Walter W. YOUNG, Jr., Appellant v. TOWNSHIP OF IRVINGTON; Irvington Police Department; Harold C. Bork, Jr.; Andrew Boryschuk; Miles Brown; Charges P. Burghardt; Michael L. Chase; Ralph Collura; Michael V. Damiano; Nicholas J. Gargas; Franciszek P. Piwowareczyk; Maurice Gattison; Amanda Koontz; Thomas P. Massimino; Stephen F. McNally; John J. Molisso; Sharon Noel; Jamie Oliveira; Joseph J. Santiago; Melvin Shamberger; Ladimir Tavares; Crawford Whiting; Irvington Legal Department; Marvin Braker; Gustavo G. Garcia; Willie Parker; Law Office of Iacullo Martino; Anthony J. Iacullo; Kathleen C. Feeney; Paula Dow; Clara Rodriguez; Essex County Prosecutor; County; John Does 1-5, (Said Names Being Fictitious Individuals, Corporations, and/or Entities who Participated in and/or Facilitated in the Wrongful Termination, Retaliation, and Discrimination all Jointly, Severally, and Individually)
No. 13-4353
United States Court of Appeals, Third Circuit
October 19, 2015
628 F. Appx 352
Finally, we consider whether the state court will adequately protect the interests of the parties. This factor is generally a one-way ratchet, serving only to weigh against abstention where a state court is incapable of protecting a party‘s interests. See id. at 26-27, 103 S.Ct. 927 (concluding this factor weighs against abstention when it is questionable if a state court has the power to grant an order compelling arbitration under the FAA); Ryan, 115 F.3d at 200 (observing “this factor is normally relevant only when the state forum is inadequate“). Here, because we have no indication that the Pennsylvania courts are unable to protect the parties’ interests, we attribute no weight to this factor. See Spring City Corp., 193 F.3d at 172 (quoting Ryan, 115 F.3d at 200) (noting “the question whether parties’ interests are protected is only relevant when they are not; that is, ‘when the state court is adequate, . . . [this] factor carries little weight.‘“); see also Nationwide, 571 F.3d at 308 (determining that this factor “[did] not significantly inform [an] analysis [where] the FAA grants concurrent jurisdiction to federal and state courts and thus expressly contemplates the state court as an adequate forum for adjudication“).
...
Upon balancing the relevant factors, and mindful of our duty to “heavily weigh[] [them] in favor of the exercise of jurisdiction,” we conclude that the “exceptional circumstances” required to abstain under Colorado River are not present in this case. Moses H. Cone, 460 U.S. at 16, 19, 103 S.Ct. 927. Because Colorado River abstention was the sole ground for the District Court‘s dismissal of the action, it did not have occasion to reach the merits of Minich‘s other arguments for dismissal.
We leave those issues for the District Court to address in the first instance on remand.
* * *
We conclude the District Court abused its discretion in determining that the Colorado River factors weighed in favor of abstention. Accordingly, we vacate the District Court‘s order and remand for proceedings consistent with this opinion.
Andrew M. Moskowitz, Esq. Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins Springfield, NJ, for Appellant.
Michael A. D‘Aquanni, Esq., Roth Horowitz, Springfield, NJ, Aldo J. Russo, Esq., Lamb Kretzer, Secaucus, NJ, Matthew J. Connahan, Esq., Maloof, Lebow-
BEFORE: SHWARTZ, KRAUSE and COWEN, Circuit Judges.
OPINION*
COWEN, Circuit Judge.
Plaintiff Walter Young, Jr., appeals from the orders of the United States District Court for the District of New Jersey insofar as they dismissed his claims under the New Jersey Conscientious Employee Protection Act (“CEPA“), the New Jersey Law Against Discrimination (“LAD“), and
I.
Young was a lieutenant in the Irvington Police Department when his employment was terminated on October 19, 2010. According to Young, “Plaintiff‘s termination was the culmination of a three-year campaign of unfair treatment and retaliation which began after Plaintiff submitted a written complaint in the winter of 2007 to Internal Affairs regarding Defendant Michael Chase, who was the Chief of Police and Plaintiff‘s supervisor.” (Appellant‘s Brief at 4.)
Young took issue with Chase‘s alleged improper sexual relationships with subordinates. According to his complaint, he submitted “a written complaint to defendant, Director [Michael] Damiano, Internal Affairs and his attorney that he believed that one of the reasons that defendant, Michael Chase was subjecting him to disciplinary action for false allegations by Officer Whiting, was because defendant, Chief Michael Chase maintained a romantic relationship with Officer Crawford Whiting‘s
On March 14, 2010, Sergeant Steward Townsend informed Young, who was the desk supervisor on duty, that he had observed Officer Claude Maxwell sleeping on two occasions while guarding downed electrical lines. Maxwell told Townsend that he had taken a sleep aid shortly before reporting for duty. Young subsequently questioned Maxwell, placed him on sick leave, instructed Townsend to initiate a disciplinary investigation, drafted a memorandum for Oliveira explaining that an investigation had been commenced, and notified Internal Affairs that he had relieved Maxwell “due to him saying that he was tired and that he attributed that fatigue to an over the counter medication.” (A91.) “[P]laintiff did not believe Officer Maxwell should be subjected to a reasonable suspicion drug test because there was no evidence that Officer Maxwell was using or abusing any drugs” (e.g., he did not appear lethargic, agitated, or unsteady, and Townsend likewise indicated that he saw nothing unusual about Maxwell‘s behavior). (A93.) On April 14, 2010, Young “was brought up on 8 departmental disciplinary charges” regarding this incident. (A91.) Santiago presided over a departmental hearing, which ultimately resulted in Young‘s termination.
