New Jersey Employment Lawyer Blog

Articles Posted in Civil Rights

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Recently, the New Jersey Supreme Court ruled that private claims under the New Jersey Civil Rights Act (NJCRA) are limited to claims against individuals who were acting “under color” of state law. In other words, you can bring a private lawsuit under the NJCRA, but only against someone who was acting in his or her capacity as an employee or agent of the state or local government.

Bitters and infusions on bar counter with blurred bottles in bacThe case was brought by Maryann Cottrell, a resident of Glassboro, New Jersey. Ms. Cottrell apparently made negative comments about Zagami LLC at its public liquor license renewal hearing. Zagami is a company that owns a restaurant and bar in Glassboro. The company subsequently sued Cottrell, claiming her statements at the hearing were defamatory.
Zagami’s lawsuit eventually was dismissed by the Appellate Division. It found that since the liquor license renewal hearing was a “quasi-judicial” proceeding, Ms. Cottrell’s statements at it were protected by absolute immunity, meaning she could not be sued for anything she said at the hearing.

Ms. Cottrell then sued Zagami for malicious use of process, claiming its defamation lawsuit was a Strategic Lawsuit Against Public Participation (also known as a “SLAPP suit”) since it was baseless and intended to retaliate against her for speaking out against Zagami at the hearing and to deter her from doing so again in the future. Ms. Cottrell also brought a claim under the New Jersey Civil Rights Act (NJCRA), a state law that provides remedies for certain violations of the United States and New Jersey Constitution. For more information about the NJCRA, please read our Frequently Asked Questions (FAQ) About the New Jersey Civil Rights Act.

The trial court dismissed Ms. Cottrell’s case, finding there was probable cause for Zagami to bring a defamation claim, meaning there was a good enough basis for the company to file its defamation lawsuit that Ms. Cottrell could not prove that lawsuit was brought maliciously. The lower court also dismissed Ms. Cottrell’s NJCRA claim, ruling you cannot bring a private lawsuit under the NJCRA unless the defendant was acting under color of law.

The Appellate Division reversed on both of those issues. If concluded there was no probable cause for Zagami’s defamation lawsuit, and therefore Ms. Cottrell could proceed with her malicious abuse of process claim. It also ruled that the NJCRA does permit private claims against individuals who were not acting under color of law, as long as the lawsuit alleges the plaintiff was deprived of one of his or her protected rights, in this case the right to free speech.

However, last week in Cottrell v. Zagami, LLC and a companion case, Perez v. Zagami, LLC, the New Jersey Supreme Court reversed the Appellate Division’s ruling with respect to Ms. Cottrell’s NJCRA claim. It held the NJCRA creates a private cause of action only against individuals who are acting under color of law. Accordingly, since Zagami is a private company and not a government agency, it cannot be sued under the NJCRA.

The Supreme Court noted that Ms. Cottrell still has a remedy for Zagami’s effort to deter her from publically speaking about matters of public interest at a municipal hearing. Specifically, she still can continue to pursue her malicious use of process claim.

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Police Officer First Amendment Lawsuit.jpgLast week, I discussed Montone v. City of Jersey City, a case that ruled Police Sergeant Valerie Montone can proceed with her political affiliation case against the Jersey City Police Department. In the same opinion the Third Circuit ruled that eight other police sergeants can continue with their claim that Jersey City failed to promote them because it was discriminating against Montone.

The other eight Sergeants were on the same promotional list as Montone. None of them were promoted because Jersey City stopped promoting any sergeants to lieutenant, allegedly because Jersey City did not want to promote Montone. In other words, they claim they were collateral damage in Jersey City’s efforts to discriminate against Montone for exercising her First Amendment right to political affiliation.

The Third Circuit ruled that employees can sue for retaliation in violation of the First Amendment even if the retaliation was based on someone else exercising his or her First Amendment rights. It relied on a previous Third Circuit case which recognizes that indirect victims of gender discrimination can sue for discrimination under Title VII if they were treated worse for reasons that “trace back” to unlawful discrimination. In that case, male employees were permitted to pursue a gender discrimination claim in which they claimed their employer refused to hire them from a “priority list” because the company did not want to hire the women on the list. The Third Circuit also relied on a United States Supreme Court opinion recognizing an employee can bring a retaliation claim based on a coworker’s legally protected activity (in that case, retaliation against an employee’s fiancée because the employee filed a claim of gender discrimination with the Equal Employment Opportunity Commission) if the retaliatory action would dissuade a reasonable person from engaging in the protected activity. The Third Circuit explained that without this type of protection, municipal employees might not exercise their rights to express their political beliefs, or might change their political association to avoid retaliation.

