PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 15-1963

______________

FRATERNAL ORDER OF POLICE, LODGE 1; 

JOHN WILLIAMSON; ANTHONY GALIAZI; 

CHARLES J. HOLLAND, also known as CHAD,

 Appellants

v.

CITY OF CAMDEN; SCOTT THOMSON, CITY OF 

CAMDEN POLICE CHIEF; ORLANDO CUEVAS, CITY 

OF CAMDEN POLICE INSPECTOR; LIEUTENANT

JOSEPH WYSOCKI 

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 1-10-cv-01502)

District Judge: Hon. Noel L. Hillman 

______________

Argued January 12, 2016

____________

Before: McKEE,∗ Chief Judge, AMBRO and SCIRICA, 

Circuit Judges.

(Opinion Filed: November 17, 2016)

______________

 ∗ Judge Theodore McKee concluded his term as Chief of the 

United States Court of Appeals for the Third Circuit on September 

30, 2016. Judge Brooks Smith became Chief Judge on October 1, 

2016
2

Gregg L. Zeff, Esq. [ARGUED]

Zeff Law Firm

100 Century Parkway

Suite 305

Mount Laurel, NJ 08054

 Attorneys for Appellants

John C. Eastlack, Jr., Esq. [ARGUED]

Daniel E. Rybeck, Esq.

Weir & Partners

457 Haddonfield Road

Suite 420

Cherry Hill, NJ 08002

 Attorneys for Appellees

______________

OPINION OF THE COURT 

______________

McKEE, Chief Judge.

This case arises from a vigorous dispute between the 

Fraternal Order of Police, Lodge 1 as well as certain police 

officers (“Plaintiffs”) on one side, and the City of Camden, 

New Jersey and certain supervisory police personnel 

(“Defendants”) on the other. Plaintiffs claim that the City’s 

“directed patrols” policy constitutes an illegal quota system. 

Specifically, they allege that the policy violates New Jersey’s 

anti-quota law. They also accuse Defendants of illegal 

retaliation in violation of New Jersey’s Conscientious 

Employee Protection Act (“CEPA”), the First Amendment, 

and the Family and Medical Leave Act (“FMLA”). 

The district court granted summary judgment to 

Defendants on all of Plaintiffs’ claims. For the reasons set 

forth below, we will reverse in part, affirm in part, and 

remand for further proceedings. 

I. FACTS AND PROCEDURAL HISTORY
3

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. The City claims that the 

purpose was also “to ensure that the maximum amount of 

resources was allocated to a proactive crime prevention 

strategy and better balance [the Police Department] response 

to community-generated calls.”1

 The directed patrols 

program consisted of “a structured 15-20 minute deployment 

into a targeted area to accomplish a specific patrol or crime 

reduction function.”2

 According to the City, the deployment 

was to last no more than 15 to 20 minutes absent extenuating

circumstances. The policy also instructed officers to obtain 

personal information, such as the name and address of the 

individuals the officers interacted with, if the individuals 

agreed to provide it. During any encounter with residents, 

officers were also expected to “approach community 

members present and inquire about criminal activity or 

quality of life issues.”3

According to the City, directed patrols in Camden 

were not new. “[T]he difference in the new system was that 

directed patrols would be tracked and recorded. Under the 

new violence reduction initiative, directed [p]atrols were to be 

logged by the [City’s] Computer Aided Dispatch System.”4

In April 2009, Fraternal Order of Police, Lodge 1 filed 

a complaint against the City of Camden Police Department 

and the Attorney General of the State of New Jersey claiming 

Camden had imposed an unlawful quota policy. Officers on 

supplemental patrol were expected to conduct a minimum of 

twenty-seven directed patrols per shift and officers on regular 

patrol were expected to perform a minimum of eighteen. 

According to Plaintiffs, failure to comply with these 

 1 Defendants’ Br. at 1.

2 Id.

3 Id. at 2.

4 Id. at 1.
4

numerical requirements is cause for disciplinary action. 

Plaintiffs claim that this results in a quota system of policing 

in violation of N.J.S.A. 40A:14-181.2. 

The individual plaintiffs Officers Galiazzi, Holland, 

and Williamson further allege that Defendants violated CEPA 

by retaliating against them because they expressed their 

disagreement with the policy. Officers Galiazzi and Holland 

claim they were placed on a low-performer list for failure to 

comply with the policy. They also contend the retaliation 

included transfer from the elite unit, where they had been 

assigned, to regular patrol duty with a concomitant pay 

decrease. To support this assertion, they point out that 

another officer on the low performer list who did not object to 

the policy was not transferred. 

