PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2082
THE ESTATE OF JOHN L. OLIVA, JR.,
by his Administratrix CTA, Kelli Ann McHugh,
Appellant
v.
STATE OF NJ, DEPARTMENT OF LAW AND PUBLIC
SAFETY, DIVISION OF STATE POLICE; JOHN J.
FARMER, JR., in his official capacity; CARSON DUNBAR,
in his official capacity; BRUCE MYERS; ALBERT
WALDRON; RAY LUPU; JAMES HARRIS; GEORGE
GILMAN; GARY AUSTIN; HORACE MACFARLAND;
REGINALD WILLIAMS; FRANCES DONLAN; WILLIAM
MEDDIS; KENNETH SCHAIRER; JOHN ZULAWSKI;
EDWARD SOKORAI; GLENN MILLER; JOHN
HAGGERTY; ROBIN BLAKER; JOHN DOES, 1-5;
ROBERT KILMURRARY; DONALD IZZI, all individually;
JOSEPH SANTIAGO; GAIL CAMERON; DEBRA
ARMITAGE
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 1:01-CV-02259)
Honorable Joseph E. Irenas, District Judge
Argued March 9, 2010
BEFORE: MCKEE, BARRY, and
GREENBERG, Circuit Judges
(Filed: May 4, 2010)
William H. Buckman (argued)
Surinder K. Aggarwal
Lilia Londar
William H. Buckman Law Firm
110 Marter Avenue
Suite 209
Moorestown, NJ 08057
Joseph M. Pinto
Polino and Pinto
720 East Main Street
Suite 1C
Moorestown, NJ 08057
Attorneys for Appellant
Catherine Tamasik (argued)
Jason D. Attwood
DeCotiis, Fitzpatrick, Cole & Wisler
500 Frank W. Burr Boulevard
2
Glenpointe Centre West, Suite 31
Teaneck, NJ 07666
Attorneys for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge
I. INTRODUCTION
This matter comes on before this Court on an appeal
from an order of the District Court entered on September 30,
2008,1 granting Appellees’ motion for summary judgment and
denying the request of Appellant, John Oliva, for leave to
amend further his already twice amended complaint. See
Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643 (D.N.J.
2008). Though the Court denied summary judgment to a
remaining defendant, when Oliva subsequently dismissed the
case against that defendant the order of September 30, 2008,
became final and thus we have jurisdiction over his appeal.
For the reasons that follow, we will affirm the order of the
District Court.
1
The notice of appeal incorrectly states that the District Court
entered its order on September 30, 2009.
3
II. BACKGROUND
The Division of State Police in the New Jersey
Department of Law and Public Safety employed Oliva as a
state trooper from November 1998 until his suicide on
October 1, 2002. Oliva’s complaint in this action alleged that
during this four-year period, both while he was on active duty
and while he was on leave, numerous individuals connected
with the State Police harassed him in reaction to his
objections to what he believed was a State Police practice to
profile motorists when making traffic stops, i.e., “the practice
of using stereotypes to select which motorists a trooper will
stop, detain and search.” Supp. App. at 16. Oliva’s complaint
alleged that the harassment involved a variety of actions
including unjustified transfers of his duty station, unjustified
negative performance notices, misconduct investigations,
adverse medical recommendations, threatening notes, and
verbal confrontations.
Though Oliva personally filed the original complaint in
this case in the District Court, since the time of his death his
estate has prosecuted the action. Nevertheless, as a matter of
convenience we have referred and will continue to refer to
Oliva as though he has been the sole plaintiff. Though we set
forth the facts at some length, the District Court in its
September 30, 2008 opinion accompanying the order from
which Oliva appealed, set forth the facts in greater detail. The
facts as we describe them either are undisputed or, if disputed,
are recited in the way most favorable to Oliva as the non-
movant on the summary judgment motion.
4
A. Oliva’s Tenure as an Active-Duty State Trooper
Oliva joined the New Jersey State Police following a
successful ten-year career as a Marine, corrections officer,
and municipal police officer. Upon Oliva’s graduation from
the State Police Academy in November 1998, the State Police
assigned him to the Bellmawr Station, Troop A. Consistently
with the practice of assigning new recruits with a “Trooper
Coach,” the State Police paired Oliva at Bellmawr with a
trooper named Patrick Gallagher. Oliva alleges that
Gallagher required him to engage in racial profiling of
motorists when making traffic stops. Oliva complained about
Gallagher to his sergeant, Manny Gordillo, but did not state
specifically that Gallagher was instructing him to profile
because Oliva thought this already “was known to everybody
at the station.” App. at 405. Oliva believed that his
complaint to Gordillo gained him a reputation at Bellmawr as
a “salty” recruit, i.e., someone who didn’t play by the rules or
have respect for senior officers, and charged that after he
made the complaint other troopers literally began placing salt
in his station mailbox.
The State Police transferred Oliva to the Woodbine
Station, Troop A, in May 1999, and placed him under the
supervision of Appellee Edward Sokorai. On August 22 and
November 27, 1999, Sokorai issued Oliva negative
performance notices reflecting Sokorai’s assessment of
Oliva’s performance of his traffic enforcement duties.
Shortly after receiving the second such notice, Oliva arrived
for a shift at Woodbine where Appellee Bruce Myers met him
and handed him an anonymous note that read:
5
HEY OLIVA, EVERYONE AROUND HERE
IS GETTING SICK AND TIRED OF YOUR
SHIT. WHETHER YOU LIKE IT OR NOT,
YOU’RE STILL A RECRUIT. IF YOU
DON’T LIKE IT YOU CAN GO BACK TO
YOUR OLD DEPARTMENT WHERE YOU
CAME FROM. YOU BETTER START
DOING WHAT YOU’RE TOLD TO DO.
