Estate of Oliva Ex Rel. McHugh v. New Jersey

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-2082

THE ESTATE OF JOHN L. OLIVA, JR.,

by his Administratrix CTA, Kelli Ann McHugh,

Appellant

v.

STATE OF NJ, DEPARTMENT OF LAW AND PUBLIC

SAFETY, DIVISION OF STATE POLICE; JOHN J.

FARMER, JR., in his official capacity; CARSON DUNBAR,

in his official capacity; BRUCE MYERS; ALBERT

WALDRON; RAY LUPU; JAMES HARRIS; GEORGE

GILMAN; GARY AUSTIN; HORACE MACFARLAND;

REGINALD WILLIAMS; FRANCES DONLAN; WILLIAM

MEDDIS; KENNETH SCHAIRER; JOHN ZULAWSKI;

EDWARD SOKORAI; GLENN MILLER; JOHN

HAGGERTY; ROBIN BLAKER; JOHN DOES, 1-5;

ROBERT KILMURRARY; DONALD IZZI, all individually;

JOSEPH SANTIAGO; GAIL CAMERON; DEBRA

ARMITAGE

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 1:01-CV-02259)

Honorable Joseph E. Irenas, District Judge

Argued March 9, 2010

BEFORE: MCKEE, BARRY, and

GREENBERG, Circuit Judges

(Filed: May 4, 2010)

William H. Buckman (argued)

Surinder K. Aggarwal

Lilia Londar

William H. Buckman Law Firm

110 Marter Avenue

Suite 209

Moorestown, NJ 08057

Joseph M. Pinto

Polino and Pinto

720 East Main Street

Suite 1C

Moorestown, NJ 08057

Attorneys for Appellant

Catherine Tamasik (argued)

Jason D. Attwood

DeCotiis, Fitzpatrick, Cole & Wisler

500 Frank W. Burr Boulevard

2

Glenpointe Centre West, Suite 31

Teaneck, NJ 07666

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge

I. INTRODUCTION

This matter comes on before this Court on an appeal

from an order of the District Court entered on September 30,

2008,1 granting Appellees’ motion for summary judgment and

denying the request of Appellant, John Oliva, for leave to

amend further his already twice amended complaint. See

Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643 (D.N.J.

2008). Though the Court denied summary judgment to a

remaining defendant, when Oliva subsequently dismissed the

case against that defendant the order of September 30, 2008,

became final and thus we have jurisdiction over his appeal.

For the reasons that follow, we will affirm the order of the

District Court.

1

The notice of appeal incorrectly states that the District Court

entered its order on September 30, 2009.

3

II. BACKGROUND

The Division of State Police in the New Jersey

Department of Law and Public Safety employed Oliva as a

state trooper from November 1998 until his suicide on

October 1, 2002. Oliva’s complaint in this action alleged that

during this four-year period, both while he was on active duty

and while he was on leave, numerous individuals connected

with the State Police harassed him in reaction to his

objections to what he believed was a State Police practice to

profile motorists when making traffic stops, i.e., “the practice

of using stereotypes to select which motorists a trooper will

stop, detain and search.” Supp. App. at 16. Oliva’s complaint

alleged that the harassment involved a variety of actions

including unjustified transfers of his duty station, unjustified

negative performance notices, misconduct investigations,

adverse medical recommendations, threatening notes, and

verbal confrontations.

Though Oliva personally filed the original complaint in

this case in the District Court, since the time of his death his

estate has prosecuted the action. Nevertheless, as a matter of

convenience we have referred and will continue to refer to

Oliva as though he has been the sole plaintiff. Though we set

forth the facts at some length, the District Court in its

September 30, 2008 opinion accompanying the order from

which Oliva appealed, set forth the facts in greater detail. The

facts as we describe them either are undisputed or, if disputed,

are recited in the way most favorable to Oliva as the non-

movant on the summary judgment motion.

4

A. Oliva’s Tenure as an Active-Duty State Trooper

Oliva joined the New Jersey State Police following a

successful ten-year career as a Marine, corrections officer,

and municipal police officer. Upon Oliva’s graduation from

the State Police Academy in November 1998, the State Police

assigned him to the Bellmawr Station, Troop A. Consistently

with the practice of assigning new recruits with a “Trooper

Coach,” the State Police paired Oliva at Bellmawr with a

trooper named Patrick Gallagher. Oliva alleges that

Gallagher required him to engage in racial profiling of

motorists when making traffic stops. Oliva complained about

Gallagher to his sergeant, Manny Gordillo, but did not state

specifically that Gallagher was instructing him to profile

because Oliva thought this already “was known to everybody

at the station.” App. at 405. Oliva believed that his

complaint to Gordillo gained him a reputation at Bellmawr as

a “salty” recruit, i.e., someone who didn’t play by the rules or

have respect for senior officers, and charged that after he

made the complaint other troopers literally began placing salt

in his station mailbox.

The State Police transferred Oliva to the Woodbine

Station, Troop A, in May 1999, and placed him under the

supervision of Appellee Edward Sokorai. On August 22 and

November 27, 1999, Sokorai issued Oliva negative

performance notices reflecting Sokorai’s assessment of

Oliva’s performance of his traffic enforcement duties.

Shortly after receiving the second such notice, Oliva arrived

for a shift at Woodbine where Appellee Bruce Myers met him

and handed him an anonymous note that read:

5

HEY OLIVA, EVERYONE AROUND HERE

IS GETTING SICK AND TIRED OF YOUR

SHIT. WHETHER YOU LIKE IT OR NOT,

YOU’RE STILL A RECRUIT. IF YOU

DON’T LIKE IT YOU CAN GO BACK TO

YOUR OLD DEPARTMENT WHERE YOU

CAME FROM. YOU BETTER START

DOING WHAT YOU’RE TOLD TO DO.

