may have there genesis in Bowles' refusal to violate the instructions of the Attorney General by moving personnel around. The record suggests that Bowles refrained from taking action to address certain situations in the department because they were the subject of Robertson's criminal investigation and he was told not to interfere. Bowles testified that he informed Webster of his reasons for refraining from taking personnel action. If Webster knew Bowles' compliance with the investigation precluded him from addressing certain problems and then fired him because of "management differences," "gross incompetence" or "lack of control over personnel" directly stemming from Bowles' inability to both address these problems and comply with the Attorney General's directives, a jury might find this "overt" evidence "so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production." Armbruster, 32 F.3d at 778. If this is true, defendants will have difficulty bearing the burden of proving that Webster did not "place substantial negative reliance on an illegitimate criterion in reaching [his] decision," Price Waterhouse, 490 U.S. at 277 (O'Connor. J. concurring), and plaintiff may prevail on a mixed-motives theory.
F. Violation of 42 U.S.C. § 1983 Based on Exercise of First Amendment
Bowles alleges that Webster terminated him for exercising his First Amendment rights to free speech in violation of 42 U.S.C. § 1983. Section 1983 provides a civil remedy against those who, under color of state law, deprive others of their constitutional rights. To prove a claim of retaliation for having engaged in free speech protected by the First Amendment, a plaintiff must first show that his speech constituted protected activity. See Feldman v. Philadelphia Housing Auth., 43 F.3d 823, 829 (3d Cir. 1994); Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). Plaintiff must then demonstrate that his protected activity was a substantial or motivating factor in the alleged retaliation. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997); Feldman, 43 F.3d at 829; Holder, 987 F.2d at 194. To defeat plaintiff's claim, defendants must prove they would have acted no differently in the absence of plaintiff's protected conduct. See Feldman, 43 F.3d at 829; Holder, 987 F.2d at 194.
In our April 17, 1997 Opinion denying defendants' motion to dismiss, we found that plaintiff's statements to Webster, Keating and Robertson about the ongoing Attorney General's investigation constituted free speech protected by the First Amendment. See Bowles v. City of Camden et al., 1997 U.S. Dist. LEXIS 5370, *7, No. 96-4907, (D.N.J. 1997). As we noted, the Supreme Court has held that "statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors." Pickering v. Bd. of Educ., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). Bowles' statements involved matters of public concern and are therefore protected. Defendants have not presented any arguments which challenge our finding that Bowles' statements were protected. Thus, we now turn to an analysis of whether Bowles' cooperation in the investigation was a substantial or motivating factor in Webster's decision to terminate him. Mt. Healthy, 429 U.S. at 287.
Based on our analysis of plaintiff's CEPA claim, see supra at pp. 18-22, we find that there is a genuine issue of fact as to whether Bowles' cooperation with the Attorney General was a substantial or motivating factor in Webster's decision to fire him. Because we feel the analyses required for a CEPA retaliatory discharge claim and a § 1983 First Amendment retaliation claim are so similar, we need not revisit our reasons for questioning Webster's motivation for terminating Bowles here. Instead, we rely on our CEPA analysis for our conclusion that Webster has not provided sufficient evidence to demonstrate that his actions were taken for a valid, non-retaliatory reason. Thus, we will deny the City and Webster's motion for summary judgment on plaintiff's § 1983 claim.
G. Liability of Keating and Named City Council Members Under § 1983 and CEPA
As defendants correctly point out, in order for defendants to be liable under § 1983 in their individual capacity, they must have caused the deprivation of a federal right. See Kentucky v. Graham, 473 U.S. 159, 167, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985). Here, neither Keating nor members of the City Council terminated Bowles themselves. Only Webster can be held directly responsible for Bowles' termination. Nonetheless, city actors who are indirectly involved in a deprivation of rights may be liable for a § 1983 violation under certain limited circumstances.
In St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988), the Supreme Court reviewed several guiding principles governing when a decision on a single occasion may be enough to establish an unconstitutional municipal policy and which city officials may be held liable for it. Praprotnik held that § 1983 liability exists only for acts "which the municipality has officially sanctioned or ordered." Id. at 123. Only those municipal officials who have "final policymaking authority" may be liable. Praprotnik also held that whether a particular official has "final policymaking authority" is a question of state law. Id. For liability to lie, the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the city's business. Id. See generally Pembaur v. City of Cincinnati, 475 U.S. 469, 480-83, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).
Thus, in order to determine whether or not Keating and the individual City Council members may be liable for Bowles' termination, we must decide whether, under New Jersey law, Keating or any of the City Council members had final policymaking power with respect to the termination of department heads, and if any of them did have final policymaking power, whether Webster terminated Bowles pursuant to policies they adopted.
Under New Jersey law:
The mayor [of the City of Camden] may in his discretion remove any department head after a notice and opportunity to be heard. Prior to removal the mayor shall first file written notice of his intention with the council, and such removal shall become effective on the twentieth day after the filing of such notice unless the council shall prior thereto have adopted a resolution by a two-thirds vote of the whole number of the council, disapproving the removal.
N.J.S.A. 40:69A-43(c) (emphasis added).
