PAUL BETHEA VS. WAHAB ONITIRI, ETC. (L-1756-19, MERCER COUNTY AND STATEWIDE)

P
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2391-19

PAUL BETHEA,

          Plaintiff-Appellant,

v.

WAHAB ONITIRI, individually
and in his official capacity as the
DIRECTOR OF PUBLIC WORKS
DEPARTMENT FOR THE CITY
OF TRENTON,

     Defendant-Respondent.
_____________________________

                   Submitted February 9, 2021 – Decided March 25, 2021

                   Before Judges Gilson and Gummer.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Docket No. L-1756-19.

                   Paul Bethea, appellant pro se.

                   Inglesino, Webster, Wyciskala & Taylor, LLC,
                   attorneys for respondent (Denis F. Driscoll and Joseph
                   M. Franck, of counsel and on the brief).

PER CURIAM
      Plaintiff Paul Bethea appeals from a November 22, 2019 order dismissing

his complaint without prejudice and a January 10, 2020 order denying his motion

for reconsideration. We affirm because his complaint failed to state a cause of

action. We also note that the dismissal was without prejudice and, therefore,

plaintiff was given the opportunity to try to cure that failure by filing a new

complaint.

                                       I.

      Plaintiff is employed by the City of Trenton as a sanitation truck driver.

He is also the second vice president of the union representing City sanitation

workers.

      In August 2019, plaintiff, representing himself, filed a civil complaint

against defendant Wahab Onitiri "individually and in his official capacity as the

Director of Public Works Department for the City of Trenton." Plaintiff asserted

three causes of action, contending defendant had violated his First Amendment

right of free speech, discriminated against him in violation of his First

Amendment rights as a union advocate, and created a hostile work environment.

      Defendant moved to dismiss the complaint under Rule 4:6-2(e), arguing

that the complaint failed to state causes of action upon which relief could be

granted. After plaintiff was granted an adjournment, the motion was scheduled


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to be heard on November 22, 2019. Plaintiff did not file written opposition;

rather, he appeared on November 22, 2019, and attempted to hand in his

opposition at that time.    Plaintiff explained that he had failed to file his

opposition because he was busy seeing doctors about medical issues. The trial

judge did not accept the late opposition, finding that plaintiff had no legitimate

excuse because even with his medical appointments, he had had time to file his

opposition. Nevertheless, the court went on to consider the motion on its merits.

      On November 22, 2019, the trial court entered an order dismissing the

complaint without prejudice and explained the reasons for that order in a short ,

written opinion. The trial court pointed out that plaintiff's First Amendment

claims were defective because they were asserted as direct causes of action and

not under the appropriate federal or state statutes.     See 42 U.S.C. § 1983;

N.J.S.A. 10:6-2(c).    The trial court ultimately held that plaintiff's First

Amendment claims were legally insufficient because the complaint alleged only

speech related to plaintiff's employment, not speech as a citizen on a matter of

public concern. The court also held that plaintiff had failed to state a cause of

action for a hostile work environment claim because he did not allege that he

belonged to a protected class.




                                                                            A-2391-19
                                        3
      On December 10, 2019, plaintiff filed a motion for reconsideration. In his

moving papers, he did not identify any facts or law that he contended the trial

court had overlooked. Instead, he sought to file the opposition that had not been

accepted on November 22, 2019. The trial court denied that motion in an order

entered on January 10, 2020. Again, the court issued a short statement of

reasons in support of its order.

                                        II.

      On appeal, plaintiff makes four arguments. First, he contends that the trial

court unjustly denied his motion for reconsideration. Second, he asserts that he

has a First Amendment retaliation claim and his complaint should not have been

dismissed. Third, he argues that the facts alleged in his complaint are not limited

to speech as an employee and constitute matters of public concern. Finally, he

contends that defendant's conduct constituted harassment and created a hostile

work environment. None of these arguments cures the deficiencies in plaintiff's

complaint.1




1
  Defendant correctly points out that plaintiff did not file a timely notice of
appeal from the November 22, 2019 order. Consequently, the only order
properly before us is the January 10, 2020 order denying reconsideration.
Nevertheless, even in analyzing the order denying reconsideration, it makes
sense to review the complaint to see if it states a cause of action.
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                                        4
      We use a de novo standard to review the dismissal of a complaint for

failure to state a claim. Rezem Fam. Assocs. v. Borough of Millstone, 423 N.J.

Super. 103, 114 (App. Div. 2011); Donato v. Moldow, 

374 N.J. Super. 475

, 483

(App. Div. 2005). In reviewing a dismissal under Rule 4:6-2(e), our inquiry is

focused on "examining the legal sufficiency of the facts alleged on the face of

the complaint." Green v. Morgan Props., 

215 N.J. 431

, 451 (2013) (quoting

Printing Mart-Morristown v. Sharp Elecs. Corp., 

116 N.J. 739

, 746 (1989)).

Accordingly, we "search[] the complaint in depth and with liberality to ascertain

whether the fundament of a cause of action may be gleaned even from an obscure

statement of claim, . . . giv[ing opportunity] to amend if necessary."

