The opinion of the court was delivered by: IRENAS
The instant dispute arises from the termination of plaintiff Carl Bowles ("Bowles"), Director of the Public Works Department of the City of Camden ("City"), by defendant Arnold Webster ("Webster"), Mayor of the City. In addition to defendant Webster, plaintiff is suing the City, the individual members of Camden's City Council, and Patrick Keating ("Keating"), the Business Administrator for the City. Presently before the Court is the defendants' motion for summary judgment on plaintiff's claims for retaliatory discharge under New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq., and for violation of the First Amendment under 42 U.S.C. § 1983. Plaintiff also seeks damages for defamation and, pursuant to N.J.S.A. 40:69A-43(c), for termination without a hearing. Defendants move to dismiss these claims, as well as the CEPA claim, on the basis that this Court will no longer have supplemental jurisdiction under 28 U.S.C. § 1367 if the § 1983 claim, the only claim under federal law, does not survive summary judgment. For the reasons that follow, this Court will deny the motion for summary judgment of the City and Mayor Webster, grant the motion for summary judgment of the City Council members and Keating, retain jurisdiction over plaintiff's state claims, and allow this case to proceed to trial against Webster and the City.
Shortly after his election to City Mayor, defendant Webster interviewed plaintiff Bowles for the position of the City's Director of Public Works. Bowles was sworn in on January 1, 1994. See Bowles Dep. at 24; Webster Dep. at 20. From June of 1995 through March of 1996, the Attorney General's office undertook an investigation into possible criminal violations taking place in the Department of Public Works. See Robertson Dep. at 7. The investigation concerned potentially unlawful practices in the awarding and execution of demolition contracts in the City of Camden. See Lytle Dep. at 7. Prior to Bowles' swearing in, Department of Public Works' employees had been convicted of similar criminal charges after ongoing investigation by the Attorney General's office. See Bowles Dep. at 22. Bowles apparently was aware of rumors of alleged public works scandals, schemes and kickbacks when he began working as the Director of Public Works. See Bowles Dep. at 22.
In November, 1995, Mr. William Robertson ("Robertson"), an investigator with the Attorney General's office, approached Bowles regarding the criminal investigation he was conducting into Camden's Public Works Department. See Bowles Dep. at 27-28. Bowles agreed to provide Robertson with general information regarding the ongoing demolition projects handled by the Public Works Department. See Bowles Dep. at 43-44. He also agreed to cooperate with Robertson by helping him monitor these projects and the Public Works' employees involved with them. See Bowles Dep. at 43-44.
After his initial meeting with Robertson, Bowles informed Keating, the Business Administrator for the City, of Robertson's criminal investigation and his request for Bowles' cooperation. See Bowles Dep. at 46. Keating allegedly told him to continue cooperating fully with the investigation. See Bowles Dep. at 67. Bowles also alleges that he informed Mayor Webster about his cooperation with the Attorney General's investigation. See Bowles Dep. at 49. He claims that he first informed the Mayor of the criminal investigation two days after his first interview with Robertson. See Bowles' Dep. at 49. He then claims he spoke personally with both Keating and Webster several times afterwards about the status of his cooperation with Robertson. See Bowles' Dep. at 52, 65, 67. Keating testified that there were several criminal investigations of corruption or illegal activities within the Camden government conducted by the Attorney General's office and others during Mayor Webster's administration. Law enforcement officers visited Keating at least ten times while he was the Business Administrator and Keating discussed these meetings with the Mayor. See Keating Dep. at 37-38. Nonetheless, Webster denies having been informed of Bowles' participation with the Attorney General's office and claims that he was unaware that a criminal investigation of the Public Works Department was being undertaken. See Webster Dep. at 66. However, Webster allegedly encouraged Bowles to cooperate with the law and claims he supported Bowles' investigation of the activities of those employees for whom he was responsible. See Bowles Dep. at 42, 49, 50.
As a requirement of Bowles' cooperation, Robertson asked Bowles to refrain from firing or otherwise moving personnel around in the demolition section of the Public Works Department. See Bowles Dep. at 53; Robertson Dep. at 22. Robertson informed Bowles that it was important to keep the same people in the same positions so that they could be monitored. See Bowles Dep at 53; Robertson Dep. at 24. Bowles testified that he wanted to move personnel around in order to address problems in the department, but refrained from doing so per instructions from the Attorney General's office. See Bowles' Dep. at 54. He allegedly informed both Keating and Mayor Webster that he was refraining from taking personnel action because of his compliance with the Attorney General's request. See Bowles Dep. at 73-75. Bowles told Robertson that he had advised Webster about his cooperation in the investigation. See Robertson Dep. at 22. Webster, however, allegedly having had no knowledge of the Attorney General's investigation, denies ever having been informed that Bowles was refraining from making personnel changes at the request of Robertson. See Webster Dep. at 59.
Robertson recalls a meeting scheduled for Robertson, Bowles and Webster at the Diamond Diner, Webster's favorite diner in Cherry Hill. See Robertson Dep. at 19. At the meeting, the men were going to discuss the Attorney General's criminal investigation into the Public Works Department. See Robertson Dep. at 19. However, the meeting was canceled at the last minute because of a funeral which the Mayor had to attend. See Robertson Dep. at 19. Robertson testified that he was present when Bowles called Webster on the telephone and was informed by Webster that the meeting would have to be canceled and rescheduled. See Robertson Dep. at 19. The meeting was not rescheduled and never took place. Webster denies that such a meeting was ever scheduled. See Webster Dep. at 76.
