NIEVES-HALL v. CITY OF NEWARK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Lieutenant Grissel Nieves-Hall,

No. 19-9755-KM-MAH

Plaintiff,

Vv. OPINION

City of Newark, Anthony Ambrose

and Captain Camilo Mos,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

Lieutenant Grissel Nieves-Hall of the Newark Police Department alleges

First Amendment retaliation and other employment-related claims. Before the

Court are three motions to dismiss her complaint for failure to state a claim,

pursuant to Fed. R. Civ. P. Rule 12(b)(6), brought by defendants the City of

Newark, Director of Public Safety Anthony Ambrose, and Captain Camilo Mos.

(DE 3, 6, 11). For the reasons provided below, defendants’ motions to dismiss

are granted in part, but for the most part denied.

I. Factual Allegations! .

The allegations of the complaint are assumed to be true only for

purposes of this motion to dismiss.

Plaintiff Nieves-Hall is currently an employee of the Newark Police

Department (“NPD”). (Compl. 4 6) She was hired on February 27, 1995, and

1 For ease of reference, certain key items from the record will be abbreviated as

follows. Citations to page numbers refer to the page numbers assigned through the

Electronic Court Filing system, unless otherwise indicated.

DE = docket entry number; Compl. = Lt. Nieves-Hall’s complaint (DE 1);

DE 3 = The City’s moving brief; DE 20 = The City’s reply brief;

DE 6 = Director Ambrose’s moving brief; DE 19 = Director Ambrose’s reply brief;

DE 11 = Capt. Mos’ moving brief (DE 11); DE 21 = Capt. Mos’ reply brief,

DE 15 = Lt. Nieves-Hall’s opposition.

has since been promoted within the NPD. She currently holds the rank of

Lieutenant. (/d.) She has no disciplinary record and has received awards for her

service. (Id.) Defendant Camilo Mos served as Police Captain for the City of

Newark (“the City”) and was Lt. Nieves-Hall’s immediate supervisor. (Id. | 4)

Defendant Anthony Ambrose is the Director of Public Safety for the City. (id. □

3)

Lt. Nieves-Hall states that she was “a very outspoken supporter of

Newark mayoral candidate Shavar Jeffries (Jeffries)” and that she exercised

“her US Constitutional First Amendment Freedom of Speech and Assembly” to

support Jeffries and speak out on his behalf. (Jd. 7 7) Lt. Nieves-Hall asserts

that she appeared in a commercial on Jeffries’ behalf in which she endorsed

his candidacy. (Id. § 8) Defendant Ambrose is alleged to have been a supporter

of Jeffries’ opponent, Ras Baraka, who ultimately was elected mayor and

appointed Ambrose Director of Public Safety. (Id. | 7)

Lt. Nieves-Hall broadly asserts that the City has allowed Director

Ambrose and Capt. Mos “to abuse, harass, humiliate, excoriate, denounce,

castigate, exploit, degrade, debase {and impetuously transfer) [her] for several

years now, without properly or thoroughly monitoring their activities or

investigating” her complaints. (Id. | 9) She alleges that the City allowed

Director Ambrose and Capt. Mos to retaliate against her without stepping in,

making her “day to day life within the NPD virtually impossible, intolerable and

unbearable,” and creating “an atmosphere of lawlessness within the NPD.” (Id.

10)

More specifically, Lt. Nieves-Hall asserts that her troubles began in April

2016, in response to her support of Jeffries. Ud. Jf 11, 12) On April 16, 2016,

Capt. Mos “began to curse and scream at the plaintiff because she refused to

follow his illegal order.” (Id. | 13) She does not specify what this “illegal order”

was, but states that Capt. Mos refused to listen to her “attempt|] to explain the

illegality of his order.” (/d.) It was at this time, she alleges, that she realized

Capt. Mos had a “preconceived” and “irrational bent/propensity toward her.”

{Id.)

On May 4, 2016, she again received a call from Capt. Mos in which he

spoke to her in a degrading manner and ordered her to “‘go to the fucking

hospital and find out’ certain things about that prisoner.” (Id. J 14)

Despite these incidents, on August 24, 2016 Nieves-Hall was promoted to

Lieutenant and was assigned to the police academy, where for some time she

had no contact with Capt. Mos. (/d. 7 15)

On October 5, 2016, Lt. Nieves-Hall received another call from Capt. Mos

in which he directed her “to take a police action” that she claims was a

“pragmatic impossibility.” (id. {§ 16-17) She alleges that she tried to calmly

explain this to Capt. Mos; he replied, “I don’t want to hear any fucking excuses,

I’m the Captain, make it happen.” (Id. 17)

Two days later, on October 7, 2016, Lt. Nieves-Hall reported to Capt.

Mos’s office to turn in reports. After reading one report, Capt. Mos “became

visibly distraught and upset, and stated ‘what the fuck is this, I didn’t ask you

for this report.” (Id. 4 18). Lt. Nieves-Hall states that Capt. Mos then “stood up

in a clear and unmistakable threatening manner” and continued yelling at her

stating “you don’t like taking orders from me, it’s just me and you here, I’m

going to charge you with insubordination, I don’t need problems from you, you

are a fucking problem like the rest of them.” (Id. q 18) Capt. Mos’s behavior, in

her view, constituted violations of N.J. Stat Ann §8§ 2C:12-1 (assault), 2C:33-2

(disorderly conduct), and 2C:33-4 (harassment). (/d.} Capt. Mos is then alleged

to have said “I don’t need you, you can do whatever you want, I don’t need

you.” (Id.} Lt. Nieves-Hall states that she then told Capt. Mos that she would be

requesting a transfer from his commana. (Id.)

Lt. Nieves-Hall asserts that after her request for a transfer, “the hostile

work environment became increasingly heightened.” (Id.) She alleges that from

around April 2016 through the filing of the initial complaint in November 2018,

Capt. Mos would use a patrolman or a field sergeant subordinate to her to

communicate to her and give her orders in an effort to undermine her authority

and embarrass her. (Id. J 20-21)

Lt. Nieves-Hall filed complaints with the Newark Office of Affirmative

Action (“OAA”). (id. | 24) Lt. Nieves-Hall suggests that OAA refused to

investigate some of her complaints, while commencing a “bogus/sham internal

affairs investigation of Capt. Mos to ‘cover’ itself.” (Id. § 25) Lt. Nieves-Hall

alleges that OAA only interviewed a few people then closed its “mock”

investigation. (Jd. 4 25)

Lt. Nieves-Hall alleges that Director Ambrose was aware of Capt. Mos’s

behavior towards her. (Id. 4 22) She also alleges that Director Ambrose failed to

take any action and abandoned her so that she was still subject to Capt. Mos’s

behavior. (Id.)

From around April 2018 to November 2018, Lt. Nieves-Hall was offered

new positions on three occasions, but each time was denied the position by

Director Ambrose without explanation. (Id. | 26-28) She states that she was

first denied a transfer to the sixth precinct in April 2018, then was denied the

position of executive officer of the communications division, and then just prior

to filing the complaint was denied a transfer to the Special Victims’ Division

under a new captain. (Id.)

Ultimately, Lt. Nieves-Hall attributes Capt. Mos’s and Director Ambrose’s

conduct to her support of Jeffries. (Id. 4] 30-31) Because of this support, she

says, defendants have mistreated her in an effort to get her to resign from NPD.

(Id. | 32)

On November 14, 2018, Lt. Nieves-Hall filed a complaint in Essex County

Superior Court. Lt. Nieves-Hall then voluntarily dismissed her complaint

without prejudice. On April 12, 2019, Lt. Nieves-Hall filed her complaint in this

Court. (DE 1)

The complaint asserts six claims:

e Count One: First Amendment retaliation, 42 USC § 1983 (against all

defendants) (Compl. 4433-34);

* Count Two: Claim parallel to Count One under the New Jersey Civil

Rights Act, N.J. Stat. Ann. § 10-6-2(C) (against all defendants) (Compl.

q{ 35-40);

e Count Three: Violation of the New Jersey Conscientious Employee

Protection Act, N.J. Stat. Ann. § 34:19-1, et seq. (“CEPA”) (against all

defendants} (Compl. J] 41-49);

« Count Four: Violation of New Jersey Worker Freedom from Employer

Intimidation Act, N.J. Stat. Ann. § 34:19-9 (against all defendants)

(Compl. 74 50-51);

e Count Five: Intentional infliction of emotional distress (against Capt.

Mos) (Compl. 4 52-54); and

e Count Six: First Amendment Retaliation, 42 USC § 1983 (against City of

Newark) (Compl. 74 55-64).

In May 2019, each defendant moved to dismiss Lt. Nieves-Hall’s

complaint for failure to state a claim. (DE 3, 6, 11) Defendant Capt. Mos

incorporates by reference the arguments made in the briefing of Director

Ambrose and the City. (DE 11-2 at 4) Lt. Nieves-Hall opposes those motions.

(DE 15)

II. Standard

Rule 12(b}(6) provides for the dismissal of a complaint, in whole or in

part, if it fails to state a claim upon which relief can be granted. The defendant,

as the moving party, bears the burden of showing that no claim has been

stated. Animal Science Products, Inc. v. China Minmetals Corp., 654 F.3d 462,

469 n. 9 (3d Cir. 2011). For the purposes of a motion to dismiss, the facts

alleged in the complaint are accepted as true and all reasonable inferences are

drawn in favor of the plaintiff. New Jersey Carpenters & the Trustees Thereof v.

Tishman Const. Corp. of New Jersey, 760 F.3d 297, 302 (3d Cir. 2014).

Federal Rule of Procedure 8(a) does not require that a complaint contain

detailed factual allegations. Nevertheless, “a plaintiff's obligation to provide the

‘grounds’ of his ‘entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will

not do.” Beil Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the

complaint’s factual allegations must be sufficient to raise a plaintiffs right to

relief above a speculative level, so that a claim is “plausible on its face.” Id. at

570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank,

712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met

“when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

While “(t]he plausibility standard is not akin to a ‘probability requirement’...

it asks for more than a sheer possibility.” Igbal, 556 U.S. at 678.

Ill. Discussion?

A. Counts 1 (All defendants) and 6 (City of Newark) ~ 42 U.S.C. §

1983 Claims

i. Standard

Counts 1 and 6 of the complaint allege First-Amendment-based

violations of 42 U.S.C. § 1983.

The First Amendment enshrines the right of the people to petition the

government for redress of grievances. U.S. CONST. amend I. When that right is

infringed upon by state—as opposed to federal—officials, Section 1983 of the

Civil Rights Act of 1871 provides a remedy:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress.

2 Director Ambrose’s briefs (DE 6, 19), perhaps carrying over arguments from

some other case, repeatedly refer to claims that are not made by Lt. Nieves-Hall,

including “constructive discharge” (DE 6-21 at 4; DE 19 at 5); “breach of implied

covenant of good faith and fair dealing”; and “breach of contract” (DE 6-1 at 7-9, 15;

DE 19 at 6). Indeed, Director Ambrose faults Lt. Nieves-Hali for failing to address his

contract-based arguments in her brief. (DE 19 at 6) Arguments directed to claims that

do not appear in the complaint will be disregarded.

42 U.S.C. § 1983. Section 1983 allows a party who has been deprived of rights,

privileges, or immunities secured by the Constitution to seek damages and

injunctive relief. See id.

Section 1983 is not in itself a source of substantive rights; it provides a

remedy for violations of rights protected by other federal statutes or by the U.S.

Constitution. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985).

Therefore, in evaluating a § 1983 claim, a court must first “identify the exact

contours of the underlying right said to have been violated” and determine

“whether the plaintiff has alleged a deprivation of a constitutional right at all.”

Id. (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

A prima facie case under § 1983 requires a plaintiff to demonstrate that:

(1) a person deprived her of a federal right; and (2) the person who deprived her

of that right acted under color of state law. Groman v, Twp. of Manalapan, 47

F.3d 628, 633 (3d Cir. 1995) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).

