Not for Publication

JOHN MICHAEL VAZQUEZ, District Judge.

The present matter comes before the Court on Defendants'1 motion to dismiss the Complaint for failure to state a claim. Plaintiff opposes the motion.2 This case concerns allegations of a deprivation of Plaintiff's constitutional rights, racial discrimination, defamation, and conspiracy in connection with the release of a document containing, as it pertains to Plaintiff, a racial slur. This motion was decided without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. The Court has considered the parties' submissions and grants Defendants' motion.

I. INTRODUCTION

In 2010, Plaintiff was involved in a motor vehicle accident in Jersey City (or the "City"). As a result, a Jersey City Police Department ("JCPD") accident report (the "Report") was created. The Report contained vulgar and derogatory terms, including referring to Plaintiff with a contemptible racial slur. Plaintiff is, and was at the time of the accident, a messenger for the City. The Report also attributed vulgar and derogatory language to a police officer involved in the accident. The Report, moreover, contained profanity and a pejorative description of the lead investigator. As far as the Court can determine, the Report maligned at least four persons: Plaintiff, the officer involved in the accident, a woman driver also involved in the accident, and the lead investigator of the accident. The officer whose name appears as the author of the Report strenuously denied any involvement in drafting the inappropriate language, noting that the signature was not his and that a variety of persons had access to the computer from which the Report was generated.

In 2014, the officer involved in the crash filed a grievance over the contents of the Report. As a result, EEO launched a confidential investigation and interviewed several persons, including Plaintiff. The City also submitted the report to outside law enforcement agencies, hoping to find forensic evidence that would reveal the culprit. The Report, however, was also published on a non-city website. How the Report fell into the hands of the person or entity who posted it online is not clear, although Plaintiff claims that it was disclosed in response to an Open Public Records Act ("OPRA") request.

Plaintiff thereafter instituted the current action against the officer whose name appears on the report, Jersey City, the City's Department of Public Safety and its police department, Jersey City's Office of Equal Opportunity ("EEO"), the mayor, the public safety director, and two representatives of EEO. Plaintiff's Complaint contains numerous deficiencies. Plaintiff conflates the words derogatory, discriminatory, and defamatory, seemingly using them in an interchangeable (and not entirely consistent) fashion. Plaintiff also mistakes proper policy as proof of some nefarious intent. Plaintiff further makes arguments that are inherently contradictory. For example, on the one hand, Plaintiff argues against the EEO confidential investigation while, on the other, he claims that Defendants failed to take corrective and remedial action when they learned of the Report.

Plaintiff has every right to be concerned (indeed, outraged) that the Report was generated in the first place and then later posted on the internet. However, as pled, Plaintiff's Complaint must be dismissed for a myriad of reasons.

II. BAC KGROUND3

Plaintiff is employed by Jersey City as a messenger. Compl. ¶ 20. Plaintiff alleges that on May 27, 2010, while he was working, he was riding in a car driven by JCPD Officer Michael Maietti. They were involved in an automobile accident with another car being driven by a female. Id. 24. After the accident, the Report, formally called a Crash Investigation Report, was generated. Id. ¶ 25. Defendant Sergeant Terrence Crowley is indicated as the author of the Report. The allegedly racially offensive and gender-based discriminatory language in the Report is the basis for this lawsuit. Id. 27.

The "Conclusion and Recommendation" Section of the Report states as follows:

Compl. Ex. B. Plaintiff alleges that on or about June 3, 2010, Crowley gave Maietti the Report. Id. ¶ 26. Subsequently, Maietti gave the Report to his commanding officer, Captain Joseph Ascolese. Id. ¶ 28. Crowley then issued a memorandum in which he claimed that the Report was a fake, that the signature on the Report was not his, that he authored a legitimate (and noncontroversial) report, and that his report and the Report were generated from an "unsecured" office computer. Id. 30. On December 30, 2014, over four years later, Maietti lodged a formal grievance against Crowley with EEO regarding the Report. Id. ¶ 33. After the Report was created, but prior to Plaintiff's knowledge of it, the EEO/Affirmative Action Liaison Officer ("EEO/AA Officer"), Jenna Abuan, began an investigation. Id. ¶ 34. The investigation was "handled on a confidential basis." Id.

