CORCORAN v. CAUWELS

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JAMES CORCORAN, :

Plaintiff, : Civil Action No. 18-13875 (ES) (JAD)

Vv. 2 OPINION

CHIEF GLEN CAUWELS,

In his individual and official capacities,

Defendant.

SALAS, DISTRICT JUDGE

Before the Court is Defendant Chief Cauwels’s (“Defendant”) motion to dismiss Plaintiff

James Corcoran’s (“Plaintiff”) Complaint. (D.E. No. 5). The Court has jurisdiction pursuant to 28

U.S.C. §§ 1331 and 1343(a)(3). Having considered the parties’ submissions,' the Court decides this

matter without oral argument. See Local Civ. R. 78.1(b). As set forth below, the Court DENIES

Defendant’s motion to dismiss.

I. Background”

Plaintiff and Defendant are police officers employed by the Borough of Fair Lawn Police

Department (“FLPD”). (Compl. ff] 5-6). The Borough of Fair Lawn (“Fair Lawn”) is a municipality

which maintains and controls the FLPD. (/d. 77). In 2006, Plaintiff was Vice President for the local

chapter of the Patrolmen’s Benevolent Association (“PBA”), and Defendant was a union

representative for the Superior Officers Association (“SOA”). (/d. 11-12). Around that time,

({D.E. No. 1, Complaint (“Compt.”); D.E. No. 5-1, Brief in Support of Defendant's Motion to Dismiss (“Def.'s

Mov. Br."); D.E. No. 9, Brief in Opposition to Defendant’s Motion to Dismiss (“PI.’s Opp. Br.”); D.E. No. 10,

Defendani’s Reply to Brief in Opposition (“Def.’s Reply Br.”)).

2 The Court must accept Plaintifi’s factual allegations as true for purposes of resolving the pending motion to

dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).

Plaintiff learned that Lieutenant William Yirce (Lt. Yirce”), a SOA member, was using money

earmarked for a “Police Unity Tour” bicycle ride for his personal benefit. (/d. § 14). The issue

escalated in 2007, when, during a PBA meeting, Plaintiff“requested an accounting” of the funds from

Lt. Yirce and another SOA member. (/d. {J 14-15). In March 2007, Plaintiff also made New Jersey

Open Public Records Act (“OPRA”) requests to Fair Lawn for emails between Lt. Yirce, Defendant,

and other SOA members. (/d. 7 16). Plaintiff withdrew these requests after his supervising Captain

told him that they could cause “issues” for those individuals. (/d. 917). In 2009, Defendant alleged

that Plaintiff was profiling Caucasian citizens during traffic stops. (/¢. 921). In 2010, Defendant

became a Captain and assumed command of the Internal Affairs (“I.A.”) unit. (/d. J 24). In this

position, Defendant “initiated no less than six . . . internal affairs complaints against Plaintiff.” (/d. □□

26). Furthermore, Defendant investigated his own complaints “contrary to accepted practices and

policies .. . established by the New Jersey Attorney General’s Internal Affairs Guidelines.” (/d. {

27). When Plaintiff was under investigation in 2011, Defendant stated “this is the best thing ever.”

(/d. § 29). Although Plaintiff had engaged in no wrongdoing, Defendant “refused to exonerate

Plaintiff, and instead found that the complaint was ‘not sustained.”” (/d.). Also in 2011, Defendant

initiated an I.A. complaint against Plaintiff for towing cars. (/d. § 30). When exonerating video of

the incident was recovered, Defendant stated that “if not for the video, the complaint would have been

sustained.” (/d.).

In 2014, Defendant—then interim Chief of Police—approved another I.A. complaint against

Plaintiff, of which he was ultimately exonerated. (/d. { 32-33). During the investigation of this

complaint, Plaintiff was interviewed and received permission to record this interview with a handheld

recorder. (/d. § 34). Afterwards, however, Defendant ordered Plaintiff's Captain—Captain

Patterson*—to seize the recorder. (/d.). In 2015, Defendant initiated another [.A. complaint against

The Complaint refers to Captain Patterson without a first name. (See generafly Compl.).

