SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1683-18T4

OSBADO HERNANDEZ,

Plaintiff-Appellant,

v.

HUDSON COUNTY, THE HUDSON

COUNTY SHERIFF'S OFFICE, and

FRANK X. SCHILLARI, individually

and in his official capacity as Sheriff of

the Hudson County Sheriff's Office,

Defendants-Respondents.

_______________________________

Argued December 11, 2019 – Decided July 15, 2020

Before Judges Koblitz, Whipple and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law 

Division, Hudson County, Docket No. L-3623-16.

Matthew R. Curran argued the cause for appellant 

(Sciarra & Catrambone, attorneys; Matthew R. Curran 

and Charles Joseph Sciarra, of counsel and on the 

briefs).

Qing Hua Guo argued the cause for respondents County 

of Hudson, the Hudson County Sheriff's Office and 

NOT FOR PUBLICATION WITHOUT THE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.
2

A-1683-18T4

Frank X. Schillari in his official capacity only (Chasan 

Lamparello Mallon & Cappuzzo, PC, attorneys; Cindy 

N. Vogelman, of counsel and on the brief; Qing Hua 

Guo, on the brief).

Kristen Jones argued the cause for respondent Frank X. 

Schillari (Piro Zinna Cifelli Paris & Genitempo, LLC, 

attorneys; Daniel Robert Bevere, on the brief).

PER CURIAM

Plaintiff appeals from the November 29, 2018 Law Division order 

granting summary judgment dismissal of his retaliation complaint against his 

employers, the County of Hudson, the Hudson County Sheriff's Office (HCSO), 

and Sheriff Frank X. Schillari in his official and individual capacities, 

collectively defendants. We affirm. 

On September 7, 2016, plaintiff, then a fifteen-year veteran Hudson 

County Sheriff's Officer and State Delegate of the PBA Local 334, filed a 

complaint alleging defendants violated the New Jersey Civil Rights Act 

(NJCRA), N.J.S.A. 10:6-1 to -2, by retaliating against him for engaging in 

protected union activities. The complaint alleged that plaintiff "suffered 

retaliatory adverse actions," including (1) a May 27, 2015 Preliminary Notice of 

Disciplinary Action (PNDA) and ensuing forty-five day suspension stemming 
3

A-1683-18T4

from his participation as a Weingarten1representative in a September 9, 2014 

Internal Affairs (IA) interview of his co-worker and then girlfriend, Detective 

Vivian Rosado,2 his subsequent failure to maintain possession of his firearm 

while on duty, and his failure to store his firearm while off-duty as directed 

outside the residence he occasionally shared with Rosado pending the outcome 

of the criminal complaint filed against her by her estranged husband and fellow 

sheriff's officer, Matthew Fedrow; (2) the January 22, 2015 Sheriff's order 

requiring plaintiff to store his firearm while off-duty in Jersey City, resulting in 

a 114.4 mile daily commute; and (3) the February 2015 temporary reassignment 

of plaintiff from his position as a drill and fitness instructor at the Essex County 

Police Academy (Academy) to the Detective Bureau at Hudson Plaza.

 

1

 NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256-57 (1975) (holding that under 

the National Labor Relations Act of 1935, 29 U.S.C. § 151-169, a union member 

is entitled to representation at an interview by management, where the employee 

reasonably believes that it will lead to disciplinary action). N.J.S.A. 34:13A5.4(a)(1) has been interpreted to provide public employees the same right, 

which, if violated, will constitute an unfair labor practice. Hernandez v. 

Overlook Hosp., 149 N.J. 68, 75 (1997).

