The opinion
UNITED STATES DISTRICT COURT
rOR THE DISTRICT OF NEW JERSEY
BRETT MCCARTHY,
Plaintiff,
v, Case No, 24-cy-10388
‘CITY OF HACKENSACK, RAYMOND
GUIDETTI, MICHAEL ANTISTA, JOHN F, OPINION ON MOTION
ICNAPP, XYZ CORP, INC, (1-10), JOHN DOES TO DISMISS
(1-10), and JANE DOES (1-10)
Defendants,
WILLIAM J. MARTINI, U.S.D.4,:
Plaintiff Brett McCarthy, a police officer for the City of Hackensack, New Jersey, brings
this action against the City of Hackensack and three of his supervisors: Police Director Raymond
Guidetti, Police Chief Michael Antista, and John Knapp, Plaintiff claims that the Defendants
retaliated against him after he complained about certain employment conditions and later moved
for a vote of no confidence in Guidetti and Antista at a meeting of the Police Benevolent
Association Local 9 (““PBA-9”), the collective bargaining unit that represents the City of
Hackensack’s tank-and-file police officers, Plaintiff complaint brings three counts against the
defendants: first, for deprivation of his federal constitutional rights in violation of the 42 U.S.C, §
£983; second, for violation of his state constitutional rights in violation of the New Jersey Civil
Rights Act, N.LS.A. 10:6-] ef seq.; and third, for conspiring to deprive him of his constitutional
rights in violation of 42 U.S, § 1985,
Now before the Court is Defendants’ motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to slate a claim upon which relief can be granted, For the reasons
set forth below, Defendants’ motion is GRANTED IN PART and DENIED IN PART.
1, FACTS AS ALLEGED!
A, The ESU Pilot Program
Plaintiff has been a member of both the City of Hackensack police department and the
PBA-9 since January of 2011, Compl. □□ 23-24. In November of 2022, Defendant Guidetti issued
a memorandum establishing an application and selection process for officers to apply for
specialized assignments in the Police Department. Id. 7 25. The following month, Defendant
Knapp informed Plaintiff that he intended to recommend Plaintiff for participation in a pilot
program for the implementation of a new Emergency Services Unit (“ESU”). Id J] 26-27,
Defendant Knapp ran the pilot program. Jd 729. The ESU pilot program operated on a rotation-
“In considering a Rule 12(b}(6) motion, courts nmst accept all factual allegations as true [and] construe the complaint
in the light most favorable to the plaintifff.]? Braz v, City of Pittsburgh, 824 F.3d 353 Gd Cir, 2016} (cltatlon omitted),
This factual summary reflects the Plaintiff's well-pleaded allegations.
basis, but officers selected for training in the pilot program were told that they would later be given □
ihe opportunity to “try out” for full-time membership in the ESU. Jd. Jf 31-33. Plaintiff initially
participated enthusiastically in the ESU pilot program, but also vocalized his concerns regarding
staffing and selection procedures. Jd, Jf] 34-42, In April 2023, Plaintiff (during his personal time)
drafted a staffing proposal that he presented to Defendants Guidetti and Antista. Id. J 43-44.
In September 2023, after the pilot program had been extended multiple times, Defendants
Antista and Knapp announced that the pilot program would conclude at the end of 2023, fd. | 47.
Later that month, Defendant Knapp told Plaintiff that he would be one of the four officers selected
to join the ESU as a full-time member. Jd, ]48, Plaintiff responded that “from a union perspective,
there will be an issue because Defendant Knapp advised all twelve (12) of the participants in the
program that there would be “tryouts? and that should be the process in order for everyone to get a
fair opportunity.” /¢.-| 49. Defendant Knapp moved forward anyway, creating a group message
inchiding Plaintiff and the other three officers selected for ineluston in the full-time ESU, □□□ ¥ 50,
On October 8, 2023, the same day that the selected officers were scheduled to assume full-time
ESU status, Defendant Knapp informed them that “no final decision was made as to ESU,” and
that, after meeting with Defendants Guidetti and Antista, the pilot program would remain in place
until the end of 2023 as previously scheduled, Jd, §f 50-53,
On October 27, 2023, Defendant Guidetti issued a personnel order naming four
candidates—not including Plaintiff—to the full-time ESU. Jd J 54. Defendant Knapp told
Plaintiff that he “had nothing to do with the personnel decision” and that Defendant Guidetti’s
involvement “corrupted the selection process.” Jd, 4 55-60, Defendant Knapp advised that all of
the officers involved in the pilot program would have (he opportunity to serve as backup ESU
officers when the full-time members were sick or on leave, Id. { 61.