Officer Williamson, the President of Fraternal Order of 

Police, Lodge 1, claims Camden retaliated against him for 

leading a protest march to City Hall. Specifically, he asserts 

that the City retaliated by bringing disciplinary charges 

against him for purportedly accosting a nurse at a hospital and 

for failing to report that someone had a thumb drive with 

Camden Police Department information. 

Plaintiffs also allege other forms of retaliation that 

included revocation of vacation time, disciplinary limits on 

sick leave, and surveillance by Camden’s Internal Affairs 

unit. Officer Holland claims that the restrictions on his sick 

leave also violated his rights under the FMLA. Finally, 

Plaintiffs assert that Camden’s retaliatory conduct also ran 

afoul of the First Amendment because the plaintiff-officers’ 

objections to the policy constitute protected speech.

New Jersey’s anti-quota law only prohibits numerical 

requirements for arrests or citations.5

 Thus, Camden’s 

primary defense is that the patrols policy at issue here is not 

an illegal quota because it does not require a certain number 

of arrests or citations, only police-civilian interactions. In any 

event, Defendants argue that there was no causal connection 

between the plaintiff-officers’ objections and any adverse 

 5 N.J. Stat. Ann. § 40A:14-181.2 (West).
5

actions, and this precludes any violation of CEPA or 

Plaintiffs’ First Amendment rights. 

As we noted at the outset, the district court granted 

Defendants’ motion for summary judgment in its entirety and 

entered judgment against all plaintiffs on all of their claims. 

The court concluded that New Jersey’s anti-quota statute is

inapplicable to the patrols policy and thus cannot support 

Plaintiffs’ allegations of a quota.

6

 It dismissed Plaintiffs’

CEPA7 and First Amendment8 claims because it found that, 

even viewing the evidence in the light most favorable to 

Plaintiffs, they did not establish a causal link between their 

whistleblowing activities and the alleged adverse actions. 

Finally, the court found Officer Holland failed to establish a 

prima facie FMLA violation because he did not show that he 

was precluded from using sick leave or that he was otherwise 

prejudiced by Camden’s actions.

9 This appeal followed.

II. JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction over Plaintiffs’ 

federal claims pursuant to 28 U.S.C. § 1331. It had 

supplemental jurisdiction to hear their state law claims 

pursuant to 28 U.S.C. § 1367. The grant of summary 

judgment constitutes a final order. Thus, we have appellate 

jurisdiction under 28 U.S.C. § 1291.

We review grants of summary judgment de novo, 

applying the same standard as the district court.10

Accordingly, we view the evidence in the light most 

favorable to the nonmoving party. In doing so, we refrain 

from weighing the evidence and draw all reasonable 

inferences in the nonmovant’s favor.11 We will affirm the 

 6 Fraternal Order of Police, Lodge 1 v. City of Camden, No. 

CIV. 10-1502 NLH AMD, 2015 WL 1471800, at *4 (D.N.J. 

Mar. 31, 2015).

7 Id. at *7.

8 Id. at *8.

9 Id. at *9.

10 See Montone v. City of Jersey City, 709 F.3d 181, 189 (3d 

Cir. 2013).

11 See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d 
6

district court’s grant of summary judgment only if we 

conclude that there is no genuine dispute as to any material 

fact when the evidence is so viewed.12

III. DISCUSSION

As summarized at the outset, Plaintiffs claim 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) the FMLA. In addition, they argue that the district 

court erred when it ignored hearsay evidence and concluded 

that Defendants were entitled to judgment as a matter of law. 

We discuss each claim of error in turn. 

A. Hearsay

The district court was troubled that some of the 

evidence Plaintiffs planned to produce at trial was hearsay. 

That evidence consisted of statements by the individual 

plaintiffs about statements other officers purportedly made 

concerning the alleged retaliation and the nature of the 

patrols. This evidence is hearsay. However, the court erred 

in refusing to consider it at the summary judgment stage. Its 

explanation for concluding that it could not consider hearsay 

in ruling on a motion for summary judgment is limited to the 

following footnote: 

Galiazzi and Holland state in their 

depositions that they were told by other 

officers that they were transferred and 

investigated because of what they wrote 

on their counseling forms with regard to 

the quota system. The Court cannot 

consider this inadmissible hearsay, and 

no affidavits or testimony from these 

officers is provided as part of the 

record.13

 

Cir. 2004).

