CARMICHAEL v. THOMSON

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LT. ANTHONY CARMICHAEL, 1:14-cv-3323-NLH-AMD

Plaintiff,

OPINION

v.

POLICE CHIEF JOHN SCOTT

THOMSON, et al.,

Defendants.

Appearances:

CHERYL L. COOPER

LAW OFFICES OF CHERYL L. COOPER

342 EGG HARBOR ROAD

SUITE A-1

SEWELL, N.J. 08080

On behalf of Plaintiff

BETSY G. RAMOS

EDWARD FRANK KUHN, III

MICHELLE L. COREA

CAPEHART & SCATCHARD

8000 MIDLANTIC DRIVE

SUITE 300

MOUNT LAUREL, N.J. 08054

On behalf of Defendants

HILLMAN, District Judge

Pending before the Court is Defendants John Scott Thomson,

Louis Vega, Michael Lynch, Orlando Cuevas, Joseph Wysocki, J.L.

Williams, and the City of Camden’s (“Defendants”) motion for

summary judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure, (ECF 322),1 and Plaintiff Anthony Carmichael’s

(“Plaintiff”) motion to seal pursuant to Local Civil Rule 5.3,

(ECF 336). For the reasons expressed below, Defendants’ motion

for summary judgment will be granted and Plaintiff’s motion to

seal will be denied without prejudice.

I. Background

Plaintiff served on the Camden City Police Department

(“CCPD”) from September 1994 until April 2013, at which point he

joined the Camden County Police Department. (ECF 26 ¶ 4).

Plaintiff was promoted to lieutenant in 2003 and was assigned to

1 Plaintiff is represented in this matter by Cheryl Cooper, Esq.

On November 3, 2022, after being informed that Cooper was

mistakenly terminated as counsel for Plaintiff and ceased

receiving notices of electronic filings on or about September

30, 2021 – prior to Defendants’ most recent and pending motion

for summary judgment, the Court provided Cooper fourteen days to

file an opposition. (ECF 325). On November 16, 2022, Cooper

filed a letter seeking additional guidance from the Court and

thirty days thereafter to file an opposition, (ECF 326), to

which the Court responded in a November 22, 2022 order finding

that Cooper’s claim that she was completely unaware of the

pending motion for summary judgment lacked credibility but

nonetheless provided twenty-one additional days to file an

opposition, (ECF 327 at 4). On December 9, 2022, Cooper

submitted a letter seeking an additional two weeks without first

conferring with opposing counsel, (ECF 328), which the Court

denied while – in the interest of justice – providing an

additional six days to file an opposition, (ECF 329). A timely

opposition was filed on December 19, 2022, (ECF 330), followed

by an untimely statement of material facts and supporting

exhibits, (ECF 332; ECF 334; ECF 335). The Court thereafter

granted Defendants’ counsel’s request for an extension to submit

a response, (ECF 337; ECF 338), which was timely filed, (ECF

339).

Internal Affairs in or around July 2008, where he served as

acting captain and immediate supervisor to the entire unit until

his transfer in April 2009. (Id. at ¶¶ 14, 21). Relevant to

some of his claims, Plaintiff is African American. (Id. at ¶

13).

Defendant John Scott Thomson was named police chief of CCPD

in August 2008 and served in that position during the time

relevant to this action. (Id. at ¶¶ 5, 18). Defendant Louis

Vega was hired as CCPD’s civilian police director on or about

August 2008 and served in that position for the time covered by

this action. (Id. at ¶¶ 10, 15). Defendants Orlando Cuevas and

Michael Lynch served in the roles of inspector or deputy chief

during the period in question. (Id. at ¶¶ 6-7). Defendants

Joseph Wysocki and J.L. Williams both served as sergeants and,

later, lieutenants. (Id. at ¶¶ 11-12).

During Plaintiff’s time in Internal Affairs, CCPD was

operating under a consent order entered by Judge Robert B.

Kugler due to alleged irregularities within the unit, resulting

in multiple reporting and other requirements. (Id. at ¶¶ 31-

32). Plaintiff was responsible for overseeing those

requirements and ensuring compliance with New Jersey Attorney

General (“NJAG”) Guidelines, including misconduct

investigations. (Id. at ¶¶ 33, 46-47).

Plaintiff claims that Thomson began using Internal Affairs

investigations improperly following his arrival as chief,

including eliminating or ignoring practices adopted to comply

with the consent decree. (Id. at ¶¶ 35-36). Plaintiff alleges

that he met with Vega shortly after the latter’s arrival and

Vega voiced a desire to reprioritize Internal Affairs cases to

focus on rules infractions and have members of CCPD fear him and

fight for their jobs. (Id. at ¶¶ 24-26). During a meeting with

Vega and Thomson, Plaintiff also claims that he was told that it

was unnecessary to follow NJAG Guidelines, to which he shared

his objections with City administration and was told to

discontinue past investigatory practices. (Id. at ¶¶ 27-29).

Plaintiff was serving as an acting captain. (Id. at ¶ 43).

On or about March 23, 2009, Plaintiff met with Thomson to

discuss complaints and cross-complaints alleging misconduct by

inspectors, the preliminary interviews for which supported

subordinate officers’ accounts and disciplinary charges for the

superior officers. (Id. at ¶¶ 50-52). Thomson allegedly

disagreed with Plaintiff’s position that a full and complete

investigation was necessary, (id. at ¶¶ 53-55), and with respect

to a separate allegation against a sergeant by superior

officers, Thomson expressed that he would instruct Plaintiff

what to investigate and what not to investigate and that

allegations made by upper-level officers did not require full

investigations, (id. at ¶¶ 57-63). Plaintiff objected. (Id. at

¶ 64). A few weeks later, Thomson reportedly emailed Plaintiff

to demand the completion of the charges for both cases despite

knowing that the related investigations had not concluded. (Id.

at ¶ 66). Plaintiff objected but complied. (Id. at ¶ 67).

On April 10, 2009, Plaintiff was informed that he was being

transferred from Internal Affairs, (id. at ¶ 70), and following

an emergency meeting of captains on April 20, 2009, Plaintiff

was informed that he was being assigned as acting captain of the

midnight shift of the Patrol Division to oversee “problem”

officers effective immediately, (id. at ¶¶ 74-75). Plaintiff

was effectively replaced in Internal Affairs by Wysocki, who is

Caucasian and was moved from sergeant to acting lieutenant.

(Id. at ¶ 77). During an April 23, 2009 meeting with City

Business Administrator Christine Jones-Tucker, John A.

Sosinavage, a lieutenant who was also transferred out of

Internal Affairs, was allegedly told that Plaintiff was being

passed over for a permanent captain’s position due to

retaliation. (Id. at ¶ 86).

Plaintiff filed the instant action on May 27, 2014, (ECF

1), and thereafter amended the Complaint, (ECF 26). Plaintiff’s

Amended Complaint alleges sixteen counts, (id.), nine of which

remain pending against Defendants.2 The Court summarizes the

relevant counts by separating them into five general groups as

follows.

