OSBADO HERNANDEZ VS. HUDSON COUNTY (L-3623-16, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1683-18T4

OSBADO HERNANDEZ,

Plaintiff-Appellant,

v.

HUDSON COUNTY, THE HUDSON

COUNTY SHERIFF'S OFFICE, and

FRANK X. SCHILLARI, individually

and in his official capacity as Sheriff of

the Hudson County Sheriff's Office,

Defendants-Respondents.

_______________________________

Argued December 11, 2019 – Decided July 15, 2020

Before Judges Koblitz, Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Hudson County, Docket No. L-3623-16.

Matthew R. Curran argued the cause for appellant

(Sciarra & Catrambone, attorneys; Matthew R. Curran

and Charles Joseph Sciarra, of counsel and on the

briefs).

Qing Hua Guo argued the cause for respondents County

of Hudson, the Hudson County Sheriff's Office and

Frank X. Schillari in his official capacity only (Chasan

Lamparello Mallon & Cappuzzo, PC, attorneys; Cindy

N. Vogelman, of counsel and on the brief; Qing Hua

Guo, on the brief).

Kristen Jones argued the cause for respondent Frank X.

Schillari (Piro Zinna Cifelli Paris & Genitempo, LLC,

attorneys; Daniel Robert Bevere, on the brief).

PER CURIAM

Plaintiff appeals from the November 29, 2018 Law Division order

granting summary judgment dismissal of his retaliation complaint against his

employers, the County of Hudson, the Hudson County Sheriff's Office (HCSO),

and Sheriff Frank X. Schillari in his official and individual capacities,

collectively defendants. We affirm.

On September 7, 2016, plaintiff, then a fifteen-year veteran Hudson

County Sheriff's Officer and State Delegate of the PBA Local 334, filed a

complaint alleging defendants violated the New Jersey Civil Rights Act

(NJCRA), N.J.S.A. 10:6-1 to -2, by retaliating against him for engaging in

protected union activities. The complaint alleged that plaintiff "suffered

retaliatory adverse actions," including (1) a May 27, 2015 Preliminary Notice of

Disciplinary Action (PNDA) and ensuing forty-five day suspension stemming

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2

from his participation as a Weingarten 1 representative in a September 9, 2014

Internal Affairs (IA) interview of his co-worker and then girlfriend, Detective

Vivian Rosado,2 his subsequent failure to maintain possession of his firearm

while on duty, and his failure to store his firearm while off-duty as directed

outside the residence he occasionally shared with Rosado pending the outcome

of the criminal complaint filed against her by her estranged husband and fellow

sheriff's officer, Matthew Fedrow; (2) the January 22, 2015 Sheriff's order

requiring plaintiff to store his firearm while off-duty in Jersey City, resulting in

a 114.4 mile daily commute; and (3) the February 2015 temporary reassignment

of plaintiff from his position as a drill and fitness instructor at the Essex County

Police Academy (Academy) to the Detective Bureau at Hudson Plaza.

1

NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256-57 (1975) (holding that under

the National Labor Relations Act of 1935, 29 U.S.C. § 151-169, a union member

is entitled to representation at an interview by management, where the employee

reasonably believes that it will lead to disciplinary action). N.J.S.A. 34:13A-

5.4(a)(1) has been interpreted to provide public employees the same right,

which, if violated, will constitute an unfair labor practice. Hernandez v.

Overlook Hosp., 149 N.J. 68, 75 (1997).

2

At the time, Fedrow was Vivian's last name. Following her divorce, she

resumed the use of her maiden name, Rosado. Since filing the complaint, Vivian

and plaintiff married and Vivian assumed plaintiff's surname. To avoid

confusion, we refer to Vivian as Rosado throughout this opinion and intend no

disrespect.

