NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1683-18T4
OSBADO HERNANDEZ,
Plaintiff-Appellant,
v.
HUDSON COUNTY, THE HUDSON
COUNTY SHERIFF'S OFFICE, and
FRANK X. SCHILLARI, individually
and in his official capacity as Sheriff of
the Hudson County Sheriff's Office,
Defendants-Respondents.
_______________________________
Argued December 11, 2019 – Decided July 15, 2020
Before Judges Koblitz, Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-3623-16.
Matthew R. Curran argued the cause for appellant
(Sciarra & Catrambone, attorneys; Matthew R. Curran
and Charles Joseph Sciarra, of counsel and on the
briefs).
Qing Hua Guo argued the cause for respondents County
of Hudson, the Hudson County Sheriff's Office and
Frank X. Schillari in his official capacity only (Chasan
Lamparello Mallon & Cappuzzo, PC, attorneys; Cindy
N. Vogelman, of counsel and on the brief; Qing Hua
Guo, on the brief).
Kristen Jones argued the cause for respondent Frank X.
Schillari (Piro Zinna Cifelli Paris & Genitempo, LLC,
attorneys; Daniel Robert Bevere, on the brief).
PER CURIAM
Plaintiff appeals from the November 29, 2018 Law Division order
granting summary judgment dismissal of his retaliation complaint against his
employers, the County of Hudson, the Hudson County Sheriff's Office (HCSO),
and Sheriff Frank X. Schillari in his official and individual capacities,
collectively defendants. We affirm.
On September 7, 2016, plaintiff, then a fifteen-year veteran Hudson
County Sheriff's Officer and State Delegate of the PBA Local 334, filed a
complaint alleging defendants violated the New Jersey Civil Rights Act
(NJCRA), N.J.S.A. 10:6-1 to -2, by retaliating against him for engaging in
protected union activities. The complaint alleged that plaintiff "suffered
retaliatory adverse actions," including (1) a May 27, 2015 Preliminary Notice of
Disciplinary Action (PNDA) and ensuing forty-five day suspension stemming
A-1683-18T4
2
from his participation as a Weingarten 1 representative in a September 9, 2014
Internal Affairs (IA) interview of his co-worker and then girlfriend, Detective
Vivian Rosado,2 his subsequent failure to maintain possession of his firearm
while on duty, and his failure to store his firearm while off-duty as directed
outside the residence he occasionally shared with Rosado pending the outcome
of the criminal complaint filed against her by her estranged husband and fellow
sheriff's officer, Matthew Fedrow; (2) the January 22, 2015 Sheriff's order
requiring plaintiff to store his firearm while off-duty in Jersey City, resulting in
a 114.4 mile daily commute; and (3) the February 2015 temporary reassignment
of plaintiff from his position as a drill and fitness instructor at the Essex County
Police Academy (Academy) to the Detective Bureau at Hudson Plaza.
1
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256-57 (1975) (holding that under
the National Labor Relations Act of 1935, 29 U.S.C. § 151-169, a union member
is entitled to representation at an interview by management, where the employee
reasonably believes that it will lead to disciplinary action). N.J.S.A. 34:13A-
5.4(a)(1) has been interpreted to provide public employees the same right,
which, if violated, will constitute an unfair labor practice. Hernandez v.
Overlook Hosp., 149 N.J. 68, 75 (1997).
2
At the time, Fedrow was Vivian's last name. Following her divorce, she
resumed the use of her maiden name, Rosado. Since filing the complaint, Vivian
and plaintiff married and Vivian assumed plaintiff's surname. To avoid
confusion, we refer to Vivian as Rosado throughout this opinion and intend no
disrespect.