Plaintiff alleges that during the investigation, Defendants released the Report to other law enforcement agencies. Id. ¶ 41. Specifically, in furtherance of the investigation, Defendants sent the Report for laboratory testing and handwriting analysis. Id. ¶ 40. Additionally, Plaintiff asserts that the Report was released pursuant to OPRA to private citizens and an interne blogger. Id. IN 41-42. On March 24, 2016, Plaintiff became aware of the Report when it was published on the website realjerseycity.com. Id. ¶ 43.

Following the public release of the Report, Plaintiff alleges that he "received (and continues to receive) comments and questions from family members, friends, co-workers, acquaintances and others regarding the defamatory and racially discriminatory report." Id. ¶ 44. Other than the contents of the Report, Plaintiff does not allege that he has been subject to any additional derogatory or discriminatory comments or actions. There is also no indication that Plaintiff's job position has changed in any manner since the accident or since the public posting of the Report. Nonetheless, Plaintiff alleges that he has "continued to work in a hostile work environment." Id. ¶ 46.

III. PROCEDURAL HISTORY

Plaintiff filed his Complaint on August 22, 2016 alleging eight causes of action: (1) Hostile Work Environment Violation, 42 U.S.C. § 1981; (2) Fourteenth Amendment Violation, 42 U.S.C. § 1983; (3) Monell Liability (Fourteenth Amendment), 42 U.S.C. § 1983; (4) Conspiracy to Interfere with Civil Rights, 42 U.S.C. §§ 1985, 1986; (5) New Jersey Civil Rights Act ("NJCRA"), N.J.S.A. 10:6-2, et seq.; (6) New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5.1, et seq.; (7) Common Law Defamation; and (8) Civil Conspiracy.4 In lieu of answering, Defendants filed their motion to dismiss on October 12, 2016. Def. Br. Plaintiff opposes this motion. Pl. Opp'n.

IV. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a defendant to move to dismiss a count for "failure to state a claim upon which relief can be granted[.]" To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint is plausible on its face when there is enough factual content "that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the plausibility standard "does not impose a probability requirement, it does require a pleading to show more than a sheer possibility that a defendant has acted unlawfully." Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). As a result, a plaintiff must "allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of [his] claims." Id. at 789.

In evaluating the sufficiency of a complaint, a district court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Phillips v. Cry. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). A court, however, is "not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations." Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears that no relief could be granted under any set of facts consistent with the allegations, a court may dismiss the complaint for failure to state a claim. DeFazio v. Leading Edge Recovery Sols., LLC, No. 10-2945, 2010 WL 5146765, at *1 (D.N.J. Dec. 13, 2010).

V. DISCUSSION

Before addressing the specific counts, the Court notes at the outset that Plaintiff appears to confuse or conflate the contents of the Report in general with the specific, inappropriate statements that relate to him. The Report uses a racial slur in referring to Plaintiff, attributes to him a particular comment (slang language to describe a potential shooting), and refers to Plaintiff as Officer Maietti's "boy." The remaining, objectionable comments concern Officer Maietti, the female driver of the other car, and the accident investigator — not Plaintiff. Plaintiff also misconstrues wholly appropriate conduct, a confidential investigation into the Report and attempts to forensically determine who actually authored the document, with some type of improper action. To the contrary, the Entity Defendants could be accused of malfeasance if they did not investigate the source of the Report upon learning of it.

Hostile Work Environment under Section 1981 (Count One)

Plaintiff's first count alleges a hostile work environment against the Individual Defendants pursuant to 42 U.S.C. § 1981. Compl. TT 48-60. Defendants argue that Section 1981 does not create a private cause of action and therefore should be dismissed. Def. Br. at 24-26. Additionally, Defendants contend that even if there were a valid cause of action under Section 1981, Plaintiff's Complaint fails to plausibly plead a hostile work environment claim. Id. at 26-28. Plaintiff responds by arguing that his Section 1981 violations "are subsumed within the [d]ue [p]rocess and [e]qual [p]rotection [c]ounts." Pl. Opp'n at 30. Plaintiff also argues that he has sufficiently pled each element for a hostile work environment claim. Id. at 30-32.

At the outset, Plaintiff provides no support to demonstrate that Section 1981 creates a private cause of action, and the Court has found none. Since "no implied private right of action exists against state actors under 42 U.S.C. § 1981," Plaintiff is required to plead his claim pursuant to Section 1983. McGovern v. City of Phila., 554 F.3d 114, 122 (3d Cir. 2009); see also Morris v. United States, No. 12-2926, 2014 WL 1272104, at *6 (D.N.J. Mar. 27, 2014) (finding that "[S]ection 1983 . . . provides the remedy for violations of [S]ection 1981 by state actors.") (citing McGovern, 554 F.3d at 117). Thus, Count I is dismissed because Plaintiff cannot proceed pursuant to Section 1981.

