Opinion
DOCKET NO. A-1644-14T3
07-29-2016
NORTH BERGEN POLICE SERGEANT ENRIQUE MARRERO, Plaintiff-Appellant, v. TOWNSHIP OF NORTH BERGEN, NORTH BERGEN POLICE DEPARTMENT and CHIEF ROBERT DOWD, Defendants-Respondents.
Patrick P. Toscano, Jr., argued the cause for appellant (The Toscano Law Firm, attorneys; Mr. Toscano, on the briefs). John L. Shahdanian, II, argued the cause for respondents Township of North Bergen and North Bergen Police Department (Chasan, Leyner & Lamparello, PC, attorneys; Mr. Shahdanian, of counsel and on the brief; Joseph E. Santanasto, on the brief). Gary Potters argued the cause for respondent Police Chief Robert Dowd (Potters & Della Pietra LLP, attorneys; Mr. Potters, on the brief; Michele L. DeLuca, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and St. John. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-848-14. Patrick P. Toscano, Jr., argued the cause for appellant (The Toscano Law Firm, attorneys; Mr. Toscano, on the briefs). John L. Shahdanian, II, argued the cause for respondents Township of North Bergen and North Bergen Police Department (Chasan, Leyner & Lamparello, PC, attorneys; Mr. Shahdanian, of counsel and on the brief; Joseph E. Santanasto, on the brief). Gary Potters argued the cause for respondent Police Chief Robert Dowd (Potters & Della Pietra LLP, attorneys; Mr. Potters, on the brief; Michele L. DeLuca, on the brief). PER CURIAM
Plaintiff, North Bergen Police Department (NBPD) Sergeant Enrique Marrero, appeals from an order entered by the Law Division dismissing his amended complaint with prejudice for failure to state a claim upon which relief may be granted, pursuant to Rule 4:6-2(e). For the reasons that follow, we affirm.
I.
Marrero is a Sergeant in the NBPD and Robert Dowd is the Chief of Police. From May 2012 to December 2013, plaintiff alleges he was treated unfairly by Dowd, and thus the Township of North Bergen and the NBPD (collectively North Bergen), are liable as a result of Dowd's prejudice against him.
In February 2014, Marrero filed an initial complaint against defendants North Bergen and Dowd, alleging that while working for defendants, he suffered violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8.
Dowd moved to dismiss the complaint, pursuant to Rule 4:6-2(e). North Bergen joined in this application, but did not file a separate motion seeking dismissal on its own behalf. Oral argument was heard and, on July 23, 2014, the court entered a consent order dismissing the LAD claim against Dowd with prejudice, and permitting Marrero to file an amended complaint, affording him the opportunity to add more specificity to the factual allegations of the remaining claims in the complaint.
On July 28, 2014, Marrero filed an amended complaint, reiterating the CRA and CEPA claims and pleading two additional causes of action: civil conspiracy as to all defendants and certain other agents/employees of the Township whom continuing discovery may reveal; and intentional infliction of emotional distress (IIED) as to Dowd.
Marrero's complaint contended that he was "subjected to, for no valid, ascertainable, logical or legal reason whatsoever, retaliatory, harassing, abusive, vicious and immoral conduct/acts," and pointed to various incidents over a year and a half where Marrero felt Dowd harassed him in an effort to force him to quit his job.
Marrero asserted that in May 2012, Dowd announced he would be Chief, and stated to Marrero that he lied to the State Attorney General's (AG's) office when he sent thirty-six boxes of documents to them and "got away with it." Dowd allegedly told Marrero that someone told him that Marrero was "talking shit" about him and Marrero should "cut the shit."
Marrero contended he complained to the "mayor and others" about the way Dowd treated him. He alleged that it was Dowd's intention to "take out" Marrero, and the former Chief, William Galvin, knew this, which is why, before he retired, he assigned Marrero to provide security for the mayor.