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3

We derive the following facts from evidence submitted by the parties in

support of, and in opposition to, the summary judgment motion, viewed in the

light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213

N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523

(1995)). On September 9, 2014, Rosado was directed to respond to the IA Unit

to be interviewed and disarmed in accordance with the Attorney General

Guidelines related to the filing of a criminal complaint against an officer . The

Guidelines required the confiscation of Rosado's firearms pending the resolution

of the criminal charge filed against her by Fedrow. Upon request, Rosado was

permitted to bring plaintiff as her Weingarten representative. Although Captain

Liane Markowitz and Sergeant Richard Garcia, the IA officers conducting the

investigation, were aware of the romantic relationship between Rosado and

plaintiff, they were unaware that the two were occasionally cohabitating, and

plaintiff never indicated that they were. Under the circumstances, any

cohabitation by plaintiff and Rosado would impact the storage of plaintiff's

firearm as Rosado was not permitted to stay overnight in a residence where a

firearm was located.

Garcia and Markowitz claimed that during the interview, plaintiff was

"irate," "disruptive," and "unprofessional," repeatedly "interjecting" himself

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4

into the process, and attempting to record the interview on his own device

instead of relying exclusively on the official recording. Nonetheless, the

interview was not discontinued as permitted under the Attorney General

Guidelines. Ultimately, upon learning that Rosado kept her duty weapon at her

residence in Jersey City, all four officers proceeded to her residence to retrieve

the weapon. Rosado lived next door to her mother, who was present when the

officers arrived. While Rosado retrieved her weapon, plaintiff complained in

the presence of Rosado's mother that it was unfair that Rosado had to forfeit her

weapon while Fedrow, against whom Rosado had filed an earlier harassment

complaint,3 did not. When Rosado's mother accompanied the officers back to

the IA Unit, plaintiff continued to disparage the agency in her presence.

Subsequently, on September 25, 2014, plaintiff submitted a memorandum

to Markowitz notifying IA that as of September 25, 2014, he would no longer

store his firearm at his residence. Instead, plaintiff requested permission to store

his firearm overnight at the Academy, where he was temporarily assigned as an

instructor. Sheriff Schillari denied the request, explaining that the HCSO had

3

Rosado had also sought a temporary restraining order against Fedrow, but the

application was denied. Although Fedrow was ultimately disarmed as a result

of Rosado's harassment complaint, the disarming did not occur until later.

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5

no jurisdiction or control over the Academy and was therefore unable to monitor

the storage of the firearm.

Initially, on September 25, 2014, IA officers verbally directed plaintiff to

secure his firearm at Hudson Plaza, a county building that housed several

offices, including the Patrol Division of the HCSO. However, upon realizing

that Fedrow was the night shift supervisor there, which could lead to a

confrontation between the two, IA officers promptly countermanded the order

and directed plaintiff to store his firearm at the HCSO Court Bureau located in

the Hudson County Courthouse. The Court Bureau had sign-in/sign-out

procedures, gun lockers, and a desk supervisor under the direct supervision of

the HCSO's chain of command.

The verbal order was later memorialized in a written communication to

plaintiff from Garcia dated December 19, 2014, as well as a written

communication to Court Bureau personnel from Markowitz dated January 5,

2015. Based on the order, plaintiff was expected to deposit his firearm in the

designated locker in the Court Bureau at the end of each shift and retrieve it in

the morning before traveling to his post at the Academy. However, in a

December 19, 2014 report to Garcia, plaintiff confirmed that he had placed his

firearm in the locker at the Court Bureau on September 26, 2014, after being

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verbally advised to do so, and did not retrieve it until December 19, 2014. As a

result, plaintiff reported for duty during this time period without his firearm,

contrary to the HCSO policy that all officers be armed while on duty.4

On January 22, 2015, plaintiff was notified in writing by Garcia that,

pursuant to the Sheriff's order, he was required to maintain his firearm at all

times while on duty, regardless of his assignment. On January 23, 2015, plaintiff

was notified in writing by Markowitz that he was the subject of an IA

investigation for "failure . . . to maintain [his] firearm while on[-]duty . . . from

[September 21, 2014] to present." As a result, subsequently, plaintiff himself

underwent an IA interview, accompanied by his Weingarten representative.

