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Sosinavage v. Thomson

United States District Court, D. New Jersey

May 24, 2018

JOHN A. SOSINAVAGE, Plaintiff,
v.
JOHN SCOTT THOMSON, et al., Defendants.

          Cheryl L. Cooper, Esq. And Paul D. Brandes, Esq. Attorneys for Plaintiff

          Christine O'Hearn, Esq. BROWN & CONNERY, LLP Attorney for County Defendants

          Daniel Edward Rybeck, Esq. John C. Eastlack, Jr., Esq. Lilia Londar, Esq. WEIR & PARTNERS Attorneys for City Defendants

          OPINION

          HONORABLE JEROME B. SIMANDLE JUDGE

         I. INTRODUCTION

         Plaintiff John A. Sosinavage (hereinafter, “Plaintiff”) brought this employment action against the City of Camden, the County of Camden, and John Scott Thomson, Orlando Cuevas, Michael Lynch, and Louis Vega in their official capacities as employees of the City of Camden, the County of Camden, or both (collectively, “Defendants”). Plaintiff, a former Lieutenant in the Camden City Police Department which was disbanded and superseded by the Camden County Police Department, generally alleges that Defendants engaged in retaliation against him based on protected activity in violation of the First Amendment and 42 U.S.C. § 1983 and/or age discrimination in violation of the New Jersey Law Against Discrimination (“NJLAD”). This Opinion addresses only Plaintiff's claims that the County Defendants discriminated and/or retaliated against Plaintiff by failing to hire him, and we examine here none of Plaintiff's claims against the City Defendants.[1]

         This matter comes before the Court on the County Defendants' motions for summary judgment on Counts Eight, Nine, and Ten of the Second Amended Complaint [Docket Item 71] and to strike the Declaration of Darnell Hardwick and exhibits in Plaintiff's papers submitted in opposition to the County Defendant's motion for summary judgment. [Docket Item 149.] The principal issues to be decided are, all discovery having been concluded, whether there are genuine issues of material fact from which, giving all reasonable inferences to Plaintiff, a jury could reasonably find that the County Defendants have failed to hire Plaintiff for the Camden County Police Department due to retaliation in violation of his First Amendment rights, and whether the County Defendants have failed to hire Plaintiff due to age discrimination.

         As relevant to his claims against the County Defendants, Plaintiff concedes he never worked for or applied to the Camden County Police Department. Nevertheless, Plaintiff asserts that the County Defendants discriminated and/or retaliated against him by not sending a letter expressly inviting Plaintiff to apply for employment when his name was included on a state-wide reemployment list, commonly referred to as a “Rice List.” Since Plaintiff was aware of the employment opportunity with the Camden County Police Department and made a deliberate decision to not apply, and because Plaintiff adduced no evidence that the Camden County Police Department hired any officer who did not fill out an application and questionnaire other than Police Chief John Scott Thomson, and for the reasons discussed below, the motion for summary judgment will be granted in its entirety and all claims against the County Defendants will be dismissed.[2]

         II. BACKGROUND [3]

         The motions pending before the Court were brought by the County Defendants and do not address any of the allegations against the City Defendants. [Docket Item 71-2 at 9 n. 1.] Accordingly, the Court recounts only those facts and the procedural history relevant to Plaintiff's claims against the County Defendants (Counts Eight through Ten).

         A. Factual Background

         1. Formation of the Camden County Police Department and the Pilot Program--

         On August 25, 2011, the City of Camden, the County of Camden, and the State of New Jersey entered into a Memorandum of Understanding, whereby the County of Camden agreed to create a Camden County Police Department that would offer police services to municipalities within Camden County, including the City of Camden. [See Docket Item 71-6.] The Camden County Board of Chosen Freeholders subsequently authorized the creation of the County Police Department pursuant to N.J.S.A. 40A:14-106. [See Docket Item 71-7.]

         On December 27, 2012, the Civil Service Commission passed a proposed plan for laying off all uniformed police officers in the Camden City Police Department by April 30, 2013. [See Docket Item 71-8.] This layoff plan was approved by the Camden City Council on January 4, 2013. [See Docket Item 71-9.] On April 30, 2013, all Camden City Police Officers were officially laid off and the Camden City Police Department was dissolved. [See Docket Item 71-5 at ¶ 10; see also Pl. Dep. Tr. 31:19-32:1.] The Camden County Police Department assumed all police functions in the City of Camden the following day, on May 1, 2013. Redd v. Bowman, 233 N.J. 87, 95 (2015).

         By civil service order, the Camden County Police Department established a pilot program for filling positions (hereinafter, the “Pilot Program”). [See Docket Item 71-10.] The purpose of the Pilot Program was “to provide for expeditious appointment of qualified law enforcement officers to staff the Camden County Police Department.” [Id. at 2.] Under the Pilot Program, Camden County Police Officers were to be drawn from five sources, including the so-called “Rice List, ” with “no specific number of County Police Officers or superior County Police Officers drawn from any single source.” [Id. at 3.] According to the Order Establishing the Pilot Program, “[a]ll police officers expressing an interest in employment by the new Camden County Police Department will be required to submit an application and questionnaire as an initial screening device.” [Id.] The Pilot Program was set to last from November 1, 2012 through October 31, 2013. [Id. at 4.]

