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Foster v. Township of Pennsauken

United States District Court, D. New Jersey

August 7, 2018

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



         Table of Contents

         I. INTRODUCTION ....................... 2

         II. FACTUAL AND PROCEDURAL HISTORY .............. 3

         A. Factual Background ................... 3

         B. Procedural Background ................. 14

         1. Case to Date and Instant Motions............14

         2. Collateral Estoppel-Related Effect of Decisions of Administrative Law Judge and Appellate Division . . . . 17

         III. STANDARD OF REVIEW...................20

         IV. DISCUSSION.......................21

         A. First Amendment Retaliation (Freedom of Speech): Speech or Conduct as a “Private Citizen” ............... 22

         B. First Amendment Retaliation (Freedom of Association) . . 47

         1. Allegations of Associational Conduct .......... 49

         2. Allegations of Causal Link...............64

         C. Qualified Immunity ................... 70

         D. Monell Liability....................89

         V. CONCLUSION........................96


         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 what he alleges were his 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.

         The Court previously granted Defendants' motion to dismiss without prejudice under Rule 12(b)(6), Fed.R.Civ.P. [Docket Items 27 & 28.] Plaintiff subsequently filed an Amended Complaint [Docket Item 29], and Defendants filed another Motion to Dismiss pursuant to Rule 12(b)(6) [Docket Item 32], which is presently before the Court.

         The principal issues to be decided include: whether the Amended Complaint contains adequate allegations that Plaintiff engaged in the allegedly-protected speech and/or conduct as a private citizen; whether the Amended Complaint contains adequate allegations of protected associational conduct; whether the Amended Complaint contains adequate allegations of a causal link between any protected associational conduct and the alleged retaliation; whether the Defendants may assert a qualified immunity defense; and whether Plaintiff adequately pleads municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). For the following reasons, the motion to dismiss will be denied without prejudice.


         A. Factual Background

         The underlying facts of this suit were recited in the Court's previous Opinion on the earlier motion to dismiss [Docket Item 27] and will not be repeated at length here. The Court incorporates the facts as set forth in that Opinion to the extent that the Amended Complaint restates those facts. The Court therefore recounts only the additional allegations contained in the Amended Complaint, writing primarily (if not exclusively) for the parties and assuming the reader's familiarity with the facts, focusing on only those additional facts that are relevant to the Court's determination.

         Plaintiff, a police officer with the Pennsauken Police Department and an active member of the labor union representing Pennsauken police officers (the Fraternal Order of Police (“FOP”)), alleges that he was retaliated against for his speech and/or conduct advocating a move to a twelve-hour-shift for Pennsauken police officers, and/or his union association in relationship to the union's advocacy of that position in violation of his First Amendment rights and 42 U.S.C. § 1983. (Am. Compl. ¶¶ 256, 257.)

         Plaintiff was hired by the Pennsauken Police Department in 2003, and in or around late 2009 to early 2010, Pennsauken and its police department “began considering switching police officers to twelve hours shifts.” Id. ¶¶ 11, 15, 55. As Plaintiff describes, this issue implicated not only internal disputes between police officers and the Department regarding hours, but also public safety (the switch to twelve-hour shifts would enable enough police coverage so that one of Pennsauken's six [districts] would have a police officer assigned to it overnight, whereas without twelve-hour shifts, only five out of six [districts] had such coverage on any given night) and the municipal budget (not having twelve-hour shifts led to Pennsauken being required to pay substantial overtime wages to police officers that Plaintiff believed would be alleviated with the proposed change). Id. ¶¶ 16, 23, 27, 34-51.

         “Throughout the first half of 2010, Foster learned more about the issue and became adamant in his support of twelve hour shifts.” Id. ¶ 56. Although many of Plaintiff's supervisors were against the switch to twelve-hour shifts and “regularly spoke out against the switch, ” Plaintiff “actively campaigned and advocated in favor of switching[, ]” “arguing that the change would improve officer safety, public safety, and save the municipality a substantial sum of money.” Id. ¶¶ 18-19, 21, 23.

