Foster v. Twp. of Pennsauken
| Decision Date | 07 August 2018 |
| Docket Number | Civil Action No. 16-5117 (JBS/KMW) |
| Parties | DOUGLAS FOSTER, Plaintiff, v. TOWNSHIP OF PENNSAUKEN, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
HONORABLE JEROME B. SIMANDLE
APPEARANCES:
Mark Robert Natale, Esq.
Leo B. Dubler, III, Esq.
LAW OFFICES OF LEO B. DUBLER, III, LLC
20000 Horizon Way
Suite 300
Mount Laurel, NJ 08054
Attorneys for Plaintiff
Corey S.D. Norcross, Esq.
Francis X. Manning, Esq.
STRADLEY RONON STEVENS & YOUNG LLP
2005 Market Street
Suite 2600
Philadelphia, PA 19103
Attorneys for Defendants
Table of Contents
I. INTRODUCTION ....................... 2
II. FACTUAL AND PROCEDURAL HISTORY .............. 3
A. Factual Background ................... 3
B. Procedural Background ................. 14
III. STANDARD OF REVIEW ................... 20
IV. DISCUSSION ....................... 21
A. First Amendment Retaliation (Freedom of Speech): Speech or Conduct as a "Private Citizen" ............... 22
B. First Amendment Retaliation (Freedom of Association) . . 47
C. Qualified Immunity ................... 70
D. Monell Liability .................... 89
V. CONCLUSION ........................ 96
I. INTRODUCTION
Plaintiff Douglas Foster (hereinafter, "Plaintiff") brings this suit against Defendants John Coffey, Michael Probasco, Scott Gehring, Thomas Connor, and the Township of Pennsauken (hereinafter, "Defendants") for their alleged retaliatory actions following Plaintiff's exercise of what he alleges were his First Amendment rights of free speech and association. Plaintiff, a former police officer with the Pennsauken Police Department, alleges that his termination in May 2015 was motivated by a campaign of retaliation by the Defendants, his supervisors and employer, in response to his advocacy for changes in the length of officer shifts and his association with his police union.
The Court previously granted Defendants' motion to dismiss without prejudice under Rule 12(b)(6), Fed. R. Civ. P. [Docket Items 27 & 28.] Plaintiff subsequently filed an Amended Complaint [Docket Item 29], and Defendants filed another Motionto Dismiss pursuant to Rule 12(b)(6) [Docket Item 32], which is presently before the Court.
The principal issues to be decided include: whether the Amended Complaint contains adequate allegations that Plaintiff engaged in the allegedly-protected speech and/or conduct as a private citizen; whether the Amended Complaint contains adequate allegations of protected associational conduct; whether the Amended Complaint contains adequate allegations of a causal link between any protected associational conduct and the alleged retaliation; whether the Defendants may assert a qualified immunity defense; and whether Plaintiff adequately pleads municipal liability under Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). For the following reasons, the motion to dismiss will be denied without prejudice.
II. FACTUAL AND PROCEDURAL HISTORY1
A. Factual Background
The underlying facts of this suit were recited in the Court's previous Opinion on the earlier motion to dismiss [Docket Item 27] and will not be repeated at length here. TheCourt incorporates the facts as set forth in that Opinion to the extent that the Amended Complaint restates those facts. The Court therefore recounts only the additional allegations contained in the Amended Complaint, writing primarily (if not exclusively) for the parties and assuming the reader's familiarity with the facts, focusing on only those additional facts that are relevant to the Court's determination.
Plaintiff, a police officer with the Pennsauken Police Department and an active member of the labor union representing Pennsauken police officers (the Fraternal Order of Police ("FOP")), alleges that he was retaliated against for his speech and/or conduct advocating a move to a twelve-hour-shift for Pennsauken police officers, and/or his union association in relationship to the union's advocacy of that position in violation of his First Amendment rights and 42 U.S.C. § 1983. (Am. Compl. ¶¶ 256, 257.)
Plaintiff was hired by the Pennsauken Police Department in 2003, and in or around late 2009 to early 2010, Pennsauken and its police department "began considering switching police officers to twelve hours shifts." Id. ¶¶ 11, 15, 55. As Plaintiff describes, this issue implicated not only internal disputes between police officers and the Department regarding hours, but also public safety (the switch to twelve-hour shifts would enable enough police coverage so that one of Pennsauken'ssix [districts] would have a police officer assigned to it overnight, whereas without twelve-hour shifts, only five out of six [districts] had such coverage on any given night) and the municipal budget (not having twelve-hour shifts led to Pennsauken being required to pay substantial overtime wages to police officers that Plaintiff believed would be alleviated with the proposed change). Id. ¶¶ 16, 23, 27, 34-51.
"Throughout the first half of 2010, Foster learned more about the issue and became adamant in his support of twelve hour shifts." Id. ¶ 56. Although many of Plaintiff's supervisors were against the switch to twelve-hour shifts and "regularly spoke out against the switch," Plaintiff "actively campaigned and advocated in favor of switching[,]" "arguing that the change would improve officer safety, public safety, and save the municipality a substantial sum of money." Id. ¶¶ 18-19, 21, 23.
Plaintiff also alleges that he "associated with the FOP in their efforts to switch to twelve hour shifts" and that he "was an active member of FOP leadership, and advocated for the switch through his association with the FOP[,]" thereby "exercising his First Amendment rights in two ways[:]" "First, Foster would regularly speak out in favor of twelve hour shifts, clearly articulating his belief that it was the best option for public safety and for the citizens of Pennsauken" (including "regular criticism" of his supervisor for not supporting the switch) "asa private citizen criticizing public leaders for failing to embrace a necessary public policy"; and secondly, "Foster exercised his First Amendment rights . . . by freely associating with his union--the FOP[,]" becoming "a leader in their union and their efforts to push for twelve hour shifts[,]" representing (at the election of his co-workers) "his shift at union meetings focused on developing the new contract that would include twelve hour shifts[,]" performing both of these alleged First Amendment activities ("his own private speech" and "his association with his union") in advocating for the switch "because it would serve the best interest of the public." Id. ¶¶ 24-33.
Plaintiff alleges that his advocacy was aimed not only at his coworkers but also "regularly" "to other citizens[,]" as his "interest in twelve hour shifts went well beyond his employment as a Pennsauken police officer, and was rooted in what he felt was best for Pennsauken township[,]" because he had previously lived there for eighteen years, and, at the time, his mother, "siblings, relatives, and life-long friends still lived in Pennsauken." Id. ¶¶ 50-54. He describes, in the summer of 2010, advocating for the switch to (and convincing) two Pennsauken police officers, stating that he "focused on the benefits" to them as "Pennsauken resident[s]--namely, the increased safety and the savings in the public budget." Id. ¶ 60-65. Plaintiffalleges that it was during the summer of 2010 that "it was discovered and well known by FOP leadership [sic] (including the Defendants), that Foster was speaking out in favor of twelve hour shifts to [those] Pennsauken residents" (and police officers). Id. ¶ 67.
He advocated for the same to his family members during the summer and fall of 2010, including his mother and sister ( focusing on the increased public safety that would result in the Fourth District of Pennsauken, where they lived), "because he felt it was an important issue for Pennsauken residents" and urged them to support the switch publicly "because he felt the community should be educated on and supportive of the measure." Id. ¶¶ 68-75. He made some of these comments in front of his then-brother-in-law, as well, who relayed Plaintiff's remarks to Sgt. Lenny Rebilas of the Pennsauken Police Department, who told Defendant Coffey "that Foster was speaking as a private citizen in favor of twelve hour shifts to citizens of Pennsauken." Id. ¶¶ 76-84. Plaintiff also mentions speaking to two other residents (the Brownells) who were active community members and convincing them to support the switch. Id. ¶¶ 85-89.
Similarly, Plaintiff advocated for his position in favor of the switch at a social Halloween party hosted by a fellow police officer at his home on October 30, 2010, which was attended byofficers and their families, as well as "many Pennsauken residents, not only police officers," who were present for the discussion and heard Plaintiff's advocacy which, Plaintiff again alleges, "was at a function with many non-police Pennsauken residents and focused on why the policy benefited the public at large." Id. ¶¶ 90-100. Plaintiff alleges that the leadership of the Police Department (including the Defendants) learned about the party, the lively debate that ensued there, and that Plaintiff was advocating in favor of twelve-hour shifts. Id. ¶¶ 99-100.
Also in the fall of 2010, Plaintiff alleges he convinced a former twelve-hour shift opponent (a fellow officer) to support the switch "as one private citizen to another, both of whom were concerned about family members who lived in Pennsauken," on the grounds that the switch "would increase public safety" and "would have a positive impact...
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