         2. Plaintiff John Sosinavage

         John A. Sosinavage is a forty-six-year-old Caucasian male. [Docket Item 44 at ¶ 11; Docket Item 71-4 (“Pl. Dep.”) Tr. 10:9-12.] Between September 12, 1994 and April 30, 2013, he was employed with the Camden City Police Department. [Pl. Dep. Tr. 29:17-19; 31:17-32:7.] On April 30, 2013, Plaintiff was laid off, along with all other remaining Camden City Police Officers [Pl. Dep. Tr. 31:19-32:1], as discussed above. At the time he was laid off by the Camden City Police Department, Plaintiff was a Lieutenant. [Pl. Dep. Tr. 28:12-14.]

         Plaintiff testified at a deposition that he became aware the Camden City Police Department might be disbanded and replaced by a Camden County Police Department during a meeting with the Camden County Freeholder Director in February of 2011. [Pl. Dep. Tr. 33:4-18.] Plaintiff subsequently spoke out against the creation of the Camden County Police Department and the Pilot Program in several union meetings. [Pl. Dep. Tr. 126:13- 127:4.] Prior to and during the Pilot Program, Plaintiff and others in his union also advocated in favor of a strategy whereby Camden City Police Officers would deliberately not apply for positions with the Camden County Police Department to put pressure on the County and help negotiate a better deal for the Camden City Police Officers. [See, e.g., Pl. Dep. Tr. 81:11-14 (“[I]f nobody from Camden signs up, they can't do it without us. So don't sign up. You know, . . . make the County come to us and negotiate.”); Pl. Dep. Tr. 82:23-25 (“The strategy was stick together, get an agreement, everybody goes to the agency, to the new agency.”).] Plaintiff told others on multiple occasions that he did not want to work for the Camden County Police Department and that he would reject a job with the Camden County Police Department if a position was offered. [Pl. Dep. Tr. 83:1-16.]

         Plaintiff testified that he received several emails in the fall of 2012, including one from Deputy Chief Lynch, which provided guidance on how to fill out a resume and how to apply for employment with the Camden County Police Department during the Pilot Program. [Pl. Dep. Tr. 66:13-67:22.] One of the emails Plaintiff received during this period included an application for a position with the Camden County Police Department. [Pl. Dep. Tr. 67:3-22.] Plaintiff was aware of the April 1, 2013 application deadline to the Camden County Police Department during the Pilot Program. [Pl. Dep. Tr. 80:3-81:22.] He made a deliberate decision to not apply for employment with the Camden County Police Department. [Pl. Dep. Tr. 75:21-24.] Instead, he applied for placement on the Rice List on April 30, 2013. [See Docket Item 71-18.] Plaintiff never worked for or applied to the Camden County Police Department. [Pl. Dep. Tr. 75:4-24.]

         B. Procedural History

         Prior to the 2011 decision to form the Camden County Police Department, on April 20, 2010, Plaintiff and a fellow City Police Officer, Lieutenant Anthony Carmichael, filed a lawsuit in New Jersey Superior Court against the City Defendants. [See Docket Item 71-17.] In the Superior Court action, Plaintiff and Lt. Carmichael claimed that the City Defendants retaliated and discriminated against them by, inter alia, transferring them out of Internal Affairs, forcing them to work split shifts, requiring them to attend meetings without overtime compensation, and demeaning them in front of peers after they objected to the City Defendants' instructions to violate the Attorney General Guidelines. [Id. at ¶¶ 88-90.] The Superior Court complaint was dismissed without prejudice. [Pl. Dep. Tr. 25:1-5.]

         On May 22, 2014, Plaintiff refiled his claims in federal court against the City of Camden, the County of Camden, and Officers John Scott Thomson, Orlando Cuevas, Michael Lynch, and Louis Vega in their individual and official capacities as employees of both the City of Camden and County of Camden [Docket Item 1], [4] which was subsequently amended as a matter of right. [Docket Item 4.] With leave of the Court [Docket Item 36], Plaintiff filed the Second Amended Complaint on October 9, 2015. [Docket Item 44.]

         On September 15, 2016, the County Defendants filed the pending motion for summary judgment on counts Eight, Nine, and Ten. [Docket Item 71.] The Court granted Plaintiff an extension of time to file opposition to the County Defendants' motion for summary judgment until November 17, 2016. [Docket Item 74.] Through an extraordinary series of delays due to illness and other complications, Plaintiff's opposition was not filed until more than one year later, on December 31, 2017. [Docket Items 140, 142.] The County Defendants timely filed a reply brief [Docket Item 155], along with updated Declarations by Defendants Lynch and Thomson. [Docket Item 155-1.] The County Defendants also filed a motion to strike the declaration of Darnell Hardwick with exhibits in its entirety [Docket Item 149], which Plaintiff had filed as an attachment to his motion for reconsideration. [Docket Item 83.] Plaintiff filed a letter brief in opposition to the motion to strike. [Docket Item 158.]

         On April 20, 2018, the Court convened oral argument on the pending motions. [Docket Item 173.]

         III. STANDARD OF REVIEW

         At summary judgment, the moving party bears the initial burden of demonstrating 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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion for summary judgment is made, the burden shifts to the non-moving party, who must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In reviewing a motion for summary judgment, the court is required to examine the evidence in light most favorable to the non-moving party, and resolve all reasonable inferences in that party's favor. Scott v. Harris, 550 U.S. 372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014).

         A factual dispute is material when it “might affect the outcome of the suit under the governing law, ” and genuine when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The non-moving party “need not match, item for item, each piece of evidence proffered by the movant, ” but must simply present more than a “mere scintilla” of evidence on which a jury could ...


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