B. The Union Votes of No Confidence
On or about November 21, 2023, the Police Benevolent Association Local 9A—i.¢,, the
union representing supervisory officers*—announced a vote of no confidence in Defendants
Guidetti and Antista. Compl. 7 64. Plaintiff expressed his support for the Local 9A’s vote and told
Defendant Knapp and others that he planned to support a similar motion on behalf of the PBA-9. .
Id. 1 66, On o1 about December 13, 2023, at a meeting of the PBA-9, Plaintiff stood up and made
motion for a vote of no confidence in Defendants Guidetti and Antista, Id. 9] 71-72. The PBA-
9 voted by secret ballot in favor of the vote of no confidence. £. J] 73-74. Because the vote was
taken by secret bailot, Plaintiff and the officer who seconded his motion were the only members
of the PBA-9 whose positions on the no-confidence vote were publicly known, Id J 74. Despite
the no-confidence votes, the City of Hackensack extended Guidetti’s contract as Police Director
in December of 2023, fa. 75,
2 Plaintiff did not include in his pleadings that the Local 9A represents supervisory officers, buf the Court lakes judicial
notice of this fact because it is a matter of public record, See Korotki Levenson, 2021 WL 2650775, al #3 (DNA
June 28, 2021) (“Even ina Rule 12(b)(6) posture, where the Court is limited to the allegations plead on the face of the
complaint, a court may consider judicially noticeable facts without converting a motion fo dismiss inte a motion for
summary judgment”.
2
The following month, at a Mayor and City Council meeting which Plaintiff attended,
Defendant Guidetti publicly responded to the no-confidence votes, and members of the PBA~-9 and -
the Local 9A made comments in support of the no-confidence votes. J, 979-80, At the mecting,
Hackensack Mayor John Lambrosse? commented that he respected Defendant Guidetti for “getting
up in front of what I would call 80 of the enemy,” which Plaintiff believes was a reference to
himself and other union members. Id. 9] 81-83.
C. Removal from ESU
After the PBA’s vote of no confidence, but before the Mayor and City Council meeting,
Defendant Knapp approached Plaintiff to check in and see if Plaintiff was upset about his lack of
assignment to the ESU. Jd. 76. Plaintiffresponded by complaining that he was not being given
any time to serve on backup ESU service and told Defendant Knapp that he believed the lack of
ESU assignments was retaliation for the vote of no confidence. fd. 77.
On or atound February 5, 2024, Plaintiff arrived to ESU training but did not bring a rifle
that he needed for training—Plaintiff asserts that in the past one individual had been assigned to
for the group, but this time nobody retrieved his. fd. 84-87. Plaintiff believes that one of
the officers fold Defendant Knapp that he had intentionally failed to retrieve Plaintiff's gun and
that Defendant Knapp and others laughed in response. fd. ff 88-91.
On February 6, 2024, Plaintiff oversiept and missed ESU training. fd. {ff 98-99. Plaintiff
alleges that he overslept because of well-known mental health problems and because of harassment
and retaliation by the Defendants. Jd Ff] 93-98. When he called Defendant Knapp to inform him
that he had overslept, Defendant Knapp told him not to come for training at all, and Plaintiff called
in sick for the rest of the day. fd J] 99-101, Plaintiff then received a call from a Sergeant at the
police department who told him that Defendant Knapp wanted him to check in on Plaintiff. dd 4]
103-104. Then one of the ESU officers removed Plaintiff from the WhatsApp group message that
the unit used to communicate with each other 115. Plaintiff complained to Defendant Knapp
and Defendant Antista that he was being retaliated against and asked to remain on the ESU and be
added back to the WhatsApp channel, and Defendants told Plaintiff he could remain on the unit.
