                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2411-14T3

RICHMOND LAPOLLA,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                              March 28, 2017
v.
                                           APPELLATE DIVISION

COUNTY OF UNION and GEORGE
DEVANNEY, County Manager
and Individually,

     Defendants-Respondents.

______________________________________

         Argued June 7, 2016 – Decided March 28, 2017

         Before   Judges     Espinosa,    Rothstadt     and
         Currier.

         On appeal from Superior Court of New Jersey,
         Law Division, Union County, Docket No. L-
         3547-11.

         Susan B. Fellman argued the cause for
         appellant (Breuninger & Fellman, attorneys;
         Ms. Fellman and Patricia Breuninger, of
         counsel and on the briefs; Kathleen P.
         Ramalho, on the briefs).

         Robert F. Varady argued the cause for
         respondent County of Union (LaCorte, Bundy,
         Varady & Kinsella, attorneys; Mr. Varady, of
         counsel and on the brief; Christina M.
         DiPalo, on the brief).

         Robert F. Renaud argued the cause for
         respondent George Devanney (Palumbo Renaud &
         DeAppolonio, LLC, attorneys; Mr. Renaud, on
         the brief).
       The opinion of the court was delivered by

ESPINOSA, J.A.D.

       Plaintiff claimed to be the victim of political patronage,

suffering       adverse    employment       actions    in    part      because    his

politically active brother sparred with the chairwoman of the

Union   County       Democratic    Party.      Plaintiff's       appeal   from    the

dismissal of his complaint presents the question whether his

familial       and   social   affiliations       qualify    as   constitutionally

protected conduct that satisfies an essential element of his

claims for violation of the New Jersey Civil Rights Act (NJCRA),

N.J.S.A. 10:6-1 to -2, and retaliation.                    We hold that they do

not.

       Plaintiff Richmond Lapolla, a long-time employee of Union

County, filed suit, alleging violations of the NJCRA and Article

I, Sections 6 and 18, of the New Jersey Constitution, based upon

political affiliation (count one) and intentional infliction of

emotional distress (count two).               He later amended the complaint

to   add   a    third   count,     alleging    retaliation       for   filing    this

action.        After    summary    judgment    was    granted,    dismissing      the

complaint,       plaintiff        filed   this     appeal,       challenging      the

dismissal of his NJCRA and retaliation claims.                    He also appeals




                                          2                                A-2411-14T3
from the denial of his motion to file a third amended complaint
                                1
to add another defendant.           We affirm.

                                          I.

    The     evidence,    viewed      in        the    light    most   favorable       to

plaintiff, R. 4:46-2(c), can be summarized as follows.

    Plaintiff began his employment with the County in 1979 as a

maintenance    repair    carpenter.             Over    the    next     twenty    years

plaintiff was promoted several times.

    Plaintiff     was   a     member      of    the    Union    County    Democratic

Committee     (UCDC)    for    approximately           ten     years.       He     made

donations, handed out literature, and did some fundraising but

never ran for office.

    Plaintiff described two factions in the UCDC.                          Charlotte

DeFilippo was the chairwoman of the UCDC.                      Plaintiff described

the other faction as including his brother, Michael Lapolla,2 and

"anybody who didn't walk in lockstep with Charlotte DeFilippo."

At his deposition, plaintiff was asked who belonged to this

faction besides Michael.            He named the mayor of Elizabeth, J.

Christian   Bollwage,       State    Senator         Joseph    Suliga    and     former

1
   Plaintiff does not appeal from the dismissal of count two.
His argument regarding the denial of his motion to file a third
amended complaint lacks sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E).
2
   We refer to plaintiff's brother by his first name to avoid
confusion.



                                          3                                    A-2411-14T3
Freeholder Daniel Sullivan.               As to his own affiliation with that

faction, plaintiff added, "I was not a part of it."                             He was then

asked,    "So    you     were   not    part        of   the       Lapolla   faction?"       He

replied, "As you call it, no."

    Michael        became       County    Manager            in    1997.      According     to

plaintiff, DeFilippo was miffed because she had wanted defendant

George Devanney to become County Manager and was not satisfied

by the appointment of Devanney to Deputy County Manager.                                     In

1999, while his brother was County Manager, plaintiff became the

head of the Division of Buildings and Grounds in the Department

of Operational Services.              He obtained the Civil Service title of

Director, Repair and Maintenance, a title he still holds.

    Michael served as County Manager until 2002.                                 During his

tenure, he clashed with DeFilippo over what he perceived as her

attempts to unduly influence the day-to-day operations of the

county.     In 2002, after DeFilippo told Michael she thought it

was time for him to move on, he left his position to become

Executive Director of the New Jersey Turnpike Authority.

    After Michael resigned, Devanney became County Manager and

plaintiff       became    director       of    the      newly      formed     Department    of

Operations      and     Facilities.           Plaintiff           continued    to   hold   the

titles    of     head    of     the   Division          of    Operations       within      that

department and chief of the Bureau of Construction Management,




                                               4                                     A-2411-14T3
which is included in the Division of Operations.               As the head of

a department, plaintiff reported directly to the County Manager.

Plaintiff    received    criticisms         from   Devanney    regarding        his

performance, beginning in early 2004, which he has termed "petty

and unsubstantiated."

    In early 2005, while plaintiff was on a month-long medical

leave   of   absence,   Devanney   notified        plaintiff   he    was     being

transferred to Union County Vocational Technical Schools (Vo-

Tech) as Facilities Manager.       Devanney did not need the approval

of the Board of Freeholders to reassign plaintiff or remove him

from the position of department director.             Plaintiff asked to be

allowed to retain his position as Division Head or Bureau Head,

positions consistent with his Civil Service title.                        Devanney

refused.

    Although     Vo-Tech   was     an       autonomous   body,      the    County

continued to pay plaintiff's salary.               According to plaintiff,

there was no purpose to his being assigned to Vo-Tech; he had no

responsibilities and his role did not meet the requirements of

his Civil Service title.3     However, plaintiff retained the Civil




3
   N.J.A.C. 4A:3-3.9 establishes a procedure for an employee to
request a "desk audit" to challenge assignment to a position
when its duties do not conform to his Civil Service title.
Although we do not accept defendant Devanney's argument that
this was a necessary pre-requisite to plaintiff's commencement
                                                    (continued)


                                        5                                 A-2411-14T3
Service title of Director, Repair and Maintenance, that he had

as   Director     of     Operations         and     Facilities       and    continued      to

receive the same salary, which was $128,000 when the complaint

was filed.        Plaintiff did not file a complaint alleging this

transfer constituted a politically-motivated violation of his

constitutional rights until September 2011, more than six years

after the transfer.

      When   Michael       learned          about    the   transfer,        he   contacted

Devanney     to    try    to     work       something      out    that      would    permit

plaintiff to stay where he was.                     Although Devanney agreed, the

transfer went through and Devanney later explained, "Charlotte

[DeFilippo]       said    no."         Michael       believed       this    decision      was

motivated by DeFilippo's animus toward him, which he considered

political in nature.

      At his deposition, Devanney stated he had "lost all faith

and confidence" in plaintiff after his "continual[] resistance,

stonewalling      and    insubordination . . .               throughout      the    years."

He   further      explained          that     "department        directors . . .          are

confidential      aides"       and    that     he    could    not    "see    eye    to    eye

enough" with plaintiff to keep him as a department head.




(continued)
of this action, we note that plaintiff did not avail himself of
this opportunity.



                                               6                                    A-2411-14T3
       Devanney restructured the County's departments once again,

and transferred the duties of the Department of Operations &

Facilities back to a division in the Department of Public Works.

       Several      of        plaintiff's       friends     and     coworkers       provided

certifications           in     which    they    stated     that,    beginning      in    late

2004, DeFilippo and Devanney discouraged them from associating

with plaintiff and warned that doing so would be detrimental to

their careers with the County.

       At the end of July 2010, plaintiff's assignment to Vo-Tech

came    to    an        end    because     the       construction       projects     he    was

ostensibly         overseeing           were    completed.           Devanney       assigned

plaintiff to the Juvenile Detention Center (JDC).                             He admitted

he did not look for any job openings for plaintiff as a director

or department head.               The stated purpose for this assignment was

to     "organize,         develop,        and    perform      work      on   all     matters

pertaining         to     the     maintenance         and   repair      of   [the     JDC]."

Devanney admitted, however,                    he had no idea who plaintiff would

supervise or if there were people for him to supervise.

       Plaintiff was assigned to a room approximately twelve by

sixteen feet that resembled an electronics storage room.                              He did

not    have   a         computer    for        approximately      one    month      and   the

telephone he had was restricted to internal use only.




