The opinion of the court was delivered by: Hon. William J. Martini
This is a civil rights action brought by two Township of Union ("Township") police officers, plaintiff Patrolman James Gilleece and plaintiff Sergeant Robert Reiss, alleging that the Defendants, i.e., the Township, Frank Bradley, the Township's Business Administrator, and (then) Mayor Brenda Restivo, failed to promote Plaintiffs in retaliation for Plaintiffs' exercising their First Amendment rights, specifically, engaging in union activities. The civil rights action is brought under 42 U.S.C. § 1983. Compl. ¶¶ 25-29 (Count 4). The remaining counts, brought under state law, include: an invasion of privacy claim (Count 1); a defamation claim (Count 2); and a Conscientious Employee Protection Act claim ("CEPA") (Count 3). Originally, each count was brought against each Defendant. However, Plaintiffs have consented to dismissal of all claims against Restivo, and, in prior proceedings, the parties consented to dismissing the defamation claim against the Township, and to Gilleece's CEPA count in its entirety.
For the reasons elaborated below, the Court will GRANT in part, and DENY in part Defendants' motion for summary judgment. Specifically, Counts 1 and 2 will be dismissed. All other relief is DENIED.
II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
The general chronology of events does not appear to be disputed.
In 2003, Patrolman Gilleece was elected Vice President of the Policemen's Benevolent Association, Township of Union, Local 69 ("PBA"), and Sergeant Robert Reiss was elected Vice President of the Superior Officers Association ("SOA").
In November 2006, the state Department of Personnel produced a list of candidates eligible for promotion to lieutenant based on examination results. The list had nine names and in February 2007, a four person (first round) interview committee, including Defendant Bradley, interviewed the top six candidates, including Plaintiff Reiss. The interview committee recommended that the top four candidates, as measured by examination results, be promoted to lieutenant. Reiss who placed fifth was passed over. In July 2007, a second list of eligible candidates was certified. Reiss now stood at the top of the list. In late July 2007, the top five candidates were interviewed by a three member (second round) interview committee, including Defendant Bradley. The interview committee now unanimously recommended for promotion two candidates, Bayer and Foster, who placed immediately below Reiss, as measured by examination results, but had better scores in connection with the interview process. Reiss was the only candidate who had better test scores than the candidates who received the interview committee's recommendation. The Township Committee (composed of four members and the mayor) approved the interview committee's recommendation on or about September 7, 2007. Sergeant Bayer, one of the two sergeants promoted to lieutenant, was treasurer of the SOA at this time. The SOA is Sergeant Reiss's union.
Gilleece had an experience similar to Reiss. In October 2006, the state Department of Personnel produced a list of candidates eligible for promotion to sergeant based on examination results. The list had ten names and in January 2007, a four person (first round) interview committee, including Defendant Bradley, interviewed the top six candidates, including Plaintiff Gilleece. The interview committee recommended that the top three candidates, as measured by examination results, be promoted to sergeant. Gilleece who placed fourth was passed over. In June 2007, a second list of eligible candidates was certified. Gilleece now stood at the top of the list. In late July 2007, the top five candidates were interviewed by a three member (second round) interview committee, including Defendant Bradley. The interview committee now recommended for promotion two candidates, Kelly and Skiper, who placed immediately below Gilleece, as measured by examination results, but had better scores in connection with the interview process. Gilleece was the only candidate who had better test scores than the candidates who received the interview committee's recommendation. The Township Committee approved the interview committee's recommendation on or about September 7, 2007.
On July 12, 2005, Plaintiff Reiss and sixty other SOA and PBA members attended a Township Committee meeting to support efforts to keep the "jobs in blue" program. Bradley left the meeting, but afterwards Reiss saw a man tell Acting Chief Gordiano that Bradley wanted to see him. On July 22, 2005 and on January 11, 2006, the PBA filed an unfair labor practice charge with the New Jersey Public Employment Relations Commission ("PERC") against the Township. The PERC Complaint alleged that the Township illegally discontinued the "jobs in blue" program without proper union negotiations. The PERC Complaint also alleged that internal affairs officers conducted unlawful surveillance of police union members under orders from Defendant Bradley. A hearing was held on September 25, 2006 on the PERC Complaint. Reiss testified as to what he saw at the Township Committee meeting. On June 29, 2007, the hearing officer decided the case, and in a written opinion, the hearing officer concluded that the PBA's conduct angered Bradley, Bradley told Gordiano that he would be held accountable for the officers' conduct, and that, although Bradley did not specifically order the surveillance, his admonishment to Gordiano set it in motion. Reiss's testimony may have been necessary to those findings, as Reiss testified that he saw a person at the meeting tell Gordiano that Bradley wanted to see him after Bradley had already left the meeting. Bradley would later testify that the PERC hearing officer's opinion of June 29, 2007 was the first notice he had that Reiss had testified in the PERC proceedings. In late July, each of the two Plaintiffs would be interviewed by the relevant (second round) interview committee and passed over. In each case, Bradley was a member of the interview committee. And on or about September 7, the Township Committee approved the recommendation of the interview committees.
On September 11, 2007, a reporter contacted the Township's Public Information Officer, Ms. Durso, for information about the promotions. Durso met with Bradley that day to get information for the press. The only specific person Durso could remember meeting with about the draft press release was Bradley, although she remembered meeting with other people whose identity she could not remember, nor could she remember what information these other people supplied. Durso prepared a draft press release and a final press release. The latter was approved for distribution. Unlike the draft press release, the final press release made no mention of those officers who had been passed over, i.e., Plaintiffs in this action. By contrast, the draft press release mentioned both Plaintiffs by name and explained that they were passed over allegedly because of their disciplinary history. Durso sent both press releases to the press. Defendants assert that the draft was sent "accidentally." Afterwards, Durso contacted the press and asked them to rely exclusively on the approved final press release. Plaintiffs claim they were injured by the release of the information in the draft press release; Plaintiffs allege invasion of privacy and defamation. Articles later appeared in the Star Ledger and in the Union Leader. One of the two articles mentioned Plaintiffs by name, although that information appeared to come from the PBA Union president. The other article, although not mentioning Plaintiffs by name, did indicate that they were passed over because of "work-related disciplinary issues" and so appears to have relied on the draft press release.
Subsequently, Plaintiffs filed this suit in the Superior Court of New Jersey, Union County. Defendants removed to this Court. Jurisdiction is based on removal jurisdiction, federal question jurisdiction ...