McDevitt v. Borough of Clementon
| Decision Date | 28 January 2020 |
| Docket Number | Civil Action No. 18-17092 |
| Parties | JOSEPH MCDEVITT, Plaintiff, v. BOROUGH OF CLEMENTON, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
Hon. Joseph H. Rodriguez
This matter comes before the Court on Partial Motions to Dismiss Plaintiff's Complaint by Defendants, Mark Armbruster, Borough of Clementon, Jonathan Fisher, Charles Grover, Jenai Johnson, and Thomas Weaver [Dkt. No. 6]; and Defendant, Randall Freiling [Dkt. No. 7] (collectively "Defendants"), pursuant to Fed. R. Civ. P. 12(b)(6). Having considered the parties' written submissions, the Court decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons stated below, the Court will deny in part and grant in Defendants' Partial Motions to Dismiss [Dkt. Nos. 6, 7].
Plaintiff, Joseph McDevitt ("Plaintiff"), has been employed with the Clementon Borough Police Department as a Patrolman since February 28, 2006. . In or about August 2010, Plaintiff initiated a lawsuit against Defendant, Borough of Clementon (the "Borough"), in which Plaintiff claimed the Borough was liable for violations of the New Jersey Conscientious Employment Act ("CEPA") and the New Jersey Law Against Discrimination ("NJLAD"). (Id. at ¶ 46). As the parties are undoubtedly familiar with the circumstances surrounding that lawsuit, the Court will not recite them here. In September 2012, Plaintiff ultimately settled his 2010 lawsuit. (Id. at ¶ 47). Plaintiff brings the present action against Defendants alleging, in-part, that Defendants have retaliated against him for initiating his previous lawsuit.
Plaintiff's detailed and lengthy complaint alleges that "from 2012 through the present, Plaintiff has engaged in numerous legally-protected activities." (Id. at ¶53(L)). According to Plaintiff, such activities include: complaints about Defendant Grover's violations of law, Defendants' overall compliance with numerous laws, and criminal conduct of Defendant Borough's management; formal fillings beginning in 2015 pertaining to violations of his rights under the National Labor Relations Act by Defendants Grover and Freiling and; disclosing certain health issues. (Id. at ¶ 54 (a)-(f)).
Next, Plaintiff alleges that he was subjected to a hostile work environment under the supervision of Defendants Freiling and Grover "from the end of his lawsuit in 2012 through the present, a period of almost 6 years." (Id. at (M), ¶ 56). During that time, Defendant Grover acted as Lieutenant and, ultimately, Chief of Police. (Id. at ¶ 58). Plaintiff alleges that Defendant Grover was the "primary source of his hostile work environment," and alleges that he experienced the following hostility from 2012 through this filing:
Plaintiff has been assigned more duties than any possible officer could handle . . . has consistently been required to work on days scheduled off, has had scheduling requests denied or ignored, and Defendant Grover has refused to honor previously submitted vacation requests. . . . Plaintiff has been given permission to perform certain tasks, directed to perform duties . . . and then Plaintiff has learned that Defendant Grover . . . falsely asserted to Defendant Freiling or others that Plaintiff did so without consent or authorization . . . Plaintiff has been spoken to in a demeaning manner and treated terribly . . . has been denied by Defendant Grover adequateassistance or backup in performing his police duties . . . has been singled out for embarrassment or humiliation . . . Plaintiff sustained a negative credit rating and collections contacts because he was lied to for nearly 10 months by said Defendants that his medical bill [for a work-injury] was submitted for payment . . . Plaintiff has been repeatedly investigated, audited, scrutinized and questioned about his conduct, time records, investigations, and other work performance. . . . Plaintiff has been denied promotions. . . . required to undergo a fitness-for-duty examination. . . . placed on an involuntary medical leave. . . . [and] had his personnel file and career substantially impaired with career jeopardizing false allegations.
(Id. at ¶ 57, 61 (a)-(m)).1 Plaintiff's complaint further illustrates a number of allegedly retaliatory actions Defendants took against him. For example, between 2013 and 2014, Defendant Grover attempted to reprimand the Plaintiff for improperly using a police vehicle, though he had requisite permission. (Id. at ¶¶ 63-65). Defendant Grover also initiated false IA complaints against Plaintiff for theft. In one instance, Plaintiff claims (Id. at ¶ 72). Plaintiff contends that in June 2016, Defendant Fisher also lodged an IA investigation against him based on false accusations—those accusations were deemed baseless. (Id. at ¶¶ 81-84).
