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Foster v. Township of Pennsauken

United States District Court, D. New Jersey

June 27, 2017

TOWNSHIP OF PENNSAUKEN, et al., Defendants.

          Mark Robert Natale, Esq., Leo B. Dubler, III, Esq., LAW OFFICES OF LEO B. DUBLER, III, LLC, Attorneys for Plaintiff.

          Corey S.D. Norcross, Esq., Francis X. Manning, Esq., STRADLEY RONON STEVENS & YOUNG LLP, Attorneys for Defendants.


          JEROME B. SIMANDLE U.S. District Judge.


         Plaintiff Douglas Foster (hereinafter, “Plaintiff”) brings this suit against Defendants John Coffey, Michael Probasco, Scott Gehring, Thomas Connor, and the Township of Pennsauken (hereinafter, “Defendants”) for their alleged retaliatory actions following Plaintiff's exercise of First Amendment rights of free speech and association. Plaintiff, a former police officer with the Pennsauken Police Department, alleges that his termination in May 2015 was motivated by a campaign of retaliation by the Defendants, his supervisors and employer, in response to his advocacy for changes in the length of officer shifts and his association with his police union.

         This matter comes before the Court upon the Defendants' motion to dismiss Plaintiff's Complaint under Rule 12(b)(6), Fed.R.Civ.P. For the following reasons, the motion to dismiss will be granted without prejudice.


         Plaintiff was hired by the Pennsauken Police Department in 2003. (Compl. at ¶ 11.) Plaintiff was an active member of the Fraternal Order of Police (hereinafter, “FOP”), a labor union representing police officers in Pennsauken. (Id. at ¶ 14.) On March 22, 2013, Plaintiff, along with six other active members of the FOP, filed a lawsuit before Judge Renee Bumb alleging that Defendants Coffey, Probasco, the Township of Pennsauken, along with the Township Administrator Ed Growchowski, had retaliated against them for their exercise of First Amendment rights. Killion v. Coffey (“Killion I”), No. 13-1808, 2015 WL 7345749, at *1-2 (D.N.J. Nov. 19, 2015).[2] The Killion I plaintiffs alleged that these and other actions by the defendants were motivated by a desire to retaliate against the plaintiffs for their advocacy in favor of a proposal to implement twelve-hour shifts for police officers. Id. at *2. The plaintiffs claimed that this violated 42 U.S.C. § 1983 (Count I) and the New Jersey Civil Rights Act (Count II). Id.

         On November 19, 2015, Judge Bumb dismissed the complaint in Killion I without prejudice, for failure to adequately plead that the plaintiffs' advocacy for twelve-hour shifts was constitutionally protected or that the defendants' conduct toward plaintiffs was motivated by retaliation. Id. at *1. Judge Bumb gave the plaintiffs twenty-one days to amend their complaint. Id. at *11. Five of the seven plaintiffs refiled an amended complaint, but Plaintiff Foster was not among them.[3] (Pl. Opp'n at 2.) Instead, after the deadline to amend the Killion I complaint had lapsed, Plaintiff filed a separate action in this Court - the present Complaint - on August 22, 2016. (Id.) Plaintiff's Complaint alleges that Defendants' decision to charge, suspend, and terminate Plaintiff following their 2014 investigation into his inaccurate activity log - an incident which occurred after Killion I was filed in 2013 - was the culmination of Defendants' campaign to retaliate against him for speaking out in favor of twelve-hour shifts and associating with the FOP. (Compl. at ¶ 173.) Plaintiff claims that the Defendants, through their alleged retaliation, deprived him of his First Amendment rights of free speech and association, in violation of 42 U.S.C. § 1983. (Id. at ¶¶ 174-75.)

         Beginning around 2009, the Pennsauken Police Department had begun to consider implementing twelve-hour shifts for police officers. (Id. at ¶ 15.) While Defendants Coffey, Probasco, Gehring, and Connor - supervisors at Pennsauken Police Department - were opposed to twelve-hour shifts and “regularly spoke out against” the prospective change, Plaintiff, along with several other officers, “actively campaigned and advocated” in favor of twelve-hour shifts. (Id. at ¶¶ 18-21.)

         Plaintiff alleges he advocated, both as an active member of the FOP and “through his own private speech, ” that implementation of twelve-hour shifts would improve officer and public safety. (Id. at ¶¶ 23, 33.) The prior setup of officer shifts often left only five officers on the overnight shift to cover Pennsauken's six districts, leaving an entire district without an officer on patrol on “countless” nights. (Id. at ¶¶ 34-36.) Plaintiff claimed that this shortage presented a safety issue to both officers and the public, one which could be remedied by switching to twelve-hour shifts. (Id. at ¶ 37.) Additionally, Pennsauken's means of addressing these coverage issues was to hold an officer over from the prior shift and pay that officer overtime. (Id. at ¶¶ 41-42.) At the time the switch to twelve-hour shifts was being considered, Pennsauken was paying a “substantial” amount of overtime, and the Plaintiff argued that twelve-hour shifts would mean the department would no longer need to hold anyone onto the overnight shift, which would “drastically reduce” overtime and save the municipality money. (Id. at ¶¶ 40, 43-44.)

