Gomez v. Town of W. N.Y.

• Decision Date: 04 November 2013
• Docket Number: Civ. No. 2:13-689 (WJM)
• Parties: ALAIN GOMEZ, Plaintiff, v. TOWN OF WEST NEW YORK, et al., Defendants.
• Court: U.S. District Court — District of New Jersey

ALAIN GOMEZ, Plaintiff, v. TOWN OF WEST NEW YORK, et al., Defendants.

Civ. No. 2:13-689 (WJM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Date: November 4, 2013

OPINION

WILLIAM J. MARTINI, U.S.D.J.:

Plaintiff Alain Gomez brings this action against the Town of West New York, Mayor Felix Roque, Deputy Mayor Silvio Acosta, Commissioner FiorD'Aliza Frias, and the Mayor's son, Joseph Roque¹ (collectively "Defendants"), alleging various violations of state and federal constitutional rights as well as a violations of New Jersey's Conscientious Employee Protection Act ("CEPA"). This matter comes before the Court on Defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). There was no oral argument. L. Civ.R. 78.1(b). For the reasons set forth below, Defendants' motion to dismiss is DENIED.

I. BACKGROUND

Plaintiff alleges that Defendants harassed him and terminated him from a position as the UEZ Coordinator for the Town of West New York for (1) refusing to use public resources to fundraise for Mayor Roque's private not-for-profit organization; (2) making a complaint to PEOSHA; (3) speaking about the misuse of public resources and other alleged abuses in Roque's government; and (4) contributing to a website called www.recallroque.com.

Plaintiff is a long-time, politically active resident of West New York. (Complaint at ¶ 15-16) He was an employee of the Town from 1998 until 2008.(Complaint at ¶ 17-19) His father is also an employee of the Town. (Complaint at ¶ 22)

Plaintiff was a political supporter of Felix Roque's successful 2011 campaign for West New York Mayor. (Complaint at ¶ 24-27) In May 2011, the same month that Roque won the election, the Town rehired Plaintiff as a data processing clerk and then promoted him to UEZ Coordinator the next month. (Complaint at ¶ 20-21) Plaintiff alleges that he held a civil service position. (See Complaint at ¶ 99)

Soon after taking office, Mayor Roque began to face resistance from members of his administration, employees, and his constituents who had once supported Roque as a reformer. (Complaint at ¶ 28) Plaintiff alleges that Roque responded to the dissention by removing Commissioner Count J. Wiley as the Director of the Department of Public Works and firing various Town employees without cause, threatening to report individuals for tax audits, and making false statements to news agencies regarding municipal employees. (Complaint at ¶ 29)

On December 5, 2011, Mayor Roque asked Gomez to secure contributions for the Mayor's charitable not-for-profit organization, West New York Forever, from merchants that are part of the UEZ. (Complaint at ¶ 31-32) When Gomez reported later that month that he had made no progress, Mayor Roque harassed him by calling him demeaning names and ordered Gomez to go out during work hours and "use public resources" to secure contributions. (Complaint at ¶ 33) Gomez refused, alleging that he knew "using public resources" during work hours and under the auspices of his office to secure these contributions was illegal. (Complaint at ¶ 36)

Gomez claims that Defendants immediately retaliated against him by relocating him to a small office with improper ventilation. (Complaint at ¶ 38-40) He complained to the Public Employees Occupations Safety and Health Department ("PEOSHA"), which issued a Notice of Order to Comply to the Town on January 31, 2011. (Complaint at ¶ 41-44)

At the same time, Gomez claims he became interested in a website called www.recallroque.com (the "Recall Website") and contributed to the website's content. (Complaint at ¶ 45-46) At the same time, he also decided to run for Vice President of his local union, and during the campaign, he spoke out about Mayor Roque's abuses, including the misuse of public resources. (Complaint at ¶ 47)

Gomez reported Mayor Roque's allegedly illegal demand that he use public resources to fundraise for West New York Forever to Town Administrator Carmela Riccie. (Complaint at ¶ 49) Riccie agreed with Gomez's concerns. (Complaint at¶ 50) Riccie set up a meeting with Town Commissioner Frias, who oversaw the UEZ. (Ibid.) Gomez and Riccie attended the meeting. (Ibid.) At this meeting, Riccie advised that Gomez was not to do fundraising during work hours. (Complaint at ¶ 51) Gomez claims that Frias is "politically aligned" with Roque. (Complaint at ¶ 52)

Shortly after the meeting with Commissioner Frias, Mayor Roque called Gomez, referenced the meeting with Commissioner Frias, expressed his displeasure, and threatened to terminate him. (Complaint at ¶ 53) Two days later, on February 3, 2012, Gomez was terminated. (Complaint at ¶ 54) Gomez had no hearing and claims that the reason for his termination, forging Commissioner Frias's signature, was pretextual. (Complaint at ¶ 55)

Plaintiff also alleges that "Mayor Roque and his "co-conspirators" illegally hacked the Recall Website and discovered the extent of the support for the recall of Mayor Roque. (Complaint at ¶ 67) Mayor Roque and these co-conspirators also allegedly hacked into Gomez's personal e-mail accounts for the purposes of "quelling" his First Amendment rights. (Complaint at ¶ 68) Although these "co-conspirators" are not named in Gomez's Complaint, there is a criminal complaint that alleges Joseph Roque conspired with his father and hacked into the Recall Website and an anonymous victim's personal e-mail account. (See U.S. v. Roque, 2:12-cr-540, ECF No. 1)

A few weeks after Gomez's termination, Mayor Roque and Deputy Mayor Acosta had a meeting with Gomez about the Recall Website where Roque "threatened and intimidated" Gomez. (Complaint at ¶ 58-62) At this meeting, Roque and Acosta presented documents to Gomez and stated that the documents were proof that Gomez and others were trying to create a petition to recall Roque as Mayor. (Complaint at ¶ 60) At the end of the meeting, Roque and Acosta allegedly offered to rehire Plaintiff as the Deputy Director of the Parks Department. (Complaint at ¶ 62) The next day, Plaintiff alleges he was demoted to the position of garbage collector without any kind of hearing. (Complaint at ¶ 64)

Plaintiff also alleges that even after the end of his employment, Defendants continued to subject him to harassment that included calling him names, making disparaging comments about him to the public and the media, threatening his father's employment with the Town, keeping him under surveillance, and uttering humiliating, intimidating, and threatening remarks. (Complaint at ¶ 69-70)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion to dismiss under Rule 12(b)(6), a court must take all allegations in the complaint as true and view them in the light most favorable to the plaintiff. See Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts Inc., 140 F.3d 478, 483 (3d Cir. 1998) (citing Warth v. Seldin, 422 U.S. 490, 501 (1975)).

Although a complaint need not contain detailed factual allegations, "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the factual allegations must be sufficient to raise a plaintiff's right to relief above a speculative level, such that it is "plausible on its face." See id. at 570; see also Umland v. PLANCO Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). While "[t]he plausibility standard is not akin to a 'probability requirement' . . . it asks for more than a sheer possibility." Id. at 678.

III. DISCUSSION

Plaintiff's four-count Complaint alleges that Defendants engaged in conduct entitling him to relief under 42 U.S.C. § 1983 for violations of his First Amendment Rights and under the New Jersey Civil Rights Act (NJCRA) for violations of parallel rights guaranteed under Article I of the New Jersey Constitution. Plaintiff also seeks relief under 42 U.S.C. § 1983 and NJCRA for removal from his job without procedural due process.

Both 42 U.S.C. § 1983 and NJCRA provide an avenue for legal relief against public officials who act under the color of law to violate a plaintiff's constitutional rights. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005); Rezem Family Associates, LP v. Borough of Millstone, 423 N.J. Super. 103, 115 (App. Div. 2011). NJCRA was modeled after § 1983, and the elements of claims brought under NJCRA are usually the same as under § 1983. Id. at 115. See also Trafton v. City of Woodbury, 799 F. Supp. 2d 417 (D.N.J. 2011) ("This district has repeatedly interpreted NJCRA analogously to § 1983.").

Plaintiff additionally seeks relief under New Jersey's whistleblower statute, CEPA, N.J.S.A. § 34:19-1.

Defendants seek dismissal of each count of the Complaint as well as dismissals of each of the individual Defendants.

A. Counts of the Complaint

Plaintiff has stated claims for each of the four counts of the Complaint. The reasons are set forth below.

1. First Amendment / Article I Claims (Counts One and Two)

In Counts One and Two of the Complaint, Plaintiff does state a claim for violations of rights guaranteed by the First Amendment of the U.S. Constitution ("First Amendment") and Article I of the New Jersey Constitution ("Article I"). Free speech claims under the New Jersey Constitution are interpreted consistently with free speech claims under the First Amendment. Johnson v. Yurick, 156 F....