NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2411-14T3

RICHMOND LAPOLLA, APPROVED FOR PUBLICATION Plaintiff-Appellant, March 28, 2017 v. APPELLATE DIVISION

COUNTY OF UNION and GEORGE DEVANNEY, County Manager and Individually,

Defendants-Respondents.

______________________________________

Argued June 7, 2016 – Decided March 28, 2017

Before Judges Espinosa, Rothstadt and Currier.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L- 3547-11.

Susan B. Fellman argued the cause for appellant (Breuninger & Fellman, attorneys; Ms. Fellman and Patricia Breuninger, of counsel and on the briefs; Kathleen P. Ramalho, on the briefs).

Robert F. Varady argued the cause for respondent County of Union (LaCorte, Bundy, Varady & Kinsella, attorneys; Mr. Varady, of counsel and on the brief; Christina M. DiPalo, on the brief).

Robert F. Renaud argued the cause for respondent George Devanney (Palumbo Renaud & DeAppolonio, LLC, attorneys; Mr. Renaud, on the brief). The opinion of the court was delivered by

ESPINOSA, J.A.D.

Plaintiff claimed to be the victim of political patronage,

suffering adverse employment actions in part because his

politically active brother sparred with the chairwoman of the

Union County Democratic Party. Plaintiff's appeal from the

dismissal of his complaint presents the question whether his

familial and social affiliations qualify as constitutionally

protected conduct that satisfies an essential element of his

claims for violation of the New Jersey Civil Rights Act (NJCRA),

N.J.S.A. 10:6-1 to -2, and retaliation. We hold that they do

not.

Plaintiff Richmond Lapolla, a long-time employee of Union

County, filed suit, alleging violations of the NJCRA and Article

I, Sections 6 and 18, of the New Jersey Constitution, based upon

political affiliation (count one) and intentional infliction of

emotional distress (count two). He later amended the complaint

to add a third count, alleging retaliation for filing this

action. After summary judgment was granted, dismissing the

complaint, plaintiff filed this appeal, challenging the

dismissal of his NJCRA and retaliation claims. He also appeals

2 A-2411-14T3 from the denial of his motion to file a third amended complaint 1 to add another defendant. We affirm.

I.

The evidence, viewed in the light most favorable to

plaintiff, R. 4:46-2(c), can be summarized as follows.

Plaintiff began his employment with the County in 1979 as a

maintenance repair carpenter. Over the next twenty years

plaintiff was promoted several times.

Plaintiff was a member of the Union County Democratic

Committee (UCDC) for approximately ten years. He made

donations, handed out literature, and did some fundraising but

never ran for office.

Plaintiff described two factions in the UCDC. Charlotte

DeFilippo was the chairwoman of the UCDC. Plaintiff described

the other faction as including his brother, Michael Lapolla,2 and

"anybody who didn't walk in lockstep with Charlotte DeFilippo."

At his deposition, plaintiff was asked who belonged to this

faction besides Michael. He named the mayor of Elizabeth, J.

Christian Bollwage, State Senator Joseph Suliga and former

1 Plaintiff does not appeal from the dismissal of count two. His argument regarding the denial of his motion to file a third amended complaint lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). 2 We refer to plaintiff's brother by his first name to avoid confusion.

3 A-2411-14T3 Freeholder Daniel Sullivan. As to his own affiliation with that

faction, plaintiff added, "I was not a part of it." He was then

asked, "So you were not part of the Lapolla faction?" He

replied, "As you call it, no."

Michael became County Manager in 1997. According to

plaintiff, DeFilippo was miffed because she had wanted defendant

George Devanney to become County Manager and was not satisfied

by the appointment of Devanney to Deputy County Manager. In

1999, while his brother was County Manager, plaintiff became the

head of the Division of Buildings and Grounds in the Department

of Operational Services. He obtained the Civil Service title of

Director, Repair and Maintenance, a title he still holds.

Michael served as County Manager until 2002. During his

tenure, he clashed with DeFilippo over what he perceived as her

attempts to unduly influence the day-to-day operations of the

county. In 2002, after DeFilippo told Michael she thought it

was time for him to move on, he left his position to become

Executive Director of the New Jersey Turnpike Authority.

After Michael resigned, Devanney became County Manager and

plaintiff became director of the newly formed Department of

Operations and Facilities. Plaintiff continued to hold the

titles of head of the Division of Operations within that

department and chief of the Bureau of Construction Management,

4 A-2411-14T3 which is included in the Division of Operations. As the head of

a department, plaintiff reported directly to the County Manager.

Plaintiff received criticisms from Devanney regarding his

performance, beginning in early 2004, which he has termed "petty

and unsubstantiated."

In early 2005, while plaintiff was on a month-long medical

leave of absence, Devanney notified plaintiff he was being

transferred to Union County Vocational Technical Schools (Vo-

Tech) as Facilities Manager. Devanney did not need the approval

of the Board of Freeholders to reassign plaintiff or remove him

from the position of department director. Plaintiff asked to be

allowed to retain his position as Division Head or Bureau Head,

positions consistent with his Civil Service title. Devanney

refused.

Although Vo-Tech was an autonomous body, the County

continued to pay plaintiff's salary. According to plaintiff,

there was no purpose to his being assigned to Vo-Tech; he had no

responsibilities and his role did not meet the requirements of

his Civil Service title.3 However, plaintiff retained the Civil

3 N.J.A.C. 4A:3-3.9 establishes a procedure for an employee to request a "desk audit" to challenge assignment to a position when its duties do not conform to his Civil Service title. Although we do not accept defendant Devanney's argument that this was a necessary pre-requisite to plaintiff's commencement (continued)

5 A-2411-14T3 Service title of Director, Repair and Maintenance, that he had

as Director of Operations and Facilities and continued to

receive the same salary, which was $128,000 when the complaint

was filed. Plaintiff did not file a complaint alleging this

transfer constituted a politically-motivated violation of his

constitutional rights until September 2011, more than six years

after the transfer.

When Michael learned about the transfer, he contacted

Devanney to try to work something out that would permit

plaintiff to stay where he was. Although Devanney agreed, the

transfer went through and Devanney later explained, "Charlotte

[DeFilippo] said no." Michael believed this decision was

motivated by DeFilippo's animus toward him, which he considered

political in nature.

At his deposition, Devanney stated he had "lost all faith

and confidence" in plaintiff after his "continual[] resistance,

stonewalling and insubordination . . . throughout the years."

He further explained that "department directors . . . are

confidential aides" and that he could not "see eye to eye

enough" with plaintiff to keep him as a department head.

(continued) of this action, we note that plaintiff did not avail himself of this opportunity.

6 A-2411-14T3 Devanney restructured the County's departments once again,

and transferred the duties of the Department of Operations &

Facilities back to a division in the Department of Public Works.

Several of plaintiff's friends and coworkers provided

certifications in which they stated that, beginning in late

2004, DeFilippo and Devanney discouraged them from associating

with plaintiff and warned that doing so would be detrimental to

their careers with the County.

At the end of July 2010, plaintiff's assignment to Vo-Tech

came to an end because the construction projects he was

ostensibly overseeing were completed. Devanney assigned

plaintiff to the Juvenile Detention Center (JDC). He admitted

he did not look for any job openings for plaintiff as a director

or department head. The stated purpose for this assignment was

to "organize, develop, and perform work on all matters

pertaining to the maintenance and repair of [the JDC]."

Devanney admitted, however, he had no idea who plaintiff would

supervise or if there were people for him to supervise.

Plaintiff was assigned to a room approximately twelve by

sixteen feet that resembled an electronics storage room. He did

not have a computer for approximately one month and the

telephone he had was restricted to internal use only.