While the IA investigation was pending, in February 2015, plaintiff was

temporarily reassigned from the Academy to the Detective Bureau at Hudson

Plaza. Thereafter, on May 27, 2015, plaintiff was served with a PNDA, charging

him with 1) conduct unbecoming a public employee; 2) insubordination; and 3)

other sufficient cause.

The PNDA specified that while plaintiff served as Rosado's Weingarten

representative on September 9, 2014, he "acted in a disruptive manner when he

4

The HCSO Uniform Firearms Policy (Hudson County Firearms Policy)

provides that, "all sworn members shall be armed while on[-]duty unless

otherwise authorized by the Sheriff or Chief."

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continually interrupted members of the [IA] Unit while an official inquiry was

being conducted." Further, the PNDA alleged plaintiff "failed to secure his

weapon as directed" to avoid Rosado's "access to firearms" while a criminal

complaint filed against her by her estranged husband was pending, and "failed

to maintain possession of his firearm while he was on[-]duty" from "December

21, 2014 through January 23, 2015." The PNDA indicated that disciplinary

action may range from thirty days' suspension to removal.

A disciplinary hearing was conducted on July 1, 2015, where plaintiff was

represented by counsel. In addition to Garcia's testimony, numerous exhibits

were presented, including the audio recording of the September 9, 2014 IA

interview, witness statements, and the IA investigation report. Plaintiff

conceded that he had not carried his firearm while he was on duty during the

period in question, but contended he was never directed "to pick up [his] weapon

to go to the [A]cademy every day." He stated that

in [his] current assignment as a [d]rill and fitness

instructor . . . [his] uniform of the day is [sweatpants]

and a [sweatshirt]. It would be dangerous to carry [his]

weapon with that attire due to the performance of [his]

duty. All of the instructors in the academy that are

[full-time] have the same attire as [he does] with no

weapon on them.

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On September 17, 2015, the hearing officer (HO) dismissed the charge of

conduct unbecoming an officer, but upheld the insubordination charge. In a

written opinion, the HO noted that plaintiff "should have known better," and

"made an error in judgment in deciding to officially represent his union member

while he was in a relationship with her." However, the HO found that , under

the circumstances, the unbecoming conduct charge was inappropriate. As to the

insubordination charge, while the HO accepted plaintiff's statement that he

"believed it was dangerous for him to carry his weapon because of the type of

uniform employed while he was an instructor[,]" the HO credited Garcia's

testimony and rejected plaintiff's explanation "that he did not clearly understand

his instructions." Instead, the HO found that plaintiff "intentionally did not

abide by the orders that were given to him as concerns his weapon . . . from

when he made his initial request [to store his weapon at the Academy] until an[d]

including January 23[], 2015."

After considering plaintiff's disciplinary record, consisting of a twenty-

day suspension in 2013 for "[u]nbecoming [c]onduct, [n]eglect of [d]uty, [and]

[i]nsubordination," the HO recommended a forty-five-day suspension, without

pay. The Sheriff signed a Final Notice of Disciplinary Action (FNDA) on

October 15, 2015, memorializing his approval of the disciplinary action.

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Plaintiff served his suspension over nonconsecutive days in October, November,

and December of 2015, and January and February of 2016.

Following the completion of discovery, defendants moved for summary

judgment over plaintiff's objection. Defendants asserted that contrary to

plaintiff's allegations, while the chronological genesis of the PNDA, the order

requiring plaintiff to store his firearm while off-duty at the Court Bureau, and

his temporary reassignment may have begun with the September 9, 2014 IA

interview, the actions were based on entirely separate conduct and were not

retaliation for plaintiff engaging in protected union activities.

