                                                 NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                            _______________

                                   13-4353
                               _______________

                          WALTER W. YOUNG, JR.,
                                           Appellant

                                       v.

      TOWNSHIP OF IRVINGTON; IRVINGTON POLICE DEPARTMENT;
      HAROLD C. BORK, JR.; ANDREW BORYSCHUK; MILES BROWN;
              CHARGES P. BURGHARDT; MICHAEL L. CHASE;
                 RALPH COLLURA; MICHAEL V. DAMIANO;
          NICHOLAS J. GARGAS; FRANCISZEK P. PIWOWARECZYK;
    MAURICE GATTISON; AMANDA KOONTZ; THOMAS P. MASSIMINO;
STEPHEN F. MCNALLY; JOHN J. MOLISSO; SHARON NOEL; JAMIE OLIVEIRA;
               JOSEPH J. SANTIAGO; MELVIN SHAMBERGER;
           LADIMIR TAVARES; CRAWFORD WHITING; IRVINGTON
     LEGAL DEPARTMENT; MARVIN BRAKER; GUSTAVO G. GARCIA;
           WILLIE PARKER; LAW OFFICE OF IACULLO MARTINO;
        ANTHONY J. IACULLO; KATHLEEN C. FEENEY; PAULA DOW;
            CLARA RODRIGUEZ; ESSEX COUNTY PROSECUTOR;
         COUNTY; JOHN DOES 1-5, (SAID NAMES BEING FICTITIOUS
  INDIVIDUALS, CORPORATIONS, AND/OR ENTITIES WHO PARTICIPATED
       IN AND/OR FACILITATED IN THE WRONGFUL TERMINATION,
                 RETALIATION, AND DISCRIMINATION ALL
                JOINTLY, SEVERALLY, AND INDIVIDUALLY)
                             _______________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                          (D.C. Civil No. 2-11-cv-06855)
    District Judge: Honorable Dennis M. Cavanaugh and Honorable Esther Salas
                                 _______________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                               October 9, 2015
                  BEFORE: SHWARTZ, KRAUSE AND COWEN, Circuit Judges

                                             (Filed: October 19, 2015)

                                                 _______________

                                                    OPINION*
                                                 _______________

COWEN, Circuit Judge.

           Plaintiff Walter Young, Jr., appeals from the orders of the United States District

Court for the District of New Jersey insofar as they dismissed his claims under the New

Jersey Conscientious Employee Protection Act (“CEPA”), the New Jersey Law Against

Discrimination (“LAD”), and 42 U.S.C. § 1983 and the First Amendment to the United

States Constitution against Defendants Township of Irvington, Irvington Police

Department, Chief of Police Michael Chase, Police Director Joseph Santiago, and Police

Lieutenant Jamie Oliveira (“Appellees”). We will affirm.

                                                             I.

           Young was a lieutenant in the Irvington Police Department when his employment

was terminated on October 19, 2010. According to Young, “Plaintiff’s termination was

the culmination of a three-year campaign of unfair treatment and retaliation which began

after Plaintiff submitted a written complaint in the winter of 2007 to Internal Affairs

regarding Defendant Michael Chase, who was the Chief of Police and Plaintiff’s

supervisor.” (Appellant’s Brief at 4.)


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

                                                             2
       Young took issue with Chase’s alleged improper sexual relationships with

subordinates. According to his complaint, he submitted “a written complaint to

defendant, Director [Michael] Damiano, Internal Affairs and his attorney that he believed

that one of the reasons that defendant, Michael Chase was subjecting him to disciplinary

action for false allegations by Officer Whiting, was because defendant, Chief Michael

Chase maintained a romantic relationship with Officer Crawford Whiting’s sister.”

(A115.) Young asserts that Whiting’s sister was an employee of the Irvington Police

Department. Because of this past relationship, Chase “was showing unethical favor” to

Whiting to the detriment of Young. (Id.) Furthermore, Young “wrote about another

female officer (then Officer Monique Smith) a fairly new officer who went away with

defendant, Michael Chase on an Island vacation and upon immediately returning, was

promptly promoted to a police detective.” (A119-A120).

       On March 14, 2010, Sergeant Steward Townsend informed Young, who was the

desk supervisor on duty, that he had observed Officer Claude Maxwell sleeping on two

occasions while guarding downed electrical lines. Maxwell told Townsend that he had

taken a sleep aid shortly before reporting for duty. Young subsequently questioned

Maxwell, placed him on sick leave, instructed Townsend to initiate a disciplinary

investigation, drafted a memorandum for Oliveira explaining that an investigation had

been commenced, and notified Internal Affairs that he had relieved Maxwell “due to him

saying that he was tired and that he attributed that fatigue to an over the counter

medication.” (A91.) “[P]laintiff did not believe Officer Maxwell should be subjected to


                                              3
a reasonable suspicion drug test because there was no evidence that Officer Maxwell was

using or abusing any drugs” (e.g., he did not appear lethargic, agitated, or unsteady, and

Townsend likewise indicated that he saw nothing unusual about Maxwell’s behavior).

