Carmichael v. Thomson

Decision Date10 February 2023
Docket Number1:14-cv-3323-NLH-AMD
CourtU.S. District Court — District of New Jersey





Pending before the Court is Defendants John Scott Thomson, Louis Vega, Michael Lynch, Orlando Cuevas, Joseph Wysocki, J.L Williams, and the City of Camden's (Defendants) motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, (ECF 322),[1] and Plaintiff Anthony Carmichael's (Plaintiff) motion to seal pursuant to Local Civil Rule 5.3, (ECF 336). For the reasons expressed below, Defendants' motion for summary judgment will be granted and Plaintiff's motion to seal will be denied without prejudice.

I. Background

Plaintiff served on the Camden City Police Department (“CCPD”) from September 1994 until April 2013, at which point he joined the Camden County Police Department. (ECF 26 ¶ 4). Plaintiff was promoted to lieutenant in 2003 and was assigned to Internal Affairs in or around July 2008, where he served as acting captain and immediate supervisor to the entire unit until his transfer in April 2009. (Id. at ¶¶ 14, 21). Relevant to some of his claims, Plaintiff is African American. (Id. at ¶ 13).

Defendant John Scott Thomson was named police chief of CCPD in August 2008 and served in that position during the time relevant to this action. (Id. at ¶¶ 5, 18). Defendant Louis Vega was hired as CCPD's civilian police director on or about August 2008 and served in that position for the time covered by this action. (Id. at ¶¶ 10, 15). Defendants Orlando Cuevas and Michael Lynch served in the roles of inspector or deputy chief during the period in question. (Id. at ¶¶ 6-7). Defendants Joseph Wysocki and J.L. Williams both served as sergeants and, later, lieutenants. (Id. at ¶¶ 11-12).

During Plaintiff's time in Internal Affairs, CCPD was operating under a consent order entered by Judge Robert B. Kugler due to alleged irregularities within the unit, resulting in multiple reporting and other requirements. (Id. at ¶¶ 3132). Plaintiff was responsible for overseeing those requirements and ensuring compliance with New Jersey Attorney General (“NJAG”) Guidelines, including misconduct investigations. (Id. at ¶¶ 33, 46-47).

Plaintiff claims that Thomson began using Internal Affairs investigations improperly following his arrival as chief, including eliminating or ignoring practices adopted to comply with the consent decree. (Id. at ¶¶ 35-36). Plaintiff alleges that he met with Vega shortly after the latter's arrival and Vega voiced a desire to reprioritize Internal Affairs cases to focus on rules infractions and have members of CCPD fear him and fight for their jobs. (Id. at ¶¶ 24-26). During a meeting with Vega and Thomson, Plaintiff also claims that he was told that it was unnecessary to follow NJAG Guidelines, to which he shared his objections with City administration and was told to discontinue past investigatory practices. (Id. at ¶¶ 27-29).

Plaintiff was serving as an acting captain. (Id. At ¶ 43). On or about March 23, 2009, Plaintiff met with Thomson to discuss complaints and cross-complaints alleging misconduct by inspectors, the preliminary interviews for which supported subordinate officers' accounts and disciplinary charges for the superior officers. (Id. at ¶¶ 50-52). Thomson allegedly disagreed with Plaintiff's position that a full and complete investigation was necessary, (id. at ¶¶ 53-55), and with respect to a separate allegation against a sergeant by superior officers, Thomson expressed that he would instruct Plaintiff what to investigate and what not to investigate and that allegations made by upper-level officers did not require full investigations, (id. at ¶¶ 57-63). Plaintiff objected. (Id. at ¶ 64). A few weeks later, Thomson reportedly emailed Plaintiff to demand the completion of the charges for both cases despite knowing that the related investigations had not concluded. (Id. at ¶ 66). Plaintiff objected but complied. (Id. at ¶ 67).

On April 10, 2009, Plaintiff was informed that he was being transferred from Internal Affairs, (id. at ¶ 70), and following an emergency meeting of captains on April 20, 2009, Plaintiff was informed that he was being assigned as acting captain of the midnight shift of the Patrol Division to oversee “problem” officers effective immediately, (id. at ¶¶ 74-75). Plaintiff was effectively replaced in Internal Affairs by Wysocki, who is Caucasian and was moved from sergeant to acting lieutenant. (Id. at ¶ 77). During an April 23, 2009 meeting with City Business Administrator Christine Jones-Tucker, John A. Sosinavage, a lieutenant who was also transferred out of Internal Affairs, was allegedly told that Plaintiff was being passed over for a permanent captain's position due to retaliation. (Id. at ¶ 86).