WE’RE ALL WATCHING YOU OLIVA.

App. at 624. Oliva contends that another trooper who no

longer is a party to this action acknowledged writing the note.

In early 2000, the State Police transferred Oliva from

the Woodbine Station to another Troop A station at Buena

Vista. Appellee Glenn Miller, the Commander of Troop A,

was responsible for the transfer decision. Oliva’s transfers

from Bellmawr to Woodbine and from Woodbine to Buena

Vista were consistent with State Police practice at the time to

assign a newly appointed trooper to his or her first two duty

stations for approximately six months at each station and then

to reassign the new trooper to a third station for an indefinite

period determined by administrative needs and the trooper’s

preference.2

Oliva claims that his supervisor at Buena Vista, Albert

Waldron, taught him about racial profiling and expected him

2

Though we indicate that the initial transfers were in accordance

with policy at the time, we are not implying that the State Police

has changed the policy as we do not know the current policy.

6

to engage in that practice.3 Oliva asserts that when he

objected to racial profiling, Waldron threatened to give him a

negative performance evaluation.4 According to Oliva, in

April 2000 Waldron accused Oliva of not making enough

arrests, an accusation that led Oliva to respond that “I am not

gonna go sit . . . and profile.” App. at 449. Approximately

one week later, Waldron issued Oliva a negative performance

evaluation, which Oliva challenged by writing a letter

addressed to SFC P. Callen, Waldron’s superior in the State

Police chain-of-command, raising concerns about profiling

and arguing that Waldron’s evaluation was unjustified. After

speaking with Oliva, Callen ordered Waldron to write a new

evaluation giving Oliva the highest possible marks in all

applicable criteria.

The State Police retransferred Oliva to the Woodbine

Station in August 2000. According to Commander Miller, the

State Police made this transfer as an aspect of a personnel

3

Oliva asserted claims under 42 U.S.C. § 1981 and the New

Jersey Conscientious Employee Protection Act against Waldron

that were his only claims that survived the District Court’s

September 30, 2008 summary judgment decision and order.

Subsequently, Oliva withdrew those claims voluntarily, and

Waldron is not a party to this appeal.

4

In the New Jersey State Police, there is a distinction between a

performance “notice,” which relates to a trooper’s conduct in a

discrete incident, and a performance “evaluation” such as the

one that Waldron gave, which evaluates a trooper’s performance

over an extended period.

7

rearrangement to fill a vacant position as well as to reduce the

commute times of several troopers. The transfer did not

significantly affect Oliva’s commute time as his residence

was approximately equidistant from the Buena Vista and

Woodbine Stations. Miller claims to have been unaware of

Oliva’s previous problems at Woodbine when he approved

the transfer.

Approximately one month after Oliva returned to

Woodbine, a fellow trooper approached him and accused him

of anonymously posting offensive messages on an unofficial

State Police website called “Troop Rumblings.” Oliva

responded by denying responsibility for the postings.

Appellees troopers Gary Austin and Horace McFarland

subsequently questioned Oliva about these postings for over

an hour in a closed door meeting. Thereafter, Appellee Ray

Lupu, Oliva’s supervisor, met with Oliva and told him that, as

a result of the internet postings, station personnel would shun

him, his locker “would be in the parking lot by now” if the

Lords of Discipline acted as they had in the past, and

Commander Miller was “pissed” at him and would seek his

transfer. App. at 572. The reference to the Lords of

Discipline was to a sub rosa organization within the State

Police which, allegedly, at the time harassed and retaliated

against troopers who failed to conform with what the troopers

involved with the Lords of Discipline believed were the

established practices and culture of the State Police.

On October 9, 2000, Oliva reported to work to find his

locker vandalized and copies of an anonymous note placed in

the locker and taped to a nearby toilet seat. The note read:

8

HEY ‘THERE BIG FUCKIN DADDY’ TAKE

YOUR SALTY FUCKIN ATTITUDE BACK

TO THE LOCAL DEPTS. WE’RE ALL

WATCHING YOU OLIVA. FILL OUT A

TRANSFER REQUEST, IT’S TIME YOU

MOVED ON

App. at 625. The following day, Lupu issued Oliva a negative

performance notice for failing to report properly at the

Woodbine Station that he had attended a municipal court

proceeding on his off-duty time.

Several days later, Oliva received another negative

performance notice for “fail[ing] to get the appropriate rest

before arriving for work.” App. at 634. This notice was the

result of an accusation by Appellee trooper James Harris that

Oliva had been sleeping on the job during a midnight shift at

the Woodbine Station, a charge that Oliva denied.

Subsequently, Oliva received a third anonymous note, which

read:

Boy ....... I [t]hink I’ll come in and ‘work’ an

overtime, and go to sleep in the back room

cause I’m all caught up. Move on there tough

guy, you still have Bridgeton, Port [Norris] and

Woodstown.5

5

Bridgeton, Port Norris, and Woodstown are stations within

Troop A.

9

App. at 626. The record does not disclose who was

responsible for the two anonymous notes Oliva received

during his second stint at the Woodbine Station. Shortly after

receiving the last note, Oliva took sick leave for a back injury

he sustained while off-duty.

