Opinion
Civ. No. 00-5851 (DRD).
June 11, 2003
James F. Keegan, Bendit Weinstock, P.C., West Orange, New Jersey, Attorney for Plaintiffs.
Gregory R. Begg, Esq., Aaron C. Schlesinger, Esq., Peckar Abramson, P.C., New Jersey, Attorneys for Defendants.
OPINION
Plaintiffs Lad J. Bell and Michael A. DePompeo have moved for leave to file a second amended complaint in their action against Defendants Paul Ostrow, William Norton, John Bauer, Joseph Palazzola, Robert O'Neill, Gary Saage, and the Township of Teaneck. Their motion follows a reversal by the Court of Appeals of this Court's earlier decision dismissing in its entirety Plaintiffs' First Amended Complaint. The proposed Second Amended Complaint asserts claims for violations of 42 U.S.C. §§ 1983 and 1985, the First, Fourth and Fourteenth Amendments to the United States Constitution, and New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq., along with claims for intentional and negligent infliction of emotional distress. Plaintiffs base their claims on allegations that they were retaliated against for engaging in speech and union activity that exposed violations of state law and for their involvement in the federal case of Brennan v. Norton, 96-4061. Defendants have opposed the motion for leave to amend, contending that all the claims asserted in the proposed Second Amended Complaint are time barred and/or fail to state a claim on which relief can be granted. For the reasons stated below, Plaintiffs' motion will be granted in part and denied in part. The motion will be granted with respect to
1. Bell's claims asserting violations of rights under the First Amendment and under that portion of 42 U.S.C. § 1985(2) concerning the obstruction of proceedings in federal court, except to the extent that those claims are based on retaliatory conduct alleged in ¶¶ 25-70 of the Second Amended Complaint;
2. Bell's claims for violations of CEPA, except to the extent that those claims are based on retaliatory conduct alleged in ¶¶ 25-102 of the Second Amended Complaint;
3. De Pompeo's claims for violations of rights under the First Amendment, under that portion of 42 U.S.C. § 1985(2) concerning the obstruction of proceedings in federal court, and under the Fourteenth Amendment Due Process Clause, except to the extent that those claims are based on retaliatory conduct or deprivations alleged in ¶¶ 176-92 of the Second Amended Complaint;
4. DePompeo's claim for violations of CEPA, except to the extent that they are based upon retaliatory conduct alleged in ¶¶ 176-92 of the Second Amended Complaint.
The motion will thus be denied with respect to § 1983 claims based upon conduct in which Defendants are alleged to have engaged prior to November 29, 1998, with the exception that Bell may assert First Amendment and 1985(2) claims based in part on an alleged November 18, 1998 notification of charges communicated to him by Defendant Bauer (¶ 71 of the Second Amended Complaint). The motion will also thus be denied with respect to CEPA claims based on conduct in which Defendants are alleged to have engaged prior to November 29, 1999.
The motion will be denied with respect to all other claims asserted in the proposed Second Amended Complaint, including all claims alleging violations of the Fourth Amendment; all Bell's claims for violation of Fourteenth Amendment rights to due process; any claims based on denials of equal protection under the Fourteenth Amendment or under § 1985; and all claims for intentional or negligent infliction of emotional distress asserted by either Plaintiff.
BACKGROUND
The following account of the facts is drawn substantially from the proposed Second Amended Complaint.
Bell has been employed as a firefighter by the Teaneck, NJ Fire Department since 1987. DePompeo was also employed as a firefighter by the Teaneck Department from 1980 until his retirement in February 2002. The individual Defendants are and/or were at times relevant to the action officials of the Township of Teaneck or of its Fire Department.
In the Brennan action, the Teaneck Fire Department, along with Defendants Norton, Bauer, Palazzola, O'Neill, Saage, and the Township of Teaneck, was found to have retaliated against firefighter William J. Brennan. Plaintiffs are friends of Brennan and supported him in his claims against Defendants.
Defendants moved to set aside the verdict. The motion was denied as to the Township and Defendant Saage (but the punitive damages against Saage were vacated). The motion was granted with respect to the remaining defendants because there was no evidence that Brennan's exercise of his free speech rights was a substantial or motivating factor in any of the actions taken against him by the firefighter defendants. An appeal is pending.
I. Facts Relating to Bell's Claims
In August 1993, Bell supported Brennan in his bid for secretary of Fireman's Mutual Benefit Association Local 42. Brennan was running against Michael O'Neill, brother of Defendant Robert O'Neill.
In July 1994, before the Teaneck Mayor and Council, Bell spoke out against fire house closings. In February 1995, at a Council meeting, Bell spoke out against removing firefighters injured in the line of duty from the payroll.
In April of 1995, Bell was removed from the Department payroll by order of Defendant Saage. This removal apparently took place when he was off the job as a result of injuries sustained on duty. Bell asserts that the action was taken without warning and in violation of the relevant collective bargaining agreement. Bell also alleges Defendant Ostrow refused act on Bell's complaint that his injuries resulted from a breach of Department policy. Also in April 1995, Defendant Ostrow told Bell "not to get too heavily involved" with Brennan.
Bell was allegedly injured after being ordered to ride standing in a moving fire vehicle, but not by any of the Defendants.
Unless otherwise noted all quoted language in the Background portion of this opinion is drawn from the proposed Second Amended Complaint.
In October 1995 Bell was not permitted to attend a training class that other fire fighters were permitted to attend. In early 1996, Bell was repeatedly advised by a lieutenant, at the direction of Defendant Norton, to distance himself from Brennan.
On January 7, 1996 Bell, as a member of the union safety committee reported on various allegedly unsafe practices in the Department. On January 15, 1996, Bell was "transferred summarily" to another fire station, without any reason given for the transfer.
