Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 85-1748.
Gibbons, Chief Judge, Sloviter, and Cowen, Circuit Judges.
John N. Zamboni, a detective in the Union County Prosecutor's Office, filed suit under 42 U.S.C. § 1983 against the Union County Prosecutor and others alleging that they had taken various disciplinary actions against him in retaliation for his expression of opposition to changes in certain personnel policies and procedures in the prosecutor's office. Zamboni claimed that the retaliation violated his First Amendment rights. The district court granted the defendants' motion for summary judgment and dismissed Zamboni's complaint on the ground that Zamboni's expressions were not on a matter of public concern and hence were outside the ambit of First Amendment protection. The court also dismissed Zamboni's pendent claims under state law. The issues on appeal require us to consider both the First Amendment rights of public employees and the parameters of the New Jersey common law torts of wrongful discharge and intentional infliction of emotional distress.
John N. Zamboni is a detective with the rank of lieutenant in the Union County Prosecutor's Office, where he has been employed for over twenty years. Defendant John H. Stamler is the Prosecutor of Union County and is the highest law enforcement officer in Union County.
The organization of the investigative staff of the Union County Prosecutor's Office is governed by the New Jersey County Detectives and County Investigators Act, N.J. Stat. Ann. §§ 2A:157-1 et seq. (West 1985) (the Act). The Act contemplates two categories of investigative officers, detectives and investigators, who perform essentially the same duties. Compare id. § 2A:157-2 with id. § 2A:157-10. The Act specifies the number, title, and salaries of superior officers within the detective ranks, id. §§ 2A:157-3 to -9, but is silent as to superior officers within the investigative class.
Detectives are in the classified branch of the civil service, id. § 2A:157-2, and, therefore, their appointment and promotion must be "made according to merit and fitness to be ascertained, as far as practicable, by examination." N.J. Const. art. VII, § 1, para. 2; see also New Jersey Civil Service Act, N.J. Stat. Ann. §§ 11:1-1 et seq. (West 1976) (the then applicable civil service provisions for appointment, promotion, termination, and working conditions of civil servants).*fn1 Investigators, on the other hand, are not in the classified civil service; their appointment and promotion is within the sole discretion of the prosecutor who may, for example, remove an investigator at any time and for any reason. See N.J. Stat. Ann § 2A:157-10; Muccio v. Cronin, 135 N.J. Super. 315, 343 A.2d 158 (Law Div. 1975).
In late 1982, Stamler announced his intention to reorganize the prosecutor's office. Promotions thereafter would be made only from among the unclassified investigators. Superior officer positions within the investigator branch would be established to parallel those statutorily designated in the detective branch. Any detective who sought a promotion was instructed to take a leave of absence from the classified service, request a change in job classification to county investigator, join the investigators' staff, and then seek a promotion in the newly-established superior ranks of the investigator staff. If not so promoted, s/he could return to the classified service at the expiration of the leave of absence.
In compliance with the reorganization plan and in hopes of being promoted, Zamboni, like many of the other detectives in the prosecutor's office, requested both a leave of absence from his position as lieutenant of detectives and an appointment as lieutenant of investigators. He contends that at this time he also expressed his dissatisfaction with the plan to Stamler in a private meeting.
Nineteen investigators in the prosecutor's office, but not Zamboni, were promoted effective March 1, 1983 pursuant to the new procedure. Zamboni, retaining his rank of lieutenant, was transferred from a supervisory position as Commander of the Welfare Fraud Unit to a non-supervisory position in the Trial Unit, where he was responsible for helping assistant prosecutors prepare for trial by serving subpoenas and arranging for witnesses to appear.
The New Jersey Department of Civil Service describes the duties of a lieutenant of detectives as including the "supervis[ion of] a number of county detectives and investigators." App. at 155. Upon his transfer, Zamboni wrote a letter to Stamler requesting an assignment to a position with supervisory authority. He also began publicly to criticize Stamler's reorganization plan. First, he wrote a six-page letter to the Civil Service Commission dated March 8, 1983 which began: "I would like to bring to your attention a situation involving non-conformance to the duties and responsibilities relating to job classification as set forth by the Civil Service Commission." App. at 76. Zamboni complained about, inter alia, "the prosecutor's purposeful attempt to subvert the Civil Service System and carry out his own plans, without regard to the law," App. at 80, and Zamboni's own transfer to the Trial Unit, which he claimed was an "abuse of Civil Service Regulations concerning the assignment of work according to Title and Classification" in that he was working without supervisory duties and therefore out of title. App. at 81.
The Civil Service Commission's initial determination was unfavorable to Zamboni. Zamboni appealed that determination to the Division of Appellate Practices and Labor Relations of the Department of Civil Service in another letter dated August 19, 1983, in which he made clear that he was not claiming entitlement to receive a promotion in the unclassified ranks, but rather that "the arbitrary and capricious manner in which this situation has been handled by the Prosecutor violates the basic tenets of Civil Service law, and therefore my rights as well." App. at 93.
Unsuccessful administratively,*fn2 Zamboni then turned to the New Jersey courts. His complaint asserted that the reorganization plan violated the civil service laws "in that defendants have circumvented established guidelines for the promotion of individuals in the classified service." App. at 88-89. Zamboni asked the court for an adjudication that the promotion plan was unlawful and for an order directing the defendants to, inter alia, cancel all promotions made under the new plan and cease requiring Zamboni to perform duties that were outside of his job title. The Law Division, affirmed by the Appellate Division of the Superior Court, sustained Stamler's authority to make the promotions at issue. Zamboni v. Stamler, 194 N.J. Super. 598, 477 A.2d 449 (Law Div. 1984), aff'd, 199 N.J. Super. 378, 489 A.2d 1169 (App. Div. 1985).*fn3
Zamboni contends in the present lawsuit filed in federal court in April 1985 under 42 U.S.C. § 1983 that from the time that he began to protest Stamler's reorganization plan he was subjected to numerous disciplinary actions, including his transfer to the Trial Unit; a four-day suspension without pay for failing to keep accurate records while in the Welfare Fraud Unit; a $100 fine for insubordination for using office stationery to write his complaint to the Civil Service Commission; orders to turn in his gun and submit to a psychiatric exam due to his "attitude" problems; and numerous written reprimands for, for example, failing to say "Good Morning" to Stamler, sending a memo directly to Stamler rather than through the chain of command, asking an assistant prosecutor about his (Zamboni's) state court case during office hours, and not being able to be located during work hours.
Zamboni names as defendants Stamler, certain other officials of Stamler's staff, the County of Union, and the Union County Prosecutor's Office (hereinafter collectively referred to as "Stamler"). Zamboni alleges that the disciplinary actions were taken in retaliation for his criticism of the reorganization plan, thereby violating his First and Fourteenth Amendment rights and giving rise also to the state law torts of wrongful retaliation and intentional infliction of emotional distress. Notwithstanding that for the purposes of their summary judgment motion defendants conceded and the district court assumed that these disciplinary measures not only occurred, but also were taken in reprisal for Zamboni's outspoken opposition to the reorganization plan, the district court granted Stamler's motion for summary judgment and dismissed the complaint with prejudice. Zamboni v. Stamler et al., slip op., No. 85-1748 (D.N.J. June 10, 1987). Zamboni ...