Ultimately, the Third Circuit ruled that the eight sergeants can proceed with their civil rights case. It found there is a genuine dispute whether Jersey City failed to promote them because Montone exercised her right of political affiliation. For example, it found disputes regarding whether there really was a shortage of lieutenants in the police department, whether the Police Chief had the authority to make promotions, and why there were no promotions to lieutenant for three years. It therefore concluded that a jury must decide whether Jersey City retaliated against them.

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On March 8, 2013, the Third Circuit Court of Appeals ruled that Police Sergeant Valerie Montone can proceed with her civil rights case against the City of Jersey City, the Jersey City Police Department, Mayor Jerramiah Healy and retired Jersey City Police Chief Robert Troy. Montone claims she was passed her up for a promotion to lieutenant, in violation of her First Amendment right to political affiliation, because she supported Lou Manzo when he ran against Healy for mayor. She claims they decided not to promote any sergeants for three years so they would not have to promote her.

Employee Voting for Political Candidate.jpgThe First Amendment prohibits the state and local government from discriminating against employees based on which political candidates they support. As the Third Circuit explained, to prove this type of claim an employee has to prove (1) she worked for a public agency in a position that does not require political affiliation, (2) she engaged in conduct protected by the First Amendment, and (3) her employer took an adverse action against her, such as firing her, demoting her, or skipping her for a promotion, because of her constitutionally-protected conduct. Montone meets the first two requirements since her job as a sergeant for the Jersey City Police Department does not require any political affiliation, and her efforts supporting Manzo in the mayoral election is protected by the First Amendment. The primary issue on the appeal was whether there was enough evidence for a jury to find the defendants discriminated against her because she supported Mayor Healy’s opponent in the election.

The District Court dismissed Montone’s case, finding there was not enough evidence to prove discrimination. But in Montone v. City of Jersey City the Third Circuit disagreed. It found there was enough evidence for a jury to find discrimination in violation of the First Amendment, including the fact that:

  • Police Chief Troy made promotions to every other rank, but did not promote a single sergeant to lieutenant;
  • The number of lieutenants in the police department decreased from 56 to 30 over the three year period;
  • Jersey City had 66 authorized lieutenant positions, meaning it had 36 vacancies;
  • Mayor Healy and Chief Troy promoted their political supporters to other positions;
  • Jersey City has a history of political patronage including hiring employees who supported winning candidates;
  • Two other sergeants testified that Chief Troy told them they would not be promoted because they were below Montone on the promotion list and the mayor was not going to promote Montone;
  • The same two sergeants testified that Chief Troy indicated he did not have a problem with them because they did not come out against him during the election; and
  • Shortly after Chief Troy retired, he met with the new police chief before he decided not to promote Montone. Two days later, Jersey City promoted twelve other sergeants to lieutenant

In the same opinion, the Third Circuit ruled on a related case brought by eight other Jersey City police sergeants who were not promoted during the same three-year period. They claim they were the victims of Jersey City’s retaliation against Montone. I will discuss the fate of their case next week.

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This morning, I was quoted in the Bergen Record about a civil rights lawsuit I recently filed against the Borough of Bogota. Police Officer Regina Tasca alleges Bogota, as well as Police Chief John C. Burke, Captain James L. Sepp, Sergeant Robert Piterski, and Patrolman Jerome Fowler discriminated against and harassed her because she is gay and female. Officer Tasca also alleges the defendants retaliated against her because she spoke out about matters of public concern, and objected to violations of law including her objections to their gender and sexual orientation harassment. Officer Tasca’s case was filed in Federal Court in Newark, New Jersey.

As I discussed here last month, Officer Tasca’s case has received significant media attention. Since I wrote that article, her case has been the subject of numerous stories including:

Someone has even started an online petition seeking to Reinstate Officer Regina Tasca.

Bogota is currently holding a disciplinary hearing in which it is trying to fire Officer Tasca. The hearing is scheduled to resume on May 15, 16 and 17. The hearing is taking place at the Bogota Borough Hall, at 375 Larch Avenue, Bogota, New Jersey.