id. 116-118. But Plaintiff was never added back to the WhatsApp channel, and as a result, he
repeatedly missed ESU trainings in March and April of 2024. /@. 9] 120-124. Plaintiff complained
and reiterated his retaliation allegations to Defendants Knapp and Antista. fd, Jf 125-130. In April
2024, Defendant Knapp, with Defendants Guidetti and Antista’s approval, formally removed
Plaintiff from the ESU. fd. 4] 129-132,
D. Procedural History
Plaintiff filed the operative complaint on October 18, 2024 in in the Superior Court of New
Jersey, Bergen County. ECF No. 1 91. Defendants acknowledged service on November 8, 2024
and filed their notice of removal the same day, Jd, (2, On November 27, 2024, Defendants filed
their motion to dismiss for failure to state a claim upon which relief can be granted. ECF No, 4.
Plaintiff filed his opposition on December 19, 2024, and Defendants filed their reply on December
30, 2024,
® Plaintiff refers to Lambrosse as “Defendant Lambrosse” in his complaint, but Lambrosse is not named as a defendant.
3 .
iL MOTION TO DISMISS STANDARD .
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of a
complaint where the complaint fails to state a claim upon which relief can be granted, Fed. R. Civ.
P, 12(b)(6). Disinissal is appropriate only if, accepting all of Plaintiffs well-pleaded allegations
as true, the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atl. Corp, □□□ Twombly, 550 U.S, 544, 370 (2007); see also Omland y. PLANCO Fin.
Serv, ine. 542 F.3d 59, 64 Bd Cir, 2008), “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Jd, A complaint needs not contain detailed factual allegations, but
must at least “provide the ‘grounds’ of his ‘entitlement to relief,’” requiring “more than labels and
conclusions” or a “formulaic recitation of the elements of a cause of action|.]” Tvombly, 550 U.S,
at 555 (citation omitted), Thus, the factual aliegations must be sufficient to raise a plaintiffs right
to relief above a speculative level, see id. at 570, such that the court may “draw the reasonable
inference that the defendant is liable for the misconduct alleged,” Ashcroft v. Iqbal, 556 U.S, 662,
(2009) (citing Twombly, 550 U.S. at 556), While “{t}he plausibility standard is not akin to a
probability requirement’ ... if asks for more than a sheer possibility that a defendant has acted
unlawfully,” Jd.
WI. DISCUSSION
Plaintiff brings three claims: (1) retaliation in violation of his rights to free speech and
association as protected by the First Amendment to the U.S. Constitution and 42 U.S.C. § 1983;
(2) retaliation in violation of the rights to free speech and association as protected by the New
Jersey Constitution and the New Jersey Civil Rights Act, N.LS.A. § 10:6-1 ef seg. (““NICRA”);
and (3) conspiracy to violate his civil rights in violation of 42 U.S.C, § 1985.4 “The Free Speech
Clause contained within the New Jersey Constitution ‘is generally interpreted as co-extensive with
the First Amendment,’” so the analysis of McCarthy’s NICRA claim is “identical to its federal
counterpart.” Palardy vy Tivp. Of Millburn, 906 F.3d 76, 80 Gd Cin, 2018) (citing Twp. OF
Pennsauken y. Schad, 160 N.J. 156 (1999)).
Defendants argue that Plaintiffs claims fail because his complaint lacks well-pleaded
allegations of speech, see Mot. at 13-15; that Plaintiff failed to allege conduct protected by the
right io free association, Mot, at 15-18; that, ifhe did allege speech, it was not speech protected by
the First Amendment, Mot. at 18-23; that Plaintiff failed to allege retaliatory conduct, Mot, at 23-
26; and that Defendants Guidetti, Antista, and Knapp are entitled to qualified immunity, Mot. at
26-30, They also argue principally in their reply brief, Reply at 7, that Plaintiffs § 1985(3) claim
should be disinissed for failure to allege discriminatory animus.