2

 At the time, Fedrow was Vivian's last name. Following her divorce, she 

resumed the use of her maiden name, Rosado. Since filing the complaint, Vivian 

and plaintiff married and Vivian assumed plaintiff's surname. To avoid 

confusion, we refer to Vivian as Rosado throughout this opinion and intend no 

disrespect.
4

A-1683-18T4

We derive the following facts from evidence submitted by the parties in 

support of, and in opposition to, the summary judgment motion, viewed in the 

light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213 

N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 

(1995)). On September 9, 2014, Rosado was directed to respond to the IA Unit 

to be interviewed and disarmed in accordance with the Attorney General 

Guidelines related to the filing of a criminal complaint against an officer. The 

Guidelines required the confiscation of Rosado's firearms pending the resolution 

of the criminal charge filed against her by Fedrow. Upon request, Rosado was 

permitted to bring plaintiff as her Weingarten representative. Although Captain 

Liane Markowitz and Sergeant Richard Garcia, the IA officers conducting the 

investigation, were aware of the romantic relationship between Rosado and 

plaintiff, they were unaware that the two were occasionally cohabitating, and 

plaintiff never indicated that they were. Under the circumstances, any 

cohabitation by plaintiff and Rosado would impact the storage of plaintiff's 

firearm as Rosado was not permitted to stay overnight in a residence where a 

firearm was located. 

Garcia and Markowitz claimed that during the interview, plaintiff was 

"irate," "disruptive," and "unprofessional," repeatedly "interjecting" himself 
5

A-1683-18T4

into the process, and attempting to record the interview on his own device

instead of relying exclusively on the official recording. Nonetheless, the 

interview was not discontinued as permitted under the Attorney General 

Guidelines. Ultimately, upon learning that Rosado kept her duty weapon at her 

residence in Jersey City, all four officers proceeded to her residence to retrieve 

the weapon. Rosado lived next door to her mother, who was present when the 

officers arrived. While Rosado retrieved her weapon, plaintiff complained in 

the presence of Rosado's mother that it was unfair that Rosado had to forfeit her 

weapon while Fedrow, against whom Rosado had filed an earlier harassment 

complaint,

3 did not. When Rosado's mother accompanied the officers back to 

the IA Unit, plaintiff continued to disparage the agency in her presence. 

Subsequently, on September 25, 2014, plaintiff submitted a memorandum 

to Markowitz notifying IA that as of September 25, 2014, he would no longer 

store his firearm at his residence. Instead, plaintiff requested permission to store

his firearm overnight at the Academy, where he was temporarily assigned as an

instructor. Sheriff Schillari denied the request, explaining that the HCSO had 

 

3

 Rosado had also sought a temporary restraining order against Fedrow, but the 

application was denied. Although Fedrow was ultimately disarmed as a result 

of Rosado's harassment complaint, the disarming did not occur until later. 
6

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no jurisdiction or control over the Academy and was therefore unable to monitor 

the storage of the firearm.

Initially, on September 25, 2014, IA officers verbally directed plaintiff to 

secure his firearm at Hudson Plaza, a county building that housed several 

offices, including the Patrol Division of the HCSO. However, upon realizing

that Fedrow was the night shift supervisor there, which could lead to a 

confrontation between the two, IA officers promptly countermanded the order 

and directed plaintiff to store his firearm at the HCSO Court Bureau located in 

the Hudson County Courthouse. The Court Bureau had sign-in/sign-out 

procedures, gun lockers, and a desk supervisor under the direct supervision of 

the HCSO's chain of command. 

The verbal order was later memorialized in a written communication to 

plaintiff from Garcia dated December 19, 2014, as well as a written 

communication to Court Bureau personnel from Markowitz dated January 5, 

2015. Based on the order, plaintiff was expected to deposit his firearm in the 

designated locker in the Court Bureau at the end of each shift and retrieve it in 

the morning before traveling to his post at the Academy. However, in a 

December 19, 2014 report to Garcia, plaintiff confirmed that he had placed his 

firearm in the locker at the Court Bureau on September 26, 2014, after being 
7

A-1683-18T4

verbally advised to do so, and did not retrieve it until December 19, 2014. As a 

result, plaintiff reported for duty during this time period without his firearm, 

contrary to the HCSO policy that all officers be armed while on duty.4 

On January 22, 2015, plaintiff was notified in writing by Garcia that, 

pursuant to the Sheriff's order, he was required to maintain his firearm at all 

times while on duty, regardless of his assignment. On January 23, 2015, plaintiff 

was notified in writing by Markowitz that he was the subject of an IA 

investigation for "failure . . . to maintain [his] firearm while on[-]duty . . . from 

[September 21, 2014] to present." As a result, subsequently, plaintiff himself 

underwent an IA interview, accompanied by his Weingarten representative. 