         Plaintiff also alleges that he “associated with the FOP in their efforts to switch to twelve hour shifts” and that he “was an active member of FOP leadership, and advocated for the switch through his association with the FOP[, ]” thereby “exercising his First Amendment rights in two ways[:]” “First, Foster would regularly speak out in favor of twelve hour shifts, clearly articulating his belief that it was the best option for public safety and for the citizens of Pennsauken” (including “regular criticism” of his supervisor for not supporting the switch) “as a private citizen criticizing public leaders for failing to embrace a necessary public policy”; and secondly, “Foster exercised his First Amendment rights . . . by freely associating with his union--the FOP[, ]” becoming “a leader in their union and their efforts to push for twelve hour shifts[, ]” representing (at the election of his co-workers) “his shift at union meetings focused on developing the new contract that would include twelve hour shifts[, ]” performing both of these alleged First Amendment activities (“his own private speech” and “his association with his union”) in advocating for the switch “because it would serve the best interest of the public.” Id. ¶¶ 24-33.

         Plaintiff alleges that his advocacy was aimed not only at his coworkers but also “regularly” “to other citizens[, ]” as his “interest in twelve hour shifts went well beyond his employment as a Pennsauken police officer, and was rooted in what he felt was best for Pennsauken township[, ]” because he had previously lived there for eighteen years, and, at the time, his mother, “siblings, relatives, and life-long friends still lived in Pennsauken.” Id. ¶¶ 50-54. He describes, in the summer of 2010, advocating for the switch to (and convincing) two Pennsauken police officers, stating that he “focused on the benefits” to them as “Pennsauken resident[s]--namely, the increased safety and the savings in the public budget.” Id. ¶ 60-65. Plaintiff alleges that it was during the summer of 2010 that “it was discovered and well known by FOP leadership [sic] (including the Defendants), that Foster was speaking out in favor of twelve hour shifts to [those] Pennsauken residents” (and police officers). Id. ¶ 67.

         He advocated for the same to his family members during the summer and fall of 2010, including his mother and sister (specifically focusing on the increased public safety that would result in the Fourth District of Pennsauken, where they lived), “because he felt it was an important issue for Pennsauken residents” and urged them to support the switch publicly “because he felt the community should be educated on and supportive of the measure.” Id. ¶¶ 68-75. He made some of these comments in front of his then-brother-in-law, as well, who relayed Plaintiff's remarks to Sgt. Lenny Rebilas of the Pennsauken Police Department, who told Defendant Coffey “that Foster was speaking as a private citizen in favor of twelve hour shifts to citizens of Pennsauken.” Id. ¶¶ 76-84. Plaintiff also mentions speaking to two other residents (the Brownells) who were active community members and convincing them to support the switch. Id. ¶¶ 85-89.

         Similarly, Plaintiff advocated for his position in favor of the switch at a social Halloween party hosted by a fellow police officer at his home on October 30, 2010, which was attended by officers and their families, as well as “many Pennsauken residents, not only police officers, ” who were present for the discussion and heard Plaintiff's advocacy which, Plaintiff again alleges, “was at a function with many non-police Pennsauken residents and focused on why the policy benefited the public at large.” Id. ¶¶ 90-100. Plaintiff alleges that the leadership of the Police Department (including the Defendants) learned about the party, the lively debate that ensued there, and that Plaintiff was advocating in favor of twelve-hour shifts. Id. ¶¶ 99-100.

         Also in the fall of 2010, Plaintiff alleges he convinced a former twelve-hour shift opponent (a fellow officer) to support the switch “as one private citizen to another, both of whom were concerned about family members who lived in Pennsauken, ” on the grounds that the switch “would increase public safety” and “would have a positive impact on the municipal budget.” Id. ¶¶ 101-110.

         Plaintiff alleges that his “advocacy continued even after the twelve hour shifts were implemented” and he “worked toward the implementation of twelve hour shifts by associating with his union ___ the FOP.” Id. ¶¶ 111-12.

         Plaintiff alleges that, although he was a FOP member when he joined the Department, “he did not become actively involved in the FOP's activities or a member of its leadership until the fall of 2010[, ]” when he became a shift leader for the union, whose role “was to attend meetings, and then convince members of his shift to support union positions, such as the twelve hour shifts.” Id. ¶¶ 113-15. As part of that role, Plaintiff names three people whom he “lobbied” to support twelve hour shifts. Id. ¶¶ 116-17.