On April 30, 1996, Webster informed Bowles of his intention to terminate him. Webster called Bowles to his office and presented him with a letter informing him that he would be officially terminated in thirty days. See Bowles Dep. at 68; Exh. A to Pl. Compl. Webster then verbally informed Bowles that he would have thirty days to improve his performance before he was terminated. See Bowles Dep. at 68. Despite Webster's offer of an opportunity to demonstrate improvement, Mayor Webster had no contact with Bowles during the thirty-day period to determine whether or not Bowles had improved his performance. See Webster Dep. at 47. Webster admits he made no efforts to follow up on Bowles' performance during this period. See id. He further admits that he never told Bowles that his job might be in jeopardy prior to April 30, 1996. See Webster Dep. at 56.
On May 10, 1996, Bowles forwarded a memorandum to Webster seeking an opportunity to exercise his statutory right to a hearing prior to his termination. See Exh. Webster 2-D to Webster Dep. By regulation, he is entitled to notice and opportunity to be heard before being removed. N.J.S.A. 40:69A-43(c). Webster denies receiving Bowles' memorandum. See Webster Dep. at 52. Bowles was never given his statutorily prescribed hearing prior to his termination. See Webster Dep. at 57. Furthermore, despite claiming to give Bowles thirty days to turn his department around, Webster apparently concluded by May, 16, 1996 that Bowles' termination would in fact occur as scheduled. On that day, he sent a letter to the President of the City Council notifying the Council of his decision to fire Bowles as of June 1, 1996. See Exh. Webster 3ID to Webster Dep.
While Webster claims that people within the department complained to him about Bowles, he cannot recall the name of one person who approached him with such complaints. See Webster Dep. at 21. Keating was routinely made aware of employee disciplinary actions. He does not recall any disciplining of Bowles prior to his termination. See Keating Dep. at 54. Webster cannot recall how many people supposedly complained, nor can he recall when they complained. See Webster Dep. at 21. Bowles was never reprimanded for his alleged lack of control over personnel. See Webster Dep. at 25. Webster made no entries in Bowles' personnel file concerning his alleged lack of control over personnel. See Webster Dep. at 27, 31. While Webster claims a problem with Bowles' management style, when asked, he cannot provide a single example of any managerial skills or management tasks with which he was dissatisfied. See Webster Dep. at 34. Webster has no notes of any meetings where he discussed a problem with Bowles' management style. See Webster Dep. at 34.
Contrary to the testimony of Keating, Webster claims that concerns over Bowles' alleged lack of control over personnel were discussed at weekly staff meetings. See Webster Dep. at 21-23. Keating states that Webster never discussed Bowles' performance as Director of the Public Works Department at the weekly cabinet meetings. See Keating Dep. at 16-17. Bowles claims that he was commended by Webster for his performance in Public Works on several occasions. See Bowles' Dep. at 72-73. Personnel problems existed in the department prior to Bowles taking over. See Keating Dep. at 20. In fact, it was widely recognized that the department presented a difficult job to any director and that there were "certain characters" in the department who were hard to deal with. See Keating Dep. at 19. Bowles admits that he faced challenges with personnel in the department. He asserts that some employees were not trained to do their jobs and took offense at his attempts to train them. See Bowles Dep. at 26. He also acknowledges that he received resistance from some of the subordinate supervisors, see Bowles Dep at 30, and that the politics among certain factions presented problems. See Bowles Dep. at 28. Although Bowles was certainly challenged by his job as director of such a large and previously troubled department, observers testified that he did his best to rise to the challenge. See Robertson Dep. at 23-24. Keating stated that, in his opinion, Bowles was not any worse than any of his predecessors. See Keating Dep. at 19.
Plaintiff filed his complaint in this Court on October 17, 1996. He set forth causes of action alleging: 1) violation of the First Amendment and 28 U.S.C. § 1983; 2) violation of New Jersey's CEPA, N.J.S.A. 34:19-1 et seq.; 3) violation of New Jersey public policy; 4) termination without a hearing in violation of N.J.S.A. 40:69A-43(c); and 5) defamation. On April 17, 1997, we denied defendants' motion to dismiss plaintiff's first, second, fourth and fifth claims. Because plaintiff's CEPA claim precluded bringing a retaliation claim under New Jersey common law, we dismissed plaintiff's third claim for violation of New Jersey public policy.
Under Fed. R. Civ. P. 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). A non-moving party may not rest upon mere allegations, general denials, or vague statements in opposition to a summary judgment motion. If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Bixler v. Central Penna. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus. Inc. v. Local 825, Int'l Union of Operating Engineers, 982 F.2d 884, 890-91 (3d Cir. 1992).
It is not the role of the judge at the summary judgment stage to weigh the evidence or to evaluate its credibility, but to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The Court must draw all inferences in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, the Court must accept the non-movant's version as true. Pastore v. Bell Tel. Co. of Penna., 24 F.3d 508, 512 (3d Cir. 1994).
The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. A genuine issue of material fact for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring).
For reasons discussed more fully below, see infra Part II, Section G, we will focus our CEPA and § 1983 retaliatory discharge analyses on plaintiff's claims against Mayor Webster and the city. Mayor Webster bears primary responsibility for the decision to terminate Bowles and is therefore the person whose actions deserve the most scrutiny. Because we previously found that the City is not immune under Monell v. Department of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), any liability arising from the Mayor's actions ...