FREDA L. WOLFSON, District Judge.
Plaintiff-Officers Joseph Mrazek, Drew Smith and David Levi McVey (collectively, "Plaintiffs"), were all candidates who sat for the — Stafford Township Sergeants Promotional Exam ("Exam"), and they brought the above-captioned cases
Defendants are directed to submit supplemental briefing on qualified immunity within 10 days from the date of the Order accompanying this Opinion. Mrazek may respond within 10 days after receiving Defendants' submission. On the issue of Chief Giberson's authority under state law as a policymaker for Monell purposes, Mrazek is directed to submit supplemental briefing within 10 days from the date of the Order accompanying this Opinion. Defendants also have 10 days to respond after receiving Mrazek's submission.
For the purposes of this motion, I will only recount the following relevant facts, and they are undisputed unless otherwise noted. In late 2012, the Township, through its Police Department, administered a promotional examination for its police officers, to determine which officers would be appointed to the rank of sergeant. Defendants' Statement of Undisputed Facts ("Defs' Facts"), ¶ 5. In August 2012, Chief Giberson implemented the evaluation and structure of the Exam. The Exam Policy was subsequently approved by the Mayor and Council through Resolution 2012-219. Id. at ¶¶ 7, 8. In addition to the approval, the Council authorized the execution of a contract with the International Association of Chiefs of Police ("IACP") for the express purpose of administering the Exam to the applicants. Id. at ¶ 10.
The Exam consisted of two phases, Phase I and Phase II. Defs' Facts, ¶ 12. Phase I comprised of multiple choice questions prepared and graded by the IACP, and it accounted for 35% of the total exam score. Id. at ¶¶ 13-15. A candidate's seniority contributed to 10% of the total score. In that regard, half of the candidate's seniority score was added in Phase I. Id. According to the Exam Policy, the top 50% of the candidates in Phase I would proceed to Phase II. Id. at ¶ 17.
Phase II included two sections: assessment center and evaluation. The assessment center, also referred to as "in-basket" section, contained situational questions that required the candidates to give written responses, and a subsection in which the candidates must provide verbal responses to questions and situations. Id. at ¶ 19. The "in-basket" section accounted for 35% of the total exam score. Id. This portion of the Exam was also prepared and graded by the IACP. In addition, in Phase II, the other half of a candidate's seniority score was added to the total score. The remaining 20% of the Exam was the subjective evaluation section, which consisted of two portions: the "Supervisory Recommendation" or "Supervisors Roundtable", and the "Chief's Review." Id. at ¶ 20. Each of these portions accounted for 10% of the total score. Id. More specifically, during the Supervisors Roundtable, each candidate, who advanced to Phase II, was evaluated by all of the superior officers, and these evaluating officers considered each candidate's entire career with the Stafford Township Police Department. Id. at ¶ 21. The Chief's Review was an evaluation conducted solely by Chief Giberson.
On October 18, 2012, Officers Mrazek, Smith and McVey, along with thirteen other officers, sat for Phase I of the Exam. Id. at ¶ 22; Plaintiffs' Statement of Undisputed Material Facts ("Plts' Facts"), ¶ 25. After only the written portion of the Exam (without adding the seniority score), there were two ties, i.e., for first place and seventh place. According to Defendants, because of these two ties, Chief Giberson decided to treat tie scores "as one ranking space," and therefore, eleven candidates — instead of eight —advanced to Phase II. Defs' Facts, ¶ 25.
The results of Phase I (written + seniority scores) were as follows:
Plts' Facts, ¶ 25. The top eleven of these candidates advanced to Phase II.
On January 8, 2013, the IACP conducted the "in-basket" portion of the Exam. Defs' Facts, ¶ 23. The results of this section were combined with the remaining half of the eleven candidates' seniority scores. Plts' Facts, ¶ 40. At this point, 80% of the Exam had been completed. The candidates were ranked as follows:
Id. at ¶ 41; Defs' Facts, ¶ 41.
Two days after the assessment, the Supervisors Roundtable section of the Exam took place. During the Roundtable, each supervisory staff member submitted his/her individual recommendation for each candidate on various categories. Plts' Facts, ¶ 43. Pursuant to the Exam Policy, the evaluators also convened a roundtable discussion regarding the candidates' qualifications. Id. at ¶ 44. After all the candidates were evaluated, each evaluator ranked the candidates, and those rankings were converted to scores that were then added to the applicants' total scores. Id. at ¶ 45. I note that Plaintiffs take issue with the manner in which this portion of the Exam was conducted; in particular, Mrazek, who was the President of the Township's local Police Benevolent Association Union ("PBA"), alleges that certain supervisors present at the Roundtable, including Chief Giberson, sought to negatively influence other evaluators' personal rankings of Mrazek, because of these supervisors' attitude towards Mrazek's union membership. Indeed, Mrazek's First Amendment claims arise out of these allegations. Instead of summarizing the facts surrounding this issue here, I will further discuss them in detail, infra.
The following table represents the results of the Supervisors Roundtable Section:
Plts' Facts, ¶ 104.
The above-results were then added to the total scores. At the end of the Roundtable, with only the Chief's Review left in the Exam, the ranking of the Officers was as follows:
Id. at ¶ 105.