         Plaintiff “regularly” spoke out and advocated in favor of twelve-hour shifts and criticized the supervisors at the Police Department for their refusal to embrace the change. (Id. at ¶¶ 27-29.) In addition, Plaintiff took on responsibilities as a leader in the FOP, representing his shift at union meetings focused on developing the new contract, which would include twelve-hour shifts. (Id. at ¶¶ 31-32.)

         In 2011, in spite of several contentious meetings during which Defendant Coffey and other supervisors protested the change, the Department implemented twelve-hour shifts. (Id. at ¶¶ 52-53.) Defendants Coffey and Probasco continued to vocally oppose the switch to twelve-hour shifts after the change had occurred. (Id. at ¶ 57.) Defendant Coffey - with whom Plaintiff had a “positive” relationship prior to the debate over twelve-hour shifts - began to completely ignore Plaintiff as their relationship turned “hostile.” (Id. at ¶¶ 97-99.)

         Plaintiff had never received discipline as an officer prior to his campaign for twelve-hour shifts. (Id. at ¶ 60.) His clean disciplinary record began to change in May of 2011, when Plaintiff was given a roadwork assignment. (Id. at ¶¶ 62, 64.) The roadwork was completed thirty minutes before his shift was scheduled to end; Plaintiff, according to “common custom and practice” for Pennsauken police offers on roadwork shifts, left his shift once the roadwork was complete. (Id. at ¶¶ 65-67.) Plaintiff received a written reprimand from Defendant Connor for leaving the assignment early. (Id. at ¶ 69.) Defendant Probasco called Plaintiff a “thief and a criminal” following the incident. (Id. at ¶ 70.) Additionally, Defendant Probasco compared Plaintiff to other “babies” in the department - in reference to the officers who advocated for twelve-hour shifts - and stated that Plaintiff was going to be his “project.” (Id. at ¶¶ 74-75.)

         That same month, Plaintiff responded to a report of a fight at Pinsetters Bar in Pennsauken between two off-duty Pennsauken police officers and two patrons (hereinafter, the “Pinsetters Incident”). (Id. at ¶¶ 101-02.) Plaintiff responded to the scene and followed standard operating procedure in investigating the incident. (Id. at ¶ 103.) Following the incident, Defendant Coffey filed twenty-five disciplinary charges against eight officers who had advocated in favor of twelve-hour shifts, including the Plaintiff, who was charged with “neglect of duty” and received a 30-day suspension despite not being involved in the incident in any way. (Id. at ¶¶ 105-06, 108-09.)

         Defendant Probasco began to monitor the GPS on Plaintiff's police vehicle. (Id. at ¶ 76.) In June of 2011, Plaintiff responded to an ambulance call at a residence. (Id. at ¶ 78.) Afterwards, Defendant Probasco ordered Plaintiff to produce a written report to justify his response time to the incident. (Id. at ¶¶ 78, 80.) Plaintiff wrote the report explaining his response time; Defendant Probasco did not charge Plaintiff with any discipline, but did assign Plaintiff to desk duty, a “common form of punishment” in the department. (Id. at ¶¶ 81-82.)

         Then, on June 14 and 15 of 2011, Plaintiff attended a training class in Pennsylvania with two other officers. (Id. at ¶¶ 84-85.) Plaintiff was required to use two holidays to attend the training, but the other two officers - who were not among those who had advocated for twelve hour shifts - were not required to use holidays. (Id. at ¶¶ 86-87.)

         On or around July 26, 2011, Plaintiff was accused of leaving the sally port door open; though another officer stepped forward and admitted that he was the one to leave the door open, Defendant Probasco issued Plaintiff a written reprimand and again assigned Plaintiff to desk duty. (Id. at ¶¶ 90-93.)

         Plaintiff, along with six other officers, filed Killion I in March of 2013. Killion I, 2015 WL 7345749, at *2. The complaint alleged, inter alia, that Plaintiff's receipt of “major” discipline for the Pinsetters Incident, his compulsory use of holidays to attend training sessions, and the “silent treatment” he received from Defendant Coffey were part of a campaign of retaliation for the plaintiffs' advocacy in favor of twelve-hour shifts. Id. at *1-2, *10.