In November 1996, Bell was promoted and assigned to the Fire Prevention Bureau. Bell asserts that he should not have been involuntarily assigned to that bureau and that Defendant Palazzola acknowledged that the assignment was not desirable. Bell was later advised by Defendant Bauer that he could not "perform leave with substitute" for DePompeo (in which Bell would apparently perform DePompeo's duties). The reason given was that DePompeo could not reciprocate because Bell was assigned to the fire prevention unit.
In April 1997, Bell testified on behalf of Brennan in Fairview Municipal Court (in a criminal matter allegedly brought by order of Defendant Saage). Bell alleges that a short time after testimony in Fairview Municipal Court, in April of 1997, the Department failed to pay him overtime he had earned, obliging him to file a grievance to obtain payment. Later that month, a captain advised Bell: "Do yourself a favor and stay away from Brennan. He is only going to bring you down with him."
In October 1997, Bell gave a deposition in Brennan's federal case. In December 1997, Bell informed a council member that there were no garbage bags in the fire station. Defendant Bauer told Bell that Bell would be brought up on departmental charges for violation of chain of command if he ever spoke to a council member again.
In December 1997, Bell was injured while on a fire call. His doctor instructed him not to return to work. Thereafter, Bell received conflicting instructions from various Defendants regarding whether he should return to work. After Bell was injured on duty in December of 1997, although Defendant Norton advised him he was not obliged to return to work, he was ordered back to work by Defendant O'Neill, who advised him that "they" had spoken with Bell's doctor and had been advised that Bell could do light duty work. On January 30, 1998, after Bell had returned to work, Defendant Palazzola delivered to Bell a letter from O'Neill containing what Bell alleges generally were "erroneous and insulting" allegations. The letter also included a suggestion that the "thought of money going anywhere except to you [Bell] is upsetting" — language that Bell interprets as a veiled anti-Semitic remark.
Bell asserts that he was turned away by Defendant Palazzola when he (Bell) responded to a fire while off duty in March of 1998, while other firefighters, in accordance with common practice, were not.
The date given for the incident in the Second Amended Complaint is March 30, 1997. But the position of the allegation in the otherwise chronological order of events in the pleading suggests that the intended year is actually 1998.
In August 1998, Bell and other firefighters were subpoenaed to testify on behalf of Brennan at the Office of Administrative Law. Bell asserts that although other firefighters were paid by the Fire Department for their appearances, Bell was not paid until he filed a grievance. (Bell' allegations indicate that Norton and Saage were involved in withholding payment.)
In September 1998, Bell signed an affidavit in support of Brennan for Brennan's federal case. Bell claims that in October of 1998, Defendant Bauer ordered that early morning phone calls be made to the station where Bell and Brennan were sleeping and that Bauer refused to investigate an incident in which an alarm in the station went off at 3 a.m.
In November of 1998, allegedly because of his association with Brennan, departmental charges were brought against Bell for placing a rag in a non-emergency fire station telephone bell, despite the fact that muffling the bell was common practice. He asserts that at the hearing on those charges he was denied the opportunity to present witnesses on his behalf. On November 13, 1998, Bell received a two-day suspension (imposed by Norton) for the incident.
On November 18, 1998, Bauer informed Bell that he would be asserting additional charges relating to an incident in which Bell used a Department vehicle to pick up pizza. Bell states that he did not receive written notice of the charges or notice of the "specific bases" of the charges. Bell was found guilty at a departmental hearing; but the ruling was later overturned by an arbitrator, who ordered that Bell receive back pay, benefits, and restored seniority — an order that Bell alleges was not complied with "promptly."
There appear to be several separate references in the Second Amended Complaint to the proceedings relating the this pizza incident. It appears that formal charges were brought in February of 1999; a hearing (from which Bell's lawyer was excluded) was held in March of 1999; a two-day suspension was imposed on March 8, 1999 (allegedly in a decision citing rules that had not been invoked in the notice of the charges); a request (directed at Norton and Saage) that the suspension be "grieved and appealed" was denied; and the decision imposing the suspension was ultimately reversed by an arbitrator in August of 2000. The Second Amended Complaint seems to refer to a suspension imposed (for a pizza incident) in approximately January of 2001, but this date appears erroneous, as the cited decision is said to have been overturned in arbitration in August of 2000.
In November 1998, Bell took sick leave, sought psychiatric treatment, and was diagnosed with post-traumatic stress disorder and employment-related stress. On November 30, 1998, Defendant Bauer called Bell and demanded that Bell provide a note indicating his inability to work and that he do so immediately (rather than upon his return to work, as provided by the relevant contract). On December 9, 1998, Palazzola delivered to Bell a note from Norton demanding to know when Bell would be returning to work. Norton also made repeated additional demands for a doctors' notes at various times in late 1998 and early 1999.
On December 30, 1998, while Bell was out on sick-leave, he was transferred to the Fire Prevention Unit. According to Bell, Defendant O'Neill informed Bell's co-workers that the transfer was made to deprive Bell of days of leave. (Bell indicates, although not with perfect clarity, that the policy governing sick days in the Fire Prevention Unit was different from the policy "on the line.")
On March 21, 1999, Bell allegedly worked overtime for which he was not properly paid. In August and September 1999, while on sick leave after being injured at a house fire, Bell was required to report to work weekly to advise Defendant Norton of his status. No other firefighter was required do so.
In August 1999, Bell appeared before the Council and spoke out against safety hazards within the fire department. Bell asserts that in retaliation for his testimony in support of Brennan, and after being granted leave under the Family Medical Leave Act (in October of 2000), he was advised (by Deputy chief Montgomery) that he would be required to forfeit five tours of overtime. He was obliged to file a grievance to get the overtime reinstated. Bell notes that Defendant Norton never spoke to Montgomery about his allegedly improper action with respect to Bell's overtime.