A. Violations of the New Jersey Conscientious Employee

Protection Act (“CEPA”) (Count 1)

Plaintiff alleges that Thomson, Lynch, Cuevas, and Vega

instructed him to charge officers with serious offenses without

conducting full investigations, (id. at ¶ 91), and to not

investigate complaints against high-ranking officers, (id. at ¶

89). Plaintiff claims that he objected to these orders, (id. at

¶¶ 89, 92), because he reasonably believed that they “were not

in accord with the requirements under the NJAG Guidelines and

believed that the orders violated the rights of the officer, and

against public policy,” (id. at ¶ 93). As a result of his

objections, Plaintiff claims that he was retaliated against,

including his transfer, shift assignments, requirement to attend

meetings without overtime, not receiving a permanent captain

position, and excessive and unfair discipline. (Id. at ¶¶ 94-

95).

B. Violations of the New Jersey LAD (Counts 2 and 3)

2 Count 5, alleging discrimination by Thomson, Cuevas, Lynch, and

Vega under the New Jersey Law Against Discrimination (“LAD”) was

dismissed by Chief Judge Jerome B. Simandle along with two

counts directed toward Camden County Defendants on March 6,

2015. (ECF 20). Then Chief Judge Simandle and the undersigned

later granted summary judgment as to the remaining counts

against Camden County Defendants. (ECF 202; ECF 283).

Count 3 of the Amended Complaint also alleges retaliation

by Thomson, Cuevas, Lynch, Wysocki, and Williams including lack

of compensation, forced split shifts, and improper disciplinary

charges and related interrogation and harassment. (Id. at ¶¶

123-26).

Plaintiff submits, in the alternative, that he was

discriminated against based on his race, forming the basis of

Count 2. (Id. at ¶ 99). As an African American, Plaintiff is a

member of a protected class and Plaintiff asserts that he

engaged in protected activity when he objected to orders

involving improper investigations and against violations of New

Jersey Civil Service Rules. (Id. at ¶¶ 99-102).

Plaintiff states that, after his objections, he was

transferred out of Internal Affairs and to the midnight shift of

Patrol to supervise “problem” officers while Wysocki, a

Caucasian sergeant his junior in rank, took charge of Internal

Affairs. (Id. at ¶¶ 103-06). Later, when Plaintiff returned

from Family Medical Leave, he was moved back down to lieutenant,

first as a medical officer and soon after a lieutenant of

Special Operations. (Id. at ¶¶ 109, 111-12). Plaintiff was

assigned to work under Captain Prince L. Burnett, who was

allegedly “manipulated” into a captain position over Plaintiff,

and was replaced by Sosinavage, who is Caucasian, as acting

captain. (Id. at ¶¶ 112-13). Plaintiff further claims that he

was improperly and excessively charged as absent without

official leave for attending a union meeting while others were

permitted to take administrative leave, (id. at ¶¶ 114-16), and

was otherwise retaliated and discriminated against by Thomson,

Lynch, Cuevas, Vega, and the City to the point of needing

medical leave and treatment, (id. at ¶¶ 117-19).

C. Infringement on Plaintiff’s Speech Rights Under the United

States and New Jersey Constitutions (Counts 4 and 16)

Plaintiff asserts in Count 4 that he spoke out on matters

of public concern as a public employee, board member of a

bargaining unit, and individual, (id. at ¶¶ 129-30), and that

his exercise of his free-speech right referenced practices of

intimidation and retaliation as well as civil service placement

practices, all of which Plaintiff believed violated the laws,

rules, and regulations of New Jersey, (id. at ¶¶ 132-34).

Plaintiff claims that retaliation against him began within days

of his protected speech, (id. at ¶¶ 135-36, 142), and that

Thomson – in consultation with Vega, Lynch, and Cuevas – created

a custom or practice of improper Internal Affairs practices and

discipline and violation of NJAG Guidelines and promotion

practices, (id. at ¶¶ 137-41).

Similarly, Count 16 claims that Plaintiff’s speech

concerning Internal Affairs, the state lawsuit filed in April

2010 and related testimony,3 and objections to CCPD practices all

constituted protected speech. (Id. at ¶¶ 255-59). Due to this

speech, Plaintiff claims that he was retaliated against in

violation of the New Jersey Constitution. (Id. at ¶¶ 260-61).

D. Discrimination and Retaliation in Violation of 42 U.S.C. §

1983 (Counts 6 and 8)

In Count 6 of the Amended Complaint, Plaintiff alleges

that, as an African American, he is a member of a protected

class and that he was discriminated against based on race when

he was transferred out of Internal Affairs and replaced by

Wysocki – a Caucasian sergeant with less experience, replaced as

acting captain by Sosinavage, forced to work split shifts while

Caucasian peers did not, and was otherwise harassed. (Id. at ¶¶

157-63). During this alleged retaliation, Thomson, Cuevas,

Lynch, and Vega were supervisors within CCPD acting under the

color of state law. (Id. at ¶ 156).

Similar to his free-speech claims, Count 8 references

Plaintiff’s April 2010 New Jersey Superior Court complaint and

submits that his filing of the complaint and testimony, (id. at

¶¶ 182-85), along with speech in opposition of CCPD policies and

customs, (id. at ¶ 187) were all protected activities.

Plaintiff claims that, because of this protected speech, he was

3 Plaintiff’s lawsuit in New Jersey Superior Court, which served

as a predecessor to the instant action, was voluntarily

dismissed. (ECF 83 at 2).

retaliated against and suffered adverse employment actions4 that

he would not have experienced but for his speech. (Id. at ¶¶

186, 190-91).

E. 42 U.S.C. § 1983 Monell Claims (Counts 7 and 9)

In Count 7, Plaintiff alleges Defendants created a custom

and practice of violating NJAG Guidelines and improper use of

Internal Affairs and that, as a consequence of his speech

against such customs and practices, they retaliated against him

in the form of transfers, demotions, scheduling assignments, and

inappropriate discipline. (Id. at ¶¶ 175-78). Plaintiff

asserts that these actions were taken while Defendants were

acting under the color of state law and Thomson was tasked with

all policymaking for CCPD, (id. at ¶¶ 168-71), and that the

administration within the City government was aware of the

allegedly improper and violative conduct and acquiesced, agreed,

and participated in the harassment against Plaintiff, (id. at ¶

174).

Plaintiff makes similar allegations in Count 9, referring

to his state-court action and alleging that Thomson created a

custom or practice of retaliating against, intimidating, and

4 The only specific example of retaliation provided is the

promotion of individuals less qualified than Plaintiff within

the Camden County Police Department. (ECF 26 ¶ 186). As

stated, Plaintiff’s allegations against Defendants in their

County capacities are no longer part of this action. (ECF 20;

ECF 202; ECF 283).

harassing CCPD members who objected to and spoke publicly

against his practices. (Id. at ¶ 194-96). Plaintiff claims

that City administration had actual or constructive knowledge of

these practices and acquiesced or ratified them. (Id. at ¶ 197).