(A93.) On April 14, 2010, Young “was brought up on 8 departmental disciplinary

charges” regarding this incident. (A91.) Santiago presided over a departmental hearing,

which ultimately resulted in Young’s termination.

       Young filed a pro se complaint in the Superior Court of New Jersey, Law Division,

Essex County Vicinage. The case was then removed to the District Court. Young’s

pleading is 300 pages in length, and it includes 614 paragraphs and sixty “counts.”

Young alleged, inter alia, violations of 42 U.S.C. § 1983 and the First, Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution, CEPA, New Jersey public

employee laws, the New Jersey Constitution, and the Consolidated Omnibus Budget

Reconciliation Act (or “COBRA”) as well as claims for civil conspiracy, fraud, and both

intentional and reckless infliction of emotional distress. There were thirty-three named

defendants, including Appellees. On August 31, 2012, the District Court granted the

motions to dismiss filed by, inter alia, the Irvington Police Department, Chase, and

Oliveira. The District Court subsequently entered orders on June 10, 2013, October 22,

2013, and July 7, 2014, which, inter alia, expressly added Santiago and the Township of

Irvington to the August 31, 2012 order. It is undisputed that the District Court has

disposed of all of Young’s claims against all of the defendants. Young is now

represented by counsel.


                                             4
                                              II.

       CEPA prohibits an employer from taking any retaliatory action against an

employee because the employee “[o]bjects to, or refuses to participate in any activity,

policy or practice which the employee reasonably believes . . . is in violation of a law, or a

rule or regulation promulgated pursuant to law.”1 N.J. Stat. Ann. § 34:19-3(c). To state a

CEPA claim, a plaintiff must make a prima facie showing that:

       (1) he or she reasonably believed that his or her employer’s conduct was
       violating a law, rule, or regulation promulgated pursuant to law, or a clear
       mandate of public policy; (2) he or she performed a “whistle-blowing”
       activity described in N.J.S.A. 34:19-3c; (3) an adverse employment action
       was taken against him or her; and (4) a causal connection exists between the
       whistle-blowing activity and the adverse employment action.

Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 2005) (quoting Dzwonar v.

McDevitt, 828 A.2d 893, 900 (N.J. 2003); Kolb v. Burns, 727 A.2d 525, 530 (N.J. App.

Div. 1999)). According to Young, the facts alleged in his complaint set forth a viable

CEPA claim because he reasonably believed that he lacked the requisite reasonable


       1
         The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331
and 1367. We possess appellate jurisdiction under 28 U.S.C. § 1291. We exercise de
novo review over a dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). See, e.g., Phillips v. Cty. of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). This Court must accept all factual allegations in the complaint as true,
construe the pleading in the light most favorable to the plaintiff, and determine whether
the plaintiff may be entitled to relief under any reasonable reading of the complaint. See,
e.g., Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). We, however, are not bound
to accept as true legal conclusions phrased as factual allegations, and the plaintiff must
present more than mere labels, conclusions, or formulaic recitations of the legal elements.
See, e.g., Twombly, 550 U.S. at 555. A pro se litigant’s pleadings must be read liberally.
                                              5
suspicion to order a mandatory drug test for Maxwell, “and that, as a result, ordering

[Maxwell] to submit to a drug test would be in violation of the law,” and “he was

terminated for his refusal to order such a test.” (Appellants’ Brief at 8.)

       CEPA provides employees broad protections; for example, it appears that an

employee “need not actually make a report to anyone, but can simply refrain from acting

and still be protected by CEPA if he is discharged in retaliation for such behavior.”

Young v. Schering Corp., 645 A.2d 1238, 1245 (N.J. App. Div. 1994), aff’d, 660 A.23d

1153 (N.J. 1995). But CEPA “covers only that behavior which constitutes ‘whistle-

blowing’ as defined by the statute.” Id. “‘Whistle-blower acts’ are defined as ‘[f]ederal

and state statutes designed to protect employees from retaliation for a disclosure of an

employer’s misconduct.’” Id. (quoting Black’s Law Dictionary 1596 (6th Ed. 1990))

(emphasis added in Schering).

       Here Young simply does not allege that he performed, or was penalized for,

whistleblowing in connection with any employer misconduct, and this failure prevents

him from making any of the four showings required to state a CEPA claim. It is

uncontested that, in order to subject its employee to a mandatory drug test, the

government employer must possess “reasonable individualized suspicion” that drug-

related activity is taking place and that the employee is involved in that activity. See, e.g.,

Caldwell v. N.J. Dep’t of Corr., 595 A.2d 1118, 1126 (N.J. App. Div. 1991). However,

Young did not allege in his complaint that he was ever asked by his superiors to order a


See, e.g., Holley v. Dep’t of Veterans Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999).
                                              6
drug test. And unlike the plaintiff in Stapleton v. DSW, Inc., 931 F. Supp. 2d 635 (D.N.J.