While the IA investigation was pending, in February 2015, plaintiff was 

temporarily reassigned from the Academy to the Detective Bureau at Hudson 

Plaza. Thereafter, on May 27, 2015, plaintiff was served with a PNDA, charging 

him with 1) conduct unbecoming a public employee; 2) insubordination; and 3) 

other sufficient cause. 

The PNDA specified that while plaintiff served as Rosado's Weingarten

representative on September 9, 2014, he "acted in a disruptive manner when he 

 

4

 The HCSO Uniform Firearms Policy (Hudson County Firearms Policy) 

provides that, "all sworn members shall be armed while on[-]duty unless 

otherwise authorized by the Sheriff or Chief." 
8

A-1683-18T4

continually interrupted members of the [IA] Unit while an official inquiry was 

being conducted." Further, the PNDA alleged plaintiff "failed to secure his 

weapon as directed" to avoid Rosado's "access to firearms" while a criminal 

complaint filed against her by her estranged husband was pending, and "failed 

to maintain possession of his firearm while he was on[-]duty" from "December 

21, 2014 through January 23, 2015." The PNDA indicated that disciplinary 

action may range from thirty days' suspension to removal.

A disciplinary hearing was conducted on July 1, 2015, where plaintiff was 

represented by counsel. In addition to Garcia's testimony, numerous exhibits 

were presented, including the audio recording of the September 9, 2014 IA 

interview, witness statements, and the IA investigation report. Plaintiff 

conceded that he had not carried his firearm while he was on duty during the

period in question, but contended he was never directed "to pick up [his] weapon 

to go to the [A]cademy every day." He stated that 

in [his] current assignment as a [d]rill and fitness 

instructor . . . [his] uniform of the day is [sweatpants]

and a [sweatshirt]. It would be dangerous to carry [his]

weapon with that attire due to the performance of [his]

duty. All of the instructors in the academy that are 

[full-time] have the same attire as [he does] with no 

weapon on them.
9

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On September 17, 2015, the hearing officer (HO) dismissed the charge of 

conduct unbecoming an officer, but upheld the insubordination charge. In a 

written opinion, the HO noted that plaintiff "should have known better," and 

"made an error in judgment in deciding to officially represent his union member 

while he was in a relationship with her." However, the HO found that, under 

the circumstances, the unbecoming conduct charge was inappropriate. As to the 

insubordination charge, while the HO accepted plaintiff's statement that he 

"believed it was dangerous for him to carry his weapon because of the type of 

uniform employed while he was an instructor[,]" the HO credited Garcia's 

testimony and rejected plaintiff's explanation "that he did not clearly understand 

his instructions." Instead, the HO found that plaintiff "intentionally did not 

abide by the orders that were given to him as concerns his weapon . . . from 

when he made his initial request [to store his weapon at the Academy] until an[d] 

including January 23[], 2015."

After considering plaintiff's disciplinary record, consisting of a twentyday suspension in 2013 for "[u]nbecoming [c]onduct, [n]eglect of [d]uty, [and] 

[i]nsubordination," the HO recommended a forty-five-day suspension, without 

pay. The Sheriff signed a Final Notice of Disciplinary Action (FNDA) on 

October 15, 2015, memorializing his approval of the disciplinary action. 
10 A-1683-18T4

Plaintiff served his suspension over nonconsecutive days in October, November, 

and December of 2015, and January and February of 2016.

Following the completion of discovery, defendants moved for summary 

judgment over plaintiff's objection. Defendants asserted that contrary to 

plaintiff's allegations, while the chronological genesis of the PNDA, the order 

requiring plaintiff to store his firearm while off-duty at the Court Bureau, and 

his temporary reassignment may have begun with the September 9, 2014 IA

interview, the actions were based on entirely separate conduct and were not 

retaliation for plaintiff engaging in protected union activities. 

Following two days of oral argument, the judge entered orders granting 

defendants' motion and dismissing the complaint with prejudice. In a November 

29, 2018 written opinion accompanying the orders, the judge posited that "[t]he 

real issue . . . [was] whether the acts of the defendants could reasonably qualify 

as 'retaliation' under the summary judgment standards." After applying the 

governing legal principles, the judge concluded that they did not. 