Finally, the Chief's Review was conducted. According to the Policy, Chief Giberson would consider the following factors in evaluating each candidate's qualifications: 1) performance evaluations from the three years prior to the exam; 2) education, and specifically credits earned from an accredited institute of higher education; 3) awards and commendations for the officer's entire career; 4) firearms scores from the officer's entire career; 5) fitness indicator test scores from the officer's entire career; 6) the candidate's work ethic, job attitude, disciplinary record and leadership qualities over their entire career. See Exam Policy, Sec. (B)(2). According to Plaintiffs, Chief Giberson did not give due consideration to these factors when he made his assessments, particularly as to Mrazek. And, Mrazek claims that there were inconsistencies between the assessment that Chief Giberson made during the Supervisors Roundtable and the Chief's review that demonstrate manipulation. Those facts will also be discussed, infra.
The following chart is the ranking of candidates as a result of Chief Giberson's review.
Plts Facts, ¶ 135.
Following the Chief's Review, the overall results of the Exam were as follows:
Id. at ¶ 136. Four officers were promoted from the list: Schiattarella, Allikma, Haldenwang and Conforti.
On February 8, 2013, pursuant to the Exam Policy, Mrazek submitted an appeal of his exam score to Chief Giberson. Id. at ¶ 142. Thereafter, Chief Giberson informed Mrazek that he reviewed Mrazek's Exam scores, and concluded that the scores would not be changed. Defs. Facts, ¶ 143.
In February 2013, Mrazek filed his Complaint, Civil Action No.: 13-1091(FLW), to challenge the manner in which Defendants conducted the Exam. Plaintiffs Smith and McVey followed with their own Complaint, Civ. Action No. 14-5945(FLW), in September 2014. Both Complaints assert substantially the same causes of action. In Counts I and II of both Complaints, Plaintiffs assert a § 1983 claim for violation of due process rights under the Fourteenth Amendment against the Township and Chief Giberson, respectively. In addition, in Counts III and IV of Mrazek's Complaint, he asserts a § 1983 First Amendment claim against the Township and Chief Giberson, respectively. In those two counts, Mrazek alleges that by failing to promote him, Defendants retaliated against Mrazek for engaging in union activities. Because the legal and factual issues are similar, Defendants, in one omnibus motion, move for summary judgment on all counts in both Complaints. Plaintiffs have also filed an omnibus opposition brief. Accordingly, it is appropriate to decide Defendants' summary judgment motion on both cases in this Opinion.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ .P. 56(c). A factual dispute is genuine only if there is "a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party," and it is material only if it has the ability to "affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence `is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "If the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial." Id. at 331. On the other hand, if the burden of persuasion at trial would be on the nonmoving party, the party moving for summary judgment may satisfy Rule 56's burden of production by either (1) "submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim" or (2) demonstrating "that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim." Id. Once the movant adequately supports its motion pursuant to Rule 56(c), the burden shifts to the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. at 324; see also Matsushita, 475 U.S. at 586; Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
There can be "no genuine issue as to any material fact," however, if a party fails "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322-23. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).
Plaintiffs, collectively, allege in both Complaints that the manipulation of the Exam at the hands of Chief Giberson and the Township violated their procedural and substantive due process rights under the Fourteenth Amendment. Although not entirely relevant to this Court's determination of the legal issues raised by these constitutional claims, I will briefly summarize Plaintiffs' theory of the case in this regard. First, Plaintiffs' procedural due process claims rest — albeit erroneously — on their insistence that they have a "property interest" in being promoted in a "fair, timely, and beneficial manner." Pl's Opp. Brief, p. 7. In that connection, Plaintiffs argue that Defendants violated their property rights by failing to adhere to Stafford Township Resolutions, which adopted the Exam Policy, and improperly injecting Defendants' own personal biases against Plaintiffs in an effort to manipulate the exam scores. In particular, Plaintiffs accuse Defendants of violating Stafford Township's policy by permitting 11 applicants to proceed to Phase II from Phase I, instead of the 8 proscribed by the policy. Moreover, in Phase II, Plaintiffs complain that (1) contrary to the Exam Policy, the supervising officers, during the Roundtable, created their own scoring system; (2) false information regarding Plaintiff Smith was provided during the Roundtable portion; (3) supervisory officers failed to include a particular Plaintiffs' supervisor, Sgt. Linck, to participate at the Roundtable discussion;
Over all, Plaintiffs, in their submissions, painstakingly outline how Defendants engaged in a campaign at Phase II of the Exam to ensure that Plaintiffs' test results would not qualify them for promotion, despite Plaintiffs' relatively high scores — particularly Mrazek — obtained during Phase I. However, Plaintiffs' causes of action under procedural process is fatally flawed because entitlement to relief in this regard requires them to demonstrate, as a threshold matter, that their right to be promoted fairly is a "property right" under the federal Constitution. No matter how much "evidence" Plaintiffs can produce on this summary judgment motion to show manipulation, Plaintiffs have not first established a property right to which constitutional protection applies; thus, their procedural due process claims necessarily fail.
It is beyond dispute that to prevail on a procedural due process claim challenging a state actor's conduct, "a plaintiff must establish as a threshold matter that he has a protected property interest to which the Fourteenth Amendment's due process protection applies." Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 139-140 (3d Cir. 2000); see Hill v. Borough of Kutztown, 455 F.3d 225, 235 (3d Cir. 2006). In the procedural due process jurisprudence, a plaintiff must show that the interest of which he was deprived, is encompassed within the Fourteenth Amendment's protection of "life, liberty, or property." Eggert v. Bethea, 625 Fed. Appx. 54, 56 (3d Cir. 2015) (citations omitted). Having established that right, a plaintiff then must demonstrate that the procedures available to him did not provide "due process of law." Id. Importantly, whether there is an interest sufficient to trigger the protection of the Fourteenth Amendment is an issue of law to be decided by courts. Clark v. Twp. of Falls, 890 F.2d 611, 617 (3d Cir. 1989).