A-1683-18T4
3
We derive the following facts from evidence submitted by the parties in
support of, and in opposition to, the summary judgment motion, viewed in the
light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213
N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523
(1995)). On September 9, 2014, Rosado was directed to respond to the IA Unit
to be interviewed and disarmed in accordance with the Attorney General
Guidelines related to the filing of a criminal complaint against an officer . The
Guidelines required the confiscation of Rosado's firearms pending the resolution
of the criminal charge filed against her by Fedrow. Upon request, Rosado was
permitted to bring plaintiff as her Weingarten representative. Although Captain
Liane Markowitz and Sergeant Richard Garcia, the IA officers conducting the
investigation, were aware of the romantic relationship between Rosado and
plaintiff, they were unaware that the two were occasionally cohabitating, and
plaintiff never indicated that they were. Under the circumstances, any
cohabitation by plaintiff and Rosado would impact the storage of plaintiff's
firearm as Rosado was not permitted to stay overnight in a residence where a
firearm was located.
Garcia and Markowitz claimed that during the interview, plaintiff was
"irate," "disruptive," and "unprofessional," repeatedly "interjecting" himself
A-1683-18T4
4
into the process, and attempting to record the interview on his own device
instead of relying exclusively on the official recording. Nonetheless, the
interview was not discontinued as permitted under the Attorney General
Guidelines. Ultimately, upon learning that Rosado kept her duty weapon at her
residence in Jersey City, all four officers proceeded to her residence to retrieve
the weapon. Rosado lived next door to her mother, who was present when the
officers arrived. While Rosado retrieved her weapon, plaintiff complained in
the presence of Rosado's mother that it was unfair that Rosado had to forfeit her
weapon while Fedrow, against whom Rosado had filed an earlier harassment
complaint,3 did not. When Rosado's mother accompanied the officers back to
the IA Unit, plaintiff continued to disparage the agency in her presence.
Subsequently, on September 25, 2014, plaintiff submitted a memorandum
to Markowitz notifying IA that as of September 25, 2014, he would no longer
store his firearm at his residence. Instead, plaintiff requested permission to store
his firearm overnight at the Academy, where he was temporarily assigned as an
instructor. Sheriff Schillari denied the request, explaining that the HCSO had
3
Rosado had also sought a temporary restraining order against Fedrow, but the
application was denied. Although Fedrow was ultimately disarmed as a result
of Rosado's harassment complaint, the disarming did not occur until later.
A-1683-18T4
5
no jurisdiction or control over the Academy and was therefore unable to monitor
the storage of the firearm.
Initially, on September 25, 2014, IA officers verbally directed plaintiff to
secure his firearm at Hudson Plaza, a county building that housed several
offices, including the Patrol Division of the HCSO. However, upon realizing
that Fedrow was the night shift supervisor there, which could lead to a
confrontation between the two, IA officers promptly countermanded the order
and directed plaintiff to store his firearm at the HCSO Court Bureau located in
the Hudson County Courthouse. The Court Bureau had sign-in/sign-out
procedures, gun lockers, and a desk supervisor under the direct supervision of
the HCSO's chain of command.
The verbal order was later memorialized in a written communication to
plaintiff from Garcia dated December 19, 2014, as well as a written
communication to Court Bureau personnel from Markowitz dated January 5,
2015. Based on the order, plaintiff was expected to deposit his firearm in the
designated locker in the Court Bureau at the end of each shift and retrieve it in
the morning before traveling to his post at the Academy. However, in a
December 19, 2014 report to Garcia, plaintiff confirmed that he had placed his
firearm in the locker at the Court Bureau on September 26, 2014, after being
A-1683-18T4
6
verbally advised to do so, and did not retrieve it until December 19, 2014. As a
result, plaintiff reported for duty during this time period without his firearm,
contrary to the HCSO policy that all officers be armed while on duty.4
On January 22, 2015, plaintiff was notified in writing by Garcia that,
pursuant to the Sheriff's order, he was required to maintain his firearm at all
times while on duty, regardless of his assignment. On January 23, 2015, plaintiff
was notified in writing by Markowitz that he was the subject of an IA
investigation for "failure . . . to maintain [his] firearm while on[-]duty . . . from
[September 21, 2014] to present." As a result, subsequently, plaintiff himself
underwent an IA interview, accompanied by his Weingarten representative.
While the IA investigation was pending, in February 2015, plaintiff was
temporarily reassigned from the Academy to the Detective Bureau at Hudson
Plaza. Thereafter, on May 27, 2015, plaintiff was served with a PNDA, charging
him with 1) conduct unbecoming a public employee; 2) insubordination; and 3)
other sufficient cause.
The PNDA specified that while plaintiff served as Rosado's Weingarten
representative on September 9, 2014, he "acted in a disruptive manner when he
4
The HCSO Uniform Firearms Policy (Hudson County Firearms Policy)
provides that, "all sworn members shall be armed while on[-]duty unless
otherwise authorized by the Sheriff or Chief."
A-1683-18T4
7
continually interrupted members of the [IA] Unit while an official inquiry was
being conducted." Further, the PNDA alleged plaintiff "failed to secure his
weapon as directed" to avoid Rosado's "access to firearms" while a criminal
complaint filed against her by her estranged husband was pending, and "failed
to maintain possession of his firearm while he was on[-]duty" from "December
21, 2014 through January 23, 2015." The PNDA indicated that disciplinary
action may range from thirty days' suspension to removal.
A disciplinary hearing was conducted on July 1, 2015, where plaintiff was
represented by counsel. In addition to Garcia's testimony, numerous exhibits
were presented, including the audio recording of the September 9, 2014 IA
interview, witness statements, and the IA investigation report. Plaintiff
conceded that he had not carried his firearm while he was on duty during the
period in question, but contended he was never directed "to pick up [his] weapon
to go to the [A]cademy every day." He stated that
in [his] current assignment as a [d]rill and fitness
instructor . . . [his] uniform of the day is [sweatpants]
and a [sweatshirt]. It would be dangerous to carry [his]
weapon with that attire due to the performance of [his]
duty. All of the instructors in the academy that are
[full-time] have the same attire as [he does] with no
weapon on them.
A-1683-18T4
8
On September 17, 2015, the hearing officer (HO) dismissed the charge of
conduct unbecoming an officer, but upheld the insubordination charge. In a
written opinion, the HO noted that plaintiff "should have known better," and
"made an error in judgment in deciding to officially represent his union member
while he was in a relationship with her." However, the HO found that , under
the circumstances, the unbecoming conduct charge was inappropriate. As to the
insubordination charge, while the HO accepted plaintiff's statement that he
"believed it was dangerous for him to carry his weapon because of the type of
uniform employed while he was an instructor[,]" the HO credited Garcia's
testimony and rejected plaintiff's explanation "that he did not clearly understand
his instructions." Instead, the HO found that plaintiff "intentionally did not
abide by the orders that were given to him as concerns his weapon . . . from
when he made his initial request [to store his weapon at the Academy] until an[d]
including January 23[], 2015."
After considering plaintiff's disciplinary record, consisting of a twenty-
day suspension in 2013 for "[u]nbecoming [c]onduct, [n]eglect of [d]uty, [and]
[i]nsubordination," the HO recommended a forty-five-day suspension, without
pay. The Sheriff signed a Final Notice of Disciplinary Action (FNDA) on
October 15, 2015, memorializing his approval of the disciplinary action.
A-1683-18T4
9
Plaintiff served his suspension over nonconsecutive days in October, November,
and December of 2015, and January and February of 2016.
Following the completion of discovery, defendants moved for summary
judgment over plaintiff's objection. Defendants asserted that contrary to
plaintiff's allegations, while the chronological genesis of the PNDA, the order
requiring plaintiff to store his firearm while off-duty at the Court Bureau, and
his temporary reassignment may have begun with the September 9, 2014 IA
interview, the actions were based on entirely separate conduct and were not
retaliation for plaintiff engaging in protected union activities.
