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MOSCA v. COLE

August 25, 2005.

MICHAEL R. MOSCA, Plaintiff,
v.
AVIS COLE, BILLIE MOORE, LORENZO LANGFORD, BENJAMIN R. FITZGERALD, THE CITY OF ATLANTIC CITY, and JOHN DOES (1-10) jointly, severally and in the alternative, Defendants.



The opinion of the court was delivered by: JOSEPH IRENAS, District Judge

OPINION

Plaintiff Michael Mosca ("Mosca") filed a somewhat prolix twenty-one count complaint*fn1 alleging various common law claims, as well as violations of state and federal statutes and constitutional provisions, arising out of the termination of his employment as a part-time Assistant City Solicitor for the City of Atlantic City. The Defendants are The City of Atlantic City; its mayor, Lorenzo Langford ("Langford"); its Business Administrator, Benjamin Fitzgerald ("Fitzgerald"); and two one-time friends of Plaintiff, Avis Cole ("Cole") and Billie Moore ("Moore"). At the time Mosca was hired (May 13, 2002) and fired (June 10, 2002), Cole and Moore were employed by the City as attorneys.

The first six counts of the complaint are New Jersey common law claims against only Cole and Moore. Counts seven and eight are common law claims against the City, Langford and Fitzgerald. Counts nine through eighteen are various federal statutory claims against the City, Langford and Fitzgerald, although counts nine and ten also include New Jersey state constitutional claims. Count nineteen sets forth a state constitutional claim against the City, Langford and Fitzgerald, while count twenty sets forth a New Jersey Law Against Discrimination claim against the same three Defendants. The last count seeks injunctive relief.

  This Court's jurisdiction is based on 28 U.S.C. § 1331 (federal question) as the complaint alleges a variety of federal statutory and constitutional claims. Defendants seek summary judgment under Fed.R.Civ.P. 56 on counts three through twenty-one of the complaint. For the reasons set forth below, the Court will grant summary judgment for Defendants on all of Mosca's federal claims. This Court declines to exercise supplemental jurisdiction over Mosca's remaining state law claims, and remands those counts to the Superior Court of New Jersey, Atlantic County, pursuant to United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966).

  I.

  Mosca, a white man, was hired by the City of Atlantic City ("City") in July, 1992, as an attorney in the Municipal Prosecutor's Office. Municipal Prosecutors in the City serve as "unclassified" employees, that is, they do not have tenure and do not receive civil service protections. At the time the events of this lawsuit arose, Mosca had been appointed to a one year term of employment to expire on February 7, 2002.*fn2

  In November, 2001, Langford, an African-American man, was elected mayor of Atlantic City. On December 18, 2001, all four attorneys in the Municipal Prosecutor's Office, including Mosca and his supervisor, received notice from a Langford aide that their employment would be terminated effective December 31, 2001. Shortly before the new year, however, Mosca learned that he would be retained until the expiration of his one year term on February 7, 2002, and his appointment would not be renewed. Mosca did not support Langford's mayoral campaign, but remained interested in working for the City after the change in administrations. Mosca spoke with several people connected with the Langford campaign to express his interest in staying with the Municipal Prosecutor's Office. Two of the people he asked to assist him in obtaining employment in the Langford administration were Defendants Cole and Moore, both African-American women. Mosca and Cole were friends, and had met when Cole worked for the Municipal Public Defender's Office. Moore worked with Mosca in the Municipal Prosecutor's Office for several years in the late 1990s.

  On or about December 18, 2001, Mosca telephoned Cole at her home, during a Christmas party she was holding, seeking her assistance in retaining a position with the City. The exact subject matter of the conversation is disputed, although Cole alleges that Mosca called Langford a "bow-tie wearing, bean-pie eating Muslim." (Dep. of Avis Cole, at 60). While Cole contends that she discussed the comment with only with Moore and the wife of a City Councilman, it found its way into the City "rumor mill," and eventually reached Langford and City Solicitor Stephen Smoger ("Smoger").*fn3 Notwithstanding the rumors, on May 13, 2002, Mosca interviewed with Smoger, a white man, for the position of part-time Assistant City Soliciter, acting as a liaison between the Solicitor's Office and the City Police Department. Deputy Mayor Ernest Coursey ("Coursey") was also present for the interview. The parties dispute whether Mosca's alleged comment was discussed at the interview. According to Mosca, he was questioned about the prosecution of Reverend Al Sharpton ("Sharpton") and his connections to the previous mayor and his administration. Defendants contend that Coursey asked Mosca about the comment, and Mosca denied making the comment. Mosca alleges that Coursey left the interview to meet with Langford, and returned to tell Mosca that he would be hired.

  Mosca began work in the City Solicitor's Office on May 15, 2002. Shortly thereafter, Langford met with Cole and Moore to discuss Mosca's alleged comment. Langford testified that he believed he discussed the alleged comment with his chief of staff and Fitzgerald. Langford also stated that he asked Fitzgerald to look into the matter. Fitzgerald testified that he did not conduct an investigation, but only took information from Moore and consulted Langford's staff. Smoger fired Mosca at Langford's direction on June 10, 2002. Jackie Abdur Razzaq ("Razzaq"), an African-American woman, was later hired as a full-time attorney in the City Solicitor's Office. II.

  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 (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 (1986).

  III.

  A.

  Mosca sues the City, Langford and Fitzgerald in counts twelve, thirteen and fourteen alleging that he was terminated because he is white in violation of 42 U.S.C. § 1981. In McDonald v. Santa Fe Trail, 427 U.S. 273, 286-96 (1976), the Supreme Court held that the federal civil rights statutes afford white plaintiffs a federal remedy for race discrimination in employment.

  A plaintiff alleging workplace discrimination will often not have direct evidence of his employer's discriminatory intent or animus. To effectuate the statute's remedial purpose, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), held that in a failure to hire case a plaintiff may establish a prima facie case of racial discrimination by showing:

  (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

  411 U.S. at 802.*fn4 The Supreme Court noted, however, that "[t]he facts necessarily will vary in [employment discrimination] cases, and the specification above of the prima facie proof required from [a plaintiff] is not necessarily applicable in every respect due to differing factual situations."*fn5 Id. at 802 n. 13. When a plaintiff alleges that he was discharged due to unlawful discrimination, courts have typically adapted the McDonnell Douglas framework to require the plaintiff to show that: (1) he is a member of a protected class; (2) that he was qualified for the position; (3) he was discharged; and (4) other employees not in the protected class were treated more favorably. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993).

  If a plaintiff satisfies his initial burden under McDonnell Douglas, it creates a presumption of discriminatory motive. The burden then shifts to the employer to produce "some legitimate, nondiscriminatory reason" for the action taken. McDonnell Douglas, 411 U.S. at 802; see also Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The employer is not required to persuade the court that the legitimate, nondiscriminatory reason actually motivated its decision, as "[i]t is sufficient if the defendant's evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Should the employer meet its burden, the plaintiff must be given the opportunity to show that the employer's proffered reason was pretextual. McDonnell Douglas, 411 U.S. at 804. A plaintiff can survive summary judgment by pointing to "some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes, 32 F.3d at 764.

  Although the burden of production switches from plaintiff to defendant and back through the operation of the McDonnell Douglas framework, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the ...


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