The judge explained:

The first count of the PNDA . . . goes beyond 

merely complaining about plaintiff's interruptions 

during the interview with . . . Rosado. It goes into facts 

(apparently undisputed as conceded at oral argument) 

about the scene plaintiff made with . . . Rosado’s 

mother consisting of very disparaging remarks about 
11 A-1683-18T4

the [IA] unit, including the use of vulgarity. Not just 

equally important but more important it complains 

about plaintiff's lack of forthrightness in not 

acknowledging [on that date] that not only was he 

dating . . . Rosado but that cohabitation (meaning she 

would have access to his gun) was taking place. That 

. . . plaintiff thought better and a few weeks later 

acknowledged the cohabitation did not cure his lack of 

candor on September 9, 2014. Based on these 

[undisputed] facts no reasonable juror could conclude 

that this action was based (wholly or even partially) on 

plaintiff's legitimate role as a [Weingarten] 

representative.

The second count of the PNDA deals with 

plaintiff's alleged failure to store his gun at the [C]ourt 

[B]ureau and pick it up each day and return it at the end 

of each day before going home. The PNDA alleges that 

on September 25, 2014 (when it first became known 

that plaintiff was cohabitating with . . . Rosado) 

plaintiff requested to be allowed to leave his gun 

overnight at the . . . Academy and this request was 

specifically denied, with plaintiff being told to bring his 

gun to work each day and store it at night at the 

[HCSO].

. . . [P]laintiff denies being given these specific 

verbal instructions to pick up and retrieve his gun each 

day. The court must accept . . . plaintiff's denial as far 

as this motion is concerned. The PNDA, however, goes 

on to claim that these specific instructions were 

contained in the December 19, 2014 written memo from 

. . . Garcia to . . . plaintiff. That memo did indeed refer 

to both "securing [his] firearm" and "picking up [his]

firearm[.]" The PNDA specifically claims that 

plaintiff's failure from December 19, 2014, (when he 

received the written memo) going forward to January 

23, 2015, was insubordination.
12 A-1683-18T4

After detailing defendants' arguments, the judge continued:

For purposes of summary judgment the court will 

disregard [defendants'] arguments that plaintiff did not 

misunderstand anything and will assume that plaintiff 

did misunderstand the written memo of December 19, 

2014, and did not receive the verbal instructions on 

September 25, 2014. This[,] however, does not require 

the court to find a reasonable juror could infer that the 

written memo of December 19, 2014, was intentionally 

ambiguous and was therefore[] a "setup" to confuse . . . 

plaintiff and thus justify the PNDA as counsel alleges. 

This is simply too farfetched. Nobody could 

reasonably infer that the written memo and the PNDA 

(based on the written memo being ignored) was a 

calculated act of retaliation for plaintiff’s mere role on 

September 9, 2014, as a [Weingarten] representative.

Turning to the order requiring plaintiff to store his firearm while off-duty 

at the Court Bureau instead of the Academy, the judge expounded:

Related to this discussion is plaintiff's contention that 

the requirement that plaintiff store his gun at the 

sheriff's office, as opposed to letting him store it at [the 

Academy], was an act of retaliation. Since it is the 

officer's department that is responsible for securing the 

weapon[,] there is simply nothing untoward in the 

Hudson County Sheriff requiring that the gun be 

secured at the [HCSO] and logged in and logged out at 

that facility, where the logging can be monitored, as 

indeed it was. The fact that p1aintiff was trusted to log 

in and log out as opposed to having another sheriff's 

officer standing directly behind him each time to ensure 

it, does not mean that the obligation to log his gun was 

"pretextual" as plaintiff claims and thus an act of 

retaliation. That also, is simply farfetched.
13 A-1683-18T4

Regarding his temporary reassignment from the Academy, the judge 

stated:

As to . . . plaintiff's temporary reassignment in 

February 2015 away from the . . . Academy[,] the only 

evidence properly in the record is the [S]heriff's 

assertion that it was requested by the [D]irector of the 

[A]cademy. This action was also recommended by . . . 