WE’RE ALL WATCHING YOU OLIVA.
App. at 624. Oliva contends that another trooper who no
longer is a party to this action acknowledged writing the note.
In early 2000, the State Police transferred Oliva from
the Woodbine Station to another Troop A station at Buena
Vista. Appellee Glenn Miller, the Commander of Troop A,
was responsible for the transfer decision. Oliva’s transfers
from Bellmawr to Woodbine and from Woodbine to Buena
Vista were consistent with State Police practice at the time to
assign a newly appointed trooper to his or her first two duty
stations for approximately six months at each station and then
to reassign the new trooper to a third station for an indefinite
period determined by administrative needs and the trooper’s
preference.2
Oliva claims that his supervisor at Buena Vista, Albert
Waldron, taught him about racial profiling and expected him
2
Though we indicate that the initial transfers were in accordance
with policy at the time, we are not implying that the State Police
has changed the policy as we do not know the current policy.
6
to engage in that practice.3 Oliva asserts that when he
objected to racial profiling, Waldron threatened to give him a
negative performance evaluation.4 According to Oliva, in
April 2000 Waldron accused Oliva of not making enough
arrests, an accusation that led Oliva to respond that “I am not
gonna go sit . . . and profile.” App. at 449. Approximately
one week later, Waldron issued Oliva a negative performance
evaluation, which Oliva challenged by writing a letter
addressed to SFC P. Callen, Waldron’s superior in the State
Police chain-of-command, raising concerns about profiling
and arguing that Waldron’s evaluation was unjustified. After
speaking with Oliva, Callen ordered Waldron to write a new
evaluation giving Oliva the highest possible marks in all
applicable criteria.
The State Police retransferred Oliva to the Woodbine
Station in August 2000. According to Commander Miller, the
State Police made this transfer as an aspect of a personnel
3
Oliva asserted claims under 42 U.S.C. § 1981 and the New
Jersey Conscientious Employee Protection Act against Waldron
that were his only claims that survived the District Court’s
September 30, 2008 summary judgment decision and order.
Subsequently, Oliva withdrew those claims voluntarily, and
Waldron is not a party to this appeal.
4
In the New Jersey State Police, there is a distinction between a
performance “notice,” which relates to a trooper’s conduct in a
discrete incident, and a performance “evaluation” such as the
one that Waldron gave, which evaluates a trooper’s performance
over an extended period.
7
rearrangement to fill a vacant position as well as to reduce the
commute times of several troopers. The transfer did not
significantly affect Oliva’s commute time as his residence
was approximately equidistant from the Buena Vista and
Woodbine Stations. Miller claims to have been unaware of
Oliva’s previous problems at Woodbine when he approved
the transfer.
Approximately one month after Oliva returned to
Woodbine, a fellow trooper approached him and accused him
of anonymously posting offensive messages on an unofficial
State Police website called “Troop Rumblings.” Oliva
responded by denying responsibility for the postings.
Appellees troopers Gary Austin and Horace McFarland
subsequently questioned Oliva about these postings for over
an hour in a closed door meeting. Thereafter, Appellee Ray
Lupu, Oliva’s supervisor, met with Oliva and told him that, as
a result of the internet postings, station personnel would shun
him, his locker “would be in the parking lot by now” if the
Lords of Discipline acted as they had in the past, and
Commander Miller was “pissed” at him and would seek his
transfer. App. at 572. The reference to the Lords of
Discipline was to a sub rosa organization within the State
Police which, allegedly, at the time harassed and retaliated
against troopers who failed to conform with what the troopers
involved with the Lords of Discipline believed were the
established practices and culture of the State Police.
On October 9, 2000, Oliva reported to work to find his
locker vandalized and copies of an anonymous note placed in
the locker and taped to a nearby toilet seat. The note read:
8
HEY ‘THERE BIG FUCKIN DADDY’ TAKE
YOUR SALTY FUCKIN ATTITUDE BACK
TO THE LOCAL DEPTS. WE’RE ALL
WATCHING YOU OLIVA. FILL OUT A
TRANSFER REQUEST, IT’S TIME YOU
MOVED ON
App. at 625. The following day, Lupu issued Oliva a negative
performance notice for failing to report properly at the
Woodbine Station that he had attended a municipal court
proceeding on his off-duty time.
Several days later, Oliva received another negative
performance notice for “fail[ing] to get the appropriate rest
before arriving for work.” App. at 634. This notice was the
result of an accusation by Appellee trooper James Harris that
Oliva had been sleeping on the job during a midnight shift at
the Woodbine Station, a charge that Oliva denied.
Subsequently, Oliva received a third anonymous note, which
read:
Boy ....... I [t]hink I’ll come in and ‘work’ an
overtime, and go to sleep in the back room
cause I’m all caught up. Move on there tough
guy, you still have Bridgeton, Port [Norris] and
Woodstown.5
5
Bridgeton, Port Norris, and Woodstown are stations within
Troop A.
9
App. at 626. The record does not disclose who was
responsible for the two anonymous notes Oliva received
during his second stint at the Woodbine Station. Shortly after
receiving the last note, Oliva took sick leave for a back injury
he sustained while off-duty.
