Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-1994

Ferraro v. City of Long Branch, et al
Precedential or Non-Precedential:

Docket 93-5576




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                   No. 93-5576


                JOHN A. FERRARO;
                 DOROTHY FERRARO

                                 Appellants

                        v.

               CITY OF LONG BRANCH;
                  ADAM SCHNEIDER;
                 ANTHONY CRITELLI;
                 MICHAEL PELUGHI;
                MICHAEL DESTAFANO;
                   JOHN PALLONE;
                 STEVEN SCHWARTZ;
                   ROBERT LEHMANN


On Appeal from the United States District Court
        for the District of New Jersey
           (D.C. Civil No. 93-01096)


  Submitted under Third Circuit LAR 34.1(a)
                  May 2, 1994

BEFORE:    GREENBERG and GARTH, Circuit Judges,
          and ROBRENO, District Judge*

              (Filed:   May 10, 1994)


                         Robert E. McLeod
                         Gasiorowski & McLeod
                         1020 Highway 35
                         Middletown, NJ 07748

                              Attorney     for Appellants




                         1
* Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.

                                 Mark S. Tabenkin
                                 Kenney, Gross & McDonough
                                 130 Maple Avenue
                                 P.O. Box 8610
                                 Red Bank, NJ 07701

                                      Attorney for Appellees



                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

                          I. INTRODUCTION

           Appellants John A. Ferraro and Dorothy Ferraro, who are

husband and wife, appeal from an order dated August 23, 1993, and

entered on August 31, 1993, dismissing under Fed. R. Civ. P.

12(b)(6) their claims against the appellees, the City of Long

Branch, New Jersey, and certain of its officials, brought

pursuant to 42 U.S.C. § 1983, and remanding the balance of the

case to the Superior Court of New Jersey, Law Division, Monmouth

County.   As a matter of convenience we refer to John A. Ferraro

as the appellant inasmuch as Dorothy Ferraro is a party only

because she claims a loss of consortium.

           Insofar as material to the section 1983 count, Ferraro

in his Superior Court complaint alleged that since November 20,

1979, he has been a career civil service employee of the City of

Long Branch with the classified job title of Superintendent of

Parks and Public Property.   He further alleged that the duties of

that position are essentially of a managerial, supervisory, and


                                2
planning nature, but that the appellees nevertheless directed him

"to perform such jobs as garbage pick up, shoveling beach sand,

and other physical labor under the supervision of [his] former

subordinates . . . ."   Ferraro claimed that the appellees' action

deprived him of his rights, privileges, and immunities under New

Jersey laws and regulations and "subjected [him] to the

deprivation of a legally protected property right in his

employment secured by the Constitution and laws of the United

States and the State of New Jersey without due process of law in

violation of those Constitutions and the statutes in such cases

made and provided."

           The complaint alleged that the appellees engaged in the

foregoing wrongful conduct on and before December 28, 1990. While

the complaint does not indicate precisely what happened on

December 28, 1990, in his brief Ferraro indicates that he

"collapsed [with a heart attack] on the job while shoveling snow

on the steps of City Hall," and is still under treatment and has

"never returned to work."   Brief at 5.   In deciding this case we

will assume that Ferraro can prove these allegations and present

evidence that his work assignment contributed to his collapse and

illness.   The complaint also included three state law counts for

what Ferraro called "tortious interference with pursuit of lawful

employment" and for violations of the New Jersey Administrative

Code.   Notably, however, Ferraro's complaint did not assert that

the appellees' conduct constructively discharged him, and thus he

did not allege, and even in his brief on this appeal, does not

claim that he is no longer a Long Branch employee.   In fact, he


                                3
acknowledges that he still is the Superintendent of Parks and

Public Property.

           The appellees removed the matter to the district court

under 28 U.S.C. § 1441 on the ground that it had original

jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3).   They then

served a motion to dismiss under Rule 12(b)(6) "for failure to

state a claim upon which relief can be granted, on the grounds of

qualified immunity."

           The district court granted the appellees' motion in an

oral opinion on August 23, 1993.    The court recited that it could

grant the motion only if, after accepting the well-pleaded

allegations in the complaint and viewing them in the light most

favorable to Ferraro, he could prove no set of facts entitling

him to relief.   The court then observed that it was "well

established that government officials performing discretionary

functions enjoy qualified immunity from civil damages when their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known."   The court next indicated that if a plaintiff's

allegations "fail to state a constitutional violation at all, the

court cannot find that the constitutional rights asserted . . .

were clearly established at the time the defendants acted."

           The district court went on to indicate that a showing

that a defendant has violated a state statute does not in itself

establish liability.   It also said that a federal court is "'not

the appropriate forum in which to review the multitude of

personnel decisions that are made daily by public agencies,'"


                                4
quoting Bishop v. Wood, 

, 349, 

, 2080

(1976), and that "'[d]isputes over overtime, over work

assignments, over lunch and coffee breaks do not implicate the

great objectives of the 14th Amendment,'" quoting Brown v.