Marrero alleged that Dowd's conduct was extreme and outrageous, and that the Township knew of the conduct, but did nothing to stop it. Marrero alleged that in November 2012, the Township's attorney took him aside and told him to "stop doing what he was doing" and take the attorney's advice. Marrero also said he worked elections off-duty, but was never compensated for it "at the direction of [Dowd]." Later that month, Marrero alleged he was approached by the mayor and Dowd to "settle . . . a growing issue of tension" and Dowd offered him a position in Internal Affairs, "a 'plum' assignment," which Marrero refused.
On November 29, 2012, after he had in years past escorted the mayor and his secretary, plaintiff was reassigned and placed back in uniform for the "Winterfest" volunteer event after ten years of being in plain clothes; he told the mayor's secretary of the changes to his usual assignment, and she said she would handle it. Dowd later called Marrero and told him he would be assigned to the secretary, but another detective would escort the mayor.
In December, Dowd told Marrero he could no longer take his assigned vehicle to his residence. Marrero alleged he was also told his position in the Department of Mayor's Liaison had been eliminated and to "stop crying to everyone in town."
In January 2013, Marrero was denied funds to update office equipment in the juvenile division, to which he was assigned, and "was falsely told that the denial was due to a lack of money in budget" even though other supervisors' offices were remodeled.
In October, during a Halloween party at the local high school, Marrero was confronted by a security guard about the procedure for vacating students during a pulled fire alarm and Marrero advised the guard to assist, which "the security guard simply did not like." After the security guard's supervisor complained about Marrero's conduct, he was called into Dowd's office and "severely excoriated and humiliated."
Thereafter, Dowd ordered Marrero to go back to a marked patrol unit, with the "worst car in the fleet." In December 2013, instead of escorting the mayor's secretary, Marrero was advised that he would be assigned a fixed post standing by a stage for "Winterfest," and Dowd "replaced [Marrero] in his usual assignment."
On December 4, 2013, Marrero requested a meeting with Dowd, where Marrero alleges Dowd "immediately became irate when [he] suggested that they 'please clear the air.'" Marrero also told Dowd he would not be able to attend "Winterfest," to which "Dowd blew up and directed [Marrero] to 'do whatever you want and get out.'"
Marrero alleges that thereafter, Dowd "directed a full [internal affairs] investigation of [him] regarding an incident that occurred between [them] when they were both off-duty." The incident took place after "Winterfest," at a local restaurant and bar where many of the volunteers and off-duty officers went to socialize after the event. According to the internal affairs' report, a belligerent and likely intoxicated Marrero pushed Dowd and instigated a confrontation, to which Dowd just walked away.
Marrero noted this investigation is still pending. He then claims he was advised that "he should, in essence, plead guilty to the pending IA charges" "[o]f course, . . . at the behest of [Dowd]." Because "[he] knew he would never receive a fair IA investigation or trial, so [his] attorney . . . requested that his IA trial be heard at the State OAL." Marrero contends he was then suspended for fifteen days, "an absurd, draconian and unheard of penalty, even though the matter has yet to be tried."
On October 8, 2014, defendants North Bergen and Dowd filed respective motions to dismiss the amended complaint, pursuant to Rule 4:6-2(e). On November 21, 2014, oral argument was held on the motions to dismiss.
The judge thoroughly reviewed Marrero's claims against defendants starting with the CEPA violation claim. When asked where in the complaint Marrero alleges that he had a reasonable belief that a law was violated, plaintiff's attorney referred the court to the incident where Dowd "violated the State AG's office rules and regulations" when "he lied . . . when he sent 36 boxes of documents to them and got away with it."
The judge asked, "[n]ow show me, though, what law, rule, regulation or public policy was broken . . . . What was . . . being violated by the chief?" The attorney answered, "judge, he lied. He lied to his boss, the AG's office. That's illegal." However, even upon further questioning, plaintiff's attorney could not explain what the actual lie was.
