United States District Court, D. New Jersey
KEVIN MCNULTY, U.S.D.J.
plaintiff in this action is Scott Turner, formerly a sergeant
with the New Jersey State Police ("NJSP"). Turner
contends that during his tenure he was subjected to unlawful
retaliation after refusing to participate in fraud and other
forms of misconduct in connection with the implementation of
a Consent Decree. He has brought this action against a host
of state agencies and officials. He asserts claims under the
federal and state constitutions; the Conscientious Employee
Protection Act ("CEPA"), N.J. Stat. Ann. §
34:19-1 et seq.; the New Jersey Law Against
Discrimination ("NJLAD"), N.J. Stat. Ann. §
10:5-1 etseq.; Intentional Infliction of Emotional
Distress; Negligence; Tortious Interference with a Contract;
the National Labor Relations Act ("NLRA"), 29
U.S.C. § 8(b)(1)(A); the Federal Family and Medical
Leave Act ("FMLA"), 29 U.S.C. § 2615; the New
Jersey Family Leave Act ("NJFLA"), N.J. Stat. Ann.
§ 34:1 lb-1 et seq.; and the Racketeer
Influenced Corrupt Organizations Act ("RICO"), 18
U.S.C. §§ 1961, 1962(b)-(d), and § 1964.
(Compl., Counts 1-14) The NJSP agreed to the Consent Decree in
question in 1999 following a 1998 highway traffic stop during
which NJSP troopers wounded three unarmed black men while
shooting at their van. Under the Consent Decree, federal monitors
oversaw an overhaul of NJSP training and supervisory
practices and policies and tracked traffic stops for signs of
racial profiling. The Consent Decree was a stunning success.
By 2007, the NJSP "appear[ed] to have reached a
watershed moment" during which "[a]mple evidence
exist[ed] that the agency ha[d] become self-monitoring and
self-correcting to a degree not often observed in American
law enforcement." Independent Monitors' Sixteenth
Report, USA v. State of New Jersey,
3:99-cv-05970-MLC-JJH, ECF no. 93, at 105. After several
years of consistent compliance, the United States Justice
Department and the State filed a joint motion to dissolve the
Consent Decree, and, on September 21, 2009, Judge Mary L.
Cooper signed an order terminating the decree. USA v.
State of New Jersey, 3:99-cv-05970-MLC-JJH, ECF no. 111.
before the Court is Defendants' motion for summary
judgment as to all counts. (ECF no. 211) For the reasons set
forth herein, Defendants' motion is granted as to all
case has a tortuous nine-year procedural history. Turner has
attempted to file nine amended complaints and several
supplemental pleadings, and the case has been assigned to
three different district court judges and four different
magistrate judges. Some, though not all, of that history is
summarized in my opinion on a prior motion. (See ECF
no. 187) Here, I will focus on the procedural facts most
pertinent to this motion.
commenced this action by filing his original complaint on
October 20, 2008. (ECF no. 1) Turner's attorney withdrew
from the case on December 11, 2009. (ECF No. 20) Although
Turner has proceeded pro se since that date, since
2010 he has been an attorney licensed to practice in the
State of New York.
March 29, 2010, then-Magistrate Judge Madeline Arleo entered
a text order (ECF no. 30) striking all of the amended
complaints except the one most recently filed. That amended
pleading (ECF no. 21), the order said, would be designated as
Turner's second amended complaint and would be deemed
filed as of the date of the order. Although Turner
subsequently attempted to file three supplemental pleadings
(ECF nos. 145, 164, and 178), each was struck for failure to
comply with specific orders of the Magistrate Judge. On April
22, 2015, I ordered that "no further complaints or
supplemental pleadings will be filed." (Order, ECF no.
188) The Second Amended Complaint, deemed filed on December
28, 2009 (ECF no. 21, referred to herein as the
"Complaint"), is therefore the currently operative
pleading in this case. Finally, on March 11, 2016, Defendants
filed the motion for summary judgment (ECF no. 211) that is
now before the Court.
The Parties' Submissions on Summary Judgment
briefs and the statements of material facts submitted
pursuant to Local Rule 56.1 in many respects fail to present
clearly the issues genuinely in dispute. For that failure to
join issue, there is some fault on both sides.
do meticulously cite to the record. Certain of their grounds
for simply writing off Turner's affidavit (and attached
exhibits), however, are patently inadequate.
Defendants argue that the Court should not consider
Turner's affidavit because it lacks a statement, under
penalty of perjury, that the document's contents are true
and correct, as required by 28 U.S.C. § 1746. (Def.
Reply 2) At most, this would be a formal defect; remediation,
if necessary, could easily be sought through a telephone call
between counsel or, failing that, a conference with the
Magistrate Judge. Defendants could perhaps be forgiven for
being picayune if they were correct, but they are not.
Section 1746 merely provides that where a sworn affidavit is
required, an unsworn declaration may be substituted
"with like force and effect." Turner's
submission, however, is a sworn declaration-an affidavit, in
and more plausibly, Defendants note that in some places
Turner's affidavit does not conform to Local Civil Rule
7.2(a), which states:
Affidavits . . . shall be restricted to statements of fact
within the personal knowledge of the signatory. Argument of
the facts and the law shall not be contained in such
documents. Legal arguments and summations in such documents
will be disregarded by the Court and may subject the
signatory to appropriate censure, sanctions or both.
are not wrong to identify several argumentative paragraphs.
(Def. Reply 3) Again, however, Defendants exceed the bounds
of the reasonable in asserting that Plaintiffs entire
opposition must be struck, leaving them the victors. Unless
it is simply impractical to do so, a "court will
disregard only the inadmissible portions of a challenged
affidavit and consider the rest of it." 10B C. Wright 8s
A. Miller, Federal Practice and Procedure § 2738 (4th
ed.) (citing Dickheiserv. Pennsylvania R. Co., 5
F.R.D. 5, 7 (E.D. Pa. 1945), affd, 155 F.2d 266 (3d
Defendants urge that the Court disregard paragraphs of the
affidavit that are "either a verbatim recitation or
summary of certain paragraphs contained in the . . .
