The opinion of the court was delivered by: Honorable Jerome B. Simandle
Plaintiff Raymond Von Rhine, an employee of the Camden County Sheriff's Department, brings this action against the Office of the Sheriff of Camden County, William Fontanez (former Acting Sheriff and current Undersheriff of Camden County) in his individual capacity, and Charles Billingham (Sheriff of Camden County) in his individual capacity. Plaintiff alleges that the Sheriff's Office and the individually named Defendants created a hostile work environment and engaged in retaliatory acts that adversely affected the terms and conditions of Plaintiff's employment. Compl. ¶ 1. This conduct, Plaintiff alleges, violated his First and Fourteenth Amendment rights, and in turn is actionable pursuant to 42 U.S.C. § 1983. Plaintiff further alleges violations of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19, over which this Court has supplemental jurisdiction.
Before the Court is a motion for summary judgment by Defendants. [Docket Item 26.] For the reasons set forth herein, the motion will be granted because Plaintiff fails to point to a dispute of fact over whether his allegedly adverse employment action, a transfer to a less desirable department within the Sheriff's Office, was causally related to any protected activity.
Plaintiff alleges that the Defendants retaliated against him for protected activity and discriminated against him by transferring him out of the Special Investigations Bureau into a different department in the Camden County Sheriff's Office in October of 2008. Plaintiff seeks relief in his Complaint through seven counts against three Defendants. Counts I and V relate exclusively to Defendant Undersheriff Fontanez in his individual capacity. Counts VI and VII relate exclusively to Defendant Sheriff Billingham in his individual capacity. Counts II and III relate exclusively to Defendant Camden County Sheriff's Office. All six of the above-mentioned counts allege a constitutional violation actionable under 42 U.S.C. § 1983. Additionally, Plaintiff seeks relief against all three Defendants for violation of CEPA in Count IV.
As relates to Defendant Fontanez, Count I alleges a violation of Plaintiff's First Amendment right to free speech, pursuant to § 1983. In that Count, Plaintiff alleges that Undersheriff Fontanez caused Plaintiff to be transferred out of his preferred department in the Sheriff's Office in retaliation for Plaintiff's "complaining about the harassment and hostile work environment, about the threatening conduct of S.O. Lovern and the threatening and intimidating conduct of defendant Fontanez." Compl. ¶¶ 80-87. Similarly, in Count V, Plaintiff alleges a violation of his First Amendment right to free association, again created when Defendant Fontanez allegedly retaliated (by causing his transfer) against Plaintiff because of Plaintiff's association with his union. Id. at ¶ 107.
As relates to Defendant Billingham, Plaintiff similarly claims that Sheriff Billingham violated Plaintiff's First Amendment right to free speech (Count VI) and association (Count VII) by permitting Plaintiff's transfer to go through despite being on notice of the retaliatory nature of the transfer. Id. at ¶¶ 115-119, 122-128.
As relates to Defendant Camden County Sheriff's Office, Plaintiff alleges municipal liability under § 1983 against the Office under two theories: claiming a violation of the Equal Protection Clause of the Fourteenth Amendment (Count II) and a violation of the First Amendment (Count III). Compl. at ¶¶ 88-100.
Finally, Count IV of the Complaint alleges, on behalf of all Defendants, violations of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 43:19-3. Specifically, Plaintiff alleges that Defendants retaliated against Plaintiff for his objection to participating in an illegal practice and for testifying against then-acting Sheriff Fontanez, conduct Plaintiff alleges is protected under CEPA. Id. at ¶¶ 101-104.
B. Factual Background of the Case
Plaintiff Raymond Von Rhine was hired as a Camden County Sheriff's Officer on October 28, 2000. Von Rhine Dep. 22:16-22. In 2004, Plaintiff bid on and received a position in the Court Security Bureau, which he held until the fall of 2006. Id. 41:20-42:2. As of the fall of 2006, Plaintiff was serving as the Vice-President of Local 277 of the New Jersey Policemen's Benevolent Association ("the Union"). Id. 48:15-18.
In the late summer of 2006, Plaintiff applied for a transfer into the Special Investigations Bureau ("SIB").*fn2 Id. 84:3-5. Positions in SIB were desirable because they offered greater potential for overtime, free parking, an unmarked squad car, plainclothes dress, and flexible scheduling. Id. 39:20-40:7.
At that time, (from May 2006 until December 2006), Defendant Undersheriff Fontanez was serving as the acting Sheriff pending the election of a new permanent sheriff. Fontanez Dep. 7:18-21. On September 25, 2006, Plaintiff received notice from Undersheriff Fontanez that Plaintiff's request for transfer to the SIB had been granted, with the transfer subsequently occurring on October 2, 2006. Compl. ¶¶ 11, 17. Plaintiff was one of sixteen other officers who were transferred to new positions at that time. Defs.' Statement of Facts ¶ 6 n. 2; Moore Dep. 21:12-15.