12 FED. R. CIV. P. 56(a).

13 Fraternal Order of Police, 2015 WL 1471800, at *5 n.9. 
7

We disagree. “[T]he 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.”14 

In ruling on a motion for summary judgment, the court need 

only determine if the nonmoving party can produce 

admissible evidence regarding a disputed issue of material 

fact at trial.15 The proponent need only “explain the 

admissible form that is anticipated.”16 Thus, in ruling on 

Defendants’ motion for summary judgment, the district court 

should have limited its inquiry to determining if the out-ofcourt statements Plaintiffs were relying on were admissible at 

trial, and they clearly were. Plaintiffs identified the out-ofcourt declarants—Sergeants Frett, Moffa, and Whitesell, and 

Lieutenants Cook and Strang—and noted their availability to 

testify. 

In arguing to the contrary, Defendants rely in part on 

Philbin v. Trans Union Corporation.

17 In Philbin we 

explained that “Philbin is unable to identify the person who 

relayed this information to him . . . . Thus the hearsay

statement by this unknown individual is not ‘capable of being 

admissible at trial,’ . . . and could not be considered on a 

motion for summary judgment.”18 Here, Plaintiffs identified 

the third-party declarants, and nothing suggests that those 

declarants would be unavailable to testify at trial. That is all 

 14 Stelwagon Mfg. Co. v. Tarmac Roofing Sys., 63 F.3d 1267, 

1275 n.17 (3d Cir. 1995) (emphasis added); see also Celotex 

Corp. v. Catrett, 477 U.S. 317, 324 (1986) (“We do not mean 

that the nonmoving party must produce evidence in a form 

that would be admissible at trial in order to avoid summary 

judgment.”); Shelton v. Univ. of Med. & Dentistry of N.J., 223 

F.3d 220, 223 n.2 (3d Cir. 2000) (“In this circuit, hearsay 

statements can be considered on a motion for summary 

judgment if they are capable of admission at trial.”).

15 FED. R. CIV. P. 56(c)(2).

16 FED. R. CIV. P. 56 advisory committee’s note to 2010 

amendment.

17 101 F.3d 957 (3d Cir. 1996). 

18 Id. at 961 n.1.
8

that was required to survive that aspect of Defendants’ motion 

for summary judgment.19

We do not, of course, intend this ruling to control 

whether these out-of-court statements will actually be 

admitted at trial. That question need not be answered now. 

Accordingly, we will reverse the district court’s exclusion of 

hearsay in determining if the record allowed Plaintiffs to 

survive a motion for summary judgment.

B. New Jersey Anti-Quota Law

Plaintiffs assert that Camden’s patrols policy violates 

New Jersey’s anti-quota statute. That statute, entitled 

“Quotas for arrests or citations prohibited; use of numbers in 

law enforcement officer evaluations,” provides in relevant 

part:

a. A State, county or municipal 

police department or force . . . 

shall not establish any quota for 

arrests or citations. The 

department or force may, 

however, collect, analyze and 

apply information concerning the 

number of arrests and citations in 

order to ensure that a particular 

officer or group of officers does 

not violate any applicable legal 

obligation. 

b. The department or force shall 

not use the number of arrests or 

 19 See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 

102 (3d Cir. 1999) (“We will assume that Blackburn’s 

testimony regarding what Zileski told him was effectively a 

proffer of the testimony that Zileski himself would give at 

trial, and we therefore treat this as evidence capable of being 

admitted at trial.”); J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 

909 F.2d 1524, 1542 (3d Cir. 1990) (“[T]here is no indication 

that Spagnola’s salesforce would be unavailable to testify at 

trial. [Thus t]he averments of Spagnola’s affidavit are capable 

of proof through admissible evidence.”).
9

citations issued by a law 

enforcement officer as the sole 

criterion for promotion, demotion, 

dismissal, or the earning of any 

benefit provided by the

department or force. Any such 

arrests or citations, and their 

ultimate dispositions, may be 

considered in evaluating the 

overall performance of a law 

enforcement officer.20

Plaintiffs claim that this statute applies to the directed 

patrols policy even though the statute’s text only addresses 

arrests and citations. Although the challenged patrols policy 

only requires civilian encounters, Plaintiffs claim that it is 

applied in a manner that also mandates citations. In arguing 

to the contrary, Camden claims that since the New Jersey law 

only applies to arrests and citations and the patrols policy has 

no such requirements, the policy is consistent with the New 

Jersey statute.

In granting summary judgment on this claim in favor 

of Camden, the district court correctly relied on the limited 

scope of the text of the statute—which does apply only to 

arrests and citations, and not to the civilian “encounters” that 

are at the center of this dispute. Accordingly, we will affirm 

the court’s grant of summary judgment in favor of Camden 

on Plaintiffs’ claims under the anti-quota law.

