United States District Court, D. New Jersey
August 25, 2005.
MICHAEL R. MOSCA, Plaintiff,
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
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
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).
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
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
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
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 plaintiff remains at all times with the plaintiff."
Burdine, 450 U.S. at 253.
Obviously, the cause of action for white plaintiffs recognized
in McDonald v. Santa Fe Trail, supra, could not benefit from
the McDonnell Douglas burden shifting analysis if the plaintiff
were forced to establish that he or she were a member of a
minority group. While many cases counsel that the burden shifting
test should be articulated in a flexible manner, most of those cases arise where the need for flexibility results
solely from the particular nature of the alleged discrimination
(failure to hire, termination, failure to promote, retaliation,
workplace harassment, etc.).
Common experience tells us that minority groups in the United
States (or for that matter any country or community) are
frequently subjected to pervasive discrimination in the
workplace. "Upon this point a page of history is worth a volume
of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349
(1921). Thus the traditional McDonnell Douglas first prong,
that the plaintiff be a member of a minority group, embodies a
significant part of the reason for easing a minority plaintiff's
burden in proving a prima facie case. Altering the McDonnell
Douglas test to eliminate the requirement that plaintiff be a
member of a protected class is more than a technical change
mandated by the nature of the discrimination alleged. Rather, to
some degree it cuts to the heart of the reason for the test in
the first place.
Thus, courts have struggled to replace the minority membership
prong with a test which remains faithful to the concept of
McDonnell Douglas, but yet recognizes the significance of the
change. Several Courts of Appeal have held that to make a prima
facie case a white plaintiff must show "background circumstances"
which indicate that the defendant is "that unusual employer who discriminates against the majority." Parker v.
Baltimore & O.R. Co., 652 F.2d. 1012, 1017 (D.C. Cir. 1981).
The D.C. Circuit later expanded on this test when it explained
that "background circumstances" included evidence that a
particular employer had a reason or inclination to invidiously
discriminate against whites and that there is something about the
facts of the case that raises the inference of discrimination.
Harding v. Gray, 9 F.3d 150, 153 (D.C. Cir. 1993). In some
sense courts adopting the background circumstances test have
substituted events related to plaintiff's particular claim for
hundreds of years of American history.
Prior to its decision in Iadimarco v. Runyon, 190 F.3d 151
(3d Cir. 1999), the Third Circuit had never addressed the nature
of the prima facie case required of a plaintiff alleging "reverse
discrimination." See Poli v. Southeastern Pa. Transp. Auth.,
No. 97-6766, 1998 WL 405052, at *5 n. 5 (E.D.Pa. July 7, 1998).
In Iadimarco the Court rejected the "background circumstances"
test as articulated in Parker/Harding, and concluded that "a
plaintiff who brings a `reverse discrimination' suit under Title
VII should be able to establish a prima facie case in the absence
of direct evidence of discrimination by presenting sufficient
evidence to allow a reasonable fact finder to conclude (given the
totality of the circumstances) that the defendant treated
plaintiff `less favorably than others because of [his] race,
color, religion, sex or national origin.'" Id. at 163 (quoting Furnco Const. Corp.
v. Waters, 438 U.S. 567, 577 (1978)); see also Corbett v.
Sealy, Inc., No. 03-4190, 2005 WL 612922 (3d Cir. Mar. 17,
2005); Medcalf v. Trustees of Univ. Of Pa., 71 Fed. Appx. 924
(3d Cir. 2003); Geddis v. Univ. of Del., 40 Fed. Appx. 650 (3d
Cir. 2002).*fn6 This test does not necessarily require
direct evidence, but rather evidence sufficient to support an
inference of discrimination. Pivirotto, 191 F.3d at 352.
Both the "sufficient evidence" and "background circumstances"
tests share a common core in that they recognize that the
traditional McDonnell Douglas prima facie case was developed
out of an assumption that "common sense and social context"
suggest that when, for example, a qualified African-American
employee is fired and replaced by a white employee,
discrimination is more likely than not to be the cause once other
explanations are eliminated. Iadimarco, 190 F.3d at 157. As
Judge McKee observed, "[i]nvidious discrimination against white
men is relatively uncommon in our society, and so there is
nothing inherently suspicious in an employer's decision to
promote a qualified minority or female applicant instead of a qualified white male applicant." Id. at 163 n. 10. This is not
to say that reverse discrimination does not or cannot occur. The
relevant point is that it has not occurred so frequently as to
justify the assumption that, in the absence of another
explanation for an adverse action against a white employee, we
can assume that a discriminatory motive prompted such action.
