superior for the wrongdoing by the Individual Defendants. In Count Seven, Plaintiff alleges that he had a reasonable expectation of prospective economic advantage and Defendants caused Plaintiff to lose this advantage by wrongfully terminating his employment. In Count Eight, Plaintiff alleges that Defendants violated Article I, paragraphs 1 and 6, of the New Jersey Constitution, providing for, inter alia, a right to free speech. It appears that Plaintiff seeks to vindicate this right under N.J. Stat. Ann. § 10:6-2. In Count Nine, Plaintiff alleges that Defendants wrongfully terminated Plaintiff in retaliation for Plaintiff's exercise of rights; however, Plaintiff's filings do not expressly clarify whether this claim arises under federal or state law or both. Plaintiff's filings cite no statutory basis for this count. It appears to be asserted as a common law claim under state law or is otherwise redundant with the Section 1983 and Title VII claims. In Count Ten, Plaintiff alleges that Defendants breached his rights under the DOC's employee manual.
In sum, Plaintiff's Amended Complaint alleges that the Defendants violated Plaintiff's rights under federal and state constitutional law, under federal and state statutory law, and under a variety of state common law doctrines, when they suspended and later terminated Plaintiff's employment. In terms of relief, Plaintiff's complaint seeks compensatory damages, punitive damages, reinstatement of employment, attorneys' fees, and interest and costs of suit. See Am. Compl. ¶ 101.
Pending before the Court is Defendants' Motion for Judgment on the Pleadings (the ―Motion‖), on behalf of Defendants State of New Jersey Department of Corrections, Al Ortiz, James Barbo, George Hayman, and William Plantier (collectively, the ―Moving Defendants‖).*fn5 The Moving Defendants seek dismissal of all counts, except Count Six. Thus, without regard to how this motion is decided, this action will proceed in regard to Count Six.*fn6
The Motion is fully briefed. See Defendants' Brief in Support of Motion for Judgment on the Pleadings (the ―Defs' Opening Br.‖), (Doc. No. 35-3), Plaintiff's Brief in Opposition to Defendants' Motion for Judgment on the Pleadings (the ―Plf's Opp. Br.‖), (Doc. No. 38), Defendants' Reply Brief in Further Support of Motion for Judgment on the Pleadings (the ―Defs' Reply Br.‖), (Doc. No. 40). Having considered the parties' filings, federal and state constitutional law, federal and state statutory law, case law, and persuasive scholarly authority, the Court, for the reasons elaborated below, will GRANT in part and DENY in part Moving Defendants' Motion. The Court will:
(A) dismiss Count One (the Section 1983 Count) against DOC, and against the Individual Defendants in their official capacities (but not their individual capacities*fn7 );
(B) dismiss Count Two (the Title VII Count) against DOC and the Individual Defendants;
(C) dismiss Counts Three, Four, Five, Seven, and Nine (state law counts) against DOC, and against the Individual Defendants in their official and individual capacities; and,
(D) dismiss Counts Eight and Ten (state law counts) against DOC and the Individual Defendants in their official capacities (but not their individual capacities).
Therefore, this action will go forward in regard to Count Six (the FMLA Count) against all Defendants, because dismissal has not been sought, and in regard to Count One (the Section 1983 Count) against the individual Defendants in their individual capacities only, and in regard to Counts Eight and Ten (state law counts) against the Individual Defendants in their individual capacities only.
II. FACTS AND PROCEDURAL BACKGROUND
Generally, the allegations put forward in the Amended Complaint are as follows.
Plaintiff alleges that, several years ago, illegal bid-rigging plagued the East Jersey State Prison (the ―Prison‖). In the summer of 2005, the Prison's Business Administrator, Ed Guz, reported at a morning briefing that ―rampant and illegal bid-rigging [was] taking place‖ at the Prison. Am. Compl. ¶ 18. Guz repeated the allegation several times during the meeting in the presence of various officials as recorded by a stenographer's minutes. Id. Plaintiff's supervisor, Al Ortiz, attended this meeting. Id. On or about August 2, 2005, Plaintiff filed an internal complaint with the DOC's Equal Employment Division (the ―EED Complaint‖). (Doc. No. 38, Ex. B.)
The bid-rigging allegations traced back to the Assistant Director of the DOC, Gerald Kennedy. Id. ¶¶ 20-21. Kennedy owned a company that reportedly made three bids for construction contracts at the Prison. Id. ¶ 20.
After the meeting, Plaintiff discussed the matter with his supervisor, Ortiz, at least three times. Id. ¶ 22. Plaintiff urged Ortiz to report the matter, and Ortiz responded, after questioning by Plaintiff, that he had already reported the bid-rigging to Kennedy. Id. ¶ 23. Plaintiff then advised Ortiz to report the matter to an outside law enforcement agency, as the behavior was illegal. Id. ¶ 24. Ortiz then threatened to fire Plaintiff if he ―continued to complain.‖ Id. ¶ 24.
Subsequently, a corrections officer approached Plaintiff regarding bid-rigging and various illegal activity at the Prison, and the two filed a formal complaint with the United States Attorney General. Id. ¶¶ 26-27. Thereafter, Plaintiff was suspended. Id. ¶ 29. (The Amended Complaint leaves unclear the date on which he was suspended.) He was told, though it is unclear by whom, that the suspension was based on false reports he made in the EED Complaint. Id. ¶¶ 30-31.
Plaintiff then took an approved medical leave for a health condition. Id. ¶¶ 32, 71-73. On or about April 8, 2006, two days before his scheduled return from this leave, the DOC terminated Plaintiff's employment. Id. ¶ 33. Thereafter, on or about January 29, 2007, Plaintiff filed a charge with the Equal Employment Opportunity Commission, (Defs' Reply Br., Nestor Certif., Ex. A*fn8 ), alleging that the DOC engaged in employment discrimination against him, in violation of Title VII, the Age Discrimination in Employment Act (the ―ADEA‖), codified as amended at 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act (the ―ADA‖), codified as amended at 42 U.S.C. § 12101 et seq. See Defs' Reply Br., Nestor Certif., Ex. A.
The Commission issued a right-to-sue letter in the matter, dated August 16, 2007. Plf's Opp. Br., Ex. A. Subsequently, Plaintiff filed a complaint in this action in this Court on December 21, 2007, (Doc. No. 1), later superseded by the amended complaint of January 9, 2008, (Doc. No. 2). Defendants New Jersey Department of Corrections and Hayman filed an answer and affirmative defenses, (Doc. No. 10), on March 27, 2008. Defendants Ortiz, Armstrong, Barbo, and Plantier filed a (revised) answer and affirmative defenses, (Doc. No. 21), on September 24, 2008. On August 14, 2009, the Moving Defendants filed the instant Motion, (Doc. No. 35), pursuant to Fed. ...