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Media Alerts - Fraternal Order of Police, Lodge 1 v. City of Camden - Third Circuit
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November 22, 2016
  Fraternal Order of Police, Lodge 1 v. City of Camden - Third Circuit
Headline: "Directed patrols" that required police officers to engage with community members did not violate New Jersey Anti-Quota law, prohibiting quotas for arrests and citations; 1st Amendment did not protect officers' objections to the patrol policy; officers are entitled to trial on their retaliation claims under New Jersey state law.

Area of Law: Evidence, Qualified Immunity, NJ Anti-Quota Law, Conscientious Employee Protection Act, First Amendment, Family and Medical Leave Act

Issues Presented: Does a city's "directed patrols" policy implemented by its police department constitute an illegal quota system in violation of New Jersey's anti-quota law? When does a city's conduct amount to illegal retaliation in violation of New Jersey's Conscientious Employee Protection Act, the First Amendment, and the Family and Medical Leave Act?

Brief Summary: In April 2009, the Fraternal Order of Police filed a complaint against the City of Camden Police Department and the Attorney General of New Jersey ("Defendants"), claiming Camden had imposed an unlawful quota policy by requiring the officers to perform "directed patrols," which required them to engage with community members. The individual plaintiff Officers also accused Defendants of illegal retaliation in violation of NJ's Conscientious Employee Protection Act ("CEPA"), the First Amendment, and the Family and Medical Leave Act ("FMLA"). The Third Circuit concluded that NJ's anti-quota statute is inapplicable to the patrols policy and thus could not support Plaintiffs' allegations of a quota. It affirmed summary judgment on the First Amendment claims because the plaintiffs were speaking as employees, not citizens. But the Court reversed summary judgment on plaintiffs' retaliation claims under the New Jersey Conscientious Employee Protection Act, holding that plaintiffs' reasonable belief that the policy was illegal, the evidence of adverse actions taken against them, and evidence of a causal connection showed material facts in dispute. Plaintiffs were entitled to rely on hearsay evidence to oppose summary judgment because the evidence was capable of being admissible at trial.

Extended Summary: This case arises from a dispute between the Fraternal Order of Police, Lodge 1 as well as certain police officers ("Plaintiffs") on one side, and the City of Camden, NJ and certain supervisory police personnel ("Defendants") on the other. In 2008, Camden implemented a policy known as "directed patrols" requiring police officers to engage with city residents even though the residents are not suspected of any wrongdoing. The announced purpose of the program was to obtain information about the community while making the police presence more visible. In April 2009, Fraternal Order of Police, Lodge 1 filed a complaint against the Camden Police Department and the NJ Attorney General, claiming that the directed controls policy constituted an illegal quota system in violation of NJ's anti-quota law. The individual plaintiff Officers further alleged that Defendants violated NJ's Conscientious Employee Protection Act ("CEPA"), the First Amendment and the Family Medical Leave Act ("FMLA") by retaliating against them because they expressed their disagreement with the policy. The district court granted summary judgment to Defendants on all of Plaintiffs' claims.

On appeal, Plaintiffs contended that the district court erred in dismissing their claims under (1) New Jersey's anti-quota law; (2) CEPA; (3) the First Amendment; and (4) FMLA. In addition, they asserted that the district court erred when it ignored hearsay evidence and concluded that Defendants were entitled to judgment as a matter of law. The Third Circuit discussed each claim of error in turn.

First, the Third Circuit discussed the district court's concern over statements by the individual plaintiffs about statements other officers purportedly made concerning the alleged retaliation and the nature of the patrols constituted hearsay. According to the Third Circuit, this evidence was hearsay, but the court erred in refusing to consider it at the summary judgment stage. The Third Circuit explained "the rule in this circuit is that hearsay statements can be considered on a motion for summary judgment if they are capable of being admissible at trial." Thus, in ruling on Defendants' motion for summary judgment, the district court should have limited its inquiry to determining if the out-of- court statements Plaintiffs were relying on were admissible at trial, "and they clearly were." Accordingly, The Third Circuit reversed the district court's exclusion of hearsay in determining if the record allowed Plaintiffs to survive a motion for summary judgment.

