Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Estate of Oliva v. State of NJ

May 4, 2010

THE ESTATE OF JOHN L. OLIVA, JR., BY HIS ADMINISTRATRIX CTA, KELLI ANN MCHUGH, APPELLANT
v.
STATE OF NJ, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF STATE POLICE; JOHN J. FARMER, JR., IN HIS OFFICIAL CAPACITY; CARSON DUNBAR, IN HIS OFFICIAL CAPACITY; BRUCE MYERS; ALBERT WALDRON; RAY LUPU; JAMES HARRIS; GEORGE GILMAN; GARY AUSTIN; HORACE MACFARLAND; REGINALD WILLIAMS; FRANCES DONLAN; WILLIAM MEDDIS; KENNETH SCHAIRER; JOHN ZULAWSKI; EDWARD SOKORAI; GLENN MILLER; JOHN HAGGERTY; ROBIN BLAKER; JOHN DOES, 1-5; ROBERT KILMURRARY; DONALD IZZI, ALL INDIVIDUALLY; JOSEPH SANTIAGO; GAIL CAMERON; DEBRA ARMITAGE



On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 1:01-CV-02259) Honorable Joseph E. Irenas, District Judge.

The opinion of the court was delivered by: Greenberg, Circuit Judge

PRECEDENTIAL

Argued March 9, 2010

BEFORE: MCKEE, BARRY, and GREENBERG, Circuit Judges.

OPINION OF THE COURT

I. INTRODUCTION

This matter comes on before this Court on an appeal from an order of the District Court entered on September 30, 2008,*fn1 granting Appellees' motion for summary judgment and denying the request of Appellant, John Oliva, for leave to amend further his already twice amended complaint. See Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643 (D.N.J. 2008). Though the Court denied summary judgment to a remaining defendant, when Oliva subsequently dismissed the case against that defendant the order of September 30, 2008, became final and thus we have jurisdiction over his appeal. For the reasons that follow, we will affirm the order of the District Court.

II. BACKGROUND

The Division of State Police in the New Jersey Department of Law and Public Safety employed Oliva as a state trooper from November 1998 until his suicide on October 1, 2002. Oliva's complaint in this action alleged that during this four-year period, both while he was on active duty and while he was on leave, numerous individuals connected with the State Police harassed him in reaction to his objections to what he believed was a State Police practice to profile motorists when making traffic stops, i.e., "the practice of using stereotypes to select which motorists a trooper will stop, detain and search." Supp. App. at 16. Oliva's complaint alleged that the harassment involved a variety of actions including unjustified transfers of his duty station, unjustified negative performance notices, misconduct investigations, adverse medical recommendations, threatening notes, and verbal confrontations.

Though Oliva personally filed the original complaint in this case in the District Court, since the time of his death his estate has prosecuted the action. Nevertheless, as a matter of convenience we have referred and will continue to refer to Oliva as though he has been the sole plaintiff. Though we set forth the facts at some length, the District Court in its September 30, 2008 opinion accompanying the order from which Oliva appealed, set forth the facts in greater detail. The facts as we describe them either are undisputed or, if disputed, are recited in the way most favorable to Oliva as the non-movant on the summary judgment motion.

A. Oliva's Tenure as an Active-Duty State Trooper

Oliva joined the New Jersey State Police following a successful ten-year career as a Marine, corrections officer, and municipal police officer. Upon Oliva's graduation from the State Police Academy in November 1998, the State Police assigned him to the Bellmawr Station, Troop A. Consistently with the practice of assigning new recruits with a "Trooper Coach," the State Police paired Oliva at Bellmawr with a trooper named Patrick Gallagher. Oliva alleges that Gallagher required him to engage in racial profiling of motorists when making traffic stops. Oliva complained about Gallagher to his sergeant, Manny Gordillo, but did not state specifically that Gallagher was instructing him to profile because Oliva thought this already "was known to everybody at the station." App. at 405. Oliva believed that his complaint to Gordillo gained him a reputation at Bellmawr as a "salty" recruit, i.e., someone who didn't play by the rules or have respect for senior officers, and charged that after he made the complaint other troopers literally began placing salt in his station mailbox.