C. Conscientious Employee Protection Act

CEPA protects employees against retaliation by 

employers for whistleblowing activities. It provides in 

relevant part:

An employer shall not take any 

retaliatory action against an 

employee because the employee 

does any of the following: . . . 

Objects to, or refuses to 

 20 N.J. Stat. Ann. § 40A:14-181.2 (West) (emphases added).
10

participate in any activity, policy 

or practice which the employee 

reasonably believes: (1) is in 

violation of a law, or a rule or 

regulation.21

CEPA is remedial legislation and must therefore be construed 

liberally in employees’ favor.22 

New Jersey courts have created a four-pronged test for 

adjudicating CEPA claims that largely replicates the threepart burden-shifting test that is used to decide federal 

retaliation claims.23 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.

24 

The district court found Plaintiffs’ CEPA claim failed 

because it was “deficient on at least two of the required 

elements,” namely, the first and last prongs.25 We disagree. 

Plaintiffs correctly argue that the first prong only 

requires that they had a reasonable belief the policy was 

illegal.26 They need not prove an actual illegality. The court 

found the plaintiff-officers faltered here because, although 

they may have subjectively believed the policy was illegal, 

“that belie[f] was not objectively reasonable.”27 The court 

specified that “[a]ny officer who reads the clear and plain 

 21 N.J. Stat. Ann. § 34:19-3 (West).

22 See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 91 

(3d Cir. 1999) (“The New Jersey courts have repeatedly held 

that CEPA was enacted ‘to protect employees from retaliatory 

actions by employers.’”) (internal citation omitted).

23 See Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 

2005).

24 Id.

25 Fraternal Order of Police, 2015 WL 1471800, at *4.

26 See Blackburn, 179 F.3d at 94 n.4; Dzwonar v. McDevitt, 

828 A.2d 893, 901 (N.J. 2003). 

27 Fraternal Order of Police, 2015 WL 1471800, at *4.
11

language of the statute would immediately understand that it 

only applies to ‘arrests’ and ‘citations,’ . . . the directed patrol 

policy does not encompass arrests or citations.”28

However, CEPA is not intended “to make lawyers out 

of conscientious employees but rather to prevent retaliation 

against those employees who object to employer conduct that 

they reasonably believe to be unlawful.”29 Requiring a 

showing that the anti-quota law actually applies to the written 

policy imposes an obstacle that is as unfair as it is 

unreasonable. These plaintiffs should not have to satisfy a 

standard that is more appropriate for someone with a law 

degree. Moreover, under CEPA “a plaintiff [need not even]

allege facts that, if true, actually would violate that statute, 

rule, or public policy.”30 Thus, Plaintiffs clearly satisfied the 

first prong of their prima facie case for a CEPA violation. 

Summary judgment on the CEPA claim was therefore not 

appropriate.

Camden attempts to reduce Plaintiffs’ proof on the 

second prong of CEPA to frivolity by arguing that the 

plaintiff-officers’ protests amount to nothing more than the 

whining of a “squeaky wheel” and by suggesting that CEPA 

is “a ‘Whistleblower Act,’ not a ‘Chronic Complainer 

Act.’”31 This is offensive. Irrespective of the underlying 

validity of the plaintiff-officers’ claims, they certainly 

concern non-trivial matters. They allege workplace 

retaliation, as well as a law enforcement policy with possible 

constitutional implications for matters of increasingly urgent 

public interest.32 We did not need the most recent 

 28 Id.

29 See Blackburn, 179 F.3d at 94 n.4 (internal citation 

omitted).

30 Dzwonar, 828 A.2d at 901. 

31 Blackburn v. United Parcel Serv., Inc., 3 F. Supp. 2d 504, 

517 (D.N.J. 1998) aff’d, 179 F.3d 81 (3d Cir. 1999). 

32 In fact, Camden’s own case law citations highlight the 

seriousness of the plaintiff-officers’ allegations. For instance, 

Camden cites a case that explains that an employee could not 

reasonably believe extended lunch breaks or personal phone 

calls would fall under CEPA, and complaints about such 
12

controversies arising from attacks on police or police 

shootings of unarmed civilians to appreciate that the 

relationship between police officers and residents in the high 

crime areas that they patrol is of the utmost importance.33 It 

is indeed unfortunate that the City chooses to view police 

officers with these kinds of concerns as “chronic 

complainers” and “squeaky wheels.”