It is not entirely clear whether Montgomery's action took place at approximately the time the leave was granted or when Bell apparently returned from it (in January 2001). His grievance was apparently successful. But Bell notes only that he has not received the relevant pay "to date."
In October 2000, Bell was subpoenaed to testify on behalf of Brennan. Bell asserts that he was not compensated for his time spent testifying for Brennan in October 2000.
In August 2000, Bell spoke with a reporter from the Bergen Record regarding Teaneck's failure to conduct life hazard inspections properly, prompting a series of articles published in that newspaper.
Bell asserts that in November of 2000 Defendants conspired to unlawfully promote officers from an expired list in an effort to deprive Bell of a promotion. He asserts that as a result of the use of the expired list he was "deprived of his right to participate in the selection and promotion process," which he asserts is a property right under state law governing promotion.
Bell alleges that he has been the victim of retaliation subsequent to the filing of the present action. He cites the refusal of the Township (specifically Norton) and its insurer to pay for certain medical expenses in early 2001. He notes several instances in which he was ordered to write up reports on minor incidents. He notes that in January 2001 Defendant O'Neill ordered all Fire Department company journals removed from the firehouse. Bell also alleges that in several instances he was denied vacation days he had chosen. (Those decisions were apparently eventually, at least in part, overturned.)
In December 2001 Bell was charged with insubordination. Shortly thereafter he wrote to Norton requesting that the charge be dismissed and that Norton recuse himself from hearing the charge. Norton denied the requests. A hearing was conducted; Bell was found guilty and given a written reprimand. He was also given a written reprimand on January 2, 2002 for failing to follow the chain of command in connection with an incident involving illegal garbage dumping at a fire station.
Bell's superiors ignored his April 12, 2002 request for a commendation for two members of the Department. On or about June 24, 2002, Norton and Bauer warned a member of Bell's company that he (Bell) was a "loose cannon." In August of 2002, Bell's superiors began returning reports he had prepared and ordering them corrected. He was also asked to rewrite reports that were allegedly missing.
II. Facts Relating to DePompeo's Claims
DePompeo was a long-time friend to Brennan and Bell. DePompeo alleges that he reported an asbestos hazard at a fire station, filed grievances and complaints with the appropriate agencies and departments, filed criminal charges against Defendant Saage, and has testified against Defendants. DePompeo alleges that he has been retaliated against because of this "whistle blowing activity" and because of his association with Brennan and Bell.
DePompeo alleges that in retaliation for his activities he was denied a request for leave with substitute, even though that request had been granted to other firefighters, that previously authorized vacation days were revoked, and that Brennan and DePompeo were reassigned after reporting the asbestos hazard in February 1996.
In January 1997, two months after being promoted to the position of Lieutenant, DePompeo received an unsatisfactory progress report. Thereafter (at an unspecified time, but clearly at some time in 1997), he was demoted. After the demotion, DePompeo was restored to the promotion list, where as a veteran ranked first on the list DePompeo was allegedly entitled to the next available promotion. At a March 1997 meeting with Defendant Norton, DePompeo was told that he would be removed from the promotion list unless he agreed to waive his veteran rights (preference afforded veterans in the promotion process) for one year. In spite of specific instruction to Defendant Saage from the New Jersey Department of Personnel, DePompeo did not receive the next promotion. In May 1997, DePompeo accused Saage of official misconduct. Allegedly in retaliation, Saage requested that DePompeo be removed from the promotion list to which he had "recently" been restored. The Second Amended Complaint does not specify when the request was made (although reference to DePompeo's return to the list as recent does suggest the request came in or soon after May of 1997). Plaintiffs also do not state explicitly that DePompeo was actually removed from the list. However, the most reasonable reading of the allegations (and the most favorable to Plaintiffs) is that he was removed from the list at some unspecified time after the request was made.
The promotion of another firefighter was announced on April 1, 1997. DePompeo contends that he was passed over for promotion because of his friendship with Brennan and Bell, because of his assistance and his willingness to assist in Brennan's legal actions against the Defendants, and because of his reporting of the asbestos hazard.
In approximately November 2000, DePompeo requested a hearing before an administrative law judge on his entitlement to promotion. A hearing was ultimately scheduled in February 2002.
Plaintiffs contend that in November 2000, Defendants "advanced a scheme to promote officers from an expired list" in order to deprive DePompeo of a promotion.
III. Procedural History
This case has returned to this Court on remand from the Court of Appeals, which reversed this Court's April 4, 2001 decision dismissing all the claims asserted in the Plaintiffs' Amended Complaint. (The legal claims asserted in the Amended Complaint were essentially the same as those asserted in Second Amended Complaint.) The April 4, 2001 decision dismissed Plaintiff's First Amendment Claims on a combination of grounds, holding that Plaintiffs had failed to offer sufficient allegations of protected activity or of a causal relation between their protected activity and the alleged retaliatory action, and holding that many of the claims were time-barred. Plaintiffs' other federal claims were also dismissed as either untimely or meritless or both. The state law claim were dismissed for lack of subject matter jurisdiction pursuant to 28 U.S.C. § 1367.
The Amended Complaint included a RICO count that does not appear in the Second Amended Complaint; factual allegations have been added to the Second Amended Complaint to account for events since the Amended Complaint was filed; and the Second Amended Complaint also includes some insubstantial revisions.
In reversing, the Court of Appeals held that Plaintiffs had sufficiently pleaded that they had engaged in protected activity. It also determined that the Amended Complaint contained sufficient allegations of a causal connection between protected activity and allegedly retaliatory acts. The Court of Appeals also determined that this Court erred by dismissing Plaintiffs' claims as time barred without discussing the applicability of the continuing violation doctrine. The panel's opinion did not specifically discuss the merits of any claims other than those founded on the First Amendment.