Garcia of [IA]. At his deposition[,] the [S]heriff was 

originally unsure as to why . . . plaintiff was 

temporarily removed. At oral argument[,] plaintiff's 

counsel indicated he had a tape of a phone conversation 

in which the [A]cademy [D]irector made a statement 

indicating a willingness to have . . . plaintiff return. 

This statement was not under oath, the [D]irector was 

not deposed and even the statement did not address 

whether or not the [D]irector requested the transfer.

The judge concluded:

When it comes to [Weingarten] representation, 

which is what plaintiff asserts . . . defendants were 

retaliating against, there is simply nothing in this record 

to show [animus]. Not only did the [S]heriff's [O]ffice 

not hinder it, on the only two occasions involved[,] it 

seemed to go out of its way to facilitate it. On 

September 9, 2014, the [IA] officers were aware of a 

conflict of interest due to the dating relationship (but 

not the cohabitation at that point). However[,] since . . . 

Rosado had requested . . . plaintiff and the goal was 

simply to retrieve the weapon[,] they overlooked it. 

Had there been any [animus] this would have . . . 

presented an excellent opportunity to bar . . . plaintiff 

and insist on another representative. On [January 23, 

2015], when plaintiff acknowledged the cohabitation 

and was now himself the subject of the [IA] interview, 
14 A-1683-18T4

the [S]heriff's [O]ffice notified him that his requested 

representative was literally ineligible and 

recommended an alternative whom the plaintiff readily 

accepted.

While a reasonable juror could discern [animus] 

toward . . . plaintiff by the [IA] officers and possibly 

even the [S]heriff, it could only have resulted from the 

scene . . . plaintiff made on the street embarrassing [IA] 

and the [S]heriff's [O]ffice, his failure to initially 

acknowledge his cohabitation with . . . Rosado and the 

"misunderstanding" regarding the securing of the gun. 

If they felt that between September 9, 2014, and 

September 25, 2014, when . . . plaintiff did bring his 

gun home[,] that . . . Rosado had access to it and . . . 

plaintiff knew this was wrong, they had a right to be 

peeved. If, in their eyes plaintiff was still causing 

trouble by not following their instructions in securing 

the gun, they also had a right to some [animus]. But 

linking that [animus] to plaintiff's legitimate role as a 

[Weingarten] representative is simply not 

"reasonable[.]"

The judge also concluded: 

To the degree that plaintiff alleges "disparate 

treatment[,]" the examples are not similar to the present 

matter in terms of their background and are not really 

all that disparate in nature. To suggest that any minor 

instances of difference (such as another officer securing 

his firearm without having to log in and out) is 

sufficient proof of retaliation for plaintiff's legitimate 

role as a [Weingarten] representative is indeed too far 

of a stretch.

Finally, addressing the Sheriff's qualified immunity, the judge explained:
15 A-1683-18T4

While the [S]heriff individually would be entitled 

to qualified immunity since what he did in relying on 

the advice and information presented by his [IA] 

officers made his conduct regarding the PNDA[] 

"objectively reasonable[,]" there is no reason to discuss 

that further or Monell[5]liability, as none of the sheriff's 

officers could "reasonably" be found to have acted in 

violation of the [NJCRA] as a matter of law. 

On appeal, plaintiff argues "the evidence in the record is sufficient to 

defeat summary judgment due to the inferences of animus" that may be drawn

and the "evidence of pretext" that "abounds." Essentially, plaintiff asserts the 

judge erred in granting summary judgment to defendants because there were 

genuine issues of material fact. We disagree. 

We review a grant of summary judgment applying the same standard used 

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 

(2016). That standard is well-settled.

[I]f the evidence of record—the pleadings, depositions, 

answers to interrogatories, and affidavits—"together 

with all legitimate inferences therefrom favoring the 

non-moving party, would require submission of the 

issue to the trier of fact," then the trial court "must deny 

the motion." On the other hand, when no genuine issue 

of material fact is at issue and the moving party is 

entitled to a judgment as a matter of law, summary 

judgment must be granted. 

[Ibid. (quoting R. 4:46-2(c)); see Brill, 142 N.J. at 540.]