7 A-2411-14T3 Plaintiff testified that one of his supervisors at the JDC,

Greg Lyons, told him he was "dumped" there. When he asked the

other supervisor, Michael Brennan, what he was to do there, the

supervisor "shrugged his shoulders," said, "I don’t know," and

left. Lyons was asked at his deposition whether plaintiff ever

did anything throughout his assignment at JDC and replied, "Not

as far as I know." Plaintiff testified that, for his entire

tenure, he never did any work at the JDC.

In August 2011, Devanney retired. The Freeholders

appointed Alfred Faella, a friend of Mayor Bollwage, to the

position. Faella knew that Bollwage and DeFilippo did not like

each other. Prior to his appointment, he met with DeFilippo,

who advised him she had no objection to his appointment because

Devanney recommended him.

Plaintiff filed his complaint in this action in mid-

September 2011. On October 24, 2011, he was informed that,

effective November 1, he was being transferred to the Watchung

Stables Administrative Building, where he would be "responsible

for the supervision of maintenance and repair of the facilities

at the Watchung Stable, Trailside Nature & Science Center[,] and

the Deserted Village of Feltville." Plaintiff's requests to

meet with Faella were denied. On November 2, 2011, plaintiff

was told "the County Manager sees no reason to meet" with him.

8 A-2411-14T3 In the fall of 2013, the head of the Division of Facilities

Management resigned. Plaintiff contacted Faella on two

occasions to express his interest in the position he had

previously held, and, after the job vacancy was formally posted,

submitted an application for the position. Faella formed a

committee to interview candidates. He testified the committee

found two other candidates more impressive than plaintiff and

that he decided to appoint one of those candidates. Plaintiff

alleges the candidate selected was less qualified than he.

According to plaintiff, he saw County Freeholder Alexander

Mirabella at a social function in September 2014, and brought up

"the fact that he was not given his job [of Division Head]

back." He stated that Mirabella responded, "You have a lawsuit

against the County. Do you really think we're going to give you

your job back?"

Plaintiff maintained his Civil Service title throughout his

transfers and never suffered a reduction in pay, though he did

lose "portal to portal" use of a County vehicle upon his

transfer to Vo-Tech. At no point prior to the filing of the

complaint in this action did plaintiff ever complain to Devanney

or the Civil Service Commission about his position at Vo-Tech.

II.

The NJCRA provides, in pertinent part:

9 A-2411-14T3 Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c).]

A plaintiff who alleges retaliation for political

affiliation must show: (1) he was "employed at a public agency

in a position that does not require political affiliation"; (2)

he was "engaged in constitutionally protected conduct"; and (3)

the conduct was "a substantial or motivating factor in the

government's employment decision." Galli v. N.J. Meadowlands

Comm'n.,

(3d Cir. 2007). The statute of

limitations for claims under the NJCRA is two years. See

N.J.S.A. 2A:14-2(a).

The trial judge reviewed plaintiff's proofs to determine

whether he presented a prima facie case of political affiliation

and discrimination. Considering the first of the three Galli

factors, she noted plaintiff was employed at a public agency in

a position that does not require political affiliation.

10 A-2411-14T3 Turning to the second Galli prong, the trial judge

described plaintiff's claim of constitutionally protected

political affiliation as "murky" and distinguishable from the

facts in Montone v. City of Jersey City,

(3d Cir.

2013) and Goodman v. Pa. Tpk. Comm'n,

, 663 (3d Cir.

2002), cases in which this prong was clearly satisfied. The

judge concluded plaintiff "was not engaged in constitutionally

protected conduct. He was just existing, he was just being."

Because this failure of proof required dismissal of the NJCRA

claim against the County, it was unnecessary for the judge to

consider the application of the statute of limitations to

plaintiff's claim. Nevertheless, she found the NJCRA claim

time-barred. The trial judge also concluded Devanney had

qualified immunity, requiring the dismissal of the NJCRA claim

against him. In addition to dismissing the intentional

infliction of emotional distress claim, the trial judge

dismissed the retaliation claim.

