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MCKEEVER v. TOWNSHIP OF WASHINGTON

August 7, 2002

JAMES MCKEEVER, PLAINTIFF,
V.
TOWNSHIP OF WASHINGTON, MAYOR AND COUNCIL OF THE TOWNSHIP OF WASHINGTON AND RANDEE DAVIDSON, DEFENDANTS.



The opinion of the court was delivered by: Joseph H. Rodriguez, District Judge

  OPINION

This matter has come before the Court on Defendants' motion and Plaintiff's cross-motion for summary judgment pursuant to Fed.R.Civ.P. 56. Having considered the briefs of the parties, and for the reasons below, the Court will deny the Defendants' motion and grant in part and deny in part Plaintiff's cross-motion.

BACKGROUND

Plaintiff instituted the complaint in this case as a result of his December 31, 2000 termination from employment by Defendant Township of Washington*fn1, Mayor and Council of the Township of Washington, and Randee Davidson.

In 1984, the Township Committee of the Township of Washington passed Ordinance 19-1984 which established tenure in the position of the Superintendent of Public Works pursuant to N.J. Stat. Ann. § 40A:9-154.6. (Defendant's Statement of Material Facts, ¶ 2; Plaintiff's Statement of Material Facts, ¶ 26.) Subsequently in 1985, the Township Committee established a new Administrative Code by Ordinance 1-1985 and is now governed by the Mayor-Council Plan under the Optional Municipal Charter Law set forth in N.J. Stat. Ann. § 40:69A-1 to 40:69A-210, also known as the Faulkner Act. (Defendant's Statement of Material Facts, ¶ 3; Plaintiff's Statement of Material Facts, ¶ 27.)

In 1989, Plaintiff was appointed as the Director of Public Works by then Mayor Gerald J. Luongo. (Defendant's Statement of Material Facts, ¶¶ 4, 5; Plaintiff's Statement of Material Fact, ¶ 1.) Plaintiff was reappointed by Mayor Luongo in 1992 and 1996. (Plaintiff's Statement of Material Facts, ¶ 6.) During this time, Plaintiff became State certified as a public works manager and attended classes relating to public works. (Plaintiff's Statement of Material Facts, ¶ 2.) Plaintiff was employed full-time as the Director of Public Works/Director of the Department of Municipal Support Services by the Township of Washington from June, 1989 until his termination. (Plaintiff's Statement of Material Facts ¶¶ 6, 8.)

In November 2000, Defendant Randee Davidson, a Democrat, was elected mayor of the Township of Washington, defeating the incumbent Mayor Luongo, a Republican. (Plaintiff's Statement of Material Fact, ¶ 7.) Shortly after the election, Plaintiff received a letter from Defendant Davidson stating that he would not be reappointed as the Director of the Department of Municipal Support Services and his service with the Township of Washington would end December 31, 2000. (Defendant's Statement of Material Facts, ¶ 16; Plaintiff's Statement of Material Facts, ¶ 8.) In her deposition, the Defendant stated that the decision to not reappoint Plaintiff was made because it was "time for change"; in addition, she cited poor job performance. (Defendant's Statement of Material Facts, ¶¶ 23, 24; Plaintiff's Statement of Material Facts, ¶¶ 10, 16.)

In 2001, Defendant Davidson appointed Kenneth Patrone as Director of the Department of Municipal Support Services. (Defendant's Statement of Material Facts, ¶ 27; Plaintiff's Statement of Material Facts, ¶ 19.) Prior to his appointment, Patrone had been employed by the Township of Washington as a craft mechanic and laborer. (Defendant's Statement of Material Facts, ¶ 18; Plaintiff's Statement of Material Facts, ¶ 20.) Currently, Patrone is not a State certified public works manager, but he began taking classes for certification about two years ago. (Plaintiff's Statement of Material Facts, ¶ 25.) Patrone also runs a catering business which has provided catering to both Democratic and Republican functions. (Plaintiff's Statement of Material Facts, ¶¶ 22, 23.)

Plaintiff's suit is base don a violation of 42 U.S.C. § 1983. He alleges that he was not reappointed as the result of political discrimination in violation of his guaranteed rights under the First Amendment of the United States Constitution and Article One of the New Jersey Constitution (Count One). Next, Plaintiff alleges that he has a property interest in his job as the Director of the Department of Municipal Services and thus Defendants deprived him of his due process rights in derogation of the United States Constitution and the New Jersey Constitution. (Count Two — Count Five.) Both parties have now moved for summary judgment.

SUMMARY JUDGMENT STANDARD

This Court will enter a summary judgment only when "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." Fed.R.Civ.P. 56(c). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the non-moving party's favor. Anderson, 477 U.S. at 248. This Court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the non-moving party when determining whether a genuine issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Black v. Indiana Area School Dist., 985 F.2d 707, 709 (3d Cir. 1993).

The moving party has the burden of demonstrating the absence of a genuine issue of material fact to the court. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This burden may be satisfied by showing that the non-moving party has failed to "make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. Once the moving party has met its burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue to be decided by a trier of fact. Id. at 324; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994).

On a motion for summary judgment, this Court does not weigh the evidence to determine the truth of the matter but instead decides whether there is a genuine issue for trial. Anderson, 477 U.S. at 242-43; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

DISCUSSION

A. Due Process

The Plaintiff contends that, as a matter of law, Defendant deprived him of due process rights in failing to reappoint him to the position of Director of the Department of Municipal Support Services and failing to give him a hearing as required by Ordinance 19-1984.

The Due Process Clause of the Fourteenth Amendment mandates that no "State shall deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. In order to be protected by the Due Process Clause in employment cases, a plaintiff must prove a property interest in continued employment by a public agency. Latessa v. New Jersey Racing Com'n, 113 F.3d 1313, 1318 (3d Cir. 1997). A property interest can be created by ordinance, but must have an independent source of entitlement found in State law. Bishop v. Wood, 426 U.S. 341, 344 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); Brown v. Trench, 787 F.2d 167, 170 (3d Cir. 1986).

1. Did Plaintiff possess a property interest in his position as Superintendent?

In the present case, the Plaintiff has argued that he retains a property interest in his job by virtue of N.J. Stat. Ann. ยง 40A:9-154.6, which allows municipalities to give tenure to persons who hold the office of municipal superintendent of ...


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