 

5

 Monell v. New York City Dept. of Social Servs., 463 U.S. 658 (1978).
16 A-1683-18T4

"[T]he legal conclusions undergirding the summary judgment motion itself [are 

reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. 

Ins. Co., 202 N.J. 369, 385 (2010). 

"The practical effect of [Rule 4:46-2(c)] is that neither the motion court 

nor an appellate court can ignore the elements of the cause of action or the 

evidential standard governing the cause of action." Bhagat v. Bhagat, 217 N.J. 

22, 38 (2014). In that regard, "[s]ummary judgment should be granted . . . 

'against a party who fails to make a showing sufficient to establish the existence 

of an element essential to that party's case, and on which that party will bear the 

burden of proof at trial.'" Friedman v. Martinez, ___ N.J. ___, ___ (2020) (slip 

op. at 30) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

Pertinent to this appeal, the NJCRA provides a private cause of action for 

damages, injunctive or other appropriate relief to 

[a]ny 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 . . . 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 . . . .

[N.J.S.A. 10:6-2(c).]
17 A-1683-18T4

A cause of action brought under the NJCRA has the same elements as the 

analogous federal Civil Rights Act, 42 U.S.C. § 1983 (Section 1983), after which 

the NJCRA was modeled. Rezem Family Assocs. L.P. v. Borough of Millstone, 

423 N.J. Super. 103, 115 (App. Div. 2011). Thus, New Jersey state courts may 

look to federal cases analyzing Section 1983 to interpret the NJCRA's 

provisions. See Tumpson v. Farina, 218 N.J. 450, 474 (2014) ("The 

interpretation given to parallel provisions of Section 1983 may provide guidance 

in construing our Civil Rights Act."). 

The NJCRA "was adopted 'for the broad purpose of assuring a state law 

cause of action for violations of state and federal constitutional rights and to fill 

any gaps in state statutory anti-discrimination protection.'" Ramos v. Flowers, 

429 N.J. Super. 13, 21 (App. Div. 2012) (quoting Owens v. Feigin, 194 N.J. 607, 

611 (2008)). See also Gormley v. Wood-El, 218 N.J. 72, 97 (2014) ("Section 

1983 applies only to deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -

2 applies not only to federal rights but also to substantive rights guaranteed by 

New Jersey's Constitution and laws."). To that end, similar to a cause of action 

under Section 1983, in order to prevail under the NJCRA, a plaintiff must first 

identify "'the person acting under color of law[]' that has caused the alleged 

deprivation," and then "identify a 'right, privilege or immunity' secured to the 
18 A-1683-18T4

claimant" by the state or federal constitution or state or federal laws. Rezem, 

423 N.J. Super. at 115 (quoting Rivkin v. Dover Twp. Rent Leveling Bd., 143 

N.J. 352, 363 (1996)). 

"We have recognized two types of claims under the [NJCRA]: first, a 

claim for when one is 'deprived of a right,' and second, a claim for when one's 

'rights are interfered with by threats, intimidation, coercion or force.'" 

Trumpson, 431 N.J Super. at 181-82. (quoting Felicioni v. Admin. Office of 

Courts, 404 N.J. Super. 382, 400 (App. Div. 2008)). However, "[i]nterference 

with a right need not actually result in actual deprivation of the right." Id. at 

182. Here, there is no dispute that plaintiff serving as a Weingarten

representative for Rosado constitutes a protected activity under N.J.S.A. 

34:13A-5.4(a)(1), with underpinnings in the First Amendment.

6

 See Hernandez,

149 N.J. at 75. Thus, interference or attempted interference with the exercise of 

that right by retaliation constitutes "threats, intimidation or coercion" cognizable 

under N.J.S.A. 10:6-2(c).

 

6

 "[U]nion membership is worthy of constitutional protection" and there is 

longstanding Supreme Court precedent "that a public employee possesses a First 

Amendment right to associate with a union." Palardy v. Twp. of Millburn, 906 

F.3d 76, 82 (3d Cir. 2018). "The public employee surely can associate and speak 

freely and petition openly, and he is protected by the First Amendment from 

retaliation for doing so." Smith v. Ark. State Highway Emp., Local 1315, 441 

U.S. 463, 465 (1979). 
19 A-1683-18T4

However, in order to establish a prima facie case that defendants' acts 

constitute retaliation as alleged in his complaint, plaintiff must show that he (1) 

"engaged in a protected activity, (2) that defendants' retaliatory action was 

sufficient to deter a person of ordinary firmness from exercising his or her rights, 

and (3) that there was a causal connection between the protected activity and the 

retaliatory action." Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). 