DISCUSSION
IV. Standard of Review
Fed.R.Civ.P. 15 provides generally that leave to amend "shall be freely given when justice so requires." "Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993). An amendment is futile where the complaint as amended would fail to state a claim upon which relief could be granted under Rule 12(b)(6). Burlington, 114 F.3d at 1434. In arguing that some or all of the claims in the proposed Second Amended Complaint are not viable, Defendants suggest that the Amendments would be futile.
A complaint must be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In analyzing a motion to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. See Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991).
II. First Amendment Claims
A. Statute of Limitations and the Continuing Violation Doctrine
A two-year statute of limitations applies to claims brought pursuant to 42 U.S.C. § 1983. See Plain v. Flicker, 645 F. Supp. 898, 901 (D.N.J. 1986). The original Complaint in this matter was filed on November 29, 2000. Therefore, Plaintiffs would generally be prevented from asserting claims based on events that occurred prior to November 29, 1998. The Court of Appeals has however indicated that the continuing violation doctrine may permit Plaintiffs to assert some or all of the claims that would ordinarily be time-barred; and it remanded the case for an analysis of continuing violation issues.
The Court of Appeals instructions were as follows:
"Although plaintiffs had raised this theory before the District Court, the District Court in its decision to dismiss the Amended Complaint did not address the possibility of a `continuing violation' exception to the Section 1983 statute of limitations. We will remand the case for such an inquiry."Bell v. Ostrow, No. 01-2278, 2002 WL 1194492, at **2-**3 (3d Cir. Jun. 4, 2002).
With one exception, the continuing violation doctrine does not operate to preserve any of Plaintiffs' claims with respect to any instances of Defendants' conduct dated prior to November 29, 1998. Accordingly, with that one exception, the present motion must be denied to the extent that the proposed Second Amended Complaint asserts claims based on Defendants' conduct before that date.
The time barred allegations of conduct giving rise to Bell's claims are made in ¶¶ 25-70 of the Second Amended Complaint. The time barred allegations of conduct giving rise to to DePompeo's claims appear in ¶¶ 176-92. Paragraphs 173-74 and 194-95 include undated allegations (relating to DePompeo) that may or may not be time barred; accordingly, Plaintiffs must be permitted to plead those allegations. Claims may not be rejected on statute of limitations grounds on a motion to dismiss (or, by analogy, on a motion for leave to amend) unless the complaint itself revels that the claims at issue are untimely. A court may dismiss a complaint for failure to state a claim, based on a time bar, where "the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978). Similarly, "Courts have granted motions to dismiss under Fed.R.Civ.P. 12(b)(6) for untimeliness despite allegations of the continuing violations theory where, on the face of the complaint, the theory was inapplicable." Vinson v. Seven Seventeen HB Philadelphia Corp., No. Civ. A 00-6334, 2001 WL 1774073, *13 (E.D. Pa. Oct. 31, 2001) (citing Cortes v. R.I. Enter., Inc., 95 F. Supp. 2d 255, 263 (M.D. Pa. 2000)); See, e.g., Cowell v. Palmer Twp., 263 F.3d 286, 292-93 (3d Cir. 2001).
The continuing violations doctrine is an "equitable exception to the timely filing requirement." West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). Under the continuing violation doctrine, "when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period." Cowell v. Palmer Tp., 263 F.3d 286, 292 (3d Cir. 2001).
The Court of Appeals stated the criteria governing the application of the doctrine in its June 4, 2002 opinion:
In order to benefit from the doctrine, a plaintiff must establish that the defendant's conduct is more than the occurrence of isolated or sporadic acts. Regarding this inquiry, we have recognized that courts should consider at least three factors: (1) subject matter — whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation; (2) frequency — whether the acts are recurring or more in the nature of isolated incidents; and (3) degree of permanence — whether the act had a degree of permanence which should trigger the plaintiff's awareness of and duty to assert his/her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.Bell, 2002 WL 1194492, at **3 (quoting Cowell, 263 F.3d at 292) (internal quotation marks omitted).
Defendants note that the recent Supreme Court decision inNational R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), clarified the application of the continuing violation doctrine to Title VII claims, and they contend that Morgan controls the result in the present case. In Morgan the Supreme Court held that discrete discriminatory or retaliatory employment actions — such as termination, failure to promote, denial of transfer, or refusal to hire — are by definition not continuing violations and are not actionable if time barred, even if they are related to acts alleged in timely claims. Id. at 113-14. The Court contrasted claims of discrete acts of discrimination with hostile work environment claims. Noting that hostile work environment claims by definition involve cumulative conduct, the Supreme Court determined that a "hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice," Id. at 117, for the purposes of Title VII; and it held:
Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.Id. at 117. Defendants suggest that under the principles set forth in Morgan all Plaintiffs' claims based on conduct outside the limitations period would be time barred.
Morgan is not however directly applicable to the continuing violation analysis in this case. Morgan is of course a Title VII case, and its reasoning is focused upon and bound up with Title VII concepts such as the definition of a violative employment practice and the distinction between discrete acts of discrimination and a hostile work environment. Because First Amendment violations are defined differently from Title VII violations, Morgan's mode of analysis cannot be transported directly into the First Amendment realm.
Given that much of the alleged conduct (both before and after the critical November 1998 date) resembles petty harassment more than discrete employment actions, it is not clear that applying Morgan would actually produce Defendants' preferred result. But, as the following discussion shows, it is unnecessary to determine what the result might be if one attempted to applyMorgan's principles strictly to Plaintiffs' § 1983 claims under the First Amendment: Morgan, though informative, does not strictly apply to this case.