Brienen, 

, 365 (7th Cir. 1983) (emphasis added).     The

court recognized that Ferraro asserted the defendants acted with

malice in forcing him to shovel snow and sand, and thus caused

him to suffer a heart attack, but it held, citing Harlow v.

Fitzgerald, 

, 818, 

, 2738 (1982), that

these "bare allegations of malice" did not overcome the

appellees' claim of immunity.   Ultimately, the court dismissed

the claims against the individual appellees "for failure to state

a claim upon which relief can be granted pursuant to Rule

12(b)(6) on the grounds of qualified immunity" and the claims

against Long Branch itself because Ferraro had not asserted a

claim on which relief could be granted.    The court then remanded

the balance of the case to the Superior Court.

          Ferraro has filed a timely appeal.     We have

jurisdiction under 28 U.S.C. § 1291, and the district court had

removal federal question jurisdiction.    We exercise plenary

review.




                         II. DISCUSSION


          Ferraro defines the rather limited scope of his claim

by acknowledging that he "was neither deprived of his job nor his



                                5
salary and benefits" and accordingly conceding that he was not

discharged, directly or constructively.    Brief at 16.   Rather, he

contends that "he was deprived of the rights, duties and

privileges of [his] job," brief at 16, because the "case does not

involve mere work assignments, hours or other personnel

decisions.    It involves the duties which are the essence of [his]

job title."    Brief at 19.   The district court rejected Ferraro's

claim inasmuch as it found that he had not demonstrated that he

had a right which the federal courts should protect and which the

appellees had violated.    See Siegert v. Gilley, 

,

1793 (1991).

             We agree with the district court.   We recognize that we

look to state law to determine if Ferraro in this section 1983

action has alleged the existence of a property right.     Board of

Regents v. Roth, 

, 577, 

, 2709 (1972);

Midnight Sessions, Ltd. v. City of Philadelphia, 

,

679 (3d Cir. 1991), cert. denied, 

(1992).

Furthermore, we will assume that the appellees could be

determined in a state proceeding to have violated the New Jersey

Administrative Code by assigning Ferraro "to perform duties other

than those properly pertaining to the assigned title which the

employee holds."    N.J. Admin. Code tit. 4A, § 3-3.4 (1993).

Indeed, we even will assume that the appellees, as Ferraro

pleads, are liable to him under New Jersey common law.     Yet we

decline Ferraro's invitation to hold that the change in his work

assignment, which he admits did not rise to a level of wrongdoing

constituting a constructive discharge, nevertheless was a

                                  6
deprivation of his property interests actionable under section

1983.   While Ferraro asserts that the appellees were trying to

harass him into resigning and thus were malicious in their

conduct toward him, if we considered that a mere change in work

assignment deprived an employee of a property interest, as a

practical matter we would be federalizing routine employment

decisions.1    Additionally, under the guise of protecting

employees' rights, we would be erecting a barrier to ordinary

management determinations regarding the assignment and duties of

employees.

             We recognize that Ferraro claims that prior to the

appellees' acts in changing his duties his responsibilities were

"largely managerial and administrative," though not "directorial

or policymaking," brief at 27, and that after the changes he

supervised fewer people and did more manual labor.     But, as he

concedes, the appellees did not change his job title or modify

his salary and benefits.    Furthermore, his modified duties

clearly related to the functioning of the department of the

municipal government in which he is employed, parks and public

property.     In these circumstances, Ferraro simply did not plead

facts justifying a section 1983 action.    Congress did not pass


1
In Winn v. Lynn, 

, 239-40 (3d Cir. 1991), we
rejected a contention that evidence of malice would strip the
defendants of a defense of qualified immunity which they
otherwise would enjoy under Harlow v. Fitzgerald, 

,

(1982), as qualified immunity is predicated on
objective standards. While Winn v. Lynn well could be
controlling here, we are deciding this case on the basis of our
determination that the appellees did not deprive Ferraro of a
property interest.


                                  7
the civil rights law to constitute the district courts as grand

arbiters of all public employer-employee disputes.    We think that

the language of the Court of Appeals for the Ninth Circuit in San

Bernardino Physicians' Serv. Medical Group v. County of San

Bernardino, 

, 1408 (9th Cir. 1987) (emphasis in

original), though written in a different context, is useful in

this case in its recognition that while the deprivation of

contractual rights may create a section 1983 claim, there is "an

equally compelling necessity to recognize that not every

interference with contractual expectations does so."

            We find Rode v. Dellarciprete, 

(3d Cir.

1988), useful in our analysis.   There a public employee brought a

section 1983 action making claims similar to those Ferraro

advances.   In Rode the plaintiff alleged that she was transferred

to another position at her preexisting salary and benefit level.

She predicated her complaint on the contention that the new

position did not have the stature of her old position as it did

not come with a private office and involved menial assignments

and demeaning tasks.   We indicated that "[e]mployment decisions

such as those at issue here, which do not terminate or abridge

[the employee's] employment contract, and which could be

litigated in state tribunals, do not constitute deprivations of

property interests under the fourteenth amendment."    

We then cited Brown v. Brienen, 

(7th Cir. 1983), for

the proposition that even employment decisions which do violate

employment contracts do not form the bases for section 1983



                                 8
actions and that the Constitution should not be "trivialized by

being dragged into every dispute in state and local government."2

             Other precedents support our result.   The Supreme Court

set out the approach we should follow in Bishop v. 

, 96 S.Ct. at 2080, when it indicated that the federal

courts are "not the appropriate forum in which to review the

multitude of personnel decisions that are made daily by public

agencies."    In Brown v. Brienen the Court of Appeals for the

Seventh Circuit, in language particularly pertinent here,

indicated that disputes "over work assignments . . . do not

implicate the great objects of the Fourteenth 

.    The court indicated, however, that "[a] public

employer who drove an employee having a contract of employment to

resign by making life unbearable for him, through excessive

demands for overtime or other breaches of the employment

contract, might be violating the Fourteenth Amendment and section

1983 [through a] constructive discharge."     

Brienen

is particularly significant because it distinguishes between

actions constituting a constructive discharge and lesser

allegedly wrongful conduct for section 1983 purposes.     In this
2

v. 

). In Rode, we
indicated that a pattern of harassment not implicating an
employee's property rights may constitute a Fourteenth Amendment
violation if "motivated by the employee's exercise of protected
constitutional rights or by [the employer's] invidious
discriminatory intent." This principle, even if still viable, is
inapplicable in this case, as Ferraro did not plead that the
appellees acted in revenge for his engaging in constitutionally
protected conduct, e.g., making a statement protected by the
First Amendment, and he did not plead that the appellees
discriminated against him by reason of a factor such as race,
religion, or gender.


                                  9
regard we emphasize that Ferraro does not claim to have been

constructively discharged.    In Wargat v. Long, 

,

1215 (D. Conn. 1984), the court indicated "that personnel

decisions short of termination do not constitute a deprivation of

a property interest under the due process clause of the

fourteenth amendment."3

           Oladeinde v. City of Birmingham, 

(11th

Cir. 1992), cert. denied, 

(1993), is also a useful

precedent.   In that case the plaintiffs, police officers, claimed

that they were transferred in violation of their procedural due

process rights in retaliation for whistleblowing about wrongdoing

in the police department.    The court of appeals rejected this

argument, indicating that it would not "hold that a transfer,

which involves no loss of pay and no loss of rank, deprives a

plaintiff of a protected liberty or property interest."   

  That holding covers the situation here.4

3
 While we hold that the appellees did not deprive Ferraro of a
protected property interest, as we indicate below we are not
holding that an adverse employment action short of termination
never could deprive an employee of a property interest as we have
no reason to consider that broad proposition on this appeal.
Thus, we are not to be understood as adopting the full statement
of the law which we quote from Wargat v. Long. The statement,
however, is applicable here.
4
 In his brief, Ferraro sets forth that his "complaint spoke in
general terms of the deprivation of certain vested rights rather
than specifically setting forth the manner in which the
defendants acted to deprive the plaintiff of his rights and
clearly identifying those rights. Such generality is not fatal.
It can easily be handled by providing a more definite statement."
Brief at 32. The difficulty with this contention is that Ferraro
has described how the appellees' conduct impacted on him, i.e.,
he was not constructively discharged, and he has identified his
protected property interest in his job. His case has failed
because he has not demonstrated that the appellees deprived him


                                 10
           In reaching our result, we need not and will not write

broadly, as we are concerned only with deciding the case before

us.   Thus, we do not determine whether an adverse employment

action not alleged to have constituted a constructive discharge

of an employee can ever give rise to a section 1983 action.

Rather, we hold only that Ferraro does not state a claim upon

which relief may be granted, as he concedes that he was not

discharged actually or constructively, his salary and benefits

were not affected adversely by the appellees' actions, the

appellees did not strip him of his job title, and he was not

transferred to a different agency of the municipal government.

           The judgment of August 31, 1993, will be affirmed.




of a property interest. This shortcoming could not be cured by
the proposed more definite statement describing appellees'
actions and motives in more detail.

    Ferraro further contends that the district court erred in
indicating that his claims predicated on appellees' conduct
before December 23, 1990, two years before he filed his Superior
Court complaint, are barred by the statute of limitations. We
need not consider this contention as Ferraro does not set forth
facts indicating that the appellees' conduct before December 23,
1990, deprived him of a property interest.

                                11