The opinion of the court was delivered by: William J. Martini, U.S.D.J.
Plaintiff Peter Hilburn filed an amended ten-count complaint ("Am. Compl."), against the State of New Jersey Department of Corrections ("DOC") and six individual defendants, Al Ortiz, Gerald Kennedy, Fred Armstrong, James Barbo, George Hayman, and William Plantier. Generally, Plaintiff alleges that he was wrongfully terminated by his employer, the DOC, on or about April 8, 2006, at a time when he was a DOC employee, i.e., Special Assistant to Defendant Al Ortiz, the Administrator of the East Jersey State Prison, Rahway, New Jersey. Plaintiff put forward both federal and state causes of action. After briefing on a motion to dismiss, this Court dismissed six of the ten counts. Four counts remain, including a Section 1983 count against the Individual Defendants in their individual capacities. Before the Court is Defendants DOC, Ortiz, Barbo, Hayman, and Plantier's joint motion for summary judgment on the remaining counts. Also before the Court is Defendant Armstrong's separate motion for summary judgment on the remaining counts. The sixth and remaining defendant in this case, Gerald Kennedy, has been served, but has not responded to the summons or complaint, nor has any attorney appeared on his behalf. Default has already been entered against Defendant Kennedy. See Doc. No. 33.
For the reasons elaborated below, the Court will GRANT the State of New Jersey, Department of Corrections, Ortiz, Barbo, Hayman, Plantier's motion for summary judgment in part, and DENY it in part. Likewise, the Court will GRANT Armstrong's motion for summary judgment. Count Ten will be dismissed. Counts One, Six, and Eight will be dismissed against Armstrong, Hayman, and Barbo, who are terminated from this action. This action will go forward in regard to Counts One, Six, and Eight against Ortiz and Plantier, and Count Six will also go forward against the DOC.
II. FACTS AND PROCEDURAL BACKGROUND
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. Plaintiff's supervisor, Al Ortiz, attended this meeting. Plaintiff urged Ortiz on more than one occasion to report the bid rigging. Ortiz purportedly said that he reported the alleged criminal activity to Defendant Gerald Kennedy, Assistant Director of the DOC, who was allegedly at the center of the allegations surrounding the bid rigging. Ortiz then allegedly threatened to fire Plaintiff if he continued to complain. See Hillburn Cert. ¶ 13 ("Defendant Ortiz threatened that I would lose my job if I did not stop complaining.").
On or about May 2005, Plaintiff and another corrections officer met with investigators from the Office of the Attorney General and discussed the alleged criminal activity in the prison. Plaintiff filed a formal complaint in regard to his allegations of illegal activity. On or about July 20, 2005, Plaintiff filed an internal complaint with the DOC's Equal Employment Division (the "EED Complaint"). He included allegations in regard to bid rigging, and alleged that Ortiz threatened, harassed, and retaliated against him for reporting the illegal activities within the prison.
On or about July 22, 2005, Ortiz sent Plaintiff a letter. The letter indicated that Plaintiff made an "unsolicited and irrelevant outburst" at a July 19, 2005 meeting and apparently indicated that Plaintiff needed counseling. On or about, September 1, 2005, Ortiz purportedly told a third-party that Plaintiff "is going" and described Plaintiff as "white trash."
On or about November 30, 2005, Defendant Plantier denied granting Plaintiff the relief he sought in his EED complaint. Furthermore, Plantier determined that Plaintiff's failure to report the alleged workplace wrongdoing in a timely report was itself a violation of DOC policy. As a result, Plaintiff was suspended for forty days. The suspension ended on or about January 31, 2006.
Plaintiff then took an approved medical leave for a health condition. On or about April 7, 2006, two days before his scheduled return from this leave, the DOC terminated Plaintiff's employment. Plantier's termination letter was not detailed, but it did state that Plaintiff was terminated in connection with an investigation conducted by the EED. Termination occurred some four months after his suspension.
Thereafter, on or about January 29, 2007, Plaintiff filed a charge with the Equal Employment Opportunity Commission alleging that the DOC engaged in employment discrimination against him, in violation of Title VII, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
On August 16, 2007, the Commission issued a right-to-sue letter in the matter. Subsequently, Plaintiff filed a complaint in this action on December 21, 2007 in this Court, later superseded by the ten count Amended Complaint. Six counts were dismissed. The remaining four counts include: Count One -- the Section 1983 Count against the Individual Defendants in their individual capacities only; Count Six -- the Family and Medical Leave Act ("FMLA") of 1993 Count against all defendants; Count Eight -- the Free Speech Count under the New Jersey Constitution; and Count Ten for breach of Plaintiff's rights under the DOC's employee manual. In ...