Whereas, as Morgan illustrates, the defining characteristic of a Title VII violation is its effect on employment status or on the terms or conditions of a plaintiff's employment, the defining characteristic of a First Amendment violation in the employment context is the effect or potential effect of the violation on protected speech. "[T]he Supreme Court and the Third Circuit have recognized that any retaliatory conduct `sufficient to deter a person of ordinary firmness from exercising his First Amendment rights' is actionable under § 1983." Marrero v. Camden County Bd. of Soc. Services, 164 F. Supp. 2d 455, 467 (D.N.J. 2001) (quoting Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000), and citing Rutan v. Republican Party, 497 U.S. 62 (1990)). Even in the context of retaliation claims, the "adverse employment action" that supports a Title VII retaliation claim is different from, and more narrowly defined than, the adverse employment action required for a First Amendment violation. See Marrero, 164 F. Supp. at 473. Because First Amendment and Title VII violations are defined differently, it follows that the continuing violation for the two types of claim should not be identical.
At least two Courts of Appeals have indicated that theMorgan analysis applies to § 1983 claims. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061-1062 (9th Cir. 2002);Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003). At least one district court in this circuit has declined to apply Morgan in a § 1983 case. See Moiles v. Marple Newtown School Dist., No. CIV.A. 01-4526, 2002 WL 1964393, *5 (E.D. Pa. Aug. 23, 2002). That court distinguished what it described as the "equitable" continuing violation doctrine from the doctrine discussed inMorgan. As awkward as the idea of two continuing violation doctrines may appear, the distinction invoked in Moiles has at least some basis in the case law. The Morgan Court did specifically note that it did not purport to limit the availability of equitable doctrines, and in fact its discussion appears far more concerned with the timing of the accrual of claims than with the sort of "equitable exception" to timeliness requirements that the Court of Appeals discusses in West, 45 F.3d at 754, and other cases.
Because it does not appear that Morgan's bifurcated scheme supplanted the Third Circuit test for continuing violations in § 1983 First Amendment cases, the following analysis applies that test to the allegations in the proposed Second Amended Complaint.
1. Bell's Claims
With the one exception already noted (Bauer's November 18, 1998 communication with Bell), the continuing violation doctrine does not operate to preserve Bell's claims based on conduct prior to November 29, 1998. The allegations relating to his claims describe an extensive array of supposed retaliatory actions over a period beginning in 1995 and ending in 2002. But instances of retaliation take many different forms; there are long gaps in the series of alleged instances of retaliation, including some several months in duration; and, most significantly, before November 29, 1998 the alleged campaign of retaliation had produced discrete punitive acts that triggered Bell's duty to assert his claims. Accordingly, an application of the factors stated in Cowell compels the conclusion that the challenged claims are time barred.
The first two criteria in the continuing violation analysis, subject matter and frequency, do not favor (although they might not by themselves preclude) a finding of continuing violation with respect to Bell's claims. Although all the actions alleged are broadly similar in the sense that they are all retaliatory, there are also important differences between them. The allegations embrace a wide variety of conduct including official disciplinary actions, transfers, non-payment of overtime, insults, and harassing wake-up calls. In addition, the actions allegedly represent retaliation for a series of statements by Bell. Even granting the (somewhat extravagant) assumption that resentment of statements made in 1995 continued to motivate actions taken in late 1998 (despite intervening periods of several months with no retaliatory activity), and that therefore there was some continuity of motive linking all the alleged conduct, the later acts represented retaliation for more statements than the earlier acts; and those later acts were accordingly not identically motivated.
Regarding the frequency prong of the continuing violation test, there are, as already noted, several very long gaps in the series of alleged violations that Bell recites, including one of approximately 11 months in 1996, another of 4 months between December of 1996 and April of 1997, another of 8 month between April and December of 1997, and another of 5 months between March and August of 1998. Although there is no firmly established rate at which acts must occur to constitute a continuing violation,see Cowell, 263 F.3d at 295, several such long stretches of inactivity strongly suggest, at least with respect to events before August of 1998, that the alleged violations were more sporadic than continuous. Cf. Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 484-85 (3d Cir. 1997) (discussing a seven month gap in Konstantopoulos v. Westvaco Corp., 112 F.3d 710, (3rd Cir. 1997), and noting that "careful analysis must be made before acts are considered part of a pattern").
The decisive factor in determining whether Bell can benefit from the continuing violation doctrine is the "degree of permanence" factor, which the Court of Appeals has suggested might be the most important in the analysis. See Rush, 113 F.3d at 482. At least two of the actions allegedly taken against Bell before November 29, 1998 were sufficiently conclusive to trigger his duty to assert his claims: his removal from the payroll in 1995, and the imposition of a two-day suspension on November 13, 1998. The triggering effect of such actions is even clearer if one considers that Defendants allegedly advertized their resentment of Plaintiffs' support for Brennan and of their protected activities. The occurrence of these acts that inflicted discrete injuries at precise times distinguishes this case from one involving a pattern of harassment that never includes a single, clearly actionable event. Compare West, 45 F.3d at 756 (concluding that harassment was a continuing violation where it "did not cause a discrete event such as a lost job or a denied promotion and, thus, it did not trigger a duty of the plaintiff to assert his rights arising from that deprivation.")
The definitiveness of the retaliatory conduct and the alleged transparency of the Defendants' motives also preclude any resort to a discovery rule or equitable tolling as a means of escaping the effect of the statute of limitations. See Rolax v. Whitman, 175 F. Supp. 2d 720, 727 (D.N.J. 2001) ("A federal civil rights action accrues when the plaintiff knew or had reason to know of the injury that constitutes the basis of the action."), aff'd, No. 01-4229, 2002 WL 31528790 (3d Cir. Nov 15, 2002); Scott v. IBM Corp., 196 F.R.D. 233, 252-53 (D.N.J. 2000) (declining to apply equitable tolling where the plaintiff was aware of facts supporting the cause of action and deception did not cause non-compliance with limitation).