When a white employee asserts that his employment was
terminated based on a discriminatory animus, the McDonnell
Douglas test for establishing a prima facie cases has three
requirements: (i) plaintiff was qualified for the job which he
held; (ii) despite these qualifications he was terminated by his
employer; and (iii) plaintiff has presented sufficient evidence
to allow a reasonable fact finder to allow a reasonable fact
finder to conclude, given the totality of the circumstance, that
the employer treated plaintiff less favorable the other because
of his race.*fn7
There is no dispute that Plaintiff meets the first two prongs
of the McDonnell Douglas test as just articulated. The focus of the dispute in this case is whether Mosca satisfies the
sufficient evidence prong. Plaintiff makes four arguments to
support his view that he has made a prima facie case: (i) he was
replace by Razzaq, an African-American woman, who was less
qualified; (ii) the person who made the decision to fire him,
Langford, was African-American; (iii) Langford failed to order an
investigation of the alleged racist remarks as required by the
City's anti-discrimination policies and (iv) Plaintiff was
terminated in retaliation for the prosecution of Sharpton in
2000. We will consider each argument in turn.
Although disputed by Defendants, for purposes of this motion
the Court will assume that Razzaq was hired to replace Mosca. In
a City with a highly diverse population no inference of
discrimination can be drawn from the hiring of an African
American.*fn8 If making such a hiring was by itself a
suspicious circumstance, employers attempting to comply with the
law would find such efforts used as the basis of a reverse
discrimination suit against them. The argument that Plaintiff was
more qualified that Razzaq finds no support in the record. That Mosca was fired by an African-American (Langford)*fn9
and replaced by an African-American does not give rise to an
inference of discrimination. The Third Circuit in Iadimarco
held that "[a]lthough the race and/or gender of the individual(s)
responsible for a hiring decision is certainly relevant, it is
insufficient to establish a prima facie case of discrimination
without more." 190 F.3d at 156.
Plaintiff argues that he was denied an investigation to which
he was entitled under the City's anti-harassment policies. The
relevant inquiry is whether Mosca was treated differently from
other similarly situated employees based on his race. Turgeon v.
Marriott Hotel Svcs., No. 99-4401, 2000 WL 1887532, at *8
(E.D.Pa. Dec. 27, 2000); Bullock v. Children's Hosp. of Phila.,
71 F. Supp. 2d 482, 489-90 (E.D.Pa. 1999). "To be deemed
similarly situated the individuals with whom a plaintiff seeks to
be compared must have engaged in the same conduct without such
differentiating or mitigating circumstances that would
distinguish their conduct or the employer's treatment of them for
it." Bullock, 71 F. Supp. 2d at 489 (citations omitted).
Mosca's points to two employees who he maintains were afforded
a full investigation after sexual harassment charges were made against them: Joseph Gindhart, a white man who served
as City Solicitor during the first months after Langford took
office; and Ronald Bloom, who is also white, the chief prosecutor
under Langford's predecessor. Mosca has provided no evidence to
suggest that he was treated differently than similarly situated
employees based on his race, since the only two City employees
that he identifies as receiving investigations are also
Mosca also contends that he was fired by the City, in
retaliation for his prosecution of Sharpton in 2000. He maintains
that he acted against "the strong and bitter opposition" of
Langford, Coursey and Councilman William Marsh III ("Marsh") in
pursuing the charges, (Pl. Br. at 20), and that Langford was not
in a position to retaliate against Mosca until he took office on
January 1, 2002.
Plaintiff presents no evidence in support of his allegation
that Cole, Moore or Marsh "educated" Langford on Mosca's role in
the prosecution, nor is there any evidence that the Sharpton
prosecution was ever discussed with Langford in the context of
Mosca's employment. According to Mosca, he discussed the Sharpton
prosecution with Coursey and Smoger during his interview, but
there is no evidence that Langford was made aware of this
discussion at the time or later when he was considering firing Mosca.
Nor is there anything in the record to suggest that the dispute
over Sharpton's prosecution was based on his race, Mosca's race,
or the race of anyone else involved in the dispute over his
prosecution. Coursey, who is white, also opposed the prosecution.
There is simply no evidence that the prosecution of Sharpton
played any role, much less a substantial or motivating one, in
the decision to fire Mosca.
The circumstances surrounding Sharpton's appearance in Atlantic
City are unclear from the record, but if he was there to lead a
protest, and the charges against him related to the conduct of
that protest, one can imagine a variety of considerations which
might go into deciding whether or not to prosecute. Even were the
Court to assume that Langford's decision to fire Mosca somehow
took into account his role in the Sharpton prosecution,*fn11
there is no indication that Mosca's race had anything to do with
Langford's unhappiness with that prosecution.
There is at this stage in the litigation a sufficient factual
basis for a finder of fact to conclude that Langford's belief
that Mosca had made the offending comment to Cole contributed to
his decision to terminate him as a City employee. Whether or not this belief was justified, it is not evidence of
animus based on race. Nothing in this record suggests that
Langford was offended by reason of Mosca's race rather than the
alleged content of the remark. No one has suggested that the slur
would have been considered any less offensive by Langford if the
purported utterer was African-American.
The contrast with Iadimarco is stark. The evidence of
discrimination presented in that case which gave rise to an
inference of reverse discrimination not only met the Third
Circuit's "sufficient evidence" standard, but would have also met
a standard far more burdensome to the plaintiff. See id. at
In counts nine through eleven and fifteen through eighteen
Plaintiff converts his wrongful termination claims against the
City, Langford and Fitzgerald into constitutional claims against
the same parties under 42 U.S.C. §§ 1983 and 1985. He alleges
that his firing violated the Fourteenth Amendment by denying him
procedural due process and equal protection of the laws, and the
Fourteenth Amendment and First Amendment by violating his free speech rights.
Mosca claims that he was deprived of his procedural due process
rights by the manner in which he was terminated. "The
requirements of procedural due process apply only to the
deprivation of interests encompassed by the Fourteenth
Amendment's protection of liberty and property. When protected
interests are implicated, the right to some kind of prior hearing
is paramount." Board of Regents of State Colleges v. Roth,
408 U.S. 564, 569-70 (1972); see also Cleveland Board of Education
v. Loudermill, 470 U.S. 532, 542 (1985).
While Mosca does not argue that he had some kind of tenure in
his position which might give him a constitutionally protectible
interest,*fn13 he argues that Langford, Fitzgerald and the
City damaged his reputation by publicizing the comments he
allegedly made to Cole, without offering him an opportunity to
clear his name. In Wisconsin v. Constantineau, 400 U.S. 433 (1971), the Supreme Court held that an individual has a
protectible liberty interest in his reputation.
The Supreme Court has recognized that when a public employer
publishes or otherwise disseminates false and stigmatizing
information in connection with an employee's termination, that
employee has a due process right to a name-clearing hearing.
Roth, 404 U.S. 564. "Where a person's good name, reputation,
honor, or integrity is at stake because of what the government is
doing to him, notice and an opportunity to be heard are
essential." Constantineau, 400 U.S. at 437.
"For government action to infringe the `reputation, honor, or
integrity' of an individual, that government action first must
involve a publication that is substantially and materially
false." Ersek v. Township of Springfield, 102 F.3d 79, 83 (3d
Cir. 1996). The employer must publish or disseminate the
stigmatizing information to the public. Anderson v. City of
Philadelphia, 845 F.2d 1216, 1222 (3d Cir. 1988); Chabal v.
Reagan, 841 F.2d 1216, 1223 (3d Cir. 1988); Poteat v.
Harrisburg School District, 33 F. Supp. 2d 384, 391-92 (M.D.Pa.
1999). The disputed or false statements must harm the plaintiff's
reputation. Ersek, 102 F.3d at 84.
While public knowledge of Mosca's alleged comment may have been
"so diverse and so extensive that it was routine," (Pl. Br. at
17), Mosca fails to demonstrate that Fitzgerald and Langford were responsible for the spread of the stigmatizing rumors. It is
not enough that Mosca's reputation may have been harmed by office
gossip or the rumor mill. A plaintiff must establish that the
particular defendant was responsible for publicly revealing the
defamatory information. See McMath v. City of Gary,
976 F.2d 1026 (7th Cir. 1992). There is no evidence that the City,
Langford or Fitzgerald published or disseminated Mosca's alleged
comment to the public.
In counts fifteen through seventeen Mosca argues that the City,
Langford and Fitzgerald retaliated against him for prosecuting
Sharpton, and that such retaliation violated his First Amendment
A public employee alleging that his employer retaliated against
him for exercising his right to free speech must establish three
elements to survive a motion for summary judgment. Swineford v.
Snyder County Pennsylvania, 15 F.3d 1258, 1270 (3d Cir. 1994);
see also Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997);
Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir.
1997). First, he must establish that his speech was protected.
Swineford, 15 F.3d at 1270. Second, he must demonstrate that he
suffered some adverse employment action by his employer. Id.