Plaintiff for the handling of an arrest, even though Plaintiff “was complying with the directions of the

Bergen County Prosecutor’s Office.” (/d. 935). Asa result, Plaintiff was suspended for three days.

(/d.). Plaintiff was suspended for another five days in February 2016, after Defendant “instituted

another I.A. complaint against Plaintiff.” (/d. | 36). In August 2016, Defendant instituted ‘another

baseless [1.A.] investigation” against Plaintiff. (/d. ]37). In May 2017, Plaintiff was suspended for

six days after he told a citizen that “the [Defendant] might not be present at Headquarters because

[he] liked to play golf.” (dd. § 38).

During 2015, Plaintiff and another officer, Brian LaRosa, sought to be promoted to two

available Captain spots. (/d. 39-41). Defendant, however, had Captain Patterson ask a third officer,

Joseph Dawicki, to apply for one of the two spots. (/d. 445). After taking the Captain’s exam,

Plaintiff ranked “8-10 points higher than both of the other candidates.” (/d. | 47). Despite the

rankings, “the FLPD, through Defendant, promoted” LaRosa and Dawicki in March of 2018. (/d. |

48).

Plaintiff filed this action against Defendant in his individual and official capacities, alleging

Defendant violated Plaintiff's First Amendment rights under 42 U.S.C. § 1983. (/d. 956). Defendant

moves to dismiss the Complaint pursuant to Rule !2(b)(6) of the Federal Rules of Civil Procedure for

failure to state a claim, arguing generally that Plaintiff has failed to plead causation and individual

liability. (Def.’s Mov. Br. at 14-19). Alternatively, Defendant argues that Plaintiff's claim is barred

by the statute of limitations and that Defendant is entitled to qualified immunity. (/d. at 20-26).

II. Legal Standard

To withstand a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.”” Ashcroft v. Igbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twonibly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant ts liable for the misconduct alleged.” /d. “The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Jd.

“When reviewing a motion to dismiss, [a]l] allegations in the complaint must be accepted as

true, and the plaintiff must be given the benefit of every favorable inference to be drawn therefrom.”

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ku/wicki v. Dawson, 969 F.2d 1454,

1462 (3d Cir. 1992)). But the court is not required to accept as true “legal conclusions,” and

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice.” /gbal, 556 U.S. at 678.

Finally, “[i]n deciding a Rule 12(b){6) motion, a court must consider only the complaint,

exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic

documents if the complainant’s claims are based upon these documents.” Maver v. Belichick, 605

F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.

2006); fn re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Hl. Analysis

The Court denies Defendant’s motion because; (i) Plaintiff has pled sufficient facts to state a

claim for a violation of the First Amendment under 42 U.S.C. § 1983; (ii) the Complaint is not barred

by the statute of limitations; and (iii) Defendant is not entitled to a finding of qualified immunity at

this stage.

In order to plead a First Amendment retaliation claim under § 1983, “a plaintiff must allege:

(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary

firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally

protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir.

2006). Defendant first argues that the Complaint fails to establish causation as required by the third

prong. (Def’s. Mov. Br. at 14-18).

A. Causation

Defendant argues that the gap between Plaintiff's OPRA requests and the FLPD’s failure to

promote him was too long and tenuous to infer causation. (/d. at 17-18). Plaintiff counters that

Defendant’s complaints, investigations, and comments over the years establish a causal connection

between Plaintiffs conduct and the failure to promote. (P1.’s Opp. Br. at 14). The Court agrees that

Plaintiff’s allegations are sufficient to create a reasonable inference of causation at this stage.

The causation element is generally ‘ta question of fact for the jury.” Fa/co v. Zimmer, 767 F.

