The opinion of the court was delivered by: Irenas, Senior District Judge
In a prior opinion and order, this Court dismissed without prejudice Plaintiff's New Jersey Civil Rights Act (NJCRA) claim against Defendants Muro and the New Jersey Institute of Technology (NJIT) for failure to allege exactly which constitutional rights had been violated.*fn1 Plaintiff Michael Matthews, Jr. files this Motion to Amend the Complaint (Motion) to cure that defect and to add a New Jersey Conscientious Employee Protection Act (CEPA) claim against Defendants Richard Sooy, Donna Gaskill and City of Atlantic City. Defendants have not filed papers in opposition to this Motion. For the following reasons, the Motion will be granted in part and denied in part.
The Complaint alleges the following facts relevant to the present Motion. For "many years" City of Atlantic City employed Plaintiff Matthews as a Senior Systems Data Processor within the City's Management Information Systems ("MIS") Department. (Am. Compl. Count 1, ¶ 1) In June, 2005, Matthews applied for a promotion to Director of Data Processing. He was not hired for the position. Instead, City of Atlantic City hired Defendants NJIT and Ernest Muro. Matthews alleges that the City hired NJIT and Muro "due to certain political connections." (Am. Compl. Count 1, ¶ 2)
Matthews initially remained in his position as Senior Systems Data Processor while NJIT, through Muro, "assum[ed] control" of the MIS Department. (Am. Compl. Count 1, ¶ 6) According to Matthews, NJIT and Muro began to "ignore longstanding bidding procedures and for unknown reasons and without any logical explanation, made financial decisions which ultimately cost the City of Atlantic City taxpayers thousands of dollars." (Id.) Matthews alleges that he was "caught in the middle of this and attempted to correct it and stated that it was not the right thing to do, which caused Mr. Muro on behalf of NJIT to develop considerable hostility toward [Matthews]." (Id.) Specifically, Matthews alleges that Muro "consistently attacked [Matthews'] capabilities in managing MIS" when speaking with other people, and "advised City of Atlantic City decision makers [sic] that [Matthews] had sabotaged the [computer] network." (Am. Compl. Count 1, ¶ 3)
In January or February, 2006, Matthews was demoted to Data Processing Programmer, with an 11% reduction in salary. (Am. Compl. Count 1, ¶ 5) Matthews alleges that after his demotion, someone broke into the shop in which he worked and "reviewed what was in [his] computer." (Am. Compl. Count 1, ¶ 3)
Matthews alleges that NJIT and Muro engaged in "conduct that was intentionally designed to remove [Matthews] from his supervisory position within MIS [and] intentionally interfered with [Matthews'] prospective economic advantage and employment." (Am. Compl. Count 1, ¶ 9)
Matthews further contends that Defendants Richard Sooy and Donna Gaskill, Matthews' immediate supervisors, disciplined Matthews for "objecting to and reporting of [sic] ongoing conduct and unsafe and unsanitary working conditions." (Am. Compl. Count 3, ¶ 5) In a Notice issued January 13, 2010, the New Jersey Department of Labor and Workforce Development investigated Matthews' allegation and found that Sooy had issued "a written reprimand which was applied to [Matthews'] personnel file," (Am. Compl. Ex. A, 4-5) for reporting health and safety violations to the Office of Public Employee's Occupational Safety and Health (OPEOSH). (Am. Compl. Count 3, ¶ 2)
On or about March 26, 2010, Sooy entered a lockout command code to prohibit Matthews from using the fax machine, which was necessary to properly complete his assignments. (Am. Compl. Ex. B, 1, ¶ 1) In response, Matthews filed a complaint with the Department Head, Emergency Services Director Tom Foley. (Am. Compl. Ex. B, 1, ¶ 4) In addition, on March 28, 2010, Matthews sent a grievance report to Atlantic City White Collar Union President, Jenny Darnell that alleges further harassment from Sooy and Gaskill. (Am. Compl. Ex. B) In particular, Matthews alleges that his complaint to Director Foley prompted Sooy and Gaskill to retaliate against Matthews by way of oral reprimands. (Am. Compl. Ex. B, 1, ¶ 5) Sooy further punished Matthews by requiring him to write assignments that detailed "how [Matthews] violated the 'chain of command.'" (Id.) Due to "the harassment, hostility and stress [Matthews] felt that day [Matthews] had no choice but to use sick time for the rest of [Matthews'] shift." (Am. Compl. Ex. B, 2, ¶ 3) In addition, Matthews alleges a "loss of pay because of discipline." (Am. Compl. Count 3, ¶ 5)
Matthews moves to amend the original pleadings to assert the following claims*fn2 1) NJIT and Muro violated NJCRA, N.J.S.A. 10:6-2; 2) Richard Sooy, Donna Gaskill and City of Atlantic City violated CEPA, N.J.S.A. 34:19-3.
Fed. R. Civ. P. 15(a)(2) states that "[t]he court should freely give leave [to amend a pleading] when justice so requires." "In the absence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be freely given." Foman v. Davis, 371 U.S. 178, 182 (1962).
Relevant to the instant Motion, "amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted." Alvin v. Suzuki, 227 F.3d 107, 122 (3d Cir. 2000). Thus, in determining futility, the Court must "accept all factual allegations as true, construe the [proposed amended] complaint in the light most favorable to the plaintiff[s], and determine, whether under any reasonable reading of the [proposed amended] complaint, the plaintiff[s] may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The proposed amended complaint must state sufficient facts to show that the legal allegations are not simply possible, but plausible. Id. at 234. "A claim has facial plausibility ...