Fraternal Order of Police, Lodge 1 v. City of Camden

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 15-1963

______________

FRATERNAL ORDER OF POLICE, LODGE 1;

JOHN WILLIAMSON; ANTHONY GALIAZI;

CHARLES J. HOLLAND, also known as CHAD,

Appellants

v.

CITY OF CAMDEN; SCOTT THOMSON, CITY OF

CAMDEN POLICE CHIEF; ORLANDO CUEVAS, CITY

OF CAMDEN POLICE INSPECTOR; LIEUTENANT

JOSEPH WYSOCKI

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-10-cv-01502)

District Judge: Hon. Noel L. Hillman

______________

Argued January 12, 2016

____________

Before: McKEE,∗ Chief Judge, AMBRO and SCIRICA,

Circuit Judges.

(Opinion Filed: November 17, 2016)

______________

∗

Judge Theodore McKee concluded his term as Chief of the

United States Court of Appeals for the Third Circuit on September

30, 2016. Judge Brooks Smith became Chief Judge on October 1,

2016

Gregg L. Zeff, Esq. [ARGUED]

Zeff Law Firm

100 Century Parkway

Suite 305

Mount Laurel, NJ 08054

Attorneys for Appellants

John C. Eastlack, Jr., Esq. [ARGUED]

Daniel E. Rybeck, Esq.

Weir & Partners

457 Haddonfield Road

Suite 420

Cherry Hill, NJ 08002

Attorneys for Appellees

______________

OPINION OF THE COURT

______________

McKEE, Chief Judge.

This case arises from a vigorous dispute between the

Fraternal Order of Police, Lodge 1 as well as certain police

officers (“Plaintiffs”) on one side, and the City of Camden,

New Jersey and certain supervisory police personnel

(“Defendants”) on the other. Plaintiffs claim that the City’s

“directed patrols” policy constitutes an illegal quota system.

Specifically, they allege that the policy violates New Jersey’s

anti-quota law. They also accuse Defendants of illegal

retaliation in violation of New Jersey’s Conscientious

Employee Protection Act (“CEPA”), the First Amendment,

and the Family and Medical Leave Act (“FMLA”).

The district court granted summary judgment to

Defendants on all of Plaintiffs’ claims. For the reasons set

forth below, we will reverse in part, affirm in part, and

remand for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

2

In 2008, Camden implemented a policy known as “directed

patrols” requiring police officers to engage with city residents

even though the residents are not suspected of any

wrongdoing. The announced purpose of the program was to

obtain information about the community while making the

police presence more visible. The City claims that the

purpose was also “to ensure that the maximum amount of

resources was allocated to a proactive crime prevention

strategy and better balance [the Police Department] response

to community-generated calls.”1 The directed patrols

program consisted of “a structured 15-20 minute deployment

into a targeted area to accomplish a specific patrol or crime

reduction function.”2 According to the City, the deployment

was to last no more than 15 to 20 minutes absent extenuating

circumstances. The policy also instructed officers to obtain

personal information, such as the name and address of the

individuals the officers interacted with, if the individuals

agreed to provide it. During any encounter with residents,

officers were also expected to “approach community

members present and inquire about criminal activity or

quality of life issues.”3

According to the City, directed patrols in Camden

were not new. “[T]he difference in the new system was that

directed patrols would be tracked and recorded. Under the

new violence reduction initiative, directed [p]atrols were to be

logged by the [City’s] Computer Aided Dispatch System.”4

In April 2009, Fraternal Order of Police, Lodge 1 filed

a complaint against the City of Camden Police Department

and the Attorney General of the State of New Jersey claiming

Camden had imposed an unlawful quota policy. Officers on

supplemental patrol were expected to conduct a minimum of

twenty-seven directed patrols per shift and officers on regular

patrol were expected to perform a minimum of eighteen.

According to Plaintiffs, failure to comply with these

1

Defendants’ Br. at 1.

2

Id.

3

Id. at 2.

4

Id. at 1.

3

numerical requirements is cause for disciplinary action.

Plaintiffs claim that this results in a quota system of policing

in violation of N.J.S.A. 40A:14-181.2.

The individual plaintiffs Officers Galiazzi, Holland,

and Williamson further allege that Defendants violated CEPA

by retaliating against them because they expressed their

disagreement with the policy. Officers Galiazzi and Holland

claim they were placed on a low-performer list for failure to

comply with the policy. They also contend the retaliation

included transfer from the elite unit, where they had been

assigned, to regular patrol duty with a concomitant pay

decrease. To support this assertion, they point out that

another officer on the low performer list who did not object to

the policy was not transferred.