         Plaintiff also served as “an alternate on the union's negotiating team for the collective bargaining negotiations that included the twelve hour shifts”; although he “never was needed to attend the negotiations, ” he “frequently met with the negotiating team to discuss issues relating to the CBA--most prominently, the twelve hour shifts, ” and relayed news and concerns between the negotiating team and other union members. Id. ¶¶ 118-20.

         Plaintiff alleges that, “[p]rior to the debate over the twelve hour shifts, Defendant Coffey did not concern himself with FOP dealings and did not hold any animosity towards the FOP” (although neither he nor Defendant Probasco were FOP members); the debate over twelve-hour shifts, however, led to “many contentious meetings” between Coffey and “FOP leadership, ” involving Coffey and other Police Department supervisors “arguing against the twelve hour shifts.” Id. ¶¶ 123-25.

         Plaintiff alleges that “Coffey than attempted to improperly influence the FOP, even though he was not a member[, ]” “vot[ing] in an FOP executive board election, even though he was not permitted to do so” and “constantly sen[ding] the FOP president memo after memo, harassing the president and trying to get him against twelve hour shifts.” Id. ¶¶ 126-28. When these tactics did not influence the FOP away from supporting twelve hour shifts, “Coffey began to retaliate against the FOP and against anyone who associated with the FOP[, ]” focusing particularly on “FOP leadership.” Id. ¶¶ 129-30.

         Twelve hour shifts, despite the alleged opposition from some in Department leadership, were implemented in 2011; however, Plaintiff claims, “the animosity escalated” as Defendants Coffey and Probasco (and other Department leadership) “continued to be vocally opposed to the switch”; Plaintiff “continued to advocate for twelve hour shifts even after they went into effect[, ]” including advocating for twelve hour shifts at a different party in summer of 2011, where several police officers were still “debat[ing] about twelve hour shifts--including whether the election would be reversed.” Id. ¶¶ 131-39.

         Plaintiff alleges that Defendants began retaliating against him “[i]mmediately following the implementation of twelve hours shifts” by (primarily) “taking meritless disciplinary action against” Plaintiff, when he had never been disciplined “[p]rior to the campaign for twelve hour shifts.” Id. ¶¶ 140-42; 143-192 (describing several incidents of alleged retaliation prior to chain of events leading to Plaintiff's ultimate removal).

         As part of a campaign of retaliation (detailed in the Court's earlier Opinion), Plaintiff alleges that Defendant Probasco “compared Foster to all the other ‘babies' in the department that caused their own problems--a reference to the other officers who advocated for twelve hour shifts” and “stated that Foster was going to be his ‘project' now.” Id. ¶¶ 156-57.

         In one incident, on our around June 14-15, 2011, Plaintiff went to a two-day training class with two other officers, neither of whom had advocated for twelve hour shifts; those officers “were reassigned days off and given training days for the two days of the class” and “were given the benefit of not having to use their own time off because of it[, ]” whereas Plaintiff “was not permitted to reassign days or use training days, and had to use two holidays.” Id. ¶¶ 166-70.

         After more incidents of what Plaintiff characterizes as retaliation (id. ¶¶ 171-92 (including an incident where twenty-five disciplinary charges were given to “officers who had advocated for twelve hour shifts, while other officers who did not advocate for twelve hour shifts were not charged” regardless of the fact that some who were charged, like Plaintiff, did nothing wrong, id. ¶¶ 183-91)), Plaintiff was accused of falsifying his logbook in a manner he contends was pretextual and targeted at him because of his advocacy for twelve hour shifts, due to alleged discrepancies in his logbook for June 4-5, 2014, and was ultimately removed from his position. Id. ¶¶ 193-255.

         Plaintiff alleges that there “is no policy, procedure, or custom as to how Pennsauken's officers prepare their activity logs, or that specifies which clock to use” and it is therefore “common for activity logs to have inaccuracies as officers switch clocks and do not have a uniform method for filling them out.” Id. ¶¶ 207-08. Plaintiff alleges that he was targeted by Coffey for review of his log book; his log sheets “were the only ones that” Coffey “had questions about”; that when he adequately answered Coffey's first challenge to his log sheets, Coffey asked the Internal Affairs Officer to investigate the situation because Coffey “was hoping to find something he could charge Foster with in continuing retaliation for his advocacy of twelve hour shifts.” Id. ¶¶ 209-18.