II. Discussion

A. Subject Matter Jurisdiction

The Court possesses original jurisdiction over Plaintiff’s

claims stemming from 42 U.S.C.§ 1983 and the United States

Constitution. See 28 U.S.C. § 1331. It has supplemental

jurisdiction over Plaintiff’s state-law claims. See 28 U.S.C. §

1367(a).

III. Summary Judgment

A. Summary Judgment Standard

Under the Federal Rules of Civil Procedure, “[t]he court

shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “A fact is ‘material’ if its existence or

nonexistence ‘might affect the outcome of the suit under the

governing law.’” Kopko v. Lehigh Valley Health Network, 776

Fed. Appx. 768, 772 (3d Cir. 2019) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986)). If a movant

successfully identifies the absence of genuine issues of

material fact, the burden then shifts to the nonmovant “to go

beyond the pleadings and ‘come forward with “specific facts

showing that there is a genuine issue for trial.”’” Santini v.

Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986)). Determinations are to be made by construing all

evidence in the light most favorable to the nonmovant. Id.

(citing United States v. Diebold, Inc., 369 U.S. 654, 655

(1962)).

The Court will proceed to each of Plaintiff’s claims to

evaluate whether, under the above standard, his claims are

unsupported or whether genuine disputes exist warranting a

determination at trial. See Orsatti v. N.J. State Police, 71

F.3d 480, 484 (3d Cir. 1995) (“[A] plaintiff cannot resist a

properly supported motion for summary judgment merely by

restating the allegations of his complaint, but must point to

concrete evidence in the record that supports each and every

essential element of his case.”).

Before doing so, the Court finds it useful, for the benefit

of its forthcoming analyses, to begin with a brief outline of

the times of the relevant actions. Throughout his Amended

Complaint, Plaintiff cites his transfer, loss of his active

captain position, assignment to the midnight shift, split

shifts, required attendance at meetings without overtime, and

purportedly unfair discipline as the adverse actions taken

against him. (ECF 26 at ¶¶ 107, 124, 178). The objections to

CCPD’s investigatory practices appear to have taken place from

late March into early April 2009. (Id. at ¶¶ 48-67). Plaintiff

was transferred out of Internal Affairs and onto the midnight

shift of Patrol in April 2009. (Pl. Dep. Tr. at 139:9-11). He

worked split shifts for approximately two months before filing a

grievance, which resulted in the shift being discontinued as

violative of a collective bargaining agreement. (Id. at 145:23-

25; ECF 322-3 at 86). Plaintiff was on Family Medical Leave for

eight weeks during Fall 2009, after which he was removed as an

acting captain and returned to a lieutenant position. (ECF 322-

3 at 81-82). On October 15, 2009, Plaintiff was disciplined for

crumpling up an absent-without-leave reprimand and tossing it in

the direction of a captain. (Id. at 94). His discipline, a

five-day suspension, was sustained. (Pl. Dep. Tr. at 177:5 to

178:6). Plaintiff filed his state-court complaint in April

2010. (ECF 26 at ¶¶ 182, 257). The exact date in which

Plaintiff was disciplined for his handling of a bias incident is

unclear, though correspondences and an administrative hearing

took place during the Winter of 2013. (ECF 322-4 at 26, 209).

His discipline, a one-day fine, was sustained. (Pl. Dep. Tr. at

179:10-16).

B. Plaintiff’s CEPA Claim

“CEPA is remedial legislation and must therefore be

construed liberally in employees’ favor.” Fraternal Order of

Police, Lodge 1 v. City of Camden, 842 F.3d 231, 240 (3d Cir.

2016). A retaliation claim is established under CEPA when the

employee demonstrates that (1) they reasonably believed that the

employer’s conduct violated a law, regulation, or clear mandate

of public policy; (2) they performed a whistleblowing activity;

(3) the employer took an adverse employment action against them;

and (4) there was a causal nexus between the whistleblowing

activity and adverse employment action. Greenman v. City of

Hackensack, 486 F. Supp. 3d 811, 829-30 (D.N.J. Sept. 12, 2020)

(citing Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398,

404 (3d Cir. 2007) and Dzwonar v. McDevitt, 828 A.2d 893, 900

(N.J. 2003)).

With respect to the first element of a CEPA claim, the

employee must have “an objectively reasonable belief” at the

time of their objection that the employer’s conduct was illegal,

fraudulent, or harmful to public health, safety, or welfare.

Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 1015 (N.J. 1998).

Whistleblowing activities are interpreted from the list of

actions expressly protected under CEPA. See Marra v. Twp. of

Harrison, 913 F. Supp. 2d 100, 105 (D.N.J. Dec. 19, 2012).

Relevantly, under CEPA an employer may not retaliate against an

employee who objects or refuses to participate in an activity,

policy, or practice that the employee reasonably believes

violates a law, rule, or regulation. N.J.S.A. 34:19-3(c).

CEPA also defines “[r]etaliatory action” 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.S.A. 34:19-2(e). While some

courts have concluded that an employer’s action must impact an

employee’s compensation, rank, or “be virtually equivalent to

discharge,” to qualify under CEPA, others have permitted broader

actions to qualify including suspensions, demotions, and changes

in salary, hours, or fringe benefits. See Greenman, 486 F.

Supp. 3d at 833-34 (collecting cases and quoting Klein v. Univ.

of Med. & Dentistry of N.J., 871 A.2d 681, 691 (N.J. Super. Ct.

App. Div. 2005)).

Finally, to demonstrate a “causal link,” the plaintiff

“must show that the ‘retaliatory discrimination was more likely

than not a determinative factor in the decision,’” Cohen v. BH

Media Grp., Inc., 419 F. Supp. 3d 831, 856 (D.N.J. Nov. 14,

2019) (quoting Choy v. Comcast Cable Commc'ns, LLC, 629 Fed.

Appx. 362, 365 (3d Cir. 2015)), for which temporal proximity may

“provide[] an evidentiary basis from which an inference can be

drawn,” id. (quoting Kachmar v. SunGard Data Sys., Inc., 109

F.3d 173, 178 (3d Cir. 1997)).

The burden-shifting analysis of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), applies to CEPA claims. See Houston

v. Twp. of Randolph, 934 F. Supp. 2d 711, 743 (D.N.J. Mar. 21,

2013) (citing Winters v. N. Hudson Reg'l Fire & Rescue, 50 A.3d

649, 662 (N.J. 2012)). As such, if an employee establishes a

prima facie retaliation claim, the employer then bears the

burden to articulate a legitimate, nondiscriminatory reason for

the adverse action and, if such a reason is provided, the burden

shifts a final time to the employee to show that retaliation was

the real reason for the adverse action. Id. at 743-44 (citing

Winters, 50 A.3d at 662).

