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Brennan v. Norton

December 05, 2003


On Appeal from the United States District Court for District of New Jersey (D.C. Civil No. 96-cv-04061) District Judge: Hon. Dickinson R. Debevoise

Before: McKEE and Fuentes, Circuit Judges, and Pogue, International Trade Judge *fn1

The opinion of the court was delivered by: McKEE, Circuit Judge.


Argued: April 11, 2002


William J. Brennan, a firefighter employed by the Township of Teaneck, New Jersey Fire Department, filed this § 1983 action alleging that the Township of Teaneck, the Township Manager, and various supervisory members of the Teaneck Fire Department engaged in a campaign of harassment and retaliation against him in violation of his First Amendment right of expression after he spoke out on certain matters of public concern. Brennan's complaint also asserted a number of state law claims including a retaliation claim under New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19-2. Cross-motions for summary judgment were filed, and the district court granted summary judgment to the defendants on all of the state law claims, but Brennan's § 1983 claim proceeded to trial.

The jury returned a verdict in Brennan's favor on the § 1983 claim and awarded him compensatory damages against all of the defendants, and punitive damages against the individual defendants. Brennan's victory was short lived, however, because the district court subsequently granted judgment as a matter of law to all of the individual defendants except the Township Manager. The court granted the Township Manager's motion for judgment as a matter of law only as to the award of punitive damages. This appeal and cross-appeal followed after the district court denied additional post verdict motions. For the reasons that follow, we will affirm in part and reverse in part.*fn2


Brennan began working as a firefighter for the Teaneck Fire Department on April 19, 1993, and soon became active in Local 42 of the Firemen's Mutual Benevolent Association ("FMBA"), the firefighters' union. He was elected Secretary of the FMBA in November of 1993, and in 1994 he was elected to a one-year term as the FMBA's President. He was not reelected in 1995.

Gary Saage was Teaneck's Township Manager during the period relevant to this suit. As Township Manager, Saage's responsibilities included making promotions within the Fire Department and appointing the Fire Chief.

William Norton was a Captain in the Fire Department in the summer of 1994, but Saage promoted Norton to Fire Chief after Norton served only a brief tenure as Deputy Chief. As Chief, Norton was responsible for the efficient operation of the Department and generally in charge of extinguishing and preventing fires. He also had general responsibility for hazardous materials in the Township. Norton was also responsible for insuring the Fire Department's enforcement of laws and ordinances pertaining to extinguishing and preventing fires.

Brennan claims that he was an advocate for firefighters and fire safety. In July 1994, he openly opposed the Township's decision to close two of four fire stations because he believed that the closures would endanger the public. Brennan claimed that Teaneck's Township Council decided to close the stations pursuant to Saage's recommendation. Brennan's opposition included erecting signs, arranging for public announcements, distributing leaflets and expressing opposition in an interview he gave to a local reporter. Although there is some dispute about the relative roles Brennan and other firefighters played in opposing the closings, it is undisputed that Chief Norton, Deputy Fire Chief Joseph Palazzola and Captain Robert O'Neill, also openly opposed the fire station closings along with many rank-and-file firefighters. However, Brennan claims that his was the most vocal and prominent opposition and that his superiors, including Saage and Norton, were aware of it. Although both stations were closed despite opposition, they both reopened in July 1994, apparently in response to significant public pressure.

On July 26, 1994, Brennan reported that he had sustained an on-the-job shoulder injury. Under the FMBA's collective bargaining agreement with the Township, Brennan had an absolute right to Injury on Duty ("IOD") leave with pay for thirty calendar days. That agreement also provided that the thirty day leave period could be extended up to a maximum of one year at the discretion of the Township. Brennan began intermittently using his thirty days of paid IOD leave on July 27 and had exhausted it by December 26, 1994.

Brennan claimed that in October 1994, he publicized that the Township was circumventing directives from the "Fire Sub-Code Official." That official is responsible for assuring compliance with fire codes applicable to building construction. According to Brennan, Saage attempted to ignore the Sub-Code Official's directives regarding fire sprinklers in the police station; Brennan openly opposed Saage's attempts to circumvent those directives.

That same month, Saage proposed replacing the Fire Sub-Code Official with a civilian instead of a firefighter. According to Brennan, the Fire Sub-Code Official had always been a uniformed member of Teaneck's Fire Department, and Saage's plan to change that was also opposed by the then FMBA President and Chief Norton. Brennan claimed that he openly challenged Saage's proposal and that the entire Fire Department opposed it.