Plaintiffs also satisfied their burden under the third 

prong. CEPA defines retaliation as including “discharge, 

suspension or demotion of an employee, or other adverse 

employment action taken against an employee in the terms 

and conditions of employment.”34 The record suggests that 

the plaintiff-officers’ transfers from the elite unit to regular 

patrol came with a change in duties and a decrease in pay and 

status. Accordingly, at this stage, these transfers are 

“demotions.” At the very least, they affect “the terms and 

conditions of employment” as required under CEPA. Thus, 

they qualify as adverse employment actions under CEPA’s 

third prong. 

We do, however, conclude that not all of the disputed 

actions would constitute retaliation under CEPA. The district 

court was correct in finding that placement on an “abuse of 

sick time” list, the cancellation of a vacation, and a visit by an 

Internal Affairs officer do not rise to the level of adverse 

employment actions absent more than is alleged here.35 

 

matters are not a protected whistleblowing activity. Estate of 

Roach v. TRW, Inc., 754 A.2d 544, 552 (2000). The 

allegations here are far weightier, and thus fall more squarely 

within CEPA’s purview. 33 See Julie Turkewitz, Baton Rouge Grapples with Anxiety 

and Grief Amid Vigils for Officers, N.Y. TIMES (July 19, 

2016), http://www.nytimes.com/2016/07/20/us/baton-rougelouisiana-shooting.html; Kimberly Kindy et al., A Year of 

Reckoning: Police Fatally Shoot Nearly 1,000, WASH. POST

(Dec. 26, 2015), 

http://www.washingtonpost.com/sf/investigative/wp/2015/12/

26/2015/12/26/a-year-of-reckoning-police-fatally-shootnearly-1000/.

34 N.J. Stat. Ann. § 34:19-2(e) (West).

35 Fraternal Order of Police, 2015 WL 1471800, at *6.
13

CEPA does encompass a range of retaliatory actions. 

However, in order for actions to qualify under CEPA, they 

must have “impacted on the employee’s ‘compensation or 

rank’ or be ‘virtually equivalent to discharge.’”36 These 

additional actions fall short of that threshold. 

Likewise, Officer Williamson’s allegations do not 

qualify as adverse action under CEPA. He contends that 

Camden retaliated against him in four ways: (1) 

reprimanding him for an incident in which he allegedly 

accosted a nurse; (2) charging him with a disciplinary action 

for not reporting that an attorney had a thumb drive with 

information about the Camden Police Department; (3) 

investigating him as a result of an argument during a union 

meeting; and (4) investigating him for “procedural 

violations.” As the district court rightly noted, these actions 

did not affect Officer Williamson’s compensation or rank nor 

were they equivalent to discharge.37 Thus, only the plaintiffofficers’ claim of retaliatory transfers satisfies the third prong 

of CEPA.

Finally, CEPA’s fourth prong requires proof of a 

causal connection between the whistleblowing activity and 

the adverse employment action. The district court found that 

“[t]he missing fundamental element of plaintiffs’ NJ CEPA 

claims is the causal connection between their ‘whistleblowing’ and their adverse employment actions.”38 We 

disagree with several aspects of the district court’s analysis of 

this issue. 

First, the district court concluded that the real reason 

for the adverse actions was deficient performance, not the 

plaintiff-officers’ objections.39 We fail to see how that factual 

conclusion negates the existence of a genuine issue of 

material fact. Rather, whether the adverse actions resulted 

from deficient performance or objections to the disputed 

 36 Caver v. City of Trenton, 420 F.3d 243, 255 (3d Cir. 2005) 

(internal citation omitted).

37 Fraternal Order of Police, 2015 WL 1471800, at *7.

38 Id. at *4.

39 Id. at *5-6.
14

policy is precisely the type of factual dispute that is 

inappropriate for summary judgment.

Second, the district court afforded insufficient weight 

to the temporal proximity of the plaintiff-officers’ objections 

and the alleged retaliatory actions. Though we generally hold 

that closeness in time alone cannot establish causation,40 we 

have found that close temporal proximity41 or an added factor 

making the closeness unusually suggestive can suffice.

42 

Here, Plaintiffs submitted evidence that the court should have 

viewed in the light most favorable to them.43 That evidence 

disclosed that some of their objections were followed by 

adverse consequences within a matter of days. For instance, 

they asserted that “[d]espite Holland’s improved statistics, he 

was placed on the low performer list . . . and transferred to 

regular patrol . . . . only days after he opposed his written 

counseling.” Retaliatory motive is often revealed by such 

evidence.44 At the very least, it certainly raises a question of 

fact for a jury.

 40 See Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 

(3d Cir. 2000) (“[T]emporal proximity alone will be 

insufficient to establish the necessary causal connection when 

the temporal relationship is not ‘unusually suggestive.’”).