Second, the Third Circuit discussed Plaintiffs assertion that Camden's patrols policy violates NJ's anti-quota statute even though the statute's text only addresses arrests and citations. The Third Circuit found that the district court correctly relied on the limited scope of the statute's text - which does apply only to arrests and citations, and not to the civilian "encounters" that are at the center of this dispute. Accordingly, the Third Circuit affirmed the court's grant of summary judgment in favor of Camden on Plaintiffs' claims under the anti-quota law.

Third, the Third Circuit discussed CEPA, which protects employees against retaliation by employers for whistleblowing activities. The Court made clear that NJ courts have created a four-pronged test for adjudicating CEPA claims that largely replicates the three- part burden-shifting test that is used to decide federal retaliation claims. To establish a CEPA violation, a plaintiff must prove that: (1) she reasonably believed her employer was violating a law or rule; (2) she performed a protected whistleblowing activity; (3) an adverse employment action was taken against her; and (4) there is a causal connection between the whistleblowing activity and the adverse action. According to the Third Circuit, Plaintiffs satisfied each prong, and summary judgment was therefore inappropriate. Accordingly, the Third Circuit reversed the district court's dismissal of the plaintiff-officers' retaliatory transfer claims under CEPA.

Fourth, the Third Circuit addressed plaintiff-officers claim that Defendants violated their First Amendment rights by retaliating against them for objecting to the patrols policy. According to the Third Circuit, a public employee's statement is protected by the First Amendment when "(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." While the Third Circuit noted that the plaintiff-officers provided compelling arguments to support their claim that their speech involved a matter of public concern, it agreed with the district court that their First Amendment claims could not proceed. The Court explained, the First Amendment "provides robust protection to statements pertaining to matters of public concern," but it does not "empower public employees to constitutionalize the employee grievance when they are acting in their official capacities."' Accordingly, the Third Circuit affirmed the dismissal of the plaintiff-officers' First Amendment claims.

Fifth, the Third Circuit discussed the FMLA, which affords eligible employees leave to tend to a serious health condition, and to care for a family member with a serious health condition. A claim that these rights have been breached is referred to as "interference." Officer Holland alleged that Camden interfered with his protected FMLA leave, while Camden contended that any "interference" was in part an internal miscommunication. The Third Circuit found that without more, Camden's conduct was not actionable under FMLA. Accordingly, because FMLA "provides no relief unless the employee has been prejudiced by the violation," the district court was correct in granting summary judgment against Officer Holland.

Finally, the Third Circuit discussed qualified immunity, since in addition to suing the City of Camden, Plaintiffs also sued several officers in their individual capacities. Those officers objected to the suits on the ground that they are protected by qualified immunity. In assessing the qualified immunity claims, the Third Circuit conducted its two-part inquiry by first, determining whether the facts demonstrate the violation of a right; and second, deciding if the right at issue was clearly established at the time of the alleged misconduct. Ultimately, the Third Circuit agreed with the district court that qualified immunity depends, in part, on whether a legal violation occurred, and since Plaintiffs did not show a violation of federal law, it did not need to reach the issue of qualified immunity.

Overall, the Third Circuit reversed the district court's order granting summary judgment to Defendants on Plaintiffs' CEPA claims, and remanded for proceedings consistent with this opinion. In addition, the Third Circuit affirmed the district court's dismissal of Plaintiffs' New Jersey Anti-Quota law, First Amendment claims, and Officer Holland's FMLA claim.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/151963p.pdf

Panel: McKee, Ambro, and Scirica Circuit Judges

Argument Date: January 12, 2016

Date of Issued Opinion: November 17, 2016

Docket Number: No. 15-1963

Decided: Reversed and remanded

Case Alert Author: Brooke Hutchins

Counsel: Gregg L. Zeff, Esq., Counsel for Appellants; John C. Eastlack, Jr., Esq., Daniel E. Rybeck, Esq., Counsel for Appellees

Author of Opinion: Circuit Judge McKee

Circuit: Third Circuit

Case Alert Circuit Supervisor: Prof. Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 11/22/2016 03:00 PM     3rd Circuit  

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