By Lea Kahn, Staff Writer
Citing legal technicalities, the attorney who is representing Lawrence Township and three township officials has filed a motion in U.S. District Court that seeks to dismiss a federal lawsuit filed against them by seven police officers.
Attorney Peter Berk filed the motion to dismiss the lawsuit May 25 “with prejudice” which means it cannot be filed again. He is defending Lawrence Township, Municipal Manager Richard Krawczun, Chief of Police Daniel Posluszny and Deputy Chief of Police Joseph Prettyman.
The civil lawsuit, which was filed in U.S. District Court in April, alleges that the seven police officers Sgt. Joseph Caloiaro and Officers Marc Caponi, Andrew Lee, Andres Mejia, Hector Nieves, Steven Simon and Scott Stein have been punished for union activities in violation of the U.S. Constitution.
The First Amendment guarantees citizens’ ability to engage in union activity, according to the lawsuit filed by the police officers all of whom are active members of the Fraternal Order of Police Lodge 209 or the Policemen’s Benevolent Association Local 119. The two unions represent Lawrence police officers.
The lawsuit also claims the officers’ civil rights were violated under the New Jersey Constitution, which guarantees the right of free speech and freedom of association that also protects citizens from retaliation for the exercise of those rights.
In their lawsuit, the police officers claim either that they were given undesirable crew assignments, denied a request to move a block of vacation time, accused of making a fraudulent claim for workman’s compensation, denied the opportunity to attend union meetings, or that multiple internal affairs investigations were launched against an officer.
Some of the officers claimed they were served with preliminary notices of disciplinary action for incidents that occurred several months earlier or that were dismissed, and that two officers were passed over for promotion to sergeant in favor of candidates who had ranked lower than them on the sergeant’s test.
But Mr. Berk has asked for the lawsuit to be dismissed on several grounds outlined in the legal brief that he filed with the court.
Mr. Berk wrote that the complaint should be dismissed because the police officers did not state a claim “upon which relief may be granted.” Federal court procedure requires a complaint to contain “a short and plain statement of the claim showing that the (person filing the lawsuit) is entitled to relief.” Failure to do so is grounds for dismissal, he wrote.
Citing case law, Mr. Berk wrote that “the pleading standard demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The police officers did not state sufficient facts and neglected to plead the alleged protected activity. They also failed to demonstrate any “causal connection” between the alleged protected activity and claims of retaliation, he wrote.
He also wrote that Mr. Krawczun, Chief Posluszny and Deputy Chief Prettyman would have had to be personally involved in the alleged wrongdoing and the seven police officers did not provide specific facts as to how the three defendants violated their constitutional rights. “Significantly, Mr. Krawczun is not even mentioned in the complaint,” he wrote.
Citing legal precedent, Mr. Berk wrote that for the police officers to establish a First Amendment retaliation claim, “they must demonstrate that they participated in an activity which is protected by the First Amendment and that the ‘protected activity was a substantial factor in the alleged retaliatory action.’”
According to case law, union activity constitutes engaging in collective bargaining for employment contracts, participation in union elections and participation in labor union activities. Mr. Berk wrote that the complaint should be dismissed because “plaintiffs failed to even allege any union activity in which they participated and for which they were allegedly retaliated.”
”Merely being a member of a union does not mean that every action a person takes is protected by his right to free association . . . Further, ‘courts have required that the nature of the retaliatory acts committed by a public employer be more than trivial,’” he wrote.
The complaint hinges on allegations that township officials retaliated against the police officers and their involvement in union activities by skipping promotions, conducting internal affairs investigations and refusing to allow some police officers to switch vacation time, Mr. Berk wrote.
”Most of the alleged acts of retaliation are so minor that they cannot possibly constitute an actionable constitutional violation,” Mr. Berk wrote. He added that the plaintiffs did not show proof that township officials’ decision to promote other candidates to sergeant was retaliatory, and the lawsuit should be dismissed.
Addressing the claims made by Officers Lee, Mejia and Nieves Officer Lee for actions in connection with his role as FOP president, and Officers Mejia and Nieves for filing grievances over denials to switch vacation time and to attend training classes Mr. Berk wrote that the lawsuit should be dismissed as it pertains to the three officers.
Mr. Berk wrote that the court should dismiss the complaint as it pertains to the three police officers “because (they) have charges pending before the state Public Employment Relations Commission addressing the same alleged protected activity that is now before this court.”