B. The Internal Investigations
While on leave, Oliva spoke with State Police senior
officers about the difficulties he had been experiencing at
work. On December 27, 2000, Appellees William Meddis
and Robin Blaker of the State Police’s Quality Control and
Adjudication Bureau interviewed Oliva regarding his
allegations of harassment.6 Oliva described the alleged
harassment he experienced at the Woodbine and Buena Vista
stations, but at no point raised the issue of racial profiling or
discussed any event at the Bellmawr Station. When Oliva
mentioned that he was storing one of the anonymous notes in
a safe-deposit box, Meddis ordered him to relinquish the note
for analysis and fingerprint testing.
6
The State Police’s Internal Affairs unit is called the Office of
Professional Standards and is divided into the Quality Control
and Adjudication Bureau and the Internal Affairs Investigation
Bureau. The Quality Control and Adjudication Bureau
processes all incoming misconduct complaints and decides
which complaints merit further investigation, and the Internal
Affairs Investigation Bureau investigates misconduct
complaints.
10
Following the December 2000 interview, Meddis
recommended that the State Police transfer Oliva from the
Woodbine Station in order to prevent further harassment.
Despite an offer apparently made to Oliva to transfer him
outside of Troop A to the Bass River Station in Troop B,
Appellee Carson Dunbar, then the S tate Police
Superintendent, ordered Oliva transferred to the Tuckerton
Station, which was near the Bass River Station but
nevertheless within Troop A. According to Dunbar, he “did
not want to start a precedent that if somebody chooses, they
can just basically decide they’re going to go to this station or
that station.” App. at 694. The State Police transferred Oliva
to the Tuckerton Station on January 4, 2001, but he never
reported for active duty at that station as he instead took stress
leave from the State Police.
Following Oliva’s interview with Meddis and Blaker,
the Internal Affairs Investigation Bureau (“IAIB”) launched
an investigation led by Appellees Kenneth Schairer and John
Zulawski into Oliva’s allegations. After unsuccessfully
attempting to contact Oliva for several days to pick up the
anonymous note in his possession, on January 5, 2001,
Schairer and Zulawski located Oliva at his gym where they
followed him into the sauna and questioned him about the
note. Oliva denied knowing the location of the note, but
subsequently his attorney with his knowledge gave the note to
the IAIB.
On January 4, 2001, one day prior to the meeting at the
gym, Oliva requested permission from the State Police to
speak to the media “[b]ecause of the refusal of the State
Police to deal with the harassment [he] was receiving and
11
upon recommendation of counsel.” App. at 574-75. On
January 23, 2001, the Philadelphia Inquirer, a newspaper
widely circulated in southern New Jersey where the stations
we have mentioned are located, published an article entitled
“N.J. trooper: Even now, fighting profiling costs him.” App.
at 736-38. The article covered the topics Oliva had discussed
with Meddis and Blaker in the December 2000 meeting, and
also described Oliva’s encounter with Schairer and Zulawski
on January 5, 2001. Moreover, it described in detail Oliva’s
complaints about being instructed to engage in racial profiling
of motorists while at the Bellmawr and Buena Vista Stations.
Additionally, the article discussed allegations that other
troopers made regarding the activities of the Lords of
Discipline.
After the article’s publication, the State Police
expanded the IAIB investigation of Oliva’s allegations into a
more general inquiry of the Lords of Discipline.
Superintendent Dunbar asked Appellee Gail Cameron 7 to lead
the investigation because she previously had investigated the
Lords of Discipline in connection with another trooper’s
complaint. The State Police also brought Appellee Debra
Armitage into the investigation at this time.
On May 11, 2001, Oliva filed his initial complaint
under both federal and New Jersey law in this action in the
District Court alleging, inter alia, that he had been harassed in
7
The District Court spelled Cameron’s first name as “Gayle.”
We are using “Gail” to be consistent with the caption of this
case.
12
retaliation for refusing to engage in racial profiling.8 At about
the same time Oliva filed a parallel complaint with the
Department of Law and Public Safety’s Equal Employment
Opportunity Affirmative Action Office. That office, however,
advised Oliva that it would not pursue the complaint and,
instead, forwarded Oliva’s complaint to the IAIB for its
consideration in the ongoing internal investigation.
Because Oliva had not discussed his racial profiling
allegations with the IAIB, Cameron and Armitage scheduled
an interview with Oliva on December 10, 2001, to deal with
that subject. At the interview, Oliva described how Gallagher
and Waldron had instructed him to stop, detain, and search
motorists without probable cause, and stated that he had
complained about such instructions. Oliva denied actively
participating in searches that he thought were illegal, but
admitted to falsifying police reports at the Bellmawr Station
pursuant to Gallagher’s directions.
On May 21, 2002, Appellee Joseph J. Santiago, who
by then had become the State Police Superintendent, sent a
letter to Oliva that read in its entirety:
Pursuant to the agreement between the State of
New Jersey and the State Troopers Fraternal
Association, I am hereby putting you on notice
that I am contemplating not reappointing you to
8
We describe Oliva’s claims as set forth in the complaint as
amended later in more detail below.
13
the Division of State Police upon the expiration
of your present enlistment.
App. at 750. According to Santiago, he wrote the letter in
furtherance of a State Police effort to require as many
employees on leave as possible either to return to duty or be
removed from employment so that the State Police could
appoint replacements for them.