Young filed a pro se complaint in the Superior Court of New Jersey, Law Division, Essex County Vicinage. The case was then removed to the District Court. Young‘s pleading is 300 pages in length, and it includes 614 paragraphs and sixty “counts.” Young alleged, inter alia, violations of
II.
CEPA prohibits an employer from taking any retaliatory action against an employee because the employee “[o]bjects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes . . . is in violation of a law, or a rule or regulation promulgated pursuant to law.”1
(1) he or she reasonably believed that his or her employer‘s conduct was violating a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in
Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 2005) (quoting Dzwonar v. McDevitt, 177 N.J. 451, 828 A.2d 893, 900 (2003); Kolb v. Burns, 320 N.J.Super. 467, 727 A.2d 525, 530 (App. Div. 1999)). According to Young, the facts alleged in his complaint set forth a viable CEPA claim because he reasonably believed that he lacked the requisite reasonable suspicion to order a mandatory drug test for Maxwell, “and that, as a result, ordering [Maxwell] to submit to a drug test would be in violation of the law,” and “he was terminated for his refusal to order such a test.” (Appellants’ Brief at 8.)
CEPA provides employees broad protections; for example, it appears that an employee “need not actually make a report to anyone, but can simply refrain from acting and still be protected by CEPA if he is discharged in retaliation for such behavior.” Young v. Schering Corp., 275 N.J.Super. 221, 645 A.2d 1238, 1245 (App. Div. 1994), aff‘d, 141 N.J. 16, 660 A.2d 1153 (1995). But CEPA “covers only that behavior which constitutes ‘whistle-blowing’ as defined by the statute.” Id. “‘Whistleblower acts’ are defined as ‘[f]ederal and state statutes designed to protect employees from retaliation for a disclosure of an employer‘s misconduct.‘” Id. (quoting Black‘s Law Dictionary 1596 (6th Ed. 1990)) (emphasis added in Schering).
Here Young simply does not allege that he performed, or was penalized for, whistleblowing in connection with any employer misconduct, and this failure prevents him from making any of the four showings required to state a CEPA claim. It is uncontested that, in order to subject its employee to a mandatory drug test, the government employer must possess “reasonable individualized suspicion” that drug-related activity is taking place and that the employee is involved in that activity. See, e.g., Caldwell v. N.J. Dep‘t of Corr., 250 N.J.Super. 592, 595 A.2d 1118, 1126 (App. Div. 1991). However, Young did not allege in his complaint that he was ever asked by his superiors to order a drug test. And unlike the plaintiff in Stapleton v. DSW, Inc., 931 F.Supp.2d 635 (D.N.J. 2013), he failed to allege that he was terminated because of the existence of a policy or practice that would have, for example, required him to order a police officer to undergo drug testing even in the
Young contends that he alleged facts supporting a LAD claim because his complaints regarding Chase‘s prior sexual relationships with subordinates and the impact of these relationships on the workplace constituted protected activity under New Jersey‘s anti-discrimination statute. It appears that retaliation against a plaintiff who complains about a consensual sexual relationship between a supervisor and another employee would support recovery under LAD if the plaintiff believed in good faith that this relationship violated the employer‘s policy “because it was a form of sex discrimination.” Battaglia v. United Parcel Serv., Inc., 214 N.J. 518, 70 A.3d 602, 621 (2013) (citing Roa v. LAFE, 200 N.J. 555, 985 A.2d 1225, 1229 (2010)). However, “Appellant‘s objection was not with regard to the consensual relationship but to the manner in which this relationship impacted the proper functioning of the police department” by causing Chase to excuse Whiting‘s misconduct. (Appellant‘s 8/20/15 Letter at 3.) Although it may be inappropriate, this sort of workplace favoritism, even if it negatively affected Young, does not by itself constitute the kind of discrimination prohibited by this statute. Because he did not actually complain about “a form of sex discrimination,” Young failed to allege a plausible LAD claim.
In order to establish a retaliation claim under the First Amendment, a public employee must show that, among other things, his or her speech is constitutionally protected. See, e.g., Flora v. Cty. of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015). A statement is protected by the First Amendment if: “(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made.” Id. at 175 (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006)). Young did not speak as a private citizen. In Flora, we concluded that the plaintiff plausibly established that he spoke as a citizen (and not as the county‘s chief public defender) by alleging that, among other things, when his speech “up the chain of command” failed to produce results, he took drastic measures by filing a funding lawsuit against the county and by reporting that thousands of delinquency adjudications and consent decrees had not been
In the event a complaint fails to state a claim, the plaintiff must be given the opportunity to amend—unless amendment would be futile. Phillips, 515 F.3d at 245-46. While the District Court should have specifically ruled on the issue of futility, we conclude that any error was harmless because amendment would be futile. We have already identified the fatal deficiencies in Young‘s complaint, and Young does not reference any allegations that could be added to correct such deficiencies (indicating instead that additional information could be uncovered in discovery). After all, Young filed a 300-page pleading, but he was unable to allege sufficient factual matter to state a facially plausible claim.3
III.
For the foregoing reasons, we will affirm the orders of the District Court.
COWEN
CIRCUIT JUDGE