Brennan's opposition included placing an advertisement in a local newspaper as well as appearing at a televised Township Council meeting to explain why a civilian should not have been selected for the job. On November 9, 1994, local newspapers interviewed Brennan, and he was thereafter featured in an article opposing Saage's proposal.

Brennan claimed that sometime in November, Deputy Chief John Bauer told Brennan that he was being transferred from Headquarters to Station 2 because Bauer was tired of hearing about employment issues and unfair labor practices. Station 2 allegedly had an older fire truck with a manual transmission. Brennan claimed that he was ordered to drive that truck and this aggravated a prior shoulder injury. He underwent surgery to correct the problem but claims that the surgery necessitated asking the Township Council to extend his IOD leave beyond the initial thirty day period. On January 3, 1995, the Township Council denied the request, and on January 17, after Brennan addressed the Township Council, the Council voted 4-2 against granting Brennan's request. Consequently, Brennan was automatically placed on workers' compensation. Brennan claims that this was the first time that a request for an IOD extension had ever been rejected.

In January of 1995, Brennan informed the Fire Department that it was legally required to supply firefighters with station work uniforms and bunker pants. According to Brennan, Deputy Chief Palazzola later told Lt. Schroeder, Brennan's then superior officer, that if Brennan didn't "knock it off " he was "going to transfer [Brennan] back to headquarters and make [Brennan's] life miserable." Brennan thereafter formally filed a complaint in response to this incident with the New Jersey Department of Labor. He claims that a subsequent compliance audit of the Fire Department cited the department with 200 regulatory violations.

On February 7, 1995, Brennan informed the Township Council of his job-related injury and that he had not been paid for five weeks. However, later that month, Brennan elected to return to work on light duty, even though he claimed that he was not required to do so.

On February 14, 1995, Brennan organized a public rally challenging the policy of removing firefighters from the payroll while on IOD leave, and he subsequently filed an unfair labor practice charge with the New Jersey Public Employment Relations Commission ("NJPERC") attacking that policy.

Brennan claimed that the harassment and retaliation intensified in February of 1995 and included an improper assignment to housewatch duty despite his light-duty employment status. According to Brennan, this violated applicable department regulations. Brennan was also listed as being Absent Without Leave ("AWOL") because he was unable to attend an evaluation with a worker's compensation doctor. Brennan claimed he was not afforded the opportunity to reschedule the evaluation and that Saage had Brennan's personal doctor disqualified as a treating physician, even though Chief Norton had referred Brennan to him. Brennan claimed that this caused him to lose his workers' compensation benefits.*fn3

On May 30, 1995, Brennan filed an unfair labor practice charge with the NJPERC in which he alleged that the Township Council denied his request for extended IOD leave to retaliate for the unfair labor practice charge he had filed with the NJPERC regarding "outstationed" firefighters attending meetings at headquarters.

Brennan was denied holiday leave for Thanksgiving, 1995, and he claimed that Deputy Chief Bauer arbitrarily chose who would have Thanksgiving Day off. When Brennan appeared for duty on Thanksgiving Day, a firefighter who had been given the day off was at work. That firefighter told Brennan that he had changed his mind about working that day.

In February of 1996, Brennan was ordered to clean Station 2's basement so that it could be used as a union hall and office. Brennan claims that when he objected because of the presence of asbestos, Deputy Chief Palazzola threatened, "you know what's going to happen if you make this a safety issue." Palazzola then stopped the clean up operation, but Brennan subsequently formally complained about the asbestos to the New Jersey Department of Labor and Health. Brennan claimed that his complaint resulted in an inspection by a consulting company that recommended remedial action. As a result of his complaint, Brennan claimed that Palazzola punished him by giving him the menial, but labor-intensive, assignment of pump-training.

In addition, Brennan contended that he was involuntarily transferred from Station 2 to Station 3 the day after the consulting firm discovered asbestos, but that firefighters with less seniority were not transferred.

Brennan also calls our attention to May 14, 1996. That was an election day, and Brennan's car was parked in the fire station parking lot which was being used as a polling place. Brennan had posted election materials on his car. Saage sent Captain O'Neill and another officer to investigate possible electioneering violations and then notified the Police Department. The incident culminated in a criminal complaint against Brennan, and Saage imposed a 21-day suspension. Brennan's conviction for violating election laws was reversed on appeal, but Saage refused to reverse the 21-day suspension.

On May 24, 1996 Brennan was suspended for 2 days for wearing a noncompliant uniform after being recalled to duty during an emergency. He claimed that he was subsequently charged with conduct unbecoming a firefighter for reporting to work out of uniform, even though other firefighters, including Deputy Chief Palazzola, had reported to work in noncompliant uniforms without being disciplined. According to Brennan, no other firefighter has been disciplined for a uniform infraction.*fn4

Later on May 24, Deputy Chief Bauer ordered Brennan to present a doctor's note before returning to duty after Brennan called in sick. Brennan provided a note but he was accused of forging it. Brennan alleged that Captain O'Neill called his doctor, told him that Brennan was a trouble maker, and suggested that the doctor not get involved with Brennan. Brennan claimed that even though his doctor verified the note, Saage nonetheless found Brennan guilty of forging it.

On June 5, 1996, Brennan requested a "leave with substitute," as he was entitled to under the terms of the collective bargaining agreement.*fn5 According to Brennan, a message was left on his home phone denying the request and requiring him to return to work on June 6, even though he was on vacation. Nevertheless, Brennan did work on June 6, because he fortuitously ended his vacation a day early and found the message.

Brennan left work early on August 9, 1996, purportedly because of the cumulative effect of a pattern of harassment and retaliation, and the emotional distress he claims it caused. Before leaving, he discussed his condition with Deputy Chief Palazzola. Brennan claimed that he thought the discussion was confidential, but that Palazzola made an entry in the company journal disclosing the reason for the early departure and making it a matter of public record. That, according to Brennan, was highly unusual.

Palazzola called Brennan on August 11, 1996, while Brennan was home on what he terms stress-induced sick leave. Palazzola informed Brennan that Brennan was being charged with conduct unbecoming a public employee because he had used a mattress in a department dormitory as a punching bag. Palazzola also told Brennan that he could not return to work without a doctor's note.*fn6

Brennan alleged that he was told that he would be given an additional year of seniority for the time he served on the Rochester, New Hampshire Fire Department shortly after he was hired as a Teaneck firefighter. He claimed that the additional year of seniority was taken away without his knowledge.

On August 23, 1996, Brennan filed the instant suit in the United States District Court for the District of New Jersey. His complaint contained numerous state law claims as well as a § 1983 claim for violation of his civil rights. He alleged that Saage, Norton, Bauer, Palazzola, O'Neill and the Township had harassed him in retaliation for his expression of opinion in violation of the First Amendment. Brennan also claimed that, within a few weeks of filing the complaint, the defendants intensified their harassment in an attempt to either force him to resign or establish grounds for firing him.

On September 13, 1996, approximately three weeks after he filed suit, Brennan was served with a Preliminary Notice of Disciplinary Action, charging him with conduct unbecoming a public employee and informing him that he would be subject to termination based upon allegedly forging a doctor's note, abusing sick leave and interfering with the submission of a bid to a New Jersey state contract vendor.

Brennan explained that the "unbecoming conduct" charge stemmed from allegations that he abused sick leave by using it for vacation. The Township charged him with interfering with bids in connection with bids for firefighter uniforms. Brennan claimed that Saage upheld that charge although there was no evidence to support it. Saage conducted a disciplinary hearing on that charge and imposed a 63-day suspension without pay. On appeal, the suspension was reduced to ten days.

One day after the hearing on his suspension, Brennan arrived at work and found several dozen whistles hanging from a tree outside the firestation. Brennan interpreted this as an intended reference to a newspaper article that had referred to him as a "whistleblower." The whistles stayed there for several months. Brennan claimed that Chief Norton failed to investigate although he (Brennan) complained.

According to Brennan, someone named "McIntosh" purportedly wrote a commendation letter in October of 1996 recognizing Brennan's exemplary job performance. Brennan claimed that this was the only such letter McIntosh had ever written in 36 years with the Fire Department.*fn7 Brennan insisted that Chief Norton denied receiving the letter even though McIntosh purportedly placed the commendation in Norton's in-box.

Brennan also cited examples of firefighters who received "disparate treatment and harassment" because they associated with him despite supervisory warnings not to do so. For example, he said one of his friends, Fire Lt. DePompeo, was demoted from Lt. Firefighter to Firefighter, and that this demotion was unprecedented. According to Brennan, DePompeo was involuntarily transferred after he spoke out in support of Brennan's reports of asbestos. Brennan also cited the denial of a friend's leave request in violation of the collective bargaining agreement. In fact, Brennan said that the term "FOB" became a derogatory acronym for "Friend of Brennan."