Complaint." (Def. Reply 3-4) It is of course true that,
in opposing a motion for summary judgment, the non-moving
plaintiff cannot rest on the unsworn allegations of the
complaint. Rather, that party must submit evidence sufficient
to demonstrate the existence of a genuine, material issue of
fact. See Celotex Corp., v. Catrett, 477 U.S. 317,
324, 106 S.Ct. 2548 (1986).
a rule of proof, not prosody; it does not mean that a
plaintiff, in his affidavit, must find new ways to phrase
facts already described in the complaint. Turner's
Complaint is not verified, and I do not consider it as
evidence. I do, however, consider Turner's
affidavit. The statements in the affidavit are not
disqualified by virtue of their overlapping the allegations
of the complaint.
be outdone, Turner attempts to preclude the Defendants from
citing and relying on excerpts of his own deposition
testimony. (Def. Mot. Ex. I) Turner objects that when he
requested a copy of the transcript from Defendants, they told
him to purchase his own, which he says he cannot afford to
do. (PI. Facts ¶ 52) Even assuming Turner is insolvent,
which I do not,  I am not aware of his ever having applied
to proceed in forma pauperis. Nor does it seem
rational or equitable to deny a defendant the right to rely
on a plaintiffs sworn deposition.
makes the more focused objection that the Defendants cited
certain portions of his deposition in their moving brief, but
failed to attach the relevant transcript excerpts. Defendants
acknowledge the lapse, and have responded by submitting the
omitted transcript excerpts with their reply brief as Exhibit
2. Their citations and quotations can now be checked for
accuracy. Turner has not sought leave to contest or respond
to anything contained in those excerpts. Seeing no procedural
unfairness, I therefore will not exclude those portions of
his deposition from consideration.
own citations to the record in some cases fail to support his
assertions, and in other cases are so general as to be
unhelpful. That is particularly true of Turner's
Statement of Material Facts. I consider the allegations
therein, however, to the extent I can trace them to the
evidence of record.
addition, Turner claims that the factual assertions in his
RICO case statement, see Loc. Civ. R. App'x O,
constitute proof because the Defendants "do not
deny" them. (Turner Aff. ¶ 93) I disagree. This
District's Local Rules do not require a responsive
pleading to a RICO case statement.
this is prologue to my saying that I have concentrated on
Turner's Statement of Material Facts and Affidavit, and
have examined the record in search of evidentiary support. I
have resorted to the Complaint, RICO Case Statement, and
other filings to establish the context of Turner's
28, 1988, Scott Turner enlisted in the NJSP. (PI. Facts
¶ 30) In December 1999, the United States and the State
of New Jersey entered into a Consent Decree to settle
allegations that the NJSP had engaged in a practice of
racially discriminatory traffic stops. Consent Decree,
United States v. State of New Jersey,
3:99-cv-05970-MLC-JJH, ECF no. 5 (D.N.J. December 29,
1999);see also PI. Opp. Ex. 1 (joint
application for the Consent Decree). Pursuant to the terms of the
Consent Decree, an independent monitoring team was appointed
to "monitor and report on the State's implementation
of th[e] Decree." Some of the provisions, or
"tasks, " of the Consent Decree concern NJSP
training. (Consent Decree ¶¶ 93-109) The Consent
Decree remained in effect until 2009, when it was dissolved
by order of the Hon. Mary L. Cooper, United States District
about June 26, 2004, Turner was assigned to the NJSP Academy
("Training Bureau") as head of the Research and
Innovation Unit ("RIU"). (Def. Facts ¶ 1; PI.
Facts ¶ 32) Turner's responsibilities included the
"oversight and evaluation of state police training
compliance with [N]SP] and Consent Decree mandates."
(Def. Facts ¶ 2) In his capacity as Unit Head, Turner
supervised a staff of auditors and researchers assigned to
monitor and evaluate compliance. (PL Facts ¶ 34) He
"reported to the commanding officer, attended Training
Bureau and Human Resource Section meetings, delivered
presentations within and without the bureau on compliance and
research issues, published compliance reports and offered his
assessment of Consent Decree compliance to the Independent
Monitors, other Unit Heads, lawyers for the Office of State
Police Affairs, and the Independent Monitors." (PL Facts
December 20, 2004, and September 2007, Independent
Monitors' Reports found that NJSP was in compliance with
the Consent Decree's terms. (Def. Mot. Ex. B) Turner
asserts that during this period the Training Bureau was not
in fact compliant at all times, particularly in regard to a
search and seizure training program. (Turner Aff. ¶ 24)
According to Turner, starting in September 2005, he was
pressured by certain defendants to change his assessment when
reporting to the monitors. When Turner refused, defendant
Thomas Flarity allegedly responded with a threat, asking
Turner if he "thought [he] was God" and warning
Turner that if he persisted in his assessment he "would
stand alone." (Turner Aff. ¶¶ 27-29)
Defendants, on the other hand, characterize the situation as
a difference of opinion; Turner, they say, had no basis for
any belief that reports to the monitors were fraudulent or
that the training programs were noncompliant. (Def. Mot. 41)
met with the monitors in October 2005. (Turner Aff. ¶
30) At the meeting he described to the monitors his view on
the Training Bureau's "current state of
affairs." Turner did not report to the monitor
that there was noncompliance. Rather, he says, the monitor
told him that the data reporting was
incomplete. According to Turner, following this
meeting he was instructed to generate reports with positive
evaluations of compliance. (Turner Aff. ¶¶ 37, 40)
Turner also asserts that he was repeatedly retaliated against
for not participating in the "fraud" taking place
at the Training Bureau. The NJSP officials most directly
involved in the alleged retaliation were Matthew Wilson,
Robert Dziobak, and Thomas Flarity. NJSP Superintendent
Joseph Fuentes is also alleged to have been directly involved
in retaliatory decisions relating to promotion and demotion.
relates many acts of alleged retaliation between September
2005 and September 2006. In November 2005, four NJSP members
were promoted, but Turner was passed over. That occurred
despite Turner's having been ranked third in line for a
promotion around July 2005. (Turner Aff. ¶¶ 26, 35,
49) Also in November 2005, Wilson warned Turner several times
to "be careful in the future." (Id. ¶
36) In December 2005, Turner was berated at length by
Flarity, who said Turner might have "outlived [his]
usefulness." (Id. ¶ 37)
September 2006, Wilson issued Turner a Performance Notice for
being out of the office during duty hours (Turner says he was
on vacation leave); asked Turner if he "wanted a
transfer"; and told Turner that he "wanted [Turner]
to know where he was coming from." [Id.