Of course, the constitution does not protect every trivial property interest; rather, to qualify as a protected interest, "a person clearly must have more than an abstract need or desire [for that interest]. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. In that regard, to satisfy the first prong of a procedural due process property claim in this case, Plaintiffs must have a legitimate, more than de minis, property interest to a fair promotional process. See Bd. of Regents of State Colls v. Roth, 408 U.S. 564, 577 (1972).
"Legitimate claims of entitlement may be created expressly by state statute or regulation or may arise from government policies or `mutually explicit understanding' between a government employer and employee." Newark Branch, N.A.A.C.P. v. Town of Harrison, 940 F.2d 792, 809 (3d Cir. 1991) (quoting Perry v. Sindermann, 408 U.S. 593, 601-02 (1972)). Put differently, "[p]roperty interests are `created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understanding that secure certain benefits and that support claims of entitlement to those benefits.'" Baraka v. McGreevey, 481 F.3d 187, 205 (3d Cir. 2007)(quoting Bd. of Regents, 408 U.S. at 577).
Here, it is important to first point out that Plaintiffs readily concede that "a government employee does not have a property right in a promotion because the employee would not have a `legitimate expectation of entitlement' to such a promotion." Pl. Opp., p. 5. Instead, Plaintiffs claim they have a legitimate expectation that the promotional process would afford them the rights set forth in the Exam Policy, such that the process itself should qualify as a constitutionally protected property interest. In so arguing, Plaintiffs draw their purported "entitlement" from New Jersey statutes and the Township's Resolutions governing the promotion process. First, Plaintiffs point to N.J.S.A. 40A:14-129, which provides that in non-civil service jurisdictions, "a promotion of any member or officer of the police department or force to a superior position shall be made from the membership of such department or force." Further, "[d]ue consideration shall be given to the member or officer so proposed for the promotion, to the length and merit of his service and preference shall be given according to seniority in service." Id. Next, to expand upon the "due consideration" language, Plaintiffs cite the Township Resolutions that adopted the Exam policy. In that regard, Plaintiffs contend that the Resolutions were passed to provide a fair and transparent promotion system so that officers, such as Plaintiffs, seeking a promotion are given a fair opportunity.
I stress that Plaintiffs' due process claims are solely based on their insistence that these statute and Resolutions create a constitutionally protected property interest. However, Plaintiffs' argument is neither novel nor unique, because the Third Circuit has squarely addressed an identical position advanced by plaintiff-officers in Kaminski v. Twp. of Toms River, 595 Fed. Appx. 122 (3d Cir. 2014).
As basis for this property interest, the Kaminski plaintiffs pointed to a state statute requiring the municipal defendant to give "due consideration" to promotional candidates' "length and merit of his service and preference shall be given according to seniority in service." Id. at 126 (citing N.J.S.A. 40A:14-129). They also pointed to Toms River's ordinance which, like the Stafford Township's Resolutions in this case, set out the promotional process for the exam. Id.
In rejecting that these provisions created a protected property interest in a "fair and unbiased promotion examination", the Third Circuit reasoned:
Id. Ultimately, the court held that these provisions "do not impose general requirements on the [promotional] process beyond what they actually say, and surely do not confer an entitlement to a promotional examination with features amounting to plaintiff's concept of what is `fair.'" Id.
Here, it is clear to this Court that Kaminski disposes of Plaintiffs' arguments supporting their procedural due process claims. Indeed, like in Kaminski, Plaintiffs raise identical New Jersey state statutory authority, and instead of Toms River, Plaintiffs rely on similarly worded Resolutions of Stafford Township. These authorities do not elevate Plaintiffs' promotion process to a protected property interest. While the Township's Resolutions set forth some requirements that Defendants must follow in conducting the promotional process,
To undercut the value of Kaminski to this case, Plaintiffs inexplicably claim that because Kaminski is an unpublished district court case, it has no precedential value. While the Third Circuit's decision in Kaminski is unpublished, the circuit nevertheless affirmed the district court's dismissal of the procedural due process claims there. Because the facts and legal issues raised in Kaminski are strikingly similar to this case, even if the Third Circuit's decision is not technically binding, it is highly persuasive. In fact, at least two district court decisions have very recently followed the Third Circuit's guidance in Kaminski and found that both public employment policies or contracts that set forth specific criteria for promotion and N.J.S.A. 40A:14-129, cannot serve as the basis for a federally protected property interest in the general fairness of a process implemented for promotion purposes. See Mendez v. Port Auth. of N.Y. & N.J., No. 14-7543, 2016 U.S. Dist. LEXIS 42157, at *22-23 (D.N.J. Mar. 30, 2016); Otero v. Port Auth. of N.Y. & N.J., No. 14-1655, 2016 U.S. Dist. LEXIS 43332, at *25-26 (D.N.J. Mar. 31, 2016)(concluding that an employment contract in conjunction with N.J.S.A. 40A:14-129, does not "establish a protected property right in the right to a fair and unbiased promotional process."). Other than the argument that the district court's decision in Kaminski is not binding, Plaintiffs put forth no other arguments, legal or otherwise, to distinguish this case from either the district court's decision or, more importantly, the circuit's affirmance in Kaminski.
