JOHN MICHAEL VAZQUEZ, District Judge.
This case arises from the termination of a former Assistant City Attorney in the City of Orange Township. Plaintiff Louis Childress, Jr. ("Plaintiff or "Childress") claims that Defendants Business Administrator Willis Edwards ("Edwards"), City Attorney Daniel Smith ("Smith"), Mayor Dwayne Warren ("Warren"), and City of Orange Township ("Orange") (collectively "Defendants") violated Plaintiffs rights when they terminated him as Assistant City Attorney because he did not support Warren's candidacy for mayor. Defendants move for summary judgment (D.E. 56, 57) pursuant to Federal Rule of Civil Procedure 56. The Court reviewed all submissions,
Plaintiff began working as an Assistant City Attorney for Orange on April 1, 2002. D.E. 64-1, Plaintiffs Statement of Material Facts ("Pl. SOMF") ¶ 1. Assistant City Attorney is an atwill, unclassified, regular part-time position. Pl. SOMF ¶ 2; D.E. 57-2, City Defendant's Statement of Material Facts ("City Defs. SOMF") ¶ 1 (noting that the "position was unclassified and considered an at will employment position"). Plaintiff first started under the administration of Mayor Mims Hackett, Sr. ("Hackett, Sr.") and continued into the administration of Mayor Eldridge Hawkins, Jr. ("Hawkins"). Pl. SOMF ¶ 3. During both administrations, Plaintiffs supervisor was Marvin Braker, Esq. ("Braker"), the City Attorney for Orange and Irvington. Pl. SOMF ¶ 3. Braker was also the attorney for Irvington. Id.
Defendant Warren became Mayor of Orange on July 1, 2012. Pl. SOMF ¶ 4; Def. Resp. ¶ 4. Warren then appointed Defendant Smith as City Attorney. Pl. SOMF ¶ 4; Def. Resp. ¶ 4. Smith and his wife were campaign supporters and contributors of Warren. Pl. SOMF ¶ 4. Between June 1, 2012 and July 1, 2012, Warren met with Plaintiff. Warren claims that Plaintiff informed him that Plaintiff did not plan to stay for Warren's entire term, but that Plaintiff needed to stay employed by Orange long enough to fulfill the required time for Plaintiffs pension. Pl. SOMF ¶ 6. Warren states that he told Plaintiff that he had no problems with this request and that Plaintiff could stay with Orange for as long as necessary. Pl. SOMF ¶ 7. Warren contends that sometime after their initial conversation, Plaintiff told Warren that he would not be staying in Orange because Braker had a position for him in Irvington. Pl. SOMF ¶ 7. Plaintiff denies this contention, and states that neither Braker nor the Mayor of Irvington offered him a position. Pl. SOMF ¶ 7.
On or about July 1, 2012, Warren appointed Defendant Edwards to be the Business Administrator for Orange. Pl. SOMF ¶ 8. Edwards was the campaign chairperson for Warren's mayoral campaign. Pl. SOMF ¶ 8. Plaintiff testified that on July 5,2012, Edwards invited Plaintiff to a restaurant in Orange and informed Plaintiff that the new administration needed spots in the Law Department for people who had supported Warren's campaign. Pl. SOMF ¶ 9. Edwards, on the other hand, claims that a week before taking office be became aware the Plaintiff was an Assistant City Attorney. Pl. SOMF ¶ 15. Edwards contends that between July 1 and 2, he unexpectedly encountered Plaintiff at the restaurant. Id. Edwards claims that they exchanged pleasantries, Plaintiff indicated that he wished to speak to Edwards, and Edwards responded that his door was always open. Id. Edwards contends that this was the extent of their conversation at the restaurant and that they had no further discussions. Id.