Following two days of oral argument, the judge entered orders granting
defendants' motion and dismissing the complaint with prejudice. In a November
29, 2018 written opinion accompanying the orders, the judge posited that "[t] he
real issue . . . [was] whether the acts of the defendants could reasonably qualify
as 'retaliation' under the summary judgment standards." After applying the
governing legal principles, the judge concluded that they did not.
The judge explained:
The first count of the PNDA . . . goes beyond
merely complaining about plaintiff's interruptions
during the interview with . . . Rosado. It goes into facts
(apparently undisputed as conceded at oral argument)
about the scene plaintiff made with . . . Rosado’s
mother consisting of very disparaging remarks about
A-1683-18T4
10
the [IA] unit, including the use of vulgarity. Not just
equally important but more important it complains
about plaintiff's lack of forthrightness in not
acknowledging [on that date] that not only was he
dating . . . Rosado but that cohabitation (meaning she
would have access to his gun) was taking place. That
. . . plaintiff thought better and a few weeks later
acknowledged the cohabitation did not cure his lack of
candor on September 9, 2014. Based on these
[undisputed] facts no reasonable juror could conclude
that this action was based (wholly or even partially) on
plaintiff's legitimate role as a [Weingarten]
representative.
The second count of the PNDA deals with
plaintiff's alleged failure to store his gun at the [C]ourt
[B]ureau and pick it up each day and return it at the end
of each day before going home. The PNDA alleges that
on September 25, 2014 (when it first became known
that plaintiff was cohabitating with . . . Rosado)
plaintiff requested to be allowed to leave his gun
overnight at the . . . Academy and this request was
specifically denied, with plaintiff being told to bring his
gun to work each day and store it at night at the
[HCSO].
. . . [P]laintiff denies being given these specific
verbal instructions to pick up and retrieve his gun each
day. The court must accept . . . plaintiff's denial as far
as this motion is concerned. The PNDA, however, goes
on to claim that these specific instructions were
contained in the December 19, 2014 written memo from
. . . Garcia to . . . plaintiff. That memo did indeed refer
to both "securing [his] firearm" and "picking up [his]
firearm[.]" The PNDA specifically claims that
plaintiff's failure from December 19, 2014, (when he
received the written memo) going forward to January
23, 2015, was insubordination.
A-1683-18T4
11
After detailing defendants' arguments, the judge continued:
For purposes of summary judgment the court will
disregard [defendants'] arguments that plaintiff did not
misunderstand anything and will assume that plaintiff
did misunderstand the written memo of December 19,
2014, and did not receive the verbal instructions on
September 25, 2014. This[,] however, does not require
the court to find a reasonable juror could infer that the
written memo of December 19, 2014, was intentionally
ambiguous and was therefore[] a "setup" to confuse . . .
plaintiff and thus justify the PNDA as counsel alleges.
This is simply too farfetched. Nobody could
reasonably infer that the written memo and the PNDA
(based on the written memo being ignored) was a
calculated act of retaliation for plaintiff’s mere role on
September 9, 2014, as a [Weingarten] representative.
Turning to the order requiring plaintiff to store his firearm while off-duty
at the Court Bureau instead of the Academy, the judge expounded:
Related to this discussion is plaintiff's contention that
the requirement that plaintiff store his gun at the
sheriff's office, as opposed to letting him store it at [the
Academy], was an act of retaliation. Since it is the
officer's department that is responsible for securing the
weapon[,] there is simply nothing untoward in the
Hudson County Sheriff requiring that the gun be
secured at the [HCSO] and logged in and logged out at
that facility, where the logging can be monitored, as
indeed it was. The fact that p1aintiff was trusted to log
in and log out as opposed to having another sheriff's
officer standing directly behind him each time to ensure
it, does not mean that the obligation to log his gun was
"pretextual" as plaintiff claims and thus an act of
retaliation. That also, is simply farfetched.
A-1683-18T4
12
Regarding his temporary reassignment from the Academy, the judge
stated:
As to . . . plaintiff's temporary reassignment in
February 2015 away from the . . . Academy[,] the only
evidence properly in the record is the [S]heriff's
assertion that it was requested by the [D]irector of the
[A]cademy. This action was also recommended by . . .