Applying the CEPA analysis standard to the instant action,

the Court first notes that Plaintiff acknowledged both that it

was within Thomson’s discretion to direct investigations to

matters Plaintiff disagreed with, such as officers on sick

leave, (Pl. Dep. Tr. at 107:14-22), and that charges must be

brought within forty-five days of sufficient information being

obtained to proceed with filing, (id. at 55:11-18); see also

N.J.S.A. 40A:14-147 (“A complaint charging a violation of the

internal rules and regulations established for the conduct of a

law enforcement unit shall be filed no later than the 45th day

after the date on which the person filing the complaint obtained

sufficient information to file the matter upon which the

complaint is based.”). Notably, the exception to the forty-

five-day rule applies to criminally related, rather than all,

investigations. See N.J.S.A. 40A:14-147; see also Aristizibal

v. City of Atlantic City, 882 A.2d 436, 451 (N.J. Super. Ct. Law

Div. 2005) (“[N.J.S.A. 40A:14-147] contemplates that an

investigation may be necessary before a decision can be made as

to whether a basis exists to initiate disciplinary charges.

However, extensive bureaucratic delay in conducting

investigations and bringing disciplinary charges is

unacceptable.” (emphasis added) (synthesizing N.J.S.A. 40A:14-

147 and NJAG Guidelines)). The objective reasonableness of

Plaintiff’s suggestions of impropriety are further called into

doubt by Plaintiff’s concession that the investigations in

question were either not improper or he was unable to cite the

rule purportedly broken by them, (Pl. Dep. Tr. at 101:12-17;

111:19-25). He further acknowledged that the two charges

against subordinate officers he complained of resulted in

sustained charges. (Id. at 136:2-6; 137:13 to 138:12).5

Assuming that Plaintiff’s concerns were based on

objectively reasonable beliefs of violations of law or policy,

the Court notes that many of the adverse actions complained of

do not fit the loss of compensation, rank, or “virtually

equivalent to discharge” standard, but rather may fit under the

5 Plaintiffs’ statement of material facts challenges the earlier

deposition testimony as to the ultimate sustaining of charges as

to one of the officers. (ECF 332 at ¶ 55). An Office of

Administrative Law decision included in Plaintiff’s opposition

shows that charges of insubordination as to one of the incidents

involving a referenced officer were reversed. (ECF 334-7).

lesser standard some courts have employed pertaining to

suspensions, demotions, and changes in benefits. See Greenman,

486 F. Supp. 3d at 833-34. If the Court were to take the more

liberal interpretation of retaliatory actions, three actions can

be viewed as causally linked to Plaintiff’s objections due to

their proximity in time – Plaintiff’s transfer, assignment to

the midnight shift, and split shifts. However, the record shows

that one of those actions, Plaintiff’s assignment to the

midnight shift, was not unique to him as another captain was

assigned to midnight duty. (Pl. Dep. Tr. at 143:5-20).

Even if the Court were to accept that Plaintiff has

established a prima facie CEPA claim with respect to his

transfer and split shifts, Defendants offer nondiscriminatory

reasons for those actions. While Plaintiff’s split shifts were

violative of a collective bargaining agreement, (ECF 322-3 at

86), the record indicates that the shifts were part of a “give

and take” to ensure that Plaintiff attended weekly off-shift

meetings while permitting him to attend his child’s athletic

events, (id. at 83; Lynch Dep. Tr. at 139:14 to 140:9). Thomson

also testified and provided responses to interrogatories that

Plaintiff was transferred, not for discriminatory reasons, but

rather because CCPD was collaborating with the FBI and Wysocki,

who replaced Plaintiff, had a previous working relationship with

the FBI and strong interviewing skills. (Thomson Answer to Pl.

Interrog. No. 2; Thomson Dep. Tr. at 125:19 to 126:3).6

Plaintiff, in response, cites to his Amended Complaint and

argues that it would have been illogical for him to have filed a

grievance as to his split-shifts if he had agreed to them and

that this inconsistency “alone should be sufficient to meet

Plaintiff’s burden of showing pretext.” (ECF 330 at 13). The

Court disagrees. Plaintiff’s argument ignores that the split-

shifts, requested or not, were nonetheless violative of a

collective bargaining agreement. (ECF 322-3 at 86). Further,

Plaintiff challenges Wysocki’s experience, or lack thereof, in

Internal Affairs, (ECF 330 at 14), as opposed to the

interviewing skills and relationship with the FBI cited by

Thomson, (Thomson Dep. Tr. at 125:19 to 126:3).

6 Plaintiff challenges Defendant’s citation to Thomson’s

deposition in a different matter, claiming that it was not

produced during discovery. (ECF 332 at ¶ 35). Generally,

parties seeking to assert that a fact is or is not in genuine

dispute must “cit[e] to particular parts of materials in the

record.” Fed. R. Civ. P. 56(c)(1)(A). Though courts have

precluded parties from relying on documents not provided in

discovery in summary judgment motions, Rule 56 does not

expressly prohibit such documents. See Estate of Fajge v. Dick

Greenfield Dodge, Inc., No. 11–cv–04527, 2012 WL 2339723, at *11

(D.N.J. June 18, 2012) (noting that “the affidavits permitted by

Rule 56 are by their very nature documents containing factual

averments that were not produced during discovery but were

created for the purpose of seeking or defending against summary

judgment” (citing Wright & Miller, 10A Fed. Prac. & Proc. Civ. §

2722 (3d ed. 2010))). The Court concludes that the use of

Thomson’s deposition does not greatly prejudice Plaintiff and

may be relied upon here. Important in this determination is the

fact that the deposition in question was included in Defendants’

initial motion for summary judgment, (ECF 292-26), and has thus

been on the docket for Plaintiff’s review for three years.

More significantly, once a nondiscriminatory reason has

been proffered, “[t]he plaintiff then bears the burden of

persuasion to convince a reasonable fact-finder that the reason

provided by the defendant was a pretext for retaliation,”

Borgese v. Dean Foods Co., No. 15-cv-2907, 2017 WL 2780742, at

*5 (D.N.J. June 26, 2017), and at the summary judgment phase the

nonmovant is obligated to “go beyond the pleadings” to rebut the

purported absence of a genuine dispute of any material fact, see

Santini, 795 F.3d at 416. Plaintiff has not done so here.

Because Plaintiff has not demonstrated an objectively reasonable

belief that he was objecting to illegal, fraudulent, or harmful

conduct and because Plaintiff has failed to address, much less

rebut, the nondiscriminatory reasons offered, the Court holds

that summary judgement is warranted for Plaintiff’s CEPA claim.

C. Plaintiff’s New Jersey LAD Claims

1. New Jersey LAD Discrimination Claim (Count 2)

The New Jersey LAD makes it unlawful for an employer to

“discriminate . . . in compensation or in terms, conditions or

privileges of employment” based on race. N.J.S.A. 10:5-12(a).