Following the December 2001 interview, Armitage
received approval to launch a separate investigation into
Oliva’s allegations of racial profiling in which Gallagher was
the principal, a status that treated him as the target of the
inquiry. Armitage then identified a random sampling of ten
motorists that Gallagher and Oliva had stopped while they
had worked together at Bellmawr, and Armitage was able to
contact and interview four of these motorists. These motorists
gave accounts of their traffic stops suggesting that Oliva was
at least as culpable as Gallagher in conducting illegal stops,
searches, and seizures. Two of the these motorists submitted
to polygraph examinations with respect to their statements
regarding the stops and on July 5, 2002, Armitage received
results from the examinations indicating that their accounts
had been truthful.
On July 17, 2002, Armitage recommended that the
State Police change Oliva’s status in the investigation from
complainant to principal. On August 12, 2002, a letter was
delivered to Oliva informing him of the change in his status in
the investigation and requesting that he consent to an
interview as a principal. Oliva contacted Armitage on August
16, 2002, indicating he would schedule that interview after
14
consultation with his attorney. When Armitage did not hear
back from Oliva for two weeks, she ordered that the
investigation be considered complete at that point.
Nevertheless, the investigation continued because Oliva
subsequently contacted Armitage who interviewed him on
September 17, 2002. When confronted with the motorists’
statements, Oliva admitted that, despite his previous denials,
he had conducted post-arrest searches that he considered
illegal.
In an August 30, 2002 document titled “Internal
Investigation Allegations & Conclusions,” Armitage
substantiated in part the allegations against Oliva and
Gallagher. Supp. App. at 295-301. In particular, Armitage
substantiated the allegations that Oliva purposely had
provided false information in his December 10, 2001
interview by stating he never engaged in any illegal motor
vehicle searches with Gallagher, and that both Oliva and
Gallagher had falsified investigation reports. After being
informed of Armitage’s conclusions, Superintendent Santiago
suggested that, in exchange for testifying against Gallagher,
the State Police offer Oliva the opportunity to resign instead
of being terminated. There is no indication in the record of
which we are aware that anyone in the State Police
communicated either the results of the investigation or
Santiago’s proposal to Oliva before his suicide on October 1,
2002.9
9
Even if Oliva became aware of the results of the investigation
and/or Santiago’s proposal our result on this appeal would not
be changed.
15
C. Oliva’s Medical History
After Oliva took stress leave in January 2001, Appellee
Dr. Donald Izzi,10 the Managing Physician of the State
Police’s Medical Services Unit, directed him to undergo
physical and psychological evaluations at the Environmental
and Occupational Health Science Institute (“EOSHI”), an
independent medical center, to determine his fitness for duty.
After seeing Oliva, EOSHI transmitted a written evaluation to
the Medical Services Unit stating that he was fit for duty.
Thereafter, Izzi met with Oliva, provided him with a copy of
EOSHI’s report, and recommended that he return to full duty
status and report for duty at the Tuckerton Station on the
morning of August 13, 2001.
Oliva subsequently met with State Police contract
physician Dr. Robert Carty for a duty status examination, but
failed to disclose Izzi’s recommendation to Carty. Based on a
belief that Oliva was using alcohol to excess, Carty
recommended that Oliva remain on sick leave. After
becoming aware of Carty’s conclusions regarding Oliva’s
alcohol use and receiving additional information from Oliva’s
private doctors who indicated that Oliva should not return to
duty, Izzi sent a letter to Oliva on September 28, 2001,
continuing Oliva in a “temporary off duty capacity” to allow
him time to complete his medical recuperation. App. at 1035.
10
Though Oliva’s initial complaint did not name Izzi, Oliva
added Izzi as a defendant in his first amended complaint that he
filed on September 5, 2001.
16
III. PROCEDURAL HISTORY
Oliva amended his complaint twice and thus we are
concerned with his second amended complaint filed in the
District Court on February 3, 2003. This second amended
complaint asserted 16 claims under federal civil rights law
and New Jersey law against the State of New Jersey and over
20 individual defendants in their individual or official
capacities most of whom we have identified in setting forth
the background of the case. After earlier proceedings resulted
in the dismissal of some of his claims and after extensive
discovery, Appellees moved for summary judgment on
January 15, 2008, on Oliva’s remaining claims under 42
U.S.C. §§ 1981, 1983, 1985(3), and 1986, the New Jersey
Conscientious Employee Protection Act (“CEPA”), N.J. Stat.
Ann. § 34:19-1 et seq. (West 2000), and the New Jersey Law
Against Discrimination (“LAD”), N.J. Stat. Ann. § 10:5-1 et
seq. (West 2002). In response to the summary judgment
motion, Oliva sought to amend his complaint a third time to
include a First Amendment retaliation claim under 42 U.S.C.
§ 1983. In a comprehensive opinion and order dated
September 30, 2008, the District Court granted Appellees’
motion for summary judgment on all of Oliva’s remaining
claims against Appellees, and denied Oliva leave to amend his
complaint to include the First Amendment claim. Estate of
Oliva, 579 F. Supp. 2d 643. This appeal followed.
IV. JURISDICTION AND STANDARD OF REVIEW
17
The District Court had subject matter jurisdiction over
Oliva’s federal claims pursuant to 28 U.S.C. § 1331, and
supplemental jurisdiction over Oliva’s New Jersey state law
claims pursuant to 28 U.S.C. § 1367. We have jurisdiction
over the order for summary judgment pursuant to 28 U.S.C. §
1291. We exercise plenary review over a grant of summary
judgment and apply the same standard the District Court used.
Smith v. Johnson & Johnson, 593 F.3d 280, 284 (3d Cir.