The judge ruled:
As to Element [one], a reasonable belief that the employer's conduct was violating either the law, regulation, public policy, even straining to see that it's been pled
here, I cannot find that even on a motion to dismiss for failure to state a claim that it's been pled.
The reference to — the first argument . . . that the chief was bragging or stating that he lied to the AG about something. Whether he lied to the AG about something of importance, whether he lied to the AG about nonsense, whatever, there's no identification as to what it is. So the abstract notion that the chief lied to the AG, that standing alone with the plaintiff not being able to plead what that was about is not sufficient to establish a reasonable belief.
[Emphasis added].
Next, the judge sought to find support for the second element of a CEPA claim from plaintiff's attorney. The attorney answered that Marrero "blew the whistle to numerous people." When asked for proof in the complaint, the attorney pointed to a paragraph that generally stated "on several occasions and pursuant to CEPA rights, the plaintiff properly complained to the mayor and others on more than one occasion about the unfair, illegal fashion in which [he] was treated." Further, the attorney referenced Exhibit A, a text message to "Mayor" from Marrero saying he has been verbally abused and mistreated. The attorney went on to recite the entire complaint as "proof" of whistleblowing conduct indicating "[Marrero] followed CEPA to a tee."
The judge recognized:
I don't see even for purposes of pleading whistleblowing regarding the violation of rule, regulation or public policy, whistleblowing regarding the chief's lying to the [AG] and the 36 boxes of stuff. That was the rule — that was one of the rules and regulations that was being violated.
While I see there's been a lot of back and forth and bickering between the two . . . I don't see a connection between that or the plaintiff's position that an internal affairs investigation against him was improper . . . .
The whistleblowing has to relate to the rule, regulation, statute or public policy that was being violated. The only whistleblowing is that the plaintiff is telling other people he doesn't like what the chief is doing to him . . . So Element [two] has not been satisfied.
In looking at the third element of a CEPA claim, the judge ruled, "for purposes of pleading, I'll accept that the plaintiff has pled that . . . ." Next, in examining the fourth element of CEPA, "a causal connection between the whistleblowing activity and the adverse employment action," the judge found that, "I've read several times the entire complaint . . . it doesn't even plead a causal connection between the whistleblowing which was not whistleblowing. It's the bickering back and forth between the chief and [Marrero] . . . ."
Ultimately, the judge dismissed the CEPA claims as against all defendants, concluding:
So as to the CEPA action against both defendants, it hasn't even been pled although I've been straining to see it. It has not been pled with enough of a factual basis to sustain [the complaint.] So the CEPA counts as to both defendants are dismissed.
Next, the judge examined the sufficiency of the CRA claim, asking plaintiff's attorney "what constitutional right was being violated by the chief . . . ." When told that in the complaint there is "a clearly pled [CRA] violation," the judge responds, "here's the problem with the complaint. It runs on and on, a lot of what's in there is very subjective, it's commentary."
In dismissing Marrero's CRA claim, he ruled:
I'm going to dismiss the [CRA] because other than the conclusionary pleading about a [F]irst [A]mendment right, as best I can in straining to find something to support the plaintiff's claim, he's complaining that his complaints about his mistreatment by [Dowd] reached [Dowd] and because of that he was retaliated against . . . it doesn't show that the speech . . . that the plaintiff was uttering was anything other than his dissatisfaction with things that [Dowd] was doing to him. This is not anything of public concern.
This is just his personal issues with [Dowd], but nothing of public concern and, therefore, there's been no violation . . . all this is just personal griping . . . . Nothing that matters to a matter of public concern. So the [CRA] action as to both defendants is dismissed even bearing in mind that this is a — not a summary judgment motion, but only one that goes to the pleading.
[Emphasis added].