         The investigation continued through July 2, 2014, when the IA officer questioned Plaintiff, who blamed his use of several different (apparently inaccurate) clocks to fill out his log book on the night in question; Plaintiff alleges that the IA officer did not ask him about the different clocks or to explain alleged discrepancies because the IA officer “was not interested in a fair investigation”; “[a]s an ally to Defendant Coffey, [the IA officer] Defendant Gehring was simply carrying out Coffey's mission to retaliate against Foster.” Id. ¶¶ 222-26. The IA officer recommended charges to Defendant Connor, another “ally to Defendant Coffey” who pursued disciplinary charges against Plaintiff, which Plaintiff alleges, “both collectively and individually, were brought in retaliation for Foster's exercise of his First Amendment Rights.” Id. ¶¶ 227-34.

         Plaintiff alleges that “[o]ther police officers on duty the morning of June 5, 2014 were at HQ as long as Foster, and had discrepancies in their log books, but were not disciplined[, ]” naming two officers whose “logs were not consistent with the video from that evening[, ]” one of whom received a written reprimand, and the other a one day suspension, whereas Plaintiff “was suspended and Defendant Pennsauken sought termination”; Plaintiff contends that this constituted “selective enforcement” that “was motivated by a desire to retaliate against Foster[, ]” as the other two officers “did not exercise their First Amendment rights by advocating for twelve hour shifts.” Id. ¶¶ 235-44.

         Plaintiff alleges that, after the charges against him were filed, he “tried to meet with Pennsauken's Township Administrator in the hopes of resolving them” because he believed them “to be a meritless form of retaliation.” Id. ¶ 245. Plaintiff “requested a meeting” that was subsequently held with Plaintiff, “the Public Safety Director, the Township Administrator, and Officer Biazzo in his capacity as the union representative[, ]” where Plaintiff “complained of the Chief's ‘furious campaign to destroy' him.” Id. ¶¶ 246-47. However, he “was told there was nothing they could do to help him, and that he would have to wait for the process to play out.” Id. ¶ 248. Plaintiff alleges that, one to two weeks later, Coffey recommended Plaintiff “receive an additional disciplinary charge for being a ‘repeat offender[, ]'” allegedly “in retaliation for Foster exercising his First Amendment rights in going to complain to the Township Administrator.” Id. ¶¶ 249-50. Plaintiff was ultimately removed from his position on May 22, 2015. Id. ¶¶ 252.

         B. Procedural Background

         1. Case to Date and Instant Motions

         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]Instead, after the deadline to amend the Killion I complaint had lapsed, Plaintiff filed a separate action in this Court on August 22, 2016, alleging (inter alia) that the retaliation against him culminated in the log-book incident described above and his termination. [Docket Item 1 ¶¶ 158-71.] Plaintiff claimed 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.)

         This Court previously determined in Foster v. Twp. of Pennsauken, No. 16-5117, 2017 WL 2780745, *5-9 (D.N.J. June 27, 2017) that Plaintiff's Complaint was not barred by the doctrines of res judicata or collateral estoppel [Docket Item 27 at 12-26], but dismissed the Complaint without prejudice, finding that Plaintiff did not adequately allege claims of retaliation for exercising his First Amendment rights of speech and association, id. at 26-44.

         Plaintiff subsequently filed the Amended Complaint [Docket Item 29], seeking 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. Id. at ¶¶ 255-301. 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 ¶¶ 302-354. Count VI is a parallel claim asserted against John Doe defendants. Id. at ¶¶ 355-68.

         Defendants filed this Motion to Dismiss [Docket Item 32], and Plaintiff filed a Response in Opposition [Docket Item 36], to which Defendants filed a Reply [Docket Item 39]. By leave of the Court [Docket Item 41], Plaintiff filed a short sur-reply [Docket Item 42].