41 See Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) 

(“He demonstrated the causal link between the two by the 

circumstance that the discharge followed rapidly, only two 

days later, upon Avdel’s receipt of notice of Jalil’s EEOC 

claim.”).

42 See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d 

Cir. 1997) (“Even if timing alone could ever be sufficient to 

establish a causal link, we believe that the timing of the 

alleged retaliatory action must be ‘unusually suggestive’ of 

retaliatory motive before a causal link will be inferred.”).

43 See Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d 

Cir. 2004).

44 See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 

177 (3d Cir. 1997) (“Cases in which the required causal link 

has been at issue have often focused on the temporal 

proximity between the employee’s protected activity and the 

adverse employment action, because this is an obvious 

method by which a plaintiff can proffer circumstantial 
15

The district court expressly refused to consider the 

testimonial evidence the plaintiff-officers submitted tending 

to show a link between their objections and the alleged 

retaliation. The court believed that evidence could not be 

considered because it was hearsay.45 We have already 

explained why that was error. For these reasons, we will 

reverse the district court’s dismissal of the plaintiff-officers’ 

retaliatory transfer claims under CEPA. 

D. First Amendment

The plaintiff-officers claim that Defendants violated 

their First Amendment rights by retaliating against them for 

objecting to the patrols policy. 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.”46

The plaintiff-officers provide compelling arguments to 

support their claim that their speech involved a matter of 

public concern. They objected to the policy on police 

department counseling forms, writing, among other things, 

“QUOTA[]S ARE ILLEGAL!.”47 These writings were 

internal and arguably of a private nature, but that does not 

mean they do not pertain to a matter of public concern. 

Matters of public concern may overlap with personal 

 

evidence ‘sufficient to raise the inference that her protected 

activity was the likely reason for the adverse action.’”) 

(internal citation omitted).

45 Fraternal Order of Police, 2015 WL 1471800, at *5 n.9. 46 Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009) 

(quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d 

Cir. 2006)).

47 App. 519a. See Feldman v. Phila. Hous. Auth., 43 F.3d 

823, 829 (3d Cir. 1994) (“Disclosing corruption, fraud, and 

illegality in a government agency is a matter of significant 

public concern.”).
16

grievances.48 Indeed, many employees may not be motivated 

to speak out on matters of public concern until they feel 

personally aggrieved by their employer.49 When all else at 

work is going well, it is the rarest of employees who is so 

altruistic that she will risk her livelihood to object to a matter 

of public concern. The law does not, and should not, ignore 

legitimate claims of retaliation merely because the employee 

is less than pleased in the workplace.50 

In addition, as the Supreme Court stressed in 

Pickering, “free and open debate is vital” to matters of 

legitimate public concern.51 The disputed policy here directly 

affects how police officers interact with the public, especially 

with residents of crime infested communities. That is not 

only a matter of public interest, it has become a matter of the 

utmost importance. Therefore, restriction of the plaintiffofficers’ right to voice their opinions cannot be taken 

lightly—“freedom of speech is not traded for an officer’s 

badge.”52

The district court reasoned that, “even accepting that 

plaintiffs’ opposition to the directed patrol policy was a 

 48 See Rankin v. McPherson, 483 U.S. 378, 387 n.11 (1987) 

(“The private nature of the statement does not . . . vitiate the 

status of the statement as addressing a matter of public 

concern.”); Garcetti v. Ceballos, 547 U.S. 410, 420 (2006) 

(“That Ceballos expressed his views inside his office, rather 

than publicly, is not dispositive. Employees in some cases 

may receive First Amendment protection for expressions 

made at work.”).

49 See Brennan v. Norton, 350 F.3d 399, 413 (3d Cir. 2003) 

(“Common sense suggests that public employees, no less than 

other employees, will be more likely to speak out when they 

are disgruntled or personally dissatisfied with some aspect of 

their employment or employer.”).

50 See id. at 412 (“This does not, however, suggest that speech 

which is motivated by private concern can never qualify as 

protected speech. It clearly can if it addresses a matter that 

concerns the public as well as the speaker.”).

51 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will 

Cty., Ill., 391 U.S. 563, 571-72 (1968).

52 Biggs v. Vill. of Dupo, 892 F.2d 1298, 1303 (7th Cir. 1990).
17

matter of public concern, plaintiffs cannot meet the other two 

elements of their First Amendment violation claims.”53 The 

court concluded that their First Amendment claims failed for 

lack of causation for the same reasons as their CEPA 

claims.54 We have already explained why the court erred in 

dismissing the CEPA claims. Nevertheless, we agree with the 

district court that the plaintiff-officers’ First Amendment 

claims cannot proceed.