App’x 288, 310 (Gd Cir. 2019) (quoting McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005)). At

the motion to dismiss stage a court is “obliged to accept [a plaintiff]’s factual allegations as true and

to draw reasonable inferences regarding causation in [his] favor.” Conard v. Pa. State Police, 902

F.3d 178, 184 (3d Cir. 2018). To sufficiently plead causation, a plaintiff must plead that the protected

conduct was a “substantial or motivating factor” for the alleged retaliation. /d, (quoting Watson □□□

Rozum, 834 F.3d 417, 422 (3d Cir. 2016)). “While ‘unusually suggestive’ timing can provide

evidence of causation, causation also can be shown ‘from the evidence gleaned from the record as a

whole.”” Jd. (quoting Watson, 834 F.3d at 422). Defendant argues that ‘a lack of temporal proximity

can lead the factfinder to conclude” the causal link is too tenuous (Def.’s Mov. Br. at 15) (emphasis

added). However, even a wide temporal gap can be narrowed by a showing of additional evidence

established after appropriate discovery. See Conard, 902 F.3d at 184-85 (holding that there is no

bright line rule regarding proximity and that plaintiff sufficiently pled causation despite a nearly nine-

year gap between the alleged protected conduct and retaliation).

Here, the Complaint contains allegations of no fewer than six 1.A. complaints against Plaintiff,

initiated or authorized by Defendant during the 11-year period. (See Compl. { 26). Plaintiff also

alleges that Defendant made comments such as “this is the best thing ever” and “if not for the video,

the complaint would have been sustained” when referring to investigations of the Plaintiff. (/d. at □

29-30). Plaintiff further alleges that Defendant ordered Captain Patterson to seize the recorder

Plaintiff was permitted to use during an investigation interview. (/d. at □ 34). Taken together and

viewed in a light most favorable to Plaintiff, these allegations create a reasonable inference of

causation.

Defendant argues that the discrepancy between Plaintiff's allegations and his promotions

during the time period, do not create a “pattern” with which the Court may use to infer causation.

(Def.’s Reply Br. at 12). However, Plaintiff □□ not required to show any pattern at this stage. Rather,

Plaintiff's burden is even less than a showing that his “protected conduct was the ‘but for’ cause” of

Defendant’s actions. Faico, 767 F. App’x at 311 (quoting Suppan v. Dadonna, 203 F.3d 228, 236

(3d Cir. 2000)). Furthermore, the cases Defendant cites to support his argument involve Title VII of

the Civil Rights Act—not § 1983—and the plaintiffs in those cases did not allege any misconduct in

the intervening period that tied the protected activity to the retaliation. (Def.’s Reply Br. at 11); see

Suri v. Foxx, 69 F. Supp. 3d 467 (D.N.J. 2014); Rosado v. Mueller, No. 15-3999, 2016 WL 4435672

(D.N.J. Aug. 17, 2016). Plaintiff plainly satisfies his burden at the pleading stage, and “should be

afforded the opportunity to develop proof of causation through discovery.” See Conard, 902 F.3d at

183.

B. Individual Liability

Defendant further asserts that he is not individually liable because Plaintiff failed to plead that

the OPRA requests were a “substantial or motivating factor in the decision not to promote him,” and

that local ordinances delegate promotional authority to the Borough Manager, not Defendant. (Def.’s

Mov. Br. at 18-19). Defendant, however, mischaracterizes the law regarding individual liability.

As discussed above, the “substantial or motivating factor” standard applies to causation in

general and, in this case, is plausibly pled. See supra Section ILA. Ina § 1983 claim, a plaintiff can

successfully plead a defendant’s individual liability by alleging “participation or actual knowledge

and acquiescence” in the retaliatory action. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.

1988). These allegations must be pled with “appropriate particularity.” /d.; compare Chinniah □□ E.

Pennsboro Twp., 761 F. App’x 112, 115-16 (3d Cir. 2019) (holding that allegations that tax bureau

raised assessment due to defendants’ misinformation were sufficient to plead individual liability), and

Boykins vy, Ambridge Area Sch. Dist., 621 F.2d 75, 80 (3d Cir. 1980) (holding that allegations were

pled with particularity when they included the conduct, motive, people responsible, time, and place),

with Mincy v. Chmielsewski, 508 F. App’x 99, 104 (3d Cir. 2013) (finding that an alleged conversation

between plaintiff and defendant regarding missing property was “insufficient to establish personal

involvement or actual knowledge”).