Moreover, even assuming that Counts II and III are "subsumed" in Plaintiff's Section 1981 (which would have to be brought pursuant to Section 1983) claim, as Plaintiff argues, he nonetheless fails to state a claim for a hostile work environment. To establish a prima facie claim for a hostile work environment under Section 1981,5 a plaintiff must show that:

Verdin v. Weeks Marine Inc., 124 F. App'x 92, 95 (3d Cir. 2005) (citing Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999)). To determine whether harassment is sufficiently "pervasive and regular," courts invoke a "totality of the circumstances" analysis and consider the following factors: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). In other words, "to be actionable, `the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive environment.' Grassmyer v. Shred-It USA, Inc., 392 F. App'x 18, 30 (3d Cir. 2010) (quoting Weston v. Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2000)).

"The sine qua non of a hostile work environment claim is a workplace ... permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Fitzgerald v. Shore Mem'l Hosp., 92 F.Supp.3d 214, 240 (D.N.J. 2015) (internal quotations marks and citation omitted). "Isolated incidents generally will not suffice to establish a hostile work environment unless they are extraordinarily severe." Kaytor v. Elec. Boat Corp., 609 F.3d 537, 547 (2d Cir. 2010); Greer v. Mondelez Glob., Inc., 590 F. App'x 170, 173 (3d Cir. 2014) ("Simple teasing, offhand comments, and isolated incidents do not amount to discriminatory changes in the terms and conditions of employment.") (internal quotation marks omitted). Thus, severe or pervasive harassment is distinguished from the "mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee." Nuness v. Simon & Schuster, Inc., 221 F.Supp.3d 596, 601 (D.N.J. 2016) (internal quotation marks omitted).

Here, Plaintiff alleges that he was informed of the Report on March 24, 2016, nearly six years after it was reportedly written. Compl. ¶ 43. Up to that point, Plaintiff was not aware of the Report or its contents. Plaintiff goes on to state that "[t]he defamatory and racially discriminatory Crash Review Evaluation report [] is so severe and pervasive that a reasonable person in plaintiff Harley's position would find his work environment to be hostile and abusive." Id. 1155. He further alleges that "[f]rom March 2, 2016 to the present, Plaintiff Harley continues to work in a hostile work environment." Id. 1145.

Thus, Plaintiff's only non-conclusory allegation of a hostile work environment is the Report. That, on its own, is not sufficient to show that the alleged harassment was so "severe and pervasive" as to "alter the conditions of [Plaintiff's] employment . . ." Harris, 510 U.S. at 21. Pursuant to the Complaint, it appears this was an isolated incident rather than a continuing issue of harassment. See Exantus v. Harbor Bar & Brasserie Rest., 386 Fed. Appx. 352, 354 (3d Cir. 2010) (finding that defendant's use of the epithet "Haitian F***" several times was "indeed unpalatable and inappropriate," but was not "severe or pervasive"); Woodard v. PHB Die Casting, 255 F. App'x 608, 610 (3d Cir. 2007) (finding that a single incident of "KKK-related graffiti" and the allegation that it was not promptly removed, was insufficient at the summary judgment stage "for a trier of fact to conclude that discriminatory conduct in the workplace amounted to a change in the terms or conditions of [plaintiff's] employment."); Lawrence v. F.C. Kerbeck & Sons, 134 F. App'x 570, 572 (3d Cir. 2005) (holding that while defendant's racial remark was "disrespectful and inexcusable," Plaintiff could not show a hostile work environment "based on this one isolated incident"). Moreover, it appears that Plaintiff alleges that the publication of the Report was done by a private citizen rather than by any of the named Defendants. Plaintiff does not plausibly allege that any of the Defendants intentionally caused the Report to be published online.

Moreover, Plaintiff was not even aware of the Report for nearly six years, and there is no allegation that Plaintiff suffered from a hostile work environment in the intervening time period. Once Officer Maietti filed a complaint concerning the Report, EEO investigated the matter. Since the investigation began and since Plaintiff became aware of the Report, Plaintiff's only allegation of harassment or hostility at work is the conclusory statement that he "continues to work in a hostile work environment." Compl. ¶ 45. Plaintiff, however, pleads no facts to support this conclusion. For example, while Plaintiff alleges that others have contacted him since the Report was published online, he does not indicate that such contacts have been hostile, offensive, or racially insensitive. In addition, Plaintiff claims that persons who have contacted him concerning the Report include family, friends, and acquaintances; Plaintiff has not alleged that these persons are part of his working environment. Plaintiff's allegations are not sufficient to plausibly plead a claim for a hostile work environment. Count I is dismissed without prejudice.

Hostile Work Environment pursuant to the NJLAD (Count VI)

In Count VI, Plaintiff brings an NJLAD clam against all Defendants, alleging that Defendants are liable "for workplace harassment by way of invidious racial discrimination that created a hostile work environment for Plaintiff" Compl. ¶ 111. Plaintiff also alleges that "the circulation and publication of the Crash Review Evaluation report alters the conditions of [his] employment and makes his working environment [] hostile or abusive." Id. ¶ 115.

Defendants argue that Plaintiff has not adequately pled his NJLAD claim against Jersey City6 because he has not "pled any facts to support a hostile work environment claim, or any specific discrimination in the workplace." Def. Br. at 30. Defendants also argue that the Individual Defendants cannot be liable since there can be no "aiding and abetting" liability when the claims against the employer fail. Def. Br. at 30-33. Additionally, Defendants contend that aiding and abetting liability requires "active and purposeful conduct," which Plaintiff has failed to allege. Id. Plaintiff responds by reiterating his arguments: that the creation, publication, and "cover-up" of the Report created an ongoing and pervasively hostile work environment. Pl. Opp'n at 34-35.

The NJLAD prohibits unlawful employment practices and discrimination by an employer. O'Toole v. Tofittti Brands, Inc., 203 F.Supp.3d 458, 467 (D.N.J. 2016). "New Jersey courts treat hostile work environment claims under the NJLAD the same as the Supreme Court treats hostile work environment actions under Title VII." Sgro v. Bloomberg L.P., 331 F. App'x 932, 941 (3d Cir. 2009). Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (holding that the elements of a hostile work environment claim under NJLAD "closely resemble the first four elements of [a] Title VII hostile work environment claim"). Moreover, as discussed in note 5, supra, hostile work environment claims under Title VII and Section 1981 are reviewed in the same manner. See Verdin, 124 F. App'x at 96 ("[C]ourts utilize the same analysis for the merits of Title VII and Section 1981 claims.").

As discussed in the context of Plaintiff's Section 1981 claim, Plaintiff does not adequately plead a hostile work environment. Fitzgerald, 92 F. Supp. 3d at 240. Accordingly, for the same reasons, Plaintiff's NJLAD claim for hostile work environment is dismissed as to Jersey City. See Sanchez v. SunGard Availability Servs. LP, 362 F. App'x 283, 286 (3d Cir. 2010) (dismissing NJLAD claim for the same reasons as dismissed Title VII claim).

In addition, the LAD, through N.J.S.A. 10:5-12(a), prohibits unlawful employment practices and discrimination by an employer. Tarr v. Ciasulli, 181 N.J. 70, 83 (N.J. 2004). "[I]ndividual liability of a supervisor for acts of discrimination or for creating or maintaining a hostile environment can only arise through the aiding and abetting mechanism." Cicchetti v. Morris Cty. Sheriffs Office, 194 N.J. 563, 594 (N.J. 2008). However, "[t]he NJLAD does not provide for individual liability for aiding and abetting if the employer is not found liable." Tourtellotte v. Eli Lilly & Co., 636 F. App'x 831, 856 (3d Cir. 2016).

N.J.S.A. 10:5-12(e) governs aiding and abetting liability, which dictates that it is unlawful "for any person, whether an employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this act, or to attempt to do so." See Norris v. Securitas Sec. Servs. USA, Inc., No. 10-06809, 2011 WL 3206484, at *3 (D.N.J. July 27, 2011) (citing Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 126 (3d Cir. 1999)). New Jersey courts have broadly interpreted persons subject to aiding and abetting liability. See, e.g., O'Toole, 203 F.Supp.3d 458, 467 (D.N.J. 2016) ("[C]ourts construe the aiding and abetting theory broadly, such that an individual supervisor can aid and abet his own conduct."); DeSantis v. N.J. Transit, 103 F.Supp.3d 583, 591 (D.N.J. 2015) ("New Jersey courts have held that an individual can aid and abet, not only the conduct of another person, but that person's own conduct."); Mann v. Estate of Meyers, 61 F.Supp.3d 508, 529-30 (D.N.J. 2014) (concluding that supervisor was a proper party under the NJLAD because "an individual can be held liable under the aiding and abetting provision even where the individual performed the acts of discrimination himself").7 Nonetheless, "an individual employee can only be found liable of aiding and abetting if actively involved in the discriminatory conduct." Feraro-Bengle v. Randstad N. Am., L.P., No. 03-1650, 2006 WL 2524170, at *12 (D.N.J. Aug. 30, 2006) (internal quotation marks omitted); Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998) (finding that an "employee aids and abets a violation of the [NJ]LAD when he knowingly gives substantial assistance or encouragement to the unlawful conduct of his employer"):

Here, Plaintiff alleges that the Individual Defendants aided and abetted discriminatory employment practices when they "prepared, disseminated, covered up, circulated, released and caused to be published the defamatory and racially discriminatory [Report]." Compl. 122. These claims are conclusory and lack plausible factual support. Moreover, since the Court finds that the Complaint does not set forth plausible allegations as to the employer, the City, the aiding and abetting argument also fails as to the Individual Defendants. Tourtellotte, 636 F. App'x at 856. Therefore, this Count is dismissed as to each of the Individual Defendants.

Section 1983 — Fourteenth Amendment (Counts II & III)

Counts II and III raise violations of the Fourteenth Amendment pursuant to Section 1983: Count II against the Individual Defendants and Count III against the Entity Defendants. Compl. ¶¶ 61-90. Defendants argue that these counts suffer from multiple deficiencies. First, as to Count III, Defendants argue that Plaintiff fails to allege that the Entity Defendants adopted a policy or custom that caused Plaintiff's injuries. Def. Br. at 5-7. Additionally, Defendants argue that Count II must be dismissed because "Plaintiff has not made a single non-conclusory factual assertion that a specific action by any of the Individual Defendants led to the alleged constitutional deprivation." Id. at 7. This includes allegations of supervisory liability; which Defendants allege Plaintiff has not plausibly pled. Id. at 7-10. Also, as to Count II, Defendants argue that the Individual Defendants are entitled to the protection of qualified immunity. Id. at 10-11. With respect to Counts II and III, Defendants further argue that Plaintiff fails to plausibly plead either an equal protection or a due process claim. Id. at 11-17.

1) Monell Liability (Count III)

"A local government may be sued under § 1983 only for acts implementing an official policy, practice or custom." Losch v. Borough of Parkesburg, Pa., 736 F.2d 903, 910 (3d Cir. 1984); Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007) (observing that a plaintiff can establish municipal liability under Section 1983 through either an official policy or custom). "This type of municipal liability claim is generally referred to as a Monell claim, based on Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978)." Jutrowski v. Twp. of Riverdale, No. 13-7351, 2017 WL 1395484, at *6 (D.N.J. Apr. 17, 2017). The Monell Doctrine provides "that liability may not be proven under the respondeat superior doctrine, but must be founded upon evidence that the government unit itself supported a violation of constitutional rights." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). Thus, "municipal liability attaches only when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. (internal quotation marks omitted).

A plaintiff shows that an official policy existed "when a `decisionmaker possess[ing] final authority to establish municipal policy with respect to the action' issues an official proclamation, policy, or edict." Id. (quoting Bielevicz, 915 F.2d at 850). On the other hand, custom is established by "showing that a given course of conduct, although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law." Id. at 156. Ultimately, to plausibly plead Monell liability, "[a] plaintiff must identify the challenged policy, attribute it to the [municipality] itself, and show a causal link between execution of the policy and the injury suffered." Kranson v. Valley Crest Nursing Home, 755 F.2d 46, 51 (3d Cir. 1985) (internal citation and quotation marks omitted).

In Count III, Plaintiff brings a Fourteenth Amendment claim against three municipal Defendants: Jersey City, the EEO, and the JCPD.8 Compl. 79-90. Because the City is a municipality, this Count is subject to the Monell Doctrine.

Plaintiff fails to plausibly plead Monell liability. Plaintiff's Complaint is replete with conclusory statements of "policies" and "customs." See Compl. 80-85. For example, Plaintiff alleges that the Entity Defendants "had in effect policies, procedures, customers and practices that permitted, condoned and fostered the unconstitutional conduct of the individual defendants." Id. ¶ 80. Plaintiff continues that the Entity Defendants "failed to supervise and train its Police and [] officers," and that they "had a general policy, pattern and or practice of not disciplining Police and [] officers/supervisors/employees." Id. ¶ 86. Further, Plaintiff alleges that the Entity Defendants "deliberately overlooked and covered up individual employee misconduct." Id. However, the Complaint sets forth no plausible facts suggesting improper training, failure to supervise, or failure to address employee misconduct. Instead, the basis for each of Plaintiff's allegations is solely the Report.

Plaintiff argues that the investigation of the Report should result in Defendants' liability. Pl. Opp'n at 2-4. However, Plaintiff does not specifically describe an official policy that violates the law, nor does he allege a proper causal link between any policy of Defendants and the alleged harm. See Kranson, 755 F.2d at 51. There are no facts that demonstrate that the investigation into the Report was handled in a discriminatory manner.9 In fact, the opposite appears true: Plaintiff alleges that EEO undertook a full, confidential investigation of the Report, including forensic testing.10

Lastly, Plaintiff argues that the Report, "in and of itself' violates his Fourteenth Amendment rights "against racial discrimination." Pl. Opp'n at 2. Essentially, Plaintiff appears to be arguing that the Report itself established that the Entity Defendants maintained a forbidden policy or custom. However, more than a single instance of discrimination is necessary to establish Monell liability. See Brown v. City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009) ("[P]roof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing . . . municipal policy, which policy can be attributed to a municipal policymaker."). More importantly, the Report itself does provide sufficient proof of an unconstitutional policy or custom by the Entity Defendants. Indeed, the actual policies cited to by Plaintiff are either neutral or expressly designed to combat discrimination. Thus, Plaintiff fails to plausibly plead a Monell claim and Count III is dismissed without prejudice.

2) Individual Defendants' Liability (Count II)

"Under Section 1983, a plaintiff must plead a deprivation of a constitutional right and that the constitutional deprivation was caused by a person acting under the color of state law." Phillips, 515 F.3d at 235. Here, Plaintiff brings a Section 1983 claim, alleging that the Individual Defendants violated Plaintiff's constitutional rights, including denying him equal protection under the law, discriminating against him because of his race, and depriving him of "life, liberty and property without notice and opportunity to be heard." Compl. ¶¶ 61-78. Analysis of a Section 1983 claim begins by identifying the "exact contours of the underlying right said to have been violated" and then determining "whether the plaintiff has alleged a deprivation of a constitutional right at all." A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 579 (3d Cir. 2004). Thus, the Court will first analyze whether Plaintiff has stated a claim for a violation of equal protection or due process.11

As to Plaintiff's equal protection claim,12 Plaintiff alleges that "Defendants violated the provisions of 42 U.S.C. § 1983 by denying Plaintiff [] the equal protection of the laws in violation of the Fourteenth Amendment." Compl. ¶ 76; see also id. ¶ 76 ("The [I]ndividual [D]efendants acted under color of law to deny Plaintiff Floyd Harley equal protection of the laws and discriminated against him on the basis of his race in violation of 42 U.S.0 § 1983"). Plaintiff provides no factual allegations to support his equal protection argument other than those on which he premised his hostile work environment claim in Count I. As discussed, Plaintiff fails to sufficiently allege a violation of a hostile work environment pursuant to Section 1981. If Plaintiff's equal protection claim in Count II is based on a theory other than hostile work environment, then Plaintiff will have to plausibly plead it in an amended complaint. The present Complaint, however, fails to put Defendants on notice of the precise nature of Plaintiff's equal protection claim. Thus, the equal protection claims raised in Counts II and III are dismissed.

The due process claims contained in these counts likewise fail. The Fourteenth Amendment's Due Process Clause has both a procedural and a substantive component. Nicholas v. Penn. State Univ., 227 F.3d 133, 138-39 (3d Cir. 2000). Procedural due process requires the government to follow fair procedures before depriving a person of a protected property interest. DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 597 (3d Cir. 1995), abrogated on other grounds, United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003). For a substantive due process claim challenging the validity of nonlegislative state action, a plaintiff must first establish that he has a protected, fundamental property interest. Nicholas, 227 F.3d at 139-42. Thus, to state a claim for either procedural or substantive due process, a plaintiff must allege a protectable interest encompassed by the Fourteenth Amendment. See Nicholas, 227 F.3d at 139-40 (substantive due process); Houston v. Twp. of Randolph, 934 F.Supp.2d 711, 733 (D.N.J. 2013) (procedural due process).

Although not clear from his Complaint, Plaintiff contends in his brief that the harm to his reputation resulting from the Report, plus the Report's content, violates his right to due process. Pl. Opp'n at 20. Additionally, Plaintiff alleges that he has a property interest in "employment free from intentionally or willfully indifferent publication from racially discriminatory and defamatory material." Id. at 21.

"[R]eputation alone is not an interest protected by the Due Process Clause." Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). Instead, a plaintiff must show "a stigma to his reputationp/us deprivation of some additional right or interest." Id. (hereinafter the "stigmaplus test"). Generally, courts have found that nothing short of a plaintiff losing his job can qualify as the "plus" factor. See, e.g., Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 492 (3d Cir. 1998) (plaintiff suspended with pay, but not fired, did not rise to the level of a due process claim); Kelly v. Borough of Sayreville, NJ., 107 F.3d 1073, 1077-1078 (3d Cir. 1997) (plaintiff, who was reprimanded and disciplined, but was never suspended, removed, fined or reduced in rank did not "suffer[] a deprivation beyond the injury to his reputation"). Here, there is no indication that Plaintiff suffered any employment repercussions regarding the Report (apart from the claimed injury to his reputation). It appears that Plaintiff remained an employee of Jersey City at the time of filing this action. See Compl. ¶ 6 ("Plaintiff . . . is employed with the City of Jersey City."). Plaintiff has not alleged that any adverse employment action has been taken against him, much less his termination. Thus, Plaintiff does not plausibly plead a violation of the stigma-plus test, and his procedural due process claims are dismissed without prejudice.

The standard to plead a claim for substantive due process is even higher, and requires plaintiff to plead a "constitutionally fundamental" interest. Nicholas, 227 F.3d at 140. In other words, "[n]ot all property interests entitled to procedural due process protection are entitled to substantive due process protection." Whittaker v. Cty. of Lawrence, 674 F.Supp.2d 668, 699 (W.D. Pa. 2009), aff'd, 437 F. App'x 105 (3d Cir. 2011). Since the Court finds Plaintiff's stated interests insufficient under a procedural due process inquiry, they necessarily fail under the more demanding substantive due process inquiry. Therefore, Plaintiff's substantive due process claims in Counts II and III are dismissed without prejudice.13

NJCRA (Count V)

Count V is brought pursuant to the NJCRA, alleging that Plaintiff was deprived of "substantive due process and other privileges and immunities secured by the Constitution of the State of New Jersey." Compl. ¶ 104. Again, Plaintiff contends that the discriminatory Report is the basis for his claim. Id. ¶¶ 103-109. Defendants argue that since the NJCRA is interpreted analogously to Section 1983, this claim should be dismissed for the same reasons discussed under the analysis of the 1983 substantive due process count.14 Def. Br. at 17-19.

The Court agrees. The NJCRA is interpreted analogously to Section 1983. See Coles v. Carlini, 162 F.Supp.3d 380, 404 (D.N.J. 2015) ("[C]ourts have repeatedly construed the NJCRA in terms nearly identical to its federal counterpart: Section 1983."). Since Plaintiff's substantive due process claim fails under Section 1983, it necessarily fails under the NJCRA.15 Therefore, Count V is dismissed without prejudice as to all Defendants.

Conspiracy (Counts IV & VIII)

Plaintiff brings two counts of conspiracy against. Defendants Count IV pursuant to Sections 1985 and 1986, and Count VIII — Civil Conspiracy.16 To sufficiently plead a Section 1985(3) claim, a plaintiff must establish:

McArdle v. Hufnagel, 588 F. App'x 118, 120 (3d Cir. 2014). Section 1985(3) actions are limited to conspiracies predicated on "racial, or perhaps otherwise class based, invidiously discriminatory animus." Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997); Falat v. Cty. of Hunterdon, No. 12-6804, 2014 WL 6611493, at *13 (D.N.J. Nov. 21, 2014) ("The conspiracy must be directed at the plaintiff because he belongs to a given class."). In addition, a claim for conspiracy "must contain supportive factual allegations." Ivan v. Cty. of Middlesex, 595 F.Supp.2d 425, 484 (D.N.J. 2009). "The factual allegations supporting the conspiracy claim may not be generalized or conclusory." Id.; see also Schlichten v. Cty. of Northampton, 279 F. App'x 176, 179 (3d Cir. 2008) (requiring a conspiracy to be pled with specificity). Thus, mere conclusory allegations that a conspiracy exists will not survive a motion to dismiss. Garlanger v. Verbeke, 223 F.Supp.2d 596, 605 (D.N.J. 2002). Instead, "a plaintiff must set forth allegations that address the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose." Ivan, 595 F. Supp. 2d at 484.

Additionally, "[a] plaintiff must establish a valid § 1985 claim in order to state a claim under § 1986." Carrington v. City of Jersey City, No. 06-5367, 2008 WL 2061147, at *7 (D.N.J. May 12, 2008); see also Muhammad v. Dempsey, 531 F. App'x 216, 219 n.4 (3d Cir. 2013) (finding that since plaintiff's Section 1985 claim fell short, his Section 1986 claim necessarily failed as well since "liability under [Section 1986] is predicated on actual knowledge of § 1985 violation").

Here, Plaintiff fails to support his conspiracy claim with sufficient factual allegations. Plaintiff merely pleads that "Defendants conspired against Plaintiff [] and violated his constitutional rights by collaborating to disseminate, investigate, cover up, release and public defamatory and racially discriminatory Crash Review Evaluation Report." Compl. ¶¶ 92, 96, 138. In short, Plaintiff alleges the conspiracy in a wholly conclusory fashion. Plaintiff does not address the necessary elements with sufficient factual particularity. He does not address "the period of the conspiracy, the object of the conspiracy, and the certain actions of the alleged conspirators taken to achieve that purpose," as required by Section 1985. Ivan, 595 F. Supp. 2d at 484. Therefore, Plaintiff's conspiracy claims in Counts IV & VIII are dismissed without prejudice.

Defamation (Count VII)

Count VII is a claim for Common Law Defamation. Compl. ¶¶ 128-136. It alleges that Defendants "had knowledge that the content of the Crash Review Evaluation report [] was false and caused that report to be published with reckless disregard of its truth or falsity." Id. ¶ 130. Plaintiff further alleges that the Report "amount[s] to defamation and libel per se." Id. ¶ 136.

Defendants argue for dismissal of this claim for numerous reasons. First, because Plaintiff did not file a timely notice of tort claim as required by the New Jersey Tort Claims Act ("NJTCA"). Def. Br. at 33-34. Second, Defendants argue that they are entitled to a qualified privilege defense. Id. at 34-36. And third, Defendants assert that Plaintiff fails to state a prima facie claim of defamation. Id. at 36-39.

Since the Court finds Defendants' third argument dispositive, it will not address the first two. Defamation requires a plaintiff to allege that the defendant "(1) made a false and defamatory statement concerning the plaintiff, (2) communicated the statement to a third party, and (3) had a sufficient degree of fault." Mangan v. Corp. Synergies Grp., Inc., 834 F.Supp.2d 199, 204 (D.N.J. 2011) (citing Singer v. Beach Trading Co., 379 N.J.Super. 63, 80 (App. Div. 2005)). Under New Jersey law, "whether a statement is defamatory depends on `its content, verifiability, and context!" Id. at 204-05 (quoting Lynch v. N.J. Educ. Assoc., 161 N.J. 152, 167 (1999)).

Here, Plaintiff fails to meet the first element. The Report uses a loathsome racial slur in describing Plaintiff, but a slur is not the same as defamation. Sims-Felton v. Hegedus, No. 11-4923, 2013 WL 1844512, at *4 (D.N.J. Apr. 30, 2013) ("[E]ven though plaintiff's allegation that defendants used racial epithets is reprehensible, name-calling does not constitute actionable defamation."). Although such statements are morally repugnant, courts have found them nonactionable as defamation. See Taylor v. Metzger, 152 N.J. 490, 526 (1998) ("Recognizing the chilling effect such a holding would cast over a person's freedom of expression, most courts do not find words of bigotry or racism to constitute actionable defamation, thus protecting the freedom to express even unpopular, ugly and hateful, political, religious, and social opinions.") (internal quotation marks omitted).

Thus, as pled, Plaintiff's allegations do not state a claim for defamation. Count VII is dismissed without prejudice.17

VI. CONCLUSION

In sum, the Court GRANTS Defendants' motion. Plaintiff's Complaint is dismissed as to all counts without prejudice. Plaintiff has thirty (30) days to file an amended complaint, if he so chooses, consistent with this Opinion and in accordance with Local Civil Rule 15.1.18 An appropriate Order accompanies this Opinion.