IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
November 23, 1998
RE: WILCOX V. BOROUGH OF LAWNSIDE
TO: Judge Simandle
FROM: John Mullen
This matter is before the court on defendant's motion to dismiss plaintiff's Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6).
A. The Complaint
Plaintiff, Eric J. Wilcox ("Wilcox"), brings this action under 42 U.S.C. § 1983, alleging that defendant, the Borough of Lawnside ("Lawnside"), deprived him of a protected property interest in his position as a police officer in violation of the due process clause of the Fourteenth Amendment when it terminated his employment on September 28, 1995.
Specifically, Wilcox alleges in the First Count of his Complaint that his position as a police officer is protected "by the laws of the State of New Jersey including, but not limited to, N.J.S.A. 40A:14-1 et seq., the ordinances of the Borough of Lawnside and the Rules and Regulation (sic.) of the Lawnside Police Department." (Complaint at ¶ 9.) Wilcox claims that he "was not afforded a meaningful hearing or opportunity to be heard respecting any rational basis for the decision" to terminate his employment before the implementation of the decision. (Id. at ¶ 7.) Wilcox further alleges the proffered reason for his termination "was pretextual and committed in bad faith." (Id. at ¶ 6.)
In the Second Count of his Complaint, Wilcox repeats the allegations of the First Count and further alleges that Lawnside's actions were "pretextual, in bad faith, and without basis" and that they "were committed to circumvent the requirements and procedures for removal of police officers in the State of New Jersey and the Borough of Lawnside." (Id. at ¶ 14.) Wilcox further alleges that Lawnside's actions "were both procedurally and substantively deficient and violated both [plaintiff's] procedural and substantive due process rights." (Id. at ¶ 15.)
Wilcox seeks relief in the form of reinstatement, an award of damages for lost salary, benefits and privileges, compensatory damages, counsel fees and costs under 42 U.S.C. § 1988, and any additional relief the court deems appropriate.
B. Lawnside's Motion to Dismiss
Lawnside's motion to dismiss is predicated on its status as a municipality governed by New Jersey's Civil Service Act, N.J.S.A. 11A:1- 1 et seq. (Harris Cert. at ¶ 4.) Lawnside claims that it hired Wilcox effective October 1, 1994 as a provisional full time police officer under N.J.S.A. 11A:4-13(b), which expressly provides that such an appointment may not exceed 12 months duration, and that Wilcox knew it was "necessary" for him to complete and pass the civil service exam during the year of his provisional employment. (Id. at ¶ 5.) Lawnside further claims that because Wilcox admittedly failed the civil service examination that was administered during his year of provisional employment, it "had no other alternative but to so terminate Mr. Wilcox." (Id. at ¶ 8.)
Essentially, Lawnside argues that Wilcox had no protected property interest in his position as a police officer because his provisional appointment was limited to one year by N.J.S.A. 11A:4-13(b) and any continued employment was contingent upon his successful completion of the civil service exam, which Wilcox admittedly failed. Lawnside contends that N.J.S.A. 40A:14-147, which requires notice, a written complaint, and a hearing before a police officer may be dismissed, does not grant Wilcox any due process rights or a protected property interest in his former position because that statute does not apply in a civil service municipality like Lawnside.
C. Wilcox's Opposition
Wilcox fleshes out the factual background of his case in his opposition to Lawnside's motion to dismiss. Wilcox notes that Lawnside originally hired him on March 16, 1993 as an unclassified Special Law Enforcement Officer, Class II, pursuant to N.J.S.A. 40A:14-146.10. (See Plaintiff's Mem., Ex. A.) Thereafter, Wilcox successfully completed the Basic Course for Class II Special Law Enforcement Officers and received a certificate on June 24, 1994. (See Plaintiff's Mem., Ex. B.) On or about August 19, 1994, Wilcox received a certificate from the New Jersey Police Training Commission reflecting his satisfactory completion of the Basic Course for Police Officers. (Plaintiff's Mem., Ex. C.) Lawnside then hired Wilcox as a full time police officer on October 1, 1994.