1 Plaintiff argues in his Opposition that he adequately pleaded a procedural due process claim, ECF No, 6 af 11-13,
As Defendants point out in Reply, Plaintiff's Complaint brings no such claim, so the Court needs not address the
parties’ arguments,
5 Though this argument ordinarily would have been waived as Defendants did not raise the issue in their moving brief,
because Plaintiff independently raised the issue in his Opposition, Defendants were permitted to respond, See
Elizabethiown Water Co, Hartford Cas. Ins. Co,, 998 F, Supp, 447, 458 (DN, 1998) (It is axiomatic thal reply
briefs should respond to the respondent’s arguments or explain a position in the initial brief that the respondent
A. Counts I and If (Retaliation under § 1983 and NJCRA)
“To prevail on a § 1983 First Amendment retaliation claim, the plaintiff must prove that
(1) he engaged in ‘constitutionally protected conduct,’ (2) the defendant engaged in ‘retaliatory
action sufficient to deter a person of ordinary firmness from exercising his constitutional rights,’
and (3) ‘a causal link [existed] between the constitutionally protected conduct and the retaliatory
action,” Palardy v. Rvp. of Millburn, 906 F.3d 76, 80 Gd Cir. 2018) (quoting Thomas v. Indep.
463 F.3d 285, 296 Gd Cir, 2006)), The fist of these considerations requires a legal
determination, where the latter two are based in fact. Baloga v. Pittson Area Sch. Dist., 927 F.3d
742, 752.0,7 Bd Cir, 2019),
1. Constitutionally Protected Conduct
In evaluating an action brought under § 1983, “the first step is to identify the exact contours
of the underlying right said to have been violated.” County of Sacramento v, Lewis, 523 US, 833,
841 n.5 (1998), Though not pled as separate claims, Plaintiff alleges that Defendants violated two
separate First Amendment rights: bis right to freedom of speech and his right to freedom of
association. See Compl. ff] 134, 145. “Insofar as workplace speech is concerned, the Supreme
Court has fong held that public employees only receive First Amendment protection from
retaliation in the workplace when they speak out on a matter of public concern and their interest
in speaking outweighs the government’s interest in promoting workplace efficiency and avoiding
disruption.” Palardy, 906 F.3d at 81 (citing Connicky. Myers, 461 0.8. 138, 147 (1983); Pickering
v Bad. of Edue., 391 U.S. 563, 568 (1968)). But where, as here,
a public employee asserts retaliation in violation of the First Amendment as a free
speech claim and a pure union association claim, those claims must be analyzed
separately, and consistent with longstanding Supreme Court precedent, there is no
need to make a separate showing of public concern for a pure union association
claim because membership ina public union “is always a matter of public concern.”
Baloga, 927 F.3d at 748-49 (quoting Palardy, 906 F.3d at 80-81), Recognizing this distinction,
the Court first considers plaintiff’s pure-speech allegations, and then assesses the association
allegation.
i, Pure Speech Allegctions
“Though the First Amendment provides robust protection to statements pertaining to
matters of public concern, if does not empower public employees to ‘constitutionalize the
employee grievance,” Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231, 244
(3d Cir, 2016) (quoting Connick, 461 U.S. 138 at 154). “[W]hen public employees make
statements pursuant to their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications from employer
discipline.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
has refuted,” (emphasis added)); see also Crystal dS, line, y. Nitride Semiconductors Co,, Lid,, 2023 WL 2726702, at
25 (N.DLN.Y, March 34, 2023) (collecting cases),
Setting aside for a moment Plaintiff’s allegations concerning his union action moving for
a vote of no confidence in his supervisors, the following allegations could arguably underpin his
speech retaliation claims:®
« “On the first day of training, Plaintiff advised Defendant Knapp, and the other
supervisors present, that the Department needed to allow all officers to apply and create
a selection process for the unit,” Compl. [ 34;
e ‘In response to Defendant Guidetti’s question to the officers if there were any issues,
Plaintiff answered that there were on-going challenges and confusion with patrol
supervisors regarding what ESU officers’ responsibilities were on their assigned. days.”