Garcia of [IA]. At his deposition[,] the [S]heriff was
originally unsure as to why . . . plaintiff was
temporarily removed. At oral argument[,] plaintiff's
counsel indicated he had a tape of a phone conversation
in which the [A]cademy [D]irector made a statement
indicating a willingness to have . . . plaintiff return.
This statement was not under oath, the [D]irector was
not deposed and even the statement did not address
whether or not the [D]irector requested the transfer.
The judge concluded:
When it comes to [Weingarten] representation,
which is what plaintiff asserts . . . defendants were
retaliating against, there is simply nothing in this record
to show [animus]. Not only did the [S]heriff's [O]ffice
not hinder it, on the only two occasions involved[,] it
seemed to go out of its way to facilitate it. On
September 9, 2014, the [IA] officers were aware of a
conflict of interest due to the dating relationship (but
not the cohabitation at that point). However[,] since . . .
Rosado had requested . . . plaintiff and the goal was
simply to retrieve the weapon[,] they overlooked it.
Had there been any [animus] this would have . . .
presented an excellent opportunity to bar . . . plaintiff
and insist on another representative. On [January 23,
2015], when plaintiff acknowledged the cohabitation
and was now himself the subject of the [IA] interview,
A-1683-18T4
13
the [S]heriff's [O]ffice notified him that his requested
representative was literally ineligible and
recommended an alternative whom the plaintiff readily
accepted.
While a reasonable juror could discern [animus]
toward . . . plaintiff by the [IA] officers and possibly
even the [S]heriff, it could only have resulted from the
scene . . . plaintiff made on the street embarrassing [IA]
and the [S]heriff's [O]ffice, his failure to initially
acknowledge his cohabitation with . . . Rosado and the
"misunderstanding" regarding the securing of the gun.
If they felt that between September 9, 2014, and
September 25, 2014, when . . . plaintiff did bring his
gun home[,] that . . . Rosado had access to it and . . .
plaintiff knew this was wrong, they had a right to be
peeved. If, in their eyes plaintiff was still causing
trouble by not following their instructions in securing
the gun, they also had a right to some [animus]. But
linking that [animus] to plaintiff's legitimate role as a
[Weingarten] representative is simply not
"reasonable[.]"
The judge also concluded:
To the degree that plaintiff alleges "disparate
treatment[,]" the examples are not similar to the present
matter in terms of their background and are not really
all that disparate in nature. To suggest that any minor
instances of difference (such as another officer securing
his firearm without having to log in and out) is
sufficient proof of retaliation for plaintiff's legitimate
role as a [Weingarten] representative is indeed too far
of a stretch.
Finally, addressing the Sheriff's qualified immunity, the judge explained:
A-1683-18T4
14
While the [S]heriff individually would be entitled
to qualified immunity since what he did in relying on
the advice and information presented by his [IA]
officers made his conduct regarding the PNDA[]
"objectively reasonable[,]" there is no reason to discuss
that further or Monell[5] liability, as none of the sheriff's
officers could "reasonably" be found to have acted in
violation of the [NJCRA] as a matter of law.
On appeal, plaintiff argues "the evidence in the record is sufficient to
defeat summary judgment due to the inferences of animus" that may be drawn
and the "evidence of pretext" that "abounds." Essentially, plaintiff asserts the
judge erred in granting summary judgment to defendants because there were
genuine issues of material fact. We disagree.
We review a grant of summary judgment applying the same standard used
by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366
(2016). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court "must deny
the motion." On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.
[Ibid. (quoting R. 4:46-2(c)); see Brill, 142 N.J. at 540.]
5
Monell v. New York City Dept. of Social Servs., 463 U.S. 658 (1978).
A-1683-18T4
15
"[T]he legal conclusions undergirding the summary judgment motion itself [are
reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas.
