DAWN ROBERTS v. NEW JERSEY TURNPIKE AUTHORITY

NOT FOR PUBLICATION WITHOUT THE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-0

DAWN ROBERTS,

Plaintiff-Appellant,

v.

NEW JERSEY TURNPIKE AUTHORITY

and JOSEPH LENTINI,

Defendants-Respondents.

_______________________________

October 31, 2016

 

Submitted September 15, 2016 Decided

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5478-14.

Law Offices of Louis A. Zayas, attorneys for appellant (Louis A. Zayas and Alex Lee, on the briefs).

McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys for respondents (Thomas C. Bigosinski, of counsel and on the brief; Melanie D. Lipomanis, on the brief).

PER CURIAM

Plaintiff Dawn Roberts appeals from a December 11, 2014 order dismissing, with prejudice, her two-count complaint alleging defendants, the New Jersey Turnpike Authority (the Authority) and Joseph Lentini, the Authority's Director of Maintenance, both in his official and individual capacities, violated the New Jersey Civil Rights Act (the Act), N.J.S.A. 10:6-1 to -2. The Law Division judge concluded plaintiff failed to state a claim upon which relief could be granted, see R. 4:6-2(e), because neither the Authority nor its officials were persons subject to the provisions of the Act, as defined by N.J.S.A. 10:6-1. Further, she concluded Lentini, individually, was not acting under color of law, as required by the statute to sustain a private civil rights action.

On appeal, plaintiff, drawing on federal jurisprudence applying the provisions of 42 U.S.C.A. 1983, argues the Authority, as a state agency, is akin to a municipality, a designated "person" governed by the Act. We disagree. For the reasons discussed, we conclude the Authority is immune from suit and not a "person" covered by the Act, and affirm.

Rule 4:6-2(e) specifically limits a trial court to consider only the complaint under review when determining whether it fails to state a claim upon which relief can be granted. We apply the same standard in our review of the order granting the motion. Seidenberg v. Summit Bank, 348 N.J. Super. 243, 250 (App. Div. 2002). Accordingly, we first recite the facts stated in plaintiff's complaint, which we afforded "every reasonable inference" and "determine whether the allegations suggest a cause of action." Major v. Maguire, 224 N.J. 1, 26 (2016); In re Reglan Litig., 226 N.J. 315, 324 n.5 (2016). See also Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (stating a reviewing court "searches 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, opportunity being given to amend if necessary" (quoting DiCristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957))).

The Authority is responsible for the day-to-day operations of two public toll roads: the New Jersey Turnpike (the Turnpike) and the Garden State Parkway (the Parkway). Each year, approximately 8,000 motor vehicle accidents occur on the Turnpike and the Parkway, and the Authority operates separate recovery procedures to seek reimbursement for Authority property damaged by motorists in accidents, known as "MVA recoveries." These MVA recovery efforts entail reviewing accident information, identifying damaged Turnpike or Parkway property, and collecting invoices evincing the monetary recovery sought, which are then transmitted to the Authority's legal department for collection.

Plaintiff worked as a "Senior Secretary assigned to the Maintenance Department" of the Authority. Lentini was her supervisor.

In her complaint, plaintiff described her position. She stated, despite her title, she "was doing the job of an administrator, responsible for budgets expenses, inventory, requisitions, files, purchasing quotes, and other administration duties." Among plaintiff's responsibilities were processing MVA recoveries for the Parkway and later supervising MVA recoveries for the Turnpike.

The Parkway manually performed recovery efforts, while the Turnpike used a system referred to as "SPEARS." Plaintiff "immediately recognized [the Turnpike]'s software, 'SPEARS,' was susceptible to fraudulent activity, at wors[t], or deficiencies, at best." She voiced her concerns to Lentini, the Authority's senior management and the law department, explaining

SPEARS was deficient because it did not provide for (1) User Identification or Tracking of Users using the system, enabling fraudulent or misleading invoices to be generated; (2) SPEARS described accidents without any corroboration such as reliance on New Jersey State Police Reports; (3) anyone had access to SPEARS; (4) anyone could close a claim without complete documentation and verification; (5) claims could be closed without final invoicing from all departments involved, thereby minimizing MVA Recovery; and (6) the Legal Department and Finance Department were not notified upon completion of MVA Recovery concerning any particular claim.