Plaintiff filed the instant action on May 27, 2014, (ECF 1), and thereafter amended the Complaint, (ECF 26). Plaintiff's Amended Complaint alleges sixteen counts, (id.), nine of which remain pending against Defendants.[2] The Court summarizes the relevant counts by separating them into five general groups as follows.

A. Violations of the New Jersey Conscientious Employee Protection Act (“CEPA”) (Count 1)

Plaintiff alleges that Thomson, Lynch, Cuevas, and Vega instructed him to charge officers with serious offenses without conducting full investigations, (id. at ¶ 91), and to not investigate complaints against high-ranking officers, (id. at ¶ 89). Plaintiff claims that he objected to these orders, (id. at ¶¶ 89, 92), because he reasonably believed that they “were not in accord with the requirements under the NJAG Guidelines and believed that the orders violated the rights of the officer, and against public policy,” (id. at ¶ 93). As a result of his objections, Plaintiff claims that he was retaliated against, including his transfer, shift assignments, requirement to attend meetings without overtime, not receiving a permanent captain position, and excessive and unfair discipline. (Id. at ¶¶ 9495).

B. Violations of the New Jersey LAD (Counts 2 and 3)

Count 3 of the Amended Complaint also alleges retaliation by Thomson, Cuevas, Lynch, Wysocki, and Williams including lack of compensation, forced split shifts, and improper disciplinary charges and related interrogation and harassment. (Id. at ¶¶ 123-26).

Plaintiff submits, in the alternative, that he was discriminated against based on his race, forming the basis of Count 2. (Id. at ¶ 99). As an African American, Plaintiff is a member of a protected class and Plaintiff asserts that he engaged in protected activity when he objected to orders involving improper investigations and against violations of New Jersey Civil Service Rules. (Id. at ¶¶ 99-102).

Plaintiff states that, after his objections, he was transferred out of Internal Affairs and to the midnight shift of Patrol to supervise “problem” officers while Wysocki, a Caucasian sergeant his junior in rank, took charge of Internal Affairs. (Id. at ¶¶ 103-06). Later, when Plaintiff returned from Family Medical Leave, he was moved back down to lieutenant, first as a medical officer and soon after a lieutenant of Special Operations. (Id. at ¶¶ 109, 111-12). Plaintiff was assigned to work under Captain Prince L. Burnett, who was allegedly “manipulated” into a captain position over Plaintiff, and was replaced by Sosinavage, who is Caucasian, as acting captain. (Id. at ¶¶ 112-13). Plaintiff further claims that he was improperly and excessively charged as absent without official leave for attending a union meeting while others were permitted to take administrative leave, (id. at ¶¶ 114-16), and was otherwise retaliated and discriminated against by Thomson, Lynch, Cuevas, Vega, and the City to the point of needing medical leave and treatment, (id. at ¶¶ 117-19).

C. Infringement on Plaintiff's Speech Rights Under the United States and New Jersey Constitutions (Counts 4 and 16)

Plaintiff asserts in Count 4 that he spoke out on matters of public concern as a public employee, board member of a bargaining unit, and individual, (id. at ¶¶ 129-30), and that his exercise of his free-speech right referenced practices of intimidation and retaliation as well as civil service placement practices, all of which Plaintiff believed violated the laws, rules, and regulations of New Jersey, (id. At ¶¶ 132-34). Plaintiff claims that retaliation against him began within days of his protected speech, (id. at ¶¶ 135-36, 142), and that Thomson - in consultation with Vega, Lynch, and Cuevas - created a custom or practice of improper Internal Affairs practices and discipline and violation of NJAG Guidelines and promotion practices, (id. at ¶¶ 137-41).

Similarly, Count 16 claims that Plaintiff's speech concerning Internal Affairs, the state lawsuit filed in April 2010 and related testimony,[3] and objections to CCPD practices all constituted protected speech. (Id. at ¶¶ 255-59). Due to this speech, Plaintiff claims that he was retaliated against in violation of the New Jersey Constitution. (Id. at ¶¶ 260-61).

D. Discrimination and Retaliation in Violation of 42 U.S.C. § 1983 (Counts 6 and 8)

In Count 6 of the Amended Complaint, Plaintiff alleges that, as an African American, he is a member of a protected class and that he was discriminated against based on race when he was transferred out of Internal Affairs and replaced by Wysocki - a Caucasian sergeant with less experience, replaced as acting captain by Sosinavage, forced to work split shifts while Caucasian peers did not,...

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