Nonetheless, instead of relying on decisions in this circuit, for support, Plaintiffs cite to an out-of-circuit district court case, Firefighters United For Fairnes v. City of Memphis, 362 F.Supp.2d 963, 971 (W.D. Tenn. 2005). In that case, the court held that "plaintiffs do have a property interest in the mutually held expectation that their [promotion exams] will be graded fairly and accurately, and that the tests will be a major factor in the City's promotional decision." Id. at 971. However, what makes Firefighters distinguishable from the case here is that there were explicit findings by the Firefighters court that the municipal employer agreed to maintain specific testing and grading procedures, including videotaping and transcribing interviews, preserving the anonymity of interview graders, and considering candidates' specific concerns with their initial grading. Id. at 967. In that respect, the court held that the municipal employer had expressly "ensured the reliability of each single assessor's scoring . . . and therefore was certain that the assessor was qualified to render a fair and accurate score. . . ." Id. Those assurances by the municipal employer, the court found, were sufficient to create a protected property right for the plaintiff-employees.
Unlike the explicit assurances of procedural accuracy and reliability made by the employer in Firefighters, the New Jersey statutory provision and the Township's Resolutions cited by Plaintiffs, here, contain no references to any specific procedures put in place — like those in Firefighters — in order to maintain a fair and accurate promotion process. Rather, like the plaintiffs in Kaminski, Plaintiffs, here, seek to extrapolate assurances of fairness from general statutory and resolution language where no such explicit assurances exist. Moreover, even if Firefighters' legal determination on procedural due process contradicts Kaminski — which it does not — the Third Circuit's more recent decision is obviously more persuasive than an out-of-circuit district court's findings.
Accordingly, I find that Plaintiffs have failed to show that their entitlement to a fair promotion process is a constitutionally protected property interest. Because my decision is confined to the threshold issue whether there is a protected interest, I do not reach the question whether Plaintiffs were afforded proper due process, nor do I need to discuss Defendants' argument that New Jersey provides an adequate "post-depravation" remedy for the procedural due process claim that is the subject of this suit. In conclusion, summary judgment is granted as to Count II, the procedural due process claim against Chief Giberson, in both Complaints. Similarly, summary judgment is appropriate on Count I in both complaints, which assert a Monell claim against the Township based on allegations of procedural due process violations, because Plaintiffs have failed to show an underlying constitutional injury. See Marable, 176 Fed. Appx. at 283.
Plaintiffs' substantive due process claim in Counts I and II of both complaints are similarly dismissed.
"[F]or a property interest to be protected for purposes of substantive due process, it must be `fundamental' under the United States Constitution." Hill, 455 F.3d at 235. Because state-law employment rights "bear[] little resemblance to the fundamental interests that previously have been viewed as implicitly protected by the Constitution," courts generally refuse to find fundamental property rights in the employment context. Nicholas, 227 F.3d at 140 (citing Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229-30 (1985) (Powell, J., concurring)).
Here, as discussed above, each of the Plaintiffs' claimed property rights — the right to a fair promotional process — arise out of the Township's Resolutions and related New Jersey employment law, i.e., N.J.S.A. 40A-15-129. Because such claimed employment-related rights regarding promotion "bear little resemblance to the fundamental interests" which enjoy substantive due process protections, I have no basis to find that the rights are in fact "fundamental." See id. Accordingly, the Court dismisses Plaintiffs' substantive due process claims. See Otero, 2016 U.S. Dist. LEXIS 43332 at *33 (dismissing the plaintiff's substantive due process claim based on a fair promotion process); Mendez, 2016 U.S. Dist. LEXIS at *28-29 (same); McGovern v. City of Jersey City, No. 98-5186, 2005 U.S. Dist. LEXIS 38644, 2006 WL 42236, at *14 (D.N.J. Jan. 6, 2006) (dismissing plaintiff's substantive due process claim "in connection with the issues of wage parity, pension, overtime, promotion to staff Sheriff's Sergeant position, and denial of transfer requests" because those rights were not deemed "fundamental" under Fourteenth Amendment).
Accordingly, the substantive due process claims in Counts I and II of both Complaints against the Township and Chief Gierbson are dismissed. Because I have granted summary judgment on the substantive and procedural due process claims, the Complaint filed by plaintiffs Smith and McVey in Civil Action No.: 14-5945(FLW), is dismissed in its entirety. The only remaining causes of action on this motion are Mrazek's First Amendment retaliation claims in Counts III and IV of Civ. Action No. 13-1091(FLW), against the Township and Chief Giberson, respectively.
In Count IV of his Complaint, Mrazek brings a First Amendment retaliation claim against Chief Giberson, alleging that the Chief manipulated Mrazek's exam scores because he engaged in union activities. Defendants argue that summary judgment is appropriate because Mrazek has failed to show that the activities in which he engaged were protected under the First Amendment.
To bring a First Amendment retaliation claim, a plaintiff must establish the following elements: "(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Independence Township, 463 F.3d 285, 296 (3rd Cir. 2006). Here, Defendants argue that Mrazek has failed to meet the first and third elements of the test.
In the First Amendment speech context, as a threshold matter, a public employee plaintiff must point to certain speech for which he was retaliated against by persons acting under color of state law. In deciding whether the public employee's speech is protected, that employee's First Amendment right to speak freely on matters of public concern is balanced against the efficient operation of the workplace. Pickering v. Board of Education, 391 U.S. 563, 568 (1968). In that regard, the important distinction to be made regarding constitutional protection is between speech related to personal interest and speech related to matters of importance to the community. See McGreevy v. Stroup, 413 F.3d 359, 365 (3d Cir. 1995). Indeed, "[i]f the employee's speech relates only to his or her personal interest, the First Amendment does not protect the speech." Borden v. School Dist. of the Twp. of East Brunswick, 523 F.3d 153, 168 (3rd Cir. 2008). This is the so-called "public concern" test.
Here, Mrazek's First Amendment claim is premised on two separate underlying union-related activities. See Compl.,¶ 145. First, Mrazek contends that he was subject to retaliation by Chief Giberson because of Mrazek's role as the president of the PBA. Second, Mrazek avers that he was targeted by the Chief because Mrazek spoke out against the Township and the previous mayor. Without focusing on Mrazek's first basis for retaliation, Defendants argue that Mrazek's comments made against former Mayor John McMenamin and former Chief Conroy's decision to lay off police officers as a result of budgetary constraints, inter alia, do not address a matter of public concern, and therefore, they are not protected speech.
The issue whether Defendants retaliated against Mrazek on the basis of his position as the Union President, warrants a separate legal analysis. Mrazek argues that as Union President, he advocated on behalf of the union membership with the Police Department, often to the displeasure of the administration. In that regard, Mrazek's union activities as the President are not centered on his personal grievances, and were not otherwise motivated to enhance his own employment conditions. Thus, the protected conduct Mrazek raises is his constitutional right to associate.
Indeed, the First Amendment protects not only the right to speech, but it also grants all citizens, including public employees, the right to freely associate with others without fear of retaliation. U.S. const. amend. I; Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979) (per curiam) ("The public employee surely can associate . . . freely . . ., and he is protected by the First Amendment from retaliation for doing so."). As the Supreme Court has explained:
Rumsfeld v. Forum for Academic & Inst'l Rights, Inc., 547 U.S. 47, 68-69 (2006).
Based on that underlying constitutional principle, it is well-settled that First Amendment protections extend to the right to associate with a union. See Suppan v. Dadonna, 203 F.3d 228, 237 (3d Cir. 2000); Bradshaw v. Twp. of Middletown, 296 F.Supp.2d 526, 544 (D.N.J. 2003), aff'd, 145 Fed. Appx. 763 (3d Cir. 2005); Glass v. Snellbaker, No. 05-1971(JBS), 2007 U.S. Dist. LEXIS 43137, at *11-12 (D.N.J. Jun. 14, 2007)(holding that "[p]laintiff's speech and conduct with the union are protected by the First Amendment right of association[.]"). "Plainly[,] efforts of public employees to associate together for the purpose of collective bargaining involve associational interests which the first amendment protects from hostile state action." Labov v. Lalley, 809 F.2d 220, 222-23 (3d Cir. 1987); Suppan, 203 F.3d at 230-31, 236 (recognizing that First Amendment forbids government from retaliating against public employees for engaging in collective bargaining); Robb v. City of Philadelphia, 733 F.2d 286, 295 (3d Cir. 1984) (holding allegation that defendants retaliated against plaintiff for "exercis[ing] his rights of association through participation in his labor union. . . sets forth the bare bones of a claim for which relief may be granted"); McGrogan v. SEPTA, 2002 U.S. Dist. LEXIS 13067, No. 01-1342, 2002 WL 1586979, at *2 (E.D. Pa. July 19, 2002) (acknowledging that retaliation against public employee for participating in union election is forbidden by First Amendment); Fuerst v. Clarke, 454 F.3d 770, 774 (7th Cir. 2006); Michalesko v. Freeland Borough, No. 13-2634, 2015 U.S. Dist. LEXIS 86071, at *16 (M.D. Pa. Jul. 2, 2015).
Put differently, "retaliation against public employees solely for their union activities violates the First Amendment." Clue v. Johnson, 179 F.3d 57, 60-1 (2d Cir. 1999)(explaining that "activities on behalf of a union faction that necessarily entail a substantial criticism of management raise matters of public concern. . . ."); Service Employees Int'l Union, AFL-CIO v. County of Butler, Pa., 306 F.Supp. 1080, 1082 (W.D. Pa. 1969) (citing Thomas v. Collins, 323 U.S. 516 (1945))("Union membership is protected by the . . . First . . . Amendment[].").
To reiterate, Defendants have not challenged the sufficiency of Mrazek's proofs with respect to the second element, i.e., retaliatory action. Indeed, failure to promote is considered retaliatory conduct in the context of a First Amendment claim. See Suppan, 203 F.3d at 234 (explaining that a failure to promote or transfer is sufficiently adverse to support a First Amendment retaliation claim); DeGroat v. Pa. DOT, No. 08-463, 2011 U.S. Dist. LEXIS 16066, at *12 (M.D. Pa. Feb. 17, 2011). What remains is the causal link between the constitutionally protected conduct and the retaliatory action. To establish the requisite causal connection, the plaintiff must prove either: (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. In the absence of that proof, the plaintiff must show that based on the evidence gleaned from the record as a whole, the trier of the fact may infer causation. Cooper v. Menges, 541 Fed. Appx. 228, 232 (3rd Cir. 2013).
The plaintiff has the initial burden of showing that his constitutionally protected conduct was a "substantial" or "motivating factor" in the relevant decision. Suppan, 203 F.3d at 235 (citing Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). "Once the plaintiff carries this burden, the burden shifts to the defendant to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." Id. (citations and quotations omitted). On this concept of burden shifting, the Third Circuit has advised:
Id. at 236.
In sum, if the plaintiff sufficiently establishes that the exercise of his First Amendment rights, e.g., union membership, played a substantial role in the employment decision by the employer, to avoid lability, the defendant must show that the same decision would have been made. Id; see Bergdoll v. City of York, 515 Fed. Appx. 165, 170 (3d Cir. 2013); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); Brown v. New Hanover Twp. Police Dep't, No. 07-2776, 2008 U.S. Dist. LEXIS 71434, at *24-25 (D.N.J. Sep. 22, 2008).
Here, on the issue of causation, Mrazek argues that Defendants retaliated against him because he, as the Union President, engaged in certain union activities with which Defendants were displeased. To carry his initial burden, as evidentiary support, Mrazek points to a number of transcript excerpts of deposition testimony and documents that raise an issue of fact regarding Defendant's alleged retaliatory pretext in manipulating the exam scores during Phase II of the Exam. I will address them, in turn.
As I have described, supra, the Roundtable portion of the Exam was designed to allow existing supervisory staff members to submit their individual recommendation for each candidate as to twenty-three different categories. See Exam Policy, Sec. B(3). Chief Giberson and other supervisors, including Sgts. Michael Guadalupe and David Johnson, and Lieutenant Thomas Dellane,
As to Mrazek's scores, he was placed number 1 after Phase I, the written portion of the Exam. Mrazek remained in the number spot after the Assessment Center portion of Phase II. Thereafter, however, Mrazek was rated last during the Roundtable portion, and Chief Giberson also ranked Mrazek last during the Chief's Review of the Exam. When all the scores were tallied, Mrazek — who was rated number one until the Roundtable portion — came in at number 7 on the promotion list. As such, Mrazek was not promoted. Indeed, based in part on the compelling differences of these scores, Mrazek claims that certain supervisors, including Chief Giberson, took retaliatory actions against him for being the Union President. Having reviewed the record in light most favorable to Mrazek, I find that there is certainly sufficient evidence for Mrazek to defeat summary judgment on this issue.
During the Roundtable evaluation process, Sgts. Guadalupe and Johnson testified at their deposition that they felt pressured to conform to the desires and opinions of Chief Giberson, Captain Von Schmidt and Lt. Dellane in scoring. Guadalupe's Dep., T17:12-T18:15; Johnson's Dep., T41:4-T42:10. In that regard, Sgt. Guadalupe stated that he felt that these particular "higher-ups" exerted certain undue influence over him because his candidacy for Lieutenant around the same time was being reviewed by these supervisors. Id. ("knowing full well that in a couple of months these same individuals who are rating or scoring the sergeants or patrolmen taking the test for sergeant are going to be doing the same for you. And in the past I've had disagreements with administration over certain issues, and there has been definitely a negative feel and response to my disagreements."). More specifically, as to Mrazek's scores, Sgt. Guadalupe testified:
Q. With respect to Candidate Mrazek, were any statements made that you relied upon in scoring him?
A. Yes.
Q. Okay. And what statement do you recall was stated at the discussion?
A. Well, there was a strong statement made, and it was repeated over and over again at the time about — and the words used was that [Mrazek] was a pot stirrer.
Q. And what was your inference from . . . that statement?
A. As it kept being repeated I believed the intent was the fact that [Mrazek] was the union president and that he was supportive of the union positions and issues within the agency, which sometimes go against policy, you know. Not go against, but challenge policy and procedure in the agency.
That, I believe, was the intent and the inference of it; although the words union and PBA were never said, that's the inference I took.
Q. and did that influence — those comments influence your grading of officer Mrazek?
A. Yes.
* * *
A. . . . in my opinion there's no doubt that [Mrazek's position at the Union] was held against him during those discussions.
Id. at T23:15-T24:24; T39:17-24.
On this issue, Sgt. Johnson similarly remarked:
A. There's a situation to [Mrazek] being the PBA president that in the past PBA presidents don't always get a fair shake on what, you know, their job is to do for the whole agency, as a PBA President. And because it goes against administration, they feel it's negative thing against the administration.
Q. Chief Giberson testified concerning PBA, and he also testified that [Mrazek] stirs the pot. And [Mrazek] felt, according to Giberson, [Mrazek] felt that, yeah, I'm representing someone. It's my duty to make this presentation for him. Even if it's something that's adverse, I still have a duty as — as the PBA representative or president to still do it. And I'm going to do my job even though it may be against administration or maybe it conflicts with something. Did that attitude or explanation ever came up to you in discussing what I just represented?
A. There's always topics about the PBA president of — you know, of stirring the pot.
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Q. And because of that, that could have an adverse influence on him when it comes to promotion?
A. That's correct. Johnson's Dep., T57:11-T58:23.
Chief Giberson, Captain Von Schmdit and Lt. Dellane, who collectively represented the Police Department's upper management during the relevant time period, all expressed, at the Roundtable, negative views about Mrazek that related to him being a "pot stirrer." Chief Giberson wrote in his notes that he took during the Roundtable, that Mrazek was a "pot stirrer," and the Chief indicated Mrazek had "all comment[s] negative." See Giberson Notes, Exh. TT, p. 4484. Mrazek testified at his deposition that Chief Giberson informed Mrazek the reason why Mrazek received "such low evaluation scores" was because he "was stirring the pot and . . . always in the middle of controversy." Mrazek's Dep., T31:23-T32:4. Mrazek interpreted that statement to mean that because he was the PBA President, his promotion scores were affected. Id. at T23:4-20.