         2. Collateral Estoppel-Related Effect of Decisions of Administrative Law Judge and Appellate Division

         Subsequently, Defendants filed a letter requesting leave to file supplemental briefing in further support of its Motion to Dismiss. [Docket Item 43.] This request was made after the Appellate Division of the Superior Court of New Jersey affirmed the final agency decision by the Civil Service Commission upholding an Administrative Law Judge's decision to remove Plaintiff from the Pennsauken Police Department; Defendant argues that this is relevant to the instant motion as the Appellate Division's judgment was “final and non-appealable” and their collateral estoppel defense, previously rejected by this Court as premature, “is now ripe.” Id. at 1 (citing Bridge v. Fogelson, 681 Fed.Appx. 137 (3d Cir. 2017)).

         Plaintiff opposed this request, as he asserted that it was “based on a fundamental misstatement of the facts”: although Defendants contend that “retaliation was a central theme to Douglas Foster's defense in the administrative hearing[, ]” it “undisputabl[y]” “was not[.]” [Docket Item 44 at 1.] Accordingly, according to Foster, the Appellate Division “was not presented with nor did it consider the issue of retaliation”; and because “that issue was not reviewed by the state court, preclusion would be inappropriate, ” citing Edmundson v. Borough of Kennett Square, 4 F.3d 186, 189 (3d Cir. 1993).

         Per the filings included by the parties, the Appellate Division affirmed the ALJ's decision because it found that the ALJ's findings were supported by the record, and therefore were “entitled to [its] deference” when the ALJ 1) concluded that Plaintiff's log book “undisputed[ly]” was incorrect; 2) “deduced” that Plaintiff “covered” the half-hour when he “either had to leave the time unaccounted for or list himself at headquarters for some reason that he might not be able to justify, or for no reason at all” “by asserting in an official record that he was on patrol . . ., which of course he was not”; and 3) “meticulously debunked” Plaintiff's contention that the inaccuracy “resulted from inaccurate clocks” and found Plaintiff's story “simply not credible[.]” [Docket Item 44-1 at 3, In the Matter of Douglas Foster, No. A-1826-16T3, 2018 WL 2011656, at *1-*2 (N.J.Super. App. Div. May 1, 2018).] The court noted its “limited appellate role” and “extend[ed] a strong presumption of reasonableness' to an administrative agency's exercise of its statutorily delegated responsibility[, ]” concluding that “the ALJ's findings were well-supported by the record and that this decision was not arbitrary, capricious or unreasonable.” Id. at *1 (quotations omitted).

         The Court will address Defendant's request for leave to file a supplemental brief more fully in a letter that shall be filed to the docket separately from this Opinion. The Court notes that, while the parties dispute the application of the doctrine of collateral estoppel to the claims at issue here, there is a further, more fundamental dispute about the contours of the First Amendment claims pressed by Plaintiff. The present opinion and order are aimed at settling that dispute, and leaving for further briefing and future decision by this Court the narrower question of how the specific factual circumstance at issue here on this point of collateral estoppel (namely, that the ALJ found and the Appellate Division affirmed that Plaintiff was removed for cause) will affect the maintenance of Plaintiff's claims and the course of this case. Accordingly, the Court denies without prejudice Defendant's request to file supplemental briefing regarding collateral estoppel, in accordance with the Letter filed to the docket. In short, this Opinion addresses all issues the parties have briefed, and leaves to future briefing and analysis the collateral estoppel effects of the Appellate Division's affirmance of the ALJ's decision upholding Foster's termination for cause.


         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.


         The Court previously ruled that Plaintiff's earlier Complaint adequately alleged: that Plaintiff engaged in speech on a matter that may be of public concern [Docket Item 27 at 30-33]; that Defendants unjustifiably engaged in adverse conduct towards him that could constitute retaliation, see Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, 391 U.S. 563, 568-74 (1968) [Docket Item 27 at 33-35]; and that the Complaint adequately alleged a causal link between Plaintiff's allegedly protected speech and the alleged retaliation (id. at 35-39). See Foster, 2017 WL 2780745, at *11-13.

         In contrast, the Court found that Plaintiff's Complaint did not adequately plead: that Plaintiff engaged in the allegedly-protected speech or conduct as a private citizen (id. at 27-30); that Plaintiff engaged in protected associational conduct (id. at 40-42); and that there was a causal link between Plaintiff's allegedly protected associational conduct and the alleged retaliation (id. at 42-44). The Court noted Defendants' qualified immunity argument ...

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