On July 10, 2012, according to Plaintiff, Edwards called him and stated: "Lou ... I heard you were going to work for Irvington ... I thought we were cool." Pl. SOMF ¶ 11. Plaintiff responded that he did not know what Edwards was talking about. Id. Edwards then told Plaintiff that Defendant Smith had been fired from his position as the Public Defender for Irvington. Id. Plaintiff stated that he did not know Smith worked for Irvington or that Smith had been fired. Id. Edwards then told Plaintiff he would look into the matter and get back to Plaintiff. Id. Smith testified that the administration or some people in Irvington were not supporters of Warren and that his employment with Irvington had been terminated because it became known that he supported Warren's campaign. Pl. SOMF ¶ 12. Smith testified that he was upset that he was fired because of an election in a town outside Irvington and that he informed Edwards of the circumstances surrounding his termination by Irvington. Pl. SOMF ¶ 14.
Warren appointed Smith as Orange's City Attorney. Smith stated that between July 1 and July 12, Smith assessed the needs of the Orange Law Department and the available personnel. Pl. SOMF ¶ 16. Warren stated that because Orange was self-insured, Smith chose to replace Plaintiff with an attorney with more experience in insurance defense litigation. Pl. SOMF ¶ 18. Smith further testified that he wanted to hire sometime with municipal self-insurance defense and litigation experience, Pl. SOMF ¶ 18, and that he based his decision to terminate Plaintiff and hire Michael Hackett, Jr. ("Hackett, Jr.") due to his determination that Hackett, Jr. had more relevant experience, PL SOMF ¶ 19. Smith further testified that he relied upon the fact that Hackett, Jr. had primarily worked for a law firm that handled automobile defense litigation for insurance companies. Pl. SOMF ¶ 19. Smith stated that Hackett, Jr.'s father, a Warren supporter, had been the mayor of Orange and that he also considered this factor in deciding to terminate Plaintiff and hire Hackett, Jr. Pl. SOMF ¶ 20. Smith stated that on a scale of one to ten, the political aspect of Hackett, Jr.'s father was a two. PL SOMF ¶ 20.
On or about July 12, 2012, Smith informed Plaintiff that he would be terminated as Assistant City Attorney effective July 25, 2012. Pl. SOMF ¶ 23. Smith further testified that the campaign between Hawkins and Warren was hard-fought, but that he did not recall whether Plaintiff participated the campaign. Pl. SOMF ¶ 23. Smith, however, did testify that he knew that Plaintiff and Braker, the former City Attorney and a Hawkins supporter, were close. Pl. SOMF ¶ 23.
The duties of the Orange City Attorney are set out in the city's code (the "Code") at Sections 4-29 through 4-32. Pl. SOMF ¶ 4. The Code, however, does not set forth any specific duties or responsibilities for Assistant City Attorneys. Pl. SOMF ¶ 5. The Code provides the following as to City Attorney's duties:
Section 4-30 of the Code denotes that the City Attorney is appointed by the Mayor "with the advice and consent of the town council. Section 4-31, in turn, permits the City Attorney to appoint Assistant City Attorneys so long as the council authorizes the positions. Finally, Section 4-32 states that the City Attorney must work at least thirty-five hours a week and Assistant City Attorneys at least twenty-one hours per week.
As an Assistant City Attorney, Plaintiff was an unclassified regular part-time employee. Pl. SOMF ¶ 5. Section 23:1-3.9(G) of the City of Orange Township Employee Handbook of Personnel Policies and Procedures ("Employee Handbook") defines a regular part-time employee as "[a] provisional, unclassified, temporary, permanent or probationary employee who averages more than 20 hours of work per week, but less than the regular 35 hours per week (Regular Parttime employees may be eligible for benefits on a pro-rated basis)." Pl. SOMF ¶ 5; D.E. 57-2, Ex. B (Employee Handbook). The Employee Handbook also states:
Employee Handbook at 9 (emphases added). The Employee Handbook also states in a section entitled "Political Activity," that:
Id. at Section 23:1-2.7; Pl. SOMF ¶ 16.