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Earlier this year, in an unpublished opinion, the Third Circuit Court of Appeals ruled that a trial judge should not have dismissed a lawsuit claiming that his employer fired him in retaliation for speaking about a matter of public concern, in violation of First Amendment. The Third Circuit is a federal court that handles appeals from the United States District Court for the District of New Jersey.

The case, Beyer v. Duncannon Borough, involves Police Officer Eric Beyer’s claim that his employer, the Duncannon Borough, fired him in retaliation for expressing his opinion that the Borough should purchase higher velocity weapons for its police officers. Beyer posted comments on the internet and appeared on the Fox local news to express his opinion about purchasing the weapons. Mr. Beyer’s claims that Borough officials “openly attacked” him in response to his opinion, called his internet postings inappropriate, and eventually fired him.

Beyer sued, claiming the decision to fire him was retaliation in violation of his right to free speech under the First Amendment to the United States Constitution. The trial court dismissed his case, finding the facts did not support the conclusion that the Borough retaliated against him.

Police Car First Amendment.jpgThe Third Circuit disagreed, and reinstated Mr. Beyer’s case. First, it explained that a public employee’s speech is protected by the First Amendment if (1) he spoke as a citizen, rather than in his capacity as an employee, about a matter of public concern, and (2) the government did not have an adequate reason for treating him differently. On the first requirement, it found Mr. Beyer could have been speaking in his capacity as a citizen because he made his internet postings and gave his television interview during his off-duty hours, and used a pseudonym for his internet postings rather than making them as part of his job duties as a police officer. With respect to the second requirement, the court found Mr. Beyer’s opinion that the Police Department should have higher velocity weapons could relate to a matter of public concern because it had to do with the safety of the Police Force, which in turn relates to public safety. The Court also considered the fact that Mr. Beyer communicated his opinion publically, using the internet and TV news.

The Third Circuit then concluded that Mr. Beyer’s alleged facts supported the conclusion that his employer fired him in retaliation for his speech on an issue of public concern. It noted that employee can prove retaliation based on either (1) very close timing between the employee’s legally protected activity and the employer’s act of retaliation, or (2) a pattern of antagonism between the employee’s protected activity and the employer’s act of retaliation. It found that, based on Mr. Beyer’s allegations, it was plausible that the Borough had retaliated against him. It therefore ruled that he should have an opportunity to try to prove his claim, and reversed the trial court’s decision dismissing his case.

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On November 10, 2010, New Jersey’s Appellate Division ruled that a civil service employee can bring a lawsuit alleging that discipline against him was retaliatory even if he did not appeal a Civil Service Commission decision upholding the discipline. In Racanelli v. County of Passaic, James Racanelli sued the County of Passaic, the Passaic County Sheriff’s Department, Passaic County’s Sheriff, and various other employees. He alleges they harassed him and otherwise retaliated against him in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”) because he reported numerous unlawful and inappropriate actions within the Sheriff’s Department. For example, he claims they transferred him to work at the county jail even though he was not trained to work there, and fired him in retaliation for his objections.

Mr. Racanelli appealed the County’s decision to fire him to the Civil Service Commission (“CSC”). The CSC handles administrative appeals of major discipline brought against permanent civil service employees. In this case, the CSC upheld Passaic County’s decision to fire Mr. Racanelli. Mr. Racanelli chose not to appeal that decision to the Appellate Division. Instead, he brought a separate retaliation lawsuit under CEPA. However, the trial court ruled that because Mr. Racanelli did not appeal the CSC’s decision upholding the discipline to the Appellate Division, he could not pursue a whistleblower case.

The trial court also found Mr. Racanelli’s claims were barred because he did not file a notice of claim under New Jersey’s Tort Claims Act. The Tort Claims Act requires that an individual with a personal injury claim against the state, a county, or a municipality must submit a formal notice of claim to the public entity. Failure to file a notice of claim within six months after the injury is generally a bar to bringing a lawsuit against a public entity.

On appeal, New Jersey’s Appellate Division disagreed with both of the lower court’s rulings. It held that an employee can sue under CEPA even if he did not appeal a Civil Service Commission decision upholding the discipline against him because an employee has “the discretion to pursue his retaliation claim in a judicial forum rather than in the administrative process.” This is similar to the decision in Winters v. North Hudson Regional Fire & Rescue, which ruled that a municipal employee can prove retaliation even if the Civil Service Commission upheld the discipline against him. But unlike Winters, the decision in Racanelli is published, meaning it is a binding legal precedent.

