Alan Schorr’s Case of The Week ending November 23, 2012

Fredericks v. Township of Weehawken, 2:11–05363 (WJM), 2012 WL 5628196 (D.N.J. November 15, 2012)

This week presents yet another interesting decision in a CEPA claim, as well as the New Jersey and Federal Civil Rights Act, Fredericks v. Township of Weehawken. In this case the Plaintiff, for the most part, successfully defended against a motion to dismiss. In doing so, this case presents some important lessons about drafting CEPA and NJCRA Complaints.

Apparently, Weehawken is not a great place to be a public employee. In October 2008, a police lieutenant filed a Civil Rights lawsuit against Weehawken and its mayor, Richard Turner. On September 20, 2010, that plaintiff filed a brief in which he attached a Certification from Joseph Fredericks, the plaintiff in this case. Fredericks’ Certification portrayed Mayor Turner as a power- broker who exerts improper influence on Township Governance, and alleged that Turner has knowingly ordered the assessment of illegally high taxes.

Fredericks, who filed this suit on September 16, 2011 alleged in his CEPA claim that he fell victim to six separate acts of retaliation, including not being permitted to attend a seminar he had attended the previous fifteen years, denial of promised back pay, and being passed over for a raise he claimed he was legally entitled to. He alleged in separate Civil Rights claims brought under Federal law 42 U.S.C. §1983 and State law under the NJCRA that his First Amendment Rights and Constitutional Right to Petition were violated by the retaliation. He alleged that he had complained about these same unlawful activities prior to submitting the Certification.

The Court dismissed a couple of the claimed retaliatory actions regarding back pay, finding that they constituted discrete employment actions, and that those discrete actions were barred by the one year statute of limitations. That problem could have been ameliorated by the addition of a Pierce claim for common law retaliatory discharge, which has a two year statute of limitations, but Fredericks did not include a Pierce claim in his Complaint. The Court, however, considered that the other retaliatory actions, while not qualifying as discrete actions on their own, constituted a claim of hostile working environment under CEPA.

Practitioners are accustomed to bringing hostile working environment claims under the New Jersey Law Against Discrimination, but sometimes miss the fact that CEPA also protects against hostile working environment. The Court does a good job of explaining the elements necessary to plead hostile working environment under CEPA. A hostile working environment claim can also be used in order to enlarge the statute of limitations.

The Civil Rights claims are equally instructive. Fredericks brought both Federal and State Civil Rights actions. Although Fredericks filed directly in Federal Court, I would recommend filing in State Court and hope the case is not removed. Whether to bring the Federal claim depends upon the facts of the case. 42 U.S.C. §1983 provides a remedy for both procedural and substantive due process claims. New Jersey Courts have been consistently dismissing claims under the NJCRA for substantive due process claims and the NJCRA expressly does not protect procedural due process claims. However, under §1983, punitive damages are not available against public entities. It is not yet conclusively established as to whether punitive damages would be available against public entities under the NJCRA, but it is well established that punitive damages against public entities are permissible under CEPA and the NJLAD, so it would be peculiar if the NJCRA were singled out for non-protection.

In this case, the plaintiff prudently avoided the morass of confusion caused by asserting due process claims and concentrated on the tried and true Civil Rights claims of violation of the First Amendment right to free speech and the right to petition the government for relief. The Court held that these simple claims were, in fact, protected by both §1983 and the NJCRA, and permitted all four of those Counts to proceed. You can click here for Fredericks’ Complaint and brief in opposition to the Motion to Dismiss, which is well-written and contains some very useful law and argument. My favorite part of the brief is the vivid description provided by Plaintiff’s counsel of Mayor Turner:

“In short, Mayor Turner is a shorter version of Vladimir Putin, the Russian President, who exerts complete and utter control over the government through puppets beholden to him.” Plaintiff’s Brief at 14.

The Federal Court got this one right, and considering the harsh treatment of CEPA by the State Appellate Division lately, the choice of venue is becoming a closer call, although I would still recommend State Court because I believe that our Supreme Court is still interested in maintaining the vitality of CEPA. It will be interesting to see how this case progresses. In the meantime, this case can be used to support CEPA hostile working environment claims and Civil Rights actions.

Plaintiff’s counsel: Louis A. Zayas, Law Office of Louis A. Zayas

Defendant’s counsel: Richard P. Cushing, Gebhardt & Kiefer, PC; David F. Corrigan

District Court Judge: William J. Martini, U.S.D.J.