Next, the judge addressed the civil conspiracy claims. After the judge "[gave] the plaintiff an opportunity to show [him] where in the complaint there's an allegation as to who the conspirators were and what it is that they conspired to do," the attorney responded he had nothing to add. Thereafter, in dismissing the civil conspiracy claim, the judge reasoned, "it's not . . . pled sufficiently to indicate that two people conspired to do a certain unlawful act or were using unlawful means to accomplish a lawful act . . . whatever factual allegations have to be made . . . have not been . . . . So that count is dismissed."
Lastly, the court addressed the sufficiency of the IIED claim. Plaintiff's attorney indicated he would rely on the complaint, with nothing further to offer in support of the claim. Finding no factual allegation of outrageous or extreme conduct, the judge dismissed the IIED claim because "it's not pled with sufficiency."
After the oral argument, on the same date, orders were entered granting defendants' motions and dismissing Marrero's amended complaint in its entirety, with prejudice. This appeal followed.
II.
Marrero argues that the judge improperly dismissed his complaint, as there was sufficient factual support for each of the four causes of action to warrant denial of defendants' Rule 4:6-2(e) motion.
In an appeal from the dismissal of a complaint under Rule 4:6-2(e), we review the complaint de novo, applying the same standard as the motion court. Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010), certif. denied, 205 N.J. 317 (2011).
Pursuant to Rule 4:6-2(e), a defendant may bring a motion to dismiss for:
failure to state a claim upon which relief can be granted . . . . If a motion is made raising any of these defenses it shall be made before pleading if a further pleading is to be made.
The complaint must allege sufficient facts to form the basis for a claim and must fairly advise the adverse party of the claims raised and pertinent issues. R. 4:5-2; Kakstys v. Stevens, 442 N.J. Super. 501, 508 (Ch. Div. 2015). Though the factual allegations set forth in the complaint are accepted as true for the purposes of this inquiry, the motion "may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites must be apparent from the complaint itself." Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div.), certif. denied, 176 N.J. 278 (2003). Dismissal is appropriate where the complaint's "'factual allegations are palpably insufficient to support a claim upon which relief can be granted.'" Borough of Seaside Park v. Comm'r of N.J. Dep't of Educ., 432 N.J. Super. 167, 200 (App. Div.) (quoting Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987)), certif. denied, 216 N.J. 367 (2013).
Marrero argues that the trial court improperly treated defendants' Rule 4:6-2(e) dismissal motions as motions for summary judgment and repeatedly asserts that the court failed to focus on the proper legal standard governing such motions to dismiss. Moreover, he asserts the judge held him to a greater burden than the law requires at the pleading stage and made inappropriate factual findings. These contentions, however, are unsupported by the record.
Apart from Exhibit A to Marrero's amended complaint, nothing outside of the pleadings was presented by either party nor considered by the trial court and, thus, the motions to dismiss were not treated as motions for summary judgment. The judge made it clear he was deciding defendants' motions on that basis, emphasizing "[t]his is the defendants' motions to dismiss the plaintiff's complaint for failure to state a claim upon which relief can be granted. It's not a summary judgment motion."
Although the standard that applies to a review of complaints in context of a motion to dismiss is an indulgent one, see Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 771-72 (1989), a complaint must fairly advise the adverse party of the claims and issues to be raised at trial. Kakstys, supra, 442 N.J. Super. at 508.
Here, even after being given the opportunity to amend, plaintiff's complaint does not fairly apprise Dowd or North Bergen of the basis for any of the claims asserted. Instead, the complaint contains bare assertions and conclusory statements about Dowd and alleged conduct that Marrero found unfair. These bare assertions are insufficient to state a claim under the law.
While a plaintiff may bolster a cause of action through discovery, one may not file a conclusory complaint to find out if such a claim exists. Camden Cty. Energy Recovery Assocs., L.P. v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999) ("Discovery is intended to lead to facts supporting or opposing an asserted legal theory; it is not designed to lead to formulation of a legal theory"). It follows that "the legal requisites for plaintiff's claim must be apparent from the complaint itself." Edwards v. Prudential Prop. and Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003).