Compl. [ 39;
© Plaintiff drafted “a proposal for Defendants Guidetti and Antista, which he submitted
to them on April 23, 2023,” Compl. { 43;
« “Plaintiff advised Defendant Knapp that, from a union perspective, there will be an
issue because Defendant Knapp advised all twelve (12) of the participants in the
program that there would be ‘tryouts’ and that should be the process in order for
everyone to get a fair opportunity.” Compl 49.
Defendants argue that these allegations are not sufficiently detailed to constitute allegations
of speech, Mot. at 14-15, That is not quite right. These are well-pleaded allegations of speech—
they are more than the mere “labels and conclusions” that Avonbly and Iqbal warn against.
However, these instances of speech are not examples of profected speech, because cach
occurrence is best characterized as a private employee grievance made pursuant to the Plaintiffs
execution of his job responsibilities, This situation is analogous to the speech at issue in Fraternal
Order of Police, Lodge 1 v. City of Camden, where the Third Circuit held that plaintiff-officers’
comments written on internal police counseling forms did not constitute protected citizen speech
because “Citizens do not complete internal police counseling forms, Rather, completing
counseling forms as a part of the police disciplinary process falls under officers’ official duties.”
842 F.3d at 244. The same is true of Plaintiff’s complaints and policy proposals, submitted to his
supervisors for their consideration in the execution of their job responsibilities, concerning staffing
and selection procedures, all of which are part and parcel of his role as a police department
employee, To the extent that Plaintiff seeks to pursue a pure speech claim, that claim fails.
ii. Associational Claim
5 Most of the other instances of speech alleged in Plaintiff's complaini are coextensive with Plaintiff's association
claim, Compl. □□ 66, 72, 77, 80, 103, 106, 109, 116, 115, 127 (ee infra Li). These allegations do not give rise to
a freestanding speech claim because [hey are “co-extensive with [Plaintiff's] associational clalin”’ See Palardy, 906
F.3d at 84, Plaintiff's only other allegation of speech--that he “speaks openly about [mental health awareness] in an
attempt to eliminate a slizma associated with mental health issues for officers,” Compl. 95-96—~does not form the
basis of his retaliation allegation, see Opp. at 5-11, ECF No. 6,
Plaintiff's core associational claim is that Defendants retaliated against him for his motion,
at a union meeting, for a vote of no confidence in Defendants Guidetti and Antista as leaders of
the police department. Whether a motion for a vote of no confidence is better characterized as a
pure associational claim (such that the public concern requirement is inapplicable) or as a speech
claim is a close question, but is resolved by applying the Third Circuit’s rationale in Baloga 1
Pittson Area School District, 927 F.3d 742 Bd Cir. 2019):
Although we spoke in Palardy primarily about union “membership,” our
recognition of the public concer inherent in union membership applies with
particular force to union leaders, for the right of union membership “would be
meaningless unless an employee’s right to participate in union activities were also
recognized.” Roberts y Van Buren Pub, Sch., 773 ¥.2d 949, 957 (8th Cit, 1985)
(citations omitted). As we said long ago, “[pllainly efforts of public employees to
associate together for the purpose of collective bargaining involve associational
interests which the first amendment protects from hostile state action,” Labov v.
Lalley, 809 F.2d 220, 222-23 (3d Cit, 1987); see also [Smith vy. Arkansas State
Highway lemp., Local 13135, 441 U.S. 463, 464 (1979)} (“The First Amendment ...