2013), he failed to allege that he was terminated because of the existence of a policy or

practice that would have, for example, required him to order a police officer to undergo

drug testing even in the absence of reasonable suspicion.2 See, e.g., id. at 639

(concluding that plaintiff who allegedly released customer information because she

reasonably believed it was necessary to protect safety and welfare of child “sufficiently

claims that she was terminated for refusing to participate in DSW’s policy” prohibiting

release of confidential customer information). While Young contends that, without

discovery, “we simply do not know what the Irvington Police Department’s practice was

with respect to drug testing” (Appellant’s Reply Brief at 8), a complaint, in order to

survive a motion to dismiss, must set sufficient factual allegations to state a facially

plausible claim to relief, see, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 677-80 (2009). Young

did not meet this basic requirement.

       Young contends that he alleged facts supporting a LAD claim because his

complaints regarding Chase’s prior sexual relationships with subordinates and the impact

of these relationships on the workplace constituted protected activity under New Jersey’s

anti-discrimination statute. It appears that retaliation against a plaintiff who complains

about a consensual sexual relationship between a supervisor and another employee would


       2
         Young also draws comparisons with the New Jersey Appellate Division opinions
in Maw v. Advanced Clinical Communications, 820 A.2d 105 (N.J. App. Div. 2003),
rev’d, 846 A.2d 604 (N.J. 2004), and Gerard v. Camden County Health Services Center,
792 A.2d 494 (N.J. App. Div. 2002). However, neither decision specifically addressed,
for instance, the “can simply refrain from acting” formulation set forth in Young v.
                                              7
support recovery under LAD if the plaintiff believed in good faith that this relationship

violated the employer’s policy “because it was a form of sex discrimination.” Battaglia v.

United Parcel Serv., Inc., 70 A.3d 602, 621 (N.J. 2013) (citing Roa v. LAFE, 985 A.2d

1225, 1229 (N.J. 2010)). However, “Appellant’s objection was not with regard to the

consensual relationship but to the manner in which this relationship impacted the proper

functioning of the police department” by causing Chase to excuse Whiting’s misconduct.

(Appellant’s 8/20/15 Letter at 3.) Although it may be inappropriate, this sort of

workplace favoritism, even if it negatively affected Young, does not by itself constitute

the kind of discrimination prohibited by this statute. Because he did not actually

complain about “a form of sex discrimination,” Young failed to allege a plausible LAD

claim.

         In order to establish a retaliation claim under the First Amendment, a public

employee must show that, among other things, his or her speech is constitutionally

protected. See, e.g., Flora v. Cty. of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015). A

statement is protected by the First Amendment if: “‘(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.’” Id.

at 175 (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006)).

Young did not speak as a private citizen. In Flora, we concluded that the plaintiff


Schering.
                                               8
plausibly established that he spoke as a citizen (and not as the county’s chief public

defender) by alleging that, among other things, when his speech “‘up the chain of

command’” failed to produce results, he took drastic measures by filing a funding lawsuit

against the county and by reporting that thousands of delinquency adjudications and

consent decrees had not been expunged as the state supreme court had ordered. Flora,

776 F.3d at 180. In contrast, it was part of Young’s ordinary job duties as a lieutenant in

the Irvington Police Department to file an Internal Affairs complaint stating that, inter

alia, Chief of Police Chase showed favoritism to another police officer (who evidently

had accused Young himself of misconduct and was one of Young’s own subordinates)

because of a sexual relationship between the Chief of Police and the officer’s sister. See,

e.g., Hill, 455 F.3d at 242 (concluding that borough manager did not speak as citizen

when relaying complaints about mayor’s harassment and intimidation to borough council

president pursuant to official duties as borough manager). In any event, without more, a

complaint about intradepartmental favoritism falls squarely within the realm of personal

grievances—as opposed to speech implicating a matter of public concern. In fact, it

appears that Young complained about Chase’s relationships as part of his own defense to

a disciplinary action brought against Young himself.

       In the event a complaint fails to state a claim, the plaintiff must be given the

opportunity to amend—unless amendment would be futile. Phillips, 515 F.3d at 245-46.

While the District Court should have specifically ruled on the issue of futility, we

conclude that any error was harmless because amendment would be futile. We have


                                              9
already identified the fatal deficiencies in Young’s complaint, and Young does not

reference any allegations that could be added to correct such deficiencies (indicating

instead that additional information could be uncovered in discovery). After all, Young

filed a 300-page pleading, but he was unable to allege sufficient factual matter to state a

facially plausible claim.3

                                             III.

       For the foregoing reasons, we will affirm the orders of the District Court.




       3
          Because Young has failed to state a claim, we need not address Appellees’
alternative argument that his claims are time-barred.
                                             10