B. The Internal Investigations

While on leave, Oliva spoke with State Police senior

officers about the difficulties he had been experiencing at

work. On December 27, 2000, Appellees William Meddis

and Robin Blaker of the State Police’s Quality Control and

Adjudication Bureau interviewed Oliva regarding his

allegations of harassment.6 Oliva described the alleged

harassment he experienced at the Woodbine and Buena Vista

stations, but at no point raised the issue of racial profiling or

discussed any event at the Bellmawr Station. When Oliva

mentioned that he was storing one of the anonymous notes in

a safe-deposit box, Meddis ordered him to relinquish the note

for analysis and fingerprint testing.

6

The State Police’s Internal Affairs unit is called the Office of

Professional Standards and is divided into the Quality Control

and Adjudication Bureau and the Internal Affairs Investigation

Bureau. The Quality Control and Adjudication Bureau

processes all incoming misconduct complaints and decides

which complaints merit further investigation, and the Internal

Affairs Investigation Bureau investigates misconduct

complaints.

10

Following the December 2000 interview, Meddis

recommended that the State Police transfer Oliva from the

Woodbine Station in order to prevent further harassment.

Despite an offer apparently made to Oliva to transfer him

outside of Troop A to the Bass River Station in Troop B,

Appellee Carson Dunbar, then the S tate Police

Superintendent, ordered Oliva transferred to the Tuckerton

Station, which was near the Bass River Station but

nevertheless within Troop A. According to Dunbar, he “did

not want to start a precedent that if somebody chooses, they

can just basically decide they’re going to go to this station or

that station.” App. at 694. The State Police transferred Oliva

to the Tuckerton Station on January 4, 2001, but he never

reported for active duty at that station as he instead took stress

leave from the State Police.

Following Oliva’s interview with Meddis and Blaker,

the Internal Affairs Investigation Bureau (“IAIB”) launched

an investigation led by Appellees Kenneth Schairer and John

Zulawski into Oliva’s allegations. After unsuccessfully

attempting to contact Oliva for several days to pick up the

anonymous note in his possession, on January 5, 2001,

Schairer and Zulawski located Oliva at his gym where they

followed him into the sauna and questioned him about the

note. Oliva denied knowing the location of the note, but

subsequently his attorney with his knowledge gave the note to

the IAIB.

On January 4, 2001, one day prior to the meeting at the

gym, Oliva requested permission from the State Police to

speak to the media “[b]ecause of the refusal of the State

Police to deal with the harassment [he] was receiving and

11

upon recommendation of counsel.” App. at 574-75. On

January 23, 2001, the Philadelphia Inquirer, a newspaper

widely circulated in southern New Jersey where the stations

we have mentioned are located, published an article entitled

“N.J. trooper: Even now, fighting profiling costs him.” App.

at 736-38. The article covered the topics Oliva had discussed

with Meddis and Blaker in the December 2000 meeting, and

also described Oliva’s encounter with Schairer and Zulawski

on January 5, 2001. Moreover, it described in detail Oliva’s

complaints about being instructed to engage in racial profiling

of motorists while at the Bellmawr and Buena Vista Stations.

Additionally, the article discussed allegations that other

troopers made regarding the activities of the Lords of

Discipline.

After the article’s publication, the State Police

expanded the IAIB investigation of Oliva’s allegations into a

more general inquiry of the Lords of Discipline.

Superintendent Dunbar asked Appellee Gail Cameron 7 to lead

the investigation because she previously had investigated the

Lords of Discipline in connection with another trooper’s

complaint. The State Police also brought Appellee Debra

Armitage into the investigation at this time.

On May 11, 2001, Oliva filed his initial complaint

under both federal and New Jersey law in this action in the

District Court alleging, inter alia, that he had been harassed in

7

The District Court spelled Cameron’s first name as “Gayle.”

We are using “Gail” to be consistent with the caption of this

case.

12

retaliation for refusing to engage in racial profiling.8 At about

the same time Oliva filed a parallel complaint with the

Department of Law and Public Safety’s Equal Employment

Opportunity Affirmative Action Office. That office, however,

advised Oliva that it would not pursue the complaint and,

instead, forwarded Oliva’s complaint to the IAIB for its

consideration in the ongoing internal investigation.

Because Oliva had not discussed his racial profiling

allegations with the IAIB, Cameron and Armitage scheduled

an interview with Oliva on December 10, 2001, to deal with

that subject. At the interview, Oliva described how Gallagher

and Waldron had instructed him to stop, detain, and search

motorists without probable cause, and stated that he had

complained about such instructions. Oliva denied actively

participating in searches that he thought were illegal, but

admitted to falsifying police reports at the Bellmawr Station

pursuant to Gallagher’s directions.

On May 21, 2002, Appellee Joseph J. Santiago, who

by then had become the State Police Superintendent, sent a

letter to Oliva that read in its entirety:

Pursuant to the agreement between the State of

New Jersey and the State Troopers Fraternal

Association, I am hereby putting you on notice

that I am contemplating not reappointing you to

8

We describe Oliva’s claims as set forth in the complaint as

amended later in more detail below.

13

the Division of State Police upon the expiration

of your present enlistment.

App. at 750. According to Santiago, he wrote the letter in

furtherance of a State Police effort to require as many

employees on leave as possible either to return to duty or be

removed from employment so that the State Police could

appoint replacements for them.

Following the December 2001 interview, Armitage

received approval to launch a separate investigation into

Oliva’s allegations of racial profiling in which Gallagher was

the principal, a status that treated him as the target of the

inquiry. Armitage then identified a random sampling of ten

motorists that Gallagher and Oliva had stopped while they

had worked together at Bellmawr, and Armitage was able to

contact and interview four of these motorists. These motorists

gave accounts of their traffic stops suggesting that Oliva was

at least as culpable as Gallagher in conducting illegal stops,

searches, and seizures. Two of the these motorists submitted

to polygraph examinations with respect to their statements

regarding the stops and on July 5, 2002, Armitage received

results from the examinations indicating that their accounts

had been truthful.

On July 17, 2002, Armitage recommended that the

State Police change Oliva’s status in the investigation from

complainant to principal. On August 12, 2002, a letter was

delivered to Oliva informing him of the change in his status in

the investigation and requesting that he consent to an

interview as a principal. Oliva contacted Armitage on August

16, 2002, indicating he would schedule that interview after

14

consultation with his attorney. When Armitage did not hear

back from Oliva for two weeks, she ordered that the

investigation be considered complete at that point.

Nevertheless, the investigation continued because Oliva

subsequently contacted Armitage who interviewed him on

September 17, 2002. When confronted with the motorists’

statements, Oliva admitted that, despite his previous denials,

he had conducted post-arrest searches that he considered

illegal.

In an August 30, 2002 document titled “Internal

Investigation Allegations & Conclusions,” Armitage

substantiated in part the allegations against Oliva and

Gallagher. Supp. App. at 295-301. In particular, Armitage

substantiated the allegations that Oliva purposely had

provided false information in his December 10, 2001

interview by stating he never engaged in any illegal motor

vehicle searches with Gallagher, and that both Oliva and

Gallagher had falsified investigation reports. After being

informed of Armitage’s conclusions, Superintendent Santiago

suggested that, in exchange for testifying against Gallagher,

the State Police offer Oliva the opportunity to resign instead

of being terminated. There is no indication in the record of

which we are aware that anyone in the State Police

communicated either the results of the investigation or

Santiago’s proposal to Oliva before his suicide on October 1,

2002.9

9

Even if Oliva became aware of the results of the investigation

and/or Santiago’s proposal our result on this appeal would not

be changed.

15

C. Oliva’s Medical History

After Oliva took stress leave in January 2001, Appellee

Dr. Donald Izzi,10 the Managing Physician of the State

Police’s Medical Services Unit, directed him to undergo

physical and psychological evaluations at the Environmental

and Occupational Health Science Institute (“EOSHI”), an

independent medical center, to determine his fitness for duty.

After seeing Oliva, EOSHI transmitted a written evaluation to

the Medical Services Unit stating that he was fit for duty.

Thereafter, Izzi met with Oliva, provided him with a copy of

EOSHI’s report, and recommended that he return to full duty

status and report for duty at the Tuckerton Station on the

morning of August 13, 2001.

Oliva subsequently met with State Police contract

physician Dr. Robert Carty for a duty status examination, but

failed to disclose Izzi’s recommendation to Carty. Based on a

belief that Oliva was using alcohol to excess, Carty

recommended that Oliva remain on sick leave. After

becoming aware of Carty’s conclusions regarding Oliva’s

alcohol use and receiving additional information from Oliva’s

private doctors who indicated that Oliva should not return to

duty, Izzi sent a letter to Oliva on September 28, 2001,

continuing Oliva in a “temporary off duty capacity” to allow

him time to complete his medical recuperation. App. at 1035.

10

Though Oliva’s initial complaint did not name Izzi, Oliva

added Izzi as a defendant in his first amended complaint that he

filed on September 5, 2001.

16

III. PROCEDURAL HISTORY

Oliva amended his complaint twice and thus we are

concerned with his second amended complaint filed in the

District Court on February 3, 2003. This second amended

complaint asserted 16 claims under federal civil rights law

and New Jersey law against the State of New Jersey and over

20 individual defendants in their individual or official

capacities most of whom we have identified in setting forth

the background of the case. After earlier proceedings resulted

in the dismissal of some of his claims and after extensive

discovery, Appellees moved for summary judgment on

January 15, 2008, on Oliva’s remaining claims under 42

U.S.C. §§ 1981, 1983, 1985(3), and 1986, the New Jersey

Conscientious Employee Protection Act (“CEPA”), N.J. Stat.

Ann. § 34:19-1 et seq. (West 2000), and the New Jersey Law

Against Discrimination (“LAD”), N.J. Stat. Ann. § 10:5-1 et

seq. (West 2002). In response to the summary judgment

motion, Oliva sought to amend his complaint a third time to

include a First Amendment retaliation claim under 42 U.S.C.

§ 1983. In a comprehensive opinion and order dated

September 30, 2008, the District Court granted Appellees’

motion for summary judgment on all of Oliva’s remaining

claims against Appellees, and denied Oliva leave to amend his

complaint to include the First Amendment claim. Estate of

Oliva, 579 F. Supp. 2d 643. This appeal followed.

IV. JURISDICTION AND STANDARD OF REVIEW

17

The District Court had subject matter jurisdiction over

Oliva’s federal claims pursuant to 28 U.S.C. § 1331, and

supplemental jurisdiction over Oliva’s New Jersey state law

claims pursuant to 28 U.S.C. § 1367. We have jurisdiction

over the order for summary judgment pursuant to 28 U.S.C. §

1291. We exercise plenary review over a grant of summary

judgment and apply the same standard the District Court used.

Smith v. Johnson & Johnson, 593 F.3d 280, 284 (3d Cir.

2010). Thus, we can affirm only “if the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the [Appellees as] the movant[s are] entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c)(2). We review the

District Court’s order denying Oliva leave to amend his

complaint for an abuse of discretion. In re Merck & Co. Secs,

Derivative & ERISA Litig., 493 F.3d 393, 399 (3d Cir. 2007).

V. DISCUSSION

On appeal, Oliva challenges only the aspects of the

District Court’s decision granting summary judgment against

him on his claims under 42 U.S.C. §§ 1981 and 1985(3), the

CEPA, and the LAD, and denying leave to amend his

complaint to include a claim for First Amendment retaliation

under 42 U.S.C. § 1983. We consider each issue in turn.

A. Oliva’s Claims under section 1981

18

Oliva first argues that the District Court erred by

dismissing his claim under 42 U.S.C. § 1981, asserting “that

Appellees retaliated against Oliva [by] harassing him and

creating a hostile work environment due to his complaints of

racial profiling.” 11 Appellant’s br. at 34. Section 1981(a)

provides in relevant part:

All persons within the jurisdiction of the United

States shall have the same right in every State

and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full

and equal benefit of all laws and proceedings

for the security of persons and property as is

enjoyed by white citizens, and shall be subject

to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no

other.

Ordinarily, to establish a basis for relief under section 1981 a

plaintiff must show “(1) that he belongs to a racial minority;

(2) an intent to discriminate on the basis of race by the

defendant; and (3) discrimination concerning one or more of

11

The District Court indicated that it was not clear whether Oliva

had brought a hostile work environment claim that was

independent of his retaliation claim. The Court stated, however,

that “[e]ven if such a claim were asserted, it would fail as

[Oliva] does not allege that [he] was discriminated against on

the basis of his own race.” Estate of Oliva, 579 F. Supp. 2d at

664 n.55 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 63, 126 S.Ct. 2405, 2412 (2006)).

19

the activities enumerated in § 1981.” See Pryor v. Nat’l

Collegiate Athletic Ass’n, 288 F.3d 548, 569 (3d Cir. 2002)

(internal citation and quotation marks omitted). The Supreme

Court, however, has held that section 1981 also encompasses

“the claim of an individual (black or white) who suffers

retaliation because he has tried to help a different individual,

suffering direct racial discrimination, secure his § 1981

rights.” See CBOCS West, Inc. v. Humphries, 553 U.S. 442,

—, 128 S.Ct. 1951, 1958 (2008). In a retaliation case a

plaintiff must demonstrate that there had been an underlying

section 1981 violation. Id.

The record before us would justify a reasonable

factfinder to conclude that Gallagher and Waldron

demonstrated to Oliva how to stop, search, and, in some

cases, arrest motorists without probable cause by reason of

their race.12 Of course, that practice would violate section

1981’s guarantee that all persons are entitled to the same “full

and equal benefit” of the law. See 42 U.S.C. § 1981(a).

When a trooper complains about unjustified racial profiling he

engages in protected activity and, accordingly, Oliva had a

right to complain about such violations without fear of

retaliation.13

12

In fairness to Gallagher and Waldron it should be understood

that we are not making any such finding.

13

Though we are treating the alleged racial profiling in this case

as being unlawful, we are not holding that there never can be a

situation in which there could be lawful profiling on some basis

as that issue is not before us and thus we do not reach it.

20

To maintain a claim for retaliation, Oliva first was

required to establish that he had a prima facie case by

tendering evidence that (1) he engaged in protected activity,

(2) his employer took an adverse employment action against

him, and (3) there was a causal connection between his

participation in the protected activity and the adverse

employment action. Moore v. City of Philadelphia, 461 F.3d

331, 340-41 (3d Cir. 2006).14 In considering the second

element of a prima facie case, the key inquiry is whether the

alleged retaliation “well might have dissuaded a reasonable

worker from making or supporting a charge of

discrimination.” See id. at 341 (quoting Burlington N. &

Sante Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405,

2415 (2006)). The third element of the prima facie case

“identif[ies] what harassment, if any, a reasonable jury could

link to a retaliatory animus.” Id. at 342 (internal citation

omitted). Once a plaintiff establishes a prima facie case, the

burden shifts to the employer to advance a legitimate non-

retaliatory reason for its conduct. If an employer advances

such a reason, a plaintiff then must show that the proffered

reason was a pretext for retaliation. Id.

Oliva alleges he engaged in protected conduct in

November 1998, when he complained to Gordillo about

Gallagher’s behavior during the Trooper Coach program; in

April 2000, when he objected to Waldron about profiling; in

14

Although Moore is a Title VII retaliation case, the same

standard applies in section 1981 retaliation cases. Humphries v.

CBOCS West, Inc., 474 F.3d 387, 403-04 (7th Cir. 2007), aff’d,

553 U.S. 442, 128 S.Ct. 1951 (2008).

21

May 2000, when he complained to Callen about Waldron’s

profiling; on January 23, 2001, when the Philadelphia Inquirer

article was published; and on May 11, 2001, when he filed his

original complaint in this action in the District Court. Thus,

we keep these incidents in mind when writing our opinion and

assume, as do the Appellees, that these incidents qualified as

protected activity.

1. Miller, Dunbar, Armitage, and Cameron

On appeal, Oliva presses most forcefully his section

1981 claims against Miller, Dunbar, Armitage, and Cameron.

Miller was the Commander of Troop A responsible for

transfering Oliva from the Woodbine Station to the Buena

Vista Station in early 2000 and from Buena Vista back to

Woodbine the following August, transfers Oliva asserts

constituted illegal retaliation for his objections regarding

profiling. The District Court rejected Oliva’s claim with

respect to the first transfer because it caused him only a trivial

harm inasmuch as his commute to Buena Vista was only 4.25

miles longer than his commute to Woodbine, and because

there was no evidence in the record that Miller knew or could

have known about Oliva’s racial profiling complaint to

Gordillo, the only protected activity in which Oliva by that

time had engaged.15

15

Oliva contends that both transfers were retaliatory. Though the

District Court focused primarily on the first transfer, its

discussion of whether that transfer was retaliatory incorporated

22

We agree with the District Court on both these points.