There is no question here that Capt. Mos and Director Ambrose allegedly acted

under color of state law; they are police officials who were acting in the course

of their official duties when they are alleged to have violated Lt. Nieves-Hall’s

rights.

ii, Count 1 - liability under § 1983

Lt. Nieves-Hall asserts in Count 1 that all defendants violated her “US

Constitutional First Amendment rights to Freedom of Speech and Freedom of

Assembly” when they retaliated against her for her support of mayoral

candidate Jeffries. (Compl. | 34)

To assert a claim for First Amendment retaliation 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) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.

2003)).

The case law has adapted First Amendment claims to the peculiar

context of public employment. “A public employee must show that, among

other things, his or her speech is constitutionally protected. A statement is

protected by the First Amendment if: (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.” Young v. Twp. of Irvington, 629 F. App’x 352, 357 (3d

Cir. 2015) (internal citation and quotation marks omitted). Speech concerns a

matter of public concern if it can “be fairly considered as relating to any matter

of political, social, or other concern to the community.” Green v. Philadelphia

Hous. Auth., 105 F.3d 882, 885-86 (3d Cir. 1997), as amended (Mar. 13, 1997)

(citations omitted). Defendants seemingly concede, however, that Lt. Nieves-

Hall was speaking as a citizen when she exercised her First Amendment rights,

that she was speaking on a matter of public concern when she publicly

supported Jeffries, and that there would have been no justification for their

treatment of Lt. Nieves-Hall on the basis of her political statements (if that had

occurred, of course).

Defendants collectively move to dismiss Lt. Nieves-Hall’s § 1983 claim

because she has not pleaded a deprivation of her own constitutional rights. (DE

3-1 at 16} Capt. Mos asserts that the complaint makes conclusory allegations

that do not demonstrate misconduct on his part. (DE 11-2 at 7) Director

Ambrose claims that Lt. Nieves-Hall’s § 1983 claim must be dismissed because

he is entitled to qualified immunity.* The City separately asserts that Lt.

3 Director Ambrose’s briefing appears to address Lt. Nieves-Hall’s § 1983 claims

in conjunction with the NJCRA in sections III (DE 6-1 17-19) and VII (DE 6-1 at 31-

32} of his moving brief and sections IV (DE 19 at 10-13) and VII (DE 19 at 15} of his

reply brief. Director Ambrose also conflates Lt. Nieves-Hall’s First Amendment

retaliation claim with a a substantive due process cause of action that would require

deprivation of a specifically identified property interest. (See, e.g., 6-1 at 17-18). That

is not the claim Lt. Nieves-Hall is making. “Unlike Fourteenth Amendment due process

rights, appellant’s First Amendment right to be free from retaliation for speech is not

Nieves-Hall has failed to allege the Monell prerequisites for municipal liability,

ie., that she has not alleged that Capt. Mos and Director Ambrose acted

pursuant to “some custom or policy of the City to deprive her of her

constitutional rights.” (DE 3-1 at 17)

Lt. Nieves-Hall responds that her complaint sufficiently alleges that she

was “retaliated against” for publicly supporting an unsuccessful mayoral

candidate. (Jd. at 15-16) As a result of these First Amendment activities, she

says, Capt. Mos and Director Ambrose subjected her to abusive behavior,

denying her three separate job placements and ignoring her formal complaints.

(Id. at 17) To establish causation, she relies on the temporal proximity of this

behavior to her political activities. (Id. at 18).

1, Capt. Mos’s liability under § 1983

Construing the allegations as I must in Lt. Nieves-Hall’s favor, I find that

she has alleged sufficient facts to state a First Amendment claim under Section

1983 against Capt. Mos. Her exercise of her First Amendment right to speak in

favor of a political candidate is constitutionally protected speech on a matter of

public concern. She asserts that after exercising this right she suffered abuse

from Capt. Mos for years, including physical threats on one occasion. (Compl. {

18) The retaliation, she alleges, included her being denied three job

placements. The causation element, in particular, is one of fact, requiring

development in discovery. It remains to be proved, but it has been alleged.

At this early stage of the proceedings, these allegations are sufficient,

and Capt. Mos’s motion to dismiss Count 1 is denied.

2. Director Ambrose’s liability under § 1983

Lt. Nieves-Hall alleges that Director Ambrose retaliated because,

although aware of Capt. Mos’s actions, he “abandoned the plaintiff and let her

continue to be subjected to” Capt. Mos’s behavior. (Compl. J 22) In addition,

Director Ambrose allegedly denied her three other job placements without any

defeated by the lack of a property or liberty interest in his employment.” Latessa v.

New Jersey Racing Commission, 113 F.3d 1313, 1319 (3d Cir. 1997) (citation omitted).

justification. (Compl. 44 26-28) Director Ambrose replies that there are no

factual allegations that he personally took any action to violate Lt. Nieves-Hall’s

constitutional rights, and that in any event he is entitled to the protection of

the affirmative defense of qualified immunity. (DE 6-1 at 17, 31)

a. Supervisor liability under § 1983

A supervisor may be held liable under Section 1983 if that supervisor

was “involved personally, meaning through personal direction or actual

knowledge and acquiescence, in the wrongs alleged.” McKenna v. City of

Philadelphia, 582 F.3d 447, 460 (3d Cir. 2009) (citing Rode v. Dellarciprete, 845

F.2d 1195, 1207 (3d Cir. 1988)); see also A.M. ex rel U.M.K. v. Luzerne Cnty.

Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)(“A supervisor may be

personally liable . . . if he or she participated in violating the plaintiffs rights,

directed others to violate them, or, as the person in charge, had knowledge of

and acquiesced in his subordinates’ violations.”).

The complaint sufficiently alleges that Director Ambrose was aware of

and acquiesced in Capt. Mos’s acts. It also alleges that Director Ambrose

directly participated in the retaliation by denying her three separate job

placements as a result of her political activities. Director Ambrose’s supervisory

liability is therefore adequately alleged.

b. Qualified Immunity

I turn to Director Ambrose’s invocation of the affirmative defense of

qualified immunity. “The doctrine of qualified immunity insulates government

officials who are performing discretionary functions ‘from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.”