Plaintiff also complained of "numerous incidents of potential fraud; lane closing overcharging, wage discrimination, and selective enforcement of rules and policies of the [Authority]," including identifying those she believed perpetrated fraudulent schemes.

No action was taken by the Authority's management or legal department to modify SPEARS or otherwise address plaintiff's points demonstrating problems. Instead, plaintiff experienced numerous instances of "harassment, threats, intimidation tactics and retaliation" by Lentini and others. Further, she was stripped of her supervisory responsibilities and her work area was relocated.

On July 1, 2013, federal agents arrested the Authority's claims manager, Geraldo Blasi, on fraud charges relating to his use of the SPEARS system. He pleaded guilty to defrauding the Authority of $1,500,000.

The question presented for review is whether plaintiff may pursue her alleged claims against Lentini and the Authority for alleged civil rights violations under the Act. The issue is a legal one, subject to our de novo review. See State ex rel. K.O., 217 N.J. 83, 91 (2014) ("Because statutory interpretation involves the examination of legal issues . . . [we apply] a de novo standard of review." (citation omitted)); Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012) ("In construing the meaning of a statute, our review is de novo.").

When examining issues of "statutory interpretation, a court's role 'is to determine and effectuate the Legislature's intent.'" K.O., supra, 217 N.J.at 91 (quoting McGovern v. Rutgers, 211 N.J.94, 107-08 (2012)). The first step in this process considers the plain language of the statute.

We begin by "read[ing] and examin[ing] the text of the act and draw[ing] inferences concerning the meaning from its composition and structure." 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction 47:1 (7th ed. 2007). That common sense canon of statutory construction is reflected also in the legislative directive codified at N.J.S.A. 1:1-1

In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language.

[State v. Hupka, 203 N.J. 222, 231-32 (2010).]

The Act "was enacted in 2004 for the profound purpose of 'provid[ing] the citizens of New Jersey with a State remedy for deprivation of or interference with the civil rights of an individual.'" Perez v. Zagami, LLC, 218 N.J. 202, 212 (2014) (alteration and emphasis in original) (quoting S. Judiciary Comm. Statement to S. No. 1158, 211th Leg. 1 (May 6, 2004)). Subsection (c) sets forth "a private cause of action" to anyone "subjected to a deprivation of or interference with" his or her substantive protected rights. Id. at 212-13.

More specifically, N.J.S.A. 10:6-2(c) provides, in pertinent part

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.

Plaintiff correctly identifies the Act is modeled after the federal Civil Rights Act, 42 U.S.C.A. 1983. Certainly, the Act stands as the State analogue to 1983, and provides "a remedy for the violation of substantive rights found in our State Constitution and laws." Brown v. State, 442 N.J. Super. 406, 425 (App. Div. 2015), certif. granted, 225 N.J. 339 (2016). See also Tumpson v. Farina, 218 N.J. 450, 474 (2014).

However, the United States Supreme Court has determined 1983 does not apply to the states. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 67, 71, 109 S. Ct. 2304, 2310, 2312, 105 L. Ed. 2d 45, 55, 58 (1989) ("[N]either a State nor its officials acting in their official capacities are 'persons' under 1983"). Moreover, New Jersey courts "have long recognized that an essential and fundamental aspect of sovereignty is freedom from suit by private citizens for money judgments absent the State's consent." Allen v. Fauver, 167 N.J. 69, 73-74 (2001). These principles embody the doctrine of qualified immunity, which shields government officials from suits for damages. Gormley v. Wood-El, 218 N.J. 72, 113 (2014) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815, 86 L. Ed. 2d 411, 425 (1985)). "Qualified immunity balances two important interests -- the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Ibid. (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565, 573 (2009)). Thus, "[g]iven their similarity, our courts apply 1983 immunity doctrines to claims arising under the Civil Rights Act." Brown, supra, 442 N.J. Super. at 425.