In his appeal, plaintiff argues the trial judge erred in

granting summary judgment because: the evidence presented a

material issue of fact (Point I); there was sufficient evidence

to satisfy the second element of a prima facie case for

political retaliation (Point II); Devanney is not entitled to

qualified immunity (Point III); the County is liable for

11 A-2411-14T3 political affiliation retaliation (Point IV); defendants failed

to offer facts to support their claim that plaintiff held a

position in which political affiliation is required (Point V);

the trial court failed to recognize that plaintiff presented

prima facie evidence of the third Galli element (Point VI);

plaintiff's NJCRA claim is not time-barred (Point VII); and

plaintiff has a cognizable claim of retaliation against the

County (Point VIII). Plaintiff also argues the trial court

erred in denying his motion to file a third amended complaint to

name Faella as a defendant in his retaliation claim.

In reviewing a summary judgment decision, we view the

evidence "in the light most favorable to the non-moving party,"

and determine whether a genuine issue exists as to any material

fact that precludes summary judgment. Rowe v. Mazel Thirty,

LLC,

(2012) (citing Brill v. Guardian Life

Ins. Co. of Am.,

(1995)). We review questions

of law de novo. Davis v. Devereux Found.,

(2012).

Applying these principles, we conclude summary judgment was

properly granted because the trial judge correctly concluded

plaintiff lacked prima facie evidence of the second element of

his political affiliation discrimination claim. As a result, we

need not address the arguments raised in Points V, VI and VII.

12 A-2411-14T3 We also conclude Devanney is entitled to qualified immunity and

that the retaliation claim was properly dismissed. Plaintiff's

remaining arguments lack sufficient merit to warrant discussion.

R. 2:11-3(e)(1)(E).

III.

We first address plaintiff's NJCRA claim.

In Elrod v. Burns,

,

,

(1976), the United States Supreme

Court held that termination of public employees' employment

because of their political affiliation violates the First

Amendment unless the position at issue involves policymaking.

See also Branti v. Finkel,

,

,

(1980). The Elrod-

Branti doctrine was later expanded to hold "the First Amendment

[also] protects public employees . . . from promotion, transfer,

recalls, and other hiring decisions conditioned on political

affiliation, unless the government can demonstrate that party

affiliation is a proper requirement for the position."

-71 (citing Rutan v. Republican Party of

Ill.,

,

,

(1990)).

As the trial judge observed, the pivotal question is

whether plaintiff was engaged in constitutionally protected

13 A-2411-14T3 conduct. See

. Typically, this

factor contemplates situations where the plaintiff is required

to join or support the political party in power or suffers

retaliation for supporting a losing candidate or for failing to

engage in the political process whatsoever. See

(collecting cases). In addition, "adverse

employment actions taken against public employees merely 'to

make positions available for political supporters' could amount

to political discrimination."

at 273 (quoting Bennis v.

Gable,

(3d Cir. 1987)). The second prong may

also be satisfied when the public agency takes an adverse

employment action against an employee based upon a mistaken

belief he is engaging in protected political activity.

Heffernan v. City of Paterson,

, ____,

,

(2016) (holding police

officer demoted for picking up campaign sign as favor to

bedridden parent was entitled to seek relief based on the city's

mistaken belief the officer was engaging in political speech).

"This does not mean that every public act inspired by

political partisanship is subject to challenge because it has a

harmful consequence upon an individual." Commc'ns Workers of

Am. v Whitman,

(App. Div. 2000)

(finding no NJCRA violation where public employment positions

14 A-2411-14T3 were abolished as a result of a change in public policy that

privatized motor vehicle agencies). The constitutionally

protected interests "emanate from every person's right to be

insulated from governmental retaliation for expressive exercises

or beliefs protected by the First Amendment."

(emphasis added). Therefore, the interest of a plaintiff who

asserts a claim of political affiliation discrimination "must be

sufficiently similar to those of the plaintiffs in the seminal

cases," i.e.,

,

,

;

,

,

;

,

,

; Bd. of County Comm'rs v. Umbehr,

,

,

(1996); and O'Hare Truck Serv., Inc.

v. City of Northlake,

,

,

(1996). Commc'ns Workers, supra,

.

In Elrod, the Court decided a newly elected Democratic

sheriff could not constitutionally engage in the patronage

practice of replacing certain office staff with members of his

own party "when the existing employees lack or fail to obtain

requisite support from, or fail to affiliate with, that party."

,

,

(plurality opinion; Stewart, J., joined

by Blackmun, J., concurring in judgment). In a similar case of

15 A-2411-14T3 patronage, assistant public defenders alleged their employment

was terminated because they were members of the Republican

party; the Court upheld an injunction against their termination.

,

,

. In Rutan, supra,

,

,

, the Governor's Office

imposed a hiring freeze that required agencies to obtain the

"express permission" of the Governor's office for employment

decisions such as "new hires, promotions, transfers, and recalls

after layoffs." The criteria reviewed to determine whether

approval was given included

whether the applicant voted in Republican primaries in past election years, whether the applicant has provided financial or other support to the Republican Party and its candidates, whether the applicant has promised to join and work for the Republican Party in the future, and whether the applicant has the support of Republican Party officials at state or local levels.

[Ibid.]

The Court extended this protection to independent contractors in

,

,

(termination of independent contractor's contract

in retaliation for public criticism of the county and the board

was violation of First Amendment) and O'Hare, supra, 518 U.S. at

726, 116 S. Ct. at 2361, 135 L. Ed. 2d at 886 (towing company

16 A-2411-14T3 dropped from list of approved companies used by city after owner

declined to contribute to city administration's re-election and

supported opposition).

Although plaintiff identifies a number of employment

actions he claims infringed upon his First Amendment rights, he

has not identified any "expressive exercises or beliefs" of his

that were "sufficiently similar to those of the plaintiffs in

the seminal cases" to be protected by the First Amendment. See

Commc'ns Workers, supra,

. He did not

support a losing candidate, fail to yield to pressure to support

any particular candidate or exercise his right to refrain from

any political activity.

Plaintiff described his political participation as minimal,

all in support of the UCDC, and not any particular faction. His

contention is that he was discriminated against because his

brother was a member of a faction of the Democratic Party that

clashed with the other faction led by DeFilippo. But, in his

deposition testimony, he maintained he was not a member of the

disfavored faction. Thus, he has not presented a case in which

his "political affiliation" was separate from the interest

identified with DeFilippo based on a divergence from

"commonality of political purpose, partisan activity and

political support." See Erb v. Borough of Catawassa,

A-2411-14T3 Supp. 2d 244, 254 (M.D. Pa. 2010) (citing Curinga v. City of

Clairton,

(3d Cir. 2004)). And, the act of

retaliation he cites -- the decision not to assign him to his

former position as the head of the Division of Facilities

Management in 2013 -- was made by Faella, whom he described as

closely aligned with the faction at odds with DeFilippo.

As we discern no evidence of constitutionally protected

conduct by plaintiff that could support a prima facie case of

the second Galli element, plaintiff's NJCRA claim was properly

dismissed.

IV.

Plaintiff's failure to show he engaged in constitutionally

protected conduct substantially erodes his claim that Devanney

was not shielded from liability by qualified immunity.

The qualified immunity doctrine is an affirmative defense

that "shields government officials from a suit for civil damages

when 'their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.'" Gormley v. Wood-El,

(2014)

(quoting Harlow v. Fitzgerald,

,

,

(1982)). This defense is

available when a plaintiff asserts a claim for money damages

under the NJCRA. Ramos v. Flowers,

(App.

18 A-2411-14T3 Div. 2012).

In Saucier v. Katz,

, 201,

,

2156,

, 281 (2001), the Supreme Court

identified a two-pronged analysis to be employed in determining

whether qualified immunity applies:

One prong asks whether "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right[.]" The other prong asks "whether the right was 'clearly established' at the time of defendant's alleged misconduct." In other words, "[q]ualified immunity is applicable unless the official's conduct violated a clearly established constitutional right."

