emotional distress and embarrassment." Id., P 17.
The ad damnum clause of the Complaint seeks a declaratory judgment that the "Defendants' acts, policies, practices and procedures ... have violated and continue to violate the rights of [Raniero] as secured by the First and Fourteenth Amendments." Ad damnum clause, P (a). Raniero seeks to enjoin Defendants preliminarily and permanently from discriminating against him for "his participation or lack thereof in the political process" and to require Defendants to immediately promote Raniero "retroactively to the highest paid of those positions for which he has applied." Id., PP (b)-(c). Raniero additionally seeks damages for "all salary, compensation and other benefits of employment lost since the date he was refused promotion," compensatory damages for his pain and suffering and punitive damages. Id., PP (d)-(f). Finally, Raniero seeks "such additional relief as the Court deems just and proper" and reasonable attorneys' fees and disbursements. Id., PP (g)-(h).
A. Summary Judgment Standard of Review
To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Witco Corp. v. Beekhuis, 38 F.3d 682, 686 (3d Cir. 1994). The present task is to determine whether genuine issues of material fact exist and whether Defendants are entitled to judgment. A district court, however, may not resolve factual disputes on a motion for summary judgment. Linan-Faye Constr. Co. v. Housing Auth., 49 F.3d 915, 926-27 (3d Cir. 1995) ("at the summary judgment stage, 'the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial'") (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)); Desvi, Inc. v. Continental Ins. Co., 27 V.I. 408, 968 F.2d 307, 308 (3d Cir. 1992).
In considering a motion for summary judgment, all evidence submitted must be viewed in a light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 130-31 (3d Cir. 1996); General Ceramics Inc. v. Firemen's Fund Ins. Cos., 66 F.3d 647, 651 (3d Cir. 1995); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983) (the court must resolve "all inferences, doubts and issues of credibility ... against the moving party"), cert. dismissed, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984).
When the resolution of issues depends wholly upon the interpretation of specific statutory language and the applicable law, summary judgment is appropriate. See DiBiase v. Smithkline Beecham Corp., 48 F.3d 719, 724 (3d Cir.), cert. denied, U.S. , 133 L. Ed. 2d 210, 116 S. Ct. 306 (1995); see also Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.) ("summary judgment is proper where the facts are undisputed"), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985); Estate of Reddert, 925 F. Supp. 261, 265 (D.N.J. 1996).
In addition, when the nonmoving party bears the burden of proof at trial, the moving party is entitled to summary judgment by showing "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Once the movant demonstrates an essential element of the nonmovant's case is lacking, the nonmovant must come forward with sufficient evidence to demonstrate there is a factual controversy as to that element. Anderson, 477 U.S. at 247; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995); Witco, 38 F.3d at 686. "The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; Matsushita, 475 U.S. at 586 (nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts"); accord Siegel, 54 F.3d at 1130-31; Nevets C.M., Inc. v. Nissho Iwai Am. Corp., 726 F. Supp. 525, 534 (D.N.J. 1989), aff'd without Op'n, 899 F.2d 1218 (3d Cir. 1990).
If the nonmovant fails to make a sufficient showing regarding an essential element of its case upon which it will bear the ultimate burden of proof at trial, all other facts are necessarily immaterial and summary judgment must be granted. Celotex, 477 U.S. at 321; Siegel, 54 F.3d at 1130-31; see also Armstrong v. City of Dallas, 997 F.2d 62, 67 (5th Cir. 1993) ("summary judgment is appropriate where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant, or where it is so overwhelming that it mandates judgment in favor of the movant").
B. Section 1983
Section 1983 provides a cause of action against a person "who, under the color of any statute ... of any State ... subjects, or causes to be subjected, any citizen ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. The purpose of Section 1983 is "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails." Wyatt v. Cole, 504 U.S. 158, 161, 118 L. Ed. 2d 504, 112 S. Ct. 1827 (1992) (citing Carey v. Piphus, 435 U.S. 247, 254-57, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978)); see also Blanche Road Corp. v. Bensalem Township, 57 F.3d 253, 265 (3d Cir.), cert. denied, U.S. , 133 L. Ed. 2d 208, 116 S. Ct. 303 (1995); Bolden v. SEPTA, 21 F.3d 29, 34 (3d Cir. 1994).
To state a claim under Section 1983, Raniero must allege (1) conduct committed by a person acting under color of state law; and (2) that this conduct deprived him of "rights, privileges, or immunities secured by the Constitution and laws" of the United States." Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); see West v. Atkins, 487 U.S. 42, 48-49, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1978); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993); Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990).
In support of the instant motion, Defendants argue Raniero cannot satisfy the second element of a claim under Section 1983; Defendants contend the denial of a prospective job promotion does not constitute a denial of either a property or a liberty interest. Moving Brief at 16-17. Defendants additionally argue Raniero cannot prove his First Amendment rights have been violated. Moving Brief at 18-20.
C. Raniero's Claim Pursuant to the First and Fourteenth Amendments
As indicated, Raniero alleges Defendants' actions violated his rights under the First and Fourteenth Amendments to the United States Constitution. Complaint, P 6, 14. The Due Process Clause of the Fourteenth Amendment provides three distinct types of Constitutional protection. "First, the Clause incorporates many of the specific protections defined in the Bill of Rights.... Second, the Due Process Clause contains a substantive component that bars certain arbitrary wrongful government actions 'regardless of the fairness of the procedures used to implement them.'" Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed. 2d 100, 110 S. Ct. 975 (1990). Third, the Due Process Clause contains a procedural component that protects against the "deprivation by state action of a constitutionally protected interest in 'life liberty or property' ... without due process of law." Id. (quoting Parratt, 451 U.S. at 537; emphasis in original omitted).
Defendants argue the Motion for Summary Judgment must be granted because Raniero cannot show he was entitled to promotion. Moving Brief at 16-17. The cases relied upon by Defendants, however, do not involve First Amendment claims. See id. at 16-17 (citing Hunter v. City of Warner Robins, Ga., 842 F. Supp. 1460 (M.D.Ga. 1994); Brown v. County of Jackson, 804 F. Supp. 939 (E.D.Mich. 1992); Santella v. City of Chicago, 721 F. Supp. 160 (N.D.Ill. 1989)). Raniero does not argue Defendants' actions have violated any property or liberty interest he possesses. Opposition Brief at 2-3. Raniero, in fact, concedes he "has no right to promotion to any of the positions at issue herein." Id. at 19. The fact that Raniero is not entitled to the promotions has no bearing on his First Amendment claim. Rutan v. Republican Party of Illinois, 497 U.S. 62, 72, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990) (citing Perry v. Sindermann, 408 U.S. 593, 596-98, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972)); see also Branti v. Finkel, 445 U.S. 507, 514-15, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Mt. Healthy City School Dis't Bd. of Ed. v. Doyle, 429 U.S. 274, 283-84, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Elrod v. Burns, 427 U.S. 347, 359-60, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976).
Raniero alleges Defendants violated his First Amendment Rights because he was not promoted due to his lack of involvement with the ACO. Complaint, P 13. Discrimination against public employees such as Raniero based upon their political party affiliation and support violates their First Amendment rights. Rutan, 497 U.S. at 75, 79; see Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705-06 (1st Cir. 1993).
In Rutan, the Court held that promotions, transfers and recalls following layoffs based upon political affiliation or support are an impermissible infringement on the First Amendment rights of public employees. 497 U.S. at 75. The Rutan Court observed these employees "will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they actually hold, in order to progress up the career ladder." Id. Two of the petitioners in Rutan, in fact, alleged they were denied promotions because they had not worked for or supported a political organization. Id. at 67. It therefore appears Raniero's disinclination to become involved with the ACO is "activity" protected by the First Amendment. Id. Rutan forecloses any question whether Raniero's disinclination to be involved with the ACO is protected "activity." Id. at 73-75.
To succeed on his First Amendment Claim, Raniero must show: (1) his conduct was "constitutionally protected"; and (2) his conduct was a "'substantial factor' or ... a 'motivating factor'" in the Board's decision not to promote him. Mt. Healthy, 429 U.S. at 287; see Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996); Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995); Bradley v. Pittsburgh Bd. of Ed., 913 F.2d 1064, 1074-1075 (3d Cir. 1990); Monsanto v. Quinn, 674 F.2d 990, 999-1000 (3d Cir. 1982); Trotman v. Board of Trustees of Lincoln Univ., 635 F.2d 216, 224 (3d Cir. 1980), cert. denied, 451 U.S. 986, 68 L. Ed. 2d 844, 101 S. Ct. 2320 (1981); see also Alexander v. Polk, 750 F.2d 250, 264 (3d Cir. 1984); Behring Int'l, Inc. v. NLRB, 675 F.2d 83, 88 (3d Cir. 1982). If Raniero meets his burden, Defendants are given the opportunity to show by a "preponderance of the evidence" they would have reached the same decision in the absence of the protected conduct. Mt. Healthy, 429 U.S. at 287; Pro, 81 F.3d at 1288; Watters, 55 F.3d at 892; Trotman, 635 F.2d at 224. Both parties endorse the Mt. Healthy analysis. Moving Brief at 18; Opposition Brief at 12.
The second part of the Mt. Healthy analysis is dispositive in this case. Raniero must show more than that he engaged in protected activity; he must also show his noninvolvement with the ACO was a "substantial" or "motivating" factor in the Board's decision not to promote him. Mt. Healthy, 429 U.S. at 287. Raniero has failed to meet his burden.
Raniero argues "each position for which [he] applied and was fully qualified, was filled by someone involved with the [ACO]." Opposition Brief at 9. Raniero also alleges he was as or more qualified than the persons selected for promotion and the only reason he was not promoted was because he chose not to be involved with the ACO. Complaint, P 13.
Raniero, however, concedes Thompson's involvement with the ACO started only after she was selected to be an Assistant Principal. Opposition Brief at 10. Raniero, moreover, fails to allege that Michele Frenza Fisk ("Fisk"), who was appointed to one of the CRT positions, had any involvement with the ACO whatsoever.
Complaint, P 13(m) - (o).
Raniero's deposition transcript indicates he has no credible evidence to support his claim. He concedes he has no direct evidence Marini made the recommendations based on the candidates' affiliation with the ACO. Raniero Dep. at 157. He conclusorily states, however, that Marini, Highton and even Bruce Walter, the Mayor of Union City, all provide preferential treatment to ACO supporters and discriminate against individuals who refuse to support the ACO. Id. at 159-60. He vaguely states his knowledge is derived from his "experience in being part of Union City for 23 years and hearing and listening to what people say and do." Id. at 160. However, he provides no support for such conclusions. Raniero merely states he has "concluded it was lack of involvement with the [ACO] which denied him ... promotion." Opposition Brief at 13. Raniero's opinion he was discriminated against is insufficient to defeat this summary judgment motion. Hom v. Squires, 81 F.3d 969, 974 (10th Cir. 1996) (plaintiff's affidavit stating his belief he was discharged because of his exercise of his First Amendment rights was insufficient to establish a causal connection between his "speech" and his subsequent discharge); Finnegan v. Board of Ed. of Troy, 30 F.3d 273, 274 (2d Cir. 1994) (plaintiff's "conclusory allegations and his own opinion" were insufficient to create a genuine issue to be tried).
Raniero essentially argues the Motion for Summary Judgment should be denied simply because the Defendants and most of the successful candidates were involved with the ACO. This evidence is insufficient to defeat summary judgment. See Orsatti v. New Jersey State Police, 71 F.3d 480, 484-86 (3d Cir. 1995); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1082-1083 (3d Cir. 1992); Stewart v. Rutgers, 930 F. Supp. 1034, 1996 WL 341339 at * 14 (D.N.J. 1996); see also Matsushita, 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (allowing summary judgment where a predatory pricing conspiracy in violation of the Sherman Act was largely founded on weak circumstantial evidence); Nereida-Gonzalez, 990 F.2d at 706 (summary judgment not proper where plaintiff introduced "direct evidence of discriminatory animus" that was buttressed by circumstantial evidence).
Even presuming Raniero was able to show his lack of support for the ACO was a substantial or motivating factor behind the decision not to promote him, Defendants would be given the opportunity to prove they "would have reached the same decision ... even in the absence of the protected conduct." Mt. Healthy, 429 U.S. at 287.
As the Court observed in Mt. Healthy :
A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision ... on the basis of that record [.]
429 U.S. at 286 (emphasis added). The Defendants have submitted ample evidence that Raniero would not have been chosen for promotion even if he were involved with the ACO.
Raniero did not interview for the positions of Assistant Principal or Curriculum Resource Teacher.
Raniero Dep. at 18-21. Raniero did not submit letters of recommendation or a resume with his applications. He did not participate in after-school or summer programs. Kovacs Cert., P 4. As indicated, the successful applicants all interviewed for the positions they received, many included letters of recommendation with their applications and many were active in extracurricular activities.
It is instructive to consider Raniero's proffered evidence under the burden-shifting scheme established by the Supreme Court for claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Although that framework applies to actions brought pursuant to Title VII, see Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994), and the ADEA, see O'Connor v. Consolidated Coin Caterers Corp., U.S. , 134 L. Ed. 2d 433, 116 S. Ct. 1307, 1309-1310 (1996), it is also a useful framework for evaluating Raniero's First Amendment Claim. In McDonnell Douglas Corp. v. Green, the Supreme Court held that once a complainant establishes a prima facie case, the burden shifts to the employer to articulate some "legitimate nondiscriminatory reason for the employee's rejection." Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (citing McDonnell Douglas v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1983)). To overcome the presumption, the employer must clearly set forth, through the introduction of admissible evidence, reasons for its actions that support a finding that unlawful discrimination was not the cause of the employment action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). Once the employer meets his burden of production, the plaintiff is afforded a fair opportunity to show the employer's stated reason for the employment action is pretext. Waldron, 56 F.3d at 494.
Presuming Raniero stated a prima facie case of discrimination under Title VII, the Defendants have submitted ample credible evidence that Raniero was not selected for promotion simply because the other candidates were better qualified. As indicated, Defendants have met their burden of proof under the Mt. Healthy analysis and would certainly meet their burden of production under the McDonnell Douglas burden-shifting scheme.
Raniero has submitted no credible evidence showing the Defendants' stated reasons were pretextual. Raniero merely states the testimony of the Individual Defendants lacks credibility. Opposition Brief at 13, 17. He asserts Marini's consideration of letters of recommendation and the applicants' participation in extracurricular activities was improper because applicants were not informed these factors would be considered. Curiously, Raniero argues Marini's failure to review applicants' personnel files unless he "sensed ... something wrong" and his recommendation of certain candidates over others whom he rated the same or higher on their interviews are suspicious. Id. at 14. Finally, Raniero argues the "professed ignorance" of various Individual Defendants regarding the functioning of the ACO demonstrates their testimony lacks credibility. Id. at 16-17.
Although the evidence must be viewed in the light most favorable to Raniero, Matsushita, 475 U.S. at 587, the asserted "inconsistency" of Marini's testimony and the lack of knowledge on the part of the Individual Defendants of the ACO's activities, Opposition Brief at 17, do not create a genuine issue of material fact. Raniero provides no support for his assertions Marini acted improperly in considering letters of recommendation and participation in extracurricular activities and that Marini was under an obligation to review the personnel files of the applicants. Marini, moreover, indicated he ranked applicants based on their performance in the interview but recommended them based on their overall application. Marini Dep. at 84. It is not inconsistent, therefore, that some applicants may have been promoted in preference to other applicants who "scored" higher in the interview. Id.
Discovery in this case has been extensive. With the exception of Leone, all of the Individual Defendants have been deposed. See Opposition Appendix; Kovacs Cert., passim. A review of the deposition transcript excerpts reveals no genuine issues of material fact. Raniero essentially presents a dispute over the qualifications of the candidates for promotion; this is insufficient to defeat this motion for summary judgment. Stewart, 930 F. Supp. 1034, 1996 WL 341339 at *19 (citing Bennun v. Rutgers, 941 F.2d 154, 170 (3d Cir. 1991), cert. denied, 502 U.S. 1066, 117 L. Ed. 2d 124, 112 S. Ct. 956 (1992)); see also Molthan v. Temple Univ., 778 F.2d 955, 962 (3d Cir. 1985).
For the reasons stated, the Motion for Summary Judgment is granted.
Dated: 13 August 1996