Ins. Co., 202 N.J. 369, 385 (2010).
"The practical effect of [Rule 4:46-2(c)] is that neither the motion court
nor an appellate court can ignore the elements of the cause of action or the
evidential standard governing the cause of action." Bhagat v. Bhagat, 217 N.J.
22, 38 (2014). In that regard, "[s]ummary judgment should be granted . . .
'against a party who fails to make a showing sufficient to establish the existence
of an element essential to that party's case, and on which that party will bear the
burden of proof at trial.'" Friedman v. Martinez, ___ N.J. ___, ___ (2020) (slip
op. at 30) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
Pertinent to this appeal, the NJCRA provides a private cause of action for
damages, injunctive or other appropriate relief to
[a]ny person who has been deprived of any substantive
due process or equal protection rights, privileges, or
immunities secured by the Constitution or laws of the
United States, or . . . of this State, or whose exercise or
enjoyment of those substantive rights, privileges or
immunities has been interfered with or attempted to be
interfered with, by threats, intimidation or coercion by
a person acting under color of law . . . .
[N.J.S.A. 10:6-2(c).]
A-1683-18T4
16
A cause of action brought under the NJCRA has the same elements as the
analogous federal Civil Rights Act, 42 U.S.C. § 1983 (Section 1983), after which
the NJCRA was modeled. Rezem Family Assocs. L.P. v. Borough of Millstone,
423 N.J. Super. 103, 115 (App. Div. 2011). Thus, New Jersey state courts may
look to federal cases analyzing Section 1983 to interpret the NJCRA's
provisions. See Tumpson v. Farina, 218 N.J. 450, 474 (2014) ("The
interpretation given to parallel provisions of Section 1983 may provide guidance
in construing our Civil Rights Act.").
The NJCRA "was adopted 'for the broad purpose of assuring a state law
cause of action for violations of state and federal constitutional rights and to fill
any gaps in state statutory anti-discrimination protection.'" Ramos v. Flowers,
429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v. Feigin, 194 N.J. 607,
611 (2008)). See also Gormley v. Wood-El, 218 N.J. 72, 97 (2014) ("Section
1983 applies only to deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -
2 applies not only to federal rights but also to substantive rights guaranteed by
New Jersey's Constitution and laws."). To that end, similar to a cause of action
under Section 1983, in order to prevail under the NJCRA, a plaintiff must first
identify "'the person acting under color of law[]' that has caused the alleged
deprivation," and then "identify a 'right, privilege or immunity' secured to the
A-1683-18T4
17
claimant" by the state or federal constitution or state or federal laws. Rezem,
423 N.J. Super. at 115 (quoting Rivkin v. Dover Twp. Rent Leveling Bd., 143
N.J. 352, 363 (1996)).
"We have recognized two types of claims under the [NJCRA]: first, a
claim for when one is 'deprived of a right,' and second, a claim for when one's
'rights are interfered with by threats, intimidation, coercion or force.'"
Trumpson, 431 N.J Super. at 181-82. (quoting Felicioni v. Admin. Office of
Courts, 404 N.J. Super. 382, 400 (App. Div. 2008)). However, "[i]nterference
with a right need not actually result in actual deprivation of the right." Id. at
182. Here, there is no dispute that plaintiff serving as a Weingarten
representative for Rosado constitutes a protected activity under N.J.S.A.
34:13A-5.4(a)(1), with underpinnings in the First Amendment.6 See Hernandez,
149 N.J. at 75. Thus, interference or attempted interference with the exercise of
that right by retaliation constitutes "threats, intimidation or coercion" cognizable
under N.J.S.A. 10:6-2(c).
6
"[U]nion membership is worthy of constitutional protection" and there is
longstanding Supreme Court precedent "that a public employee possesses a First
Amendment right to associate with a union." Palardy v. Twp. of Millburn, 906
F.3d 76, 82 (3d Cir. 2018). "The public employee surely can associate and speak
freely and petition openly, and he is protected by the First Amendment from
retaliation for doing so." Smith v. Ark. State Highway Emp., Local 1315, 441
U.S. 463, 465 (1979).