         On the night of June 4, 2014, while Killion I was pending, Plaintiff was assigned the overnight (7:00 P.M. - 7:00 A.M.) shift. (Compl. at ¶ 112.) When leaving headquarters after having a dinner break and relieving the Information Officer, Plaintiff took a mental note of the time on the large clock outside of headquarters to document in his activity log. (Id. at ¶¶ 113-17.) He continued his shift in his vehicle, and used the vehicle's car clock and the clock on the laptop in his vehicle to continue documenting his time in the activity log. (Id. at ¶ 120.) Both of those clocks show different times relative to the large clock outside of headquarters, it is “common” for Pennsauken police officers' activity logs to have inaccuracies, as there is no policy, procedure or custom that dictates how Pennsauken's officers prepare their activity logs or specifies which clocks they must use. (Id. at ¶¶ 124-26.)

         Later that month, Defendant Coffey reviewed the activity logs and had some concerns with Plaintiff's log, mainly that Plaintiff had spent a longer time than usual in headquarters. (Id. at ¶ 130.) At Defendant Coffey's request, Plaintiff prepared a memo explaining that he was in headquarters for a long time because he was covering for the Information Officer. (Id. at ¶¶ 132-33.) Defendant Coffey asked the Internal Affairs Officer to investigate Plaintiff's situation; the officer found that while Plaintiff had documented that he was patrolling Highland Park starting at 1:50 A.M., he had actually not left headquarters until 2:17 A.M. (Id. at ¶¶ 135, 137-38.)

         Plaintiff was questioned on July 2, 2014 by Defendant Gehring, who did not ask Plaintiff what clocks he used to complete the activity log or whether there was an explanation for the discrepancy. (Id. at ¶¶ 141-42.) Defendant Gehring prepared a report for Defendant Connor, recommending charges against Plaintiff. (Id. at ¶ 145.) Defendant Connor decided to pursue charges against Plaintiff, and Plaintiff was served with a Preliminary Notice of Disciplinary Action including a number of charges relating to Plaintiff's inaccurate logbook (hereinafter, “the logbook incident”) on August 22, 2014. (Id. at ¶¶ 149-50.) As a result of these charges, Plaintiff was suspended, and Defendant Pennsauken sought his termination. (Id. at ¶ 158.) Two officers who were on duty the morning of June 5, 2014 were at headquarters for as long as Plaintiff and also had discrepancies in their logbook; they received a written reprimand and a one-day suspension. (Id. at ¶¶ 153-57.)

         Plaintiff requested a meeting with Pennsauken's Township Administrator in hopes of resolving the charges; he complained that the Defendants were part of a “furious campaign to destroy” him. (Id. at ¶¶ 163, 165.) The Township Administrator responded that there was nothing they could to do help him, and that he would have to wait for the process to play out. (Id. at ¶ 166.) One to two weeks after Plaintiff's meeting with the Township Administrator, Defendant Coffey recommended that Plaintiff receive an additional disciplinary charge for being a “repeat offender”; Plaintiff received notice of this additional charge in November of 2014. (Id. at ¶ 167.)

         On May 22, 2015, the Police Department's appointing authority upheld these charges, removing Plaintiff from his position with the department. (Id. at ¶ 170.) The removal was affirmed by the Civil Service Commission on December 18, 2015; the Civil Service Commission's decision is currently up for reconsideration. (Id. at ¶¶ 171-72.)

         In his Complaint, Plaintiff seeks relief for his charges (Count III), suspension (Count II), and termination (Count I) from the logbook incident, which he alleges was motivated by retaliation for his exercise of the First Amendment rights of speech and association, in violation of 42 U.S.C. § 1983. (Pl. Opp'n at 3-4.) He also seeks relief for the disproportionate charges filed against him as compared to other officers who did not advocate for twelve-hour shifts (Count IV) and the “unjustified” decision to seek termination rather than other forms of discipline (Count V). (Id. at 4.)


         Pursuant to Rule 8(a)(2), Fed. R. Civ. P., a complaint need only contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are not required, and “the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted). While a complaint is not required to contain detailed factual allegations, the plaintiff must provide the “grounds” of his “entitle[ment] to relief”, which requires more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

         A motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that the plaintiff failed to set forth fair notice of what the claim is and the grounds upon which it rests. Id. A complaint will survive a motion to dismiss if it contains sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). Although a court must accept as true all factual allegations in a complaint, that tenet is “inapplicable to legal conclusions, ” and “[a] pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. at 678.


         A. Res Judicata

         First, Defendants argue that Plaintiff's Complaint should be dismissed on res judicata grounds, because Killion I was a final judgment, and Plaintiff did not timely amend his complaint in Killion I following Judge Bumb's dismissal of the case without prejudice. (Def. Br. at 7.) Res judicata - also known as claim preclusion - prohibits a party from reopening and relitigating issues that were or could have been decided in a previous case involving the same parties and arising out of the same cause of action. Sutton v. Sutton, 71 F.Supp.2d 383, 389 (D.N.J. 1999). Under federal law, res judicata requires the defendant to demonstrate (1) that there was a final judgment on the merits in a prior suit involving (2) the same parties or parties in privity, and (3) that the present case is based on the same cause of action. Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, ...

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