Understanding the State, as the sovereign, must consent to legal actions filed against it, our review of the Act reveals no support to suggest the Legislature's intent to waive its sovereign immunity and authorize civil actions against the State, its departments or agencies for alleged violations of constitutional or statutory rights. Indeed, by its terms, the Act only permits the filing of a private cause of action against "persons" acting under color of law. N.J.S.A.10:6-2(c). "Given that the Legislature did not choose to include an express waiver of sovereign immunity in the Civil Rights Act and that the State enjoys immunity under the analogous 1983, we conclude that the State is immune from a suit for damages under the Civil Rights Act." Id.at 426.

In Brown, we examined the propriety of suing the State for civil rights violations based upon alleged unconstitutional conduct by State Troopers. Id.at 410. The State asserted immunity from suit under the Act. We agreed, concluding "the State is not a 'person' under the Civil Rights Act" and, therefore, remained immune from suit for damages. Id. at 426 (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 3106 n.14, 87 L. Ed. 2d 114, 122 n.14 (1985) (noting that "a State cannot be sued directly in its own name regardless of the relief sought" unless its sovereign immunity is affirmatively waived or validly abrogated by Congress)).

Citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690, 98 S. Ct. 2018, 2035, 56 L. Ed. 2d 611, 635 (1978), plaintiff argues the Authority must be viewed as a distinct entity, separate from the State and akin to a municipality, because it is a public corporation and a "quasi-government agency." We disagree.

The Authority is established within the Department of Transportation and constitutes "an instrumentality exercising public and essential governmental functions," whose activities in the exercise of its authority "shall be deemed and held to be an essential governmental function of the State." N.J.S.A. 27:23-3(a) ("There is hereby established in the State Department of Transportation a body corporate and politic, with corporate succession, to be known as the 'New Jersey Turnpike Authority.'"). The Authority is comprised of three members appointed by the Governor with the advice and consent of the Senate. Ibid. Finally, the Governor has power to remove for cause the members of the Authority. N.J.S.A. 27:23-3(b).

Plaintiff's reliance on Monell is misplaced. Monell does not suggest any public corporation is exposed to liability under 1983. Rather, Monell circumscribed instances when a municipal employee's conduct triggered the local government's liability as a "person" under 1983. Monell 436 U.S. at 694, 98 S. Ct. at 2037-38, 56 L. Ed. 2d at 638 (stating a municipality is liable under 1983 for the violation of a plaintiff's constitutional rights resulting from a municipal "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy"). See also Besler v. Bd. of Educ. of W. Windsor-Plainsboro Regional School Dist., 201 N.J. 544, 565 (2010) ("Under 42 U.S.C.[A]. 1983, a municipality may be accountable for the action of an official who 'possesses final authority to establish municipal policy with respect to the action ordered.'" (quoting Stomel v. City of Camden, 192 N.J. 137, 146 (2007))).

Here, the Authority is neither a local government body nor a municipal corporation. The Authority and its employees have been recognized as a State agency. See McCabe v. N.J. Turnpike Auth., 35 N.J. 26, 31 (1961) ("The general rule in the United States is that state highway or turnpike authorities are agencies of the state and are therefore entitled to the protection of the rule of sovereign immunity."); Safeway Trails, Inc. v. Furman, 41 N.J. 467, 483 (1964), ("These Authorities have been designated as instrumentalities and agencies of the State by the statutes creating them. In effect, they are arms of the State government operating certain highways for the State."), cert. denied, 379 U.S. 14, 85 S. Ct. 144, 13 L. Ed. 2d 84 (1964); N.J. Turnpike Employees v. N.J. Turnpike Auth., 200 N.J. Super. 48, 52-53 (App. Div. 1985); Garden State Pkway. Emp. v. N.J. Highway Auth., 105 N.J. Super. 168, 170-71 (App. Div. 1969); Goldberg v. Hous. Auth. of Newark, 70 N.J. Super. 245, 251 (App. Div. 1961) ("[O]ur Supreme Court held [in McCabe] that the Turnpike Authority is an agency of the State and is entitled to the protection of the rule of sovereign immunity, so that an action for negligence will not lie against such an agency unless there has been a waiver of immunity."), rev'd on other grounds, 38 N.J. 578 (1962); N.J. Turnpike Auth. v. Twp. of Monroe, 28 N.J. Tax 158, 161-62 (Tax 2014) ("[T]he turnpike is considered as an agency or instrumentality of the State, being created in but not of the New Jersey Department of Transportation.").