As a result of Defendants' treatment towards Plaintiff, he alleges that he developed an anxiety disorder, amongst other health conditions. (Id. at ¶ 88). "By letter dated April 2, 2018, Defendant Johnson (Defendant Borough Administrator) confirmed knowing of Plaintiffs health concerns, requests for medical absenteeism, and identifiedthat 'Clementon Borough agrees to make reasonable accommodations' for Plaintiff (as to requested time off for medical reasons)." (Id. at ¶ 90). At some point, Plaintiff approached his two (2) supervisory officers (Sergeants Worrick and Boyle) about his health and concerns of retaliation; he asked them to communicate his concerns to Defendant Grover. Defendant Grover asked the Sergeants to put the information Plaintiff expressed to them in writing. According to Plaintiff, Defendant Grover did not meet with him, but "elected instead to pretextually and for false reasons place Plaintiff on an involuntary leave of absence effective June 8, 2018" and required Plaintiff to perform a fitness for duty evaluation prior to returning to work. (Id. at ¶¶ 94-97). On leave, the Borough paid Plaintiff based upon a regular work schedule, which did not include "over 40 hours of overtime" that Plaintiff was already scheduled to work. (Id. at ¶ 99). Plaintiff went for an examination on June 13, 2018 where a clinical psychologist concluded Plaintiff "had no basis to be placed out of work." He was permitted to return to work on June 22, 2018. (Id. at ¶100).
Upon Plaintiff's return, he was suspended for five (5) days "per Defendant Grover." (Id. at ¶ 103, 105). According to the Complaint, Plaintiff's suspension occurred for three reasons:
(1) Abuse of sick time" and his "excessive use of sick time amounts to 87 hours to date for the calendar year 2018;" (2) "Removing official documents from Department without Permission" in reference to Plaintiff performing work in his police vehicle; and (3) "insubordination" as to not providing information to another officer stemming from Plaintiffs forced medical leave.
(Id. ). Plaintiff's Complaint explains how each of the provided reasons for his suspension were false. (Id. ¶ at 104). Defendants labeled Plaintiff's discipline as "minor" even though "in accordance with all applicable policies governing Defendant Borough, 60hours of unpaid time is clearly a form of 'Major Discipline' (triggering different civil service rights of an employee)." (Id. at ¶ 105). The civil service rights afforded with "major" discipline, permitted Plaintiff to appeal his unpaid suspension. Following service of Plaintiff's appeal, Defendants Johnson and Grover adjusted Plaintiff's suspension to a 3-day suspension—a "minor" discipline that does not trigger the same rights, such as a right to appeal—causing a withdrawal of Plaintiff's civil service commission appeal. (Id. at ¶ 108). Defendants held a disciplinary hearing, where Defendant Johnson was the sole arbiter. Plaintiff alleges that "Defendant Johnson told Plaintiff she would hold off on issuing any decision substantiating or non-substantiating the discipline if Plaintiff left Defendant Borough's Police Department and found a job elsewhere immediately," Plaintiff refused. (Id. at ¶¶ 109-112).
Finally, Plaintiff alleges that despite open positions within the Clementon Police Department (above Plaintiff's current position), he was denied promotions. He claims that "Defendants disseminated an intent to specifically hire and/or promote a detective in writing (in or about November of 2017)—but when Plaintiff was the only officer formally seeking such an elevation—Plaintiff was not elevated or considered." (Id. at ¶ 121).
Based on the aforementioned, Plaintiff alleges the following claims against all Defendants: Violations of CEPA (Count I), Violations of the NJLAD (Count II), Violations of Due Process (Count III), Malicious Prosecution (Count IV), First Amendment Retaliation (Count V), Intentional infliction of Emotional Distress (Count VI), and Violations of the Family and Medical Leave Act ("FMLA") (Count VII). Defendants Mark Armbruster, the Borough, Jonathan Fisher, Charles Grover, Jenai Johnson, and Thomas Weaver, filed a Partial Motion to Dismiss Plaintiff's Complaint[Dkt. No. 6]; and Defendant Randall Freiling filed a Partial Motion to Dismiss, relying on his fellow Defendants' briefing. [Dkt. No. 7].
Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of a claim based on "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A complaint should be dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint, matters of public record, orders, and exhibits attached...
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