The Supreme Court has explained that “when public 

employees make statements pursuant to their official duties, 

the employees are not speaking as citizens for First 

Amendment purposes, and the Constitution does not insulate 

their communications from employer discipline.”55 Here, the 

plaintiff-officers were not speaking as citizens when they 

wrote on the counseling forms. Citizens do not complete 

internal police counseling forms. Rather, completing 

counseling forms as part of the police disciplinary process 

falls under officers’ official duties. Therefore, the plaintiffofficers’ speech here “owe[d] its existence to [their] public 

employee[] professional responsibilities.”56 

Because the plaintiff-officers were not speaking as 

citizens, if their supervisors thought the writings were 

“inflammatory or misguided, they had the authority to take 

proper corrective action.”57 Though the First Amendment 

provides robust protection to statements pertaining to matters 

 53 Fraternal Order of Police, 2015 WL 1471800, at *8.

54 Id. (“For the same reasons explained above with regard to 

their NJ CEPA claims, plaintiffs have not provided sufficient 

evidence to go to a jury that their speech was a substantial or 

motivating factor in the alleged retaliatory actions, or that the 

Camden Police Department would not have taken the same 

action even if the speech had not occurred. Consequently, 

defendants are entitled to summary judgment on plaintiffs’ 

First Amendment violation claims.”).

55 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006) (emphasis 

added).

56 Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009) 

(citation omitted).

57 Garcetti, 547 U.S. at 423.
18

of public concern, it does not empower public employees to 

“constitutionalize the employee grievance”58 when they are 

acting in their official capacities. Accordingly, we will affirm 

the court’s dismissal of the plaintiff-officers’ First 

Amendment claims.59 

E. Family and Medical Leave Act

The FMLA affords eligible employees “a total of 12 

workweeks of leave during any 12-month period”60 in order 

to tend to “a serious health condition that makes the employee 

unable to perform the functions of the position.”61 In 

addition, employees are entitled to FMLA leave to care for a 

family member with a serious health condition.62 It is 

“unlawful for any employer to interfere with, restrain, or deny 

the exercise of or the attempt to exercise, any right provided” 

in the FMLA.63 A claim that these rights have been breached 

is referred to as “interference.”64

Officer Holland alleges that he was approved for 

FMLA leave to care for his seriously ill mother in May 2009. 

 58 Connick v. Myers, 461 U.S. 138, 154 (1983).

59 We will also affirm the district court’s dismissal of the 

plaintiff-officers’ New Jersey Constitution First Amendment 

claim, which the court premised on identical grounds. 

Fraternal Order of Police, 2015 WL 1471800, at *8 n.12. 

Because the district court also based its dismissal of the 

plaintiff-officers’ § 1983 claim on its rejection of their First 

Amendment claim, we will affirm the district court’s § 1983 

holding as well. Id. at *8 n.13 (“Because plaintiffs cannot 

sustain their First Amendment claims, their claims against the 

City of Camden also fail.”).

60 29 U.S.C. § 2612(a)(1).

61 29 U.S.C. § 2612(a)(1)(D).

62 29 U.S.C. § 2612(a)(1)(C).

63 29 U.S.C. § 2615(a)(1).

64 Two types of claims can arise under the FMLA, retaliation 

(29 U.S.C. § 2615(a)(2)) and interference (29 U.S.C. §

2615(a)(1)). See Lichtenstein v. Univ. of Pittsburgh Med. 

Ctr., 691 F.3d 294, 301 (3d Cir. 2012). Officer Holland’s 

claim sounds in interference.
19

However, on May 27 he was orally warned that he was using 

too much leave. Then, on June 17 he received a letter from a 

Lieutenant stating he was being placed in the “Chronic Sick 

Category.” When he informed the Lieutenant of his approved 

FMLA leave, the Lieutenant said the Inspector did not care if

it was approved and Officer Holland would continue to be 

placed in the category and would eventually be disciplined. 

Officer Holland also asserts that Camden staff visited him at 

home while he was on leave. 

Officer Holland claims these actions interfere with 

protected FMLA leave.65 He argues that a DOL regulation

provides an expanded definition of FMLA interference as 

including not only denying leave, but also deterring an 

employee from using it. This regulation provides that

“[i]nterfering with the exercise of an employee’s rights would 

include, for example, not only refusing to authorize FMLA 

leave, but discouraging an employee from using such 

leave.”66 Camden granted Officer Holland’s request for 

FMLA leave to care for his mother. However, Officer 

Holland claims that, pursuant to this regulation, a reasonable 

trier of fact could find that Camden’s placing him on a 

chronic sick list and threatening to discipline him chilled the

assertion of his FMLA rights.