2010). Thus, we can affirm only “if the pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the [Appellees as] the movant[s are] entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(c)(2). We review the
District Court’s order denying Oliva leave to amend his
complaint for an abuse of discretion. In re Merck & Co. Secs,
Derivative & ERISA Litig., 493 F.3d 393, 399 (3d Cir. 2007).
V. DISCUSSION
On appeal, Oliva challenges only the aspects of the
District Court’s decision granting summary judgment against
him on his claims under 42 U.S.C. §§ 1981 and 1985(3), the
CEPA, and the LAD, and denying leave to amend his
complaint to include a claim for First Amendment retaliation
under 42 U.S.C. § 1983. We consider each issue in turn.
A. Oliva’s Claims under section 1981
18
Oliva first argues that the District Court erred by
dismissing his claim under 42 U.S.C. § 1981, asserting “that
Appellees retaliated against Oliva [by] harassing him and
creating a hostile work environment due to his complaints of
racial profiling.” 11 Appellant’s br. at 34. Section 1981(a)
provides in relevant part:
All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings
for the security of persons and property as is
enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no
other.
Ordinarily, to establish a basis for relief under section 1981 a
plaintiff must show “(1) that he belongs to a racial minority;
(2) an intent to discriminate on the basis of race by the
defendant; and (3) discrimination concerning one or more of
11
The District Court indicated that it was not clear whether Oliva
had brought a hostile work environment claim that was
independent of his retaliation claim. The Court stated, however,
that “[e]ven if such a claim were asserted, it would fail as
[Oliva] does not allege that [he] was discriminated against on
the basis of his own race.” Estate of Oliva, 579 F. Supp. 2d at
664 n.55 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 63, 126 S.Ct. 2405, 2412 (2006)).
19
the activities enumerated in § 1981.” See Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002)
(internal citation and quotation marks omitted). The Supreme
Court, however, has held that section 1981 also encompasses
“the claim of an individual (black or white) who suffers
retaliation because he has tried to help a different individual,
suffering direct racial discrimination, secure his § 1981
rights.” See CBOCS West, Inc. v. Humphries, 553 U.S. 442,
—, 128 S.Ct. 1951, 1958 (2008). In a retaliation case a
plaintiff must demonstrate that there had been an underlying
section 1981 violation. Id.
The record before us would justify a reasonable
factfinder to conclude that Gallagher and Waldron
demonstrated to Oliva how to stop, search, and, in some
cases, arrest motorists without probable cause by reason of
their race.12 Of course, that practice would violate section
1981’s guarantee that all persons are entitled to the same “full
and equal benefit” of the law. See 42 U.S.C. § 1981(a).
When a trooper complains about unjustified racial profiling he
engages in protected activity and, accordingly, Oliva had a
right to complain about such violations without fear of
retaliation.13
12
In fairness to Gallagher and Waldron it should be understood
that we are not making any such finding.
13
Though we are treating the alleged racial profiling in this case
as being unlawful, we are not holding that there never can be a
situation in which there could be lawful profiling on some basis
as that issue is not before us and thus we do not reach it.
20
To maintain a claim for retaliation, Oliva first was
required to establish that he had a prima facie case by
tendering evidence that (1) he engaged in protected activity,
(2) his employer took an adverse employment action against
him, and (3) there was a causal connection between his
participation in the protected activity and the adverse
employment action. Moore v. City of Philadelphia, 461 F.3d
331, 340-41 (3d Cir. 2006).14 In considering the second
element of a prima facie case, the key inquiry is whether the
alleged retaliation “well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.” See id. at 341 (quoting Burlington N. &
Sante Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405,
2415 (2006)). The third element of the prima facie case
“identif[ies] what harassment, if any, a reasonable jury could
link to a retaliatory animus.” Id. at 342 (internal citation
omitted). Once a plaintiff establishes a prima facie case, the
burden shifts to the employer to advance a legitimate non-
retaliatory reason for its conduct. If an employer advances
such a reason, a plaintiff then must show that the proffered
reason was a pretext for retaliation. Id.
Oliva alleges he engaged in protected conduct in
November 1998, when he complained to Gordillo about
Gallagher’s behavior during the Trooper Coach program; in
April 2000, when he objected to Waldron about profiling; in
14
Although Moore is a Title VII retaliation case, the same
standard applies in section 1981 retaliation cases. Humphries v.
CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007), aff’d,
553 U.S. 442, 128 S.Ct. 1951 (2008).
21
May 2000, when he complained to Callen about Waldron’s
profiling; on January 23, 2001, when the Philadelphia Inquirer
article was published; and on May 11, 2001, when he filed his
original complaint in this action in the District Court. Thus,
we keep these incidents in mind when writing our opinion and
assume, as do the Appellees, that these incidents qualified as
protected activity.
1. Miller, Dunbar, Armitage, and Cameron
On appeal, Oliva presses most forcefully his section
1981 claims against Miller, Dunbar, Armitage, and Cameron.
Miller was the Commander of Troop A responsible for
transfering Oliva from the Woodbine Station to the Buena
Vista Station in early 2000 and from Buena Vista back to
Woodbine the following August, transfers Oliva asserts
constituted illegal retaliation for his objections regarding
profiling. The District Court rejected Oliva’s claim with
respect to the first transfer because it caused him only a trivial
harm inasmuch as his commute to Buena Vista was only 4.25
miles longer than his commute to Woodbine, and because
there was no evidence in the record that Miller knew or could
have known about Oliva’s racial profiling complaint to
Gordillo, the only protected activity in which Oliva by that
time had engaged.15
15
Oliva contends that both transfers were retaliatory. Though the
District Court focused primarily on the first transfer, its
discussion of whether that transfer was retaliatory incorporated
22
We agree with the District Court on both these points.