As a “remedial social legislation,” the LAD is to be “liberally

construed.” Nini v. Mercer Cnty. Cmty. Coll., 995 A.2d 1094,

1100 (N.J. 2010). To succeed in a LAD claim for racial

discrimination, a plaintiff must establish that (1) the

complained-of conduct would not have occurred but for the

plaintiff’s race and the conduct was (2) severe or pervasive

enough to make a (3) reasonable individual of the plaintiff’s

race believe that (4) “the conditions of employment are altered

and the working environment is hostile or abusive.” Nuness v.

Simon and Schuster, Inc., 325 F. Supp. 3d 535, 545 (D.N.J. June

29, 2018) (quoting Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J.

1998)).

The latter three prongs “are interdependent,” Rios v. Meda

Pharma., Inc., 252 A.3d 982, 987 (N.J. 2021) (quoting Lehmann v.

Toys ‘R’ Us, 626 A.2d 445, 453 (N.J. 1993)), and a determination

of whether an employer’s conduct is sufficiently severe or

pervasive is made by evaluating the surrounding circumstances

and cumulative effect of the cited incidents, id. (citing

Taylor, 706 A.2d at 685 and Lehmann, 626 A.2d at 445).

Importantly, the New Jersey Supreme Court has specified that a

plaintiff need only show that the employer’s conduct was severe

or pervasive, Taylor, 706 A.2d at 689 (citing Lehmann, 626 A.2d

at 445), and that requirement may be satisfied by a single

incident, id., or even when the discrimination does not

necessarily alter the employee’s working conditions, id. at 692.

Like a CEPA claim, a LAD discrimination claim is analyzed under

the McDonnell Douglas burden-shifting analysis. See Kirschling

v. Atlantic City Bd. of Educ., 10 F. Supp. 3d 587, 593-94

(D.N.J. Mar. 31, 2014).

Plaintiff is African American and cited two incidents of

alleged race discrimination during his deposition, his transfer

from Internal Affairs while being replaced by Wysocki, who is

Caucasian and was of a lower rank, and being replaced as acting

captain by Sosinavage, who is also Caucasian. (Pl. Dep. Tr. at

184:12 to 185:7).

With respect to being replaced by Sosinavage, Sosinavage

testified at deposition that Plaintiff was a captain at the time

of his promotion, (Sosinavage Dep. Tr. at 98:10-15), which is

not rebutted by the portions of the record cited by Plaintiff,

(ECF 332 ¶ 89). The Court finds that Plaintiff fails to show

how Sosinavage’s ascension to the same rank as him constitutes

racial discrimination. See Jenkins v. Inspira Health Network,

Inc., No. 15–2922, 2018 WL 1535208, at *9 (D.N.J. Mar. 29, 2018)

(finding that the plaintiff failed to establish a prima facie

racial discrimination claim under Title VII and the LAD as a

Caucasian employee with similar performance issues was

terminated).

Moving to Plaintiff being replaced by Wysocki in Internal

Affairs, the Court finds a dearth of evidence supporting

Plaintiff’s claim that he was replaced by Wysocki due to racial

animus. Plaintiff’s allegations focus, rather, on his

objections to Defendants’ practices and their purported causal

connection to the adverse actions taken against him. Even if

the Court were to accept that Plaintiff’s transfer and

replacement were hostile or abusive, Defendants have offered a

legitimate, nondiscriminatory explanation – that CCPD was

working with the FBI and Wysocki’s interview skills and prior

working relationship with the FBI were of particular value.

(Thomson Dep. Tr. at 125:19 to 126:3). Plaintiff offers no

evidence to rebut this legitimate reason, see Kirschling, 10 F.

Supp. 3d at 594, but rather makes general arguments as to the

validity of Plaintiff’s claim untethered to citations to the

record or other evidence, (ECF 330 at 14-17). Plaintiff having

failed to offer evidence that the reasons cited by Defendants

are pretextual, the Court finds that summary judgment is

warranted for Count 2 of Plaintiff’s Amended Complaint.

2. New Jersey LAD Retaliation Claim (Count 3)

The LAD also prohibits reprisals against anyone who opposes

practices forbidden by LAD and coercion, intimidation, threats,

and interference with another’s exercise of their rights granted

or protected by LAD. N.J.S.A. 10:5-12(d). A plaintiff alleging

retaliation under the LAD must show (1) that they were in a

protected class, (2) engaged in protected activity that the

employer knew about, (3) the plaintiff thereafter suffered an

adverse employment action, and (4) a causal nexus exists between

the protected activity and adverse employment action. McDermott

v. CareAllies, Inc., 503 F. Supp. 3d 225, 238 (D.N.J. Nov. 30,

2020) (citing Victor v. State, 4 A.3d 126 (N.J. 2010)).

Protected activity includes complaints and opposition to

acts and practices forbidden by the LAD. Bradley v. Atlantic

City Bd. of Educ., 736 F. Supp. 2d 891, 900 (D.N.J. Sept. 7,

2010) (citing N.J.S.A. 10:5-12(a), (d)). However, to be

protected, the activity “‘must concern discrimination’ and

moreover, must be more than a general complaint of unfair

treatment,” Cohen, 419 F. Supp. 3d at 861 (quoting Dunkley v. S.

Coraluzzo Petroleum Transporters, 98 A.3d 1202, 1208 (N.J.

Super. App. Div. 2014)). The activity must further represent “a

reasonable ‘good faith belief that the conduct complained of

violates the [LAD].’” Id. at 862 (quoting Battaglia v. United

Parcel Serv., Inc., 70 A.3d 602, 620 (N.J. 2013)).

A plaintiff must show that the employer’s adverse action

was “materially adverse,” meaning that “it well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.” Thompson v. S. Amboy Comprehensive

Treatment Ctr., No. 18-9923, 2021 WL 3828833, at *9 (D.N.J. Aug.

27, 2021) (quoting Roa v. Roa, 985 A.2d 1225, 1236 (N.J. 2010)).

A causal nexus may be evidenced by a close temporal relationship

between the protected activity and the adverse employment action

or when “the proffered evidence, looked at as a whole, . . .

raise[s] the inference [of causation].” Nuness, 325 F. Supp. 3d

at 563 (alterations and omission in original) (quoting LeBoon v.

Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir.

2007)). A temporal relationship, “unless ‘unduly suggestive,’

such as a matter of days” cannot alone establish a causal

connection. Horneff v. PSEG Nuclear, LLC, No. 13–975, 2015 WL

263128, at *12 (D.N.J. Jan. 21, 2015) (quoting Cardenas v.