Following two days of oral argument, the judge entered orders granting

defendants' motion and dismissing the complaint with prejudice. In a November

29, 2018 written opinion accompanying the orders, the judge posited that "[t] he

real issue . . . [was] whether the acts of the defendants could reasonably qualify

as 'retaliation' under the summary judgment standards." After applying the

governing legal principles, the judge concluded that they did not.

The judge explained:

The first count of the PNDA . . . goes beyond

merely complaining about plaintiff's interruptions

during the interview with . . . Rosado. It goes into facts

(apparently undisputed as conceded at oral argument)

about the scene plaintiff made with . . . Rosado’s

mother consisting of very disparaging remarks about

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the [IA] unit, including the use of vulgarity. Not just

equally important but more important it complains

about plaintiff's lack of forthrightness in not

acknowledging [on that date] that not only was he

dating . . . Rosado but that cohabitation (meaning she

would have access to his gun) was taking place. That

. . . plaintiff thought better and a few weeks later

acknowledged the cohabitation did not cure his lack of

candor on September 9, 2014. Based on these

[undisputed] facts no reasonable juror could conclude

that this action was based (wholly or even partially) on

plaintiff's legitimate role as a [Weingarten]

representative.

The second count of the PNDA deals with

plaintiff's alleged failure to store his gun at the [C]ourt

[B]ureau and pick it up each day and return it at the end

of each day before going home. The PNDA alleges that

on September 25, 2014 (when it first became known

that plaintiff was cohabitating with . . . Rosado)

plaintiff requested to be allowed to leave his gun

overnight at the . . . Academy and this request was

specifically denied, with plaintiff being told to bring his

gun to work each day and store it at night at the

[HCSO].

. . . [P]laintiff denies being given these specific

verbal instructions to pick up and retrieve his gun each

day. The court must accept . . . plaintiff's denial as far

as this motion is concerned. The PNDA, however, goes

on to claim that these specific instructions were

contained in the December 19, 2014 written memo from

. . . Garcia to . . . plaintiff. That memo did indeed refer

to both "securing [his] firearm" and "picking up [his]

firearm[.]" The PNDA specifically claims that

plaintiff's failure from December 19, 2014, (when he

received the written memo) going forward to January

23, 2015, was insubordination.

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After detailing defendants' arguments, the judge continued:

For purposes of summary judgment the court will

disregard [defendants'] arguments that plaintiff did not

misunderstand anything and will assume that plaintiff

did misunderstand the written memo of December 19,

2014, and did not receive the verbal instructions on

September 25, 2014. This[,] however, does not require

the court to find a reasonable juror could infer that the

written memo of December 19, 2014, was intentionally

ambiguous and was therefore[] a "setup" to confuse . . .

plaintiff and thus justify the PNDA as counsel alleges.

This is simply too farfetched. Nobody could

reasonably infer that the written memo and the PNDA

(based on the written memo being ignored) was a

calculated act of retaliation for plaintiff’s mere role on

September 9, 2014, as a [Weingarten] representative.

Turning to the order requiring plaintiff to store his firearm while off-duty

at the Court Bureau instead of the Academy, the judge expounded:

Related to this discussion is plaintiff's contention that

the requirement that plaintiff store his gun at the

sheriff's office, as opposed to letting him store it at [the

Academy], was an act of retaliation. Since it is the

officer's department that is responsible for securing the

weapon[,] there is simply nothing untoward in the

Hudson County Sheriff requiring that the gun be

secured at the [HCSO] and logged in and logged out at

that facility, where the logging can be monitored, as

indeed it was. The fact that p1aintiff was trusted to log

in and log out as opposed to having another sheriff's

officer standing directly behind him each time to ensure

it, does not mean that the obligation to log his gun was

"pretextual" as plaintiff claims and thus an act of

retaliation. That also, is simply farfetched.

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Regarding his temporary reassignment from the Academy, the judge

stated:

As to . . . plaintiff's temporary reassignment in

February 2015 away from the . . . Academy[,] the only

evidence properly in the record is the [S]heriff's

assertion that it was requested by the [D]irector of the

[A]cademy. This action was also recommended by . . .