On July 10, 2014, Plaintiff filed his Complaint. D.E. 1. Defendants Orange, Smith, and Warren filed an Answer on December 16,2014 (D.E. 6) followed by Defendant Edwards on March 4, 2015 (D.E. 9). On April 10 and April 27,2015, Defendants filed motions requesting a judgment on the pleadings pursuant to Rule 12(c) (D.E. 13, 18); Judge Arleo denied the motions November 13, 2015 (D.E. 29). The case was reassigned to this Court on February 25, 2016. D.E. 38. Following fact discovery, the Defendants filed their current motions for summary judgment pursuant to Rule 56. D.E. 56, 57.
A moving party is entitled to summary judgment where "the movant shows 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 fact in dispute is material when it "might affect the outcome of the suit under the governing law" and is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment. Id. "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 nonmoving 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)). In other words, a court's role in deciding a motion for summary judgment is not to evaluate the evidence and decide the truth of the matter but rather "to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion, the burden shifts to the nonmoving party to "go beyond the pleadings and by [his] 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 (internal quotation marks omitted). To withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at 250. "[I]f the non-movant's evidence is merely `colorable' or is `not significantly probative,' the court may grant summary judgment." Messa v. Omaha Prop. & Cas. Ins. Co., 122 F.Supp.2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is "no genuine issue as to any material fact" if a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp., 477 U.S. at 322. "If reasonable minds could differ as to the import of the evidence," however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
Plaintiff brings five counts related to his termination as Assistant City Attorney. Count One applies to all Defendants and claims unlawful political retaliation under the First and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983. Compl. ¶ 18-26. Count Two also applies to all Defendants and asserts violations of Plaintiffs rights to political association under the First and Fourteenth Amendments pursuant to Section 1983 as well as Article I of the New Jersey State Constitution. Id. at ¶ 27-33. Count Three alleges a civil conspiracy to deprive Plaintiff of his constitutionally protected rights by Defendants Warren, Edwards, and Smith. Id. at ¶ 34-38. Count Four claims violations of substantive due process under the New Jersey Constitution by Defendants Warren, Edwards, and Smith. Id. at ¶ 39-40. Count Five claims that all Defendants breached their duty of good faith and fair dealing. Id. at ¶ 41-44.
Count One alleges, in part, that "[b]y subjecting Plaintiff to retaliation based upon political motivation, for the firing of Defendant Smith by the Township of Irvington, the Defendants, violated and continues [sic] to violate the Plaintiffs rights as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution" under Section 1983. Compl. ¶ 23. While Defendants move for judgment as to Count One, they fail to substantively address the allegations of the count. Instead, Defendants focus on the allegations of Count Two. As a result, Defendants' motion for summary judgment on Count One is denied.
Count Two alleges, in part, that Defendants violated Plaintiffs rights under the United States and New Jersey Constitutions because "Defendants' retaliatory termination of Plaintiff was based on his support of then incumbent Mayor Hawkins and his failure to support Defendant Mayor Warren." Compl. ¶ 30. Plaintiff asserts Section 1983 as to the United States Constitutional claims. Section 1983 provides, in relevant part:
Section 1983 does not provide substantive rights; rather, it provides a vehicle for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989). In order to state a claim under Section 1983, a plaintiff must demonstrate that "(1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law." Burt v. CFG Health Sys., No. 15-2279, 2015 WL 1646849, at *2 (D.N.J. Apr. 14, 2015).
The termination of certain public employees based on their political affiliation violates the First Amendment.