To start with Oliva does not explain why the transfer to Buena
Vista was more than a trivial inconvenience. Second, with
respect to a retaliatory motive, Oliva points only to Miller’s
alleged comment that he was “pissed” at Oliva because of the
“Troop Rumblings” incident. Such an offhand remark, made
after both transfers, would not provide a foundation on which
a reasonable factfinder could predicate a finding that the
transfers were in retaliation for Oliva’s complaints about
racial profiling.
Moreover, even if Oliva supplied evidence
demonstrating that he had established a prima facie case of
retaliation by pointing to the transfers, Appellees put forth
legitimate non-retaliatory reasons for both transfers that Oliva
has failed to rebut. Appellees produced evidence that the
early 2000 transfer to the Buena Vista Station was consistent
with State Police practice of assigning new recruits to their
first two stations for approximately six months each and then
to a third station for an indefinite period of time.
Furthermore, Miller explained that the August 2000 transfer
was part of a larger personnel movement undertaken to fill a
vacancy and reduce the commutes of several troopers. There
is no evidence in the record showing that Miller’s explanation
was untrue. Accordingly, we will affirm the District Court’s
facts pertaining to the second transfer, namely, that the transfer
resulted from the movement of other troopers among stations so
that those troopers could be stationed closer to their homes. In
the circumstances, we are treating his complaint as alleging that
both transfers were made in violation of section 1981.
23
order granting summary judgment to Miller on Oliva’s section
1981 claim.
Oliva alleges that Superintendent Dunbar retaliated
against him by deciding in January 2001 to transfer him from
the Woodbine Station to the Tuckerton Station, which Oliva
describes as “the epicenter of [Lords of Discipline] activity,”
instead of to the Bass River Station in Troop B as Oliva
requested. Appellants’ br. at 47. The District Court
determined that even if the transfer to Tuckerton was a
materially adverse employment action, no reasonable
factfinder could find a causal connection between that transfer
and Oliva’s complaints about racial profiling because there
was no evidence that Dunbar knew of Oliva’s complaints.
Even assuming that a trier of the fact could infer that
Dunbar knew of Oliva’s complaints, the case against Dunbar
could not survive his summary judgment motion for, as the
District Court held, Dunbar put forward a legitimate non-
discriminatory reason for the transfer that Oliva failed to
rebut. Specifically, Dunbar stated that he denied Oliva’s
request to go to Bass River because he did not want to
establish a precedent that any trooper simply could choose to
transfer to any station that he or she desired. Inasmuch as we
do not find any error in the District Court’s conclusions, we
will affirm the grant of summary judgment to Dunbar on
Oliva’s section 1981 claims.
Oliva claims that Armitage and Cameron retaliated
against him by changing his status in the IAIB investigation
from complainant to principal. By the time of this change the
Philadelphia Inquirer had published the article regarding
24
racial profiling, Oliva had filed this action and his
administrative complaint, and Armitage and Cameron had
interviewed Oliva regarding his racial profiling allegations.
Thus, Armitage and Cameron plainly knew of Oliva’s racial
profiling complaints when there was a change in Oliva’s
status in the investigation. In recognition of the reality that a
concern about becoming targeted in an internal investigation
by making a complaint about discrimination could dissuade a
reasonable person from making such a complaint, the District
Court determined that a reasonable factfinder could conclude
Oliva had established a prima facie case of retaliation against
Armitage when she changed his status in the investigation.
The Court concluded, however, that Oliva had not made a
prima facie case against Cameron because Cameron had not
been involved significantly in the decision to designate Oliva
as a principal in the investigation. We agree with the Court
on both these points.
But the District Court’s initial conclusion for Oliva
with respect to his claim against Armitage did not help him
for the Court held that Armitage had overcome Oliva’s prima
facie case by advancing legitimate non-discriminatory reasons
for naming Oliva as a principal in the investigation. In this
regard, we point out that by any conceivable standard it was
perfectly appropriate for Armitage to make this designation
after Oliva admitted to falsifying police reports and to being
present at illegal stops and searches that Gallagher conducted.
Moreover, Armitage made this designation after interviewing
various motorists involved in the questionable stops, two of
whom submitted to polygraph examinations, the results of
which indicated that they had been truthful in giving accounts
implicating Oliva in illegal stops and searches. The Court
25
quite reasonably noted that it was significant that Armitage
made her decision with respect to Oliva’s status shortly after
the results of the polygraph examinations became available to
her.
In an attempt to paint these proffered reasons for the
change of his status in the investigation from complainant to
principal as pretextual, Oliva notes that (1) he was not
informed of his designation as principal until one month after
the decision to change his status, a delay that contravened
State Police policy that a principal in an internal investigation
be advised of the charges against him or her in advance of the
formal designation; (2) the accounts of the interviewed
motorists were implausible because they contradicted Oliva’s
own accounts; and (3) he was not interviewed as a principal
until September 2002, after the investigation formally had
been closed. But in light of Oliva’s at times conflicting
admissions to the IAIB investigators and the circumstance
that his failure to contact the investigators led to the delay of
his interview as a principal, a reasonable inference cannot be
drawn that the decision naming him as a principal likely was
motivated by a desire to retaliate against him for complaining
about racial profiling. Accordingly, we will affirm the
District Court’s grant of summary judgment to Armitage and
Cameron on Oliva’s section 1981 claims.