Massey, 269 F.3d 251, 264 (3d Cir. 2001) and finding no causal

connection when the plaintiff was terminated three months after

his investigation interview and when only five of the eleven

individuals interviewed were terminated). Like LAD

discrimination claims, LAD retaliation claims are analyzed under

the McDonnell Douglas burden-shifting framework. See Cohen, 419

F. Supp. 3d at 859.

Here, Count 3 of Plaintiff’s Amended Complaint focuses on

the alleged retaliation he experienced rather than any activity

protected under the LAD. (ECF 26 at ¶¶ 123-27). Elsewhere in

the Amended Complaint, Plaintiff references his general

objections and speech relating to CCPD practices, particularly

Defendants’ investigation practices. Plaintiff fails to show,

however, that these activities “concern[ed] discrimination.”

See Cohen, 419 F. Supp. 3d at 861 (quoting Dunkley, 98 A.3d at

1208).

If the Court were to disregard this fatal shortcoming,

which it does not, and accept that the temporal relationship

between Plaintiff’s objections in March and April of 2009 and

his transfer and split shifts beginning in April 2009 made out a

prima facie retaliation claim, Plaintiff’s claim would still

fail for the same reasons as his CEPA claim. Namely, that

evidence in the form of deposition testimony provides non-

retaliatory reasons for these actions – Plaintiff’s split shifts

were a mutual accommodation to ensure that he attended certain

meetings and was able to see his child’s athletic events, (Lynch

Dep. Tr. at 139:14 to 140:9), and that Wysocki possessed

important skills and experience needed while CCPD was working

with the FBI, (Thomson Dep. Tr. at 125:19 to 126:3). Plaintiff

offers no rebuttal to these explanations. Yet again, Plaintiff

fails to meet his burden under the McDonnell Douglas burden-

shifting framework. Therefore, the Court finds that summary

judgment is appropriate for Count 3 of the Amended Complaint.

D. Plaintiff’s Free-Speech Claims

To sustain a First Amendment retaliation claim under 42

U.S.C. § 1983, the plaintiff must demonstrate that (1) they

engaged in constitutionally protected conduct, (2) the employer

engaged in retaliation sufficient to deter an individual of

ordinary firmness from exercising their constitutional rights,

and (3) there was a causal nexus between the protected conduct

and retaliation. Javitz v. Cnty. of Luzerne, 940 F.3d 858, 863

(3d Cir. 2019). To establish a causal nexus, “a plaintiff

usually must prove either (1) an unusually suggestive temporal

proximity between the protected activity and the allegedly

retaliatory action, or (2) a pattern of antagonism coupled with

timing to establish a causal link.” Rink v. Ne. Educ.

Intermediate Unit 19, 717 Fed. Appx. 126, 133 (3d Cir. 2017)

(quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,

267 (3d Cir. 2007)). If a plaintiff satisfies the three-part

test, the government thereafter bears the burden of showing that

it would have taken the adverse action even if Plaintiff had not

engaged in the protected speech. See Baloga v. Pittston Area

Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019).

“The Free Speech Clause contained within the New Jersey

Constitution ‘is generally interpreted as co-extensive with the

First Amendment,’” therefore this same analysis is applicable to

Plaintiff’s federal and state claims and the Court will evaluate

the claims concurrently. See Palardy v. Twp. of Millburn, 906

F.3d 76, 80 (3d Cir. 2018) (quoting Twp. of Pennsauken v. Schad,

733 A.2d 1159, 1169 (1999)).

Plaintiff alleges in the Amended Complaint that he spoke

out against Defendants’ practices in his individual, union, and

official capacities with his objections and state lawsuit. (ECF

26 at ¶¶ 129-135, 255-59). The Court first notes that a public

employee’s speech right is more limited than that of a member of

the general public and is protected when (1) the public employee

speaks as private citizen, (2) the statement made is of a matter

of public concern, and (3) the government employer is not

justified in treating the employee differently than a member of

the public. Palardy, 906 F.3d at 81 (citing Hill v. Borough of

Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006)). Plaintiff cites

Palardy for the proposition that no additional proof of public

concern is necessary because the union activity of a public

employee is ”inevitably of public concern,” (ECF 330 at 20

(citing Palardy, 906 F.3d at 82)), and adds that his union

activities conducted while off-duty were as a private citizen,

(id.). However, the cited discussion in Palardy pertained to

union association, 906 F.3d at 82, and the Third Circuit

recognized speech and association claims as distinct, see id. at

84 (partially affirming summary judgment as the plaintiff failed

to adequately plead a freestanding speech claim). Further,

advocacy made on behalf of a union is not made as a private

citizen. See Foster v. Twp. of Pennsauken, No. 16-5117, 2017 WL

2780745, at *10 (D.N.J. June 27, 2017) (referring to statements

made as part of contract negotiations and citing Hill v. City of

Phila., 331 Fed. Appx. 138, 142 (3d Cir. 2009)).

A public employee’s lawsuit alleging retaliation, however,

may be protected by the First Amendment. See Falco v. Zimmer,

767 Fed. Appx. 288, 307-08 (3d Cir. 2019). Accepting

Plaintiff’s state lawsuit as protected, the chronology of

alleged events does not support relief in Plaintiff’s favor.

Plaintiff filed his New Jersey Superior Court action in April

2010. (ECF 26 at ¶¶ 182, 257).7 At that point, most of the

actions complained of – his transfer, return to a lieutenant

position, absent-without-leave discipline, etc. – had already

taken place, (ECF 322-3 at 81-82, 94; Pl. Dep. Tr. at 139:9-11).

The lone specified event that the Court can deduce occurred

after the initiation of Plaintiff’s state lawsuit was his

discipline for a bias incident that took place in early 2013.

(ECF 322-4 at 26, 209). The Court finds that no reasonable

factfinder could conclude that this discipline, which was

sustained, (id. at 29-30; Pl. Dep. Tr. at 179:10-16), was made

in retaliation nearly three years after Plaintiff filed his

complaint.

Plaintiff’s other purportedly protected actions, namely his

objections made to Defendants, were made in his public capacity.

To find them protected, as the Court does not, does not result

in supporting Plaintiff’s claims. As noted above, though

Plaintiff was transferred and had his shift changed shortly

following his objections, Defendants have offered testimony that

those actions would have taken place regardless of Plaintiff’s

7 Plaintiff’s claim in his opposition that the state lawsuit was

filed in May 2009, (ECF 330 at 18-19), conflicts with the

timetable provided in the Amended Complaint, which states that

the lawsuit was filed in or around April 2010, (ECF 26 at ¶

182). The amended state-court complaint available on the docket

was filed in April 2010. (ECF 292-21).

speech. (Lynch Dep. Tr. at 139:14 to 140:9; Thomson Dep. Tr. at

125:19 to 126:3); see also Baloga, 927 F.3d at 752. Nor does

the Court find that the adverse actions, including sustained

discipline, altered shifts, and reassignments, over the course

of approximately four years evidence a pattern of conduct with a

causal link between Plaintiff’s speech and the adverse

employment actions. See Roseberry v. City of Phila., 716 Fed.

Appx. 89, 92 (3d Cir. 2017) (finding “no pattern of antagonism”

from several isolated employer actions that took place over the

course of three years); Luciani v. City of Phila., 643 Fed.