Keating, whose only function with the City was as Business Administrator, had absolutely no authority with regard to the removal of the Mayor's department heads. In fact, under New Jersey law, he had no official involvement at all with the Mayor's removal decisions. Furthermore, the record reveals little, if any, evidence that Keating had anything to do with Webster's independent decision to fire Bowles. To the contrary, Keating appears to have had few concerns with Bowles' performance, stating that he was no worse than any of his predecessors, and does not recall any discussions at weekly staff meetings where Bowles' alleged deficiencies were discussed. It is abundantly clear that under Praprotnik, the city could not be held liable for any actions taken by Keating because Keating did not have final policymaking authority with regard to the termination of department heads. Any involvement, and we question whether any existed, Keating may have had in the Mayor's decision to terminate Bowles would be outside the scope of his official duties. "Simply going along with discretionary decisions" is not enough for liability. Praprotnik, 485 U.S. at 130. Thus, we feel it would be completely inconsistent with the principles of Praprotnik to hold Keating individually liable under § 1983 for the actions of his superior, Mayor Webster, when Keating had no authority under state law to influence the Mayor's decision or make policies impacting upon the Mayor's ability to terminate Bowles.
Similarly, we find that there is simply no sufficient evidence of Keating's involvement in Webster's decision to terminate Bowles to support plaintiff's CEPA claim against Keating. Without any evidence from which a reasonable inference could be made that Keating was in any way involved in Bowles' termination, we find that plaintiff has failed to demonstrate a prima facie case of retaliation under a pretext theory. We also find that he has failed to give any direct evidence of discriminatory animus or retaliatory motive and therefore cannot support a mixed-motives CEPA claim against Keating. Thus, we hold that Keating is not liable under either CEPA or § 1983 and we will grant summary judgment in his favor and dismiss him from the case.
The City Council members, although more involved in the decision to terminate Bowles, also lack the requisite final policymaking authority under New Jersey law to be held individually liable for an alleged § 1983 violation. In Praprotnik, the Court explained the type of authority which must exist before § 1983 liability will lie:
The authority to make municipal policy is necessarily the authority to make final policy. . . . When a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.
485 U.S. at 127. Thus, in order to be liable, the City Council members would have had to have had affirmatively ratified Webster's termination decision, making it final by officially approving and adopting the Mayor's decision and his basis for it. This is not the case here.
New Jersey law does not require any affirmative action on the part of the City Council before the Mayor's decision to fire a department head becomes final. In order to become final under New Jersey law, the Mayor's termination decision does not need to be affirmatively adopted by the full body as the official policy of the council. To the contrary, the Mayor's decision is the final official policy unless two-thirds of the council pass a resolution disapproving the Mayor's decision to terminate a department head. See N.J.S.A. 40:69A-43(c). Thus, the City Council members were involved in Bowles' termination only so far as two-thirds of the council failed to take action to pass a resolution disapproving the Mayor's decision. We cannot find that such passivity and inaction constitute affirmative ratification and final policymaking action.
As further expounded by the Supreme Court in Jett v. Dallas Independent School District, before liability may be imposed, individuals with policymaking authority must have, through their decisions, "caused the deprivation of rights at issue by policies which affirmatively command that it occur. . . ." 491 U.S. 701, 736, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989) (citation omitted). In essence, Jett requires the plaintiff to adduce "scienter-like evidence" before decisions by a policymaking body may subject its members to § 1983 liability. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1062 (3d Cir. 1991). Here, there is simply no "scienter-like evidence" that, by not disapproving the Mayor's termination decision by a two-thirds vote, the City Council members "caused [Bowles'] deprivation of rights . . . by policies which affirmatively command that it occur." Therefore, they are not liable under § 1983.
We also find that they are not liable under CEPA. In discrimination cases, employers have traditionally been held responsible for the improper actions of their supervisory employees. Lehmann v. Toys ' R' Us, Inc., 132 N.J. 587, 619, 626 A.2d 445 (1993) (citing Restatement (Second) of Agency, Sec. 219); see also Fuchilla v. Layman, 109 N.J. 319, 537 A.2d 652, cert. denied sub nom., University of Medicine & Dentistry v. Fuchilla, 488 U.S. 826, 102 L. Ed. 2d 51, 109 S. Ct. 75 (1988). Under the traditional respondeat superior theory, in order for the City Council members to be liable for Webster's decision to fire Bowles, they would have to have recommended that Bowles be fired, or at the very least, affirmatively approved Bowles' termination. See Abbamont v. Piscataway Twnshp. Bd. of Educ., 269 N.J. Super. 11, 28, 634 A.2d 538, 546 (N.J. Super. 1993). Because we find that the failure of two-thirds of the council to disapprove Webster' termination decision does not rise to the level of an affirmative recommendation of that decision, we hold that the City Council members are not vicariously liable for Webster's actions under CEPA.
Therefore, we find that the individual City Council members are not liable under either § 1983 or CEPA and we will grant summary judgment in their favor and dismiss them from the case.
H. Additional State Causes of Action
Because we have denied the City's and Webster's motion for summary judgment on plaintiff's federal question claim under § 1983 and the First Amendment, we will retain pendent jurisdiction over his state claims against the City and Webster for defamation and his N.J.S.A. 40:69A-43(c) claim for termination without a hearing. See 28 U.S.C. § 1367.
For the foregoing reasons, this Court will deny the City's and Webster's motion for summary judgment on plaintiff's CEPA and § 1983 claims, retain pendent jurisdiction over plaintiff's state clams, and allow this case to proceed to trial. We will grant, however, Keating's and the City Council members' motion for summary judgment on plaintiff's CEPA and § 1983 claims and will therefore dismiss them from the case. An appropriate order will follow.
Date: February 2, 1998
JOSEPH E. IRENAS, U.S.D.J.