The Third Circuit has further articulated a three-part test, as well as factors to consider, when to examining allegations First Amendment violations based on political affiliation. Concerning the test, the Circuit has indicated as follows:
However, the Court must also be mindful that "[i]t is not always easy to determine whether political affiliation is a legitimate factor to be considered for a particular job. . . . Each decision is, of course, fact specific for that case." Zold, 935 F.2d at 635; see Elrod, 477 U.S. at 367 ("No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical."). Moreover, the governmental entity must establish that political affiliation is a legitimate consideration for the position. See Brand, 445 U.S. at 515-16; Burns v. County of Cambria, Pa., 971 F.2d 1015, 1021-22 (3d Cir. 1992); Galli, 490 F.3d at 271. The defendants have the "substantial burden of demonstrating that political affiliation is an appropriate requirement for the effective performance of the [position]." Burns, 971 F.2d at 1022 (quoting Zold, 935 F.2d at 640).
Here Plaintiff contends, and Defendants assume for the purposes of their motions,
As an initial matter, Plaintiff points out that his termination does not present "the typical case where the parties are members of different political parties" and argues that cases cited by Defendants are inapplicable because they consider disputes between persons of different political parties. Pl. Opp. at 9, 10. However, Elrod and its progeny are not limited to inter-party actions. Courts have also examined intra-party political retaliation under the same framework. As the Third Circuit explained:
The Third Circuit has had occasion to address whether Elrod-Branti protection extends to publically employed attorneys in a number of cases. In Ness v. Marshall, 660 F.2d 517 (3d Cir. 1981), the court considered whether political affiliation was an appropriate requirement for the positions of City Solicitor and Assistant City Solicitor. In the case, the plaintiffs were all appointed to their positions by a Republican mayor and were dismissed by a newly elected Democratic mayor.
Although Judge Gibbons recognized that there may have been a genuine issue of material fact as to the reason the plaintiffs were fired, the Ness court nevertheless found that the plaintiff attorneys could be terminated based on political affiliation, finding in part, that
Id. at 522 (emphasis added). The Ness court found that even though the solicitors claimed that their actual responsibilities were technical in nature, a future "mayor might rely upon the city solicitors for the legal advice necessary to implement policy. That one mayor may have chosen not to employ the solicitors in this manner should not stand as a bar to future mayors relying on solicitors to the extent allowed by the Code." Id. The court also emphasized that under the administrative code, the solicitors served at the pleasure of the mayor.
In Mammau v. Ranck, 687 F.2d 9 (3d Cir. 1982), the Third Circuit, in a one paragraph opinion, upheld the district court's determination that an assistant district attorney could be terminated based on political affiliation as a matter of law. Id. The court in Mammau stated that it affirmed the district court "essentially for the reasons set forth in [Ness]." Id. The district court had found that the duties of assistant district attorneys were "consonant with those of the district attorney" and included the responsibility to
Mummau v. Ranch, 531 F.Supp. 402, 405 (E.D. Pa.), affd, 687 F.2d 9 (3d Cir. 1982). The Third Circuit also "specifically rejected] appellant's contention that his function was purely technical and ministerial and that therefore political affiliation would an inappropriate criterion for employment" because the fact that "an assistant district attorney could conceivably operate in such a legal/technical manner, or that appellant in fact so limited himself to the role described is irrelevant." Mammau, 687 F.2d at 9. Again, as in Ness, the Third Circuit in Mammau instructed courts to look beyond an attorney's actual duties to what the attorney was authorized to perform.
In Wetzel v. Tucker, 139 F.2d 380 (3d Cir. 1998), the Third Circuit held that the Northeastern Pennsylvania Hospital and Education Authority's termination of the Authority's solicitor on the basis of political affiliation did not violate the First Amendment. After finding that the Authority was a policy-making body, the court determined that there was "no material difference between the roles played by the attorneys in Ness and Mummau" and the plaintiff solicitor. Id. at 385. The court noted that on many policy issues, the Authority may consider "[t]he advice of counsel as to the legality of these actions, and whether or not it was worthwhile to defend them in litigation should that become necessary, would inform these policy decisions in a very direct way." Id. at 386. The Wetzel court rejected the solicitor's contention that any legal advice would be purely objective and would not leave room for personal beliefs, finding as follows:
Id. at 386 (internal citations and footnotes omitted). Accordingly, the Wetzel court found that because the Authority's solicitor had "meaningful input into decision making concerning a major governmental program," id. (internal brackets omitted) (quoting Brown. 787 F.2d at 169-70), political party affiliation was an appropriate criterion for the effective performance of the position.