"A defendant may defeat the claim of retaliation by showing that it would have 

taken the same action even if the plaintiff had not engaged in the protected 

activity." Ibid. 

When, as here, the question does not turn on whether the plaintiff engaged 

in a protected activity or whether the defendants engaged in the conduct alleged, 

"but rather whether there was a causal relationship between the two," in order 

"[t]o establish the requisite causal connection a plaintiff usually must prove 

either (1) an unusually suggestive temporal proximity between the protected 

activity and the allegedly retaliatory action, or (2) a pattern of antagonism 

coupled with timing to establish a causal link." Ibid. "In the absence of that 

proof the plaintiff must show that from the 'evidence gleaned from the record as 

a whole' the trier of the fact should infer causation." Ibid. (quoting Farrell v. 

Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). 
20 A-1683-18T4

However, as the court pointed out in DeFlaminis,

A court must be diligent in enforcing these causation 

requirements because otherwise a public actor 

cognizant of the possibility that litigation might be filed 

against him, particularly in his individual capacity, 

could be chilled from taking action that he deemed 

appropriate and, in fact, was appropriate. 

Consequently, a putative plaintiff by engaging in 

protected activity might be able to insulate himself 

from actions adverse to him that a public actor should 

take. . . . [B]y enforcing the requirement that a plaintiff 

show causation in a retaliation case, [courts] . . . will 

protect the public actor from unjustified litigation for 

his appropriate conduct. In this regard we recognize 

that often public actors . . . must make a large number 

of decisions in charged atmospheres thereby inviting 

litigation against themselves in which plaintiffs ask the 

courts to second guess the actors' decisions.

[Id. at 267-68.]

Here, we agree with the judge that plaintiff failed to establish the requisite 

causal connection between his protected activity and defendants' alleged 

retaliatory conduct to survive a motion for summary judgment on a retaliation 

claim. Viewed in the light most favorable to plaintiff, the record as a whole 

simply does not support an inference that defendants' actions constituted 

retaliation for plaintiff engaging in protected activity in his role as Rosado's 

Weingarten representative during the September 9, 2014 IA interview. While 

the record is replete with accusations of animus and allegations of disparate 
21 A-1683-18T4

treatment, "[a] motion for summary judgment will not be defeated" by "disputed 

facts 'of an insubstantial nature.'" Worthy v. Kennedy Health Sys., 446 N.J. 

Super. 71, 85 (App. Div. 2016) (quoting Pressler & Verniero, Current N.J. Court 

Rules, cmt. 2.1 on R. 4:46-2 (2020)). Moreover, "'fanciful, frivolous, gauzy or 

merely suspicious' allegations of fact in support of the claim" will not forestall 

summary judgment dismissal. Maher v. N.J. Transit Rail Operations, 125 N.J. 

455, 477-78 (1991) (quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 74 

(1954)).

Plaintiff also contends that in granting defendants summary judgment, the 

judge erred in failing to analyze "[Monell] liability based upon the deliberate 

indifference standard." In Monell, the United States Supreme Court "held that 

official policy must be 'the moving force of the constitutional violation' in order 

to establish the liability of a government body under § 1983." Polk Cty. v. 

Dodson, 454 U.S. 312, 326 (1981) (quoting Monell, 436 U.S. at 694). While a 

Section 1983 claim may be based on a plaintiff showing that a governmental 

entity's actions evidence "a 'deliberate indifference' to [his or her] rights," City 

of Canton v. Harris, 489 U.S. 378, 389 (1989), in order to be actionable, a 

plaintiff must "show that the [government body], through one of its 

policymakers, affirmatively proclaimed a policy, or acquiesced in a widespread 
22 A-1683-18T4

custom, that deprived the plaintiff of his constitutional rights." Coles v. Carlini, 

162 F. Supp. 3d 380, 401 (D.N.J. 2015). See Hafer v. Melo, 502 U.S. 21, 25 

(1991) ("[T]he entity's policy or custom must have played a part in the violation 

of federal law." (quoting Kentucky v. Graham, 473 U.S. 159, 167 (1985))). 