Garcia of [IA]. At his deposition[,] the [S]heriff was

originally unsure as to why . . . plaintiff was

temporarily removed. At oral argument[,] plaintiff's

counsel indicated he had a tape of a phone conversation

in which the [A]cademy [D]irector made a statement

indicating a willingness to have . . . plaintiff return.

This statement was not under oath, the [D]irector was

not deposed and even the statement did not address

whether or not the [D]irector requested the transfer.

The judge concluded:

When it comes to [Weingarten] representation,

which is what plaintiff asserts . . . defendants were

retaliating against, there is simply nothing in this record

to show [animus]. Not only did the [S]heriff's [O]ffice

not hinder it, on the only two occasions involved[,] it

seemed to go out of its way to facilitate it. On

September 9, 2014, the [IA] officers were aware of a

conflict of interest due to the dating relationship (but

not the cohabitation at that point). However[,] since . . .

Rosado had requested . . . plaintiff and the goal was

simply to retrieve the weapon[,] they overlooked it.

Had there been any [animus] this would have . . .

presented an excellent opportunity to bar . . . plaintiff

and insist on another representative. On [January 23,

2015], when plaintiff acknowledged the cohabitation

and was now himself the subject of the [IA] interview,

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the [S]heriff's [O]ffice notified him that his requested

representative was literally ineligible and

recommended an alternative whom the plaintiff readily

accepted.

While a reasonable juror could discern [animus]

toward . . . plaintiff by the [IA] officers and possibly

even the [S]heriff, it could only have resulted from the

scene . . . plaintiff made on the street embarrassing [IA]

and the [S]heriff's [O]ffice, his failure to initially

acknowledge his cohabitation with . . . Rosado and the

"misunderstanding" regarding the securing of the gun.

If they felt that between September 9, 2014, and

September 25, 2014, when . . . plaintiff did bring his

gun home[,] that . . . Rosado had access to it and . . .

plaintiff knew this was wrong, they had a right to be

peeved. If, in their eyes plaintiff was still causing

trouble by not following their instructions in securing

the gun, they also had a right to some [animus]. But

linking that [animus] to plaintiff's legitimate role as a

[Weingarten] representative is simply not

"reasonable[.]"

The judge also concluded:

To the degree that plaintiff alleges "disparate

treatment[,]" the examples are not similar to the present

matter in terms of their background and are not really

all that disparate in nature. To suggest that any minor

instances of difference (such as another officer securing

his firearm without having to log in and out) is

sufficient proof of retaliation for plaintiff's legitimate

role as a [Weingarten] representative is indeed too far

of a stretch.

Finally, addressing the Sheriff's qualified immunity, the judge explained:

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While the [S]heriff individually would be entitled

to qualified immunity since what he did in relying on

the advice and information presented by his [IA]

officers made his conduct regarding the PNDA[]

"objectively reasonable[,]" there is no reason to discuss

that further or Monell[5] liability, as none of the sheriff's

officers could "reasonably" be found to have acted in

violation of the [NJCRA] as a matter of law.

On appeal, plaintiff argues "the evidence in the record is sufficient to

defeat summary judgment due to the inferences of animus" that may be drawn

and the "evidence of pretext" that "abounds." Essentially, plaintiff asserts the

judge erred in granting summary judgment to defendants because there were

genuine issues of material fact. We disagree.

We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366

(2016). That standard is well-settled.

[I]f the evidence of record—the pleadings, depositions,

answers to interrogatories, and affidavits—"together

with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the

issue to the trier of fact," then the trial court "must deny

the motion." On the other hand, when no genuine issue

of material fact is at issue and the moving party is

entitled to a judgment as a matter of law, summary

judgment must be granted.

[Ibid. (quoting R. 4:46-2(c)); see Brill, 142 N.J. at 540.]