To start with Oliva does not explain why the transfer to Buena

Vista was more than a trivial inconvenience. Second, with

respect to a retaliatory motive, Oliva points only to Miller’s

alleged comment that he was “pissed” at Oliva because of the

“Troop Rumblings” incident. Such an offhand remark, made

after both transfers, would not provide a foundation on which

a reasonable factfinder could predicate a finding that the

transfers were in retaliation for Oliva’s complaints about

racial profiling.

Moreover, even if Oliva supplied evidence

demonstrating that he had established a prima facie case of

retaliation by pointing to the transfers, Appellees put forth

legitimate non-retaliatory reasons for both transfers that Oliva

has failed to rebut. Appellees produced evidence that the

early 2000 transfer to the Buena Vista Station was consistent

with State Police practice of assigning new recruits to their

first two stations for approximately six months each and then

to a third station for an indefinite period of time.

Furthermore, Miller explained that the August 2000 transfer

was part of a larger personnel movement undertaken to fill a

vacancy and reduce the commutes of several troopers. There

is no evidence in the record showing that Miller’s explanation

was untrue. Accordingly, we will affirm the District Court’s

facts pertaining to the second transfer, namely, that the transfer

resulted from the movement of other troopers among stations so

that those troopers could be stationed closer to their homes. In

the circumstances, we are treating his complaint as alleging that

both transfers were made in violation of section 1981.

23

order granting summary judgment to Miller on Oliva’s section

1981 claim.

Oliva alleges that Superintendent Dunbar retaliated

against him by deciding in January 2001 to transfer him from

the Woodbine Station to the Tuckerton Station, which Oliva

describes as “the epicenter of [Lords of Discipline] activity,”

instead of to the Bass River Station in Troop B as Oliva

requested. Appellants’ br. at 47. The District Court

determined that even if the transfer to Tuckerton was a

materially adverse employment action, no reasonable

factfinder could find a causal connection between that transfer

and Oliva’s complaints about racial profiling because there

was no evidence that Dunbar knew of Oliva’s complaints.

Even assuming that a trier of the fact could infer that

Dunbar knew of Oliva’s complaints, the case against Dunbar

could not survive his summary judgment motion for, as the

District Court held, Dunbar put forward a legitimate non-

discriminatory reason for the transfer that Oliva failed to

rebut. Specifically, Dunbar stated that he denied Oliva’s

request to go to Bass River because he did not want to

establish a precedent that any trooper simply could choose to

transfer to any station that he or she desired. Inasmuch as we

do not find any error in the District Court’s conclusions, we

will affirm the grant of summary judgment to Dunbar on

Oliva’s section 1981 claims.

Oliva claims that Armitage and Cameron retaliated

against him by changing his status in the IAIB investigation

from complainant to principal. By the time of this change the

Philadelphia Inquirer had published the article regarding

24

racial profiling, Oliva had filed this action and his

administrative complaint, and Armitage and Cameron had

interviewed Oliva regarding his racial profiling allegations.

Thus, Armitage and Cameron plainly knew of Oliva’s racial

profiling complaints when there was a change in Oliva’s

status in the investigation. In recognition of the reality that a

concern about becoming targeted in an internal investigation

by making a complaint about discrimination could dissuade a

reasonable person from making such a complaint, the District

Court determined that a reasonable factfinder could conclude

Oliva had established a prima facie case of retaliation against

Armitage when she changed his status in the investigation.

The Court concluded, however, that Oliva had not made a

prima facie case against Cameron because Cameron had not

been involved significantly in the decision to designate Oliva

as a principal in the investigation. We agree with the Court

on both these points.

But the District Court’s initial conclusion for Oliva

with respect to his claim against Armitage did not help him

for the Court held that Armitage had overcome Oliva’s prima

facie case by advancing legitimate non-discriminatory reasons

for naming Oliva as a principal in the investigation. In this

regard, we point out that by any conceivable standard it was

perfectly appropriate for Armitage to make this designation

after Oliva admitted to falsifying police reports and to being

present at illegal stops and searches that Gallagher conducted.

Moreover, Armitage made this designation after interviewing

various motorists involved in the questionable stops, two of

whom submitted to polygraph examinations, the results of

which indicated that they had been truthful in giving accounts

implicating Oliva in illegal stops and searches. The Court

25

quite reasonably noted that it was significant that Armitage

made her decision with respect to Oliva’s status shortly after

the results of the polygraph examinations became available to

her.

In an attempt to paint these proffered reasons for the

change of his status in the investigation from complainant to

principal as pretextual, Oliva notes that (1) he was not

informed of his designation as principal until one month after

the decision to change his status, a delay that contravened

State Police policy that a principal in an internal investigation

be advised of the charges against him or her in advance of the

formal designation; (2) the accounts of the interviewed

motorists were implausible because they contradicted Oliva’s

own accounts; and (3) he was not interviewed as a principal

until September 2002, after the investigation formally had

been closed. But in light of Oliva’s at times conflicting

admissions to the IAIB investigators and the circumstance

that his failure to contact the investigators led to the delay of

his interview as a principal, a reasonable inference cannot be

drawn that the decision naming him as a principal likely was

motivated by a desire to retaliate against him for complaining

about racial profiling. Accordingly, we will affirm the

District Court’s grant of summary judgment to Armitage and

Cameron on Oliva’s section 1981 claims.