Camden contends that this “interference” was in part 

an internal miscommunication. According to Camden, 

Officer Holland was questioned about his use of leave 

because one branch of the department was unaware this leave 

had been approved under the FMLA. Camden further asserts 

that none of its actions were “sufficient to deter a person of 

ordinary firmness from exercising [their] right[s].”

Camden officials only visited Officer Holland once 

while he was on leave, and we agree that this was minimally 

intrusive. Without more, we agree that Camden’s conduct is 

 65 Officer Holland also advances an FMLA claim pursuant to 

New Jersey’s FMLA, N.J. Stat. Ann. § 34:11B-9 (West). 

Analysis of Officer Holland’s claim is the same under the 

federal and state FMLAs. Accordingly, our assessment under 

the federal FMLA covers both claims.

66 29 C.F.R. § 825.220(b) (emphasis added).
20

not actionable under the FMLA. Although we are 

sympathetic to Officer Holland’s family situation, “there is no 

right in the FMLA to be ‘left alone.’”67 Camden’s actions 

may have been insensitive, but they were not beyond the 

limitations the FMLA places on employers attempting to 

manage their workplaces.68

Officer Holland’s claim is also doomed by an 

insufficient showing of injury. The FMLA “provides no 

relief unless the employee has been prejudiced by the 

violation.”69 The only case Officer Holland cites to the 

contrary is Shtab v. Greate Bay Hotel.

70 There, the district 

court found a jury could conclude that denial of immediate 

FMLA leave for an employee who had just returned to work 

constituted interference.71 Shtab does not support Officer 

Holland’s claim that reprimands such as those he alleges can, 

on their own, support relief under the FMLA. Rather, they 

must occur in tandem with actual harm.72 Officer Holland 

does not allege he was actually denied FMLA leave. In fact, 

he concedes that he was able to take time off to care for his 

mother. Accordingly, the court was correct in granting 

summary judgment against Officer Holland.

F. Qualified Immunity

 67 Callison v. City of Phila., 430 F.3d 117, 121 

(3d Cir. 2005).

68 Id. at 120.

69 Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 

(2002).

70 173 F. Supp. 2d 255 (D.N.J. 2001). 

71 Id. at 258-59, 267-68.

72 See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 

135, 143 (3d Cir. 2004) (finding that an employee would only 

be able to prove FMLA interference if he established that the 

employer’s actions rendered “him unable to exercise that 

right in a meaningful way, thereby causing injury”) (emphasis 

added).
21

In addition to suing the City of Camden, Plaintiffs also 

sued several officers in their individual capacities.73 Those 

officers objected to the suits on the ground that they are

protected by qualified immunity. The doctrine of qualified 

immunity “shields government officials from civil damages 

liability unless the official violated a statutory or 

constitutional right that was clearly established at the time of 

the challenged conduct.”74 In assessing qualified immunity

claims, we conduct a two-part inquiry. We must first 

determine whether the facts demonstrate the violation of a 

right. If they do, we must then decide if the right at issue was 

clearly established at the time of the alleged misconduct.75 

According to Defendants, Plaintiffs’ claim fails the first part 

of the test because, as the rest of the case makes clear, no 

rights were violated. 

The district court agreed that the doctrine of qualified 

immunity shields these individual officers from suit. It 

explained: “Because the Court finds that plaintiffs cannot 

support their claims that defendants violated their 

constitutional rights, the qualified immunity analysis ends 

there.”76 

We agree with the district court’s conclusion that 

qualified immunity depends, in part, on whether a legal 

violation occurred. Since Plaintiffs have not shown a 

violation of federal law, we need not reach the issue of 

qualified immunity. 

IV. CONCLUSION

For the foregoing reasons, we will reverse the district 

court’s order granting summary judgment to Defendants on 

Plaintiffs’ CEPA claims. We will remand for proceedings 

consistent with this opinion. We will affirm the district 

 73 Police Chief Scott Thomson, Inspector Orlando Cuevas, 

and Lieutenant Joseph Wysocki.

74 Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012).

75 See Pearson v. Callahan, 555 U.S. 223, 232 (2009).

76 Fraternal Order of Police, 2015 WL 1471800, at *7 n.11.
22

court’s dismissal of Plaintiffs’ New Jersey anti-quota law, 

First Amendment claims, and Officer Holland’s FMLA claim.