2. Izzi
Oliva alleges that Izzi retaliated against him by
determining he was fit to return to full duty status in August
26
2001 despite other physicians’ contrary recommendations.
Inasmuch as Izzi made his recommendation after Oliva’s
allegations of racial profiling had become widely known, the
District Court assumed without deciding that Oliva had
established a prima facie case of section 1981 retaliation
against Izzi. But the Court then went on to find that Izzi’s
proffered reason for the recommendation could not have been
a pretext for retaliation, a finding with which we agree.
The record shows that Izzi made his recommendation
based on the results of the independent EOSHI evaluations.
Izzi did not initially credit Oliva’s private physicians’
opinions that he should not return to duty because Izzi
believed that treating physicians often act as patient advocates
and thus are not objective. Izzi made his subsequent decision
to continue Oliva in an off duty capacity because of new
information that he received from Dr. Carty and the private
physicians including Dr. Carty’s belief that Oliva was using
alcohol excessively. Nevertheless, as evidence of pretext,
Oliva argues that Izzi ignored serious concerns related to
Oliva’s medical state raised in the EOSHI report. Yet these
concerns cannot undermine Izzi’s recommendation inasmuch
as the evaluators who compiled the report did not believe that
the concerns prevented Oliva from returning to active duty.
We therefore will affirm the District Court’s grant of
summary judgment to Izzi on this claim.16
16
Oliva also notes that Izzi’s file on Oliva contained press
coverage of Oliva’s whistle-blowing activities, “suggesting
Izzi’s ‘concern’ for Oliva had little to do with medical
treatment,” and that Izzi maintained the file for years after
27
3. The Remaining Appellees
The District Court found that Oliva’s section 1981
claims against Sokorai, Meyers, Austin, MacFarland, Lupu,17
Schairer, and Zulawski failed because no reasonable
factfinder could conclude that a desire to retaliate against
Oliva for engaging in protected activity motivated these
Appellees’ actions. In particular, the District Court did not
find any evidence that any of these Appellees were aware of
Oliva’s suicide. Appellant’s br. at 52. But this evidence would
not allow a reasonable factfinder to conclude that Izzi’s
recommendation was more likely motivated by a desire to
retaliate against Oliva than by Izzi’s medical opinion, based on
the EOSHI report. Indeed, it is a general business and
professional practice to maintain files in situations that a
reasonable observer can see are likely to lead to litigation and it
is understandable that Izzi kept Oliva’s file close at hand. In
fact, failure to maintain such files sometimes leads to spoliation
claims. Moreover, it is logical to include press coverage among
the retained documents as such materials might include germane
information relating to a potential legal action. We also point
out that a regulation of the New Jersey Board of Medical
Examiners required Izzi to maintain any treatment record of
Oliva for a period of seven years from the date of the most
recent record entry. N.J. Admin. Code § 13:35-6.5 (2010).
17
The District Court pointed out that Lupu “issued three negative
performance notices to Oliva . . . [but] there is no evidence in
the record, nor does [Oliva] argue, that those notices were
unwarranted.” Estate of Oliva, 579 F. Supp. 2d at 672.
28
Oliva’s complaints about racial profiling while he was
stationed at the Bellmawr and Buena Vista Stations. On
appeal, Oliva does not point to facts in the record
undermining this conclusion that would permit the drawing of
a reasonable inference that a retaliatory animus motivated
these Appellees’ actions. Accordingly, we will affirm the
Court’s dismissal of Oliva’s section 1981 claims against these
Appellees. We also will affirm the District Court’s grant of
summary judgment on Oliva’s section 1981 claims in favor of
the remaining Appellees as Oliva does not present any
arguments on appeal that challenge the Court’s findings with
respect to these Appellees.
B. Oliva’s Claims under section 1985(3)
Oliva argues that Appellees conspired to violate his
civil rights in contravention of 42 U.S.C. § 1985(3). “Section
1985(3) permits an action to be brought by one injured by a
conspiracy formed ‘for the purpose of depriving, either
directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and
immunities under the laws.’” Thomas v. Independence Twp.,
463 F.3d 285, 298 (3d Cir. 2006) (quoting Farber v. City of
Paterson, 440 F.3d 131, 134 (3d Cir. 2006)). To survive a
motion for summary judgment on his section 1985(3) claim,
Oliva first was required to put forward facts that would allow
a reasonable factfinder to conclude that Appellees formed a
conspiracy to deprive him of his rights. See Farber, 440 F.3d
at 134 (citing United Bhd. of Carpenters & Joiners v. Scott,
463 U.S. 825, 828-29, 103 S.Ct. 3352, 3355-56 (1983)). In
29
the present context these facts would need to show that there
was a conspiracy to harass and retaliate against him for
complaining about racial profiling. See Lake v. Arnold, 112
F.3d 682, 685 (3d Cir. 1997) (“[T]he reach of section 1985(3)
is limited to private conspiracies predicated on ‘racial, or
perhaps otherwise class based, invidiously discriminatory
animus.’”) (quoting Griffin v. Breckenridge, 403 U.S. 88,
102, 91 S.Ct. 1790, 1798 (1971)).
Oliva argues that “every instance of harassment and
retaliation was part and parcel of the [New Jersey State
Police]’s plan to show Oliva that his criticism of State Police
practices would not be tolerated.” Appellant’s br. at 59-60.