2. Izzi

Oliva alleges that Izzi retaliated against him by

determining he was fit to return to full duty status in August

26

2001 despite other physicians’ contrary recommendations.

Inasmuch as Izzi made his recommendation after Oliva’s

allegations of racial profiling had become widely known, the

District Court assumed without deciding that Oliva had

established a prima facie case of section 1981 retaliation

against Izzi. But the Court then went on to find that Izzi’s

proffered reason for the recommendation could not have been

a pretext for retaliation, a finding with which we agree.

The record shows that Izzi made his recommendation

based on the results of the independent EOSHI evaluations.

Izzi did not initially credit Oliva’s private physicians’

opinions that he should not return to duty because Izzi

believed that treating physicians often act as patient advocates

and thus are not objective. Izzi made his subsequent decision

to continue Oliva in an off duty capacity because of new

information that he received from Dr. Carty and the private

physicians including Dr. Carty’s belief that Oliva was using

alcohol excessively. Nevertheless, as evidence of pretext,

Oliva argues that Izzi ignored serious concerns related to

Oliva’s medical state raised in the EOSHI report. Yet these

concerns cannot undermine Izzi’s recommendation inasmuch

as the evaluators who compiled the report did not believe that

the concerns prevented Oliva from returning to active duty.

We therefore will affirm the District Court’s grant of

summary judgment to Izzi on this claim.16

16

Oliva also notes that Izzi’s file on Oliva contained press

coverage of Oliva’s whistle-blowing activities, “suggesting

Izzi’s ‘concern’ for Oliva had little to do with medical

treatment,” and that Izzi maintained the file for years after

27

3. The Remaining Appellees

The District Court found that Oliva’s section 1981

claims against Sokorai, Meyers, Austin, MacFarland, Lupu,17

Schairer, and Zulawski failed because no reasonable

factfinder could conclude that a desire to retaliate against

Oliva for engaging in protected activity motivated these

Appellees’ actions. In particular, the District Court did not

find any evidence that any of these Appellees were aware of

Oliva’s suicide. Appellant’s br. at 52. But this evidence would

not allow a reasonable factfinder to conclude that Izzi’s

recommendation was more likely motivated by a desire to

retaliate against Oliva than by Izzi’s medical opinion, based on

the EOSHI report. Indeed, it is a general business and

professional practice to maintain files in situations that a

reasonable observer can see are likely to lead to litigation and it

is understandable that Izzi kept Oliva’s file close at hand. In

fact, failure to maintain such files sometimes leads to spoliation

claims. Moreover, it is logical to include press coverage among

the retained documents as such materials might include germane

information relating to a potential legal action. We also point

out that a regulation of the New Jersey Board of Medical

Examiners required Izzi to maintain any treatment record of

Oliva for a period of seven years from the date of the most

recent record entry. N.J. Admin. Code § 13:35-6.5 (2010).

17

The District Court pointed out that Lupu “issued three negative

performance notices to Oliva . . . [but] there is no evidence in

the record, nor does [Oliva] argue, that those notices were

unwarranted.” Estate of Oliva, 579 F. Supp. 2d at 672.

28

Oliva’s complaints about racial profiling while he was

stationed at the Bellmawr and Buena Vista Stations. On

appeal, Oliva does not point to facts in the record

undermining this conclusion that would permit the drawing of

a reasonable inference that a retaliatory animus motivated

these Appellees’ actions. Accordingly, we will affirm the

Court’s dismissal of Oliva’s section 1981 claims against these

Appellees. We also will affirm the District Court’s grant of

summary judgment on Oliva’s section 1981 claims in favor of

the remaining Appellees as Oliva does not present any

arguments on appeal that challenge the Court’s findings with

respect to these Appellees.

B. Oliva’s Claims under section 1985(3)

Oliva argues that Appellees conspired to violate his

civil rights in contravention of 42 U.S.C. § 1985(3). “Section

1985(3) permits an action to be brought by one injured by a

conspiracy formed ‘for the purpose of depriving, either

directly or indirectly, any person or class of persons of the

equal protection of the laws, or of equal privileges and

immunities under the laws.’” Thomas v. Independence Twp.,

463 F.3d 285, 298 (3d Cir. 2006) (quoting Farber v. City of

Paterson, 440 F.3d 131, 134 (3d Cir. 2006)). To survive a

motion for summary judgment on his section 1985(3) claim,

Oliva first was required to put forward facts that would allow

a reasonable factfinder to conclude that Appellees formed a

conspiracy to deprive him of his rights. See Farber, 440 F.3d

at 134 (citing United Bhd. of Carpenters & Joiners v. Scott,

463 U.S. 825, 828-29, 103 S.Ct. 3352, 3355-56 (1983)). In

29

the present context these facts would need to show that there

was a conspiracy to harass and retaliate against him for

complaining about racial profiling. See Lake v. Arnold, 112

F.3d 682, 685 (3d Cir. 1997) (“[T]he reach of section 1985(3)

is limited to private conspiracies predicated on ‘racial, or

perhaps otherwise class based, invidiously discriminatory

animus.’”) (quoting Griffin v. Breckenridge, 403 U.S. 88,

102, 91 S.Ct. 1790, 1798 (1971)).

Oliva argues that “every instance of harassment and

retaliation was part and parcel of the [New Jersey State

Police]’s plan to show Oliva that his criticism of State Police

practices would not be tolerated.” Appellant’s br. at 59-60.