Wilcox concedes that his employment on October 1, 1994 was a provisional appointment under N.J.S.A. 11A:4-13(b), but claims that he became a permanent member of the Lawnside police force as of August 19, 1995 by virtue of an agreement entered into by Lawnside and the New Jersey Policemen's Benevolent Association, Local #30 ("Local #30"), on July 1, 1994. Article I, Subsection 4A-D of the agreement provides that a recruit becomes a probationary police officer upon graduation from an accredited police academy and that a probationary police officer becomes permanent after one year. (See Plaintiff's Mem., Ex. E.) Thus, Wilcox argues that he became a permanent police officer on August 19, 1995, the one year anniversary of his receipt of the certificate from the New Jersey Police Training Commission reflecting his completion of the Basic Course for Police Officers.
Wilcox also argues that N.J.S.A. 40A:14-147 does apply in Lawnside, notwithstanding the fact that Lawnside is a civil service municipality. Wilcox relies on Perrapato v. Rose, 83 N.J. Super. 245, 248 (1964), where the Appellate Division rejected the argument that the predecessor to N.J.S.A. 40A:14-147 does not apply in civil service municipalities:
Appellants argue that policemen and firemen are entitled to the protection of N.J.S.A. 40:47-6 only if the municipality which employs them has not adopted the Civil Service Act. Although N.J.S.A. 40:47-6 and the Civil Service Act have similar purposes -- generally, to guard against partisan political and other improper interferences with public employment -- and provide similar procedures for effectuating those purposes, we are not led to the conclusion that where the second is adopted the first is completely superseded. The two statutes should be read in pari materia, and construed so as to five each as full effect as possible.
Finally, Wilcox notes that two other provisional appointees to Lawnside's police force also failed the April 1995 civil service examination that Wilcox failed (one not for the first time), but that neither of the other provisional appointees was terminated like he was. (Burton Cert. at ¶ 6.) Lawnside's former Director of Public Safety from August 1992 through August 1996, Donald Burton, who hired Wilcox on March 16, 1993 and October 1, 1994 and who fired Wilcox at the direction of his superiors on September 28, 1995, states under oath that he believes "based on numerous conversations with the governing body and the Borough Administrator, that Mr. Wilcox was terminated because he was injured in the line of duty, because he had a workman's compensation claim and because he was rehabilitating with his wife out of state." (Id. at ¶¶ 1-4, 7.)
D. Lawnside's Reply
In reply to Wilcox's opposition to its motion, Lawnside maintains that the agreement between Lawnside and Local #30 is simply irrelevant in light of Wilcox's status as a provisional appointee and his admitted failure to successfully complete the civil service examination, and reiterates its argument that N.J.S.A. 40A:14-147 does not apply in a civil service municipalities like Lawnside. In support of the latter argument, Lawnside relies on the opening phrase of that provision ("Except as otherwise provided by law . . . .") and the opening phrase of N.J.S.A. 40A:14-150 ("Any member or officer of a police department or force in a municipality wherein [Title 11A] is not in operation . . . ."), which the Appellate Division has characterized as "the statute governing judicial review of disciplinary proceedings against police employees in non-civil-service municipalities." Cosme v. Borough of East Newark Township Comm., 304 N.J. Super 191, 203 (App. Div. 1997); see also King v. Ryan, 262 N.J. Super. 401, 408 (App. Div. 1993) (N.J.S.A. 40A:14-150 "applicable to non-civil service municipalities"); In re Disciplinary Hearing of Bruni, 166 N.J. Super. 284, 289 (App. Div. 1979)(intent of legislature in enacting N.J.S.A. 40A:14-150 is "to provide policemen in Non-civil Service communities" with independent review of disciplinary actions). Lawnside offers no response to Burton's sworn statement that he believes Wilcox was fired in retaliation for having filed a worker's compensation action against Lawnside.