James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (quoting

Hariow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

Qualified immunity issues (such as whether a violation was “objectively

apparent” under the circumstances at the time) may require the kind of factual

context that is available only on summary judgment or at trial. Nevertheless,

10

when a qualified immunity issue is raised on a motion to dismiss, the court is

obligated to address it. “{Ujnless the plaintiffs allegations state a claim of

violation of clearly established law, a defendant pleading qualified immunity is

entitled to dismissal before the commencement of discovery.” Thomas, 463

F.3d at 291 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). As Thomas

implies, at the pleading stage such a clear violation need only be alleged, not

proven. “The focus of the qualified immunity inquiry is on the allegations. .. .”

Estate of Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir.

2014).

The U.S. Supreme Court has established a two-part analysis that

governs whether an official is entitled to qualified immunity. See Saucier v.

Katz, 533 U.S. 194, 201 (2001). That two-part analysis inquires as to (1)

whether the facts put forward by the plaintiff show a violation of a

constitutional right; and (2) whether the right at issue was clearly established

at the time of the alleged misconduct. Id.; James, 700 F.3d at 679. Even if

there are fact questions as to the first, constitutional-violation prong, the court

is required to decide the second, i.e., whether the right was clearly established.

See Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015)

(“(W]hile issues of fact may preclude a definitive finding on the question of

whether the plaintiff’s rights have been violated, the court must nonetheless

decide whether the right at issue was clearly established.”).

As discussed, supra, the complaint adequately alleges that Director

Ambrose participated in the violation of a federal constitutional right.

The second prong of the qualified immunity analysis asks whether the

right was so clearly established that Director Ambrose should have known that

he was committing a constitutional violation under the circumstances. Here, |

find that a reasonable person in Director Ambrose’s position should have

known that (if the allegations are correct, of course) he was violating Lt. Nieves-

Hall’s First Amendment rights when he allegedly took adverse acts as a result

of her political activities outside of work. “Since at least 1967, ‘it has been

11

settled that a State cannot condition public employment on a basis that

infringes the employee’s constitutionally protected interest in freedom of

expression.” Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 993 (3d Cir.

2014) (citations omitted). In Bennis v. Gabie, the U.S. Court of Appeals for the

Third Circuit stated that “as of 1982 the law was clearly established that a

public employee could not be demoted in retaliation for exercising his rights

under the first amendment.” 823 F.2d 723 (3d Cir.1987); see also, Zamboni v.

Stamler, 847 F.2d 73, 80 (3d Cir.1988) (“Defendants’ argument that Zamboni’s

First Amendment rights were not clearly established at the time the action

occurred cannot be sustained in light of this court’s line of precedent on public

employees’ protected speech.”) (citations omitted). Thus, the First Amendment

right at issue here was “clearly established” at all times relevant to this

dispute.

Count 1 states a claim against Director Ambrose for First Amendment

retaliation, and he is not entitled to dismissal on the basis of qualified

immunity. In these respects, his motion to dismiss is denied.

3. The City’s liability under 1983

Count 1 is asserted against all three defendants, including the City.

Count 6 separately alleges a First-Amendment-based 1983 claim against the

City alone, for reasons not entirely clear. The City moves to dismiss both,

asserting that the compiaint fails to “provide a scintilla of factual support that

the [individual] defendants acted pursuant to some custom or policy of the City

to deprive her of her constitutional rights.” (DE 3-1 at 17)

The standard for municipal liability for actions of employees was

delineated in Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978).

Section 1983 liability cannot be predicated on respondeat superior. See id. at

694; Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parrat v.

Taylor, 451 U.S. 527, 537 n. 3 (1981)). Rather, it is only “when execution of a

government’s policy or custom, whether made by its lawmakers or by those

whose edicts and acts may fairly be said to represent official policy, inflicts the

12

injury ... [that] the government as an entity is responsible under § 1983.”

Monell, 436 U.S. at 694. The two paths to Monell liability, then, are municipal

“policy” or “custom.”

“Policy is made when a ‘decisionmaker possess|ing] final authority to

establish municipal policy with respect to the action’ issues an official

proclamation, policy, or edict.’ Custom, on the other hand, can be proven by

showing that a given course of conduct, although not specifically endorsed or

authorized by law, is so well-settled and permanent as virtually to constitute

law.” Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citations omitted).

Allegations of “continued official tolerance of repeated misconduct” and that the

municipality has done nothing to end or change the practice, supports a

finding of a custom attributable to the municipality. Id. at 851-52.

Lt. Nieves-Hall points to no officially announced policy; presumably her

theory is one of de facto policy, or custom. She alleges that she filed complaints

with the Newark OAA, which declined to act. (Compl. J 24) The complaint

alleges official tolerance and even involvement at the fairly high level of the

Director of Public Safety. The entire course of conduct is alleged to stem from

the plaintiff's failure to support the Mayor. I therefore find that Count 1

sufficiently alleges municipal liability.

Count 6 seemingly rests on the same facts as Count 1. Here, however,

the alleged municipal policy or custom consists of a failure to train or supervise

municipal employees. In these circumstances, Section 1983 liability requires a

showing that the failure amounts to “deliberate indifference” to the rights of

persons with whom those employees will come into contact. City of Canton v.

Harris, 489 U.S. 378, 388 (1989). The Third Circuit has explicated the Canton

holding as follows:

The Court in Canton observed that failure to train may amount to

deliberate indifference where the need for more or different training

is obvious, and inadequacy very likely to result in violation of

constitutional rights .... For example, if the police often violate

rights, a need for further training might be obvious.

13

Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999).

A liability-creating “policy” may stem from a failure to properly train

personnel. Such a theory, however, is a “most tenuous” basis for liability.