protects the right of associations to engage in advocacy on behalf of their
members.”), And because a union’s ability to file grievances on behatf of its
members is essential to its collective bargaining power, see Morgin v. Albuquerque
Pub. Sch., 906 F.2d 1434, 1439 (10th Cir, 1990), retaliation against a union leader
for the mniion’s decision to file a grievance—as distinct from retaliation based
on the substance of the grievance—constitutes retaliation based on association
rather than on speech per se[,]”
Id. (emphasis added),
Applying Baloga’s reasoning to the facts alleged, it appears that Plaintiff presses a pure
associational claim, alleging that he was retaliated against for moving for a vote of no confidence
in leadership, not because of the substance or rationale for the motion. While Plaintiff does not
allege that he is a union leader in any official capacity, his role in leading the PBA-9’s no-
confidence motion is a clear example of an “effort[} of public employees to associate together for
the purpose of collective bargaining.” ZLabov, 809 F.2d at 222-23 Gd Cir. 1987). Indeed, Plaintiff
does not actually indicate in his Complaint what he said in making or advocating his motion—
only that he made the motion and ihat the PBA-9 voted by secret ballot to approve the motion,
“Thus, the right at issue is a public employee’s right not to be subjected to adverse treatment for
his leadership role in a public union—not, as Defendants contend, for the content of the” motion,
Baloga, 927 F.3d at 762,
But even if the Garcetfi/Connick/Pickering tequirements did apply to Plaintiff’s no-
confidence motion, Defendants’ arguments for dismissal would still fail.
First, Plaintiff's union actions were taken as a citizen, not as an employee. Defendants
argue that “any speech offered by Plaintiff here occurred solely because he is a police officer. ...
Plaintiff was able and cager to speak out about his belief that Defendant Guidetti was wrong for
the Police Depariment precisely because of his employment as a police officer and the special
knowledge and experience acquired through his employment.” Mot. at 20 (citing Fraternal Order
of Police, Lodge lv, City of Camden, 842 F.3d 231 Gd Cir. 2016)), This is the wrong standard. It -
is true “that 4 claimant’s speech might be considered part of his official duties if it relates to ‘special
knowledge’ or ‘experience’ acquired through his job,” Gorum »v Sessoms, 561 F.3d 179, 185 3d
Cit, 2009), but it is also true that “the First Amendment protects speech by employees who are ‘the
members of a community most likely to have informed and definite opinions’ on issues of public
concern related to their job,” Jeni v. Harran, 625 Fed, App’x 574, 579 (3d Cir. 2015) (citing
Pickering, 391 U.S. at 572). “|W hether an employee’s speech concerns the subject matter of his
employment is nondispositive under Garcefti,.. because the First Amendinent necessarily protects
some expressions related to the speaker’s job,” Dougherty ». School Dist. Of Philadelphia, 772
F.3d 979, 989 (3d Cir, 2014) (cleaned up); see also Lane vy Pranks, 573 US, 228, 239 (The
Gareetti Court held that [] speech was made pursuant to the employee’s ‘official responsibilities’
because ‘[w]hen [the employee] went to work and performed the tasks he was paid to perform,
[he] acted as a government employee. ... But Garceffi said nothing about speech that simply
relates to public employment or concerns information learned in the course of public
employment.”). Speaking out against his supervisors is clearly not part of Plaintiff's “official
responsibilities,” See Jerri, 625 Fed, App’x at 581 (“Quite simply, there is no record evidence
(and it would seein illogical) to suggest that Jerri, Sr. was expected to make the complaints he did
to reporters and law enforcement, and thus Jerti, Sr. spoke as a citizen when he complained about
the boat business to all and sundry.”).
And second, the union’s level of confidence in the supervisors of the local police
department is a matter of public concern, “The Supreme Court has explained that speech relates
to a matter of public concern when it can be fairly considered as relating to any matter of political,
social or other concern to the community, or when it is a subject of legitimate news interest; that
is, a subject of general interest and of value and concern to the public.” Minroe v, Central Bucks
School Dist., 805 F.3d 454, 467 (3d Cir. 2015) (cleaned up), Plaintiff’s motion, and the union’s
subsequent vote, that Hackensack police officers lack confidence in the leadership of the police
department is plausibly a matter of general concern to the community (as it implicates public
safety), and moreover, was the subject of legitimate news interest, see Megan Burrow, Hackensack
Officers Express No Confidence Jn Police Director As City Extends His Contract,
NorthJersey.com, Dec. 15, 2023.7
Plaintiff has adequately pleaded that he engaged in protected First Amendment conduct by
alleging that he moved for a union vote of no confidence in leadership,
2. Adverse Action and Causation
7 Defendants’ comparison of the no-confidence motion to the survey circulated in Connick □□ Advers misunderstands
that case as standing for the prinelple that a lack of confidence in supervisors is de facfe not a matter of public concern.
