United States District Court, D. New Jersey
Robert Natale, Esq., Leo B. Dubler, III, Esq., LAW OFFICES OF
LEO B. DUBLER, III, LLC, Attorneys for Plaintiff.
S.D. Norcross, Esq., Francis X. Manning, Esq., STRADLEY RONON
STEVENS & YOUNG LLP, Attorneys for Defendants.
B. SIMANDLE U.S. District Judge.
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.
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.
FACTUAL AND PROCEDURAL HISTORY
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). 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).
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. (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.)
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.)
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.)
“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.)
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.)
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 ¶¶
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.)
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.)
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
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
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.
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
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 ¶¶
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.)
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
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.)
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.)
STANDARD OF REVIEW
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).
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.
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, ...