JEROME B. SIMANDLE, District Judge.
Plaintiff John A. Sosinavage (hereinafter, "Plaintiff") brought this employment action against the City of Camden, the County of Camden, and John Scott Thomson, Orlando Cuevas, Michael Lynch, and Louis Vega in their official capacities as employees of the City of Camden, the County of Camden, or both (collectively, "Defendants"). Plaintiff, a former Lieutenant in the Camden City Police Department which was disbanded and superseded by the Camden County Police Department, generally alleges that Defendants engaged in retaliation against him based on protected activity in violation of the First Amendment and 42 U.S.C. § 1983 and/or age discrimination in violation of the New Jersey Law Against Discrimination ("NJLAD"). This Opinion addresses only Plaintiff's claims that the County Defendants discriminated and/or retaliated against Plaintiff by failing to hire him, and we examine here none of Plaintiff's claims against the City Defendants.
This matter comes before the Court on the County Defendants' motions for summary judgment on Counts Eight, Nine, and Ten of the Second Amended Complaint [Docket Item 71] and to strike the Declaration of Darnell Hardwick and exhibits in Plaintiff's papers submitted in opposition to the County Defendant's motion for summary judgment. [Docket Item 149.]
The principal issues to be decided are, all discovery having been concluded, whether there are genuine issues of material fact from which, giving all reasonable inferences to Plaintiff, a jury could reasonably find that the County Defendants have failed to hire Plaintiff for the Camden County Police Department due to retaliation in violation of his First Amendment rights, and whether the County Defendants have failed to hire Plaintiff due to age discrimination.
As relevant to his claims against the County Defendants, Plaintiff concedes he never worked for or applied to the Camden County Police Department. Nevertheless, Plaintiff asserts that the County Defendants discriminated and/or retaliated against him by not sending a letter expressly inviting Plaintiff to apply for employment when his name was included on a state-wide reemployment list, commonly referred to as a "Rice List." Since Plaintiff was aware of the employment opportunity with the Camden County Police Department and made a deliberate decision to not apply, and because Plaintiff adduced no evidence that the Camden County Police Department hired any officer who did not fill out an application and questionnaire other than Police Chief John Scott Thomson, and for the reasons discussed below, the motion for summary judgment will be granted in its entirety and all claims against the County Defendants will be dismissed.
The motions pending before the Court were brought by the County Defendants and do not address any of the allegations against the City Defendants. [Docket Item 71-2 at 9 n. 1.] Accordingly, the Court recounts only those facts and the procedural history relevant to Plaintiff's claims against the County Defendants (Counts Eight through Ten).
On August 25, 2011, the City of Camden, the County of Camden, and the State of New Jersey entered into a Memorandum of Understanding, whereby the County of Camden agreed to create a Camden County Police Department that would offer police services to municipalities within Camden County, including the City of Camden. [
On December 27, 2012, the Civil Service Commission passed a proposed plan for laying off all uniformed police officers in the Camden City Police Department by April 30, 2013. [
By civil service order, the Camden County Police Department established a pilot program for filling positions (hereinafter, the "Pilot Program"). [
John A. Sosinavage is a forty-six-year-old Caucasian male. [Docket Item 44 at ¶ 11; Docket Item 71-4 ("Pl. Dep.") Tr. 10:9-12.] Between September 12, 1994 and April 30, 2013, he was employed with the Camden City Police Department. [Pl. Dep. Tr. 29:17-19; 31:17-32:7.] On April 30, 2013, Plaintiff was laid off, along with all other remaining Camden City Police Officers [Pl. Dep. Tr. 31:19-32:1], as discussed above. At the time he was laid off by the Camden City Police Department, Plaintiff was a Lieutenant. [Pl. Dep. Tr. 28:12-14.]
Plaintiff testified at a deposition that he became aware the Camden City Police Department might be disbanded and replaced by a Camden County Police Department during a meeting with the Camden County Freeholder Director in February of 2011. [Pl. Dep. Tr. 33:4-18.] Plaintiff subsequently spoke out against the creation of the Camden County Police Department and the Pilot Program in several union meetings. [Pl. Dep. Tr. 126:13-127:4.] Prior to and during the Pilot Program, Plaintiff and others in his union also advocated in favor of a strategy whereby Camden City Police Officers would deliberately not apply for positions with the Camden County Police Department to put pressure on the County and help negotiate a better deal for the Camden City Police Officers. [
Plaintiff testified that he received several emails in the fall of 2012, including one from Deputy Chief Lynch, which provided guidance on how to fill out a resume and how to apply for employment with the Camden County Police Department during the Pilot Program. [Pl. Dep. Tr. 66:13-67:22.] One of the emails Plaintiff received during this period included an application for a position with the Camden County Police Department. [Pl. Dep. Tr. 67:3-22.] Plaintiff was aware of the April 1, 2013 application deadline to the Camden County Police Department during the Pilot Program. [Pl. Dep. Tr. 80:3-81:22.] He made a deliberate decision to not apply for employment with the Camden County Police Department. [Pl. Dep. Tr. 75:21-24.] Instead, he applied for placement on the Rice List on April 30, 2013. [
Prior to the 2011 decision to form the Camden County Police Department, on April 20, 2010, Plaintiff and a fellow City Police Officer, Lieutenant Anthony Carmichael, filed a lawsuit in New Jersey Superior Court against the City Defendants. [
On May 22, 2014, Plaintiff refiled his claims in federal court against the City of Camden, the County of Camden, and Officers John Scott Thomson, Orlando Cuevas, Michael Lynch, and Louis Vega in their individual and official capacities as employees of both the City of Camden and County of Camden [Docket Item 1],
On September 15, 2016, the County Defendants filed the pending motion for summary judgment on counts Eight, Nine, and Ten. [Docket Item 71.] The Court granted Plaintiff an extension of time to file opposition to the County Defendants' motion for summary judgment until November 17, 2016. [Docket Item 74.] Through an extraordinary series of delays due to illness and other complications, Plaintiff's opposition was not filed until more than one year later, on December 31, 2017. [Docket Items 140, 142.] The County Defendants timely filed a reply brief [Docket Item 155], along with updated Declarations by Defendants Lynch and Thomson. [Docket Item 155-1.] The County Defendants also filed a motion to strike the declaration of Darnell Hardwick with exhibits in its entirety [Docket Item 149], which Plaintiff had filed as an attachment to his motion for reconsideration. [Docket Item 83.] Plaintiff filed a letter brief in opposition to the motion to strike. [Docket Item 158.]
On April 20, 2018, the Court convened oral argument on the pending motions. [Docket Item 173.]
At summary judgment, the moving party bears the initial burden of demonstrating that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
A factual dispute is material when it "might affect the outcome of the suit under the governing law," and genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Plaintiff's claims against the County Defendants can be effectively divided into two categories: (1) claims of age discrimination in violation of NJLAD (Count Ten); and (2) claims alleging that the County Defendants' failure to hire him constituted retaliation under the First Amendment in violation of 42 U.S.C. § 1983 (Counts Eight) and for municipal liability against the County under
In Count Ten of the Amended Complaint, Plaintiff alleges that the County Defendants' failure to hire him constituted age discrimination in violation of NJLAD. The County Defendants move for summary judgment on this claim, arguing that, while Plaintiff is a member of a protected class,
New Jersey and federal courts analyze NJLAD employment discrimination claims under the burden-shifting framework of
In the present case, the parties agree that to make a
At a minimum, Plaintiff fails to satisfy the second prong of his
Plaintiff maintains that he did not apply because he "felt it would be useless to put [my application] in, and that my best path for employment at the County would be to just be laid off, go on the Rice List, and wait for my letter on the Rice List." [Pl. Dep. Tr. 84:9-19.] But Plaintiff has adduced no evidence that the Camden County Police Department hired anyone (from the Rice List or otherwise) who did not submit an application and questionnaire [Pl. Dep. Tr. 88:22-89:5], other than Defendant Thomson, who became Chief of the new Camden County Police Department.
Importantly, Plaintiff has not alleged he was somehow prevented from applying by the County Defendants, nor even that he was misled into not applying. Thus, this is not a case where Plaintiff "was deterred from applying by the employer's discriminatory practices and would have applied for the position but for those practices, or had a genuine and real interest in the position but reasonably believed that a formal application would be futile."
Further, Plaintiff cannot satisfy the third prong that he was "rejected" for employment with the new department.
Fundamentally, Plaintiff has presented no evidence that he was treated any differently from younger officers who were similarly situated, that is members of the Camden City Police Department who did not apply to the Camden County Police Department. There is no evidence that any officer who failed to apply was hired by the Camden County Police Department. The County Defendants never were called upon to make a decision to hire or reject this non-applicant. The law does not require them to answer a hypothetical of whether they would have selected him if he was interested in applying. Since Plaintiff was aware of the employment opportunity with the Camden County Police Department and never applied for or was rejected from a position, he cannot make out a
In Count Eight of the Second Amended Complaint, Plaintiff alleges that the County Defendants retaliated against him based on protected First Amendment activity, including his participation in legal challenges against the County Defendants when they were City employees and speaking out against the Pilot Program and formation of the Camden County Police Department during union meetings. The County Defendants seek summary judgment on Plaintiff's retaliation claim because he has failed to produce evidence of a link between any protected speech in which he engaged and any purported retaliatory action on the part of the County Defendants.
In order to make out a claim of First Amendment retaliation under 42 U.S.C. § 1983, a plaintiff must show that: 1) the plaintiff engaged in activity protected by the First Amendment (Prong One); 2) the defendant took retaliatory action against the plaintiff sufficient to deter a person of ordinary firmness from exercising his or her rights (Prong Two); and 3) a causal nexus existed between the protected activity and the retaliation (Prong Three).
Assuming
In Count Nine of the Second Amended Complaint, Plaintiff alleges that Camden County and the other County Defendants acting in their official capacities adopted or followed a municipal custom or policy that deprived Plaintiff of his First Amendment right to petition or deprived him of due notification of openings in the Camden County Police Department. Plaintiff asserts that such a violation gives rise to § 1983 municipal liability against the County Defendants pursuant to
In general, the elements of municipal liability under § 1983 require proof that: (1) a plaintiff suffered a constitutional violation and; (2) an official municipal policy or custom was the moving force behind the constitutional violation. Where a municipal policymaking official is sued in his or her official capacity, the claim is treated as a suit against the municipality — here, the County of Camden.
The irreducible requirement for proof of a
Here, as noted above, the County Defendants are entitled to summary judgment of no liability for Plaintiff's claim of First Amendment retaliation (Count Eight) and for age discrimination (Count Ten). Since there is no underlying violation of the constitution or federal laws, Plaintiff's claim for municipal liability against the County Defendants must also fail.
Finally, to the extent that Plaintiff belatedly asserts at oral argument that the County Defendants violated some right to an offer of employment because his name was on the Rice List, Plaintiff has cited to no provision of law entitling a Rice List officer to receive an offer of employment. The Rice List statute, N.J.S.A. 40A:14-180,
The Rice List recognizes certain types of prior police service by a law enforcement officer who was in good standing, to be deemed sufficient for consideration for future hiring; here, Plaintiff's eligibility for a position with the Camden County Police Department is not in dispute, with or without the Rice List. The statute and case law are clearly permissive, not mandatory, and nothing suggests that a municipality — here, Camden County — was obliged to extend offers of employment to Camden City's former officers whose names appeared on a Rice List. Had Plaintiff applied for employment with the Camden County Police Department — which he did not — he would, at most, have been deemed eligible for an appointment by Camden County within the 60-month window of N.J.S.A. 40A:14-180(a)(3). Thus, Plaintiff's claim that he was not selected for employment from the Rice List due to retaliation (or some sort of due process violation) is unfounded. Moreover, even if the Rice List gave rise to a legitimate expectation of specific employment with a law enforcement agency — which it does not — Plaintiff has produced no evidence in this four-year-old case to contradict the County Defendants' assertion that they have never used a Rice List to recruit or appoint any individual to a position with the Camden County Police Department.
Again, even with respect to his unplead Rice List claim of a deprivation of a right to an offer of employment, Plaintiff's underlying claim fails and no
For the foregoing reasons, the Court will grant the County Defendants' motion for summary judgment on Counts Eight, Nine, and Ten. The Court will also grant in part and deny in part the County Defendant's motion to strike Plaintiff's Hardwick Declaration. An accompanying Order will follow.
[Docket Item 44.] Only Counts Eight through Ten are the subject of this motion for summary judgment. [Docket Item 71-2 at 9 n. 1.]
The motion will be granted to the extent Plaintiff seeks to rely on any purported expert opinion, argument, or legal conclusion by Mr. Hardwick, who has no academic background or experience in law enforcement and who has not been certified as an expert witness in this case.
The Hardwick Declaration expresses opinions on police officer qualifications, police personnel records, Civil Service Commission records and rules, and credibility of other witnesses' statements. Not only are such opinions regarding specialized matters of personnel rules and practices inadmissible because Mr. Hardwick has not been identified as an expert under Rule 702, but they also may not be presented, as many are here, as legal arguments and conclusions in an affidavit or declaration pursuant to the Local Rules, which provide in relevant part:
L. Civ. R. 7.2(a). A few examples of improper opinions and legal conclusions in the Hardwick Declaration suffice to prove the point:
[Docket Item 83-8.] In accordance with L. Civ. R. 7.2(a) and Fed. R. Civ. P. 56(e)(requiring that a declaration filed in connection with a motion for summary judgment must "be made on personal knowledge. . ."), the Court will exercise its discretion to disregard all expert opinion, argument, or legal conclusions in the Hardwick Declaration.
The motion to strike will otherwise be denied. Notably, the Court will consider the exhibits attached to the Hardwick Declaration, including several documents obtained by Mr. Hardwick through Open Public Records Act requests that were created and/or maintained by the County Defendants. To the extent that Mr. Hardwick's statements in his Declaration lay an evidentiary foundation for source or authenticity of the documents he has attached, such statements are within his personal knowledge and will be considered in opposition to the County Defendants' motion for summary judgment.
(Pl. Opp. Br. at 6-7) (emphasis added). Notably, Plaintiff's proposal would eliminate the requirement in a failure-to-hire employment discrimination case that a plaintiff must apply for the position he claims a defendant failed to hire him into. But Plaintiff does not cite a single case in support of his proposed test, nor does he provide a compelling reason for the Court modifying the
(emphasis added).