At this stage, it is enough for Plaintiff to plead that Defendant encouraged a third applicant to

take the Captain’s exam and then promoted the other two individuals on March 1, 2018. (See Compl.

43-48). Such conduct sufficiently raises an inference that Defendant personally participated in or

actually knew and acquiesced to the non-promotion of Plaintiff. See Chinniah, 761 F. App’x at 115.

Defendant nevertheless maintains that he is not individually liable because the Borough Manager has

sole authority regarding promotions. (Def.’s Mov. Br. at 18-19). However, courts consider whether

a defendant is a final authority—i.e. a policymaker—on promotion decisions when adjudicating

claims against a municipality under Monell v. Department of Social Services, 436 U.S. 658 (1978)."

‘ A plaintiff bringing a § 1983 claim against a municipality based on an act of a policymaker must show, under

Monell, that the officer had “final policy-making authority . . . i te particular area of municipal business in question.”

Hill, 455 F.3d at 245 (3d Cir. 2006). Here, the Complaint alleges that Defendant “constitutes a policymaker for the

(FLPD] and the Borough [of Fair Lawn].” (Compl. 48). While Plaintiff's § 1983 claim against Defendant in his official

capacity is the functional equivalent of a Monei/ claim, see Cuvo v. De Biasi, 169 F. App’x 688, 693 (3d Cir. 2006),

Defendant does not argue for dismissal of Plaintiff's claim against him in his official capacity, including under the Monell

doctrine. (See generally Def.’s Mov. Br.; Def.’s Reply Br.). Accordingly, the Court reserves its decision as to the scope

of Defendant's policymaking authority for purposes of Monel liability until this issue is squarely before the Court. See

See Mrazek v. Stafford Twp., No. 13-1091, 2017 WL 1788655, at *9-14 (D.N.J. May 5, 2017), aff'd,

744 App’x 69 (3d Cir. 2018) (holding that the chief was not the final “policymaker” for promotional

decisions under New Jersey state law, and that the local administrative code did not delegate this

authority to the chief). For purposes of stating a claim against Defendant in his individual capacity,

it is sufficient for Plaintiff to plead that Defendant “played an ‘affirmative part’ in the alleged

misconduct.” See Alexander v. Fritch, 396 F. App’x 867, 874 (3d Cir. 2010); see also Mrazek, 2017

WL 1788655, at *8 n.3 (holding allegations of improperly influencing officer’s scores in the

promotion exam process were enough to overcome summary judgment). Plaintiffs allegations, at

the very least, create a reasonable inference that Defendant influenced the failure to promote. (See

Compl. ff] 43-48). Discovery might uncover good reason for the failure to promote or that it was

unrelated to Plaintiff's OPRA requests. See Weston v, Passaic Cty., No. 14-0062, 2014 WL 2094095,

at *3 (D.N.J. May 20, 2014). “At this juncture, however, the Court is obligated to make all reasonable

inferences in [Plaintiff's] favor.” /d.

Cc, Statute of Limitations

Defendant argues that any events that took place before the alleged failure to promote in 2018

are outside the two-year statute of limitations period allowed under a § 1983 claim, (Def.’s Mov. Br.

at 20-21). Plaintiff counters that the 2017 suspension and 2018 failure to promote are within the

two-year period, and that the events that occurred prior to 2016 can be considered to create a causal

connection. (Pl.’s Opp. Br. at 22).

The statute of limitations for a § 1983 claim is two years from accrual. O'Connor v. City of

Newark, 440 F.3d 125, 126-27 (3d Cir. 2006). In the context of claims against an employer, whether

a claim accrues depends on whether it is based on discrete acts or acts that aggregate into a hostile

Davis v. Welly Fargo, 824 F.3d 333, 349 (3d Cir. 2016} (“When presenting a Rule 12(b)(6) motion, the defendant bears

the burden to show that the plaintiff has not stated a claim.”).

work environment claim. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-22 (2002);

O'Connor, 440 F.3d at 128 (holding that Morgan applies to § 1983 claims). Wrongful suspensions,

wrongful accusations, wrongful discipline, and failure to promote are all examples of discrete acts.