But in Connick, the Comt observed that “Myers did not seek to inform the public thal the Distrlel Attorney's office
was not discharging its governmental responsibilities in the investigation and prosecution of criminal cases. Nor did
Myers seek io bring (o light actual or potential wrongdoing or breach of pubilc trust on ihe part of Connick and others,
Indeed, the questionnaire, if released to the public, would convey no information at al! other than the fact that a single
employee is upset with the status quo.” Connick, 461 U.S, at 148. Not so here, where Plaintiff’s motion for a vote of
no confidence was intended to express collective disapproval from the fail membership of the union jn the quality of
leadership, and was quickly made public,
As to the fact-based elements of the retaliation claims, Plaintiff has satisfied his pleading
burden, First, regarding the adverse action element, “[ajlthough the nature of the retaliatory acts
committed by the public employer must be more than de minimis, amounting to more than
ctilicism, false accusations, or verbal reprimands, the threshold is very low.” Baloga, 927 F.3d at
758 (cleaned up). “Indeed, [the Third Circuit has] observed that ‘an act of retaliation as trivial as
failing to hold a birthday party for a public employee ,,, when intended to punish her for exercising
het’ First Amendment rights may suffice.” Jd (quoting Suppan v. Dadonna, 203 V3d 228 Bd Cir,
2000)). Here, Plaintiff identifies a handful of different adverse employment actions which he
claims were undertaken in retaliation for his protected First Amendment activities, The Court is
not persuaded that the extension of Defendant Guidetti’s contract can reasonably be viewed as
retaliatory action, See Compl. { 75. But his other alleged forms of retaliation—namely, that he
was “removed from the ESU, denied training opportunities/advancement, and denifed] overtime,”
Compl, f 131—are sufficient to state a claim.
With respect to causation, Plaintiff must plead—and ultimately 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.” Price v City of
Philadelphia, 239 F, Supp, 3d 876, 890 (5D. Pa, 2017) (quoting Lauren Ww Delantinis, 480 F.3d
259, 267 (3d Cir. 2007), Here, Plaintiffs Complaint indicates that—after being advised that he
was likely to “get a lot of overtime in the Emergency Services Unit” in late October or November
of 2023, Compl. | 62—Plaintiff voiced his intention to support a vote of no confidence in his
supervisors, made the motion, complained that he was not getting the truck time with the ESU that
he anticipated, and was ultimately informed that he would not be selected fo the unit at all by April
of 2024, while at the same time facing at least episodic ridicule from his fellow officers and
Defendant Knapp (see Compl. Ff 85-92), For the purpose of surviving a motion to dismiss, this
contemporaneous combination of protected activity and adverse actions is sufficient to plead
causation. Defendants argue that “each of the actions Plaintiff labels as ‘retaliatory’ were
managerial decisions made by the City of Hackensack to promote public safety and the efficiency
of the Hackensack Police Department,” Mot, at 25. That may well be true. But the Court is not
prepared to resolve that factual dispute in Defendants’ favor at this early stage of the litigation,
B. Count iff (42 ULS.C, § 1985(3))
To state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is injured in his person or property or deprived of any right or
privilege of a citizen of the Uniled States.
Farber y. City of Paterson, 440 F.3d 131, 134 Gd Cir, 2006). “The language requiring intent to
deprive of equal protection, or equal privileges and immunities, means that there must be some
racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the
conspirators’ action,” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). The Supreme Court has
considered and expressly rejected the application of § 1985@G) to classes defined by union
membership:
[1]f anti-union, anti-nonunion, or anti-employer biases represent the kinds of
animus that trigger § 1985@), there would be little basis for concluding that the
statute did not provide a cause of action in a variety of other situations where one
economic group is pitted against another, each baving the intent of injuring or
destroying the economic health of the other, We think that such a construction of
the statute, which is at best only arguable and surely not compelled by either its
language or legislative history, should be eschewed and that group actions generally
resting on economic motivations should be deemed beyond the reach of § 1985(3).