The motion judge properly dismissed Marrero's claims. He exhaustively reviewed and analyzed the "facts" contained in the amended complaint and deemed them to be deficient as a matter of law. Even the most generous reading of the allegations did not reveal any factual or legal basis entitling Marrero to relief against defendants. The litany of allegations consisted of Marrero's subjective feelings and personal grievances as opposed to actual facts. Thus, dismissal was warranted.
A. CEPA Claim
CEPA provides protection to "whistle blowers" against work-related retaliation resulting from the reporting of an employer's illegal activity. See Klein v. Univ. of Med. and Dentistry of N.J., 377 N.J. Super. 28, 38-39 (App. Div. 2005). To state a claim under CEPA, a plaintiff must plead: (1) a reasonable belief that his employer's conduct violated either a law, rule, regulation, or a clear mandate of public policy; (2) he performed a whistleblowing activity as described in N.J.S.A. 34:19-3c; (3) an adverse employment action was taken against him; and (4) a causal connection existed between his whistleblowing activity and the adverse employment action. Klein, supra, 377 N.J. Super. at 38 (citation omitted).
Nowhere in the amended complaint does Marrero identify the law, rule, regulation, or public policy that was violated. Instead, he points to an incident in which he alleges Dowd said he lied to the AG (his boss), which is "illegal." However, he has no support of what rule this lie may have violated because there is no further information. As the judge noted, there was no indication whether Dowd lied about a matter of consequence or about something inconsequential, and "the abstract notion . . . standing alone with the plaintiff not being able to plead what [the lie] was about is not sufficient to establish a reasonable belief."
Next, Marrero asserts that Dowd may have been improperly responsible for generating an internal affairs complaint against him, again, with no support. The judge found, "the fact that . . . the plaintiff disagrees with an internal investigations complaint that was somehow made against him which may or may not have been the doing of the chief, that alone is not enough . . . ." Marrero's failure to identify a law, rule, regulation or public policy he reasonably believed was violated by Dowd served as a sufficient basis to find he did not satisfy the first element of a CEPA claim.
CEPA defines whistleblowing activity, in pertinent part, as follows:
Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer, or another employer, with whom there is a business relationship, that the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . . or
(2) is fraudulent or criminal . . .
. . . .
Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes:
(1) is in violation of a law, or a rule or regulation promulgated pursuant to law . . .;
(2) is fraudulent or criminal, . . .; or
(3) is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment.
[N.J.S.A. 34:19-3(a), (c)].
Marrero alleges that he complained to various people, including the mayor and "others," about the unfair and illegal fashion in which he was treated by Dowd. He does not, however, state who the "others" were, when he made such complaints, what the complaints consisted of, or the basis for the assertion of "illegal fashion." Plaintiff's complaint must set forth a factual predicate to inform defendants that a complaint was made to a supervisor or public body pertaining to his reasonable belief that the party's conduct violated a law, rule or regulation. (Emphasis added). The motion judge recognized there was no connection between Marrero's "whistleblowing" and the Dowd's alleged violation of law; instead it was "plaintiff . . . telling other people he doesn't like what the chief is doing to him . . . ." None of Marrero's complaints involved public ramifications, but rather consisted of personal disputes between him and Dowd. Thus, there was not a sufficient factual basis to find he satisfied the second element of a CEPA claim.
The court accepted Marrero's claims that he suffered adverse employment action for the purposes of the pleading. As to the fourth element of a CEPA claim, plaintiff attempts to link a series of events over the course of two years to Dowd without any facts showing causation. The motion judge found no causal connection between "the whistleblowing which was not whistleblowing," but characterizes the situation as "bickering back and forth."
Plaintiff attempts to save this claim by suggesting that discovery will create a cause of action; however, because the factual allegations are "palpably insufficient," the CEPA claim was properly dismissed. Borough of Seaside Park, supra, 432 N.J. Super. at 200.