Connick v. Thompson, 563 U.S. 51, 61, 131 8. Ct. 1350, 1359 (2011). In

Thomas v. Cumberland County, 749 F.3d 217 (3d Cir. 2014), the Court of

Appeals helpfully summarized the elements of such a “failure-to-train” claim:

Where the policy “concerns a failure to train or supervise municipal

employees, liability under section 1983 requires a showing that the

failure amounts to ‘deliberate indifference’ to the rights of persons

with whom those employees will come into contact.” Carter v. City of

Phila., 181 F.3d 339, 357 (3d Cir. 1999) (quoting City of Canton, Ohio

v. Harris, 489 U.S. 378, 388 (1989) (“Canton”)). Additionally, “the

identified deficiency in a city’s training program must be closely

related to the ultimate injury;” or in other words, “the deficiency in

training (must have] actually caused” the constitutional violation.

Canton, 489 U.S. at 391.

Id. at 222.

Count 6 alleges no facts about the training, or not, of the City employees

allegedly responsible. It fails to identify any particular failure to train; it simply

hypothesizes that it must have occurred. That is an insufficient allegation.

Stripped of the failure-to-train allegation, Count 6 adds nothing to Count 1.

Count 6, which is alleged only against the City, is therefore dismissed.

B. Count 2 (All defendants) - NJCRA claim

The second count alleges a violation of state constitutional protections

analogous to the First Amendment under the New Jersey Civil Rights Act

(‘NUCRA”). The NUCRA, N.J. Stat. Ann. § 10:6-2(c), provides that “[aJny person

who has been deprived of any substantive rights, privileges or immunities

secured by the Constitution or laws of this State by a person acting under color

of law, may bring a civil action for damages.”

The New Jersey State Legislature, when it enacted the NJCRA, intended

it to parallel 42 U.S.C. § 1983, and sought to incorporate existing § 1983

jurisprudence. Perez v. Zagami, 218 N.J. 202, 515 (2014); see also RaCapt. Mos

v. Flowers, 429 N.J. Super. 13, 23 (App. Div. 2012) (stating that NJCRA was

14

“modeled on the federal civil rights law which provides for a civil action for

deprivation of civil rights.” (citations omitted)). Thus, the NJCRA is construed

nearly identically to Section 1983.

The parties have not suggested any distinction between the Count 2

claims under NUCRA and their Count 1 counterparts under 42 U.S.C. § 1983.

Therefore, for the reasons outlined in ILA, supra, defendants’ motions to

dismiss Count 2 are denied.

C. Count 3 (All defendants) - CEPA claim

Lt. Nieves-Hall alleges that all defendants violated CEPA, the

“whistleblower statute.”

i. Legal standards under CEPA

CEPA was enacted to “protect and encourage employees to report illegal

or unethical workplace activities and to discourage public and private sector

employers from engaging in such conduct.” Abbamont v. Piscataway Twp. Bd.

of Educ., 650 A.2d 958, 971 (N.J. 1994). To effectuate that aim, the statute

provides, in relevant part:

An employer shali not take any retaliatory action against an

employee because the employee does any of the following: ...

(c) Objects to, or refuses to participate in any activity, policy or

practice which the employee reasonably believes:

(1) is in violation of a law, or a rule or regulation

promulgated pursuant to law ...; or

(3) is incompatible with a clear mandate of public policy

concerning the public health, safety or welfare....

N.J. Stat. Ann. § 34:19-3. A retaliatory action is defined as “the discharge,

suspension or demotion of an employee, or other adverse employment action

taken against an employee in the terms and conditions of employment.” N.J.

Stat. Ann. § 34:19-2(e). To make out such a CEPA claim, a plaintiff must

demonstrate four elements:

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(1) he or she reasonably believed that his or her employer’s

conduct was violating either a law, rule, or regulation promulgated

pursuant to law, or a clear mandate of public policy;

(2) he or she performed a “whistle-blowing” activity described in

N.J. (Stat. Ann. §] 34:19-3c;

(3) an adverse employment action was taken against him or her;

and

(4) a causal connection exists between the whistle-blowing activity

and the adverse employment action.

Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003) (line breaks added).

A plaintiff alleging a CEPA violation need not prove that law or public

policy was actually contravened—rather, the plaintiff “must show that he or

she ‘reasonably believes’ that to be the case.” Jd. at 900. Thus the complaint

need not establish such a violation factually. See id. at 901 (citing Blackburn v.

United Parcel Serv., Inc., 3 F.Supp.2d 504, 514 n. 5 (D.N.J. 1998) (Barry, J.),

aff'd on other grounds, 179 F.3d 81 (3d Cir.1999)}). Nevertheless—and this is an

issue of law for the court—the whistleblowing must relate to an identifiable

“law, or a rule or regulation promulgated pursuant to law” N.J. Stat. Ann. §

34:19-3c(1), or else “a clear mandate of public policy concerning the public

health, safety or welfare,” N.J. Stat. Ann. § 34:19-3c(3); Dzwonar, 828 A.2d at

900-01.

A “retaliatory action,” for purposes of CEPA, “means the discharge,

suspension, or demotion of an employee, or other adverse employment action

taken against an employee in terms and conditions of employment.” N.J. Stat.

Ann. § 34:19-2(e). Interpreting that language, some courts have held that the

employer’s action must affect the employee’s compensation or rank, or “be

virtually equivalent to discharge.” Klein v. Univ. of Med. & Dentistry of New

Jersey, 871 A.2d 681, 691 (N.J. Super. Ct. App. Div. 2005); see also Caver v.

City of Trenton, 420 F.3d 243, 249 (3d Cir. 2005). Other decisions, with which I

agree, have taken a somewhat broader view. Examples of actionable retaliatory

acts have included suspensions, demotions, changes to the length of the

workday, changes in salary, hours, fringe benefits, or “physical arrangements

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and facilities,” and altered “promotional procedures.” Beasley v. Passaic

County, 873 A.2d 673, 685-86 (N.J. Super. Ct. App. Div. 2005); see also Smith

v. Twp. Of E. Greenwich, 519 F. Supp. 2d 493, 511 (D.N.J. 2007) aff'd, 344 F.

App’x 740 (3d Cir. 2009), as amended Nov. 3, 2009 (quoting same language).