                                                 7                                  A-2411-14T3
    Plaintiff testified that one of his supervisors at the JDC,

Greg Lyons, told him he was "dumped" there.                  When he asked the

other supervisor, Michael Brennan, what he was to do there, the

supervisor "shrugged his shoulders," said, "I don’t know," and

left.    Lyons was asked at his deposition whether plaintiff ever

did anything throughout his assignment at JDC and replied, "Not

as far as I know."           Plaintiff testified that, for his entire

tenure, he never did any work at the JDC.

    In      August    2011,     Devanney      retired.        The   Freeholders

appointed Alfred Faella, a friend of Mayor Bollwage, to the

position.    Faella knew that Bollwage and DeFilippo did not like

each other.     Prior to his appointment, he met with DeFilippo,

who advised him she had no objection to his appointment because

Devanney recommended him.

    Plaintiff        filed    his   complaint    in   this    action   in   mid-

September 2011.        On October 24, 2011, he was informed that,

effective November 1, he was being transferred to the Watchung

Stables Administrative Building, where he would be "responsible

for the supervision of maintenance and repair of the facilities

at the Watchung Stable, Trailside Nature & Science Center[,] and

the Deserted Village of Feltville."                Plaintiff's requests to

meet with Faella were denied.               On November 2, 2011, plaintiff

was told "the County Manager sees no reason to meet" with him.




                                        8                              A-2411-14T3
       In the fall of 2013, the head of the Division of Facilities

Management    resigned.          Plaintiff        contacted    Faella     on    two

occasions    to   express   his    interest        in   the   position    he    had

previously held, and, after the job vacancy was formally posted,

submitted an application for the position.                     Faella formed a

committee to interview candidates.                He testified the committee

found two other candidates more impressive than plaintiff and

that he decided to appoint one of those candidates.                     Plaintiff

alleges the candidate selected was less qualified than he.

       According to plaintiff, he saw County Freeholder Alexander

Mirabella at a social function in September 2014, and brought up

"the fact that he was not given his job [of Division Head]

back."    He stated that Mirabella responded, "You have a lawsuit

against the County.      Do you really think we're going to give you

your job back?"

       Plaintiff maintained his Civil Service title throughout his

transfers and never suffered a reduction in pay, though he did

lose   "portal    to   portal"    use    of   a    County     vehicle    upon   his

transfer to Vo-Tech.        At no point prior to the filing of the

complaint in this action did plaintiff ever complain to Devanney

or the Civil Service Commission about his position at Vo-Tech.

                                        II.

       The NJCRA provides, in pertinent part:




                                         9                                A-2411-14T3
           Any person who has been deprived of any
           substantive due process or equal protection
           rights, privileges or immunities secured by
           the Constitution or laws of the United
           States,    or    any    substantive  rights,
           privileges or immunities secured by the
           Constitution or laws of this State, or whose
           exercise or enjoyment of those substantive
           rights, privileges or immunities has been
           interfered    with   or   attempted  to   be
           interfered with, by threats, intimidation or
           coercion by a person acting under color of
           law, may bring a civil action for damages
           and for injunctive or other appropriate
           relief.

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

      A   plaintiff        who    alleges      retaliation        for    political

affiliation must show: (1) he was "employed at a public agency

in a position that does not require political affiliation"; (2)

he was "engaged in constitutionally protected conduct"; and (3)

the   conduct   was   "a    substantial       or    motivating    factor   in    the

government's employment decision."                  Galli v. N.J. Meadowlands

Comm'n., 490 F.3d 265, 271 (3d Cir. 2007).                        The statute of

limitations     for   claims     under   the       NJCRA   is   two   years.     See

N.J.S.A. 2A:14-2(a).

      The trial judge reviewed plaintiff's proofs to determine

whether he presented a prima facie case of political affiliation

and discrimination.         Considering the first of the three Galli

factors, she noted plaintiff was employed at a public agency in

a position that does not require political affiliation.




                                         10                                A-2411-14T3
      Turning      to    the    second     Galli        prong,       the    trial      judge

described      plaintiff's        claim     of        constitutionally          protected

political affiliation as "murky" and distinguishable from the

facts in Montone v. City of Jersey City, 709 F.3d 181 (3d Cir.

2013) and Goodman v. Pa. Tpk. Comm'n, 293 F.3d 655, 663 (3d Cir.

2002), cases in which this prong was clearly satisfied.                                   The

judge concluded plaintiff "was not engaged in constitutionally

protected conduct.           He was just existing, he was just being."