A-1683-18T4
18
However, in order to establish a prima facie case that defendants' acts
constitute retaliation as alleged in his complaint, plaintiff must show that he (1)
"engaged in a protected activity, (2) that defendants' retaliatory action was
sufficient to deter a person of ordinary firmness from exercising his or her rights,
and (3) that there was a causal connection between the protected activity and the
retaliatory action." Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
"A defendant may defeat the claim of retaliation by showing that it would have
taken the same action even if the plaintiff had not engaged in the protected
activity." Ibid.
When, as here, the question does not turn on whether the plaintiff engaged
in a protected activity or whether the defendants engaged in the conduct alleged,
"but rather whether there was a causal relationship between the two," in order
"[t]o establish the requisite causal connection a plaintiff usually must prove
either (1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link." Ibid. "In the absence of that
proof the plaintiff must show that from the 'evidence gleaned from the record as
a whole' the trier of the fact should infer causation." Ibid. (quoting Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)).
A-1683-18T4
19
However, as the court pointed out in DeFlaminis,
A court must be diligent in enforcing these causation
requirements because otherwise a public actor
cognizant of the possibility that litigation might be filed
against him, particularly in his individual capacity,
could be chilled from taking action that he deemed
appropriate and, in fact, was appropriate.
Consequently, a putative plaintiff by engaging in
protected activity might be able to insulate himself
from actions adverse to him that a public actor should
take. . . . [B]y enforcing the requirement that a plaintiff
show causation in a retaliation case, [courts] . . . will
protect the public actor from unjustified litigation for
his appropriate conduct. In this regard we recognize
that often public actors . . . must make a large number
of decisions in charged atmospheres thereby inviting
litigation against themselves in which plaintiffs ask the
courts to second guess the actors' decisions.
[Id. at 267-68.]
Here, we agree with the judge that plaintiff failed to establish the requisite
causal connection between his protected activity and defendants' alleged
retaliatory conduct to survive a motion for summary judgment on a retaliation
claim. Viewed in the light most favorable to plaintiff, the record as a whole
simply does not support an inference that defendants' actions constituted
retaliation for plaintiff engaging in protected activity in his role as Rosado's
Weingarten representative during the September 9, 2014 IA interview. While
the record is replete with accusations of animus and allegations of disparate
A-1683-18T4
20
treatment, "[a] motion for summary judgment will not be defeated" by "disputed
facts 'of an insubstantial nature.'" Worthy v. Kennedy Health Sys., 446 N.J.
Super. 71, 85 (App. Div. 2016) (quoting Pressler & Verniero, Current N.J. Court
Rules, cmt. 2.1 on R. 4:46-2 (2020)). Moreover, "'fanciful, frivolous, gauzy or
merely suspicious' allegations of fact in support of the claim" will not forestall
summary judgment dismissal. Maher v. N.J. Transit Rail Operations, 125 N.J.
455, 477-78 (1991) (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 74
(1954)).
Plaintiff also contends that in granting defendants summary judgment, the
judge erred in failing to analyze "[Monell] liability based upon the deliberate
indifference standard." In Monell, the United States Supreme Court "held that
official policy must be 'the moving force of the constitutional violation' in order
to establish the liability of a government body under § 1983." Polk Cty. v.
Dodson, 454 U.S. 312, 326 (1981) (quoting Monell, 436 U.S. at 694). While a
Section 1983 claim may be based on a plaintiff showing that a governmental
entity's actions evidence "a 'deliberate indifference' to [his or her] rights," City
of Canton v. Harris, 489 U.S. 378, 389 (1989), in order to be actionable, a
plaintiff must "show that the [government body], through one of its
policymakers, affirmatively proclaimed a policy, or acquiesced in a widespread
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custom, that deprived the plaintiff of his constitutional rights." Coles v. Carlini,
162 F. Supp. 3d 380, 401 (D.N.J. 2015). See Hafer v. Melo, 502 U.S. 21, 25
(1991) ("[T]he entity's policy or custom must have played a part in the violation
of federal law." (quoting Kentucky v. Graham, 473 U.S. 159, 167 (1985))).