Appx. 109, 113-14 (3d Cir. 2016) (concluding that the ten months

between the plaintiff’s statements and his pre-termination

proceedings could not, alone, support causation). The Court

thus holds that summary judgment is appropriate with respect to

Plaintiff’s speech claims under the United States and New Jersey

Constitutions.

E. Plaintiff’s 42 U.S.C. § 1983 Claims

1. Plaintiff’s racial discrimination claim (Count 6)

Count 6 of Plaintiff’s Amended Complaint alleges racial

discrimination under 42 U.S.C. § 1983. Like Plaintiff’s claim

of discrimination under the New Jersey LAD, the Court first

notes that Plaintiff, during his deposition, identified two

instances of believed racial discrimination – his transfer from

Internal Affairs after which he was replaced by Wysocki, and his

being replaced as acting captain by Sosinavage. (Pl. Dep. Tr.

at 184:12 to 185:7). As stated, the evidence indicates that

Plaintiff was still a captain at the time of Sosinavage’s

promotion. (Sosinavage Dep. Tr. at 98:10-15). The Court

therefore finds that no rational factfinder could conclude that

Plaintiff has established a prima facie claim as to Sosinavage’s

promotion as such a claim requires favoritism shown toward

members of the nonprotected class. See Stewart v. Rutgers, The

State Univ., 120 F.3d 426, 432 (3d Cir. 1997).

Moving to Plaintiff’s transfer from Internal Affairs,

racial discrimination under 42 U.S.C. § 1983 is subject to the

same McDonnell Douglas burden-shifting framework that has grown

familiar in this Opinion. See id. In the context of alleged

discriminatory transfer, a plaintiff must show that they were

(1) a member of a protected class, (2) qualified for the

position they sought, and (3) nonmembers of the protected class

were treated with greater favor. Longoria v. New Jersey, 168 F.

Supp. 2d 308, 316 (D.N.J. Oct. 17, 2001) (citing Goosby v.

Johnson & Johnson Medical, Inc., 228 F.3d 313, 318–19 (3d Cir.

2000)).

The Court accepts that Plaintiff, an African American, is a

member of a protected class and was qualified to remain in

Internal Affairs. It notes, however, that Wysocki, who is

Caucasian, was not necessarily treated more favorably as the

record indicates that he was unhappy with being moved to replace

Plaintiff. (Wysocki Dep. Tr. at 54:1-4). Were the Court to

nonetheless find that Plaintiff sets forth a prima facie

discrimination claim, Count 6 of Plaintiff’s Amended Complaint

would fall – like its predecessors – due to Defendants’

proffered racially neutral reason, that Wysocki’s prior working

relationship with the FBI and interviewing skills were important

for upcoming investigations. (Thomson Dep. Tr. at 125:19 to

126:3). Though Plaintiff challenges Wysocki’s experience

elsewhere in his opposition, his focus is on Wysocki’s lack of

experience with Internal Affairs, (ECF 330 at 14), not the

actual reasons cited by Defendants. Therefore, the Court

concludes that Plaintiff has failed to rebut the permissible

rationale, see Stewart, 120 F.3d at 432, and will grant

Defendants’ motion as to Count 6 of Plaintiff’s Amended

Complaint for failure to meet his burden under McDonnell

Douglas.

2. Plaintiff’s Retaliation Claim (Count 8)

To establish a 42 U.S.C. § 1983 retaliation claim, a

plaintiff must show that they (1) engaged in protected activity,

(2) suffered an adverse employment action, and (3) that there

was a causal nexus between the protected activity and the

adverse action. Hanani v. N.J. Dept. of Env’t Prot., 205 Fed.

Appx. 71, 79-80 (3d Cir. 2006). Such claims are also evaluated

under the McDonnell Douglas burden-shifting framework. Bangura

v. Pennsylvania, 793 Fed. Appx. 142, 145 (3d Cir. 2019).

Count 8 of Plaintiff’s Amended Complaint, in the Court’s

view, represents a recapitulation of Plaintiff’s free-speech

claims under another name. Plaintiff, again, alleges that his

New Jersey Superior Court complaint and testimony was protected

by the First Amendment. (ECF 26 at ¶¶ 182-85). To the extent

that Plaintiff alleges that he was retaliated against by

Defendants “illegally and improperly promoting less qualified

individuals above him in the new County Police Department,” (id.

at ¶ 186), the Court notes that Plaintiff’s claims against

County Defendants have already been disposed of, (ECF 20; ECF

202; ECF 283).

Furthermore, as recognized above, Plaintiff filed his

state-court complaint in April 2010, (ECF 26 at ¶¶ 182, 257),

after the majority of actions complained of – his transfer,

return to a lieutenant position, and absent-without-leave

discipline, (ECF 322-3 at 81-82, 94; Pl. Dep. Tr. at 139:9-11).

The lone specified adverse action allegedly committed by

Defendants following the state-court complaint was Plaintiff’s

discipline for improper handling of the bias incident in early

2013. (ECF 322-4 at 26, 209). The Court is unable to discern,

and concludes that no reasonable factfinder could find, a causal

nexus between Plaintiff’s state-court action and discipline

nearly three years later to make out a prima facie case. This

is especially so as the discipline in question was ultimately

sustained. (Id. at 29-30; Pl. Dep. Tr. at 179:10-16). Summary

judgment as to Count 8 will therefore be granted.

F. Plaintiff’s Monell Claims

Plaintiff’s final two claims, Counts 7 and 9, bring 42

U.S.C. § 1983 actions against the City of Camden. First,

Plaintiff alleges in Count 7 that Defendants created a custom or

practice of violating laws, rules, and regulations regarding

civil-service procedures and improperly utilizing Internal

Affairs. (ECF 26 ¶¶ 173, 175). Plaintiff claims that City

administration was aware of these practices and acquiesced,

agreed, or acted in furtherance of them, (id. at ¶ 174), and

that Plaintiff was retaliated against due to his speaking out,

(id. at ¶¶ 176-79). Count 9 makes another reference to

Plaintiff’s state-court action and alleges that City

administration knew of Thomson and other Defendants’ custom or

practice of harassing and retaliating against objectors and

acquiesced to or ratified that conduct. (Id. at ¶¶ 194-99).

To succeed in a 42 U.S.C. § 1983 claim, a “plaintiff must

prove (1) that the alleged injury was caused by a person acting

under the color of state law; and (2) that the conduct deprived

the plaintiff of a federally protected right.” Adams v. Cnty.

of Erie, 558 Fed. Appx. 199, 202 (3d. Cir. 2014) (citing Nicini

v. Morra, 212 F.3d 798, 806 (3d Cir. 2000)).

A plaintiff may not sue a local government under 42 U.S.C.

§ 1983 based solely on the actions of employees, but rather the

plaintiff’s injury must be caused by a government policy or

custom. Chernavsky v. Twp. of Holmdel Police Dep’t, 136 Fed.