Because this failure of proof required dismissal of the NJCRA

claim against the County, it was unnecessary for the judge to

consider    the      application      of   the    statute        of    limitations         to

plaintiff's     claim.         Nevertheless,       she       found    the    NJCRA     claim

time-barred.         The     trial    judge      also       concluded       Devanney      had

qualified immunity, requiring the dismissal of the NJCRA claim

against     him.        In     addition    to     dismissing          the    intentional

infliction      of      emotional      distress        claim,        the    trial      judge

dismissed the retaliation claim.

      In his appeal, plaintiff argues the trial judge erred in

granting    summary      judgment      because:        the    evidence       presented       a

material issue of fact (Point I); there was sufficient evidence

to   satisfy    the      second      element     of     a    prima    facie    case       for

political retaliation (Point II); Devanney is not entitled to

qualified      immunity      (Point     III);     the        County    is    liable       for




                                           11                                       A-2411-14T3
political affiliation retaliation (Point IV); defendants failed

to offer facts to support their claim that plaintiff held a

position in which political affiliation is required (Point V);

the trial court failed to recognize that plaintiff presented

prima facie evidence of the third               Galli element (Point VI);

plaintiff's    NJCRA    claim    is   not    time-barred    (Point    VII);   and

plaintiff    has   a   cognizable     claim   of   retaliation    against     the

County (Point VIII).            Plaintiff also argues the trial court

erred in denying his motion to file a third amended complaint to

name Faella as a defendant in his retaliation claim.

    In     reviewing    a   summary     judgment   decision,     we   view    the

evidence "in the light most favorable to the non-moving party,"

and determine whether a genuine issue exists as to any material

fact that precludes summary judgment.               Rowe v. Mazel Thirty,

LLC, 209 N.J. 35, 38, 41 (2012) (citing Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 529 (1995)).                We review questions

of law de novo.        Davis v. Devereux Found., 209 N.J. 269, 286

(2012).

    Applying these principles, we conclude summary judgment was

properly    granted    because    the   trial   judge   correctly     concluded

plaintiff lacked prima facie evidence of the second element of

his political affiliation discrimination claim.               As a result, we

need not address the arguments raised in Points V, VI and VII.




                                        12                              A-2411-14T3
We also conclude Devanney is entitled to qualified immunity and

that the retaliation claim was properly dismissed.                    Plaintiff's

remaining arguments lack sufficient merit to warrant discussion.

R. 2:11-3(e)(1)(E).

                                       III.

    We first address plaintiff's NJCRA claim.

    In Elrod v. Burns, 427 U.S. 347, 372-73, 96 S. Ct. 2673,

2689, 49 L. Ed. 2d 547, 565 (1976), the United States Supreme

Court   held     that    termination   of     public     employees'     employment

because    of    their    political     affiliation       violates      the   First

Amendment unless the position at issue involves policymaking.

See also Branti v. Finkel, 445 U.S. 507, 513-17, 100 S. Ct.

1287, 1292-95, 63 L. Ed. 2d 574, 580-83 (1980).                         The Elrod-

Branti doctrine was later expanded to hold "the First Amendment

[also] protects public employees . . . from promotion, transfer,

recalls,   and    other    hiring   decisions      conditioned     on    political

affiliation, unless the government can demonstrate that party

affiliation is a proper requirement for the position."                        Galli,

supra, 490 F.3d at 270-71 (citing Rutan v. Republican Party of

Ill., 497 U.S. 62, 75, 110 S. Ct. 2729, 2737, 111 L. Ed. 2d 52,

67 (1990)).

    As     the    trial    judge    observed,      the   pivotal     question     is

whether    plaintiff      was   engaged      in   constitutionally       protected




                                        13                                 A-2411-14T3
conduct.          See Galli, supra, 490 F.3d at 271.                    Typically, this

factor contemplates situations where the plaintiff is required

to   join    or     support      the    political     party    in     power      or    suffers

retaliation for supporting a losing candidate or for failing to

engage in the political process whatsoever.                          See Galli, supra,

490 F.3d at 272-73 (collecting cases).                        In addition, "adverse

employment        actions     taken     against      public    employees         merely      'to

make positions available for political supporters' could amount

to political discrimination."                   Id. at 273 (quoting Bennis v.

Gable, 823 F.2d 723, 731 (3d Cir. 1987)).                       The second prong may

also    be    satisfied         when    the   public       agency    takes       an    adverse

employment        action    against      an    employee      based    upon       a    mistaken

belief       he     is    engaging       in     protected       political            activity.