5

Monell v. New York City Dept. of Social Servs., 463 U.S. 658 (1978).

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"[T]he legal conclusions undergirding the summary judgment motion itself [are

reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas.

Ins. Co., 202 N.J. 369, 385 (2010).

"The practical effect of [Rule 4:46-2(c)] is that neither the motion court

nor an appellate court can ignore the elements of the cause of action or the

evidential standard governing the cause of action." Bhagat v. Bhagat, 217 N.J.

22, 38 (2014). In that regard, "[s]ummary judgment should be granted . . .

'against a party who fails to make a showing sufficient to establish the existence

of an element essential to that party's case, and on which that party will bear the

burden of proof at trial.'" Friedman v. Martinez, ___ N.J. ___, ___ (2020) (slip

op. at 30) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

Pertinent to this appeal, the NJCRA provides a private cause of action for

damages, injunctive or other appropriate relief to

[a]ny person who has been deprived of any substantive

due process or equal protection rights, privileges, or

immunities secured by the Constitution or laws of the

United States, or . . . of this State, or whose exercise or

enjoyment of those substantive rights, privileges or

immunities has been interfered with or attempted to be

interfered with, by threats, intimidation or coercion by

a person acting under color of law . . . .

[N.J.S.A. 10:6-2(c).]

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A cause of action brought under the NJCRA has the same elements as the

analogous federal Civil Rights Act, 42 U.S.C. § 1983 (Section 1983), after which

the NJCRA was modeled. Rezem Family Assocs. L.P. v. Borough of Millstone,

423 N.J. Super. 103, 115 (App. Div. 2011). Thus, New Jersey state courts may

look to federal cases analyzing Section 1983 to interpret the NJCRA's

provisions. See Tumpson v. Farina, 218 N.J. 450, 474 (2014) ("The

interpretation given to parallel provisions of Section 1983 may provide guidance

in construing our Civil Rights Act.").

The NJCRA "was adopted 'for the broad purpose of assuring a state law

cause of action for violations of state and federal constitutional rights and to fill

any gaps in state statutory anti-discrimination protection.'" Ramos v. Flowers,

429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v. Feigin, 194 N.J. 607,

611 (2008)). See also Gormley v. Wood-El, 218 N.J. 72, 97 (2014) ("Section

1983 applies only to deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -

2 applies not only to federal rights but also to substantive rights guaranteed by

New Jersey's Constitution and laws."). To that end, similar to a cause of action

under Section 1983, in order to prevail under the NJCRA, a plaintiff must first

identify "'the person acting under color of law[]' that has caused the alleged

deprivation," and then "identify a 'right, privilege or immunity' secured to the

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claimant" by the state or federal constitution or state or federal laws. Rezem,

423 N.J. Super. at 115 (quoting Rivkin v. Dover Twp. Rent Leveling Bd., 143

N.J. 352, 363 (1996)).

"We have recognized two types of claims under the [NJCRA]: first, a

claim for when one is 'deprived of a right,' and second, a claim for when one's

'rights are interfered with by threats, intimidation, coercion or force.'"

Trumpson, 431 N.J Super. at 181-82. (quoting Felicioni v. Admin. Office of

Courts, 404 N.J. Super. 382, 400 (App. Div. 2008)). However, "[i]nterference

with a right need not actually result in actual deprivation of the right." Id. at

182. Here, there is no dispute that plaintiff serving as a Weingarten

representative for Rosado constitutes a protected activity under N.J.S.A.

34:13A-5.4(a)(1), with underpinnings in the First Amendment.6 See Hernandez,

149 N.J. at 75. Thus, interference or attempted interference with the exercise of

that right by retaliation constitutes "threats, intimidation or coercion" cognizable

under N.J.S.A. 10:6-2(c).