O'Connor, 440 F.3d at 127. Unlike hostile work environment claims, discrete acts “are not actionable

if time barred, even when they are related to acts alleged in timely filed charges.” Morgan, 536 U.S.

at 113. “The existence of past acts... however, does not bar employees from filing charges about

related discrete acts so long as the acts are independently discriminatory and .. . timely filed.” /d.

Furthermore, these past acts, although not individually actionable, can be used “as background

evidence in support of a timely claim.” /d.

The Court finds that the alleged wrongful suspensions, investigations, and accusations that

occurred before 2016 are time barred as independent claims because they are discrete and outside the

two-year period. (See Compl.). Nevertheless, the alleged 2017 suspension and 2018 failure to

promote are discrete acts within the statute of limitations. (See Compl. 4 38-48). The Court may

also properly consider the events before 2016 as background evidence in support of Plaintiff's claims

founded upon the 2017 and 2018 events. Sce Morgan, 536 U.S. at 113. Therefore, to the extent

Plaintiffs claim is based on the discrete acts that occurred in 2017 and 2018, it is not barred by the

statute of limitations.

D. Qualified Immunity

Qualified immunity insulates government officials from the burdens of litigation and civil

liability. Walter v. Pike County, 544 F.3d 182, 190 (3d Cir. 2008). In determining the applicability

of qualified immunity, a court must determine {i) whether the alleged facts demonstrate a violation

of a constitutional right and (ii) whether that right was “‘clearly established’ at the time of [a]

defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009). While both prongs

are required, courts may address them in any order. □□□ at 239-40.

1. Violation of a Constitutional Right

The speech of a public employee is a constitutionally protected right “when (1) in making it,

the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the

government employer did not have ‘an adequate justification for treating the employee differently

from any other member of the general public’ as a result of the statement he made.” Hill v. Borough

of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418

(2006)). As the parties do not raise the third element, and because it is “better left for the summary

judgment stage,” Khan vy. City of Paterson, No. 17-5006, 2018 WL 2059550, at *10 (D.N.J. May 2,

2018), the Court addresses only the first two.

a. Private Citizen

A public employee does not speak as a private citizen when the statement made is “pursuant

to their official duties.” Palardy v. Twp. of Millburn, 906 F.3d 76, 81 (3d Cir. 2018) (quoting Garcetti,

547 U.S. at 421), cert. denied, 139 8. Ct. 2011 (2019). A statement pursuant to one’s official duties

does not merely concern those duties but is part of a public employee’s “ordinary job responsibilities.”

Flora v. Cty. of Luzerne, 776 F.3d 169, 178 (3d Cir. 2015) (quoting Lane v. Franks, 573 U.S. 228,

237 (2014)). In other words, a public employee speaks as a private citizen when making a statement

that is not part of “the tasks he was paid to perform.” /d. (quoting Lane, 573 U.S. at 239); see also

Janus v. Am. Fed'n of State, Cty, & Mun, Emps., Council 3/1, 138 $. Ct. 2448, 2471 (2018)

(“[E]mployee speech is largely unprotected if it is part of what the employee is paid to do.”).

Furthermore, a public employee’s speech is not protected if the speech could only have occurred

because of his public employment. See, e.g., 56 Fraternal Order of Police, Lodge | v. City of

Camden, 842 F.3d 231, 244 (3d Cir. 2016) (holding that filling out internal police counseling forms

is not protected because citizens do not fill out such forms); De Ritis v. McGarrigle, 861 F.3d 444,

454 (3d Cir. 2017) (“[A]n employee does not speak as a citizen if the mode and manner of his speech

10

were possible only as an ordinary corollary to his position as a government employee.”).