This District also addressed the politically-motivated termination of an attorney in Siss v. County of Passaic, 75 F.Supp.2d 325 (D.N.J. 1999) affd, 234 F.3d 1265 (3d Cir. 2000) (summarily affirmed). In Siss, the court found that a former assistant county counsel for the County of Passaic's Department of Law was "not materially different from the positions at issue in Ness, Mammau, and Wetzel." Id. at 338. The assistant county counsel's duties included
Id. at 338 (internal quotations and brackets omitted). The Siss court concluded that "these functions are as `intimately related' to policy as those associated with the positions at issue in Ness, Mummau, and Wetzel[.]" Id. (internal citation omitted).
The Court finds that Plaintiffs Assistant City Attorney position was one in which political affiliation or loyalty could be permissibly considered. The responsibilities and duties of an Assistant City Attorney are not explicitly defined in Orange's Code. Plaintiff contends that the Code's silence means that summary judgment must be denied. Pl. Opp. at 14. However, Plaintiff provides no legal authority for his argument nor could the Court locate any. Thus, the Court must determine the authorized scope of Plaintiff's duties and responsibilities as Assistant City Attorney even if his actual role was more limited. See Waskovich, 2 F.3d at 1298 ("The relevant inquiry is to the function of the public office in question and not the actual past duties of the particular employee involved"); see also Ness, 660 F.2d 521-22. In sum, the critical question is the breadth of the duties of an Assistant City Attorney.
Section 4-29 of Orange's Code sets forth the duties and responsibilities of the City Attorney. The City Attorney's authority is at least as broad as the city solicitor in Ness, so if it were the City Attorney's position at issue, the question would be easily resolved in favor of Defendants. In fact, Plaintiff concedes this point. Pl. Opp. at 13 ("[T]he City Attorney is clearly a confidential policy making employee."). In the Defendants' statement of material facts, Defendants state that "[t]he Assistant City Attorneys for the City of Orange Township performed many of the same and/or similar duties as the City Attorney for the Defendant City of Orange" and that "[t]he Assistant City Attorney for the City of Orange, amongst other things such as drafting Ordinances, Resolutions, litigating matters, and participating in rendering advice and setting policy in coordination and in conjunction with the various City departments, renders confidential advice to the Mayor." City Defs. SOMF ¶¶ 7-8 (emphases added). Plaintiff did not contest these facts in his opposition.
Local Rule 56.1 requires the following:
L. Civ. R. 56.1 (emphasis added). As a result, the Court finds Defendants' facts undisputed as to the duties of the Assistant City Attorney. The Court also notes that Plaintiff did submit his own statement of material facts. If Plaintiff had, in his own submission, contested Defendants' factual assertion with citations to the record, the Court might overlook Plaintiffs failure to comply with Local Civil Rule 56.1. But Plaintiff did not do so. As a result, in light of Defendants' undisputed facts, the Court finds the Assistant City Attorney position is one in which political affiliation or loyalty can be lawfully considered in deciding whether to fire the attorney.
In addition, Plaintiffs own deposition testimony not only supports the foregoing conclusion, it also provides an independent basis for granting summary judgment in favor of Defendants. When asked, "[w]ith the city, what were your specific job responsibilities [as Assistant City Attorney]?" Plaintiff testified:
D.E. 61-9, Exhibit G ("Childress Dep.") at 23:05-18 (emphases added).