Officer Williamson, the President of Fraternal Order of

Police, Lodge 1, claims Camden retaliated against him for

leading a protest march to City Hall. Specifically, he asserts

that the City retaliated by bringing disciplinary charges

against him for purportedly accosting a nurse at a hospital and

for failing to report that someone had a thumb drive with

Camden Police Department information.

Plaintiffs also allege other forms of retaliation that

included revocation of vacation time, disciplinary limits on

sick leave, and surveillance by Camden’s Internal Affairs

unit. Officer Holland claims that the restrictions on his sick

leave also violated his rights under the FMLA. Finally,

Plaintiffs assert that Camden’s retaliatory conduct also ran

afoul of the First Amendment because the plaintiff-officers’

objections to the policy constitute protected speech.

New Jersey’s anti-quota law only prohibits numerical

requirements for arrests or citations.5 Thus, Camden’s

primary defense is that the patrols policy at issue here is not

an illegal quota because it does not require a certain number

of arrests or citations, only police-civilian interactions. In any

event, Defendants argue that there was no causal connection

between the plaintiff-officers’ objections and any adverse

5

N.J. Stat. Ann. § 40A:14-181.2 (West).

4

actions, and this precludes any violation of CEPA or

Plaintiffs’ First Amendment rights.

As we noted at the outset, the district court granted

Defendants’ motion for summary judgment in its entirety and

entered judgment against all plaintiffs on all of their claims.

The court concluded that New Jersey’s anti-quota statute is

inapplicable to the patrols policy and thus cannot support

Plaintiffs’ allegations of a quota.6 It dismissed Plaintiffs’

CEPA7 and First Amendment8 claims because it found that,

even viewing the evidence in the light most favorable to

Plaintiffs, they did not establish a causal link between their

whistleblowing activities and the alleged adverse actions.

Finally, the court found Officer Holland failed to establish a

prima facie FMLA violation because he did not show that he

was precluded from using sick leave or that he was otherwise

prejudiced by Camden’s actions.9 This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over Plaintiffs’

federal claims pursuant to 28 U.S.C. § 1331. It had

supplemental jurisdiction to hear their state law claims

pursuant to 28 U.S.C. § 1367. The grant of summary

judgment constitutes a final order. Thus, we have appellate

jurisdiction under 28 U.S.C. § 1291.

We review grants of summary judgment de novo,

applying the same standard as the district court.10

Accordingly, we view the evidence in the light most

favorable to the nonmoving party. In doing so, we refrain

from weighing the evidence and draw all reasonable

inferences in the nonmovant’s favor.11 We will affirm the

6

Fraternal Order of Police, Lodge 1 v. City of Camden, No.

CIV. 10-1502 NLH AMD, 2015 WL 1471800, at *4 (D.N.J.

Mar. 31, 2015).

7

Id. at *7.

8

Id. at *8.

9

Id. at *9.

10

See Montone v. City of Jersey City, 709 F.3d 181, 189 (3d

Cir. 2013).

11

See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

5

district court’s grant of summary judgment only if we

conclude that there is no genuine dispute as to any material

fact when the evidence is so viewed.12

III. DISCUSSION

As summarized at the outset, Plaintiffs claim that the

district court erred in dismissing their claims under (1) New

Jersey’s anti-quota law; (2) CEPA; (3) the First Amendment;

and (4) the FMLA. In addition, they argue that the district

court erred when it ignored hearsay evidence and concluded

that Defendants were entitled to judgment as a matter of law.

We discuss each claim of error in turn.

A. Hearsay

The district court was troubled that some of the

evidence Plaintiffs planned to produce at trial was hearsay.

That evidence consisted of statements by the individual

plaintiffs about statements other officers purportedly made

concerning the alleged retaliation and the nature of the

patrols. This evidence is hearsay. However, the court erred

in refusing to consider it at the summary judgment stage. Its

explanation for concluding that it could not consider hearsay

in ruling on a motion for summary judgment is limited to the

following footnote:

Galiazzi and Holland state in their

depositions that they were told by other

officers that they were transferred and

investigated because of what they wrote

on their counseling forms with regard to

the quota system. The Court cannot

consider this inadmissible hearsay, and

no affidavits or testimony from these

officers is provided as part of the

record.13

Cir. 2004).

12

FED. R. CIV. P. 56(a).

13

Fraternal Order of Police, 2015 WL 1471800, at *5 n.9.

6

We disagree. “[T]he rule in this circuit is that hearsay

statements can be considered on a motion for summary

judgment if they are capable of being admissible at trial.”14

In ruling on a motion for summary judgment, the court need

only determine if the nonmoving party can produce

admissible evidence regarding a disputed issue of material

fact at trial.15 The proponent need only “explain the

admissible form that is anticipated.”16 Thus, in ruling on

Defendants’ motion for summary judgment, the district court

should have limited its inquiry to determining if the out-of-

court statements Plaintiffs were relying on were admissible at

trial, and they clearly were. Plaintiffs identified the out-of-

court declarants—Sergeants Frett, Moffa, and Whitesell, and

Lieutenants Cook and Strang—and noted their availability to

testify.

In arguing to the contrary, Defendants rely in part on

Philbin v. Trans Union Corporation.17 In Philbin we

explained that “Philbin is unable to identify the person who

relayed this information to him . . . . Thus the hearsay

statement by this unknown individual is not ‘capable of being

admissible at trial,’ . . . and could not be considered on a

motion for summary judgment.”18 Here, Plaintiffs identified

the third-party declarants, and nothing suggests that those

declarants would be unavailable to testify at trial. That is all

14

Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267,

1275 n.17 (3d Cir. 1995) (emphasis added); see also Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean

that the nonmoving party must produce evidence in a form

that would be admissible at trial in order to avoid summary

judgment.”); Shelton v. Univ. of Med. & Dentistry of N.J., 223

F.3d 220, 223 n.2 (3d Cir. 2000) (“In this circuit, hearsay

statements can be considered on a motion for summary

judgment if they are capable of admission at trial.”).

15

FED. R. CIV. P. 56(c)(2).

16

FED. R. CIV. P. 56 advisory committee’s note to 2010

amendment.

17

101 F.3d 957 (3d Cir. 1996).

18

Id. at 961 n.1.

7

that was required to survive that aspect of Defendants’ motion

for summary judgment.19

We do not, of course, intend this ruling to control

whether these out-of-court statements will actually be

admitted at trial. That question need not be answered now.

Accordingly, we will reverse the district court’s exclusion of

hearsay in determining if the record allowed Plaintiffs to

survive a motion for summary judgment.

B. New Jersey Anti-Quota Law

Plaintiffs assert that Camden’s patrols policy violates

New Jersey’s anti-quota statute. That statute, entitled

“Quotas for arrests or citations prohibited; use of numbers in

law enforcement officer evaluations,” provides in relevant

part:

a. A State, county or municipal

police department or force . . .

shall not establish any quota for

arrests or citations. The

department or force may,

however, collect, analyze and

apply information concerning the

number of arrests and citations in

order to ensure that a particular

officer or group of officers does

not violate any applicable legal

obligation.

b. The department or force shall

not use the number of arrests or

19

See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81,

102 (3d Cir. 1999) (“We will assume that Blackburn’s

testimony regarding what Zileski told him was effectively a

proffer of the testimony that Zileski himself would give at

trial, and we therefore treat this as evidence capable of being

admitted at trial.”); J.F. Feeser, Inc. v. Serv-A-Portion, Inc.,

909 F.2d 1524, 1542 (3d Cir. 1990) (“[T]here is no indication

that Spagnola’s salesforce would be unavailable to testify at

trial. [Thus t]he averments of Spagnola’s affidavit are capable

of proof through admissible evidence.”).

8

citations issued by a law

enforcement officer as the sole

criterion for promotion, demotion,

dismissal, or the earning of any

benefit provided by the

department or force. Any such

arrests or citations, and their

ultimate dispositions, may be

considered in evaluating the

overall performance of a law

enforcement officer.20

Plaintiffs claim that this statute applies to the directed

patrols policy even though the statute’s text only addresses

arrests and citations. Although the challenged patrols policy

only requires civilian encounters, Plaintiffs claim that it is

applied in a manner that also mandates citations. In arguing

to the contrary, Camden claims that since the New Jersey law

only applies to arrests and citations and the patrols policy has

no such requirements, the policy is consistent with the New

Jersey statute.

In granting summary judgment on this claim in favor

of Camden, the district court correctly relied on the limited

scope of the text of the statute—which does apply only to

arrests and citations, and not to the civilian “encounters” that

are at the center of this dispute. Accordingly, we will affirm

the court’s grant of summary judgment in favor of Camden

on Plaintiffs’ claims under the anti-quota law.

C. Conscientious Employee Protection Act

CEPA protects employees against retaliation by

employers for whistleblowing activities. It provides in

relevant part:

An employer shall not take any

retaliatory action against an

employee because the employee

does any of the following: . . .

Objects to, or refuses to

20

N.J. Stat. Ann. § 40A:14-181.2 (West) (emphases added).

9

participate in any activity, policy

or practice which the employee

reasonably believes: (1) is in

violation of a law, or a rule or

regulation.21

CEPA is remedial legislation and must therefore be construed

liberally in employees’ favor.22

New Jersey courts have created a four-pronged test for

adjudicating CEPA claims that largely replicates the three-

part burden-shifting test that is used to decide federal

retaliation claims.23 To establish a CEPA violation, a plaintiff

must prove that: (1) she reasonably believed her employer

was violating a law or rule; (2) she performed a protected

whistleblowing activity; (3) an adverse employment action

was taken against her; and (4) there is a causal connection

between the whistleblowing activity and the adverse action.24

The district court found Plaintiffs’ CEPA claim failed

because it was “deficient on at least two of the required

elements,” namely, the first and last prongs.25 We disagree.

Plaintiffs correctly argue that the first prong only

requires that they had a reasonable belief the policy was

illegal.26 They need not prove an actual illegality. The court

found the plaintiff-officers faltered here because, although

they may have subjectively believed the policy was illegal,

“that belie[f] was not objectively reasonable.”27 The court

specified that “[a]ny officer who reads the clear and plain

21

N.J. Stat. Ann. § 34:19-3 (West).

22

See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 91

(3d Cir. 1999) (“The New Jersey courts have repeatedly held

that CEPA was enacted ‘to protect employees from retaliatory

actions by employers.’”) (internal citation omitted).

23

See Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir.

2005).

24

Id.

25

Fraternal Order of Police, 2015 WL 1471800, at *4.

26

See Blackburn, 179 F.3d at 94 n.4; Dzwonar v. McDevitt,

828 A.2d 893, 901 (N.J. 2003).

27

Fraternal Order of Police, 2015 WL 1471800, at *4.

10

language of the statute would immediately understand that it

only applies to ‘arrests’ and ‘citations,’ . . . the directed patrol

policy does not encompass arrests or citations.”28

However, CEPA is not intended “to make lawyers out

of conscientious employees but rather to prevent retaliation

against those employees who object to employer conduct that

they reasonably believe to be unlawful.”29 Requiring a

showing that the anti-quota law actually applies to the written

policy imposes an obstacle that is as unfair as it is

unreasonable. These plaintiffs should not have to satisfy a

standard that is more appropriate for someone with a law

degree. Moreover, under CEPA “a plaintiff [need not even]

allege facts that, if true, actually would violate that statute,

rule, or public policy.”30 Thus, Plaintiffs clearly satisfied the

first prong of their prima facie case for a CEPA violation.

Summary judgment on the CEPA claim was therefore not

appropriate.

Camden attempts to reduce Plaintiffs’ proof on the

second prong of CEPA to frivolity by arguing that the

plaintiff-officers’ protests amount to nothing more than the

whining of a “squeaky wheel” and by suggesting that CEPA

is “a ‘Whistleblower Act,’ not a ‘Chronic Complainer

Act.’”31 This is offensive. Irrespective of the underlying

validity of the plaintiff-officers’ claims, they certainly

concern non-trivial matters. They allege workplace

retaliation, as well as a law enforcement policy with possible

constitutional implications for matters of increasingly urgent

public interest.32 We did not need the most recent

28

Id.

29

See Blackburn, 179 F.3d at 94 n.4 (internal citation

omitted).

30

Dzwonar, 828 A.2d at 901.

31

Blackburn v. United Parcel Serv., Inc., 3 F. Supp. 2d 504,

517 (D.N.J. 1998) aff’d, 179 F.3d 81 (3d Cir. 1999).

32

In fact, Camden’s own case law citations highlight the

seriousness of the plaintiff-officers’ allegations. For instance,

Camden cites a case that explains that an employee could not

reasonably believe extended lunch breaks or personal phone

calls would fall under CEPA, and complaints about such

11

controversies arising from attacks on police or police

shootings of unarmed civilians to appreciate that the

relationship between police officers and residents in the high

crime areas that they patrol is of the utmost importance.33 It

is indeed unfortunate that the City chooses to view police

officers with these kinds of concerns as “chronic

complainers” and “squeaky wheels.”

Plaintiffs also satisfied their burden under the third

prong. CEPA defines retaliation as including “discharge,

suspension or demotion of an employee, or other adverse

employment action taken against an employee in the terms

and conditions of employment.”34 The record suggests that

the plaintiff-officers’ transfers from the elite unit to regular

patrol came with a change in duties and a decrease in pay and

status. Accordingly, at this stage, these transfers are

“demotions.” At the very least, they affect “the terms and

conditions of employment” as required under CEPA. Thus,

they qualify as adverse employment actions under CEPA’s

third prong.

We do, however, conclude that not all of the disputed

actions would constitute retaliation under CEPA. The district

court was correct in finding that placement on an “abuse of

sick time” list, the cancellation of a vacation, and a visit by an

Internal Affairs officer do not rise to the level of adverse

employment actions absent more than is alleged here.35

matters are not a protected whistleblowing activity. Estate of

Roach v. TRW, Inc., 754 A.2d 544, 552 (2000). The

allegations here are far weightier, and thus fall more squarely

within CEPA’s purview.

33

See Julie Turkewitz, Baton Rouge Grapples with Anxiety

and Grief Amid Vigils for Officers, N.Y. TIMES (July 19,

2016), http://www.nytimes.com/2016/07/20/us/baton-rouge-

louisiana-shooting.html; Kimberly Kindy et al., A Year of

Reckoning: Police Fatally Shoot Nearly 1,000, WASH. POST

(Dec. 26, 2015),

http://www.washingtonpost.com/sf/investigative/wp/2015/12/

26/2015/12/26/a-year-of-reckoning-police-fatally-shoot-

nearly-1000/.

34

N.J. Stat. Ann. § 34:19-2(e) (West).

35

Fraternal Order of Police, 2015 WL 1471800, at *6.

12

CEPA does encompass a range of retaliatory actions.

However, in order for actions to qualify under CEPA, they

must have “impacted on the employee’s ‘compensation or

rank’ or be ‘virtually equivalent to discharge.’”36 These

additional actions fall short of that threshold.

Likewise, Officer Williamson’s allegations do not

qualify as adverse action under CEPA. He contends that

Camden retaliated against him in four ways: (1)

reprimanding him for an incident in which he allegedly

accosted a nurse; (2) charging him with a disciplinary action

for not reporting that an attorney had a thumb drive with

information about the Camden Police Department; (3)

investigating him as a result of an argument during a union

meeting; and (4) investigating him for “procedural

violations.” As the district court rightly noted, these actions

did not affect Officer Williamson’s compensation or rank nor

were they equivalent to discharge.37 Thus, only the plaintiff-

officers’ claim of retaliatory transfers satisfies the third prong

of CEPA.

Finally, CEPA’s fourth prong requires proof of a

causal connection between the whistleblowing activity and

the adverse employment action. The district court found that

“[t]he missing fundamental element of plaintiffs’ NJ CEPA

claims is the causal connection between their ‘whistle-

blowing’ and their adverse employment actions.”38 We

disagree with several aspects of the district court’s analysis of

this issue.

First, the district court concluded that the real reason

for the adverse actions was deficient performance, not the

plaintiff-officers’ objections.39 We fail to see how that factual

conclusion negates the existence of a genuine issue of

material fact. Rather, whether the adverse actions resulted

from deficient performance or objections to the disputed

36

Caver v. City of Trenton, 420 F.3d 243, 255 (3d Cir. 2005)

(internal citation omitted).

37

Fraternal Order of Police, 2015 WL 1471800, at *7.

38

Id. at *4.

39

Id. at *5-6.

13

policy is precisely the type of factual dispute that is

inappropriate for summary judgment.

Second, the district court afforded insufficient weight

to the temporal proximity of the plaintiff-officers’ objections

and the alleged retaliatory actions. Though we generally hold

that closeness in time alone cannot establish causation,40 we

have found that close temporal proximity41 or an added factor

making the closeness unusually suggestive can suffice.42

Here, Plaintiffs submitted evidence that the court should have

viewed in the light most favorable to them.43 That evidence

disclosed that some of their objections were followed by

adverse consequences within a matter of days. For instance,

they asserted that “[d]espite Holland’s improved statistics, he

was placed on the low performer list . . . and transferred to

regular patrol . . . . only days after he opposed his written

counseling.” Retaliatory motive is often revealed by such

evidence.44 At the very least, it certainly raises a question of

fact for a jury.

40

See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280

(3d Cir. 2000) (“[T]emporal proximity alone will be

insufficient to establish the necessary causal connection when

the temporal relationship is not ‘unusually suggestive.’”).

41

See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989)

(“He demonstrated the causal link between the two by the

circumstance that the discharge followed rapidly, only two

days later, upon Avdel’s receipt of notice of Jalil’s EEOC

claim.”).

42

See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d

Cir. 1997) (“Even if timing alone could ever be sufficient to

establish a causal link, we believe that the timing of the

alleged retaliatory action must be ‘unusually suggestive’ of

retaliatory motive before a causal link will be inferred.”).

43

See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d

Cir. 2004).

44

See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,

177 (3d Cir. 1997) (“Cases in which the required causal link

has been at issue have often focused on the temporal

proximity between the employee’s protected activity and the

adverse employment action, because this is an obvious

method by which a plaintiff can proffer circumstantial

14

The district court expressly refused to consider the

testimonial evidence the plaintiff-officers submitted tending

to show a link between their objections and the alleged

retaliation. The court believed that evidence could not be

considered because it was hearsay.45 We have already

explained why that was error. For these reasons, we will

reverse the district court’s dismissal of the plaintiff-officers’

retaliatory transfer claims under CEPA.

D. First Amendment

The plaintiff-officers claim that Defendants violated

their First Amendment rights by retaliating against them for

objecting to the patrols policy. A public employee’s

statement is protected by the First Amendment when “(1) in

making it, the employee spoke as a citizen, (2) the statement

involved a matter of public concern, and (3) the government

employer did not have ‘an adequate justification for treating

the employee differently from any other member of the

general public’ as a result of the statement he made.”46

The plaintiff-officers provide compelling arguments to

support their claim that their speech involved a matter of

public concern. They objected to the policy on police

department counseling forms, writing, among other things,

“QUOTA[]S ARE ILLEGAL!.”47 These writings were

internal and arguably of a private nature, but that does not

mean they do not pertain to a matter of public concern.

Matters of public concern may overlap with personal

evidence ‘sufficient to raise the inference that her protected

activity was the likely reason for the adverse action.’”)

(internal citation omitted).

45

Fraternal Order of Police, 2015 WL 1471800, at *5 n.9.

46

Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)

(quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d

Cir. 2006)).

47

App. 519a. See Feldman v. Phila. Hous. Auth., 43 F.3d

823, 829 (3d Cir. 1994) (“Disclosing corruption, fraud, and

illegality in a government agency is a matter of significant

public concern.”).

15

grievances.48 Indeed, many employees may not be motivated

to speak out on matters of public concern until they feel

personally aggrieved by their employer.49 When all else at

work is going well, it is the rarest of employees who is so

altruistic that she will risk her livelihood to object to a matter

of public concern. The law does not, and should not, ignore

legitimate claims of retaliation merely because the employee

is less than pleased in the workplace.50

In addition, as the Supreme Court stressed in

Pickering, “free and open debate is vital” to matters of

legitimate public concern.51 The disputed policy here directly

affects how police officers interact with the public, especially

with residents of crime infested communities. That is not

only a matter of public interest, it has become a matter of the

utmost importance. Therefore, restriction of the plaintiff-

officers’ right to voice their opinions cannot be taken

lightly—“freedom of speech is not traded for an officer’s

badge.”52

The district court reasoned that, “even accepting that

plaintiffs’ opposition to the directed patrol policy was a

48

See Rankin v. McPherson, 483 U.S. 378, 387 n.11 (1987)

(“The private nature of the statement does not . . . vitiate the

status of the statement as addressing a matter of public

concern.”); Garcetti v. Ceballos, 547 U.S. 410, 420 (2006)

(“That Ceballos expressed his views inside his office, rather

than publicly, is not dispositive. Employees in some cases

may receive First Amendment protection for expressions

made at work.”).

49

See Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003)

(“Common sense suggests that public employees, no less than

other employees, will be more likely to speak out when they

are disgruntled or personally dissatisfied with some aspect of

their employment or employer.”).

50

See id. at 412 (“This does not, however, suggest that speech

which is motivated by private concern can never qualify as

protected speech. It clearly can if it addresses a matter that

concerns the public as well as the speaker.”).

51

Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will

Cty., Ill., 391 U.S. 563, 571-72 (1968).

52

Biggs v. Vill. of Dupo, 892 F.2d 1298, 1303 (7th Cir. 1990).

16

matter of public concern, plaintiffs cannot meet the other two

elements of their First Amendment violation claims.”53 The

court concluded that their First Amendment claims failed for

lack of causation for the same reasons as their CEPA

claims.54 We have already explained why the court erred in

dismissing the CEPA claims. Nevertheless, we agree with the

district court that the plaintiff-officers’ First Amendment

claims cannot proceed.

The Supreme Court has explained that “when 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.”55 Here, the

plaintiff-officers were not speaking as citizens when they

wrote on the counseling forms. Citizens do not complete

internal police counseling forms. Rather, completing

counseling forms as part of the police disciplinary process

falls under officers’ official duties. Therefore, the plaintiff-

officers’ speech here “owe[d] its existence to [their] public

employee[] professional responsibilities.”56

Because the plaintiff-officers were not speaking as

citizens, if their supervisors thought the writings were

“inflammatory or misguided, they had the authority to take

proper corrective action.”57 Though the First Amendment

provides robust protection to statements pertaining to matters

53

Fraternal Order of Police, 2015 WL 1471800, at *8.

54

Id. (“For the same reasons explained above with regard to

their NJ CEPA claims, plaintiffs have not provided sufficient

evidence to go to a jury that their speech was a substantial or

motivating factor in the alleged retaliatory actions, or that the

Camden Police Department would not have taken the same

action even if the speech had not occurred. Consequently,

defendants are entitled to summary judgment on plaintiffs’

First Amendment violation claims.”).

55

Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (emphasis

added).

56

Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)

(citation omitted).

57

Garcetti, 547 U.S. at 423.

17

of public concern, it does not empower public employees to

“constitutionalize the employee grievance”58 when they are

acting in their official capacities. Accordingly, we will affirm

the court’s dismissal of the plaintiff-officers’ First

Amendment claims.59

E. Family and Medical Leave Act

The FMLA affords eligible employees “a total of 12

workweeks of leave during any 12-month period”60 in order

to tend to “a serious health condition that makes the employee

unable to perform the functions of the position.”61 In

addition, employees are entitled to FMLA leave to care for a

family member with a serious health condition.62 It is

“unlawful for any employer to interfere with, restrain, or deny

the exercise of or the attempt to exercise, any right provided”

in the FMLA.63 A claim that these rights have been breached

is referred to as “interference.”64

Officer Holland alleges that he was approved for

FMLA leave to care for his seriously ill mother in May 2009.

58

Connick v. Myers, 461 U.S. 138, 154 (1983).

59

We will also affirm the district court’s dismissal of the

plaintiff-officers’ New Jersey Constitution First Amendment

claim, which the court premised on identical grounds.

Fraternal Order of Police, 2015 WL 1471800, at *8 n.12.

Because the district court also based its dismissal of the

plaintiff-officers’ § 1983 claim on its rejection of their First

Amendment claim, we will affirm the district court’s § 1983

holding as well. Id. at *8 n.13 (“Because plaintiffs cannot

sustain their First Amendment claims, their claims against the

City of Camden also fail.”).

60

29 U.S.C. § 2612(a)(1).

61

29 U.S.C. § 2612(a)(1)(D).

62

29 U.S.C. § 2612(a)(1)(C).

63

29 U.S.C. § 2615(a)(1).

64

Two types of claims can arise under the FMLA, retaliation

(29 U.S.C. § 2615(a)(2)) and interference (29 U.S.C. §

2615(a)(1)). See Lichtenstein v. Univ. of Pittsburgh Med.

Ctr., 691 F.3d 294, 301 (3d Cir. 2012). Officer Holland’s

claim sounds in interference.

18

However, on May 27 he was orally warned that he was using

too much leave. Then, on June 17 he received a letter from a

Lieutenant stating he was being placed in the “Chronic Sick

Category.” When he informed the Lieutenant of his approved

FMLA leave, the Lieutenant said the Inspector did not care if

it was approved and Officer Holland would continue to be

placed in the category and would eventually be disciplined.

Officer Holland also asserts that Camden staff visited him at

home while he was on leave.

Officer Holland claims these actions interfere with

protected FMLA leave.65 He argues that a DOL regulation

provides an expanded definition of FMLA interference as

including not only denying leave, but also deterring an

employee from using it. This regulation provides that

“[i]nterfering with the exercise of an employee’s rights would

include, for example, not only refusing to authorize FMLA

leave, but discouraging an employee from using such

leave.”66 Camden granted Officer Holland’s request for

FMLA leave to care for his mother. However, Officer

Holland claims that, pursuant to this regulation, a reasonable

trier of fact could find that Camden’s placing him on a

chronic sick list and threatening to discipline him chilled the

assertion of his FMLA rights.

Camden contends that this “interference” was in part

an internal miscommunication. According to Camden,

Officer Holland was questioned about his use of leave

because one branch of the department was unaware this leave

had been approved under the FMLA. Camden further asserts

that none of its actions were “sufficient to deter a person of

ordinary firmness from exercising [their] right[s].”

Camden officials only visited Officer Holland once

while he was on leave, and we agree that this was minimally

intrusive. Without more, we agree that Camden’s conduct is

65

Officer Holland also advances an FMLA claim pursuant to

New Jersey’s FMLA, N.J. Stat. Ann. § 34:11B-9 (West).

Analysis of Officer Holland’s claim is the same under the

federal and state FMLAs. Accordingly, our assessment under

the federal FMLA covers both claims.

66

29 C.F.R. § 825.220(b) (emphasis added).

19

not actionable under the FMLA. Although we are

sympathetic to Officer Holland’s family situation, “there is no

right in the FMLA to be ‘left alone.’”67 Camden’s actions

may have been insensitive, but they were not beyond the

limitations the FMLA places on employers attempting to

manage their workplaces.68

Officer Holland’s claim is also doomed by an

insufficient showing of injury. The FMLA “provides no

relief unless the employee has been prejudiced by the

violation.”69 The only case Officer Holland cites to the

contrary is Shtab v. Greate Bay Hotel.70 There, the district

court found a jury could conclude that denial of immediate

FMLA leave for an employee who had just returned to work

constituted interference.71 Shtab does not support Officer

Holland’s claim that reprimands such as those he alleges can,

on their own, support relief under the FMLA. Rather, they

must occur in tandem with actual harm.72 Officer Holland

does not allege he was actually denied FMLA leave. In fact,

he concedes that he was able to take time off to care for his

mother. Accordingly, the court was correct in granting

summary judgment against Officer Holland.

F. Qualified Immunity

67

Callison v. City of Phila., 430 F.3d 117, 121

(3d Cir. 2005).

68

Id. at 120.

69

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89

(2002).

70

173 F. Supp. 2d 255 (D.N.J. 2001).

71

Id. at 258-59, 267-68.

72

See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d

135, 143 (3d Cir. 2004) (finding that an employee would only

be able to prove FMLA interference if he established that the

employer’s actions rendered “him unable to exercise that

right in a meaningful way, thereby causing injury”) (emphasis

added).

20

In addition to suing the City of Camden, Plaintiffs also

sued several officers in their individual capacities.73 Those

officers objected to the suits on the ground that they are

protected by qualified immunity. The doctrine of qualified

immunity “shields government officials from civil damages

liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.”74 In assessing qualified immunity

claims, we conduct a two-part inquiry. We must first

determine whether the facts demonstrate the violation of a

right. If they do, we must then decide if the right at issue was

clearly established at the time of the alleged misconduct.75

According to Defendants, Plaintiffs’ claim fails the first part

of the test because, as the rest of the case makes clear, no

rights were violated.

The district court agreed that the doctrine of qualified

immunity shields these individual officers from suit. It

explained: “Because the Court finds that plaintiffs cannot

support their claims that defendants violated their

constitutional rights, the qualified immunity analysis ends

there.”76

We agree with the district court’s conclusion that

qualified immunity depends, in part, on whether a legal

violation occurred. Since Plaintiffs have not shown a

violation of federal law, we need not reach the issue of

qualified immunity.

IV. CONCLUSION

For the foregoing reasons, we will reverse the district

court’s order granting summary judgment to Defendants on

Plaintiffs’ CEPA claims. We will remand for proceedings

consistent with this opinion. We will affirm the district

73

Police Chief Scott Thomson, Inspector Orlando Cuevas,

and Lieutenant Joseph Wysocki.

74

Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).

75

See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

76

Fraternal Order of Police, 2015 WL 1471800, at *7 n.11.

21

court’s dismissal of Plaintiffs’ New Jersey anti-quota law,

First Amendment claims, and Officer Holland’s FMLA claim.

22