Heffernan v. City of Paterson, 578 U.S. ___, ____, 136 S. Ct.

1412,    1418,      194    L.    Ed.    2d    508,   514     (2016)    (holding         police

officer      demoted       for    picking      up    campaign       sign    as       favor   to

bedridden parent was entitled to seek relief based on the city's

mistaken belief the officer was engaging in political speech).

       "This      does    not    mean    that      every    public    act     inspired        by

political partisanship is subject to challenge because it has a

harmful consequence upon an individual."                        Commc'ns Workers of

Am. v Whitman, 335 N.J. Super. 283, 289-90 (App. Div. 2000)

(finding no NJCRA violation where public employment positions




                                              14                                      A-2411-14T3
were abolished as a result of a change in public policy that

privatized     motor      vehicle    agencies).        The    constitutionally

protected interests "emanate from every person's right to be

insulated from governmental retaliation for expressive exercises

or   beliefs   protected     by     the   First    Amendment."        Id.   at    289

(emphasis added).         Therefore, the interest of a plaintiff who

asserts a claim of political affiliation discrimination "must be

sufficiently similar to those of the plaintiffs in the seminal

cases," i.e., Elrod, supra, 427 U.S. 347, 96 S. Ct. 2673, 49 L.

Ed. 2d 547; Branti, supra, 445 U.S. 507, 100 S. Ct. 1287, 63 L.

Ed. 2d 574; Rutan, supra, 497 U.S. 62, 110 S. Ct. 2729, 111 L.

Ed. 2d 52; Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 116 S.

Ct. 2342, 135 L. Ed. 2d 843 (1996); and O'Hare Truck Serv., Inc.

v. City of Northlake, 518 U.S. 712, 116 S. Ct. 2353, 135 L. Ed.

2d 874 (1996).      Commc'ns Workers, supra, 335 N.J. Super. at 290.

      In   Elrod,   the    Court    decided    a   newly    elected     Democratic

sheriff    could    not    constitutionally        engage    in   the   patronage

practice of replacing certain office staff with members of his

own party "when the existing employees lack or fail to obtain

requisite support from, or fail to affiliate with, that party."

427 U.S. at 351, 373, 375, 96 S. Ct. at 2679, 2689, 2690, 49 L.

Ed. 2d at 552, 565, 566 (plurality opinion; Stewart, J., joined

by Blackmun, J., concurring in judgment).               In a similar case of




                                          15                                A-2411-14T3
patronage, assistant public defenders alleged their employment

was   terminated    because      they   were    members      of   the   Republican

party; the Court upheld an injunction against their termination.

Branti, supra, 445 U.S. at 508, 520, 100 S. Ct. at 1289, 1296,

63 L. Ed. 2d at 578, 585.          In Rutan, supra, 497 U.S. at 66, 110

S. Ct. at 2732, 111 L. Ed. 2d at 61, the Governor's Office

imposed a hiring freeze that required agencies to obtain the

"express   permission"      of   the    Governor's      office    for   employment

decisions such as "new hires, promotions, transfers, and recalls

after   layoffs."     The     criteria       reviewed   to   determine     whether

approval was given included

           whether the applicant voted in Republican
           primaries in past election years, whether
           the applicant has provided financial or
           other support to the Republican Party and
           its candidates, whether the applicant has
           promised to join and work for the Republican
           Party in the future, and whether the
           applicant has the support of Republican
           Party officials at state or local levels.

           [Ibid.]

The Court extended this protection to independent contractors in

Umbehr, supra, 518 U.S. at 684-85, 116 S. Ct. at 2352, 135 L.

Ed. 2d at 857 (termination of independent contractor's contract

in retaliation for public criticism of the county and the board

was violation of First Amendment) and O'Hare, supra, 518 U.S. at

726, 116 S. Ct. at 2361, 135 L. Ed. 2d at 886 (towing company




                                        16                                A-2411-14T3
dropped from list of approved companies used by city after owner

declined to contribute to city administration's re-election and

supported opposition).

      Although     plaintiff     identifies      a    number       of    employment

actions he claims infringed upon his First Amendment rights, he

has not identified any "expressive exercises or beliefs" of his

that were "sufficiently similar to those of the plaintiffs in

the seminal cases" to be protected by the First Amendment.                         See

Commc'ns Workers, supra, 335 N.J. Super. at 289-90.                      He did not

support a losing candidate, fail to yield to pressure to support

any particular candidate or exercise his right to refrain from

any political activity.