The Appellate Division also ruled that the notice of claim requirement of the Tort Claims Act does not apply to CEPA cases. New Jersey Courts have long recognized that, since the Tort Claims Act does not apply to intentional claims, it does not apply to cases under the New Jersey Law Against Discrimination, the anti-retaliation provisions of the Workers’ Compensation Act, and other civil rights claims. The Appellate Division applied the same reasoning to conclude that the notice of claim requirement does not apply to CEPA case.

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The New Jersey Civil Rights Act provides a remedy for many important civil rights. However, most people are unfamiliar with the New Jersey Civil Rights Act. This article answers some of the most frequently asked questions about the New Jersey Civil Rights Act.

Q. What is the New Jersey Civil Rights Act?

A. The New Jersey Civil Rights Act was passed in 2004. It creates remedies for violations of certain provisions of the New Jersey Constitution, the United States Constitution, and other New Jersey laws.

Q. Which of my rights are protected under the New Jersey Civil Rights Act?

A. The New Jersey Civil Rights Act protects a broad range of legal rights, including freedom of speech, freedom of religion, freedom of association, freedom to petition the government, equal protection of the law, and due process of law. It also creates a remedy for other rights protected by the United States Constitution, the New Jersey Constitution, and other New Jersey laws.

In addition to providing a remedy for violations of those legal rights, the New Jersey Civil Rights Act prohibits anyone from interfering with any of those rights, or attempting to interfere with any of those rights through threats, intimidation, or coercion.
Q. Can I file a lawsuit under the New Jersey Civil Rights Act?

A. You can file a lawsuit under the New Jersey Civil Rights Act only if the person who violated your rights was acting “under color of law.” That basically means the person who violated your rights was working for, or acting on behalf of, the local, state, or federal government.

Q. Does the New Jersey Civil Rights Act still protect me if my civil rights were violated by someone who was not acting on behalf of the state, local, or federal government?

A. Yes. However, you cannot file your own lawsuit. Instead, you can file a claim under the New Jersey Civil Rights Act with New Jersey’s Attorney General. The Attorney General then has the option to bring a civil lawsuit on your behalf.
Q. What are the remedies available to me if I win a case under the New Jersey Civil Rights Act?

A. You can recover damages to compensate you for the harm caused by the violation of your civil rights, potentially including lost salary and benefits, and damages for emotional distress. You also can recover your attorney’s fees and legal costs. In addition, the person or government entity that violated your civil rights can be required to pay a civil penalty to the State of New Jersey.

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It is my pleasure to discuss one of my own employment law cases that was recently decided by New Jersey’s Appellate Division, Winters v. North Hudson Regional Fire & Rescue. On August 30, 2010, the Appellate Division ruled that my client, Steven J. Winters, can proceed with his retaliation case against the North Hudson Regional Fire & Rescue (“NHRFR”).

Mr. Winters is a former NHRFR Fire Captain. He alleges the NHRFR, its Fire Chief, and its two co-Directors harassed, suspended, demoted, and eventually fired him in retaliation for his objections in which he discussed dangerously inadequate fire coverage and inoperable fire radios in the department, sexual harassment by an NHRFR Battalion Chief, and fraudulent and criminal conduct by the NHRFR’s Fire Chief and co-Directors. Mr. Winters sued the NHRFR for retaliation in violation of the New Jersey Conscientious Employee Protection Act (“CEPA”) and the First Amendment.

The NHRFR asked the Appellate Division to dismiss Mr. Winters’ case because New Jersey’s Civil Service Commission had previously upheld the NHRFR’s decisions to suspend, demote, and fire Mr. Winters. The Civil Service Commission is a New Jersey state agency responsible for ruling on appeals of disciplinary charges brought against state, county and municipal civil service employees. On appeal, the NHRFR argued that the discipline it issued to Mr. Winters could not be retaliatory since the Commission upheld it.

But the Appellate Division disagreed. It ruled that even though the Commission had affirmed the discipline, the NHRFR still could have retaliated against Winters, since an employer can have more than one reason for disciplining an employee. Since Mr. Winters has both direct and indirect evidence that the NHRFR disciplined him in retaliation for his legally protected speech, the Appellate Division ruled that a jury should decide whether his legally protected speech and objections made a difference in the NHRFR’s decisions to discipline him.

The Appellate Division’s decision in Winters is unpublished, meaning it is not a legally binding precedent. The NHRFR is in the process of asking the New Jersey Supreme Court to consider an appeal of the Appellate Division’s decision.

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