Fraternal Order of Police Lodg v. City of Camden , 842 F.3d 231 ( 2016 )

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
Ohio 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