As we noted in Brown, the Legislature's omission of a "clear and unambiguous" expression consenting to the State's inclusion of the statute's liability provisions requires we reject plaintiff's broad construction seeking such a result. Brown, supra, 442 N.J. Super. at 425. We affirm neither the State nor its officials acting in their official capacities are "persons" under the Act. Id. at 426. See also Didiano v. Balicki, 488 F. App'x 634, 638 (3d Cir. 2012) (rejecting the plaintiff's argument to interpret "person" under the Act differently than in 1983).

Plaintiff also suggests the judge "implicitly" applied the Eleventh Amendment immunity to conclude the Authority was not a person under the Act. The argument is unfounded and lacks merit. R. 2:11-(3)(e)(1)(E).

Next, plaintiff advances a public policy argument, urging "to accept that a state agency, such as the [Authority], could not be liable under the [Act] would undermine the remedial purpose underpinning the enactment of the [the Act]." We decline the request to expand the Act's interpretation, which ignores the principle undergirding our conclusion: unless sovereign immunity is affirmatively waived by a statute's provisions, action for damages against the State and its agencies are barred.

When adopting the Act, the Legislature was aware it could allow actions against the State for claimed civil rights violations, as was expressly stated in other remedial statutes. See N.J.S.A. 10:5-5(e) (including the State as a liable employer under the New Jersey Law Against Discrimination); N.J.S.A. 34:19-2(a) (including "all branches of State Government" as a liable employer under the New Jersey Conscientious Employee Protection Act); N.J.S.A. 59:1-2 (providing a limited scheme modifying the doctrine of sovereign immunity for tort claims against public entities to allow liability as permitted under the statutory provisions). The absence of a similar provision in the Act is not inadvertent, it was purposeful and persuasive.

We also note no definition of "person" was included in the Act, which allows reliance on N.J.S.A. 1:1-2, stating

The word "person" includes corporations, companies, associations, societies, firms, partnerships and joint stock companies as well as individuals, unless restricted by the context to an individual as distinguished from a corporate entity or specifically restricted to one or some of the above enumerated synonyms and, when used to designate the owner of property which may be the subject of an offense, includes this State, the United States, any other State of the United States as defined infra and any foreign country or government lawfully owning or possessing property within this State.

[(Emphasis added).]

"[The Legislature] is presumed to [be] 'thoroughly conversant with its own [prior] legislation and the judicial construction of its statutes.'" State v. Goodwin, 224 N.J. 102, 113 (2016) (alterations in original) (quoting In re Expungement Petition of J.S., 223 N.J. 54, 75 (2015)). Accordingly, the omission of the State within the definition of person (except with respect to limited actions involving real property) controls and binds this court. See also GE Solid State v. Dir., Div. of Taxation, 132 N.J. 298, 308 (1993) ("Under the established canons of statutory construction, where the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.").

We turn our examination to whether Lentini was liable under the Act. "Personal-capacity suits seek to impose personal liability upon a governmental official for actions he [or she] takes under color of state law." In re Petition for Review of Op. 552 of Advisory Comm. on Prof'l Ethics, 102 N.J. 194, 199 (1986) (quoting Kentucky v. Graham, 473 U.S. 159, 165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114, 121 (1985)); Wood-El, supra, 218 N.J. at 85 n.3. The suit against an official in his or her official capacity is an action against the office. Printz v. United States, 521 U.S. 898, 930-31, 117 S. Ct. 2365, 2382, 138 L. Ed. 2d 914, 941 (1997). ("[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. . . . As such, it is no different from a suit against the State itself. And the same must be said of a directive to an official in his or her official capacity." (quoting Will, supra, 491 U.S. at 71, 105 L. Ed. 2d at 45, 58, 109 S. Ct. at 2312)). Therefore, because the Authority is excluded from the Act's definition of "person," a suit against Lentini in his official capacity is barred.