Likewise, Lt. Dellane did not appear to have positive views regarding Mrazek's union position. He, too, referred to Mrazek as a "pot stirrer" and a "rumor starter." Dellane's Dep., T115:12-19; T116:20-T117:25. More particularly, Lt. Dellane gave Mrazek a score of "0" on work ethic because Mrazek apparently had "very little productivity." Id. at T119:1-T121-23. Lt. Dellane testified that he referred to Mrazek as a "station queen," which meant that Mrazek "[s]pends the vast majority of his time in the station, not on the road patrolling." Id. But, as Lt. Dellane acknowledged, Mrazek, as the PBA President, had officer hours where he would remain at headquarters for union purposes, and would be excused from duty for union grievances, contract negotiations, and other union issues, which policy was set forth in the Collective Bargaining Agreement. See Mrazek's Dep., T23:12-20; Lt. Dellane's Dep., T119:10-23; T121:4-23. Consistent with the "work ethic" score, Lt. Dellane gave Mrazek zeros on three other categories: "self-initiative," "attitude," and "support of agency initiatives." Mrazek's scores in these categories were affected by Lt. Dellane's view that Mrazek was a "pot stirrer" in the Police Department. See Lt. Dellane's Evaluation Notes, Exh. V, p. 4412.
I note that both Lt. Dellane and Chief Giberson denied during their deposition that referring to Mrazek as a "pot stirrer" or "rumor starter" was based on the fact that Mrazek was the Union President. In fact, both testified that Mrazek's union activities did not affect the manner in which the supervisors scored. However, on this summary judgment motion, this Court cannot make any findings of fact — that role is reserved for the factfinder. Rather, my inquiry is limited to determine whether Mrazek has sufficiently carried his initial burden to show that his union membership caused the retaliatory action, i.e., manipulation of promotion scores. Based on my review of the record, I find that Mrazek has certainly raised a genuine issue of material fact in that regard, and a jury is entitled to make those factual determinations.
Because I find that Mrazek has met his initial burden of showing that his constitutionally protected conduct, i.e., engaging in union activities, was a "substantial" or "motivating factor" in the scoring process, in the next step of the analysis, Defendants may show that they would have reached the same decision even in the absence of the protected conduct. The Third Circuit in Suppan, which is a First Amendment retaliation case based on a failure to promote, explained that Defendants' burden could be carried by showing that:
Suppan, 203 F.3d at 237. However, Defendants have largely ignored this aspect of Plaintiffs' First Amendment claim; they have failed to put forth any arguments, legal or factual, or point to any evidence that would tend to show that Mrazek would have scored the same even if he were not the Union President. Indeed, even if Defendants relied on certain testimony that Mrazek's scores were not affected by his union membership, summary judgment on Mrazek's First Amendment claim would still be inappropriate because there are numerous factual disputes.
Finally, Chief Giberson argues that he should be entitled to qualified immunity on Mrazek's First Amendment claim. "Public officials are entitled to qualified immunity unless their conduct violated a clearly established constitutional right." Goodwin v. Conway, No. 15-2720, 2016 U.S. App. LEXIS, at *10 (3d Cir. Sep. 12, 2016) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity shields government officials from lability for civil damages as a result of their performance of discretionary functions, and serves to protect government officials from the burden of costly, but insubstantial lawsuits. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). However, government officials performing discretionary functions are liable only if "their conduct does not violate clearly established statutory or constitutional rights . . . ." Id. Even in cases where the plaintiff's federal rights and the scope of the official's permissible conduct are clearly established, the qualified immunity defense protects a government actor if it was "objectively reasonable" for him to believe that his actions were lawful at the time of the challenged act. Anderson v. Creighton, 483 U.S. 635, 639 (1987).
Thus, to determine whether qualified immunity is appropriate, courts engage in a two-pronged inquiry: "(1) whether the plaintiff has shown the violation of a constitutional right, and (2) whether the right was `clearly established' at the time of the official conduct." Id. (citing Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
Here, Mrazek's theory for liability against Chief Giberson is premised upon certain retaliatory actions taken against Mrazek for Mrazek's association with his union. In that light, as to the first prong of the qualified immunity analysis, Chief Giberson cites solely to a portion of Mrazek's deposition and argues that Mrazek has no evidence that Chief Giberson was involved in deciding and/or manipulating the promotional exam grades. That portion of the deposition only revealed Mrazek's lack of knowledge whether Chief Giberson knew the candidates' scores heading into the Roundtable or the Chief's Review phases of the Exam. However, a lack of knowledge of the scores on the Chief's part is not pertinent to the question of whether Chief Giberson harbored ill-will towards Mrazek merely because of Mrazek's association with the Union, and correspondingly, whether the Chief retaliated against Mrazek because of Plaintiff's union membership. On these specific issues, I have already determined, see supra, that numerous factual disputes exist as to the Chief's substantial motivating factor in scoring Mrazek last during the Roundtable and the Chief's Review phases of the Exam. Therefore, Chief Giberson has failed to meet the first prong of qualified immunity, since there is a genuine issue of material fact as to whether a violation of Mrazek's First Amendment right had occurred.
As to the "clearly established" prong of the qualified immunity analysis, courts must be mindful that they are "not to define clearly established law at a high level of generality." Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) (citations omitted). Instead, courts "must define the right allegedly violated at the appropriate level of specificity." Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012); Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 638 (3d Cir. 2015). In this case, Mrazek alleges that Defendants retaliated against him for associating with his union by manipulating his exam scores such that he would be ineligible to be promoted. However, the parties have not properly briefed the inquiry whether such a right was clearly established at the time the act was committed.
In order for a federal right to be clearly established, there must be applicable precedent from the Supreme Court, or "`a robust consensus of cases of persuasive authority' in the Court of Appeals." Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015) (per curiam) (quoting City & Cnty. of S.F. v. Sheehan, 135 S.Ct. 1765, 1778 (2015)). Although a plaintiff does not have to produce "a case directly on point, "existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 131 S.Ct. at 2083 (citations omitted) (emphasis added). Stated another way, a court need not find that "the very action in question has previously been held unlawful," Anderson, 483 U.S. at 640, but rather conclude that "the firmly settled state of the law, established by a forceful body of persuasive precedent, would place a reasonable official on notice that his actions obviously violated a clearly established constitutional right." Spady, 800F.3d at 639 (citing Taylor, 135 S.Ct. at 2044 and al-Kidd, 131 S.Ct. at 2083).
Here, Chief Giberson has not advanced any contention with regards to whether Mrazek, as the Union President, had a clearly established constitutional right, at the time of the official conduct, to be free from retaliatory action taken because of his membership in the Union. And, since the Court has discounted Mrazek's reliance on Baldassare, neither party adequately addresses the element of "clearly established." Therefore, Defendants' motion for summary judgment with regard to qualified immunity is denied. However, Defendants may submit supplemental briefing on this issue within 10 days from the date of the Order accompanying this Opinion. Mrazek may respond within 10 days after receiving Defendants' submission.
In Count III, Mrazek brings a claim against the Township for retaliatory acts committed by Chief Giberson under Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658 (1978). In particular, Mrazek submits that because Chief Giberson is the final policymaker for the Police Department, the retaliatory decision made by Chief Giberson against Mrazek on the account of his union membership constitutes an unwritten policy. On the other hand, Defendants contend that Mrazek may not premise his Monell claim based upon the act of the Township's employee, i.e., Chief Giberson; rather, Defendants maintain that Mrazek must identify a policy or custom of the Township itself that caused him injuries.
Under Monell, "[w]hen a suit against a municipality is based on § 1983, the municipality can only be liable when the alleged constitutional transgression implements or executes a policy, regulation, or decision officially adopted by the governing body or informally adopted by custom." Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996) (citing Monell, 436 U.S. at 658). Monell thus created a "two-path track" to municipal liability, depending on whether a § 1983 claim is premised on a municipal policy or custom. Id.; McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009).
However, in this case, Mrazek claims that Chief Giberson was acting as a "policymaker" on behalf of the Township. The parties have failed to properly address this point. To satisfy the first element of a Monell claim, as an initial burden, "a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). The identification of policymaking officials is a question of state law. St. Louis v. Praprotnick, 485 U.S. 112, 124 (1988). "Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law." Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986)) (plurality opinion). "Thus the identification of policymaking officials is not a question of federal law, and it is not a question of fact in the usual sense. The States have extremely wide latitude in determining the form that local government takes, and local preferences have led to a profusion of distinct forms." St. Louis, 485 U.S. at 124-25.
On this record, I cannot resolve this threshold question of law. Defendants dispute that Chief Giberson's decisions can bind the Township for Monell purposes. However, neither party has briefed the issue whether, as a matter of state law, the chief of police, i.e., Chief Giberson, is a policy-maker for Monell purposes in this context of this case. Accordingly, I will deny Defendants' motion for summary judgment on Mrazek's Monell claim. See, e.g., Mack v. Town of Wallkill, 253 F.Supp.2d 552, 563 (S.D.N.Y. 2003)(denying summary judgment because an outstanding issue related to whether the chief of police is a policymaker for the purposes of Monell); Buoniconti v. City of Phila., 148 F.Supp.3d 425, 437 (E.D. Pa. 2015); Scalpi v. Town of East Fishkill, No. 14-2126, 2016 U.S. Dist. LEXIS 24697, at *20-21 (S.D.N.Y. Feb. 29, 2016). Because this initial burden falls on Mrazek, he shall submit a supplemental brief on this issue within 10 days from the date of the Order accompanying this Opinion. Defendants may respond within 10 days after receiving Mrazek's submission.
For the foregoing reasons, Defendants' motion for summary judgment is denied in part and grant in part. Summary judgment is granted as to the due process claims asserted by plaintiffs Smith and McVey; their complaint is dismissed in its entirety. Defendants' motion is granted as to plaintiff Mrazek's due process claims in Counts I and II of his Complaint; however, summary judgment is denied as to Mrazek's First Amendment claims in Counts III and IV. In addition, Defendants are directed to submit supplemental briefing on qualified immunity within 10 days from the date of the Order accompanying this Opinion. Mrazek may respond within 10 days after receiving Defendants' submission. On the issue of Chief Giberson's authority under state law as a policymaker for Monell purposes, Mrazek is directed to submit supplemental briefing within 10 days from the date of the Order accompanying this Opinion. Defendants also have 10 days to respond after receiving Mrazek's submission.