¶¶ 52-54) Also in September 2006, Wilson informed
Turner that, pursuant to a reorganization of the entire
Training Bureau, Turner's unit was being dissolved and he
would be demoted from Unit Head to Assistant Unit Head in
another unit. Of approximately 50 troopers affected by the
reorganization, Turner was allegedly the only one to
experience a demotion or change in position title.
[Id. ¶ 56. Turner states this as a fact in his
affidavit, but offers no particulars or supporting evidence.)
At the end of September 2006, Wilson filed a reportable
incident form stating that Turner may have misrepresented
facts when he told Wilson that he had not received a response
to a labor grievance he had filed. (Id.
¶¶ 57-61; Def. Mot. Ex. P) Turner was also passed
over for promotion in 2006. (Turner Aff. ¶¶ 63, 67)
November 2006, Turner testified publicly in Trenton before
the Governor's Advisory Committee on Police Standards
("GACPS"). He does not supply a copy of his
statements, but says they related to his "concerns
relating to lifting the Consent Decree and corruption within
the Office of Attorney General and State Police."
(Id. ¶ 64)
in January 2007, Wilson and Dziobak threatened a new internal
affairs investigation against Turner for stating in a
report that "no assessment had been
conducted]." This, Turner admits, seems to have been
nothing more than their misunderstanding of the definition of
a particular kind of assessment, a "needs
assessment." (Id. ¶ 68) Also in January
2007, Wilson allegedly counseled Turner (or issued a
counseling notice) for failing to attend mandatory pistol
shoot training. Turner attributes his absence to being on
sick leave. (Id. ¶ 71) However, according to
Wilson's log entry, Turner's failure to fulfill the
requirement was unrelated to his sick leave. (Def. Mot. Ex.
S) Then, in May 2007, Dziobak called Turner "weird,
" and "threatened [him] with
charges." (Id. ¶ 73)
December 2005 and sometime in 2007, Turner filed or orally
reported many "retaliation" or
"misconduct" complaints and "grievances"
against Flarity, Wilson, and Dzioback. (Id.
¶¶ 38, 41, 49, 55, 57, 70-71, 73-74) According to
Turner some of these complaints were not investigated.
(Id. ¶¶ 55, 70) Sometime in 2007,
Wilson's attorney threatened legal action against Turner
if he did not stop filing complaints against Wilson.
(Id. ¶ 74)
in 2007, Turner was promoted to Acting Lieutenant. (Def.
Reply Ex. 5 at 295:1-4) Then, on July 7, 2008, Turner was
placed on temporary off duty status. (Def. Facts ¶ 14)
On July 24, 2008, Captain Robin Blaker completed a
performance notice explaining that Turner was
"non-compliant with the provisions of [N]SP physical
fitness regulations] and therefore subject to the sanctions
stated therein." (Def. Facts ¶ 16; Def. Mot. Ex.
G). On October 23, 2008, Captain Blaker
completed an intervention narrative noting Turner's
non-compliance with the physical fitness regulations and
recording that Turner had been advised, via a letter mailed
on October 10, 2008, "of his removal from his
out-of-title Unit Head position effective October 25,
2008." (Def. Mot. Ex. H)
April 2009, the NJSP began investigating Turner for violating
its medical leave policy-essentially, for claiming injury but
failing to be either at home or a "place of
recovery" as required by department policy. See
Turner v. New Jersey State Police, No. 08-CV-5163 KM,
ECF no. 187, 2015 WL 1850001, at *2-3 (D.N.J. Apr. 22, 2015).
Among other things, Turner was allegedly seen in proximity to
New York Law School, where he was then enrolled, in April
2009. This set in motion a series of events leading to a
final administrative order of dismissal in December 2014.
Id. That investigation and subsequent events largely
post-date the matters raised in this federal action. They
were raised in Turner's State case, however. There, they
are the subject of an appeal recently decided by the
Appellate Division of the New Jersey Superior Court, which
remanded the matter to the Office of Administrative Law for
findings as to NJSP's compliance with procedural timing
requirements and, if necessary, consideration of the merits.
In re Matter of Turner, No. A-2479-14T4, 2016 WL
6311240, at *6 (N.J.Super.Ct.App.Div. Oct. 28, 2016).
Summary Judgment Standard
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505 (1986); Kreschollek v. S.
Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe
all facts and inferences in the light most favorable to the
nonmoving party. See Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986).
"[W]ith respect to an issue on which the nonmoving party
bears the burden of proof ... the burden on the moving party
may be discharged by 'showing'-that is, pointing out
to the district court-that there is an absence of evidence to
support the nonmoving party's case."
Celotex, 477 U.S. at 325.
the moving party has met that threshold burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S.Ct. 1348 (1986). The
opposing party must present actual evidence that creates a
genuine issue as to a material fact for trial.
Anderson, 477 U.S. at 248; see also Fed. R.
Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that
genuine issues of material fact exist). "[Unsupported
allegations . . . and pleadings are insufficient to repel
summary judgment." Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990);
see also Gleason v. Norwest Mortg., Inc., 243 F.3d
130, 138 (3d Cir. 2001) ("A nonmoving party has created
a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial."). If the nonmoving party has failed "to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial, . . . there can
be 'no genuine issue of material fact, ' since a
complete failure of proof concerning an essential element of
the nonmoving parly's case necessarily renders all other
facts immaterial." Katz v. Aetna Cas. & Sur.
Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting
Celotex, 477 U.S. at 322-23).
pro se litigant is ordinarily entitled to
considerable leeway. See Niblack v. Murray, No.
CV126910MASTJB, 2016 WL 4086775, at *1 n.l (D.N.J. July 29,
2016) (citing Pratt v. PortAuth. of N.Y.& N.J.,
563 F.App'x 132, 134 (3d Cir. 2014) ("[B]ecause [the
plaintiff] is proceeding pro se, we will construe his brief
liberally."); Marcinek v. Comm'r, 467
F.App'x 153, 154 (3d Cir. 2012) (holding that courts are
"under an obligation to liberally construe the
submissions of a pro se litigant")). Attorney pro
se litigants are not accorded the same consideration as
pro se litigants who lack substantial legal
training. Kenny v. United States, No. CIV 08-3921
GEB, 2009 WL 276511, at *8 (D.N.J. Feb. 5, 2009) (Brown,
C.J.) ("[T]his pro se Plaintiff is an attorney, and
therefore, has substantial legal training and professional
experience, undermining the rationale set forth by the
Supreme Court in Haines v. Kemer, 404 U.S. 519, 92
S.Ct. 594, 30 L.Ed.2d 652 (1972).") (citing Allen v.
Aytch, 535 F.2d 817, 821 n. 21 (3d Cir. 1976) (stating
that a third year law student who drafted a complaint had
"substantial legal training" and therefore
declining to construe the complaint liberally)).
case is an unusual hybrid. Turner was represented by an
attorney in 2008, when he filed the Complaint. The attorney
withdrew in 2009, and Turner proceeded pro se. At
that time, Turner must have been close to completion of his
legal education, because fairly soon thereafter, he became a
licensed attorney himself. In 2016, when Turner filed his
opposition to summary judgment, he had been a licensed
attorney for five or six years. Turner's summary judgment
affidavit relates that he has represented clients accused of
racketeering and other crimes. (Turner Aff. ¶¶5, 7)
In representing others, he would be held to the standard of
an attorney, so it is not unfair to hold him to the same
standard when representing himself. All told, this is not a
case requiring the kind of leniency shown, for example, a
prisoner plaintiff. I nevertheless have examined the record
of the case to determine whether a triable issue is
presented. See Fed. R. Civ. P. 56(c)(3).
advance of any count-by-count analysis of Turner's causes
of action, some initial pruning is in order. After nine years
of litigation, there has apparently been little or no
narrowing of the issues, even to eliminate obviously
threshold, it is clear that certain claims as to certain
defendants lack sufficient support to go forward. I first
dismiss Counts 5 and 7, which Turner does not seem to be
pressing (Section III.A). I then dismiss certain defendants
altogether on Eleventh Amendment grounds (Section III.B).
Next I dismiss four more individual defendants against whom
no significant allegations are made (Section III.C). That
leaves ten individual defendants, sued in their personal
capacities. As to them, I review the sufficiency of the
allegations and evidence (Section IV).
Withdrawn Claims (Counts 5 and 7)
interrelated fifth and seventh causes of action of the
Complaint, Turner alleges that Defendants' actions
constitute both tortious interference with a contractual
relationship and violations of the National Labor Relations
Act ("NLRA"). Turner at one point stated that he
voluntarily withdrew these claims, although there is no order
to that effect. (Plaintiffs Brief in Opposition to
Defendant's Motion for Judgment on the Pleadings, ECF no.
132, at 13) ("Plaintiff voluntarily withdraws his NLRA
and interference with contract claims.") Defendants
argue that this Court lacks subject matter jurisdiction over
these issues. (Def. Mot. 20-22) Turner offers no response,
confirming that he is not pressing these claims.
these reasons, I will grant summary judgment for Defendants
on Counts 5 and 7.
Eleventh Amendment/Sovereign Immunity
argue that all of Turner's claims, except those asserted
against individual defendants in their personal capacities,
are barred by the Eleventh Amendment. (Def. Mot. 26-28) I
Eleventh Amendment to the Constitution guarantees the
states' immunity from certain claims: "The Judicial
power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State." U.S. Const,
amend. XI. Despite the limited scope of its wording, for over
a century the Eleventh Amendment has been held to incorporate
a more general principle of sovereign immunity that bars
citizens from bringing suits for damages against any state in
federal court. Pennhurst State School &
Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct.
900 (1984); Kelley v. Edison Twp., No. 03-4817, 2006
WL 1084217, at *6 (D.N.J. Apr. 25, 2006) (citing Bennett
v. City of Atl. City, 288 F.Supp.2d 675, 679 (D.N.J.
2003)); see also Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 54, 116 S.Ct. 1114 (1996);
Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct.
1347 (1974); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct.
result, the sovereign immunity conferred by the Eleventh
Amendment "is a jurisdictional bar which deprives
federal courts of subject matter jurisdiction" over
states that have not consented to suit. Blanciak v.
Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2 (3d Cir.
1996) (citing Halderman, 465 U.S. at 98-100, 104
S.Ct. 900). This immunity extends to private suits against
"state agencies, departments, and officials when the
state is the real party in interest." Pennsylvania
Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297
F.3d 310, 323 (3d Cir. 2002) (quoting Alden v.
Maine, 527 U.S. 706, 751, 119 S.Ct. 2240 (1999));
see also Antonelli v. New Jersey, 310 F.Supp.2d 700,
712 (D.N.J. 2004) (noting that "[s]overeign immunity is
routinely extended to state agencies and state officials
acting in their official capacities where it is show that the
state is the real, substantial party in interest"),
affd, 419 F.3d 267 (3d Cir. 2005).
defendant here, of course, is the State of New Jersey itself.
