MARCOS GARCIGA VS. TOWN OF WEST NEW YORK (L-2311-16, HUDSON COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2828-16T3
MARCOS GARCIGA,
Plaintiff-Appellant,
v.
TOWN OF WEST NEW YORK,
MAYOR FELIX ROQUE, and
CARIDAD RODRIGUEZ,
Defendants-Respondents.
_____________________________
Argued December 2, 2019 – Decided December 27, 2019
Before Judges Fasciale, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-2311-16.
Benjamin O. Weathers argued the cause for appellant
(Caruso Smith Picini PC, attorneys; Louis Alexander
Zayas, on the briefs).
Thomas A. Abbate argued the cause for respondents
(De Cotiis FitzPatrick Cole & Giblin LLP, attorneys;
Thomas A. Abbate, of counsel and on the brief; Amy E.
Shotmeyer, on the brief).
PER CURIAM
Plaintiff appeals from a December 12, 2016 order dismissing his
complaint with prejudice for failure to state a claim upon which relief can be
granted, Rule 4:6-2(e); and a March 3, 2017 order denying reconsideration.
Plaintiff's fifteen-page complaint, including seventy enumerated paragraphs,
contains three causes of action: a violation of the New Jersey Civil Rights Act
(NJCRA), N.J.S.A. 10:6-1 to -2 (count one); a violation of the New Jersey Civil
Racketeer Influenced and Corrupt Organizations Act (NJRICO), N.J.S.A.
2C:41-1 to -6.2 (count two); and conspiracy to violate the NJRICO, particularly
N.J.S.A. 2C:41-1(c) and N.J.S.A. 2C:41-2(d) (count three). In addition to
seeking a declaration that defendants violated his rights, plaintiff seeks
monetary damages.
We reverse.
I.
We review motions to dismiss de novo. Castello v. Wohler, 446 N.J.
Super. 1, 14 (App. Div. 2016). "Ordinarily a dismissal for failure to state a claim
is without prejudice." Pressler & Verniero, Current N.J. Court Rules, cmt. 4.1.1
on R. 4:6-2(e) (2020). Here, the judge entered the order with prejudice, which,
at a minimum, should have been without prejudice. Nevertheless, at this early
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stage in the litigation, our stringent standard of review of Rule 4:6-2(e) orders
requires an outright reversal. By doing so, we do not mean to imply defendants
are without an opportunity to later seek summary judgment—or any other
appropriate relief.
A motion to dismiss a complaint for failure to state a cause of action must
be denied if, affording plaintiffs the benefit of all allegations and all favorable
inferences, a cause of action has been set forth. R. 4:6-2(e); see Tisby v. Camden
Cty. Corr. Facility, 448 N.J. Super. 241, 247 (App. Div. 2017). We emphasize
that we are required to give plaintiff the benefit of all favorable inferences.
Indeed, "Rule 4:6-2(e) motions to dismiss should be granted in 'only the rarest
[of] instances.'" Banco Popular N. Am. v. Gandi, 184 N.J. 161, 165 (2005)
(alteration in original) (quoting Lieberman v. Port Auth. of N.Y. & N.J., 132
N.J. 76, 79 (1993) (citation omitted)).
"[O]ur inquiry is limited to examining the legal sufficiency of the facts
alleged on the face of the complaint." Printing Mart-Morristown v. Sharp Elecs.
Corp., 116 N.J. 739, 746 (1989). We search the complaint "in depth and with
liberality" to determine whether the basis for a cause of action may be found
even in an obscure statement of a claim, opportunity should be given to amend
if necessary. Ibid. (internal quotation marks and citation omitted). "Dismissal
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is appropriate only if the complaint states no basis for relief and discovery would
not provide one." J-M Mfg. Co., Inc. v. Phillips & Cohen, LLP, 443 N.J. Super.
447, 453 (App. Div. 2015) (internal quotation marks and citation omitted). We
must accept the allegations in the complaint as truthful when undertaking our
analysis.
II.