The only allegation of conduct outside the statutory period that can properly be said to combine with later conduct to form a continuing violation is Bauer's November 18, 1998 communication to Bell of charges that resulted in disciplinary action within the statutory period.
Because Bell's First Amendment claims do not involve a continuing violation, with the one noted exception, he cannot be permitted to assert claims predicating liability on conduct prior to November 29, 1998.
2. DePompeo's Claims
Application of the continuing violation test to DePompeo's claims yields a similar result for similar reasons. In ¶¶ 176-92 DePompeo alleges a number of retaliatory actions taking place no later than 1997, the most serious being his demotion following a test period at a higher rank. Paragraph 194 indicates that at most two allegedly retaliatory events took place between April of 1997 and November of 2000 (those two events being Saage's request that DePompeo be removed from the eligible promotion list and, presumably, the actual removal). In addition, the conduct alleged to have occurred before the statutory period includes the sort of clear and distinct retaliatory acts that triggered a duty to assert any claim. Given the timing and the nature of the acts alleged, DePompeo may not invoke the continuing violation doctrine to assert claims based on the pre-November 29, 1998 conduct.
B. The Merits
In addition to their statute of limitations arguments, Defendants also contend that Plaintiffs' claims against the individual Defendants should be dismissed for failure to allege personal participation in any actionable conduct. The proposed Second Amended Complaint is however not defective in this regard. The section devoted to Bell's claims alleges at least some personal involvement in the alleged pattern of retaliation by all of the individual Defendants — both before and after the beginning of the statutory period. The section devoted to DePompeo's claims also attributes conduct to all the Defendants.
It is true that only one Defendant (Saage) is mentioned by name in allegations describing conduct potentially within the statutory period: DePompeo simply asserts that Defendants collectively "advanced a scheme to promote officers from an expired list" and thereby deny him a promotion. However, the failure to name Defendants one by one in connection with this allegation is not at this stage a basis on which to dismiss the claims against them. Especially in light of the allegations of personal involvement in retaliatory acts and employment decisions elsewhere in the pleading, it must be read generously to represent an assertion of personal involvement on the part of all the Defendants.
Defendants also argue that DePompeo's claim regarding the use of an expired list is futile because he cannot show that the use of an expired list deprived him of a promotion he would otherwise have received. Citing DePompeo's allegations regarding requests to remove him from a promotion list, and offering lists on which his name does not appear, Defendants contend that DePompeo would not have been eligible for promotion even if the allegedly expired list had not been used. This argument, however, though it may be appropriate on a summary judgment motion, reaches too far beyond the pleadings to be considered in connection with the present motion. In addition, one construction of DePompeo's allegations with respect to the use of an expired list is that the use of the list after he had been removed from it compounded the injury he sustained by being removed from the list: promotions that should have gone to him by virtue of his lost position on the list went to others.
III. Section 1985 Claims
42 U.S.C. § 1985 provides a cause of action for injuries resulting from a conspiracy
"to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified."42 U.S.C. § 1985(2). It also provides for claims arising from conspiracies to obstruct justice in state court "to deny to any citizen the equal protection of the laws." Section 1985(3) renders actionable injuries caused by conspiracies aimed at depriving any person of "the equal protection of the laws."
Plaintiffs have pleaded that Defendants' adverse conduct toward them was motivated in part by a desire to deter possible testimony in federal proceedings and by a desire (in Bell's case) to retaliate for such testimony. Plaintiffs have accordingly stated claims under the relevant portion of § 1985(2).
Especially in DePompeo's case, establishing a sufficient nexus to federal proceedings appears a difficult task. But such a connection is pleaded.
However, Plaintiffs' § 1985 claims suffer from the same untimeliness problems as their § 1983 First Amendment claims. Ordinarily, the statute of limitations on § 1985 claims runs from "the date of each overt act causing damage to plaintiff."Bougher v. University of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989). Because the conduct on which Plaintiffs base their claims is the same as the conduct underlying their First Amendment claims, the continuing violation analysis is substantially identical and produces the same result with respect to both types of claim. Accordingly, Plaintiff's may assert § 1985(2) claims only on the basis of the same conduct on which they may base their First Amendment claims.
Defendants contend that Plaintiffs have offered insufficient allegations of conspiracy to support a § 1985 claim. However, at this stage of the proceedings Plaintiffs' general allegations of conspiracy combined with their numerous allegations of personal participation in retaliatory acts suffice to state a claim.
Plaintiffs' claims under the second portion of § 1985(2) (relating to the obstruction of justice in state court) and under § 1985(3) are entirely futile because the Second Amended Complaint contains no indication that Defendants' actions were motivated by the "class-based animus" that is a required element of those types of claim. See Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971); Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir. 1999) (citing Kush v. Rutledge, 460 U.S. 719, 725 (1983)). The Complaint contains one reference to a remark that Plaintiffs construe as anti-Semitic. But Plaintiffs do not anywhere allege that any class based animus motivated Defendants' conduct.
IV. Fourteenth Amendment Due Process Claims
The following analysis assumes that Plaintiffs, under the due process heading, intend to assert only claims of deprivations of property without procedural due process. Plaintiffs' allegations do not suggest (much less support) any claim of deprivation of liberty, see Robb v. City of Philadelphia, 733 F.2d 286, 293-294 (3d Cir. 1984) (discussing liberty interest in the public employment context), or any claim raising substantive due process issues, see Nicholas v. Pennsylvania State University, 227 F.3d 133, 142-143 (3d Cir. 2000) (holding that an interest in a tenured position does not receive substantive due process protection).