We already have concluded that the record fails to provide a
basis for a reasonable inference that any of the actions that
Miller, Dunbar, Sokorai, Armitage, Cameron, Myers, Austin,
MacFarland, Lupu, Schairer, Zulawski or any of the other
Appellees took were in retaliation against Oliva for
complaining about racial profiling. The record thus cannot
support the drawing of a reasonable inference that any of the
Appellees took these alleged actions in furtherance of a
conspiracy to retaliate against Oliva for complaining about
racial profiling. We therefore will affirm the District Court’s
grant of summary judgment to Appellees on Oliva’s claims
under section 1985(3).
C. Oliva’s Claims under the CEPA
Oliva also brings claims under the New Jersey CEPA
which provides in relevant part that:
30
An employer shall not take any retaliatory
action against an employee because the
employee . . . [o]bjects to, or refuses to
participate in any activity, policy or practice
which the employee reasonably believes. . . is in
violation of a law . . . .
N.J. Stat. Ann. § 34:19-3(c)(1). As the District Court
observed, the elements required to prove a CEPA claim
mirror those required to prove a retaliation claim under
section 1981. Estate of Oliva, 579 F. Supp. 2d at 684.
Therefore, Oliva’s failure either to put forth evidence that a
desire to retaliate against him for his complaints about racial
profiling motivated Appellees or that their stated reasons for
their actions were a pretext for retaliation dooms Oliva’s
CEPA claims. See Dzwonar v. McDevitt, 828 A.2d 893, 900
(N.J. 2003); Fleming v. Correctional Healthcare Solutions,
Inc., 751 A.2d 1035, 1041 (N.J. 2000). Accordingly, we will
affirm the District Court’s grant of summary judgment to
Appellees on these claims.
D. Oliva’s Claims under the LAD
Oliva pled additional state law claims pursuant to the
New Jersey LAD for retaliation and hostile work
environment. The District Court found that the CEPA’s
waiver provision barred this claim. That provision recites
that:
31
. . . the institution of an action in accordance
with [CEPA] shall be deemed a waiver of the
rights and remedies available under any other
contract, collective bargaining agreement, State
law, rule or regulation or under the common
law.
N.J. Stat. Ann. § 34:19-8. The New Jersey Supreme Court
has construed this provision to preclude a litigant who has
instituted a CEPA claim either from pursuing a separate state
law claim for retaliatory discharge, or any other state law
claim that requires the same proofs as those needed to satisfy
a CEPA claim. See Young v. Schering Corp., 660 A.2d 1153,
1160-61 (N.J. 1995). “It is beyond dispute that the
framework for proving a CEPA claim follows that of a LAD
claim.” Ivan v. County of Middlesex, 595 F. Supp. 2d 425,
466 (D.N.J. 2009) (quoting Donofry v. Autotote Sys., Inc.,
795 A.2d 260, 269 (N.J. Super. Ct. App. Div. 2001)).
Because Oliva grounds his LAD claims on allegations of
retaliation, the CEPA’s waiver provision precludes their
prosecution.
E. Leave to Amend the Complaint
In opposition to Appellees’ motion for summary
judgment, Oliva sought for the first time to amend his
complaint to include a claim for First Amendment retaliation
under 42 U.S.C. § 1983. The District Court denied Oliva
leave to amend his complaint to include this claim because at
the time of the motion for summary judgment, the case had
32
been pending in the Court for more than seven years, Oliva
already had amended his complaint twice, the presence of a
potential First Amendment retaliation claim long had been
apparent, and Appellees would be prejudiced by allowing an
amendment. Estate of Oliva, 579 F. Supp. 2d at 679.
Federal Rule of Civil Procedure 15(a)(2) provides that
a court freely should grant leave to amend a complaint when
justice so requires. Nevertheless, a district court may exercise
its discretion to deny leave to amend a complaint in situations
in which the plaintiff has delayed seeking leave to amend if
the delay “is undue, motivated by bad faith, or prejudicial to
the opposing party.” Bjorgung v. Whitetail Resort, LP, 550
F.3d 263, 266 (3d Cir. 2008) (citing Adams v. Gould, 739
F.2d 858, 864 (3d Cir. 1984)). Delay is “undue” when it
places an unwarranted burden on the court or when the
plaintiff has had previous opportunities to amend. Id.
Irrespective of whether Appellees would have suffered
prejudice from Oliva’s late assertion of a First Amendment
claim, Oliva’s delay in seeking leave to amend was undue.
The presence of a potential First Amendment retaliation claim
was or should have been apparent to him from at least the
time that he filed his second amended complaint on February
3, 2003. Moreover, he does not justify his delay in seeking to
add such a claim until after Appellees filed their motion for
summary judgment on January 15, 2008. In these
circumstances, we cannot say that the District Court abused
33
its discretion by denying Oliva leave to amend to assert a First
Amendment claim.18
VI. CONCLUSION
John Oliva’s experience in the New Jersey State Police
was undoubtedly negative, and his story is tragic. Yet we
cannot find that he has a right to relief unless he can establish
that his various statutory causes of action can be sustained
according to their requirements or establish that the District
Court abused its discretion in denying him leave to amend his
complaint. He has not done so and thus this case must fail.
Therefore, we will affirm the order of the District Court,
entered on September 30, 2008, granting summary judgment
to Appellees and denying Oliva leave to amend his complaint.
18
Because of our procedural disposition of Oliva’s motion to
amend, we need not consider whether Oliva by restating his
claims as alleging a First Amendment violation would have
made them more viable.
34