B. CRA Claim
The CRA, N.J.S.A. 10:6-2(c), provides in pertinent part:
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 . . . ."The elements of a substantive due process claim under the [CRA] are the same as those under [42 U.S.C.A.] § 1983 . . . [i.e.] the first task . . . is to identify the state actor, the person acting under color of law, that caused the alleged deprivation." Filigueiras v. Newark Pub. Schs., 426 N.J. Super. 449, 468 (App. Div. 2012) (citations and quotations omitted). "The second task is to identify a right, privilege or immunity secured to the claimant by the Constitution or other federal laws of the United States." Ibid. (citation and quotation omitted). Plaintiff is required to set forth specific conduct by the state actor demonstrating the constitutional violation. See Henschke v. Borough of Clayton, 251 N.J. Super. 393, 401 (App. Div. 1991).
Marrero alleges that his CRA claim is based upon a depravation of his First Amendment right to freedom of speech. The First Amendment protects statements by public employees on matters of public concern. Pickering v. Bd. of Educ. of Twp. of High Sch. Dist. 205, 391 U.S. 563, 573, 88 S. Ct. 1731, 1737, 20 L. Ed. 2d 811, 820 (1968). However, the First Amendment does not empower employees to "constitutionalize [their] employee grievance." Connick v. Myers, 461 U.S. 138, 154, 103 S. Ct. 1684, 1694, 75 L. Ed. 2d 708, 725 (1983).
Here, the judge correctly determined that Marrero's complaint, taken as true, did not allege that he engaged in protected conduct. The conversations cited in Marrero's complaint amounted to nothing more than employee grievances and did not constitute protected speech on a matter of public concern. As the judge found, the allegations are better characterized as "personal griping" and did not show that Marrero "was uttering anything other than his dissatisfaction with the things [Dowd] was doing to him." Thus, the dismissal of this claim was proper.
C. Civil Conspiracy Claim
A civil conspiracy is "a combination of two or more persons acting in concert to commit an unlawful act, or . . . a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005). A "single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for the consequences," must be shown to establish a claim. Morgan v. Union Cty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993) (citation and quotation omitted).
Marrero's complaint provides defendants with no information as to what the objective of the alleged conspiracy is, who the co-conspirators are, what the plan was and any actions taken in furtherance of the plan, nor when the conspiracy took place. Defendants would be unable to respond in any meaningful way to this claim.
There is nothing in the amended complaint that suggests that Dowd acted in concert to inflict a wrong against Marrero. Rather, Marrero's complaint sets forth allegations which indicate he was dissatisfied with his job and some individuals with whom he worked, and then summarily concludes that a conspiracy exists. As the judge found, this is an insufficient factual basis to satisfy conspiracy pleading requirements.
D. IIED Claim
To sustain an IIED claim, a plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause, and severe distress. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 587 (2009) (citations and quotations omitted). "The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Taylor v. Metzger, 152 N.J. 490, 509 (1998) (citation and quotation omitted). "[L]iability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Ibid. (citation and quotation omitted).
It is "extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary for recovery for the tort of [IIED]." Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 24 (App. Div. 2001) (citation and quotation omitted). Moreover, mere employee discipline, even termination, is not sufficiently extreme or outrageous conduct to serve as the basis for IIED. Ibid.
Marrero's complaint is rife with phrases like "extreme and outrageous," "atrocious and utterly intolerable in a civilized community," and "absurd, draconian and unheard of." However, none of the conduct alleged rises to the level of outrageousness required to sustain a claim of IIED. Plaintiff's characterizations of Dowd's actions constituted legal conclusions, as opposed to actual facts. Even taking the allegations as true, there are no assertions of extreme and outrageous conduct by Dowd which would overcome the threshold for a cognizable claim of IIED. Reassignment, denial of a fund request allocation, and disciplinary charges for a bar fight do not rise to the level of extreme and outrageous conduct required for an IIED claim; thus, the dismissal of this claim was proper.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION