The opinion of the court was delivered by: BIUNNO
Following appeal from this court's order dismissing the complaint against the Secretary (treated by the Court of Appeals, 615 F.2d 980 (3rd Cir.) as a grant of summary judgment, and affirmed), and from another order granting summary judgment to the City defendants, the order in lieu of mandate directed that the latter disposition be vacated and that part of the case remanded for further proceedings.
The reason for this was that the order in favor of the City, which it submitted after the ruling in open court, set out no recital of the underlying grounds. No written opinion was filed. This was because the ruling was made from the bench, at the second of two hearings and none of the parties had undertaken to order transcripts. Thus, the Court of Appeals was deprived of the benefit of the hearing record contained in the two transcripts.
Since the basis for the remand is to have this court articulate its reasons for the order granting summary judgment to the City defendants, this memorandum will supplement the transcripts of the two hearings.
The City's brief observed that the definitions of an "employer", in 29 U.S.C. § 152(2) expressly excludes "any State or political subdivision thereof." NLRB v. Natural Gas, etc., 402 U.S. 600, at 604, 91 S. Ct. 1746, at 1749, 29 L. Ed. 2d 206 (1971) recognizes the Congressional intent to except the labor relations of State and municipal governments, among others.
Plaintiff's responding brief makes no mention of this point, evidently conceding it sub silentio. The subject was mentioned briefly at oral argument, when City counsel argued that any claim of that type would be State law claims only under New Jersey's Public Employers Relations Act, N.J.S.A. 34:15A-1 et seq. See Transcript of April 9, 1980, p.21, line 25 to page 23, line 13. The argument in reply, Tr. p.27, line 1 to page 28, line 24 dealt with the alleged collective bargaining agreement and its ability to create property or tenure rights under New Jersey Civil Service Laws and the requirement of N.J.Const. 1947, Art. 7 sec. 1, par. 2, directing that:
"Appointments and promotions in the civil service of the State, and of such political subdivisions as may be provided by law, shall be made according to merit and fitness to be ascertained, as far as practicable, by examination, which, as far as practicable, shall be competitive;"
There was no assertion, at argument, to challenge the point that municipal labor relations are not within the Labor Management Relations Act.
Since the status of the City as a municipal corporation of the State of New Jersey, and the terms of the Local 245 agreement are matters of fact outside the pleadings, the motion as to the First Count is treated as a motion for summary judgment. The court takes judicial notice of the fact that Jersey City is a municipality of the State of New Jersey, Fed.Ev. Rule 201. Several copies of the Local 245 contract with the City are part of the record as an attachment to an affidavit or to sworn answers to interrogatories (which amount to the same thing) and are part of the record before the court. Neither of these items is in any way contradicted.
There being no genuine issue of any material fact on this point, and defendants being entitled to judgment as a matter of law, summary judgment in their favor on the First Count is warranted.
The Second Count purports to assert claims arising under 42 U.S.C. §§ 1983 and 1985(3), with jurisdiction under 28 U.S.C. § 1343. Deprivation of due process of law under the U.S. Constitution is also claimed.
The operative allegations in the Second Count are that DeTore was terminated on or about July 10, 1975 "for no other reason than that the plaintiff being (sic) a transexual (sic)," paragraph 15, and that in violation of the 14th and 5th Amendments defendants "refused to permit plaintiff a hearing, although due demand for the same was made, in violation of the plaintiff's rights of due process," paragraph 17.
The moving affidavits of the City defendants establish that plaintiff was discharged for insubordination after written notice and warning of other work-related charges. Both notices, which are part of the record as attachments to plaintiff's own answers to interrogatories, show that for each charge plaintiff was provided an opportunity to respond or provide an explanation in writing. In both instances, plaintiff wrote in and signed a response but neither one addresses the charge made; both are evasive, flippant or arrogant. The action taken on the first was to authorize a written warning, and on the second it was discharge.
Plaintiff's proofs in opposition to the motion utterly fails to meet any of these facts. They are not denied. Instead, the affidavits, while couched in phrasing that seem to be facts, are actually nothing more than allegations in repetition of the pleadings, or out-and-out conclusions with no facts presented to support them.
On a motion for summary judgment under Rule 56, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine ...