Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—D.N.J.: Mayor’s aide, fired after donating to sister’s anti-LGBTQ+ campaign, states plausible constitutional claims, (Apr 17, 2025)

By Marjorie Johnson, J.D.

More factual development was needed to determine whether the defendants may ultimately show that the government’s interest in promoting workplace efficiency and preventing disruption outweighed the aide’s speech interest.

A former aide to the City of Jersey City’s Democratic mayor beat a motion to dismiss his Section 1983 claims alleging the city, the mayor, and other officials violated his First Amendment associational and free speech rights by firing him in retaliation for donating to his Republican sister’s anti-gay political campaign in another state, issuing public remarks about her campaign and his own political views, and refusing the mayor’s order to publicly denounce her. However, a federal district court tossed his claim of national origin discrimination under the New Jersey Law Against Discrimination (NJLAD) since he only described a few remarks about his Columbian heritage, and he also failed to advance his tort claims on procedural grounds (Noriega v. City of Jersey City, No. 2:24-cv-10599-WJM-JRA (D.N.J. Apr. 14, 2025)).

LGBTQ+ task force. The employee was born in Colombia and migrated to the United states in 2009. He first worked for the city’s mayor on a part-time basis in 2018 and 2019. In 2022 he was rehired as a full-time aide, and the mayor also appointed him to the city’s LGBTQ+ Task Force.

Sister’s political campaign. In November 2023, his sister began a campaign to become Missouri’s secretary of state, running as a Republican with controversial political beliefs and rhetoric, particularly with respect to the LGBTQ+ community. The employee donated to her campaign “in the spirit of love for family,” despite being a registered Democrat opposed to her politics and anti-gay beliefs.

Newspaper and social media posts. In April 2024, the mayor began a campaign to be the Democratic nominee in the next election for New Jersey governor. In August, the employee received a request for comment from a newspaper concerning his support for his sister’s campaign. In a written statement approved by the mayor, he said that he did not share her views, but rather “[m]y life story and trajectory reflect my commitment to inclusivity, respect, and equality for all individuals.” The newspaper posted the article on social media on August 4.

That same day, a city councilman posted a message urging the mayor to remove the employee from the LGBTQ+ Task Force. The next day, the mayor allegedly berated him in a group chat for supporting his sister’s campaign, told him to resign from the task force, and remarked that they would discuss whether he should remain working in the mayor’s office.

August 5 statement. At the mayor’s direction, the employee released a statement on August 5, stating that he was stepping down from the task force, that “I do not support any hateful remarks directed toward the LGBTQ+ community or any individual,” and that “I may not agree with everything my sister says, but I love her; Political differences should not destroy families.” Afterwards, the mayor threatened to fire him if did not expressly condemn his sister, while political allies called for his removal.

Sister shares phone call. That same evening, the sister posted a video on social media that included a portion of a phone call between the mayor and the employee, in which the mayor said, “If you think that [...] is boldness I am going to fire you. I am gonna look in five minutes, if it is not clear where you stand then you are not with me, you’re with her and you can’t work with me, period. Okay? Like, that’s it.”

Terminated. The mayor responded on social media, stating, “first your brother WAS an ‘at-will’ employee for the city—as of tomorrow he no longer works there [because] he doesn’t reflect the values of the city. Second, You can see how strongly I feel about the LGBTQ community and I’ll share the text messages we exchanged so [people] know [I’ll] fight for them;” The HR director subsequently sent the employee a termination letter stating that he was terminated effective August 6. The city’s spokesperson also issued a statement which described his actions as “inexcusable,” and stated that whether due to his “campaigning for his sister, advising her hate-driven campaign, or supporting her financially,” his actions rendered “his responsibilities working in City Hall on policies around diversity impossible to achieve.”

Political affiliation retaliation. The city and the individual defendants (collectively, the city) argued that the employee’s First Amendment claim of political affiliation discrimination must be dismissed because his role as an aide to the mayor fell within the Elrod-Branti exception since his position was one in which consideration of his political affiliation was an “appropriate requirement for the effective performance of the public office involved.” The court disagreed.

Though the city contended that he served as an at-will employee at the pleasure of the mayor and therefore he could be lawfully discharged for political reasons, even if such a law did exist its application to employees who did not otherwise fall within the Elrod-Branti exception would run afoul of the First Amendment. The city also argued that his LGBTQ+ Task Force membership involved policy-related responsibilities and communication with the public such that the exception applied. However, his membership was not part of job responsibilities as mayor’s aide, and he also claimed the task force did not engage in any policymaking activity. While discovery may prove otherwise, the issue could not be resolved at the pleading stage.

Free speech retaliation. The court also denied the city’s bid to dismiss the employee’s First Amendment claim of retaliation against his free speech. First, he engaged in political speech in his personal capacity as a citizen when he donated to his sister’s campaign and issued statements regarding her campaign and his own political views. The court rejected the city’s contention that he spoke as an employee when he published his August 5 statement at the mayor’s direction. “It is difficult to imagine how [the mayor’s] instruction that [the employee] publicly denounce his sister’s campaign—in his own name, not on behalf of the office of the mayor—or risk losing his job, could be an instruction to speak pursuant to properly assigned job responsibilities as a public employee.” And while the city may ultimately show that the government’s interest in promoting workplace efficiency and preventing disruption outweighed his speech interest, the court could not make that determination without further factual development.

Independent justification. The city also argued that the employee would have been fired even if he hadn’t engaged in the protected conduct because of his flagrant insubordination in collaborating with his sister to secretly record and then publish his private conversation with the mayor. However, a triable issue existed as to his involvement, if any, with the recording of the call. Moreover, the content of the recording itself suggested that the decision to terminate him had already been made, as did the city spokesperson’s public statement.

Qualified immunity. Rejecting the city’s contention that the individual defendants were entitled to qualified immunity, the court found that the employee plausibly alleged the violation of his constitutional rights, which were clearly established at the time of his firing. Thus, if he could prove all elements of these claims—including that his was the type of job for which political affiliation was not a proper employment consideration—then the defendants would not be entitled to qualified immunity.

NJLAD claims. However, the court dismissed the employee’s NJLAD discrimination claim, which he supported by alleging the mayor’s chief of staff asked him, “is this how all Colombians behave?” in response to his sister’s campaign videos; questioned if all Colombians were loud”; and made “culturally insensitive remarks about his food choices” which “occasionally consisted of rice and beans.” While perhaps insensitive, these remarks were not “so egregious that it alters the conditions of employment.

Tort claims. The court also dismissed his defamation and false light claims since he failed to comply with New Jersey’s Tort Claims Act (T'CA) notice requirements. Though he argued that he substantially complied with the statute by filing an EEO complaint, the complaint could not have encompassed his tort claims due to its timing. He also failed to identify “extraordinary circumstances” underlying his failure to abide by the pre-suit notice requirement.

The case is No. 2:24-cv-10599-WJM-JRA.

Judge: Martini, W.

Attorneys: Giancarlo Ghione (Sekas Law Group) for Jonathan Gomez Noriega. Ralph Joseph Marra, Jr. (Calcagni & Kanefsky) for The City of Jersey City.

Companies: The City of Jersey City

Cases: IndividualRights PublicEmployees Discrimination NationalOrigin Procedure StateLawClaims TortClaims NewJerseyNews