6

"[U]nion membership is worthy of constitutional protection" and there is

longstanding Supreme Court precedent "that a public employee possesses a First

Amendment right to associate with a union." Palardy v. Twp. of Millburn, 906

F.3d 76, 82 (3d Cir. 2018). "The public employee surely can associate and speak

freely and petition openly, and he is protected by the First Amendment from

retaliation for doing so." Smith v. Ark. State Highway Emp., Local 1315, 441

U.S. 463, 465 (1979).

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However, in order to establish a prima facie case that defendants' acts

constitute retaliation as alleged in his complaint, plaintiff must show that he (1)

"engaged in a protected activity, (2) that defendants' retaliatory action was

sufficient to deter a person of ordinary firmness from exercising his or her rights,

and (3) that there was a causal connection between the protected activity and the

retaliatory action." Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

"A defendant may defeat the claim of retaliation by showing that it would have

taken the same action even if the plaintiff had not engaged in the protected

activity." Ibid.

When, as here, the question does not turn on whether the plaintiff engaged

in a protected activity or whether the defendants engaged in the conduct alleged,

"but rather whether there was a causal relationship between the two," in order

"[t]o establish the requisite causal connection a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between the protected

activity and the allegedly retaliatory action, or (2) a pattern of antagonism

coupled with timing to establish a causal link." Ibid. "In the absence of that

proof the plaintiff must show that from the 'evidence gleaned from the record as

a whole' the trier of the fact should infer causation." Ibid. (quoting Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)).

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However, as the court pointed out in DeFlaminis,

A court must be diligent in enforcing these causation

requirements because otherwise a public actor

cognizant of the possibility that litigation might be filed

against him, particularly in his individual capacity,

could be chilled from taking action that he deemed

appropriate and, in fact, was appropriate.

Consequently, a putative plaintiff by engaging in

protected activity might be able to insulate himself

from actions adverse to him that a public actor should

take. . . . [B]y enforcing the requirement that a plaintiff

show causation in a retaliation case, [courts] . . . will

protect the public actor from unjustified litigation for

his appropriate conduct. In this regard we recognize

that often public actors . . . must make a large number

of decisions in charged atmospheres thereby inviting

litigation against themselves in which plaintiffs ask the

courts to second guess the actors' decisions.

[Id. at 267-68.]

Here, we agree with the judge that plaintiff failed to establish the requisite

causal connection between his protected activity and defendants' alleged

retaliatory conduct to survive a motion for summary judgment on a retaliation

claim. Viewed in the light most favorable to plaintiff, the record as a whole

simply does not support an inference that defendants' actions constituted

retaliation for plaintiff engaging in protected activity in his role as Rosado's

Weingarten representative during the September 9, 2014 IA interview. While

the record is replete with accusations of animus and allegations of disparate

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treatment, "[a] motion for summary judgment will not be defeated" by "disputed

facts 'of an insubstantial nature.'" Worthy v. Kennedy Health Sys., 446 N.J.

Super. 71, 85 (App. Div. 2016) (quoting Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.1 on R. 4:46-2 (2020)). Moreover, "'fanciful, frivolous, gauzy or

merely suspicious' allegations of fact in support of the claim" will not forestall

summary judgment dismissal. Maher v. N.J. Transit Rail Operations, 125 N.J.

455, 477-78 (1991) (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 74

(1954)).

Plaintiff also contends that in granting defendants summary judgment, the

judge erred in failing to analyze "[Monell] liability based upon the deliberate

indifference standard." In Monell, the United States Supreme Court "held that

official policy must be 'the moving force of the constitutional violation' in order

to establish the liability of a government body under § 1983." Polk Cty. v.

Dodson, 454 U.S. 312, 326 (1981) (quoting Monell, 436 U.S. at 694). While a

Section 1983 claim may be based on a plaintiff showing that a governmental

entity's actions evidence "a 'deliberate indifference' to [his or her] rights," City

of Canton v. Harris, 489 U.S. 378, 389 (1989), in order to be actionable, a

plaintiff must "show that the [government body], through one of its

policymakers, affirmatively proclaimed a policy, or acquiesced in a widespread

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custom, that deprived the plaintiff of his constitutional rights." Coles v. Carlini,

162 F. Supp. 3d 380, 401 (D.N.J. 2015). See Hafer v. Melo, 502 U.S. 21, 25

(1991) ("[T]he entity's policy or custom must have played a part in the violation

of federal law." (quoting Kentucky v. Graham, 473 U.S. 159, 167 (1985))).