[Ramos, supra,

(alteration in original) (citations omitted).]

Using the flexible approach later endorsed by the Supreme

Court in Pearson v. Callahan,

,

,

(2009), we apply "either or both of

the two prongs" of this analysis.

. And, as we observed, "[q]ualified immunity is applicable

unless the official's conduct violated a clearly established

constitutional right."

(alteration in original).

"For a right to be clearly established, '[t]he contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.'"

19 A-2411-14T3 Gormley, supra,

(alteration in original)

(quoting Anderson v. Creighton,

,

,

(1987)). It is imperative

that this inquiry "be undertaken in light of the specific

context of the case, not as a broad general proposition."

Brosseau v. Haugen,

,

,

(2004) (quoting Saucier, supra, 533 U.S. at

201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281). Thus, courts

are required to review the "case law existing at the time of the

defendant's alleged improper conduct" and determine whether

there was "sufficient precedent at the time of action, factually

similar to the plaintiff's allegations, to put defendant on

notice that his or her conduct is constitutionally prohibited."

McLaughlin v. Watson,

(3d Cir. 2001), cert.

denied,

,

,

(2002).

In describing the clearly established right he asserts,

plaintiff states,

[T]he key issue is not simply whether political affiliation with [his brother] is protected conduct, but whether a County employee is protected from adverse actions orchestrated by a purely political person (DeFilippo) for political reasons – to solidify her power by sending the chilling message to County employees to walk "in lockstep" with her or risk their jobs, which action was effectuated by Defendant Devanney.

20 A-2411-14T3 Even if we accept plaintiff's view that there was a

political motive for the employment actions he complains of, the

dispositive issue is whether any of those actions infringed upon

plaintiff's exercise of a right protected by the First

Amendment. As we have noted, the political activity and

association he has described does not fit within the traditional

political affiliation categories that are "clearly established"

as constitutionally protected. In the absence of any precedent

that established plaintiff's association and activities as

constitutionally protected, it follows that Devanney could not

be on notice that the actions he took regarding plaintiff's

employment were constitutionally prohibited. Therefore,

Devanney was correctly afforded qualified immunity, and

plaintiff's NJCRA claim against him was properly dismissed.4

V.

Finally, we turn to the dismissal of plaintiff's

retaliation claim. We agree that this claim was properly

dismissed, albeit for reasons different from those given by the

trial judge.

Plaintiff's complaint alleges that, after the lawsuit was

4 Although plaintiff's complaint requested equitable relief, he does not argue that this demand precludes the availability of the qualified immunity defense. Because plaintiff's NJCRA claim is fatally deficient, this issue merits no further discussion. R. 2:11-3(e)(1)(E).

21 A-2411-14T3 filed, he was transferred to another "non-job" assignment and

was not appointed to the position of County Division Head,

Division of Facilities Management when that position became

vacant. The complaint cites only one authority as legal support

for his claim, that the actions were taken to retaliate for his

filing a lawsuit asserting his rights under the NJCRA.

Like

, on which it was modeled, the NJCRA

provides a means of vindicating substantive rights guaranteed by

federal law and New Jersey's Constitution and laws and is not a

source of rights itself.

.

Unlike the Law Against Discrimination, N.J.S.A. 10:5-1 to -49,

and the Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 to -8, the NJCRA does not explicitly authorize an action

for retaliation based upon the filing of a lawsuit. See

N.J.S.A. 10:5-12(d); N.J.S.A. 34:19-3.

The NJCRA authorizes a private right of action in the

following provision:

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of

22 A-2411-14T3 law, may bring a civil action for damages and for injunctive or other appropriate relief.

[N.J.S.A. 10:6-2(c) (emphasis added).]

Two types of private claims are recognized under this

statute: (1) a claim when one is "deprived of a right," and (2)

a claim when one's rights have been "interfered with by threats,

intimidation, coercion or force." Felicioni v. Admin. Office of

Courts,

(App. Div. 2008), certif.

denied,

(2010); see also

.