United Broth. af Carpenters and Joiners of America, Local 610, AFL-CIO y. Scott, 463 U.S, 825,
837-39 (1983); see also Lyak vy. City of Hackensack, 2024 WL 2181134 at *4 (D.N.J. May 15,
2024). Plaintiffs § 1985(3) claim therefore fails.
C, Qualified Immunity
Defendants Guidetti, Antista, and Knapp (the “Individual Defendants”) assert a qualified
immunity defense.® “Qualified immunity ‘shields. governmental officials from suit and from
liability if their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Monfemuro v Jim Thorpe Area Sch, Dist., 99
F4th 639, 641-42 (3d Cir. 2024) (quoting Adack v. Yost, 63 FAth 211, 221 Gd Cir. 2023) Gnternal
citation omitted)). “There is a well-settled two-part test to determine whether government officials
should receive qualified immunity... We ask whether the plaintiff has alleged the violation of any
constitutional or statutory rights, and we further ask whether those rights were clearly established
at the time of the challenged conduct, such that a reasonable official would have known that the
conduct violated the plaintiff's rights.” Montemuro, 99 F.4th at 642 (citing Anglemeyer Aminons,
92. F.4th 184, 188 Gd Cir, 2024),
The Individual Defendants bear the burden of establishing their entitlement to qualified
immunity, Halsey v. Pfeiffer, 750 F.3d 273, 288 (3d Cit, 2014), Having determined supra that
Plaintiff has stated a claim for a First Amendment violation, the inquiry reduces to whether a
reasonable official would have known that the alleged conduct violated the plaintiff's rights. At
this stage, the Individual Defendants have not carried their burden of establishing their entitlement
to qualified immunity,
Other than thei insistence that the Court resolve the qualified immunily question as early
as possible, Defendants’ principal qualified immunity arguments are that “Plaintiff’s allegations
do not rise to a level that would even suggest Defendants interfered with the Union’s ability to
organize and communicate” and that Defendants “at all times, acted according to the facts and
circumstances within their knowledge and of which they had reasonably trustworthy information
sufficient to warrant a prudent man in believing their decisions to renew Guidetti’s employment
contract and select certain officers for the ESU were appropriate and proper.” Reply at 9, ECF No.
7, Neither of these arguments is responsive to the question of whether Defendants’ alleged
® Defendant City of Hackensack does not (and cannot) seek to assert a qualified immunity defense, See Barna y. Bd.
of Sch. Divs. Of Panther Valley Sch, Dist, 877 P.3d 136, 145 (3d Chr, 2017). □
i0
constitutional violation pertained to an established right of which a reasonable official would be
And while it may be difficult to distinguish whether Plaintiff's protected conduct was the
exercise of his freedom of association or freedoin of speech, as discussed above, under either
framework Plaintifi’s conduct was clearly protected. See Baloga v. Pittston Area Sch, Dist., 927
¥3d 742, 762 3d Cir, 2019) (The Supreme Court has long recognized the vight to become a
member of a union and the attendant right not to be penalized for that membership,”); Labov v,
Lalley, 809 F.2d 220, 222 3d Cir. 1987) (“Plainly efforts of public employees to associate together
for the purpose of collective bargaining involve associational interests which the first amendment
protects from hostile state action.”); Morin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1439 (“The
unconstitutionality of retaliating against an employee for participating in a union [is] clearly
established ....°); Mrazek v. Stafford Twp., 2017 WL 1788655 (D.N.I. May 5, 2017) (“In sum,
clearly ostablished law provides a public employee the right to join a union and prohibits retaliatory
employment action—such as passing over a public employee for a promotion—for exercising his
or her First Amendment right to associate, To hold otherwise would render the right to join union
a hollow exercise,”),
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is DENIED with respect to
Counts | and IT of the Amended Complaint, and GRANTED with respect to Count I,
An appropriate order follows.
March | , 2025
ILLYAM J/AWARTINI, US.DJ,
i]