A government policy may be established "when a 'decisionmaker

possess[ing] final authority to establish a . . . policy with respect to the action'

issues an official proclamation, policy, or edict." McTernan v. City of York,

564 F.3d 636, 658 (3d Cir. 2009) (alteration in original) (quoting Andrews v.

City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "A course of conduct

is considered to be a 'custom' when, though not authorized by law, 'such

practices of state officials [are] so permanently and well-settled' as to virtually

constitute law." Ibid. (quoting Andrews, 895 F.2d at 1480). "Custom requires

proof of knowledge and acquiescence by the decisionmaker." Ibid. "In either

instance, a plaintiff must show that an official who has the power to make policy

is responsible for either the affirmative proclamation of a policy or acquiescence

in a well-settled custom." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.

1990).

"However, proof of the mere existence of an unlawful policy or custom is

not enough to maintain a [Section] 1983 action." Ibid. Rather, "[a] plaintiff

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bears the additional burden of proving that the . . . practice was the proximate

cause of the injuries suffered." Ibid. "To establish the necessary causation, a

plaintiff must demonstrate a 'plausible nexus' or 'affirmative link' between the

. . . custom and the specific deprivation of constitutional rights at issue." Ibid.

(citations omitted). See Harris, 489 U.S. at 385 ("[O]ur first inquiry in any case

alleging [a governmental entity's] liability under [Section] 1983 is the question

whether there is a direct causal link between [the entity's] policy or custom and

the alleged constitutional deprivation."); City of Oklahoma City v. Tuttle, 471

U.S. 808, 823 (1985) ("[T]here must be an affirmative link between the policy

and the particular constitutional violation alleged."). Here, in the absence of a

causal link between the purported policy or custom and the constitutional

infringement, defendants cannot be held liable under Section 1983 or the

NJCRA.

Plaintiff also argues the judge erred in finding that the Sheriff was entitled

to "qualified immunity." Plaintiff asserts that because the Sheriff admitted being

aware that union activities are afforded constitutional protection, he should have

been held separately liable for authorizing the actions of the IA officers or

"act[ing] with deliberate indifference to the[ir] abuses."

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"The affirmative defense of qualified immunity protects government

officials from personal liability for discretionary actions taken in the course of

their public responsibilities, 'insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.'" Brown v. State, 230 N.J. 84, 97-98 (2017) (quoting Morillo v.

Torres, 222 N.J. 104, 116 (2015)). The defense applies to NJCRA claims and

"tracks the federal standard, shielding from liability all public officials except

those who are 'plainly incompetent or those who knowingly violate the law.'"

Id. at 98 (quoting Morillo, 222 N.J. at 118). The defense "balances two

important interests - the need to hold the public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably." Pearson v.

Callahan, 555 U.S. 223, 231 (2009).

To ascertain whether a governmental official . . . is

entitled to qualified immunity requires inquiries into

whether: (1) the facts, "[t]aken in the light most

favorable to the party asserting the injury[] . . . show

the officer's conduct violated a constitutional right";

and (2) that constitutional "right was clearly

established" at the time that defendant acted.

[Brown, 230 at 98. (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)).]

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Here, although the judge determined the Sheriff was entitled to qualified

immunity in relying on the recommendations of the IA officers, because the

judge based the summary judgment dismissal on plaintiff's failure to establish a

prima facie NJCRA claim, there was no need to apply the doctrine of qualified

immunity. Based on our de novo review, we are convinced the judge's analysis

is supported by the record and the applicable legal principles, including the

summary judgment standard.

Affirmed.

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