The plaintiff also sues the NJSP, the Department of Law 85
Public Safety, the Office of the Attorney General, the Office
of State Affairs, and the Office of State Police Affairs,
which are all state agencies or departments. (I will refer to
these defendants collectively as the "State
Defendants".) Those State Defendants are immune from
suit in federal court under the Eleventh Amendment. The
individual defendants sued in their official capacities are
all current or former employees of the State Defendants. To
the extent they are sued in their official capacities, these
individual defendants, too, partake of the State's
Eleventh Amendment immunity. (See Compl.,
Jurisdiction, ¶¶ 7-22) Turner does not really argue
Turner contends that Defendants waived Eleventh Amendment
immunity by consenting to suit in federal court.
"Defendants, via their counsel [Deputy Attorney General
("DAG")] Rizzo, made a clear declaration to
Plaintiff through his counsel, that defendant(s) intended to
submit to this Court's jurisdiction . . . which was
reported by [Turner's erstwhile attorney, Herbert J.] Tan
in a letter to this Court." (PL Opp. 12) That letter,
dated August 25, 2009, says nothing resembling Turner's
conclusory paraphrase of it. Tan states only that "[i]n
my conversation with Deputy Attorney General Vincent Rizzo,
around the middle of July, he stated that he plans o[n]
filing a motion related to the federal matter but has done
nothing in the interim." (Letter to Judge Wigenton,
August 25, 2009, ECF no. 13)
true that a state may be deemed to have waived its Eleventh
Amendment immunity from suit in federal court if it
"voluntarily invokes" federal jurisdiction or
"makes a 'clear declaration' that it intends to
submit itself to [federal court] jurisdiction."
Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 676, 119 S.Ct. 2219, 2226
(1999). Turner's argument, however, does not comport with
precedent or reason. A government attorney's statement in
conversation that he "plans o[n] filing a motion"
in the federal action is not a waiver of sovereign immunity;
indeed, it may amount to a statement of intent to
assert sovereign immunity, as indeed the State has
defendant may waive its Eleventh Amendment "forum
immunity" by conduct-most commonly, by removing a state
court action to federal court. See, e.g., Lombardo v.
Pennsylvania, Dep't of Pub. Welfare, 540 F.3d 190
(3d Cir. 2008). At oral argument, Turner seemed to indicate
that the State acquiesced in his plan to drop the state
action and proceed in federal court. That does not amount to
a clear waiver. The plaintiff chose this federal forum. The
State does not waive its Eleventh Amendment immunity by
filing, or stating an intent to file, a motion in response.
Turner's theory cannot account for the many cases in
which states routinely invoke, and are granted, Eleventh
Amendment immunity by filing motions to dismiss on
jurisdictional grounds, pursuant to Fed.R.Civ.P. 12(b)(1).
See, e.g., Blanciak, 77 F.3d at 694 n.2
(defendant's Eleventh Amendment objection on summary
judgment "may properly be considered a motion to dismiss
the complaint for lack of subject matter jurisdiction under
claims against the State entities and the individual
defendants in their official capacities must be dismissed;
the Eleventh Amendment bars their assertion in federal
court. Because defendants Jackson, Farber,
Rabner, and Milgram were sued in their official capacities
only (Compl., Jurisdiction, ¶¶ 19-20), all counts
against them are dismissed.
Lack of Relevant Evidence as to Four Defendants
consider, then, whether the remaining fourteen individual
defendants sued in their personal capacities are entitled to
summary judgment. Each count of the Complaint seems to be
asserted against all defendants. This group pleading
sometimes makes it difficult to ascertain which allegations
apply to whom. As to four of these defendants, however,
the record contains insufficient evidence of liability under
any theory pled. Those four dismissable defendants are
Torres,  Giaquinto,  Quinoa,  and
Hackett. As to them, summary judgment is granted.
roster of defendants, then, is reduced to ten: Flarity,
Wilson, Dzioback, Olcheski, White, Fuentes, Meddis, Brown,
Cuneo, and Gilbert. The term "Defendants, " as used
in the remainder of this Opinion, refers to these ten, all
sued in their personal capacities only.
Analysis of Remaining Counts and Defendants
each of the remaining defendants, ten individuals sued in
their personal capacities, I consider whether there is a
genuine dispute of material fact as to each cause of action.
Because the briefing is not always clear, I return to the
Complaint (except the withdrawn Counts 5 and 7) to define the
causes of action being asserted. To the extent practicable, I
have organized the discussion of claims thematically:
Section IV.A CEPA Retaliation (Count 2)
Section IV.B First Amendment Retaliation (Count 8)
Section IV.C-D Other constitutional claims (Counts 1, 12)
Section IV.E-G NJLAD (Counts 11, 3, 6)
Section IV.H-I Federal and N.J. Family Leave Acts (Counts 9,
Section IV.J-K Civil RICO, RICO Conspiracy (Counts 13, 14)
Section IV.L State common law torts (Count 4)
Section IV. M Supervisory liability
CBPA Retaliation (Count 2)
Turner's many claims, this one perhaps best fits the
factual allegations. In Turner's second cause of action,
he alleges that Defendants violated the Conscientious
Employee Protection Act ("CEPA"), N.J. Stat. Ann.
§ 34:19-1 et seq., by subjecting him to "a
pattern of retaliation and misconduct in the workplace based
in part or in whole on his refusal to participate in
misconduct or discrimination or engage in or conceal
fraud." (Compl., Count 2, ¶ 2) I conclude that
Count 2 does not survive a summary judgment challenge as a
matter of law.
protects employees who engage in certain protected
whistleblowing activities from "retaliatory action"
by their employers. N.J. Stat. Ann. § 34:19-3. With
regard to a prima facie case of retaliation under CEPA, the
Third Circuit has extracted from the New Jersey case law four
essential elements: "(1) [the employee] reasonably
believed her employer was violating a law or rule; (2) she
performed a protected whistleblowing activity; (3) an adverse
employment action was taken against her; and (4) there is a
causal connection between the whistleblowing activity and the
adverse action." Fraternal Order of Police, Lodge 1
v. City of Camden, 842 F.3d 231, 240 (3d Cir. 2016); see
also Blackburn v. United Parcel Serv., Inc., 179
F.3d 81, 92 (3d Cir. 1999) (quoting Kolb v. Burns,
320 N.J.Super. 467, 476, 727 A.2d 525 (App. Div. 1999)).
protects three different categories of
"whistleblowing" conduct. They are: (1) disclosing,
or threatening to disclose, (2) providing information or
testifying about, or (3) objecting to or refusing to
participate in certain wrongful activities. N.J. Stat. Ann.
defines a "retaliatory action" as "the
discharge, suspension or demotion of an employee, or other
adverse employment action taken against an employee in the
terms and conditions of employment." N.J. Stat. Ann.