According to Brennan, the atmosphere at work deteriorated to the point that Captain O'Neill's sole function became following Brennan around and reporting on everything that he did. O'Neill stopped addressing him as "Firefighter Brennan" and simply referred to him as "Brennan," which, according to Brennan, was more harassment and a violation of the Department's rules and regulations.

Brennan cited still other examples of harassment and retaliation which are too numerous to mention, and which need not be reiterated in detail. Rather, we briefly note that he claimed that he was unfairly singled out because he had a cell phone on his belt on February 21, 1998; that he was reprimanded for using too many towels to wash a fire truck; and that someone placed a sticker on his helmet that read "Department Asshole" over the word "Firefighter." The same month a message on the firestation television was reprogrammed with an obscenity referring to him as a homosexual. Brennan also alleged that Chief Norton asked the FMBA President to have the union write a letter saying that Brennan was not fit for duty so that Teaneck could terminate him.

Brennan claimed that there was never any meaningful investigation of any of these incidents. Deputy Chief Bauer told him that he investigated the TV and helmet incidents, but could not determine who was responsible. Brennan said that Bauer told him that this conduct did not constitute harassment and refused to conduct a follow-up investigation.

Finally, we note that Brennan alleged that in June 1998, his treating psychiatrist, Daniel Kuhn, M.D., diagnosed Brennan as having stress allegedly resulting from the harassment and retaliation and he was unable to work as a result.


As noted above, on August 23, 1996, Brennan sued Norton, Bauer, Palazzola, O'Neill, and Saage in their individual and official capacities, as well as the Township of Teaneck. His complaint sought injunctive relief as well as compensatory and punitive damages, and he asserted: (1) a civil rights claim under 42 U.S.C. § 1983 based upon the purported illegal retaliation for protected speech; (2) state law claims for intentional and negligent infliction of emotional distress; (3) a retaliation claim under New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19-2; and (4) defamation.

The defendants filed an answer denying Brennan's allegations and asserting affirmative defenses and state law counterclaims alleging, inter alia, fraudulent misrepresentation and defamation. Brennan thereafter amended his complaint by adding a common law claim for retaliation against all defendants. Following additional pleadings and discovery, the parties filed cross-motions for summary judgment.

On March 14, 2000, the district court entered an order: (1) denying defendants' summary judgment motion as to Brennan's § 1983 First Amendment claim; (2) dismissing Brennan's state law claims; (3) denying Brennan's crossmotions on his claims; and (4) dismissing defendants' counterclaims. Thus, the only remaining claim was Brennan's § 1983 claim for illegal retaliation for the exercise of protected expression. That claim proceeded to trial before a jury.

At the conclusion of the ensuing trial, after the court had denied defense motions for judgment as a matter of law, the jury returned a verdict for Brennan awarding damages as follows: (1) $382,500 in compensatory damages against all defendants; (2) $150,000 in punitive damages against Saage; (3) $90,000 in punitive damages against Norton; (4) $90,000 against Bauer; (5) $80,000 in punitive damages against Palazzola; and (6) $80,000 against O'Neill.

The district court thereafter granted the defendants' motions for judgment as a matter of law with respect to Norton, Bauer, Palazzola and O'Neill, and also Saage's motion for judgment as a matter of law with respect to punitive damages. However, it denied motions for judgment as a matter of law with respect to compensatory damages against the Township and Saage. Judgment was then entered in favor of Brennan and against the Township and Saage in the amount of $382,500. After the court denied additional post-verdict motions by both sides, the parties filed the instant appeal and cross-appeals.*fn8


On appeal, Brennan argues that the district court erred by: (1) holding that certain speech was not protected under the First Amendment; (2) dismissing his claim under New Jersey's Conscientious Employee Protection Act ("CEPA"); (3) granting judgment as a matter of law to Norton, Bauer, Palazzola and O'Neill; and (4) granting judgment as a matter of law with respect to punitive damages against Saage.*fn9 The Township and Saage argue that the district court erred by: (1) denying their motion for judgment as a matter of law; and (2) denying their motion for a new trial, or, in the alternative, for remittitur. Inasmuch as these arguments substantially overlap, we will organize our discussion according to the issues raised by the competing claims.

A. Brennan's First Amendment ...

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