Plaintiff and several other members of the local union believed that these transfers did not comply with Camden County's Collective Bargaining Agreement ("the CBA") with Local 277. Von Rhine Dep. 60:12-62:12; Billingham Dep. 27:4-9, Mogck Dep. 19:13-18. Specifically, the transfer was improper because of its timing. Under the terms of the CBA, the Sheriff's Office could transfer employees into and out of bidded positions only at the start of a new year, and then only if it provided notice of the transfers in October.*fn3 Von Rhine Dep. 25:1-26:4. In other words, Plaintiff was granted the transfer he requested, but in a manner he was not expecting, which he believed violated the CBA.
On the day following the announcement of the transfers, the Union filed a grievance against Undersheriff Fontanez for violating the CBA. Von Rhine Dep. 67:16-25. The Union grievance escalated beyond the local level, and Plaintiff ultimately appeared before the Public Employee Relations Council ("PERC") in Trenton to give testimony. Id. 64:20-65:22.*fn4
On September 27, 2006, two days following the announcement of the transfers and before Plaintiff's transfer was completed, Defendant Fontanez contacted Plaintiff and Officer Conway, another union official transferred into the SIB, and directed them to file a grievance against the Union's grievance, or they "wouldn't be considered for any desirable position in the Sheriff's Department." Id. 74:4-8; Compl. ¶ 15.
Around this time, the Union learned that Defendant Fontanez had instructed the superior officers working under him in the Sheriff's Office to start driving a wedge between the Union's membership and their leadership. Id. 75:21-76:6. In response to these alleged acts, in 2007 the Union filed an unfair labor practice charge against Undersheriff Fontanez. Fontanez Dep. 92:21-24, 93:1-4. Through his leadership role in the Union and his personal role as the alleged victim of Undersheriff Fontanez's intimidation, Plaintiff was involved in the filing of the charge and subsequently testified before PERC regarding the unfair labor practice charge. Von Rhine Dep. 77:19-21; Fontanez Dep. 93:13-24, 94:1-7, 98:2-5, 104:2-23.
In the spring of 2007, Plaintiff Von Rhine, along with Officer Conway, also initiated an internal Union complaint against Undersheriff Fontanez, who was a retired Union member receiving union benefits. Fontanez Dep. 106:20-108:24. Following a Union hearing at which Undersheriff Fontanez was present, the Union membership in attendance voted to remove Undersheriff Fontanez from the Union. O'Donnell Dep. 69:15-16. As a consequence of his removal, Undersheriff Fontanez's dependents lost their Union-provided vision and prescription drug benefits. Fontanez Dep. 118:5-11, Eife Dep. 38:5-15. Undersheriff Fontanez was "upset" and "angered" by the Union's move to terminate his membership, and Defendant Sheriff Billingham states that he believes that the incident continues to color Defendant Undersheriff Fontanez's views of the Union. Billingham Dep. 42:14-43:24.
Following his transfer into the SIB, Plaintiff testified that he experienced harassment by at least one other officer, which he contends was in retaliation for his participation in the aforementioned Union proceedings. Plaintiff was called a "rat" by his immediate supervisor, Sergeant O'Donnell, and other officers. Von Rhine Dep. 85:19-23. Officer Lovern, another officer in the SIB, posted doctored copies of Plaintiff's engagement photo around the SIB depicting Plaintiff and his fiance as an Orthodox Jewish couple and as a homosexual couple. Id. 133:3-134:15. Officer Lovern also left magazines with articles referencing neo-Nazis on Plaintiff's desk, which Plaintiff understood to be in reference to his German origins. Id. 137:2-140:11. Additionally, beginning in April 2007, Officer Lovern pointed and occasionally shot a pellet gun and later a BB rifle at Plaintiff and Officer Conway on approximately five occasions over the following eight months. Id. 88:21-89:2, 89:21-25, 96-99, 115:17-25, 126:23-25. These guns were indistinguishable from real guns and caused Plaintiff to "fear for his life." Id. 100:17-19.
Plaintiff did not report Officer Lovern's conduct to his direct superiors. Von Rhine Dep. 105:1-106:6. However, in January of 2008 Plaintiff, Officer Conway and their union president met with Sheriff Billingham at which time Plaintiff and Officer Conway complained about Officer Lovern's conduct.*fn5 Id. 121:6-15. As a result of this meeting, Defendant Sheriff Billingham referred the complaint to the Camden County Prosecutor's Office for investigation into whether criminal charges should be brought. Id. 131:14-18. Thereafter, Sheriff Billingham referred the matter to Internal Affairs, which investigated Plaintiff's allegations and ultimately brought administrative charges against Officer Lovern; he was disciplined with a short suspension, which he served by using some saved time off days. Billingham Dep. 69:5-8.