      Plaintiff described his political participation as minimal,

all in support of the UCDC, and not any particular faction.                        His

contention   is    that    he   was   discriminated     against         because   his

brother was a member of a faction of the Democratic Party that

clashed with the other faction led by DeFilippo.                        But, in his

deposition testimony, he maintained he was not a member of the

disfavored faction.        Thus, he has not presented a case in which

his   "political       affiliation"    was   separate       from    the    interest

identified     with       DeFilippo    based     on     a     divergence          from

"commonality      of    political     purpose,       partisan      activity       and

political support."         See Erb v. Borough of Catawassa, 749 F.




                                       17                                   A-2411-14T3
Supp. 2d 244, 254 (M.D. Pa. 2010) (citing Curinga v. City of

Clairton, 357 F.3d 305, 311 (3d Cir. 2004)).                     And, the act of

retaliation he cites -- the decision not to assign him to his

former      position   as     the    head    of    the   Division   of    Facilities

Management in 2013 -- was made by Faella, whom he described as

closely aligned with the faction at odds with DeFilippo.

       As   we    discern   no      evidence      of   constitutionally   protected

conduct by plaintiff that could support a prima facie case of

the second Galli element, plaintiff's NJCRA claim was properly

dismissed.

                                            IV.

       Plaintiff's failure to show he engaged in constitutionally

protected conduct substantially erodes his claim that Devanney

was not shielded from liability by qualified immunity.

       The qualified immunity doctrine is an affirmative defense

that "shields government officials from a suit for civil damages

when     'their     conduct      does    not      violate    clearly     established

statutory or constitutional rights of which a reasonable person

would have known.'"         Gormley v. Wood-El, 218 N.J. 72, 113 (2014)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738, 73 L. Ed. 2d 396, 410 (1982)).                       This defense is

available when a plaintiff asserts a claim for money damages

under the NJCRA.       Ramos v. Flowers, 429 N.J. Super. 13, 24 (App.




                                            18                              A-2411-14T3
Div. 2012).

    In Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151,

2156,    150   L.   Ed.   2d    272,     281    (2001),   the   Supreme   Court

identified a two-pronged analysis to be employed in determining

whether qualified immunity applies:

           One prong asks whether "[t]aken in the light
           most favorable to the party asserting the
           injury, . . . the facts alleged show the
           officer's conduct violated a constitutional
           right[.]" The other prong asks "whether the
           right was 'clearly established' at the time
           of defendant's alleged misconduct."       In
           other   words,   "[q]ualified  immunity   is
           applicable unless the official's conduct
           violated      a      clearly     established
           constitutional right."

           [Ramos, supra, 429 N.J. Super. at 27-28
           (alteration   in   original)  (citations
           omitted).]

    Using the flexible approach later endorsed by the Supreme

Court in Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808,

818, 172 L. Ed. 2d 565, 576 (2009), we apply "either or both of

the two prongs" of this analysis.              Ramos, supra, 429 N.J. Super.

at 27.    And, as we observed, "[q]ualified immunity is applicable

unless   the   official's      conduct    violated   a    clearly   established

constitutional right."         Id. at 28 (alteration in original).

    "For a right to be clearly established, '[t]he contours of

the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.'"




                                         19                            A-2411-14T3
Gormley,      supra,     218    N.J.    at        113    (alteration         in    original)

(quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct.

3034, 3039, 97 L. Ed. 2d 523, 531 (1987)).                            It is imperative

that   this      inquiry    "be   undertaken            in   light    of     the   specific

context     of    the   case,     not   as    a     broad     general        proposition."

Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 598, 160

L. Ed. 2d 583, 589 (2004) (quoting Saucier, supra, 533 U.S. at

201, 121 S. Ct. at 2156, 150 L. Ed. 2d at 281).                              Thus, courts

are required to review the "case law existing at the time of the

defendant's       alleged      improper      conduct"        and     determine      whether

there was "sufficient precedent at the time of action, factually

similar     to   the    plaintiff's     allegations,           to    put     defendant     on

notice that his or her conduct is constitutionally prohibited."

McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001), cert.

denied, 535 U.S. 989, 122 S. Ct. 1543, 152 L. Ed. 2d 469 (2002).

       In   describing      the   clearly         established        right    he    asserts,

plaintiff states,

              [T]he key issue is not simply whether
              political affiliation with [his brother] is
              protected conduct, but whether a County
              employee is protected from adverse actions
              orchestrated by a purely political person
              (DeFilippo) for political reasons – to
              solidify her power by sending the chilling
              message to County employees to walk "in
              lockstep" with her or risk their jobs, which
              action    was   effectuated   by   Defendant
              Devanney.