Next, he must prove that his protected speech was a substantial or motivating factor for the adverse
employment action. Id. If the plaintiff meets this burden, the
defendant can still defeat the claim by establishing that he
would have taken the same action absent the plaintiff's protected
The City, Langford and Fitzgerald do not contest that Mosca's
actions in prosecuting Sharpton are protected. However, they
maintain that there is no evidence that Mosca was fired because
of the Sharpton prosecution or that it played a role in his
termination. A plaintiff must "establish? that the exercise of
his First Amendment rights played some substantial role in the
relevant decision." Suppan v. Dadonna, 203 F.3d 228, 236 (3d
Cir. 2000). For the reasons set forth in Part III.C. hereof,
there is simply insufficient evidence that Langford's unhappiness
with Sharpton's prosecution played any role the decision to
terminate his employment.
Mosca suggests that his Due Process rights were violated when
he did not receive a City investigation into his alleged remarks.
He bases this argument on the allegation, thinly supported, that
it was the practice of the City to investigate claims of
harassment against even those employees who do not have
constitutionally-recognized property interests in continued public employment.
Even accepting the truth of Plaintiff's factual assertion,
"[t]he fact that state law may grant procedural protections to an
at-will employee does not transform his or her interest in
continued employment into a property interest protected by the
Due Process Clause." Thomas v. Town of Hammonton, 351 F.3d 108,
113 (3d Cir. 2003). That the procedural protection at issue here
may have been granted by municipal policy or practice does not
change the result. "`Property' cannot be defined by the
procedures provided for its deprivation any more than can life or
liberty." Loudermill, 470 U.S. at 541.
Mosca argues that he was denied Equal Protection by the City,
Langford and Fitzgerald, because there was no investigation into
the allegations against him, while in other instances where City
employees were accused of harassment, investigations were
performed and the employees were given opportunities to rebut the
charges against them. To the extent that Mosca's Equal Protection
claim is based on his allegation that he was denied due process,
this claim must fail for the same reasons his procedural due
process claims failed.
Mosca's Complaint alleges that he was denied the procedural
protections given to African-American employees facing charges of harassment. Even if the Court assumes that an Equal Protection
violation exists where the City chooses whether or not to
investigate harassment charges on the basis of the race of the
accused, Mosca has not presented sufficient evidence to raise a
material issue of fact as to whether the City has discriminated
in this manner. As noted earlier in Part III.C., the only two
employees alleged to have received a City investigation were both
Whether the comment allegedly made by Mosca to Cole over the
telephone outside the work place is the type of harassment which
would be a proper subject of a City investigation is highly
doubtful. Mosca made his comment in a social setting. Cole, the
recipient, certainly never complained that she was being harassed
by Mosca, nor is there anything in the record to suggest that
anyone complained that Mosca was engaged in harassing conduct in
the workplace. Mosca is alleged to have insulted the Mayor; this
hardly translates into charge of workplace discrimination
requiring some kind of fact-finding investigation.
Mosca alleges that the City, Langford and Fitzgerald conspired
to deprive him of his federally-protected rights in violation of
42 U.S.C. § 1985(3). A plaintiff alleging a conspiracy in
violation of Section 1985(3) must establish: (1) a conspiracy; (2) motivated by a racial or class
based discriminatory animus designed to deprive,
directly or indirectly, any person or class of
persons to the equal protection of the laws; (3) an
act in furtherance of the conspiracy; and (4) an
injury to person or property or the deprivation of
any right or privilege of a citizen of the United
Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).
"In order to prevent the use of § 1985(3) as a general federal
tort law, courts have been careful to limit causes of action
thereunder to conspiracies that deprive persons of
constitutionally protected rights, privileges and immunities
`that are protected against private, as well as official
encroachment.'" Brown v. Phillip Morris, Inc., 250 F.3d 789,
805 (3d Cir. 2001) (quoting Libertad v. Welch, 53 F.3d 428,
446-50 (1st Cir. 1995)). As discussed above, Mosca has not
demonstrated any racial animus on the part of Defendants, nor has
he shown any deprivation of his constitutionally protected
rights, privileges and immunities. Therefore, his claim under
Section 1985(3) must fail.
For the reasons set for above, the Court will grant the
Defendants' Motion for Partial Summary Judgment as to Mosca's
federal statutory and constitutional claims in counts nine
through eighteen. The Court declines to exercise supplemental
jurisdiction over Mosca's state law claims in counts one through ten, nineteen and twenty. Count twenty-one is dismissed to the
extent that it seeks injunctive relief based on federal causes of
action. The court hereby remands the case to the Superior Court
of New Jersey, Atlantic County. The Court will enter an