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Joseph Fredericks v. Township of Weehawken

November 15, 2012


The opinion of the court was delivered by: William J. Martini, U.S.D.J.:


Plaintiff Joseph Fredericks, a public employee, brings this whistleblower action against the Township of Weehawken ("the Township"), its Mayor, Richard Turner, and its Town Manager, James Marchetti (collectively "Defendants"). Fredericks alleges, inter alia, that his compensation was withheld after he submitted a certification in a separate civil rights case pending against these same Defendants. The certification describes a host of illegal actions on the part of Mayor Turner. Fredericks brings claims under the New Jersey Conscientious Employee Protection Act ("CEPA"), 42 U.S.C. § 1983, and the New Jersey Civil Rights Act. Defendants move to dismiss all claims pursuant to Federal Rule of Civil Procedure 12(b)(6). There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendants' motion is GRANTED in part and DENIED in part.


On October 23, 2008, Police Lieutenant Richard DeCosmis filed a civil rights lawsuit against the Township of Weehawken ("the Township") and its mayor, Richard Turner. Town Manager Marchetti was subsequently added as a plaintiff. On September 20, 2010, DeCosmis filed a brief attaching the sworn certification ("the Certification") of Joseph Fredericks, Tax Collector of Weehawken and Plaintiff in the instant suit. See Certification of Joseph Fredericks, DeCosmis v. Weehawken, Civ. No. 8-5221 (D.N.J. Sept. 20, 2010), ECF No. 45-1. The Certification portrays Mayor Turner as a behind-the-scenes power-broker who exerts improper influence on Township governance. Worse, the Certification alleges that Mayor Turner has knowingly ordered the assessment of illegally high taxes. Certification ¶¶ 6, 8. It further states that Town Manager Marchetti has been unable or unwilling to act on Fredericks's complaints about the Mayor. Id. ¶ 9.

Fredericks claims that just weeks after he signed the Certification, he fell victim to six acts of retaliation. First, he learned that he could not go to one educational seminar and that his voucher for another seminar had been withdrawn. The Township had supported his attendance at both events for roughly 15 straight years. Second, Fredericks was denied promised back-pay for certain tax-abatement work. Third, he was passed over for a raise he was entitled to as a matter of law.*fn2 Fourth, Fredericks was told to route all of his communications through the Township's CFO. Fifth and sixth, his compensation was threatened by Town Manager Marchetti on two separate occasions.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501 (1975); Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998).

Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement' . . . it asks for more than a sheer possibility." Id.

"In evaluating motions to dismiss, courts consider 'allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim.'" Banco Popular v. Ghandi, 184 N.J. 161 (2003) (citing Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir.), cert. denied, 543 U.S. 918, (2004)). A document forms the basis of a claim if the document is "integral to or explicitly relied upon in the complaint." Lum, 361 F.3d at 222 n.3 (citing Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)); see also Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) ("[D]ocuments whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered."). Though Fredericks failed to attach the Certification to his Complaint, the Court will nevertheless consider it. That document is both integral to the Complaint and explicitly relied upon by the Complaint. Most obviously, it is the speech for which Fredericks alleges retaliation. See Compl. ¶¶ 9, 10, ECF No. 1. The Defendants here are all parties in the DeCosmis litigation, and they are unquestionably familiar with this document.


Fredericks filed a five count Complaint. Count I is a whistleblower claim under the New Jersey Conscientious Employee Protection Act ("CEPA"). Counts II and III are 42 U.S.C. § 1983 claims alleging violations of Fredericks's First Amendment rights. Counts IV and V are claims under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2, alleging violations of the New Jersey Constitution's rights to speech and to petition the government for redress of grievances. For the reasons set forth below, the motion to dismiss is GRANTED in part and DENIED in part.

Before turning to the respective Counts, the Court pauses to address two issues raises by Defendants. First, Defendants correctly point out that Fredericks may not pursue punitive damages against the Township under Section 1983. Newport v. Fact Concerns, Inc., 453 U.S. 247, 271 (1981). Second, Defendants argue that by filing a CEPA claim, Fredericks waived his state law claims for hostile work environment and infliction of emotional distress. Defs.' Br. 7.

Fredericks's opposition clarifies that he is not alleging any independent claims for hostile work environment and infliction of emotional distress.

A.CEPA (Count 1)

CEPA is a whistleblower statute. "Its purpose is to protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct." Abbamont v. Piscataway Township Bd. of Educ., 138 N.J. 405, 431 (1994). The Supreme Court of New Jersey describes CEPA as "remedial legislation" meant to be construed ...

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