                                             20                                     A-2411-14T3
       Even   if    we     accept      plaintiff's         view   that       there    was     a

political motive for the employment actions he complains of, the

dispositive issue is whether any of those actions infringed upon

plaintiff's        exercise       of    a   right       protected         by   the      First

Amendment.          As    we    have    noted,       the    political        activity      and

association he has described does not fit within the traditional

political affiliation categories that are "clearly established"

as constitutionally protected.                  In the absence of any precedent

that    established        plaintiff's         association        and     activities        as

constitutionally protected, it follows that Devanney could not

be on notice that the actions he took regarding plaintiff's

employment      were        constitutionally           prohibited.              Therefore,

Devanney      was        correctly      afforded        qualified         immunity,         and

plaintiff's NJCRA claim against him was properly dismissed.4

                                            V.

       Finally,      we        turn    to      the     dismissal        of     plaintiff's

retaliation     claim.           We    agree    that       this   claim      was   properly

dismissed, albeit for reasons different from those given by the

trial judge.

       Plaintiff's complaint alleges that, after the lawsuit was

4
   Although plaintiff's complaint requested equitable relief, he
does not argue that this demand precludes the availability of
the qualified immunity defense. Because plaintiff's NJCRA claim
is fatally deficient, this issue merits no further discussion.
R. 2:11-3(e)(1)(E).



                                            21                                       A-2411-14T3
filed, he was transferred to another "non-job" assignment and

was   not   appointed   to    the    position     of   County      Division     Head,

Division    of   Facilities    Management       when   that       position    became

vacant.     The complaint cites only one authority as legal support

for his claim, that the actions were taken to retaliate for his

filing a lawsuit asserting his rights under the NJCRA.

      Like 42 U.S.C.A. § 1983, on which it was modeled, the NJCRA

provides a means of vindicating substantive rights guaranteed by

federal law and New Jersey's Constitution and laws and is not a

source of rights itself.            Gormley, supra, 218 N.J. at 97-98.

Unlike the Law Against Discrimination, N.J.S.A. 10:5-1 to -49,

and the Conscientious Employee Protection Act (CEPA), N.J.S.A.

34:19-1 to -8, the NJCRA does not explicitly authorize an action

for   retaliation    based    upon      the   filing   of     a    lawsuit.        See

N.J.S.A. 10:5-12(d); N.J.S.A. 34:19-3.

      The   NJCRA   authorizes      a   private    right    of     action    in    the

following provision:

            Any person who has been deprived of any
            substantive due process or equal protection
            rights, privileges or immunities secured by
            the Constitution or laws of the United
            States,    or    any    substantive  rights,
            privileges or immunities secured by the
            Constitution or laws of this State, or whose
            exercise or enjoyment of those substantive
            rights, privileges or immunities has been
            interfered    with   or   attempted  to   be
            interfered with, by threats, intimidation or
            coercion by a person acting under color of



                                        22                                   A-2411-14T3
            law, may bring a civil action for damages
            and for injunctive or other appropriate
            relief.

            [N.J.S.A. 10:6-2(c) (emphasis added).]

    Two    types   of     private     claims      are   recognized   under     this

statute: (1) a claim when one is "deprived of a right," and (2)

a claim when one's rights have been "interfered with by threats,

intimidation, coercion or force."              Felicioni v. Admin. Office of

Courts,   404   N.J.    Super.    382,      400   (App.   Div.    2008),   certif.

denied, 203 N.J. 440 (2010); see also Ramos, supra, 429 N.J.

Super. at 21.

    Plaintiff      contends      he   was     subjected    to    retaliation     for

engaging in activity protected under the First Amendment and

Article 1, Sections 6 and 18 of the New Jersey Constitution.                       He

argues    the   correct    analysis      of    his   retaliation     claim    is    a

tripartite test enunciated in Baldassare v. New Jersey, 250 F.3d

188 (3d Cir. 2001), as follows:

            First, plaintiff must establish the activity
            in question was protected.         For this
            purpose, the speech must involve a matter of
            public concern. Once this threshold is met,
            plaintiff must demonstrate his interest in
            the     speech    outweighs   the     state's
            countervailing interest as an employer in
            promoting the efficiency of the public
            services     it    provides   through     its
            employees. . . . [P]laintiff must then show
            the protected activity was a substantial or
            motivating factor in the alleged retaliatory
            action.    Lastly, the public employer can
            rebut the claim by demonstrating it would



                                         23                                A-2411-14T3
            have reached the same decision . . . even in
            the absence of the protected conduct.

            [Id. at 194-95 (emphasis added) (citations
            and quotations omitted).]

       Plaintiff contends the filing of his lawsuit satisfies the

requirement     that     he    engaged    in     protected     conduct      because   it

"pertained to a matter of public concern, to wit, political

retaliation      being        carried     out    by,      inter    alia,     Defendant

Devanney."      We reject this argument.

       Returning to the claims available to plaintiff under the

NJCRA, it is evident plaintiff was not "deprived" of the right

to file this lawsuit.           Therefore, to sustain this action he must

show    interference      with    that     right     by     threats,   intimidation,

coercion or force.            See Tumpson v. Farina, 218 N.J. 450, 473

(2014).    Although it is questionable that the employment actions

complained      of   constitute       "threats,      intimidation,         coercion   or

force," within the meaning of the NJCRA, plaintiff's retaliation

claim ultimately fails because his lawsuit seeking redress for

adverse    employment         actions     personal     to    him   does     not   merit

protection under the First Amendment.

       In Borough of Duryea v. Guarnieri, 564 U.S. 379, 386, 131

S. Ct. 2488, 2493, 180 L. Ed. 2d 408, 420 (2011) the Supreme

Court    held    that    when     a     public    employee     sues    a    government

employer under either the First Amendment's Speech Clause or




                                           24                                  A-2411-14T3
Petition Clause, the employee must show he spoke as a citizen on

a matter of public concern.                "[W]hether an employee's petition

relates    to   a   matter     of    public     concern    will   depend     on   'the

content, form, and context of [the petition], as revealed by the

whole record.'"        Id. at 398, 131 S. Ct. at 2501, 180 L. Ed. 2d

at 428 (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.

Ct. 1684, 1690, 75 L. Ed. 2d 708, 720 (1983)).

       The Court cautioned that the right of a public employee

under the Petition Clause is "not a right to transform everyday

employment disputes into matters for constitutional litigation

in the federal courts."             Id. at 399, 131 S. Ct. at 2501, 180 L.

Ed. 2d at 428.         Thus, a lawsuit that seeks to advance interests

personal to the plaintiff will not satisfy the public concern

requirement.        See ibid., 131 S. Ct. at 2501, 180 L. Ed. 2d at

428.     ("A petition that 'involves nothing more than a complaint

about a change in the employee's own duties' does not relate to

a matter of public concern . . . ." (citation omitted)); United

States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 466, 115 S.

Ct.    1003,    1013    130    L.    Ed.   2d    964,     979   (1995)   (observing

"employee comment on matters related to personal status in the

workplace" does not fall within category of protected speech).

Cf. Maw v. Advanced Clinical Commc'ns, Inc., 179 N.J. 439, 445

(2004)    (To   satisfy       CEPA's   requirement        under   N.J.S.A.     34:19-




                                           25                                A-2411-14T3
3(c)(3)   that   employer    activity    is     incompatible         with   a   clear

mandate of public policy, "the complained of activity must have

public ramifications, and . . . the dispute between employer and

employee must be more than a private disagreement."); see also

Turner v. Associated Humane Soc'ys., Inc., 396 N.J. Super. 582,

593-94 (App. Div. 2007); Cosgrove v. Cranford Bd. of Educ., 356

N.J. Super. 518, 525-26 (App. Div. 2003) (holding an employee

who claims employer retaliatory action for complaining about the

unfair    allocation   of   overtime     does      not   have    a    claim     under

N.J.S.A. 34:19-3(c)(3) because such a complaint deals with the

employee's personal harm, not harm to the public).

    Although     plaintiff     attempts       to    cast   his       complaint     as

raising issues of public concern, his allegations regard the

conditions of his employment and the remedies sought are limited

to relief designed to rectify employment actions he contends

were adverse to him.        Because his lawsuit essentially concerns

an employment dispute rather than a matter of public concern,

plaintiff cannot satisfy the first prong of the tripartite test

applicable to his retaliation claim, see Baldassare, supra, 250

F.3d at 194-95, and therefore fails to support a claim under the

NJCRA.    His retaliation claim was properly dismissed.

    Affirmed.




                                    26                                      A-2411-14T3