A. Bell's Claims
Bell alleges a long series of deprivations of varying orders of magnitude. But none of the numerous alleged deprivations provides a sufficient basis for a claim that he was deprived of property without due process of law.
Many of the alleged deprivations clearly took place before November 29, 1998 and are therefore barred by the statute of limitations. The vast majority of the claims that are not time barred involve deprivations too insignificant to be actionable as due process violations under § 1983. Every breach of a government employment contract or regulation does not constitute a deprivation of property under the Fourteenth Amendment. See Ferraro v. City of Long Branch, 23 F.3d 803, 805-806 (3d Cir. 1994 (discussing, inter alia, Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988); Brown v. Brienen, 722 F.2d 360 (7th Cir. 1983)). Most of Bell's alleged deprivations, such as unpaid overtime, unwelcome transfers, reprimands, and denial of chosen vacation days, clearly fall into this category of deprivations not cognizable for due process purposes.
Bell does not appear to base any due process claims relating to deprivations before November 29, 1998 on the inadequacy of post-deprivation procedures. Indeed, the Second Amended Complaint describes several instances in which he successfully availed himself of them. Accordingly, the statute of limitations for each such claim could only run from the point at which the deprivation at issue occurred.
Bell's charge that he was denied an alleged right to participate in the promotion process also does not state a due process claim. In order to prevail on a due process claim with respect to a job or a job benefit, an employee must first establish a property interest in the employment or the benefit.See Latessa v. New Jersey Racing Comm'n, 113 F.3d 1313, 1318 (3d Cir. 1997). To have such a property interest, an employee must have a legitimate claim of entitlement, not simply a unilateral expectation. Id. Bell's interest in the mere chance to compete for a promotion does not amount to a Fourteenth Amendment interest in any job or job benefit. Cf. Robb v. City of Philadelphia, 733 F.2d 286, 293 (3d Cir. 1984) (finding no entitlement to a promotion where the plaintiff had not taken and passed the examination for the position).
Even if these minor deprivations were substantial enough to implicate due process concerns, the availability of extensive post-deprivation remedies for New Jersey public employees would satisfy any due process requirements to which the deprivations might give rise. Cf. Pollock v. City of Ocean City, 968 F. Supp. 187, 191 (D.N.J. 1997) (noting that procedures available to New Jersey public employees satisfy due process).
Probably the most serious deprivation that Bell claims (at least among those that are not clearly time-barred) is a two-day suspension imposed March 8, 1999. But even the allegations surrounding this suspension do not state a Fourteenth Amendment claim. It not certain that a brief disciplinary suspension of this sort is actually significant enough to amount to a deprivation of property for due process purposes. See, e.g., Carter v. Western Reserve Psychiatric Habilitation, 767 F.2d 270, 272 n. 1 (6th Cir. 1985). But even if it is, the procedures described in the Second Amended Complaint satisfy due process requirements for such a deprivation. Bell complains that he was not permitted to have counsel present at the hearing that preceded the suspension and that he had insufficiently specific notice of the rules under which he was charged. But even where an employee faces dismissal, there is no requirement for extensive, formal pre-deprivation proceedings. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). Here the allegations show that Bell was informed generally of the charges he faced and given an opportunity to address them. Nothing more is required. Nor do Bell's allegations indicate that he was substantially prevented from taking advantage of post-deprivation procedures. Indeed, he ultimately succeeded in obtaining a reversal of the suspension decision, recovering back-pay and benefits.
Because the procedures surrounding Bell's alleged deprivations were adequate to the interests at stake, he states no Fourteenth Amendment due process claim.
B. DePompeo's Claims
Like many of Bell's, several of DePompeo's claimed injuries took place before the statutory period and accordingly cannot support due process claims. The time barred deprivations include his 1997 demotion and his allegedly being passed over for a promotion to which he was entitled in April of 1997.
Other allegations with later or uncertain dates cannot be said to be time barred on the face of the Second Amended Complaint. In particular the non-time barred claims are those arising from events described in ¶¶ 194-204: most notably Saage's request that DePompeo be removed from the list (a request which was presumably effective in obtaining his removal), and the later use of what DePompeo terms an "expired" list — presumably the one from which DePompeo's name had been removed. Construed with what borders on excessive generosity, this portion of the Second Amended Complaint does appear to state a claim for deprivation of property without due process. Essentially, DePompeo alleges that he had a right to his position on the eligible list and that by virtue of that position and his veteran's status he had a right to the next promotion made (at least as against a non-veteran) as long as that list was in effect.
N.J.S.A. § 11A:5-7 provides that "whenever a veteran ranks highest on a promotional certification, a nonveteran shall not be appointed unless the appointing authority shall show cause before the board why a veteran should not receive such promotion." The right to veterans preference in hiring can amount to a property interest for due process purposes. See Carter v. City of Philadelphia, 989 F.2d 117 (3rd Cir. 1993). Although (as the Second Amended Complaint indicates) promotions involve test or probationary periods, employees appear to have a right not to be terminated without cause during the probationary test period. N.J.S.A. § 11A:4-15.
For these reasons, DePompeo has stated a due process claim that is not time barred. V. Fourth Amendment Claim
Pointing to ongoing state proceedings with respect to several of Plaintiffs' grievances, Defendants contend that the Court should abstain from hearing any viable due process claims under Younger v. Harris, 401 U.S. 37 (1971). The Younger doctrine provides for abstention where "(1) there are ongoing state proceedings involving the would-be federal plaintiffs that are judicial in nature, (2) the state proceedings implicate important state interests, and (3) the state proceedings afford an adequate opportunity to raise the federal claims." Marks v. Stinson, 19 F.3d 873, 882 (3d Cir. 1994). However, even to the extent that Plaintiffs present claims for equitable relief (with which Younger is concerned, Marks, 19 F.3d at 880-83) abstention is not warranted. "Where federal proceedings parallel but do not interfere with the state proceedings, the principles of comity underlying Younger abstention are not implicated." Id. at 882. In addition, Younger abstention is inappropriate where the state proceedings at issue are remedial rather than coercive.See Francis v. Springfield Tp., Civ. Action No. 00-6330, 2002 WL 922110, at *4 (E.D. Pa. May 1, 2002); McDaniels v. Flick, NO. CIV. A. 92-0932, 1993 WL 171270, at *5 (E.D. Pa. May 20, 1993).