Alternatively—ie., short of discharge, suspension, or demotion—an

adverse employment action may be established by “many separate but

relatively minor instances of behavior directed against an employee that may

not be actionable individually but that combine to make up a pattern of

retaliatory conduct.” Green v. Jersey City Bd. of Ed., 828 A.2d 883, 891 (N.J.

2003); Maimone v. City of Atl. City, 903 A.2d 1055, 1063-64 (N.J. 2006);

Nardello v. Twp. of Voorhees, 873 A.2d 577, 580 (N.J. Super. Ct. App. Div.

2005). By analogy to a Title VII hostile work environment, we might call this a

retaliatory environment.

ii. Discussion of CEPA Claim

For dismissal of the CEPA claim, defendants assert two grounds: (1)

statute of limitations and (2) failure to state a claim. I discuss these in turn.

1. Statute of limitations

Defendants argue that Lt. Nieves-Hall’s CEPA claim is time-barred under

CEPA’s one-year statute of limitations. Lt. Nieves-Hall counters that she alleges

three denials of job opportunities in 2018, within the limitations period, in

retaliation for her having filed complaints with the Newark OAA. The earlier

retaliatory conduct beginning in April 2016, she says, was part of a continuing

violation and therefore should be treated as timely. (DE 15 at 26-27)

The statute of limitations, although an affirmative defense, may be raised

on a Rule 12(b)(6) motion if “the time alleged in the statement of a claim shows

that the cause of action has not been brought within the statute of limitations.”

Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (quoting

Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975));

Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989), “If the bar

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is not apparent on the face of the complaint, then it may not afford the basis

for a dismissal of the complaint under Rule 12(b}(6).” Bethel, 570 F.2d at 1174.

For a CEPA claim, the statute of limitations is one year. N.J. Stat. Ann. §

34:19-5, In general, an act of retaliation is what perfects a CEPA claim. A CEPA

claim therefore accrues, and the one-year limitations period begins to run, on

the date of the retaliatory employment action that is the basis for the claim.

Ivan v. Cty. of Middlesex, 595 F. Supp. 2d 425, 466-67 (D.N.J. 2009).

Because the initial action was filed on November 14, 2018, any CEPA

cause of action that accrued after November 14, 2017 would be timely. The

only alleged acts of retaliation within the limitations period were the final, 2018

denials of three job opportunities or transfers.

Lt. Nieves-Hall alleges that the earlier acts of retaliation are nevertheless

timely asserted, because they were not discrete, but part of a “continuing

violation” that extended into the limitations period. The “continuing violation”

doctrine is “an equitable exception to the statute of limitations”; it provides

that, where “an individual experiences a continual, cumulative pattern of

tortious conduct,” the limitations period may be tolled “until the wrongful

action ceases.” Roa v. Roa, 985 A.2d 1225, 1231 (N.J. 2010). Thus the

continuing violation doctrine “allows a plaintiff to pursue a claim for

discriminatory conduct if he or she can demonstrate that each asserted act by

a defendant is part of a pattern and at least one of those acts occurred within

the statutory limitations period.” Samo v. Wal-Mart Stores E., L.P., No. CIV.A.

12-002075 JAP, 2012 WL 5880361, at *4 (D.N.J. Nov. 20, 2012) (quoting Smith

v. Twp. of E. Greenwich, 519 F. Supp. 2d 493, 505 (D.N.J. 2007) (quotations

and citations omitted)). It is well settled that the continuing violation theory,

which is common to antidiscrimination statutes, applies to CEPA. Green, 828

A.2d at 891-92.

The scope of the continuing violation theory, however, has been confined

by case law; it is not a catchall for time-barred claims. See Roa, 985 A.2d at

1233. In applying the continuing violation theory to CEPA, the New Jersey

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Supreme Court in Green, supra, adopted the restrictive analytical framework

defined in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002), a

federal Title VII case. See also Roa, 985 A.2d at 1231-32 (adopting Morgan

analysis for analogous claim under New Jersey Law Against Discrimination).

Within the Morgan framework, the essential question is whether the acts of

retaliation are discrete (and therefore independently actionable) or nondiscrete

(and therefore actionable only as part of a series of events). If discrete, they

accrue and trigger the statute of limitations when they occur; if nondiscrete,

they may be timely if they continued into the limitations period.

In Morgan, the plaintiff alleged both discrete retaliatory discriminatory

acts and a nondiscrete claim of a racially hostile work environment. For statute

of limitations purposes, the Court drew a key distinction. A hostile environment

claim, it held, could be considered a continuing violation because it is “a series

of separate acts that collectively constitute one ‘unlawful employment practice”

under the substantive law. 536 U.S. at 117. In contrast, claims based on

discrete acts made actionable under the statute in question would not be

analyzed collectively:

[D]iscrete discriminatory acts are not actionable if time barred, even

when they are related to acts alleged in timely filed charges. Each

discrete discriminatory act starts a new clock for filing charges

alleging that act. The charge, therefore, must be filed within the

[statutorily prescribed] time period after the discrete discriminatory

act occurred. The existence of past acts and the employee’s prior

knowledge of their occurrence, however, does not bar employees

from filing charges about related discrete acts so long as the acts are

independently discriminatory and charges addressing those acts are

themselves timely filed. Nor does the statute bar an employee from

using the prior acts as background evidence in support of a timely

claim.

Id. at 113 (quoted in Roa, 985 A.2d at 1231-32).

As the Third Circuit has confirmed, Morgan promulgated a “bright-line”

rule that “individually actionable allegations cannot be aggregated” for

purposes of the continuing violation doctrine. O’Connor v. City of Newark, 440

F.3d 125, 127 (3d Cir. 2006). Such independently actionable acts “are not

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actionable if time barred, even when they are related to acts alleged in timely

filed charges.” Morgan, 536 U.S. at 113. In short, a plaintiff does not retain the

option to aggregate acts that are discrete and actionable.

What acts, then, are regarded as discrete under CEPA? Roughly, actions

such as dismissal, suspension, or demotion, or other actions affecting basic

conditions of employment, upon which an independent CEPA claim can be

based. See discussion, supra; N.J. Stat. Ann. § 34:19-2(e). Nondiscrete actions

would encompass a series of less serious acts that would not be individually

actionable but nevertheless, in the aggregate, add up to a unitary, actionable

pattern of retaliation. See Green, 828 A.2d at 891.