Defendant argues that Plaintiff did not speak as a private citizen because he made the OPRA

requests in his capacity as a union leader. (Def’s Mov. Br. at 25; Def.’s Reply Br. at 5), Although

the Third Circuit has not explicitly determined whether union activities are categorically protected or

unprotected, other Courts of Appeals have used similar reasoning to establish a bright-line rule that

union activities are protected from retaliation under the First Amendment.° See, e.g., Boulton v.

Swanson, 795 F.3d 526, 534 (6th Cir. 2015) (holding that speech in connection with union activities

is done “as a citizen” because job responsibilities do not include acting as a union member); Sweslik

v, Crawford, 738 F.3d 818, 826 (7th Cir. 2013) (holding statements made as a union representative

are not part of official police duties and thus are afforded First Amendment protection); E/lins v. City

of Sierra Madre, 710 F.3d 1049, 1060 (9th Cir. 2013) (“Given the inherent institutional conflict of

interest between an employer and its employees’ union, we conclude that a police officer does not act

in furtherance of his public duties when speaking as a representative of the police union.”).

Furthermore, Defendant contends that the OPRA requests were unprotected speech because

they were related to “special knowledge” and “experience” acquired through Plaintiff's job. (Def.’s

Reply Br. at 5). However, even Defendant’s cited authority plainly holds that “speech might be

considered part of [an employee’s] official duties if it relates to ‘special knowledge’ or ‘experience’

acquired through his job.” See Gorum v,. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009) (emphasis added).

In fact, it is not enough that the speech “owes its existence” to any “special knowledge” or

“experience” acquired through one’s professional duties. Dougherty v. Sch. Dist. of Phila., 772 F.3d

979, 990 (3d Cir. 2014). The Third Circuit refuses to read the “pursuant” standard under Garcetti so

broadly as it would “eviscerate citizen speech by public employees simply because they learned the

When the Third Circuit has not yet addressed a right asserted by a plaintiff, a district court must “routinely

consider decisions by other Courts of Appeals.” Scharidt v. Creedon, 639 F.3d 587, 598 (3d Cir. 2011) (quoting IFidliams

v. Bitner, 455 F.3d 186, 192-93 (3d Cir. 2006)).

11

information in the course of their employment.” /d, at 989; see also Lane, 573 US. at 240 (“[S]peech

by public employees on subject matter related to their employment holds special value precisely

because those employees gain knowledge of matters of public concern through their employment.”).

Defendant also argues that complaints made “up the chain of command” are part of a public

employee’s duties and thus are not made as a private citizen. (Def.’s Reply Br. at 16). Defendant’s

reliance on Goldrich v, City of Jersey City is misplaced as that case involves a Plaintiff who explicitly

and exclusively reported alleged misconduct to an individual supervisor within the union. No. 15-

885, 2017 WL 6209205, at *5 (D.N.J. Dec. 8, 2017), reconsideration denied, No. 15-885, 2018 WL

3360764 (D.N.J. July 10, 2018). Furthermore, Goldrich relies on a Third Circuit decision which held

that complaints made up the chain of command to a government agency supervisor were part of the

employee’s official duties—a distinct context from union activity. See Morris v, Phila. Hous. Auth,,

487 F. App’x 37, 39 (3d Cir. 2012). Plaintiff alleges that he asked for an accounting and made the

OPRA requests in his capacity as a union member. (Compl. {f 15-16). Given the nature of OPRA

requests and the fact that Plaintiff raised the issue at a PBA meeting, the alleged facts create a

reasonable inference that Plaintiff acted as a private citizen—not solely as a union member reporting

something up the chain of command. (See id.). Because this union activity does not fall within the

scope of his “ordinary job responsibilities,” Flora, 776 F.3d at 178, and since a citizen could also

have filed a similar OPRA request, Plaintiff has sufficiently pled a protected activity.

b, Public Concern

Whether a statement addresses a matter of public concern is a question of law. Curinga v.

City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004). There is no bright-line rule dictating whether

speech is a matter of public concern. Montone v. City of Jersey City, 709 F.3d 181, 194 (3d Cir.