A government policy may be established "when a 'decisionmaker
possess[ing] final authority to establish a . . . policy with respect to the action'
issues an official proclamation, policy, or edict." McTernan v. City of York,
564 F.3d 636, 658 (3d Cir. 2009) (alteration in original) (quoting Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "A course of conduct
is considered to be a 'custom' when, though not authorized by law, 'such
practices of state officials [are] so permanently and well-settled' as to virtually
constitute law." Ibid. (quoting Andrews, 895 F.2d at 1480). "Custom requires
proof of knowledge and acquiescence by the decisionmaker." Ibid. "In either
instance, a plaintiff must show that an official who has the power to make policy
is responsible for either the affirmative proclamation of a policy or acquiescence
in a well-settled custom." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.
1990).
"However, proof of the mere existence of an unlawful policy or custom is
not enough to maintain a [Section] 1983 action." Ibid. Rather, "[a] plaintiff
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bears the additional burden of proving that the . . . practice was the proximate
cause of the injuries suffered." Ibid. "To establish the necessary causation, a
plaintiff must demonstrate a 'plausible nexus' or 'affirmative link' between the
. . . custom and the specific deprivation of constitutional rights at issue." Ibid.
(citations omitted). See Harris, 489 U.S. at 385 ("[O]ur first inquiry in any case
alleging [a governmental entity's] liability under [Section] 1983 is the question
whether there is a direct causal link between [the entity's] policy or custom and
the alleged constitutional deprivation."); City of Oklahoma City v. Tuttle, 471
U.S. 808, 823 (1985) ("[T]here must be an affirmative link between the policy
and the particular constitutional violation alleged."). Here, in the absence of a
causal link between the purported policy or custom and the constitutional
infringement, defendants cannot be held liable under Section 1983 or the
NJCRA.
Plaintiff also argues the judge erred in finding that the Sheriff was entitled
to "qualified immunity." Plaintiff asserts that because the Sheriff admitted being
aware that union activities are afforded constitutional protection, he should have
been held separately liable for authorizing the actions of the IA officers or
"act[ing] with deliberate indifference to the[ir] abuses."
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"The affirmative defense of qualified immunity protects government
officials from personal liability for discretionary actions taken in the course of
their public responsibilities, 'insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.'" Brown v. State, 230 N.J. 84, 97-98 (2017) (quoting Morillo v.
Torres, 222 N.J. 104, 116 (2015)). The defense applies to NJCRA claims and
"tracks the federal standard, shielding from liability all public officials except
those who are 'plainly incompetent or those who knowingly violate the law.'"
Id. at 98 (quoting Morillo, 222 N.J. at 118). The defense "balances two
important interests - the need to hold the public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably." Pearson v.
Callahan, 555 U.S. 223, 231 (2009).
To ascertain whether a governmental official . . . is
entitled to qualified immunity requires inquiries into
whether: (1) the facts, "[t]aken in the light most
favorable to the party asserting the injury[] . . . show
the officer's conduct violated a constitutional right";
and (2) that constitutional "right was clearly
established" at the time that defendant acted.
[Brown, 230 at 98. (quoting Saucier v. Katz, 533 U.S.
194, 201 (2001)).]
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Here, although the judge determined the Sheriff was entitled to qualified
immunity in relying on the recommendations of the IA officers, because the
judge based the summary judgment dismissal on plaintiff's failure to establish a
prima facie NJCRA claim, there was no need to apply the doctrine of qualified
immunity. Based on our de novo review, we are convinced the judge's analysis
is supported by the record and the applicable legal principles, including the
summary judgment standard.
Affirmed.
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