The West New York Police Department employed plaintiff as a police
officer since 1999. At the relevant timeframe—between 2013 and 2015—
defendant Felix Roque served as Mayor of West New York, and defendant
Caridad Rodriguez (the Commissioner) (collectively defendants), was
designated as Commissioner of Public Safety, and in that capacity, she had
authority to promote officers.
In September 2013, plaintiff took the promotional exam for lieutenant and
in February 2014, he learned that he ranked second among the top three
candidates eligible for promotion. During the next few months, plaintiff
participated in political events supporting his brother-in-law, who was running
for Freeholder against an individual endorsed by a politician (the politician) of
a nearby town. Thereafter, plaintiff continued supporting his brother-in-law's
political campaign.
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In September 2014—after the primary elections that June—the police
department promoted the first of the top-ranking officers to lieutenant. This
promotion made plaintiff the next officer in line for promotion. That same
month, plaintiff spoke to defendants concerning his promotion, and they said
that he needed to "make peace with the hill"—meaning with the politician.
Mayor Roque offered to help, and he told plaintiff to attend a political event for
the politician. Although he agreed initially to do so, plaintiff reconsidered and
later declined to attend the political event.
In December 2014, another round of promotions was scheduled. The next
month, the Commissioner told plaintiff that he was being penalized for his
political affiliation, specifically citing a photograph that depicted plaintiff's face
in support of another candidate from the other party. Wanting a promotion,
plaintiff attempted to "make peace."
In June 2015, the department started moving forward with promotions,
proceeding slowly. Plaintiff's colleagues blamed him for the delay, avoided
him, and refused to speak with him. The police department eventually promoted
plaintiff to lieutenant. But plaintiff asserted he would have been promoted in
June 2014 or August 2015 if not for his political affiliations. He alleged he lost
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approximately $20,000 in salary per year, and that the delay in his promotion
prevented him from taking the captain's exam in October 2016 until 2019.
As to the NJCRA, the judge observed that plaintiff must allege an adverse
employment action sufficient to deter a person of ordinary firmness from
exercising his First Amendment rights. The trial judge concluded that the mere
"delay in a promotion" did not meet this standard, especially because plaintiff
received the promotion. As to the NJRICO claims, the judge determined that
plaintiff failed to establish more than one racketeering act—the delayed
promotion.
III.
On appeal, plaintiff argues this is not a discrimination case, but rather,
that he pled sufficient facts to support claims under the NJCRA and NJRICO.
As for the NJCRA, he alleged defendants conditioned his promotion on his
relinquishment of his First Amendment rights. As to the NJRICO claims,
plaintiff alleged various incidents of conspiracy and extortion to coerce him into
changing his political affiliation—a pattern of racketeering—that promoted a
political patronage policy. He maintains his complaint survived the Rule 4:6-
2(e) motion.
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A.
The judge dismissed the NJCRA claim because the police department
promoted plaintiff—albeit after a delay—to lieutenant. The judge reasoned that
plaintiff therefore suffered no adverse employment action. Accordingly, the
judge concluded that without an adverse employment action sufficient to deter
a person from exercising his First Amendment rights, there was no claim under
the NJCRA.
The NJCRA affords a private right of action for conduct under the color
of law that interferes with rights secured by the constitutions of this State and
the United States. N.J.S.A. 10:6-2(c). The statute, which permits a cause of
action for retaliation based on free speech and political affiliation, provides in
pertinent part:
Any person who has been deprived of any . . . 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, may bring a civil
action for damages and for injunctive or other
appropriate relief.
[N.J.S.A. 10:6-2(c).]
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In general, "[a] plaintiff who alleges retaliation for political affiliation must
show: (1) he was employed at a public agency in a position that does not require
political affiliation; (2) he was engaged in constitutionally protected conduct;
and (3) the conduct was a substantial or motivating factor in the government's
employment decision." Lapolla v. Cty. of Union, 449 N.J. Super. 288, 298 (App.
Div. 2017) (internal quotation marks and citation omitted).
The United States Supreme Court has held that the grant or denial of a
promotion to a non-political position "based on political affiliation or support
are an impermissible infringement on the First Amendment rights of public
employees." Rutan v. Republican Party of Ill., 497 U.S. 62, 75 (1990). Indeed,
as we have recognized, public employees are protected under the First
Amendment "from promotion, transfer . . . and other hiring decisions
conditioned on political affiliation[.]" Lapolla, 449 N.J. Super. at 300 (citation
omitted). Thus, regardless of whether he suffered an adverse employment
action, plaintiff pled adequate facts of alleged retaliatory actions to sufficiently
chill him from engaging in a protected activity.
The Court rejected the notion that only employment decisions that are the
"substantial equivalent of a dismissal violate a public employee's rights under
the First Amendment." Rutan, 497 U.S. at 75 (internal quotation marks and
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citation omitted). Such a test would be "unduly restrictive" because there are
less harsh deprivations than dismissal that nevertheless "press state employees
and applicants to conform their beliefs and associations to some state -selected
orthodoxy." Ibid. The Court stated that the First Amendment protects state
employees from "even an act of retaliation as trivial as failing to hold a birthday
party for a public employee . . . when intended to punish [him or] her for
exercising [his or] her free speech rights." Id. at 75-76 n.8 (first alteration in
original) (citation omitted). The First Amendment safeguards individuals—
except in the most compelling circumstances—from interfering with "its
employees' freedom to believe and associate, or to not believe and not
associate." Ibid.Thus—and keeping in mind that courts grant Rule 4:6-2(e) motions only
in the rarest of instances—plaintiff's promotion to lieutenant did not render his
claim under the NJCRA nugatory. There remain multiple alleged facts that
support such a cause of action: he supported his brother-in-law's campaign, in
opposition to defendants and their allies; his promotion was conditioned on his
political support; he had to "make peace"; he had to buy a ticket to a political
fundraiser of the opposite party; and he was "penalized" for his association with
his brother-in-law. Furthermore, although he was not required to allege an
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adverse employment action, plaintiff did so by insisting that he lost $20,000
annually, he lost overtime pay, and his opportunity to sit for the captain's exam
in 2016 was delayed until 2019. Again, at this early stage in the litigation, we
must accept these allegations as true.
B.
The judge found plaintiff's complaint referred only to one instance of
alleged illegal activity—the delay in promotion to lieutenant. He dismissed
plaintiff's NJRICO claims because there was "no evidence of a continuo[u]s and
related pattern of racketeering activity." Applying our de novo review, we
conclude plaintiff alleged sufficient facts to establish claims under the NJRICO
statute, including various acts of conspiracy and extortion to coerce him into
changing his political affiliation.
NJRICO provides in pertinent part:
It shall be unlawful for any person employed by or
associated with any enterprise engaged in or activities
of which affect trade or commerce to conduct or
participate, directly or indirectly, in the conduct of the
enterprise's affairs through a pattern of racketeering
activity or collection of unlawful debt.
[N.J.S.A. 2C:41-2(c).]
NJRICO is broader in scope than the federal RICO statute. State v. Ball (Ball
I), 268 N.J. Super. 72, 104 (App. Div. 1993). New Jersey courts take a liberal
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stance in permitting plaintiffs to plead NJRICO violations, rejecting the narrow
construction of the federal statute that many circuits have adopted. Id. at 103-
104. "[T]he primary criterion of New Jersey's 'pattern of racketeering activity'
is 'relatedness,'" which "calls for the application of a broad standard involving
the totality of all relevant circumstances" that may include "continuity." State
v. Ball (Ball II), 141 N.J. 142, 169 (1995) (citation omitted). Pursuant to
N.J.S.A. 2C:41-2(c), a plaintiff must prove the following five elements:
(1) the existence of an enterprise; (2) that the enterprise
engaged in or its activities affected trade or commerce;
(3) that defendant was employed by, or associated with
the enterprise; (4) that he or she participated in the
conduct of the affairs of the enterprise; and (5) that he
or she participated through a pattern of racketeering
activity.
[Ball I, 268 N.J. Super. at 99.]