The Court finds no legally significant difference, in Plaintiffs position as Assistant City Attorney from the assistant solicitor in Ness. By Plaintiffs own admission, the responsibilities of his position included almost the identical tasks considered in Ness. In Ness, the court made clear that "rendering legal opinions, drafting ordinances, [and] negotiating contracts define a position for which party affiliation is an appropriate requirement." 660 F.2d at 522. Plaintiff described his responsibilities in very similar terms — including leading cases, drafting ordinances, drafting resolutions, conducting legal research, and reviewing work from other lawyers. See Childress Dep. 23:05-18, 23:21-24:06.
The Court emphasizes that the parties' descriptions of Plaintiffs role as Assistant City Attorney are less relevant to the overarching inquiry the Court must conduct into the scope of potential responsibilities of an Assistant City Attorney under any potential administration, present or future. See Ness, 660 F.2d at 521-22. However, Plaintiffs description of his own responsibilities is different than the factual scenarios in other cases. In those cases, the plaintiff attorney generally argued that his or her role was limited. In this case, by comparison, Plaintiff acknowledged the broad range of duties that he actually engaged in. Plaintiffs admissions clearly support a finding that he was authorized, as an Assistant City Attorney, to engage in a wide range of duties because he actually did so.
The Court finds that the responsibilities Plaintiff described are unambiguously part of the job's general responsibilities under any potential mayoral administration. The broad latitude provided to the mayor and the City Attorney under the City Code further illustrates that political affiliation is an appropriate requirement for the effective performance of the position. Just as the Ness court described, the next mayor may require Assistant City Attorneys to function in an even greater policymaking role. See Ness, 660 F.2d at 522 ("That one mayor may have chosen not to employ the solicitors in this manner should not stand as a bar to future mayors relying on solicitors to the extent allowed by the Code."). In fact, because it is silent, the Orange Code provides almost no limitation on the scope of Assistant City Attorneys' potential responsibilities. The Court assumes, however, that an Assistant City Attorney's duties and responsibilities could not exceed those of the City Attorney. Yet, beyond this limitation, it appears that an Assistant City Attorney could engage in a broad range of responsibilities, as Plaintiff did in that role. Therefore, the Court finds that the position of Assistant City Attorney is a position for which political affiliation is an appropriate requirement for the effective performance of the position. Accordingly, Defendants are granted summary judgment on Count Two as to Plaintiffs federal constitutional claims.
Plaintiff also brings his claim under Count Two pursuant to "Article I the [sic] Constitution of the State of New Jersey." Compl. 30. Defendants cite Battaglia v. Union County Welfare Bd., 88 N.J. 48 (N.J 1981), to demonstrate that Plaintiffs claim also falls under the New Jersey Constitution. In Battaglia, however, the Supreme Court of New Jersey applied the federal constitution and did not apply any provisions of the state constitution. Therefore, Battaglia is inapposite as to the New Jersey Constitutional argument.
Nevertheless, "there is no authority for the proposition that the protections of speech under the New Jersey Constitution are any different from those established by the First Amendment." McCusker v. City ofAtl. City, 959 F.Supp. 669, 675 (D.N.J. 1996) (citing Anderson v. Sills, 143 N.J.Super. 432,363 A.2d 381 (Ch.Div.1976)). This Court follows the Siss court in finding that "if the New Jersey Constitution does protect public employees against patronage dismissals, its protections are no greater than those under the first amendment to the United States Constitution." Siss, 75 F. Supp. 2d at 341. Plaintiff has not provided an authority to the contrary. Therefore, Defendants are also granted summary judgment on Count Two as to Plaintiffs state constitutional claims.
Therefore Defendant's motion for summary judgment on Count Two is granted,
Count Three alleges a civil conspiracy among Defendants Warren, Edwards, and Smith to deprive Plaintiff of his constitutional rights. Specifically, Plaintiff alleges that "Defendants acted in concert to commit the unlawful acts of depriving Plaintiff of his constitutionally protected rights and furthered the conspiracy by their own actions." Compl. ¶ 35. Defendants argue that Plaintiff fails to show that there was any underlying unlawful purpose or lawful purpose to be achieved by unlawful means, and that therefore summary judgment is appropriate. Edwards Br. at 12-14; City Br. at 14-15. Plaintiff fails to address any of Defendants' arguments in his opposition brief.
