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Turner v. New Jersey State Police

United States District Court, D. New Jersey

March 29, 2017

SCOTT TURNER, Plaintiff,
v.
NEW JERSEY STATE POLICE, et al, Defendants.

          OPINION

          HON. KEVIN MCNULTY, U.S.D.J.

         The 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.[1] 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)[2] 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.[3] 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.

         Now 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 counts.

         I. Background

         A. Procedural History

         This 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.

         Turner 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.

         On 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.

         B. The Parties' Submissions on Summary Judgment

         The 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.

         Defendants do meticulously cite to the record. Certain of their grounds for simply writing off Turner's affidavit (and attached exhibits), however, are patently inadequate.

         First, 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."[4] Turner's submission, however, is a sworn declaration-an affidavit, in fact.[5]

         Second, 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.

         Defendants 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 Cir. 1946)).

         Third, 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).

         That is 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.[6] 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.

         Not to 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, [7] 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.

         Turner 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.

         Turner's 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.

         In 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.

         All of 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 claims.

         C. Background Facts

         On July 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);[8]see also PI. Opp. Ex. 1 (joint application for the Consent Decree).[9] 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."[10] 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 Judge.

         On or 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 ¶ 33)

         Between December 20, 2004, and September 2007, Independent Monitors' Reports found that NJSP was in compliance with the Consent Decree's terms.[11] (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)

         Turner 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.[12] 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.

         Turner 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)

         In 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.[13] (Id. ¶¶ 57-61; Def. Mot. Ex. P) Turner was also passed over for promotion in 2006. (Turner Aff. ¶¶ 63, 67)

         In 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)

         Then, in January 2007, Wilson and Dziobak threatened a new internal affairs investigation against Turner for stating in a report[14] 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."[15] (Id. ¶ 73)

         Between 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)

         Sometime 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).[16] 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."[17] (Def. Mot. Ex. H)

         In 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).

         II. Summary Judgment Standard

         Federal 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.

         Once 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).

         A 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)).

         This 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.[18] 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).

         III. Threshold Grounds

         In 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 defective claims.

         At the 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).

         A. Withdrawn Claims (Counts 5 and 7)

         In the 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.

         For these reasons, I will grant summary judgment for Defendants on Counts 5 and 7.

         B. Eleventh Amendment/Sovereign Immunity

         Defendants 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 agree.

         The 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. 504 (1890).

         As a 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).[19]

         One 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 otherwise.

         Rather, 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)[20]

         It is 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 done here.

         A state 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 Fed.R.Civ.P. 12(b)(1)").

         The 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.[21] Because defendants Jackson, Farber, Rabner, and Milgram were sued in their official capacities only (Compl., Jurisdiction, ¶¶ 19-20), all counts against them are dismissed.

         C. Lack of Relevant Evidence as to Four Defendants

         I must 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.[22] As to four of these defendants, however, the record contains insufficient evidence of liability under any theory pled. Those four dismissable defendants are Torres, [23] Giaquinto, [24] Quinoa, [25] and Hackett.[26] As to them, summary judgment is granted.

         The 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.

         IV. Analysis of Remaining Counts and Defendants

         For 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, 10)
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

         A. CBPA Retaliation (Count 2)

         Of 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.

         CEPA 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)).

         CEPA 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. § 34:19-3.

         CEPA 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).

         CEPA 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 S.Ct. 1817).

         1. Reasonable basis to believe defendants were violating a clear mandate of public policy

         First, 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 original).

         The 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, [27] but he has not shown a specific evidentiary basis for thinking that this opinion or belief was objectively reasonable.

         Although 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.

         Turner 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 "findings."

         One 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.

         Turner 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)

         The 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."[28] (Turner Aff. ¶ 32)

         Here is 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.

         The 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 exhibit.[29]

         I turn 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.[30] 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.[31] That Turner personally thought the training program personnel should have acted with more alacrity does not equate to a clear mandate of public policy.

         This 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.

         2. Causation/Nondiscriminatory basis

         In the 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 occurred.

         To make 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.

         Even 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.[32] 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.

         Did 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.

         At any 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 attendance requirement:

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)[33]

         Turner 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 ("PFP") examination.

         It is 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)

         Turner 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.[34] Nor is there evidence that Turner obtained an exemption from the SOP C20 attendance requirements, based on physical inability or any other reason.[35]

         As of 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).[36] 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."[37] (Def. Mot. Ex. H)

         The 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.[38] 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).

         B. First Amendment Retaliation (Count 8)

         In his 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.[39] 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 retaliation.

         1. Applicable standards

         Turner's 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).

         Public 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)).

         "[W]hen 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 duties)).[40]

         2. Retaliation for ...


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