United States District Court, D. New Jersey
KEVIN MCNULTY, District Judge.
This action was brought by plaintiff Scott Turner, a former sergeant with the New Jersey State Police ("NJSP"), against several state agencies and officials. Turner claims that he was unlawfully punished after he filed grievances alleging that certain NJSP officials engaged in fraud and other forms of misconduct. Now before the Court are two motions: the first is a motion by Turner for an order to show cause why he should not be reinstated to his position and awarded damages (Dkt. No. 166); the second is a motion by all defendants to dismiss the complaint under Federal Rule of Civil Procedure 41(b), or, alternatively, to strike Turner's third supplemental pleading (Dkt. No. 182). For the reasons set forth below, Turner's motion is denied and the defendants' motion is granted in part and denied in part.
Alleged Retaliation against Turner
In June 2004, Turner served as the Unit Head of the Research and Innovation Unit at the New Jersey State Police Academy. (Am. Compl., Dkt. No. 21, 4: ¶ 1) In that capacity, he was responsible for ensuring that the NJSP's training programs complied with "consent decree mandates." (Id. at 4:¶2)
In October 2005, Turner says that he met with federal and state officials and "delivered his assessment that training compliance with the consent decree had not been sustained, particularly in regard to the search and seizure program and leadership programs." (Id. at ¶ 11) Thereafter, Turner claims, certain of the defendants pressured him to include false information in his "search and seizure reports" to make it appear as if there was "consent decree compliance." (Id. at 8: ¶¶ 19-21) On January 12, 2006, Turner reported that "fraud [was] taking place" at the police academy to the Office of Professional Standards." (Id. at 8: ¶ 22)
In March 2006, Turner states that he was "granted permission to review promotional documents" which showed that "his position in the promotional rankings pre and post monitors [sic] visit had changed." (Id. at 9: ¶¶ 27-28) He does not say which documents he specifically viewed, but he claims that they revealed that his eligibility for promotion had been adversely affected in some way. On March 17, 2006, Turner notified the Office of Professional Standards and complained that "his standing had been changed in the promotional rankings in retaliation for his statements to federal monitors" several months earlier. (Id. at 9: ¶ 30) In June 2006, Turner filed a grievance "for conduct violative of his labor contract and state policy." (Id. at ¶ 31)
On September 9, 2006, Turner was transferred to a new position: assistant head of the Training Support Unit. (Id. at 11: ¶ 40) This, he says, was effectively a demotion. He claims to have requested a lateral transfer-a transfer to a position equivalent to the one he held at the time-but was denied. (Id. at 11: ¶ 41) Turner claims that the reassignment was further retaliation for his comments to the federal monitors.
On September 26, 2006, the Office of Professional Standards notified Turner that it had found no evidence to substantiate his January complaint alleging that fraud had occurred the police academy. (Id. at 12: ¶ 51)
On October 2, 2006, Turner claims that defendant Lt. Matthew Wilson informed him that the Superintendent of the NJSP, defendant Joseph Fuentes, had reviewed and denied his June 2006 grievance. (Id. at 13: ¶ 47)
Between February and April 2007, Turner filed three additional complaints following what he perceived to be hostile and retaliatory actions by defendant Wilson and defendant Lt. Robert Dzoibak. ( See id. at 15: ¶¶ 60, 62; 16: ¶ 65; 17: ¶¶ 66-68) Turner describes these as "CEPA complaints"-a reference to the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J.S.A. § 34:19-1, et seq. Under CEPA, a civil action is the only mechanism to obtain relief. See N.J.S.A. § 34:19-5. It is unclear, however, whether Turner's three "complaints" were civil actions, or internal complaints that merely alleged that Turner had suffered the kind of retaliatory conduct prohibited by CEPA. Whether these complaints resulted in any action is unknown.
In December 2007, Turner was promoted to Unit Head of the Training Support Unit at the police academy. (Am. Compl., Dkt. No. 21, 18: ¶ 75) At this point in time, he says, he was "ranked #1 for promotion to Lieutenant in accordance with state police promotional criteria..." (Id. ) In February 2008, the NJSP released a list of officers to be promoted; Turner was not on the list. (Id. at 19: ¶ 80). Turner claims he was "not promoted to Lieutenant in retaliation for his previous whistle-blowing." (Id. at 19: ¶ 81)
NJSP Investigation and Turner's Dismissal
In April 2009, the NJSP began investigating Turner for violating its medical leave policy.
Sometime towards the end of 2008-the record does not disclose precisely when-Turner began taking medical leave. NJSP officers on medical leave are assigned to the Administrative Absence Unit. (Final Agency Decision ("FAD"), Dkt. No. 182-2, at 57) Officers assigned to that unit are scheduled to work from 9:00 a.m. through 5:00 p.m. and are required to be "at home or a place of recovery" during those hours. (Id. at 58) A Compliance Unit monitors the officers to ensure that they comply with these requirements. (Id. )
On April 2, 2009, an officer from the Compliance Unit conducted a compliance check at Turner's residence and discovered that he was not there. (Id.) An internal investigation was opened on April 27, 2009. During the course of the investigation, Turner disobeyed several orders to appear for interviews, and, on one occasion, was overheard on a recorded telephone line making disrespectful comments about defendant Fuentes-the NJSP's top-ranking official. (Id. at 59-61) The investigation ultimately found that Turner was attending classes at New York Law School when he was required to be home on medical leave. (Id. at 59) Although Turner did use ...