A government policy may be established "when a 'decisionmaker 

possess[ing] final authority to establish a . . . policy with respect to the action' 

issues an official proclamation, policy, or edict." McTernan v. City of York, 

564 F.3d 636, 658 (3d Cir. 2009) (alteration in original) (quoting Andrews v. 

City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). "A course of conduct 

is considered to be a 'custom' when, though not authorized by law, 'such 

practices of state officials [are] so permanently and well-settled' as to virtually 

constitute law." Ibid. (quoting Andrews, 895 F.2d at 1480). "Custom requires 

proof of knowledge and acquiescence by the decisionmaker." Ibid. "In either 

instance, a plaintiff must show that an official who has the power to make policy 

is responsible for either the affirmative proclamation of a policy or acquiescence 

in a well-settled custom." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 

1990).

"However, proof of the mere existence of an unlawful policy or custom is 

not enough to maintain a [Section] 1983 action." Ibid. Rather, "[a] plaintiff 
23 A-1683-18T4

bears the additional burden of proving that the . . . practice was the proximate 

cause of the injuries suffered." Ibid. "To establish the necessary causation, a 

plaintiff must demonstrate a 'plausible nexus' or 'affirmative link' between the 

. . . custom and the specific deprivation of constitutional rights at issue." Ibid.

(citations omitted). See Harris, 489 U.S. at 385 ("[O]ur first inquiry in any case 

alleging [a governmental entity's] liability under [Section] 1983 is the question 

whether there is a direct causal link between [the entity's] policy or custom and 

the alleged constitutional deprivation."); City of Oklahoma City v. Tuttle, 471 

U.S. 808, 823 (1985) ("[T]here must be an affirmative link between the policy 

and the particular constitutional violation alleged."). Here, in the absence of a 

causal link between the purported policy or custom and the constitutional 

infringement, defendants cannot be held liable under Section 1983 or the 

NJCRA.

Plaintiff also argues the judge erred in finding that the Sheriff was entitled 

to "qualified immunity." Plaintiff asserts that because the Sheriff admitted being

aware that union activities are afforded constitutional protection, he should have 

been held separately liable for authorizing the actions of the IA officers or 

"act[ing] with deliberate indifference to the[ir] abuses." 
24 A-1683-18T4

"The affirmative defense of qualified immunity protects government 

officials from personal liability for discretionary actions taken in the course of 

their public responsibilities, 'insofar as their conduct does not violate clearly 

established statutory or constitutional rights of which a reasonable person would 

have known.'" Brown v. State, 230 N.J. 84, 97-98 (2017) (quoting Morillo v. 

Torres, 222 N.J. 104, 116 (2015)). The defense applies to NJCRA claims and 

"tracks the federal standard, shielding from liability all public officials except 

those who are 'plainly incompetent or those who knowingly violate the law.'" 

Id. at 98 (quoting Morillo, 222 N.J. at 118). The defense "balances two 

important interests - the need to hold the 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." Pearson v. 

Callahan, 555 U.S. 223, 231 (2009). 

To ascertain whether a governmental official . . . is 

entitled to qualified immunity requires inquiries into 

whether: (1) the facts, "[t]aken in the light most 

favorable to the party asserting the injury[] . . . show 

the officer's conduct violated a constitutional right"; 

and (2) that constitutional "right was clearly 

established" at the time that defendant acted. 

[Brown, 230 at 98. (quoting Saucier v. Katz, 533 U.S. 

194, 201 (2001)).]
25 A-1683-18T4

Here, although the judge determined the Sheriff was entitled to qualified 

immunity in relying on the recommendations of the IA officers, because the 

judge based the summary judgment dismissal on plaintiff's failure to establish a 

prima facie NJCRA claim, there was no need to apply the doctrine of qualified 

immunity. Based on our de novo review, we are convinced the judge's analysis 

is supported by the record and the applicable legal principles, including the 

summary judgment standard.

Affirmed.