As noted in this Court's prior opinion on the motion to dismiss, Plaintiff's have alleged no facts that support any claim under the Fourth Amendment.
The Court of Appeals did not express any disagreement with the disposition of the Fourth Amendment claims.
VI. State Law Claims
A. Emotional Distress Claims
New Jersey bars recovery for emotional harms against public entities and employees where such injuries do not "result from a permanently debilitating or disfiguring physical injury." Eggert v. Tuckerton Volunteer Fire Co. No. 1, 938 F. Supp. 1230, 1242 (D.N.J. 1996) (discussing N.J.S.A. 59:9-2). Because Plaintiffs have not alleged any such physical injuries, they may not assert emotional distress claims. The Second Amended Complaint does contain descriptions of physical injuries, including one that is alleged to have resulted from a violation of department regulations. But none of the injuries is alleged to have resulted from any Defendant's conduct.
Because the emotional distress claims are barred by statute, it is not necessary to decide whether Plaintiffs have made allegations sufficient for such claims. But it appears doubtful that they have made specific allegations of emotional injury severe enough to support claims for either negligent or intentional infliction of emotional distress. If they were not futile on the merits, Plaintiff's emotional distress claims would also be barred (at least to a considerable extent) by their failure to file timely notices of claim, discussed below with respect to CEPA claims.
B. CEPA Claims
1. Notice of Claim
The New Jersey Tort Claims Act bars actions for damages against public entities and employees if a notice of claim is not presented within 90 days of the accrual of the claim. N.J.S.A. 59:9-3; 59:8-8. Defendants assert that Bell has never filed a notice of claim and that DePompeo has filed one that is untimely with respect to most of his claims. However, both the Second Amended Complaint and Defendants submissions in connection with this motion refer to numerous administrative proceedings relating to many of the alleged instances of retaliation. It is at least conceivable that the various communications relating to these proceedings represented substantial compliance with the notice of claim requirement, although whether they actually did remains to be seen. At this point it would be inappropriate to dismiss claims on notice grounds.
2. Statute of Limitations
CEPA claims are covered by a one-year statute of limitation N.J.S.A. 34:19-5; Daniels v. Mutual Life Ins. Co., 340 N.J. Super. 11, 16 (App.Div. 2001). The limitations period for Plaintiffs' CEPA claims accordingly began on November 29, 1999. Bell's CEPA claims are therefore time barred to the extent that they are based on retaliatory acts alleged in ¶¶ 25-102 of the Second Amended Complaint. DePompeo's CEPA claims are time barred to the extent that they are based on retaliatory acts alleged in ¶¶ 176-92.
No continuing violation analysis alters this result, particularly because there is no cause of action under CEPA for retaliatory harassment: any CEPA claim must arise from the sort of conclusive employment action that takes place at a specific time. See Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 359-61 (App.Div. 2002), cert. granted, 174 N.J. 191 (N.J. 2002). The application of the continuing violation doctrine to CEPA claims is guided by Morgan. See Caggiano v. Fontoura, 354 N.J. Super. 111 (App.Div. 2002) (applying Morgan to claim under the New Jersey Law Against Discrimination and noting that CEPA and LAD cases adopt Title VII standards and methods). Accordingly any discrete actions that might constitute CEPA violations could not be considered continuing violations.
CONCLUSION
For the reasons stated above, Plaintiffs' motion will be granted in part and denied in part. The motion will be granted with respect to
1. Bell's claims asserting violations of rights under the First Amendment and under that portion of 42 U.S.C. § 1985(2) concerning the obstruction of proceedings in federal court, except to the extent that those claims are based on retaliatory conduct alleged in ¶¶ 25-70 of the Second Amended Complaint;
2. Bell's claims for violations of CEPA, except to the extent that those claims are based on retaliatory conduct alleged in ¶¶ 25-102 of the Second Amended Complaint;
3. De Pompeo's claims for violations of rights under the First Amendment, under that portion of 42 U.S.C. § 1985(2) concerning the obstruction of proceedings in federal court, and under the Fourteenth Amendment Due Process Clause, except to the extent that those claims are based on retaliatory conduct or deprivations alleged in ¶¶ 176-92 of the Second Amended Complaint;
4. DePompeo's claim for violations of CEPA, except to the extent that they are based upon retaliatory conduct alleged in ¶¶ 176-92 of the Second Amended Complaint.
The motion will thus be denied with respect to § 1983 claims based upon conduct in which Defendants are alleged to have engaged prior to November 29, 1998, with the exception that Bell may assert First Amendment and 1985(2) claims based in part on an alleged November 18, 1998 notification of charges communicated to him by Defendant Bauer (¶ 71 of the Second Amended Complaint). The motion will also thus be denied with respect to CEPA claims based on conduct in which Defendants are alleged to have engaged prior to November 29, 1999.
The motion will be denied with respect to all other claims asserted in the proposed Second Amended Complaint, including all claims alleging violations of the Fourth Amendment; all Bell's claims for violation of Fourteenth Amendment rights to due process; any claims based on denials of equal protection under the Fourteenth Amendment or under § 1985; and all claims for intentional or negligent infliction of emotional distress asserted by either Plaintiff.
An appropriate order will be entered.