In October 2008, Chief Gorman informed Plaintiff that he was being transferred from the SIB to the Probation Department in Cherry Hill, which Plaintiff considered to be a less desirable position. Von Rhine Dep. 162:11-14.
According to the parties involved in the decision to transfer Plaintiff out of SIB, Plaintiff was chosen as a result of a performance ranking process that did not involve the subjective input of Defendant Fontanez. Defendant Sheriff Billingham indicated to Lieutenant Moore and Sergeant O'Donnell, the supervising officers in the SIB, that every year he wanted to transfer a few officers out of SIB and replace them with other officers in different departments, with the specific individuals to be transferred left up to Moore. Billingham Dep. 19:1-13. To that end, Billingham and Fontanez asked Moore to compile a list ranking the officers in the SIB from lowest to highest, as a way of indicating which officers would be easiest to lose and which would be hardest to lose. Moore Dep. 44:9:20 ("they asked me for my opinion if you were to lose anybody, who would you . . . Who would you rank -- if I had to transfer guys out, who would you prefer to stay.") Moore said that he and Sergeant O'Donnell concluded that Plaintiff and two other officers (Officer Mejias and Officer Fabian) were the three lowest ranked officers. Id. 44:3-8. Billingham described this process as being a recommendation of Moore, while Moore objected to the term "recommendation" but instead characterized it as merely ranking the SIB officers in response to his superiors' request, but not actively "recommending" that any specific officer be transferred. Billingham Dep. 77:9-24; Moore Dep. 44:13-14.
Then, Defendant Fontanez took this ranked list and presented two or three names from SIB (along with other departments) "that the commander [of SIB, Lieutenant Moore] felt he could spare" to Captain Gorman, who was tasked with selecting the officers to be transferred to staff the new Probation department in Cherry Hill. Gorman Cert. § 12. On this basis, Captain Gorman selected Plaintiff and Officer Mejas in October of 2008 to be transferred to Probation. Id. Sheriff Billingham approved the transfer of these two officers "because the commander thought that they [the transfers] were in the best interest of the bureau." Billingham Dep. 77:12-13.
Plaintiff testified that Captain Gorman told him, in October of 2008, that "it was Fontanez's decision, it was Fontanez transferring you . . . ." Von Rhine Dep. 172:15-17. Plaintiff also adduces evidence that an Officer Greenwood, assigned to some other department in the Sheriff's Office, at some unknown date perhaps as early as May of 2008, overheard parts of a conversation between Undersheriff Fontanez and another officer in which Fontanez indicated that people he did not like were going to be transferred out of SIB, and that he heard Fontanez start to list some names; at some unknown time later that same evening Greenwood heard Fontanez say Plaintiff's name. Greenwood Dep. 27:12-16. On the basis of this evidence, Plaintiff contends that his transfer was a result of retaliatory conduct by Undersheriff Fontanez and Sheriff Billingham based on his initial complaints surrounding the 2006 transfers and his subsequent complaints of harassment. Compl. ¶ 76-79.
Summary judgment is appropriate when the record shows that there is no "genuine dispute as to any material fact" and that "the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In establishing whether there is a disputed issue of material fact, the Court must view the evidence in the light most favorable to the nonmoving party. "The nonmoving party's evidence 'is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Anderson v. Liberty Lobby, Inc., 447 U.S. 242, 255 (1986)). The Court's role at this stage is "not . . . to weigh the evidence and to determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 447 U.S. at 249. However, the mere existence of a "scintilla of evidence" in support of the Plaintiff's position will be insufficient to defeat a motion for summary judgment; there must be evidence "on which the jury could reasonably find" for the Plaintiff. Id. at 252.
This standard requires the plaintiff to point to more than the mere existence of "some alleged factual dispute between the parties;" it requires that plaintiff point to some "genuine issue of material fact." Id. at 247-248. Only disputes over facts "that might affect the outcome of the suit under the governing law" constitute material facts sufficient to preclude the entry of summary judgment. Id. at 248 (referencing 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2725 (3d ed. 2912)). There is no issue for trial unless there is sufficient probative -- as opposed to merely colorable -- evidence favoring the non-moving party for a jury to return a verdict for that party. Id. at 249-50 (citing First Nat. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 288-90 (1968); Dombrowski v. Eastland, 387 U.S. 82, 87 (1967)).
The Court begins its analysis by reviewing Plaintiff's claims under § 1983, first considering the First Amendment free speech claim against Defendant Fontantez in Count I, and next turning to the First Amendment free speech claim against Defendant Billingham in Count VI. The Court will then consider the First Amendment free association claims against the individual Defendants in Counts V and VII. After considering the § 1983 individual liability claims, the Court will turn to Plaintiff's municipal liability claims against ...