Id. at 452

(quoting Printing 

Mart-Morristown, 116 N.J. at 746

).

      An examination of plaintiff's complaint reveals that it fails to state viable

causes of action. Even giving plaintiff the benefit of all legitimate inferences,

his complaint has not stated a viable claim under the First Amendment of the

Federal Constitution or the New Jersey Constitution for several reasons. First,

both the First Amendment of the Federal Constitution and Article I, Paragraph

6 of our State Constitution protect an individual's speech from infringement by

the government. U.S. Const. amend. I; N.J. Const. art. I, ¶ 6. Consequently,

plaintiff cannot assert First Amendment claims against defendant in his


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                                        5
individual capacity. See Perez v. Zagami, LLC, 

218 N.J. 202

, 216 (2014)

(declining to interpret state remedy as "authoriz[ing] actions against a private

person for perceived constitutional violations.").

      Second, there is no direct private cause of action under the First

Amendment of the United States Constitution or Article I, Paragraph 6 of the

New Jersey Constitution. See Jett v. Dallas Indep. Sch. Dist., 

491 U.S. 701

, 735

(1989) (explaining that § 1983 provides the exclusive federal remedy for

violations of federal constitutional rights under color of state law); Bivens v. Six

Unknown Fed. Narcotics Agents, 

403 U.S. 388

, 391 n.4, 397 (1971)

(recognizing individuals who allege a violation of their federal constitutional

rights may have an actionable claim under § 1983); see also Ramos v. Flowers,

429 N.J. Super. 13

, 21 (App. Div. 2012) (New Jersey Civil Rights Act "assur[es]

a state law cause of action for violations of state and federal constitutional

rights[.]"). Instead, § 1983 and the New Jersey Civil Rights Act, N.J.S.A. 10:6-

1 to -2, are the appropriate means of vindicating rights guaranteed by the Federal

and New Jersey Constitutions. See 

Jett, 491 U.S. at 735

; see also Gormley v.

Wood-El, 

218 N.J. 72

, 97-98 (2014).

      Third, even if plaintiff had asserted claims under § 1983 and the New

Jersey Civil Rights Act, the allegations in his complaint failed to state a cause


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                                         6
of action. "A government entity has broader discretion to restrict speech when

it acts in its role as employer, but the restrictions it imposes must be directed at

speech that has some potential to affect the entity's operations." Garcetti v.

Ceballos, 

547 U.S. 410

, 418 (2006). There is a two-part inquiry to determine if

constitutional protection attaches to speech by a public employee:

            The first requires determining whether the employee
            spoke as a citizen on a matter of public concern. If the
            answer is no, the employee has no First Amendment
            cause of action based on his or her employer's reaction
            to the speech. If the answer is yes, then the possibility
            of a First Amendment claim arises. The question
            becomes whether the relevant government entity had an
            adequate justification for treating the employee
            differently from any other member of the general
            public.

            [Ibid. (citations omitted).]

      In his complaint, plaintiff did not identify specific communications or

statements that he made. Instead, he makes general references that defendant

was restricting how and to whom he could complain about work conditions.

These are insufficient allegations of the actual speech or communications that

would allow an inference that plaintiff was speaking as a citizen on a matter of

public concern.

      Moreover, plaintiff does not allege that any communication he engaged in

caused him to be subject to discipline.        Instead, read most liberally, his

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complaint alleges that he felt defendant was trying to restrict what he might

advocate for as a union representative.

      Plaintiff's allegations about a hostile work environment are also legally

insufficient. Plaintiff does not identify a statutory basis for his claim. Giving

him the benefit of reasonable inferences, we assume it is based on New Jersey's

Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. To establish a

hostile work environment claim under LAD, the complaint must allege facts

showing (1) plaintiff is in a protected class; (2) he "was subjected to conduct

that would not have occurred but for that protected status;" and (3) the conduct

was "severe or pervasive enough to alter the conditions of [his] employment."

Victor v. State, 

203 N.J. 383

, 409 (2010)

      Plaintiff has failed to allege that he is in any protected class. Moreover,

he does not identify any severe or pervasive conduct on the part of defendant

linked to a protected status.

      In summary, the facts set forth in plaintiff's complaint fail to establish

viable causes of action.    Normally, the trial court should give plaintiff an

opportunity to amend his complaint to allege additional facts that might support

a cause of action. See Hoffman v. Hampshire Labs, Inc., 

405 N.J. Super. 105

,

116 (App. Div. 2009). The decision to allow an amendment, however, "remains


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                                          8
a matter addressed to the [trial] court's sound discretion." Johnson v. Glassman,

401 N.J. Super. 222

, 247 (App. Div. 2008) (citing Kernan v. One Wash. Park,

154 N.J. 437

, 457 (1998)). We discern no abuse of discretion here because the

trial court dismissed without prejudice and plaintiff had the opportunity to

prepare and file a new complaint with additional facts that might support a cause

of action.

      Affirmed.




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                                       9

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