The statute defines a racketeering act to include any of the enumerated crimes
in N.J.S.A. 2C:41-1(a). A pattern of racketeering activity is defined with two
components: (1) at least two incidents of racketeering conduct (predicate acts);
and (2) the conduct must have "the same or similar purposes, results, participants
or victims or methods of commission or are otherwise interrelated by
distinguishing characteristics and are not isolated incidents." N.J.S.A. 2C:41-
1(d).
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Plaintiff claimed numerous discrete criminal incidents as part of his
alleged pattern of racketeering relating to conspiracy to extort an employee to
relinquish his First Amendment rights in exchange for a government benefit ,
and utilization of government positions to withhold a government benefit for a
corrupt purpose. Plaintiff maintains these incidents satisfy the elements of
corruption of a public resource, conspiracy, and extortion. He argues these
incidents were related to the same purpose: advancing an illegal patronage
policy, and promoting the mayor's political power.1 NJRICO uses the phrase
"incidents," while the federal RICO statute uses "acts." The Ball II Court noted
that the pertinent legislative history considered "act" to be overly restrictive,
"whereas an incident more aptly represents . . . circumstance or happening." 141
N.J. at 167 (internal quotation marks and citation omitted).
Under our standard of review, we must search the allegations in the
complaint to see whether they support a cause of action. Plaintiff alleged the
predicate acts of bribery, N.J.S.A. 2C:27-2 (indirectly offering plaintiff the
opportunity for promotion following solicitation of campaign funds ); theft by
extortion, N.J.S.A. 2C:20-5 (obtaining campaign funds by withholding action as
1
Plaintiff asserts that for pleading purposes, he alleged two predicate acts, but
that he could have included others such as conspiracy and wire fraud.
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an official); official misconduct, N.J.S.A. 2C:30-2 (unauthorized exercise of
power by withholding the promotion to injure plaintiff); and corruption of a
public resource, N.J.S.A. 2C:27-12 (using public resources to retaliate against
plaintiff). Along these lines, we look to the allegations and must give plaintiff
all favorable inferences.
That said, plaintiff alleged numerous incidents. He alleged that in
September 2014, Mayor Roque told him he had to "make peace with the hill,"
and he had to attend a political event sponsored by the other party. That
conversation, as alleged in the complaint, occurred in response to plaintiff's
inquiry about his own promotion once he learned that the first candidate on the
list received a promotion.
Also in September 2014, plaintiff arranged a meeting with the
Commissioner to discuss his promotion. He alleged that he then learned that
she would help "make things right," but that he could no longer support his
brother-in-law's campaign. Plaintiff asserted that the Commissioner also stated
that he needed to "make peace with the hill."
Plaintiff contended that in October 2014, he spoke to the Mayor and
confirmed he would attend the political event as a guest of the Mayor. But then
plaintiff talked to the Mayor and explained he would not attend. Plaintiff alleged
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he changed his mind because he concluded it should be sufficient that he was
the highest ranking eligible person for the promotion.
Plaintiff alleged that the Commissioner also conditioned his promotion on
further political action. He alleged that—in yet another incident—the
Commissioner called him in January 2015 about the photograph. Plaintiff
alleged the Commissioner stated no one believed plaintiff when he said he had
no knowledge of the photograph, and the Commissioner said that he was being
penalized for the photograph.
IV.
In summary, plaintiff alleged sufficient facts to overcome defendants'
Rule 4:6-2(e) motion. We reach that conclusion emphasizing our limited
standard of review. We anticipate the parties will engage in dispositive motion
practice on the NJCRA and NJRICO claims, including but not limited to
applications challenging whether defendants were part of an enterprise, and if
so, whether the purported enterprise was engaged in activities affecting
commerce. Those questions go more towards the merits of plaintiff's
allegations, rather than whether—affording plaintiff the benefit of all allegations
and all favorable inferences—plaintiff sufficiently alleged facts establishing a
valid cause of action. Of course, we take no position and leave to another day
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the outcome of any additional motion practice seeking to dismiss all or part of
the complaint.
Reversed.
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