We already have concluded that the record fails to provide a

basis for a reasonable inference that any of the actions that

Miller, Dunbar, Sokorai, Armitage, Cameron, Myers, Austin,

MacFarland, Lupu, Schairer, Zulawski or any of the other

Appellees took were in retaliation against Oliva for

complaining about racial profiling. The record thus cannot

support the drawing of a reasonable inference that any of the

Appellees took these alleged actions in furtherance of a

conspiracy to retaliate against Oliva for complaining about

racial profiling. We therefore will affirm the District Court’s

grant of summary judgment to Appellees on Oliva’s claims

under section 1985(3).

C. Oliva’s Claims under the CEPA

Oliva also brings claims under the New Jersey CEPA

which provides in relevant part that:

30

An employer shall not take any retaliatory

action against an employee because the

employee . . . [o]bjects to, or refuses to

participate in any activity, policy or practice

which the employee reasonably believes. . . is in

violation of a law . . . .

N.J. Stat. Ann. § 34:19-3(c)(1). As the District Court

observed, the elements required to prove a CEPA claim

mirror those required to prove a retaliation claim under

section 1981. Estate of Oliva, 579 F. Supp. 2d at 684.

Therefore, Oliva’s failure either to put forth evidence that a

desire to retaliate against him for his complaints about racial

profiling motivated Appellees or that their stated reasons for

their actions were a pretext for retaliation dooms Oliva’s

CEPA claims. See Dzwonar v. McDevitt, 828 A.2d 893, 900

(N.J. 2003); Fleming v. Correctional Healthcare Solutions,

Inc., 751 A.2d 1035, 1041 (N.J. 2000). Accordingly, we will

affirm the District Court’s grant of summary judgment to

Appellees on these claims.

D. Oliva’s Claims under the LAD

Oliva pled additional state law claims pursuant to the

New Jersey LAD for retaliation and hostile work

environment. The District Court found that the CEPA’s

waiver provision barred this claim. That provision recites

that:

31

. . . the institution of an action in accordance

with [CEPA] shall be deemed a waiver of the

rights and remedies available under any other

contract, collective bargaining agreement, State

law, rule or regulation or under the common

law.

N.J. Stat. Ann. § 34:19-8. The New Jersey Supreme Court

has construed this provision to preclude a litigant who has

instituted a CEPA claim either from pursuing a separate state

law claim for retaliatory discharge, or any other state law

claim that requires the same proofs as those needed to satisfy

a CEPA claim. See Young v. Schering Corp., 660 A.2d 1153,

1160-61 (N.J. 1995). “It is beyond dispute that the

framework for proving a CEPA claim follows that of a LAD

claim.” Ivan v. County of Middlesex, 595 F. Supp. 2d 425,

466 (D.N.J. 2009) (quoting Donofry v. Autotote Sys., Inc.,

795 A.2d 260, 269 (N.J. Super. Ct. App. Div. 2001)).

Because Oliva grounds his LAD claims on allegations of

retaliation, the CEPA’s waiver provision precludes their

prosecution.

E. Leave to Amend the Complaint

In opposition to Appellees’ motion for summary

judgment, Oliva sought for the first time to amend his

complaint to include a claim for First Amendment retaliation

under 42 U.S.C. § 1983. The District Court denied Oliva

leave to amend his complaint to include this claim because at

the time of the motion for summary judgment, the case had

32

been pending in the Court for more than seven years, Oliva

already had amended his complaint twice, the presence of a

potential First Amendment retaliation claim long had been

apparent, and Appellees would be prejudiced by allowing an

amendment. Estate of Oliva, 579 F. Supp. 2d at 679.

Federal Rule of Civil Procedure 15(a)(2) provides that

a court freely should grant leave to amend a complaint when

justice so requires. Nevertheless, a district court may exercise

its discretion to deny leave to amend a complaint in situations

in which the plaintiff has delayed seeking leave to amend if

the delay “is undue, motivated by bad faith, or prejudicial to

the opposing party.” Bjorgung v. Whitetail Resort, LP, 550

F.3d 263, 266 (3d Cir. 2008) (citing Adams v. Gould, 739

F.2d 858, 864 (3d Cir. 1984)). Delay is “undue” when it

places an unwarranted burden on the court or when the

plaintiff has had previous opportunities to amend. Id.

Irrespective of whether Appellees would have suffered

prejudice from Oliva’s late assertion of a First Amendment

claim, Oliva’s delay in seeking leave to amend was undue.

The presence of a potential First Amendment retaliation claim

was or should have been apparent to him from at least the

time that he filed his second amended complaint on February

3, 2003. Moreover, he does not justify his delay in seeking to

add such a claim until after Appellees filed their motion for

summary judgment on January 15, 2008. In these

circumstances, we cannot say that the District Court abused

33

its discretion by denying Oliva leave to amend to assert a First

Amendment claim.18

VI. CONCLUSION

John Oliva’s experience in the New Jersey State Police

was undoubtedly negative, and his story is tragic. Yet we

cannot find that he has a right to relief unless he can establish

that his various statutory causes of action can be sustained

according to their requirements or establish that the District

Court abused its discretion in denying him leave to amend his

complaint. He has not done so and thus this case must fail.

Therefore, we will affirm the order of the District Court,

entered on September 30, 2008, granting summary judgment

to Appellees and denying Oliva leave to amend his complaint.

18

Because of our procedural disposition of Oliva’s motion to

amend, we need not consider whether Oliva by restating his

claims as alleging a First Amendment violation would have

made them more viable.

34