§ 34:19-2(e). Some courts have held that the
employer's action must either affect the employee's
compensation or rank, or "be virtually equivalent to
discharge." Klein v. Univ. of Med. &
Dentistry of New Jersey, 377 N.J.Super. 28, 871 A.2d
681, 691 (App. Div. 2005). See also Caver v. City of
Trenton, 420 F.3d 243, 249 (3d Cir. 2005) (quoting same
language). Other cases, with which I agree, have taken a
broader view. Examples of actionable retaliatory conduct have
included suspensions, demotions, changes to the length of the
workday, changes in salary, hours, fringe benefits, or
"physical arrangements and facilities, " and
altered "promotional procedures." Beasley v.
Passaic County, 377 N.J.Super. 585, 873 A.2d 673, 685-86
(App. Div. 2005). See also Smith v. Twp. OfE.
Greenwich, 519 F.Supp.2d 493, 511 (D.N.J. 2007)
affd, 344 F.App'x 740 (3d Cir. 2009), as amended
(Nov. 3, 2009) (quoting same language). In addition, a
pattern of retaliation-by analogy to a Title VII hostile work
environment-may comprise a series of less serious actions:
"[M]any separate but relatively minor instances of
behavior directed against an employee may combine to make up
a pattern of retaliatory behavior." Maimone v. City
of Atl. City, 188 N.J. 221, 903 A.2d 1055, 1064 (2006)
(internal quotations omitted).
claims are subject to the familiar McDonnell Douglas
burden-shifting analysis. Winters v. N. Hudson Reg'l
Fire & Rescue, 212 N.J. 67, 90, 50 A.3d
649, 662 (2012) (stating that Grigoletti v. Ortho Pharm.
Corp., 118 N.J. 89, 97, 570 A.2d 903 (1990) adopted the
framework for Title VII disparate treatment claims stated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817 (1973) to CEPA claims). Under this test, the
employee carries the initial burden of establishing a prime
facie case of retaliation. Winters, 212 N.J. at 90,
50 A.3d at 662 (citing McDonnell Douglas, 411 U.S.
at 802, 93 S.Ct. 1817). The burden then shifts "'to
the employer to articulate some legitimate, nondiscriminatory
reason"' for the adverse employment action.
Winters, 212 N.J. at 90, 50 A.3d at 662 (quoting
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817).
If the employer can do so, "'the presumption of
retaliatory discharge created by the prima facie case
disappears and the burden shifts back to the
[employee].'" Id. (quoting Blackburn v.
United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir.
1999)). The employee then must persuade the "fact finder
that the employer's reason was false 'and that
[retaliation] was the real reason."' Id.
(quoting Blackburn, 179 F.3d at 92 (internal
quotation and citation omitted)). The ultimate burden of
proof remains with the employee. Id. (citing
McDonnell Douglas, 411 U.S. at 804-05, 93
Reasonable basis to believe defendants were violating a clear
mandate of public policy
I find that Turner's evidence fails to establish that he
had an objective basis for a reasonable belief that NJSP
personnel were violating a law, rule, or clear mandate of
public policy. Whistleblowing activity under CEPA must relate
to an identifiable "law, or a rule or regulation
promulgated pursuant to law" N.J. Stat. Ann. §
34:19-3c(1), or else "a clear mandate of public policy
concerning the public health, safety or welfare, " N.J.
Stat. Ann. § 34:19-3c(3). Mehlman v. Mobil Oil
Corp., 707 A.2d 1000, 1012-13 (N.J. 1998); Dzwonar
v. McDevitt, 828 A.2d 893, 900-01 (N.J. 2003). The
requirement of a law, rule, or regulation under section 3c(1)
is clear enough. A "clear mandate of public policy"
under section 3c(3) is a broader category, but is not
unconfined. Such a mandate must at least "convey a
legislative preference for a readily discernible course of
action that is recognized to be in the public interest."
Massarano v. New Jersey Transit, 948 A.2d 653, 662
(N.J.Super.Ct.App.Div. 2008). "'Clear mandate'.
. . suggests an analog to a constitutional provision,
statute, and rule or regulation promulgated pursuant to law
such that, under Section 3c(3), there should be a high degree
of public certitude in respect of acceptable versus
unacceptable conduct." Maw v. Advanced Clinical
Comms., Inc., 846 A.2d 604, 607 (N.J. 2004) (emphasis in
facts, as opposed to the conclusory accusations, asserted by
Turner seem to establish at most that certain programs were
late in supplying compliance data, a circumstance that was
well known to the monitor. Turner says he subjectively
believed this amounted to "fraud" and a willful
avoidance of NJSP's obligations under the Consent Decree,
but he has not shown a specific evidentiary basis for
thinking that this opinion or belief was objectively
it is a core fact as to which Turner bears the burden of
proof, Turner never clearly lays out any specifics as to why
he thought the Training Bureau was non-compliant with the
Consent Decree. Nor does he point to evidence sufficient to
establish the reasonableness of such a conclusion. He simply
repeats that he found that certain programs, specifically
those run by Wilson and Olcheski, were non-compliant.
Turner's failure to adduce the necessary evidence is not
excusable; this was Turner's job and primary
responsibility, and there has been full discovery. As
discussed in more detail below, this was a ten-year process,
that occurred in phases; if there was
"noncompliance" at any particular point, that
noncompliance must be explained in relation to some standard.
states that in the summer of 2005 he "conducted an
assessment and reported [his] findings" that training
programs run by Wilson and Olcheski were not compliant with
the terms of the Consent Decree. (Turner Aff. ¶ 24) He
offers no basis for, or even a clear description of, such
alternative basis for a whistleblower allegation might be
that Turner refused to participate in fraud or noncompliance
with the Consent Decree. But there is no evidence of that.
Turner complains of unpleasant interactions with his
superiors, who disagreed with his statements regarding
compliance. He says that noncompliance was hidden from the
federal monitor-but he also acknowledges that, to the extent
there was noncompliance, the monitor knew about it. He does
not say, moreover, that he reported any
noncompliance to the federal monitor. And the claim he does
make must be examined carefully and compared to the evidence
he cites in support.
says that in 2005, federal monitor Mary Kheoloha stated
to Turner (not the other way around) that the programs
run by Wilson and Olcheski were non-compliant. Turner
indicates agreement with that statement (he does not say that
he expressed agreement to the monitor); and he does
not state that he was the source of the information.
(Id. ¶ 31)
record support for Turner's assertion is a citation to
page 63 of the Thirteenth Independent Monitors' Report
(December 2005). There, Turner notes, "the monitor
acknowledges that she was 'not provided with any written
information that field implementation of training provided to
various ranks since the last visit has
occurred." (Turner Aff. ¶ 32)
Turner's explanation of the link between the allegedly
missing written information and his own allegations of fraud
and non-compliance: "[T]he reason the monitor did not
have the data was because Wilson and Major White did not have
any and the monitor reported it contrary to what defendant(s)
and their counsel claim." [Id. ¶ 33) That
statement has two parts, and I analyze them separately.
second part of Mr. Turner's statement-that "the
monitor reported it contrary to what defendant(s) and their
counsel claim"-is hard to interpret. The overall
implication seems to be that the Monitor herself found
noncompliance. However, Turner has omitted the next page of
the report. There, the Monitor concludes that the NJSP was in
compliance for Phase I and Phase II of the relevant task.
(Def. Reply "Plaintiffs Affidavit Exhibit 1") The
Monitor noted that compliance, which was to occur in phases,
was not yet complete, but Turner's dire
allegation of a fraudulent cover-up is not supported by this
to the first part of Mr. Turner's statement. This appears
to be an assertion that the Monitor was denied data because
Wilson or White did not possess, or at least report, any
data. There is no sufficient evidence, however, linking this
to Turner's objectively reasonable belief that the Wilson
and Olcheski programs were fraudulent or non-compliant at
that particular phase. The Monitor's report refers
generally to "field implementation of training, "
but there is no clear basis for Turner's conclusion that
this must have been a reference to Wilson's or
Olcheski's program, his areas of concern. Even setting
that aside, Turner does not explain how a lag in data
reporting at a particular time equates to "fraud"
or non-compliance with the decree. At no point does he cite
to any term of the Consent Decree, let alone a specific term
requiring that particular data be collected or furnished at
any particular time or in any particular way. From
Turner's own evidence, it appears that the Monitor
herself did not interpret the Consent Decree in that way-and
the Monitor surely knew whether she was receiving required
data or not. The report seems to suggest only that the
Monitor expected that data regarding the training program
would be furnished in the next reporting period.
See n.28, supra. That Turner personally
thought the training program personnel should have acted with
more alacrity does not equate to a clear mandate of public
record does not disclose an evidentiary basis to conclude
that Turner's belief that fraud was occurring, or that
the programs were non-compliant, was objectively reasonable.
Turner has not set forth a prima facie showing of a CEPA
claim; summary judgment would be appropriate on this basis.
alternative, I assume arguendo that whistleblowing
activity occurred, and focus on whether Turner's evidence
is sufficient to raise an issue as to whether retaliation
out a prima facie claim under CEPA, the plaintiff employee
must demonstrate a causal connection between the
whistleblowing activity and an adverse action by the
employer. Under McDonnell Douglas, a prima facie
case shifts the burden to the employer to state a legitimate,
nonretaliatory reason for the adverse action, which in turn
shifts the burden back to the employee to rebut the
employer's explanation. See supra. These issues
are interrelated; all concern the causal link between the
whistleblowing and the adverse action. For purposes of this
section, I will assume that Turner engaged in whistleblowing
activity. But see Section IV.A. 1. Evidence of the
necessary causal link is nevertheless lacking.
legitimate whistleblowing, of course, does not insulate an
employee from justified adverse employment actions. Here,
Turner focuses on his demotion in 2008, alleging that it was
retaliatory. The employer has articulated a
legitimate, nonretaliatory reason for the adverse employment
action in 2008. Turner fails to point to sufficient evidence
that the Defendants' articulated reason for the October
2008 demotion was false, and that the real motivation
therefore must have been retaliatory. Whether viewed as a
defect in the prima facie element of causation, or a failure
to meet the shifting McDonnell Douglas burden, this
failure is fatal to a CEPA claim.
Fuentes demote Turner in 2008 in retaliation for his
whistleblowing activity? Turner himself does not seem to make
any firm statement to that effect. Turner's Affidavit
does not attribute the 2008 demotion to whistleblowing. His
Complaint attributes it to disability discrimination.
(See Compl. ¶ 121; see also Section
IV.H, infra.) Indeed it is not clear that this 2008
demotion is asserted as CEPA retaliation at all.
rate, the Defendants have articulated, and supported with
evidence, a legitimate, nonretaliatory rationale for the 2008
demotion. Defendants contend that Turner's "removal
as Acting Lieutenant was generated by his failure to engage
in the required Physical Fitness Program, C-20, and his
refusal to seek an exemption therefrom in concert with the
provisions of the applicable SOP, C-33." (Def. Mot. 43)
"SOP" refers to Standing Operating Procedures,
which are written policies of the NJSP. According to the
cited SOP C33, section XIV.C: "All members are required
to attend [the annual fitness for duty] examination with the
following exceptions: 1. Members who are suspended during the
entire evaluation period. 2. Members whom the Superintendent
has placed into permanent disability duty status." (Def.
Mot. Ex. F) Where an employee does not comply, the
Superintendent may place the employee on "leave without
pay status" and the employee's actions may be
reviewed by OPS. (Id. Section XV.A) The other cited
section, SOP C20 II.G, elaborates on the physical-fitness
1. A member who has a medical or physical condition which
prevents them from participating in a physical fitness test
will appear at the testing site as scheduled unless they are
on authorized sick leave. The member will be provided with
both the New Jersey State Police Physical Testing File (form
S.P. 59) and N.J.S.P. Physical Testing Non-Participation
Acknowledgement Form (A.P. 60, Annex C).
2. The member's height and weight will be measured. A
body fat analysis will be conducted as needed.
(SOP C20, Def. Reply Ex. I)
was not suspended or on permanent disability status at any
time in 2007-08. During the relevant period, then, he was not
exempt from attending an annual Physical Fitness Program
undisputed that Turner completed the physical fitness test in
July 2007. (Compl. ¶ 73; Def. Mot. 61) Defendants submit
evidence, however, that Turner failed to attend subsequent
physical fitness tests through the date he went out on
disability leave in July 2008 or thereafter. This evidence of
non-attendance, they say, backs up the Superintendent's
revocation of his Acting Lieutenant status. SOP C20 requires
that even members who are physically unable to fully
participate must nevertheless report to the
testing site, unless excused. (Def. Mot. 61)
does not contend that he reported to the testing site as
required. There is no evidence in the record that he kept
current on the annual fitness test. Nor is there evidence
that Turner obtained an exemption from the SOP C20 attendance
requirements, based on physical inability or any other
early July 2008, Turner had not attended the PFP for one
year. (Def. Facts ¶ 15) On July 7, 2008, Turner was
placed on temporary off-duty status. (Def. Facts ¶ 14;
Compl. ¶ 94) Several days later, on July 24, 2008,
Captain Robin Blaker completed a performance notice
explaining that Turner was "non-compliant with the
provisions of S.O.P. C20 and therefore subject to the
sanctions stated therein." (Def. Mot. Ex. G; Def. Facts
¶ 16). On October 23, 2008, Captain Blaker
completed an intervention narrative noting Turner's SOP
C20 non-compliance and recording that Turner had been
advised, via a letter mailed on October 10, 2008, "of
his removal from his out-of-title Unit Head position
effective October 25, 2008." (Def. Mot. Ex. H)
evidence cited by Turner is insufficient to persuade a
reasonable fact finder that the reason articulated by
Defendants for his demotion is merely a
pretext. He has failed to raise a genuine dispute
as to whether Superintendent Fuentes retaliated against him
for protected whistleblowing activities. On this alternative
ground, too, defendants will be granted summary judgment on
Count 2 (CEPA).
First Amendment Retaliation (Count 8)
eighth cause of action, Turner alleges that
"Defendants' actions amounted to violations of the
Constitution of the United States, specifically, the First
Amendment and the Fourteenth Amendment." (Compl., Count
8, ¶¶ 1-2) The Complaint offers no guidance as to
the particular defendants and specific conduct that allegedly
violated these Amendments. Putting the Complaint together
with the parties' summary judgment submissions I have
attempted to define the claims. Turner alleges two different
exercises of free speech rights that gave rise to
retaliation. The first consisted of his complaints within the
State Police hierarchy. The second consisted of his testimony
before an advisory committee. From my own review of the
record, I find no sufficient evidentiary basis for a claim of
claim of retaliation appears to arise under the free speech
clause of the First Amendment. A plaintiff alleging a First
Amendment retaliation claim must show: "(1) that the
activity in question is protected by the First Amendment, and
(2) that the protected activity was a substantial factor in
the alleged retaliatory action." Hill v. Borough of
Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citing
Phyllis Hill v. City of Scranton, 411 F.3d 118, 125
(3d Cir. 2005)). "The first factor is a question of law;
the second factor is a question of fact." Id.
(citing Curinga v. City of Clairton, 357 F.3d 305,
310 (3d Cir. 2004)); see also Baldassare v. New
Jersey, 250 F.3d 188, 195 (3d Cir. 2001).
employees, speaking as such, do not stand on the same ground
as private citizens. A public employee's statement is
entitled to First Amendment protection only when "(1) in
making it, the employee spoke as a citizen, (2) the statement
involved a matter of public concern, and (3) the government
employer did not have 'an adequate justification for
treating the employee differently from any other member of
the general public' as a result of the statement he
made." Fraternal Order of Police, Lodge 1 v. City of
Camden, 842 F.3d 231, 243 (3d Cir. 2016) (quoting
Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)).
public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline."
Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct.
1951 (2006)). Reporting to superiors, for example, is
unprotected because it does not have a "relevant
analogue to speech by citizens who are not government
employees." Id. Thus the Third Circuit has
repeatedly held that "complaints up the chain of command
about issues related to an employee's workplace
duties-for example, possible safety issues or misconduct by
other employees- are within an employee's official
duties" and therefore unprotected. Morris v.
Philadelphia Hous. Auth., 487 Fed.App'x 37 (3d Cir.
2012) (non-precedential) (holding that plaintiffs reporting
instances of potential misconduct of subordinates to his
superiors was within his official job duties); Foraker v.
Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007),
abrogated on other grounds by Borough of Duryea, Pa. v.
Guamieri, __ U.S., 131 S.Ct. 2488 (2011) ("Price
and Warren were acting within their job duties when they
expressed their concerns up the chain of command ....");
Hill v. Borough of Kutztown, 455 F.3d at 242 (a town
borough manager's reports to his superiors about
harassment by the town mayor were not protected speech
because his reports were made pursuant to his managerial
Retaliation for ...