Private actions, such as a suit against Lentini individually, "may only be brought against persons who are 'acting under color of law.'" Perez, supra, 218 N.J. at 215-17 (quoting N.J.S.A. 10:6-2). Private persons can act "under color of" state law when they are "willful participant[s] in joint action[s] with the State or its agents." Dennis v. Sparks, 449 U.S. 24, 27, 101 S. Ct. 183, 186, 66 L. Ed. 2d 185, 189 (1980).

The "under color of state law" requirement is identical to the "state action" requirement of the fourteenth amendment. Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 102 S. Ct. 2744 (1982), 73 L. Ed. 2d 482; Krynicky v. Univ. of Pittsburgh, 742 F.2d 94 (3d Cir. 1984). Thus, a showing that actions were "under color of state law," like a showing of the presence of "state action," does not require that the challenged action be pursuant to a state statute. Rather, the question is "whether there is a sufficiently close nexus between the State and the challenged action," Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449 (1974), 42 L. Ed. 2d 477, or whether the State "has so far insinuated itself into a position of interdependence" that there is a "symbiotic relationship" between the actor and the state such that the challenged action can "fairly be attributed to the state," Krynicky, supra, at 99.

[Johnson v. Orr, 780 F.2d 386, 390 (3d Cir. 1986).]

See also Adickes v. S.H. Kress & Co., 398 U.S. 144, 211, 90 S. Ct. 1598, 1631, 26 L. Ed. 2d 142, 184 (1970) ("[T]he word 'color,' as in 'color of authority,' 'color of law,' 'color of office,' 'color of title,' and 'colorable,' suggests a kind of holding out and means 'appearance, semblance, or simulacrum,' but not necessarily the reality.") (Brennan, J., concurring in part and dissenting in part).

In her brief, plaintiff alleges Lentini used his position as her supervisor to transfer her to unfavorable work assignments, deny her promotions and salary increases, create a hostile work environment and retaliate against her for complaining about the corruption and misconduct. The recitals in her complaint include: she related concerns about the "SPEARS" program but Lentini and others "failed to take corrective action"; a single incident of not being invited to a meeting; an instance of not being reimbursed for mileage in June 2013 for use of her personal vehicle; Lentini's expressions of anger and pounding a table during a meeting; moving her office to a trailer; and giving her clerical rather than managerial assignments.

Plaintiff's identification of SPEARS's vulnerabilities and her belief other Authority employees were committing fraud equates to her workplace responsibilities, reported to her supervisors. The supervisor's failure to act on her concerns may have caused her to feel aggrieved, but these facts bespeak a workplace action, not suppressed protected activity. See In re Disciplinary Action Against Gonzalez, 405 N.J. Super. 336, 346-47 (App. Div. 2009); Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 477-78 (App. Div. 2008). Plaintiff was not espousing a matter of public concern to another and the State then acted to thwart or suppress her conduct.

We also cannot agree the incidents of not including her in a meeting, reimbursing her mileage, or changing her work assignment and location present a prima facie case of infringement of protected conduct under the New Jersey Constitution. See Grimes v. City of E. Orange, 285 N.J. Super. 154, 164 (App. Div. 1995) (stating the plaintiff had no constitutional or statutory right to specific workplace conditions or positions); Greenberg v. Kimmelman, 99 N.J. 552, 573 (1985) ("The right to a particular job, unlike the right to work in general, has never been regarded as fundamental.").

Although Lentini is connected to the State by his employment, plaintiff's allegations, as set forth her complaint, do not state he acted under color of state law. Further, based on Grimes and Greenberg, the claims noted do not equate to deprivation of plaintiff's civil rights.

Consequently, because her complaint states no basis for relief and discovery would not provide one, dismissal under Rule 4:6-2 is appropriate. County of Warren v. State, 409 N.J. Super. 495, 503 (App. Div. 2009), certif. denied, 201 N.J. 153 (2010). Additional arguments not specifically discussed in our opinion have been reviewed and found to lack sufficient merit to warrant discussion. R. 3:11-3(e)(1)(E).

Affirmed.