The opinion of the court was delivered by: Hon. Jerome B. Simandle
This matter is before the Court on Defendants' motion to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) [Docket Item 6] and Plaintiff Sergeant George Marra's unopposed motion seeking leave to amend his Complaint pursuant to Fed. R. Civ. P. 15(a)(2) [Docket Item 8]. Plaintiff alleges that he was subject to adverse employment actions and that he was passed over for promotions in retaliation for testifying against the former Harrison Township Police Chief in a discrimination suit brought by a female police officer. The Amended Complaint voluntarily withdraws two counts, adds facts about Plaintiff's testimony and adds language to Count I, brought under the Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-1 et seq.
For the reasons explained below, the Court will grant the motion to amend in part, and deny in part, and deny the Defendants' motion to dismiss.
The facts of this case are drawn from Plaintiff Marra's proposed Amended Complaint.
Plaintiff is a Sergeant in the Harrison Township Police Department, where he has worked since 1992. [Am. Compl. ¶¶ 14-15.] In 2007, Christine Kemp, a fellow Harrison police officer, filed a civil lawsuit against Harrison Township alleging that Police Chief Frank Rodgers discriminated against her on the basis of gender and subjected her to sexual harassment and a hostile work environment. [Id. ¶¶ 19-20.] Upon learning that Plaintiff intended to testify on Kemp's behalf, Rodgers told Plaintiff: "You know, nobody here would ever do anything to hurt anyone personally or professionally and actually I am the only person that could do that." [Id. ¶ 21.]
Plaintiff was deposed in the lawsuit and testified that Rodgers told him, "I hope this thing with [Kemp] blows over. . . . [S]he is coming up on 40. She doesn't have any kids. She doesn't have a boyfriend. She is pre-menopausal. She is overly emotional and I hope this blows over." [Id. ¶ 23(a).] Plaintiff also testified that Rodgers (1) assigned Kemp to clerical duties to which male officers were not, (2) would "say to Kemp that she must be blonde under her dark roots," (3) would yell at Kemp in a way he did not at male employees, (4) would "make discriminatory statements about Kemp because she was Polish," and (5) would speak to Kemp in a condescending tone not used with male officers and "would remark that speaking to her was like speaking to one of his daughters." [Id. ¶ 23(b)-(f).]
Plaintiff asserts his loyalty to the department was questioned, and he was treated differently after giving testimony. [Id. ¶ 25.] His work rotation was changed, despite assurances that it would remain the same, and, as a result, Plaintiff was "unable to watch his stepdaughter" and his wife was forced to change her work schedule to care for the daughter. [Id. ¶¶ 26-27.] A patrolman was removed from Plaintiff's shift and not replaced, creating an allegedly "unsafe environment for the Plaintiff" and eliminating Plaintiff's ability to use "comp time." [Id. ¶¶ 28-29.] Plaintiff asserts that Rodgers instructed the lieutenant to call Plaintiff and harass him when he and the other officers were eating meals. [Id. ¶ 30.] As a result of this conduct, Plaintiff asserts that officers were less willing to work with him on his shift. [Id. ¶ 31.]
In 2011, Rodgers announced his retirement, and a committee was
established to evaluate job candidates and hire a replacement. [Id. ¶
33.] Plaintiff applied for the job. Defendants Mayor Louis Manzo,
Deputy Mayor Dennis Clowney, business administrator Carole Rieck,
Committeeman Donald Heim, and consultant David Undercuffler*fn1
served on the committee. [Id.
¶ 34.] Candidates were evaluated on the basis of their resume, a written test, an essay and an oral interview. [Id. ¶ 37.] Plaintiff asserts that, initially, one document showed his resume earned more points than that of fellow candidate patrolman Thomas Mills, but ultimately, Mills was awarded more resume points, despite the fact that Plaintiff had more experience and a higher rank than Mills. [Id. ¶¶ 38-40.] During his oral interview, Plaintiff cited his testimony against Rodgers as an example of his integrity. [Id. ¶ 41.] Before the hiring decision was made, Plaintiff asserts that Mayor Manzo stated, at an association meeting, "The department must come together. I am tired of lawsuits. If I have to sign one more check for stupid shit, I'm gonna lose my mind." [Id. ¶ 41.] The committee selected Mills as the new Police Chief. [Id. ¶¶ 42-43.]
Plaintiff was passed over for the position of Captain a few months later. [Id. ¶ 46.]
In his original Complaint, Plaintiff asserted four Counts against Defendants: (1) a violation of the Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19-1, which protects employees who blow the whistle on unlawful activity by their employers; (2) a violation of the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, brought under 42 U.S.C. § 1983; (3) a violation of the First and Fourteenth Amendments to the U.S. Constitution, also brought pursuant to § 1983, for retaliation in response to his testimony; and (4) a violation of Due Process rights under the New Jersey Constitution. [Compl. ¶¶ 48-64.] Plaintiff seeks injunctive relief, declaratory relief, damages, and costs and fees. [Id. ¶ 60.]
Defendants moved to dismiss all counts of the Complaint, under Rule 12(b)(6). [Docket Item 6.] In lieu of opposition, Plaintiff filed the present motion for leave to file an Amended Complaint, pursuant to Rule 15(a)(2). [Docket Item 8.] The Amended Complaint voluntarily withdraws Counts II and IV (the Due Process claims under the U.S. and New Jersey Constitutions)*fn2 , and adds facts about Plaintiff's deposition and adds key language to the CEPA claim.
Specifically, the Amended Complaint asserts additional facts to which Plaintiff testified against Rodgers, Am. Compl. ¶ 23(b)-(f), described above. The Amended Complaint also adds the following language to Count I (CEPA claim):
51. Despite threats from Rodgers and others, the Plaintiff objected to and/or refused to participate in illegal and/or wrongful activity conducted by the Defendants including but not limited to discriminating against ...