As an initial matter, Defendants assume that Plaintiff brings his conspiracy claim under New Jersey law. In his complaint, Plaintiff does not specify whether he brings Count Three pursuant to state or federal law. But Plaintiff does not contest in his opposition that his conspiracy count is pursuant to New Jersey law. As a result, the Court looks to state civil conspiracy law.
Under New Jersey law, a civil conspiracy "is a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage." Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177, 876 A.2d 253, 263 (N.J. 2005) (internal quotation omitted). Defendants have already been granted summary judgment on Count Two regarding Plaintiffs federal and state constitutional claims. Therefore, under either New Jersey state law or under federal law, Defendants are granted summary judgment on Count Three insofar as the underlying allegations depend on Plaintiffs claim that Defendants violated the federal or state constitution when they fired Plaintiff based on his political affiliation. However, Defendants are denied summary judgment on Count Three insofar as it alleges civil conspiracy to terminate Plaintiff based on the firing of Defendant Smith from Irvington, as alleged in Count One.
Count Four alleges a violation of substantive due process under the New Jersey Constitution. Specifically, Plaintiff claims that the "individual Defendants [sic] actions were arbitrary and capricious and an exercise of the power of government for purposes of oppression."
"Principles of substantive due process are found in Article I, [Section] I of the New Jersey Constitution of 1947, as well as in the federal constitution." Hutton Park Gardens v. Town Council of Town of W. Orange, 68 N.J. 543, 560 (N.J. 1975). Generally "[i]n cases raising substantive due process claims under [the New Jersey Constitution], [the Supreme Court of New Jersey] uses the standards developed by the United States Supreme Court under the federal Constitution." Roman Check Cashing, Inc. v. New Jersey Dep't of Banking & Ins., 169 N.J. 105, 110 (N.J. 2001) (internal quotation omitted). Additionally, "[t]he elements of a substantive due process claim under the CRA are the same as those under § 1983." Filgueiras v. Newark Pub. Sch., 426 N.J.Super. 449, 468 (App. Div. 2012). Accordingly, this Court examines Plaintiffs substantive due process claim under the New Jersey Constitution in the same way that it would examine such a claim under the federal constitution.
"The Due Process Clause of the Fourteenth Amendment provides that no state shall 'deprive any person of life, liberty, or property, without due process of law.'" Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 138 (3d Cir. 2000) (quoting U.S. Const, amend. XIV). "While on its face this constitutional provision speaks to the adequacy of state procedures, the Supreme Court has held that the clause also has a substantive component." Id. at 138-39. However, litigants face substantial burdens to show violations of substantive due process. As the Supreme Court of New Jersey has described, "substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that shock the conscience or otherwise offend . . . judicial notions of fairness . . . and that are offensive to human dignity. With the exception of certain intrusions on an individual's privacy and bodily integrity, the collective conscience of the courts is not normally shocked." Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366 (1996) (emphases added) (internal quotations, citations, and brackets omitted). The Third Circuit has instructed that when a plaintiff challenges an adverse employment decision on substantive due process grounds, first the court must determine whether the property interest deprived is "fundamental," and if it is, "then substantive due process protects the plaintiff from arbitrary or irrational deprivation, regardless of the adequacy of the procedures used." Id. at 142. The Third Circuit has further guided that "a property interest that falls within the ambit of substantive due process may not be taken away by the state for reasons that are arbitrary, irrational, or tainted by improper motive, or by means of government conduct so egregious that it shocks the conscious." Id. at 139 (internal quotations and citations omitted); Chainey v. St., 523 F.3d 200, 219 (3d Cir. 2008) ("To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience." (citation omitted)).
Defendants argue that Plaintiff has no substantive due process claim to his employment as Assistant City Attorney because he had no right to this job and because his termination did not infringe on any property or liberty interest. Plaintiff admits that he had no employment contract and was an at-will, unclassified employee. Pl. SOMF ¶ 2; Childress Dep. 24:10-25. ("It's an atwill position. ... No question about it."). Courts have repeatedly held that "[a]n employee hired at will has no protected interest in his employment and may not prevail on a claim that his or her discharge constituted a violation of property rights." Filgueiras v. Newark Pub. Sch., 426 N.J.Super. 449, 469-70 (App. Div. 2012); Robertson v. Fiore, 62 F.3d 596, 601 (3d Cir. 1995); see also Nicholas, 227 F.3d at 142-43 (holding that even a tenured public college professorship is not a "fundamental" property interest entitled to substantive due process protections). Accordingly, it is clear that Plaintiff had no substantive property interest violated by his termination. For these reasons, Defendants' motions for summary judgment on Count Four are granted,
Count Five alleges a breach of the implied covenant of good faith and fair dealing based on Plaintiffs claim that "[ijnherent in the City of Orange Township's Employee Handbook of Personnel Policies and Procedures a [sic] duty of good faith and fair dealing pursuant to Federal, State and local law." Compl. ¶ 42. Defendants argue that Plaintiff had no employment contract and therefore there was no breach. Plaintiff offers no arguments in opposition.
Under New Jersey law, every contract "contains an implied covenant of good faith and fair dealing." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (N.J. 1997). This means that "[i]n every contract there is an implied covenant that neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract[.]" Palisades Properties, Inc. v. Brunetti, 44 N.J. 117, 130 (1965) (internal quotation omitted). "To recover for breach of the implied covenant, a plaintiff must prove that: (1) a contract exists between the parties; (2) the plaintiff performed under the terms of the contract; (3) the defendant acted in bad faith with the purpose of depriving the plaintiff of rights or benefits under the contract; and (4) the defendant's actions caused the plaintiff to sustain damages." Litongo v. Vill. Supermarket, Inc., 261 F.Supp.3d 520, 531-32 (D.N.J. 2017) (citations omitted).
Here, Plaintiff admitted that he was an at-will employee. Childress Dep. 24:10-25 (stating, in part, that "I did not [have an employment contract with the City of Orange]" and that his position was an "at-will position.... No question about it."). This admission is dispositive because under New Jersey law, "[i]n the absence of a contract, there can be no breach of an implied covenant of good faith and fair dealing." Noye v. Hoffmann-La Roche Inc, 238 N.J.Super. 430, 434 (App. Div. 1990); accord Luongo, 261 F. Supp. 3d at 532. In fact, "[i]n New Jersey, an employer may fire an employee for good reason, bad reason, or no reason at all under the employment-at-will doctrine." Witkowski v. Thomas J. Lipton, Inc., 136 N.J. 385, 397 (N.J. 1994) (citation omitted).
Although not argued by Plaintiff, the Court also notes that the Employee Handbook did not create a contract between Plaintiff and any Defendant. In New Jersey, an employee handbook may create an employment contract in some instances. See Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284,309, modified, 101 N.J. 10 (N.J. 1985); see also Witkowski, 136 N.J. at 399. The Supreme Court of New Jersey has also made clear that "if the employer, for whatever reason, does not want the manual to be capable of being construed by the court as a binding contract, there are simple ways to attain that goal" including "the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual." Woolley, 99 N.J. 284 at 30. In other words, an effective disclaimer can be used to counter any claim of an enforceable contract.
The Employee Handbook here explicitly states, in a section titled "At-Will Employment Doctrine," the following:
Employee Handbook at 9 (emphases added).
For the reasons set forth above and for good cause shown, Defendants' motions for summary judgment on Count One are
Here, because Defendants failed to provide any analysis of the underlying factual issues regarding Smith's termination from Irvington in Count One, the Court similarly cannot grant summary judgment on the related theory in Count Three.