Plaintiff contends he was subjected to retaliation for

engaging in activity protected under the First Amendment and

Article 1, Sections 6 and 18 of the New Jersey Constitution. He

argues the correct analysis of his retaliation claim is a

tripartite test enunciated in Baldassare v. New Jersey,

(3d Cir. 2001), as follows:

First, plaintiff must establish the activity in question was protected. For this purpose, the speech must involve a matter of public concern. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. . . . [P]laintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Lastly, the public employer can rebut the claim by demonstrating it would

23 A-2411-14T3 have reached the same decision . . . even in the absence of the protected conduct.

[Id. at 194-95 (emphasis added) (citations and quotations omitted).]

Plaintiff contends the filing of his lawsuit satisfies the

requirement that he engaged in protected conduct because it

"pertained to a matter of public concern, to wit, political

retaliation being carried out by, inter alia, Defendant

Devanney." We reject this argument.

Returning to the claims available to plaintiff under the

NJCRA, it is evident plaintiff was not "deprived" of the right

to file this lawsuit. Therefore, to sustain this action he must

show interference with that right by threats, intimidation,

coercion or force. See Tumpson v. Farina,

(2014). Although it is questionable that the employment actions

complained of constitute "threats, intimidation, coercion or

force," within the meaning of the NJCRA, plaintiff's retaliation

claim ultimately fails because his lawsuit seeking redress for

adverse employment actions personal to him does not merit

protection under the First Amendment.

In Borough of Duryea v. Guarnieri,

,

,

(2011) the Supreme

Court held that when a public employee sues a government

employer under either the First Amendment's Speech Clause or

24 A-2411-14T3 Petition Clause, the employee must show he spoke as a citizen on

a matter of public concern. "[W]hether an employee's petition

relates to a matter of public concern will depend on 'the

content, form, and context of [the petition], as revealed by the

whole record.'"

,

,

(quoting Connick v. Myers,

,

,

(1983)).

The Court cautioned that the right of a public employee

under the Petition Clause is "not a right to transform everyday

employment disputes into matters for constitutional litigation

in the federal courts." Id. at 399,

,

. Thus, a lawsuit that seeks to advance interests

personal to the plaintiff will not satisfy the public concern

requirement. See ibid.,

,

. ("A petition that 'involves nothing more than a complaint

about a change in the employee's own duties' does not relate to

a matter of public concern . . . ." (citation omitted)); United

States v. Nat'l Treasury Emps. Union,

,

, 1013

(1995) (observing

"employee comment on matters related to personal status in the

workplace" does not fall within category of protected speech).

Cf. Maw v. Advanced Clinical Commc'ns, Inc.,

(2004) (To satisfy CEPA's requirement under N.J.S.A. 34:19-

25 A-2411-14T3 3(c)(3) that employer activity is incompatible with a clear

mandate of public policy, "the complained of activity must have

public ramifications, and . . . the dispute between employer and

employee must be more than a private disagreement."); see also

Turner v. Associated Humane Soc'ys., Inc.,

(App. Div. 2007); Cosgrove v. Cranford Bd. of Educ.,

(App. Div. 2003) (holding an employee

who claims employer retaliatory action for complaining about the

unfair allocation of overtime does not have a claim under

N.J.S.A. 34:19-3(c)(3) because such a complaint deals with the

employee's personal harm, not harm to the public).

Although plaintiff attempts to cast his complaint as

raising issues of public concern, his allegations regard the

conditions of his employment and the remedies sought are limited

to relief designed to rectify employment actions he contends

were adverse to him. Because his lawsuit essentially concerns

an employment dispute rather than a matter of public concern,

plaintiff cannot satisfy the first prong of the tripartite test

applicable to his retaliation claim, see

, and therefore fails to support a claim under the

NJCRA. His retaliation claim was properly dismissed.

Affirmed.

26 A-2411-14T3