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FIORIGLIO v. CITY OF ATL. CITY

March 5, 1998

KIM D. FIORIGLIO, Plaintiff,
v.
CITY OF ATLANTIC CITY, JAMES WHELAN, PAUL GALLAGHER, BENJAMIN BRENNER, and JOSEPH RUSH, Defendants.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 This matter appears before the Court upon the motion for summary judgment of defendants Atlantic City Mayor James Whelan ("Whelan"), Atlantic City Fire Chief Benjamin Brenner ("Brenner"), Atlantic City Solicitor Paul Gallagher ("Gallagher") and the City of Atlantic City on plaintiff Kim Fioriglio's ("Fioriglio") 42 U.S.C. § 1983 civil conspiracy claim, state constitutional claim, tortious interference with contractual advantage claim and New Jersey Conscientious Employees Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq., claim. Because the Court finds that plaintiff has failed to present any facts under which he could succeed on these claims, the Court will grant the defendants' motions' on all of the claims and dismiss plaintiff's case in its entirety.

 I. BACKGROUND

 While the appeals were still pending, Mayor Whelan, on November 9, 1992, issued a memorandum which set forth the criteria to be considered in the event of a tie between candidates for Battalion Chief. Exh. C to Pl. Br. City residency was to be the first tie-breaking criteria and ranking on prior tests was to be the second tie-breaking criteria. Id. The Mayor indicated that these criteria had been utilized in deciding past ties in the police department. Id.

 On November 20, 1992, the NJDOP posted the results of the rescored Battalion Chief examination and plaintiff's score placed him in a four-way tie for sixth place with Dennis Brooks ("Brooks"), Terrence Mooney ("Mooney") and Daniel Tamburilla ("Tamburilla"). Pl. Compl. at P 21. In the period between November 20, 1992, and April 26, 1993, a number of Atlantic City Fire Captains were promoted to Battalion Chief, leaving plaintiff and the other three men in a tie for the next available promotion. Pl. Br. at 1. Then, on April 26, 1993, Brooks was promoted to the rank of Battalion Chief in accordance with the Atlantic City's veteran's preference policy. Thus, plaintiff now faced a three way tie with Mooney and Tamburilla. See Deposition of Benjamin Brenner, Exh. J to Pl. Br., at 38 [hereinafter Brenner Dep.]. Of these three candidates, plaintiff was the only city resident. Pl. Compl. at P 29.

 On February 1, 1994, plaintiff decided to run for Mayor of Atlantic City against the incumbent Mayor, defendant Whelan. Pl. Compl. at P 22. Plaintiff alleges that he ran a vigorous campaign in which he heavily criticized Mayor Whelan's administration. Pl. Br. at 1. In his written campaign materials, plaintiff alleged that Mayor Whelan used his position as Mayor to hire political "cronies" to key governmental positions in order to gain political favor, that he hired incompetent persons, and that he created unnecessary and duplicative positions in the city government which then were given out to political friends and allies as a reward for political support. Pl. Compl. at P 24; see Fioriglio Campaign Literature, Exh. G to Pl. Br. [hereinafter Campaign Literature]. Plaintiff also accused the Mayor of suppressing information at city council meetings and misusing tax monies. See Campaign Literature.

 Plaintiff has accused Mayor Whelan of making various comments about his campaign for Mayor and the Mayor's alleged intention not to promote plaintiff. He claims the Mayor was overheard saying "F--ck you, F--ck you, you fireman and f--ck that Fioriglio, he will never be Mayor," Recorded Statement of Fire Inspector Scott McKnight, 5/28/96, Exh. M to Pl. Br., and "Kim would never be promoted as long as [I am] Mayor," Recorded Statement of Firefighter Wayne Gottwalls, 8/02/96, Exh. N to Pl. Br. He also claims the Mayor told another fire captain, "you firemen always want something and you go and support that asshole Fioriglio for Mayor against me and then you think I am going to give an appointment." Recorded Statement of James Boyer, 9/04/96, Exh. O to Pl. Br. As proof of these comments, he attempts to submit three unsigned, unsworn transcripts of tape recorded statements supposedly made by two firefighters and one fire captain who claim that the Mayor spoke out against plaintiff. Plaintiff allegedly tape recorded these statements and then transcribed them for the Court. However, none of the statements are sworn to or signed by the alleged speakers. Furthermore, neither plaintiff nor his attorney has submitted an affidavit attesting to the transcripts' validity.

