2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-4-2002

Bell v. Ostrow

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-2278

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Recommended Citation

"Bell v. Ostrow" (2002). 2002 Decisions. Paper 322.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 No. 01-2278 

 ____________ 

 

 LAD J. BELL; 

 MICHAEL A. DEPOMPEO, 

 

 v. 

 

 PAUL OSTROW, individually and as 

 Councilman or Mayor of the Township 

 of Teaneck; WILLIAM NORTON, individually 

 and as Chief of the Teaneck Fire 

 Department; JOHN BAUER, individually and 

 as Deputy Chief of the Teaneck Fire Department; 

 JOSEPH PALAZZOLA, individually and as Deputy 

 Chief of the Teaneck Fire Department; 

 ROBERT O’NEILL, individually and as Captain 

 of the Teaneck Fire Department; GARY SAAGE, 

 individually and as Town Manager of the 

 Township of Teaneck; TOWNSHIP OF TEANECK, 

 Municipal Corporation 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civil Action No. 00-cv-05851) 

 District Judge: Honorable Dickinson R. Debevoise 

 

 

 Argued on February 28, 2002 

 Before: ROTH and FUENTES, Circuit Judges 

 KATZ*, District Judge 

 

 (Filed June 4, 2002) 

 

 * Honorable Marvin Katz, District Court Judge for the Eastern District of 

Pennsylvania, sitting by designation. James F. Keegan, Esquire (Argued) 

Sherri Davis Fowler, Esquire 

Bendit Weinstock, P.A. 

80 Main Street 

West Orange, NJ 07052 

 

 Attorneys for Appellants 

Gregory R. Begg, Esquire (Argued) 

David Lew, Esquire 

Aaron C. Schlesinger, Esquire 

Peckar & Abramson, P.C. 

70 Grand Avenue 

River Edge, NJ 07661 

 Attorneys for Appellees 

 _________________ 

 

 OPINION 
 _________________ 

 

ROTH, Circuit Judge: 

 Plaintiffs Lad J. Bell and Michael A. DePompeo appeal from the April 4, 2001, 

Order of the United States District Court for the District of New Jersey, dismissing their 

Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the 

reasons stated below, we will reverse the order and remand this case to the District Court 

for further proceedings. 

 The facts described herein are taken, as they must be taken, entirely from the 

Amended Complaint. For the purposes of reviewing the District Court’s dismissal, we 

must accept as true all facts alleged in the Amended Complaint and draw all reasonable 

inferences arising from those facts in plaintiffs’ favor. See Schrob v. Catterson, 948 F.2d 

1402, 1405 (3d Cir. 1991). We exercise plenary review over the Rule 12(b)(6) dismissal, 

see, e.g., Ditri v. Coldwell Banker Residential Affiliates, 954 F.2d 869, 871 (3d Cir. 

1992), and we must affirm "only if it appears certain that no relief could be granted to 

[Plaintiffs] under any set of facts which could be proven." Shubert v. Metrophone, Inc., 

898 F.2d 401, 403 (3d Cir. 1990). 

 Bell and DePompeo have been employed as firefighters by the Teaneck Fire 

Department (TFD) since 1987 and 1980, respectively. Plaintiffs allege that defendants, 

the Township of Teaneck and certain individual agents of Teaneck and TFD, retaliated 

against them for engaging in various Constitutionally-protected activities. Plaintiffs 

bring these claims under 42 U.S.C. 1983 and 1985, 18 U.S.C. 1962, the First, 

Fourth and Fourteenth Amendments to the United States Constitution, the Conscientious 

Employee Protection Act, N.J. Stat. 34:19-1 to -8 (2002), and the New Jersey 

common law theories of intentional and negligent infliction of emotional distress. 

 Both the protected activities and the alleged retaliation differ with respect to each 

of the plaintiffs. With respect to Bell, the Amended Complaint alleges that defendants 

retaliated in response to Bell engaging in the following four activities: (1) supporting 

fellow firefighter William F. Brennan in a 1993 bid for union secretary; (2) offering a 

deposition, an affidavit, and testimony between 1997 and 2000 in support of Brennan’s 

federal suit against the defendants; (3) opposing a decision to close fire stations and 

complaining of fire station safety hazards in statements to the media; and (4) complaining 

of safety hazards to Teaneck council members. Defendants allegedly retaliated against 

Bell between October 1995 and October 2000 by prohibiting him from attending a 

training class, assigning him less desirable work, requiring him to file a grievance to 

collect pay for time spent testifying in Brennan’s suit, ordering that phone calls be made 

to the fire station while Bell and Brennan slept there, disciplining Bell disproportionately 

for various infractions, and depriving Bell of overtime pay and sick leave. 

 DePompeo’s allegedly protected activities include his continued friendship and 

association with Brennan and Bell as well as his legal action against defendants, which 

followed his February 1996 report of a fire station asbestos hazard. DePompeo alleges 

that the defendants retaliated against him by denying him leave, depriving him of 

vacation days earned, giving him an unsatisfactory progress report "in bad faith and 

without any basis in fact" and refusing to promote him. 

 After plaintiffs filed their original complaint on November 29, 2000, defendants 

filed a motion to dismiss for failure to state a claim upon which relief could be granted. 

See Fed. R. Civ. P. 12(b)(6). In lieu of filing a responsive motion, plaintiffs amended 

their complaint to allege with more particularity the facts described above and to advance 

a separate claim under 18 U.S.C. 1962(c) (Civil RICO Claim). 

 On April 4, 2001, the District Court granted defendants’ motion and entered an 

order, dismissing with prejudice all of the federal claims listed in the Amended 

Complaint except the Civil RICO Claim. The District Court then declined to exercise 

supplemental jurisdiction over the remaining New Jersey law claims, pursuant to 28 

U.S.C. 1367(c). 

 In an opinion accompanying the order, the District Court analyzed plaintiffs’ First 

Amendment retaliation claim under Green v. Philadelphia Housing Auth., 105 F.3d 882 

(3d Cir. 1997). In Green, we held: 

 A public employee’s claim of retaliation for engaging in a protected activity 

 is analyzed under a three-step process. . . . A plaintiff must first demonstrate 

 the activity in question was protected. Second, the plaintiff must show the 
 protected activity was a substantial or motivating factor in the alleged 

 retaliatory action. . . . Finally, defendants may defeat plaintiff’s claim by 

 demonstrating "that the same action would have been taken even in the 

 absence of the protected conduct." 

 

105 F.3d at 885 (citations omitted). Applying Green, the District Court determined that 

Plaintiffs failed to satisfy the first two steps. We conclude that by doing so, it erred. 

 The District Court first held as a matter of law that the plaintiffs’ activities were 

not protected by the First Amendment because they did not relate to "any matter of 

political, social, or other concern to the community." Bell v. Ostrow, 00-5851 (D. N.J. 

2001), Appendix at 11 (citing Green, 105 F.3d at 886). In doing so, however, the 

District Court did not draw in the plaintiffs’ favor all reasonable inferences from the facts 

alleged in the Amended Complaint. Given the facts alleged, we find it reasonable to 

infer, for example, that public speech about safety or asbestos hazards is a matter of 

public concern. 

 Next, the District Court concluded that the plaintiffs had not sufficiently alleged 

that the protected activity was a "substantial or motivating factor" of the claimed 

retaliation. While proving this element at trial may be difficult - and, perhaps, impossible 

- for the plaintiffs, the plaintiffs’ pleadings are sufficient to survive defendants’ motion 

to dismiss. It is reasonable to infer from the relative timing of the protected activities 

and the alleged retaliation that the former did, indeed, motivate the latter. 

 Finally, we find that the District Court also erred by treating the two-year statute 

of limitations for Section 1983 claims as a bar to plaintiffs’ claims without addressing the 

"continued violation" doctrine. As we stated in Cowell v. Palmer Tp., 263 F.3d 286 (3d 

Cir. 2001), the two-year statute of limitations does not bar a Section 1983 claim based on 

more remote conduct if there has been a "continuing violation." 

 In order to benefit from the doctrine, a plaintiff must establish that the 

 defendant’s conduct is "more than the occurrence of isolated or sporadic acts." 

 . . . Regarding this inquiry, we have recognized that courts should consider at 

 least three factors: (1) subject matter--whether the violations constitute the 

 same type of discrimination, tending to connect them in a continuing 

 violation; (2) frequency--whether the acts are recurring or more in the nature 

 of isolated incidents; and (3) degree of permanence--whether the act had a 

 degree of permanence which should trigger the plaintiff’s awareness of and 

 duty to assert his/her rights and whether the consequences of the act would 

 continue even in the absence of a continuing intent to discriminate. 

 

263 F.3d at 292 (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d Cir. 

1995)). Although plaintiffs had raised this theory before the District Court, the District 

Court in its decision to dismiss the Amended Complaint did not address the possibility of 

a "continuing violation" exception to the Section 1983 statute of limitations. We will 

remand the case for such an inquiry. 

 For the above reasons, we will reverse the dismissal of the Amended complaint 

and remand this case to the District Court for proceedings consistent with our holding. 

 

TO THE CLERK: 

 Please file the foregoing Opinion. 

 By the Court, 

 /s/ Jane R. Roth 

 Circuit Judge