The State Police transferred Oliva to the Woodbine Station, Troop A, in May 1999, and placed him under the supervision of Appellee Edward Sokorai. On August 22 and November 27, 1999, Sokorai issued Oliva negative performance notices reflecting Sokorai's assessment of Oliva's performance of his traffic enforcement duties. Shortly after receiving the second such notice, Oliva arrived for a shift at Woodbine where Appellee Bruce Myers met him and handed him an anonymous note that read:

HEY OLIVA, EVERYONE AROUND HERE IS GETTING SICK AND TIRED OF YOUR SHIT. WHETHER YOU LIKE IT OR NOT, YOU'RE STILL A RECRUIT. IF YOU DON'T LIKE IT YOU CAN GO BACK TO YOUR OLD DEPARTMENT WHERE YOU CAME FROM. YOU BETTER START DOING WHAT YOU'RE TOLD TO DO. WE'RE ALL WATCHING YOU OLIVA.

App. at 624. Oliva contends that another trooper who no longer is a party to this action acknowledged writing the note.

In early 2000, the State Police transferred Oliva from the Woodbine Station to another Troop A station at Buena Vista. Appellee Glenn Miller, the Commander of Troop A, was responsible for the transfer decision. Oliva's transfers from Bellmawr to Woodbine and from Woodbine to Buena Vista were consistent with State Police practice at the time to assign a newly appointed trooper to his or her first two duty stations for approximately six months at each station and then to reassign the new trooper to a third station for an indefinite period determined by administrative needs and the trooper's preference.*fn2

Oliva claims that his supervisor at Buena Vista, Albert Waldron, taught him about racial profiling and expected him to engage in that practice.*fn3 Oliva asserts that when he objected to racial profiling, Waldron threatened to give him a negative performance evaluation.*fn4 According to Oliva, in April 2000 Waldron accused Oliva of not making enough arrests, an accusation that led Oliva to respond that "I am not gonna go sit . . . and profile." App. at 449. Approximately one week later, Waldron issued Oliva a negative performance evaluation, which Oliva challenged by writing a letter addressed to SFC P. Callen, Waldron's superior in the State Police chain-of-command, raising concerns about profiling and arguing that Waldron's evaluation was unjustified. After speaking with Oliva, Callen ordered Waldron to write a new evaluation giving Oliva the highest possible marks in all applicable criteria.

The State Police retransferred Oliva to the Woodbine Station in August 2000. According to Commander Miller, the State Police made this transfer as an aspect of a personnel rearrangement to fill a vacant position as well as to reduce the commute times of several troopers. The transfer did not significantly affect Oliva's commute time as his residence was approximately equidistant from the Buena Vista and Woodbine Stations. Miller claims to have been unaware of Oliva's previous problems at Woodbine when he approved the transfer.

Approximately one month after Oliva returned to Woodbine, a fellow trooper approached him and accused him of anonymously posting offensive messages on an unofficial State Police website called "Troop Rumblings." Oliva responded by denying responsibility for the postings. Appellees troopers Gary Austin and Horace McFarland subsequently questioned Oliva about these postings for over an hour in a closed door meeting. Thereafter, Appellee Ray Lupu, Oliva's supervisor, met with Oliva and told him that, as a result of the internet postings, station personnel would shun him, his locker "would be in the parking lot by now" if the Lords of Discipline acted as they had in the past, and Commander Miller was "pissed" at him and would seek his transfer. App. at 572. The reference to the Lords of Discipline was to a sub rosa organization within the State Police which, allegedly, at the time harassed and retaliated against troopers who failed to conform with what the troopers involved with the Lords of Discipline believed were the established practices and culture of the State Police.

On October 9, 2000, Oliva reported to work to find his locker vandalized and copies of an anonymous note placed in the locker and taped to a nearby toilet seat. The note read:

HEY 'THERE BIG FUCKIN DADDY' TAKE YOUR SALTY FUCKIN ATTITUDE BACK TO THE LOCAL DEPTS. WE'RE ALL WATCHING YOU OLIVA. FILL OUT A TRANSFER REQUEST, IT'S TIME YOU MOVED ON

App. at 625. The following day, Lupu issued Oliva a negative performance notice for failing to report properly at the Woodbine Station that he had attended a municipal court proceeding on his off-duty time.

Several days later, Oliva received another negative performance notice for "fail[ing] to get the appropriate rest before arriving for work." App. at 634. This notice was the result of an accusation by Appellee trooper James Harris that Oliva had been sleeping on the job during a midnight shift at the Woodbine Station, a charge that Oliva denied. Subsequently, Oliva received a third anonymous note, which read:

Boy ....... I [t]hink I'll come in and 'work' an overtime, and go to sleep in the back room cause I'm all caught up. Move on there tough guy, you still have Bridgeton, Port [Norris] and Woodstown.*fn5

App. at 626. The record does not disclose who was responsible for the two anonymous notes Oliva received during his second stint at the Woodbine Station. Shortly after receiving the last note, Oliva took ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.