 On October 4, 1994, Mooney was given a temporary promotion to Battalion Chief. Plaintiff allegedly protested this appointment to the Atlantic City Firefighters' Local 198 and its president, defendant Joseph Rush. However, he received no support. He also protested to the NJDOP, claiming that he was the next to be promoted under the current policy due to his status as a city resident and alleging that any temporary appointment was improper because there was no provision in the NJDOP regulations providing for temporary appointments. See Pl. Br. at 2; Pl. Compl. at P 34. The NJDOP determined there was no impropriety.

 On October 14, 1994, the NJDOP issued new guidelines for the Disposition of a Certification. N.J.A.C. 4A:4-4.8. The new guidelines required officials with appointment authority to give a statement of the reasons why an appointee would be selected over another in the case of a tied score. See id. In response to the new guidelines and at the urging of Chief Brenner, the Mayor enacted Executive Order # 3 of 1994, effective as of December 5, 1994. Exh. I to Pl. Br. [hereinafter Executive Order # 3]. The Executive Order states that:

 
The appointing authority shall weigh each of the [following] six criteria, without any particular hierarchy of order or priority:
 
Criteria No. 1: Disciplinary History. The appointing authority shall consider all disciplinary action completed, major and minor, prior to and subsequent to the promulgation of the eligibility list. It is acknowledged that major discipline occurring in the five years prior to the promulgation of the eligibility list is factored into seniority, and the appointing authority will give this aspect due consideration so as to avoid double jeopardy.
 
Criteria No. 2: Education. The appointing authority will give due consideration to educational background with particular emphasis to be given to management training.
 
Criteria No. 3: Sick Leave Abuse. The appropriate utilization of sick time shall be considered by the appointing authority. The absence of abuse of sick time shall be an affirmative consideration within the purview of the appointing authority.
 
Criteria No. 4: Diversity. The appointing authority shall, when available, exercise its discretion to promote diversity in the work place so as to appropriately reflect the makeup of the community.
 
Criteria No. 5: Residency. The appointing authority shall give due consideration to permanent residents of the City as an affirmative criteria.
 
Criteria No. 6: Raw Score. The appointing authority reserves the right to consider raw score as determinative in the absence of all other differentiation between or among candidates of equal rank. This criteria applies only to tie breakers, and not to determinations within the Rule of Three.

 Plaintiff alleges that on or about December 2, 1994, defendants Whelan, Brenner and Gallagher met to discuss the tie-breaking policy which eventually became Executive Order # 3. Pl. Br. at 2. He claims that these defendants specifically set out to amend the criteria in a manner that would allow them to pass over the plaintiff for promotion. Pl. Br. at 2; Pl. Compl. at P 30. As support for this allegation, plaintiff notes that Chief Brenner's assistant, Chief John Bereheiko, testified in his deposition that he felt that the tie breaking criteria policy was formulated, as were many other such policies, "behind closed doors." See Deposition of Chief John Bereheiko, Exh. E to Pl. Br., at 66 [hereinafter Bereheiko Dep.].

 Based on Executive Order # 3 and his own evaluation of the three tied candidates, Brenner recommended to Whelan that first Mooney and later Tamburilla be selected as Battalion Chiefs. Brenner Dep. at 38. In New Jersey, an appointing authority is given broad discretion to choose among the top three individuals on an eligibility list when making a promotion. See N.J.S.A. § 11A:4-8 (authorizing certification of three eligibles); N.J.A.C. § 4A:4-4.2(c)(2) (same); N.J.A.C. § 4A:4- 4.8(a)(3) (allowing appointment of one of the top three eligibles). Pursuant to this so-called "Rule of Three," Chief Brenner, on December 5, 1994, promoted to Battalion Chief both Mooney, who had been acting as temporary Battalion Chief, and Tamburilla, the two individuals on the promotion list with whom plaintiff was then tied. Brenner Dep. at 38; Pl. Compl. at P 31. As a result, plaintiff was never promoted. Pl. Compl. at P 32.

 Plaintiff filed the present complaint in this Court on May 9, 1996. He subsequently amended his complaint on June 12, 1996. In his amended complaint, he alleges that Mayor Whelan, City Solicitor Gallagher, Fire Chief Brenner, Fire Department Supervisors Mooney and Brooks, and Atlantic City Firefighters Local 198 and its president, Joseph Rush, conspired to bypass him for a promotion to Battalion Chief in retaliation for his criticism of Mayor Whelan during his own mayoral campaign. His complaint seeks damages under 42 U.S.C. § 1983 for violations of the First Amendment of the United States Constitution, and under state law for violations of freedom of speech under the New Jersey State Constitution, tortious interference with prospective contractual advantage, and violations of CEPA. In an earlier opinion in this matter, we dismissed plaintiff's claims of defamation and violation of the New Jersey Law Against Discrimination for failure to state claims upon which relief could be granted. See Fioriglio v. City of Atlantic City, 963 F. Supp. 415 (D.N.J. 1997). *fn2" Defendants Terrence Mooney, Dennis Brooks and Atlantic City Firefighters' Local 198 have all been voluntarily dismissed from the case.

 II. DISCUSSION

 A. Standard of Review

 Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "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." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, 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 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." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A genuine issue 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).

 B. Consideration of Unsworn, Unsigned Taped Statements

 Plaintiff asks us to consider transcripts of statements allegedly made by fellow firemen and tape recorded by plaintiff for purposes of this litigation. Plaintiff submits these taped statements as proof of comments allegedly made by Whelan which might show the Mayor's retaliatory motives in not promoting plaintiff. In one comment, allegedly made to another fire captain, the Mayor supposedly said "you firemen always want something and you go and support that asshole Fioriglio for Mayor against me and then you think I am going to give an appointment." The other two declarants supposedly overheard the Mayor say: "F--ck you, F--ck you, you fireman and f--ck that Fioriglio, he will never be Mayor" and "Kim would never be promoted as long as [I am] Mayor." However, none of the statements are sworn to or signed by the alleged speakers. They were not given under oath and neither plaintiff nor his attorney has submitted an affidavit attesting to the transcripts' validity. Thus, these statements fail to meet the requirements of Fed. R. Civ. P. 56(e), and we will not consider them for purposes of summary judgment.

 C. Section 1983 Conspiracy Claim

 Plaintiff's first claim against the defendants alleges a civil conspiracy to bypass plaintiff for a promotion to Battalion Chief in retaliation for his challenge to the Mayor in the 1994 Atlantic City mayoral campaign. He claims that this conspiracy deprived him of his constitutional rights in violation of 42 U.S.C. § 1983. *fn3"

 "Civil conspiracy is [merely] a vehicle by which § 1983 liability may be imputed to those who have not actually performed the act denying constitutional rights." PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808, 832 n. 23 (D.N.J. 1993). As a result, "a § 1983 conspiracy claim is not actionable without an actual violation of § 1983." Id. Section 1983 applies to state actors or private actors acting under color of state law who deprive individuals of federally protected rights. See Daniels v. Williams, 474 U.S. 327, 330-32, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Sample v. Diecks, 885 F.2d 1099, 1108-10 (3d Cir. 1989). To make out a § 1983 conspiracy claim, the plaintiff must make specific factual allegations of a combination, agreement, or understanding among all or between any of the defendants to plot, plan, or conspire to carry out the alleged chain of events in order to deprive plaintiff of a federally protected right. See Darr v. Wolfe, 767 F.2d 79, 80 (3d Cir. 1985); Ammlung v. City of Chester, 494 F.2d 811, 814 (3d Cir. 1974).

  Although plaintiff's brief completely fails to address this issue, we must first determine whether plaintiff was deprived of a federally protected right. In essence, plaintiff's § 1983 claim is based upon the premise that plaintiff's First Amendment rights were violated when defendants conspired to retaliate against him for his mayoral campaign against Mayor Whelan. *fn4" It is well-established that political campaigning is protected speech under the First Amendment. "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order 'to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" McIntyre v. Ohio Electoral Comm'n, 514 U.S. 334, 346, 131 L. Ed. 2d 426, 115 S. Ct. 1511 (1995) (quoting Roth v. United States, 354 U.S. 476, 484, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957)). "There is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs, . . . of course including discussions of candidates. . . ." Mills v. Alabama, 384 U.S. 214, 218, 16 L. Ed. 2d 484, 86 S. Ct. 1434 (1966). As the Supreme Court has repeatedly noted, "'it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'" McIntyre, 514 U.S. at 346 (quoting Buckley v. Valeo, 424 U.S. 1, 14-15, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976)). Thus, if plaintiff is able to prove that his participation in such protected speech was a substantial motivating factor for the alleged conspirators' actions, he will have demonstrated a violation of § 1983. 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 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).

 In order to survive summary judgment, plaintiff must demonstrate that there is a possibility that the jury can "infer from the circumstances (that the alleged conspirators) had a 'meeting of the minds' and thus reached an understanding" to achieve the conspiracy's objective of denying him a promotion in retaliation for his mayoral campaign. Adickes v. Kress & Co., 398 U.S. 144, 158-59, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970) (requirements for conspiracy under § 1983 between private actor and public officials). Plaintiff must prove with specificity the circumstances of the alleged conspiracy, such as those addressing the period of conspiracy, object of the conspiracy, and certain actions of the alleged conspirators taken to achieve that purpose. See Labalokie v. Capitol Area Intermediate Unit, 926 F. Supp. 503, 508 (M.D. Pa. 1996) (setting forth standard for making out a sufficient § 1983 conspiracy claim); Loftus v. Southeastern Pennsylvania Transp. Auth., 843 F. Supp. 981, 986 (E.D. Pa. 1994) (citing Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989) (applying this standard in the RICO context). When the sufficiency of civil rights allegations are challenged, the court must look beyond "conclusory allegations . . . to the factual scenario itself to examine whether the conduct alleged, viewed most favorably to plaintiffs, is reasonably susceptible to falling within the conclusions alleged." Freedman v. City of Allentown, 853 F.2d 1111, 1115 (3d Cir. 1988).

 The crux of plaintiff's § 1983 conspiracy claim is that Whelan, Brenner and Gallagher conspired to deprive him of a promotion by changing the policy setting forth the factors by which promotional ties are broken. Thus, plaintiff attempts to show that the object of their alleged conspiracy was to deny him a promotion in retaliation for his failed mayoral campaign against Whelan. Plaintiff claims that Whelan, Brenner and Gallagher accomplished this goal, primarily during a "surreptitious meeting," by formulating Executive Order # 3.

 Critical to plaintiff's case is his argument that his "vigorous" mayoral campaign so upset the Mayor that he acted in conspiracy with the other defendants to deprive him of his promotion to Battalion Chief. However, plaintiff's supposedly "vigorous" campaign, in reality, was fairly insignificant and was not taken seriously by the Mayor. Plaintiff received under 200 votes in the election. Furthermore, the Mayor has testified that plaintiff's challenge was not an issue for him.

 
Q: . . . . Generally, you were aware that he accused you of creating jobs for friends and political cronies, correct?
 
A: No, not -- Fioriglio wasn't on the radar screen, Mr. Perskie. I don't know how else to say that. I don't know all the names of all the candidates. I suspect, if you ask Governor Whitman or Mr. McGreevy or the libertarian candidate what some of the minor party candidates are specifically saying in their platform, I don't think they can answer that, and that was the position I was in, in 1994, with regard to Mr. Fioriglio.
 
I didn't know what he was giving out, or what he was saying, or what he was campaigning on because the analogy, again, is that he was very much a minor party candidate, if I can continue the analogy; and as such, it's not something the people who were involved in my campaign paid a lot of attention to.

 Deposition of Mayor James Whelan, Exh. D to Pl. Br., at 15 [hereinafter Whelan Dep.].

 Plaintiff speculates that defendants changed the policy used to break ties specifically so that he would be adversely affected under a consideration utilizing the new criteria. He claims that the purpose of the delineation of the six new criteria was not, as stated in Executive Order # 3, in response to the newly enacted N.J.A.C. 4A:4-4.85, which requires officials with appointment authority to give a statement of the reasons for their appointment choices in the case of a tied score, but rather to deny him a promotion. He refers to a December 2, 1994 meeting at which defendants Whelan, Brenner and Gallagher "met to discuss the amending of the tie breaking criteria in a way that would allow the defendants to pass over the plaintiff for a promotion" and then alleges that "in accordance with their surreptitious meeting, the Mayor enacted Executive Order Number 3 of 1994." Pl. Br. at 4. However, plaintiff can offer no concrete proof that the December 2, 1994 meeting occurred. Neither Brenner nor Gallagher testified that a December 2, 1994 meeting took place and Whelan cannot recall any specific meeting held to deal with the tie-breaking promotional policy. Whelan Dep. at 69. Plaintiff's only evidence is the testimony of Deputy Chief Bereheiko who said that he suspected that Whelan, Brenner and Gallagher would have met in closed door sessions because few policy decisions are made "open forum." Bereheiko Dep. at 66.

 Furthermore, when questioned about his conclusion regarding the alleged motives behind Executive Order # 3, plaintiff admits reliance upon unsubstantiated assumptions and speculation.

 
Q: So, there's also a part here that says that the meeting between defendants Whelan, Brenner, Mooney, Brooks and Gallagher and I'm going to quote: "Conspired to deceive the Plaintiff Fioriglio, of his rightful promotion by changing the regulations governing promotions and breaking the tie, to taking into account different factors under which the plaintiff would not emerge as the victor in this three-way tie situation." So, you don't know if that's what they talked about?
 
A: I -- it's my belief that that's what they talked about. I have no personal ...

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