2013). Rather, the Court must engage in a “‘case- and fact-specific inquiry” in making this

determination. /d.

12

“An employee’s speech addresses a matter of public concern when it can be ‘fairly considered

as relating to any matter of political, social, or other concern to the community.’” Holder v. City of

Allentown, 987 F.2d 188, 195 (3d Cir. 1993) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

A court conducts a public-concern inquiry by examining the “content, form, and context” of the

speech. /d. (quoting Connick, 461 U.S. at 147-48). In making this determination, no single factor

is dispositive, and the Court must examine the entire record. Snvder v. Phelps, 562 U.S. 443, □□□□

54 (2011); see also Zamboni v. Stamler, 847 F.2d 73, 78 (3d Cir. 1988) (quoting Rode, 845 F.2d at

1201) (“*[c]omplete reliance’ on the employee’s motivation in speaking is inappropriate”). The

content of speech may be a matter of public concern if it is “a subject of legitimate news interests”

that addresses a subject of general interest and concern to the public. Snyder, 562 US. at 453 (quoting

City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004)). For example, a public employee’s speech

addresses a matter of public concern if it “seeks to ‘bring to light actual or potential wrongdoing or

breach of public trust’ on the part of government officials.” Holder, 987 F.2d at 195 (quoting

Connick, 461 U.S. at 148). Under this framework, the Third Circuit has found a public employee’s

criticism of internal office operations to be a matter of public concern. Zamboni, 847 F.2d at 77.

Likewise, some union activities—e.g., criticism of management—may address matters of public

concern. Thomas v. Del. State Univ., 626 F. App’x 384, 388 (3d Cir. 2015); accord Clue v, Johnson,

179 F.3d 57, 61 (2d Cir. 1999).

Defendant argues that the alleged corruption occurred within and affected only the union and

was thus not a matter of public concern. (Def.’s Reply Br. at 5-10). In support of this argument,

Defendant urges the Court to consider the union’s website and find that the OPRA requests concerned

only union funds and not “taxpayer money.” (/d. at 7). But Plaintiff claims that he requested an

accounting and made the OPRA requests in connection with allegations that members of the SOA—

police officers—were misappropriating funds for personal gain. (Compl. (fj 14-15). Members of the

13

public would be interested to learn of corruption or other wrongdoing by police officers in any

capacity. See Baldassare vy. New Jersey, 250 F.3d 188, 198 (3d Cir. 2001) (“[T]he public’s interest

in exposing potential wrongdoing by public employees is especially powerful.”).

Furthermore, there is no indication in the Complaint, and Defendant does not argue, that

Plaintiff made the OPRA requests because of a personal grievance. (See generally Compl.; Def.’s

Mov. Br.; Def.’s Reply Br.); see also Swineford v. Snyder Cty., 15 F.3d 1258, 1274 (3d Cir. 1994)

(holding that personal grievances are not a matter of public concern). At this stage, Plaintiff has

plausibly pled a matter of public concern by alleging that he learned individuals were

misappropriating union funds that were earmarked for a police bicycle tour, requested an accounting

from the accused individuals at a PBA meeting, and made OPRA requests for emails between the

individuals. (Compl. ff] 14-16).

Finally, assuming, arguendo, that the Court could consider the union website, such a

consideration would further support the Court’s findings because the site contains a portal to accept

general donations from the public.® If the allegedly misappropriated “union funds” came from the

public, this would create a stronger argument for a finding of public concern. See Czurlanis v.

Albanese, 721 F.2d 98 (3d Cir.1983) (holding that criticism of wasting taxpayer’s money was a matter

of public concern). Given that Plaintiff's request for an accounting and subsequent OPRA requests

are protected activities, and Plaintiff has plausibly pled that these activities addressed a matter of

public concern, Plaintiff has plausibly pled a violation of his First Amendment rights.

2. Clearly Established

A right is clearly established if a reasonable state actor, under the circumstances, would

understand that his conduct violates that right. Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006)

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(citing Saucier vy. Katz, 533 U.S. 194, 202 (2001)). “The right allegedly violated must be defined at

the appropriate level of specificity.” Wilson v. Layne, 526 U.S. 603, 615 (1999); see also Zaloga v.

Borough of Moosic, 841 F.3d 170, 175 (3d Cir. 2016) (holding that it is too broad to simply state that

the settled rule, as a general matter, prohibits government officials from retaliating for employees’

speech). Accordingly, while “a qualified immunity defense does not demand that there had been a

precise preview of the applicable legal analysis underlying the defense; what is required is that

government officials have ‘fair and clear warning’ that their conduct is unlawful.” Halsey v. Pfeiffer,

750 F.3d 273, 295 (3d Cir. 2014) (quoting Devereaux v. Abbey, 263 F.3d 1070, 1077 (9th Cir. 2001)).

Thus, qualified immunity attaches if “reasonably competent” officers could disagree on the

constitutionality of the conduct. Malley v. Briggs, 475 U.S. 335, 341 (1986).

Since there is no direct precedent on whether the alleged misconduct in the instant case was a

clearly established right when it occurred, the Court must analyze analogous factual settings in “the

light most favorable to the party asserting the injury.” Mfrazek, 2017 WL 1788655, at *4 (quoting

Andrews v, Scuilli, 853 F.3d 690, 697 n.8 (3d Cir. 2017)). The Third Circuit has ‘clearly established

the illegality” of retaliating for a public employee’s exercise of his First Amendment rights. /d. at *5.

Furthermore, it is clearly established that retaliation against participation in a union is unlawful. See,

e.g., Palardy, 906 F.3d at 84; Schleig v. Borough of Nazareth, 695 F. App’x 26, 31-32 (3d Cir. 2017).

Additionally, a determination that the activity was a matter of public concern further supports a

finding that it would be clear to a reasonable officer that such activity was protected. Cf Killion v.

Coffey, No. 13-1808, 2016 WL 5417193, at *17 (D.N.J. Sept. 27, 2016), aff'd, 696 F. App’x 76 (3d

Cir. 2017) (finding that it was not clear to a reasonable officer that statements about police shift-work

were clearly established rights since statements were not a matter of public concern), Finally, “[w]hen

the balance of cognizable interest weighs so heavily in an employee’s favor, our cases make plain

that the law is clearly established.” Dougherty, 772 F.3d at 994 (quoting MfcGreevy, 413 F.3d at 367).

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In addition to the well-settled authority holding union membership is a clearly established

right, Plaintiff's allegations create a reasonable inference that his activity was a matter of public

concern. See supra Section IIf.D.1.b. Finally, Plaintiff's allegations that he took actions to uncover

alleged wrongdoing by public officials create a reasonable inference that his interests outweigh those

of his employer. See Dougherty, 772 F.3d at 991 (quoting Swineford, 15 F.3d at 1274) (holding that

speech involving alleged abuse by public officials “occupies the highest rung of First Amendment

protection”).

Defendant also argues that Plaintiff bears the burden of showing that Plaintiff's actions were

a clearly established constitutional right at the time of Defendant’s alleged misconduct. (Def.’s Mov.

Br. at 23). However, Defendant relies on a case considering qualified immunity at the summary

judgment stage. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). But at the pleading

stage, “‘a plaintiff has no obligation to plead a violation of clearly established law in order to avoid

dismissal on qualified immunity grounds.” Thomas, 463 F.3d at 293. Instead, Defendant bears the

burden of pleading qualified immunity. See id. Here, Plaintiff's failure to state a claim of a violation

of clearly established rights does not entitle Defendant to dismissal at this stage. See id. Plaintiff's

allegations create a reasonable inference that Defendant violated a clearly established right. Plaintiff

is not required to allege more, and Defendant has not sufficiently pled qualified immunity to be

entitled to dismissal at this stage.

IV. Conclusion

For the foregoing reasons, the Court DENIES Defendant’s motion to dismiss. An appropriate

Order accompanies this Opinion.

Esther Salas, U.S.D.J.

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