Appx. 507, 509 (3d Cir. 2005) (citing Monell v. N.Y. Dep't of

Soc. Servs., 436 U.S. 658, 694 (1978)). Policies are made by

“an official statement of a ‘decisionmaker possessing final

authority to establish municipal policy,’” while custom is

evidenced by “a course of conduct that ‘is so well-settled and

permanent as virtually to constitute law.’” Id. (quoting

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

Though Plaintiff demonstrates that Defendants performed the

relevant actions in their official capacities and thus under the

color of state law, the Court cannot conclude that any

constitutional right of Plaintiff’s has been violated by

Defendants for the same reasons described throughout this

Opinion. Namely, with respect to Plaintiff’s free-speech right

expressly referenced in Count 9, the Court holds that Plaintiff

has failed to demonstrate that his objections to Defendants were

made as a private citizen, see Palardy, 906 F.3d at 81, and that

his state-court claim followed the majority of the adverse

actions cited in the record, (ECF 26 at ¶¶ 182, 257; ECF 322-3

at 81-82, 94; Pl. Dep. Tr. at 139:9-11). The absence alone of a

violation of Plaintiff’s rights is enough to defeat his Monell

claim. See Mulholland v. Gov’t Cnty. of Berks, 706 F.3d 227,

238 n.15 (3d Cir. 2013) (“It is well-settled that, if there is

no violation in the first place, there can be no derivative

municipal claim.” (citing Los Angeles v. Heller, 475 U.S. 796,

799 (1986) and Estate of Smith v. Marasco, 318 F.3d 497, 505 (3d

Cir. 2003))).

Even if the individual Defendants had engaged in an

unlawful practice, Plaintiff has failed to meet another key

element of a Monell claim. While Plaintiff alleges that he

alerted the City’s business administrator to his concerns with

how investigations were handled, (ECF 26 at ¶ 84), Plaintiff

does not cite any official statement or longstanding pattern of

conduct to evidence a policy or custom, see Chernavsky, 136 Fed.

Appx. at 509, or even acquiescence to such a custom, see Noble

v. City of Camden, 112 F. Supp. 3d 208, 221 (D.N.J. June 29,

2015) (“[P]laintiff must show that the municipality, through one

of its policymakers, affirmatively proclaimed the policy, or

acquiesced in the widespread custom . . . .” (emphasis added)).

Plaintiff submits that “[i]f ever there was a case where

the improper pattern and practice existed and was ratified by

the governing body, it is this one,” but makes no citations to

the record and generally relies on rationales asserted elsewhere

in the opposition, (ECF 330 at 21), which itself consists

largely of broad, uncited assertions. These bald and conclusory

assertions fail to go beyond the pleadings and meet Plaintiff’s

burden to come forward with specific facts demonstrating

a genuine issue for trial. See Santini, 795 F.3d at 416. The

Court thus holds that summary judgment is appropriate as to

Counts 7 and 9.

IV. Motion to Seal

Following the filing of his opposition, Plaintiff moved to

seal exhibits attached to his statement of material facts. (ECF

336). Though the motion was purportedly submitted pursuant to

the Federal Rules of Civil Procedure, the Court understands

Plaintiff’s motion as having been filed pursuant to Local Civil

Rule 5.3, which governs motions to seal within this District.

See Medley v. Atl. Exposition Servs., Inc., 550 F. Supp. 3d 170,

203 (D.N.J. July 26, 2021).

Motions to seal pursuant to Local Civil Rule 5.3 must be

made via a single, consolidated motion on behalf of all parties,

L. Civ. R. 5.3(c)(1), and include (a) the nature of the

materials or proceeding at issue, (b) the interests warranting

the relief sought, (c) the clearly defined, serious injury that

would result without relief, (d) an explanation as to why less

restrictive alternatives are unavailable, (e) any prior orders

involving the sealing of the same materials, and (f) the

identity of any objector, L. Civ. R. 5.3(c)(3); see also Ford v.

Caldwell, No. 20-12655, 2022 WL 4449338, at *1 (D.N.J. Sept. 23,

2022) (noting that the Local Civil Rule 5.3(c)(3) factors are

considered by courts when ruling on motions to seal).

Furthermore, this information must be provided “based on

personal knowledge.” L. Civ. R. 5.3(c)(3). It is within

courts’ discretion to restrict public access, but the

presumption is in favor of public access to judicial

proceedings, creating a burden for movants to overcome only by a

showing of “good cause” – that is “a particularized showing that

disclosure will cause a ‘clearly defined and serious injury’” –

that materials should be protected. See Medley, 550 F. Supp. 3d

at 203-04 (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772,

786 (3d Cir. 1994)).

The pending motion includes a certification from

Plaintiff’s counsel that all of the relevant exhibits are

records – many of them Internal Affairs files – of the former

Camden City Police Department and were subject to a

confidentiality agreement entered by the Court. (ECF 336-1).

There is no indication that the motion was filed on behalf of

all parties pursuant to Local Civil Rule 5.3(c)(1). Nor does

counsel’s statement that she possesses “personal knowledge of

the facts set forth” satisfy the personal knowledge requirement

of Local Civil Rule 5.3(c)(3). See Sosinavage v. Thomson, Nos.

1:14-cv-3292 & 1:14-cv-3323, 2022 WL 2442496, at *3 (D.N.J. July

4, 2022) (finding inadequate litigation counsel’s declaration

included with the motion to seal because “he [wa]s not an

employee of the Defendants and therefore lack[ed] personal

knowledge of the Confidential Materials . . . .”).

Even if the Court were to ignore these procedural

deficiencies, the motion provides little if any of the

information required by Local Civil Rule 5.3(c)(3), the Court’s

findings on which must be reflected in any corresponding opinion

or order filed by the Court. See L. Civ. R. 5.3(c)(6). The

fact that a record has been marked confidential for discovery

purposes does not itself mandate sealing. See Brooks v. Wal-

Mart Stores, Inc., No. 1:18-cv-1428, 2020 WL 1969937, at *8

(D.N.J. Apr. 24, 2020) (citing Vista India, Inc. v. Raaga, LLC,

No. 07-1262, 2008 WL 834399, at *5 n.2 (D.N.J. Mar. 27, 2008)).

“[T]o the extent Plaintiff's motion suggests the existence of a

confidentiality order mandates sealing, that motion fails.” Id.

The Court will therefore deny Plaintiff’s motion without

prejudice and will provide the parties fourteen days to file a

renewed motion to seal addressing the procedural and substantive

deficiencies identified above. Such a motion must adhere to the

requirements of Local Civil Rule 5.3.

V. Conclusion

For the reasons stated above, Defendants’ motion for

summary judgment, (ECF 322), will be granted and Plaintiff’s

motion to seal, (ECF 336), will be denied without prejudice. An

Order consistent with this Opinion will be entered.

Date: February 10, 2023 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.