Judge Joel Pisano of this District (now retired) summarized the range of

“discrete” CEPA claims thus:

Plaintiffs claims cannot be saved under the continuing violation

theory because an employer’s failure to promote is quintessentially

a discrete employment action. [citing Morgan, 536 U.S. at 113-115]

(‘Each discrete discriminatory act starts a new clock for filing

charges alleging that act. Discrete acts such as ... failure to promote

.. are easy to identify. Each incident of discrimination and each

retaliatory adverse employment decision constitutes a separate

actionable ‘unlawful employment practice.’”); see also Rush v. Scott

Specialty Gases, 113 F.3d 476, 483-84 (3d Cir.1997) (holding that

plaintiffs failure to promote claim and train claims are “discrete

instances of alleged discrimination that are not susceptible to a

continuing violation analysis.”). Likewise, retaliatory discipline

actions are considered discrete employment actions. [citing

O’Connor, 440 F.3d at 127] (following Morgan and discussing types

of discrete acts that are not susceptible to the continuing violations

doctrine, including “wrongful discipline” and “failure to promote”);

see also Gadson v. City of Wilmington Fire Dep’t, 478 F. Supp. 2d

635 (D.Del.2007) (holding that plaintiffs claims of “disparate

treatment in defendant’s imposition of discipline, as well as ‘hiring

and promotional policies and practices’ which have a disparate

impact” are discrete acts that “cannot be aggregated under a

continuing violations theory”).

Samo, 2012 WL 5880361, at *4. I take Judge Pisano’s summary as a guide in

analyzing Lt. Nieves-Hall’s claims.

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Lt. Nieves-Hall claims, inter alia, that in the 2016-17 period the

defendants created an abusive environment. She alleges, inter alia, that (i) on

October 7, 2016, Capt. Mos physically threatened her (Compl. J 18); {ii} she

outlines various calls she received from Capt. Mos from April 2016 through

October 2016 (id. 94 81-85); and (iii) from April 2016 through the filing of the

complaint, Capt. Mos used subordinates to subvert her authority and

embarrass her. (Id. § 20) These did not involve changes to her job duties or

status; they are not independently actionable adverse employment actions.

Many of these acts occurred outside the limitations period. In addition, the

sequence of the undated allegations in the complaint suggests that they

preceded the plaintiffs filing of the OAA complaint, which is the primary

alleged act of whistleblowing. That is not to say, however, that a fact finder

might not hear evidence of the earlier acts to the extent they are relevant to the

2018 adverse employment actions.

The three denied transfers in 2018 would qualify as actionable adverse

employment actions. Each was discrete and actionable, and it triggered the

one-year limitations period. See Shepherd v. Hunterdon Developmental Ctr., 803

A.2d 611, 627 (N.J. 2002) (holding that an unwelcome transfer is a discrete

act). Because they occurred after November 14, 2017, they were asserted

timely. Because they apparently occurred after the plaintiff's filing of the OAA

complaint, they could plausibly be viewed as retaliatory.

The motion to dismiss the CEPA claim on statute of limitations grounds

is therefore denied to the extent that the three transfer decisions in 2018 are

allegedly retaliatory.

2. Failure to state a claim

Timeliness aside, defendants move to dismiss Lt. Nieves-Hall’s CEPA

claim for failure to state a claim. (See, e.g., DE 6-1 at 19-29). Defendants

assert that the complaint fails to identify any illegal conduct that the plaintiff

complained about, the complaint does not outline what adverse employment

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action took place, and they question any causal connection between the two.

Lt. Nieves-Hall asserts that the complaint adequately alleges each

element of a CEPA claim. (DE 15 at 27) She says the complaint outlines facts

that support an objectively reasonable belief that a violation had occurred and

she performed whistle-blowing activities when she complained to Newark OAA

that Capt. Mos had physically threatened her and when she complained that

her First Amendment rights were being violated. (/d. at 28-29) She further

alleges that adverse employment action was taken against her when she was

denied various job transfers and alleges that these denials were the result of

. her whistle-blowing activities.4

Here, Lt. Nieves-Hail has sufficiently alleged that she reasonably believed

that Capt. Mos’s behavior violated various laws, including that he had

committed violations of N.J. Stat Ann §§ 2C:12-1 (assault), 2C:33-2 (disorderly

conduct), and 2C:33-4 (harassment). (Compl. J 18) She reported this conduct,

as well as the alleged First Amendment violations, by filing complaints to the

OAA. (id. § 24) And, as detailed in Section II.C.ii.1, supra, Lt. Nieves-Hall has

adequately alleged for purposes of a motion to dismiss that adverse

employment actions were taken by Capt. Mos and Director Ambrose as a result

of her filing complaints against Capt. Mos.

The motion to dismiss Count 3, as] have interpreted and limited it here,

is therefore denied.

iii. CEPA’s Waiver Provision

Capt. Mos and the City collectively argue that Count 2, the New Jersey

Civil Rights Act (““NJCRA”) claim, should be dismissed because it was waived by

virtue of Lt. Nieves-Hall’s assertion of a CEPA claim. Capt. Mos separately

moves to dismiss Count 4, the Intentional Infliction of Emotional Distress

(“IIED”) claim as being similarly waived under CEPA.

4 As noted above, the Complaint (24) does not specify the date of the OAA

complaint, but its placement in sequence suggests that it was filed after the allegedly

“retaliatory” acts of harassment in 2016~17.

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CEPA explicitly provides that instituting a claim of retaliation under

CEPA waives any claim of retaliation under another state law:

Nothing in this act shall be deemed to diminish the rights, privileges,

or remedies of any employee under any other federal or State law or

regulation or under any collective bargaining agreement or

employment contract; except that the institution of an action in

accordance with this act 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. CEPA does not provide for waiver of claims under

“any law” or under “federal law.” The plain wording of the statute, then,

effectuates a waiver of State claims, not federal claims. The nature and

structure of CEPA also implies that the waiver should be construed literally

and narrowly. CEPA explicitly provides that it is not meant to alter other legal

rights and privileges possessed by employees. N.J. Stat. Ann. § 34:19-8

(“Nothing in this act shall be deemed to diminish the rights, privileges, or

remedies of any employee under any other federal or State law. . . .”).

Defendants assert that pursuant to CEPA’s waiver provision, Lt. Nieves-

Hall’s NJCRA and her common law tort ITED claim must be dismissed at the

motion to dismiss stage. (See, e.g., DE 3-1 at 5) Defendants point to case law

dismissing an NUCRA claim when pled with a CEPA claim because they

required similar proofs. (Id. (citing Matthews v. New Jersey Institute of

Technology, 717 F.Supp 2d 447 (D.N.J. 2010)).

Lt. Nieves-Hall counters that she need not elect her remedies before

discovery is complete. (DE 15 at 10-11) I agree.

In Young v. Schering Corp., 141 N.J. 16 (N.J.1995), CEPA’s waiver

provision was interpreted to mean that instituting a claim under CEPA will

waive any state law claim that is “substantially related,” in the sense of

requiring the same proofs. In reliance on Young, the New Jersey Appellate

Division has held that the CEPA waiver provision must be interpreted to deem

other causes of action waived only after a plaintiff has a meaningful

opportunity to gather facts and identify those “proofs.” Maw v. Advanced

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Clinical Comms., 359 N.J. Super. 420, 440 (App. Div. 2003), rev’d on other

grounds, 179 N.J. 439 (2004) (“We take this language to mean that before

electing remedies, a plaintiff should have an opportunity to complete discovery.

Only after gaining access to all of the facts, will a plaintiff be in a position to

make a knowing and meaningful election.”); see also Flaherty v. Enclave, 255

N.J. Super. 407, 411 (Law. Div. 1992) (“Defendant argues that once plaintiff

institutes his CEPA claim, he is required to waive all of his remaining rights

and remedies against defendants arising out of the employment relationship.

This appears, however, to be an overly broad construction of the statutory

language.”). Indeed, the cases cited by defendants seem to involve CEPA-waiver

dismissals at the stage of summary judgment or trial. (DE 3-1 at 5 (citing

Ehling v. Monmouth-Ocean Hospital Service Corp., 961 F. Supp.2d 659 (D.N.J.

2013) (granting summary judgment dismissed certain claims pursuant to

CEPA’s waiver provision); Beasley v. Passaic County, 377 N.J. Super 585 (App.

Div. 2005) (dismissing IIED claim subject to CEPA’s waiver provision at close of

the case at trial).

I will not hold, at this stage in the proceeding, that Lt. Nieves-Hall has

waived her NJCRA or common law tort claims by also filing a CEPA claim. This

ruling is without prejudice, however, to renewal! of this argument at the close of

discovery, when the overlapping-proofs issue will be clear.

D. Count 4 (All defendants) - Worker Freedom from Employer

Intimidation Act claim

Lt. Nieves-Hall alleges that all defendants violated New Jersey’s Worker

Freedom from Employer Intimidation Act (N.J. Stat. Ann. § 34:19-9, et seq.) by

“requiring the plaintiff to participate and communicate with them, the purpose

of which was to communicate Director Ambrose and Capt. Mos’s opinions

regarding the political beliefs and loyalties of both of them and the plaintiff.”

(Compl. 4 50). Defendants contend that this claim is irrelevant to the conduct

as alleged here.

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This act prohibits employers and their representatives from requiring

their “employees to attend an employer-sponsored meeting or participate in any

communications with the employer or its agents or representatives, the

purpose of which is to communicate the employer’s opinion about religious or

political matters.” N.J. Stat. Ann. § 34:19-10.

Although other allegations of the complaint are incorporated by reference

into Count 4, Lt. Nieves-Hall has not adequately pled facts to assert a violation

of the New Jersey Worker Freedom from Employer Intimidation Act. Lt. Nieves-

Hall alleges that she was punished for her own political beliefs, not that she

was coerced into participation in the employer’s dissemination of its own

political beliefs.

The motion to dismiss Count 4 will therefore be granted.

E. Count 5 (Capt. Mos) - NED Claim

Lt. Nieves-Hall asserts one count of intentional infliction of emotional

distress against Capt. Mos only. The asserted emotional distress consists of

mental anguish and embarrassment as a result of various harassing actions.

The New Jersey Supreme Court has laid out the essential elements of

HED:

[T]he plaintiff must establish intentional and outrageous conduct by

the defendant, proximate cause, and distress that is severe... the

defendant’s conduct must be extreme and outrageous. The conduct

must be “so outrageous in character, and so extreme in degree, as

to go beyond ail possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in a civilized community.”

Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366-67, 544 A.2d 857, 863

(1988) (internal citations omitted); see also Delio Russo v. Nagel, 817 A.2d 426,

435 (App. Div. 2003). The distress “must be sufficiently substantial to result in

either physical illness or serious psychological sequelae.” Turner v. Wong, 363

N.J. Super. 186, 832 A.2d 340, 348 (2003). “[I]t is extremely rare to find

conduct in the employment context that will rise to the level of outrageousness

necessary to provide a basis for recovery for the tort of intentional infliction of

25

emotional distress.” Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d

1988), cert. denied, 498 U.S. 811 (1990).

Lt. Nieves-Hall fails to allege that “extremely rare” set of facts. Capt.

Mos’s conduct as alleged, however severe, unfortunate, or violative of other

laws, does not give rise to an ITED claim.

The motion to dismiss Count 5 is granted.

Iv. Conclusion

For the reasons provided above, defendants’ motions to dismiss (DE 3, 6,

11) are granted in part and denied in part.

Count 4, asserted against all defendants, Count 5, asserted against Capt.

Mos, and Count 6, asserted against the City, are dismissed. The motions are in

all other respects denied.

An appropriate order follows.

Dated: September 26, 2019

fit

Kevin McNulty OY

United States District Judge

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