E. Consideration of Matters Outside the Pleadings
Since both parties have submitted certifications in support of their respective positions, the court should convert Lawnside's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) to a motion for summary judgment under Federal Rule of Civil Procedure 56. See Hilfirty v. Shipman, 91 F.3d 573, 578 (3d Cir. 1996). The Certification of Jessie G. Harris submitted by Lawnside and the Certification of Donald Burton submitted by Wilcox shed a great deal of light on the matter in dispute and should be considered by the court.
F. Standard on Motion for Summary Judgment
A court may grant summary judgment when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L & F Products, 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Products Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. dismissed, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Anderson, 477 U.S. at 248) ("[T]he nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial.").
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However,
the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders other facts immaterial. Celotex, 477 U.S. at 322-323.
In such situations, "the burden on the moving party may be discharged by `showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Id. at 325; Brewer, 72 F.3d at 329-330 (citing Celotex, 477 U.S. at 322-23) ("When the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial.").
The non-moving party, here the plaintiff upon defendant's motion, "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed. R. Civ. P. 56(e). They must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50; Celotex, 477 U.S. at 324-25. Once the moving party has carried its burden of establishing 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 material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.
Lawnside's motion for summary judgment must be denied because there is a genuine issue of material fact about Lawnside's claim that it had no alternative but to terminate Wilcox as a result of his failure to successfully complete the civil service examination. Burton, Lawnside's former Director of Public Safety who implemented the order to terminate Wilcox, states under oath that two other police officers on the Lawnside police force also failed the civil service examination (one for the second time) but were not terminated. (Burton Cert. at ¶ 6.) Burton further states under oath that he believes, based on conversations with Lawnside's governing body and with Harris, the Borough Administrator, that Wilcox was terminated in retaliation for having filed a worker's compensation action against Lawnside. (Id. at ¶ 7.) Lawnside offers no evidence to rebut Burton's sworn statement. For this reason, Lawnside's motion for summary judgment must be denied.
There is also some doubt about Lawnside's claim that N.J.S.A. 40A:14-147 does not apply to Lawnside because Lawnside is a civil service municipality. In Perrapato, the case relied upon by Wilcox, the Appellate Division was considering the predecessor to N.J.S.A. 40A:14- 147 when it held that N.J.S.A. 40:47-6 must be read in pari material with the Civil Service Act and "construed so as to give each as full effect as possible." Perrapato, 83 N.J. Super. at 249. In contrast, Lawnside relies upon cases interpreting N.J.S.A. 40A:14-150, which expressly applies only to "[a]ny member of officer of a police department or force in a municipality wherein [Title 11] is not in operation . . . ." See Cosme, 304 N.J. Super. at 203; In re Disciplinary Hearing of Bruni, 166 N.J. Super. at 289. However, N.J.S.A. 40A:14-147 contains no such express exception to application in a civil service municipality, instead providing that it applies "[e]xcept as otherwise provided by law . . . ." In light of the fact that the legislature clearly knew how to expressly restrict the application of the fire and police statute to non-civil service municipalities, Lawnside's argument that "[e]xcept as otherwise provided by law" should be construed to mean "except in civil service municipalities" is not very persuasive.
Furthermore, the resolution reflecting Lawnside's original hire of Wilcox as a Class II Special Law Enforcement Officer refers to N.J.S.A. 40A:14-118, casting further doubt on Lawnside's argument that the provisions of the fire and police statute have no application in a civil service municipality like Lawnside. (Plaintiff's Mem., Ex A.) On the contrary, the resolution supports Wilcox's argument that the fire and police statute and the civil service statute should be read together and construed so as to give each the maximum effect.
H. Wilcox's Retaliation Claim
Other than a few vague references to pretext and bad faith, Wilcox's Complaint does not clearly plead a cause of action for retaliation for filing a worker's compensation action under the New Jersey Law Against Discrimination and/or Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). Based on the sworn statement of Burton, however, Wilcox would appear to have a strong claim for retaliation. The court should take the opportunity to have Wilcox's counsel clarify his causes of action and grant leave to amend the Complaint, if necessary.
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