The opinion of the court was delivered by: Irenas, Senior District Judge
Plaintiff Robert Reilly ("Reilly") brings this suit against his former employer and supervisors for alleged employment retaliation. Presently before the Court are the Defendants' Motions for Summary Judgment.
In June, 2003, Reilly retired from the Atlantic City Police Department as a Sergeant. Reilly retired pursuant to a "Consent Agreement" between Reilly and his employer, Defendant City of Atlantic City ("Atlantic City" or "the City"), which allowed Reilly to retire with his full pension instead of facing disciplinary sanctions--including a 90-day suspension, a reduction in rank to patrolman, and removal from the promotion list---resulting from an investigation into sexual harassment charges made by a female police officer against Reilly. (Defs. Ex. O)*fn1 Reilly asserts that this adverse employment action was taken against him because of his involvement several years earlier in an investigation of alleged misconduct by Defendant Robert Flipping ("Flipping").
Between 1989 and 1991 Reilly was a detective in the "investigation unit" of the Atlantic City Police Department. During this time, Reilly was assigned to an investigation that eventually led to the trial of Patrolman Dennis Munoz ("Munoz") in 1993 on criminal charges of official misconduct, promoting prostitution, and accepting bribes.*fn2 Flipping was Munoz's supervisor and close friend at the time of the alleged crimes and testified on Munoz's behalf at the trial. Reilly testified at the Munoz trial on behalf of the prosecution.*fn3 (Defs. Ex. E at p. 100)
Flipping was never charged or disciplined in connection with the events surrounding the Munoz trial.*fn4 Flipping knew that he was a target in the Munoz investigation, however, and he specifically knew that the state prosecutor had questioned witnesses about Flipping before the Munoz grand jury. (Pls. Ex. P at p. 174-76) A local newspaper covering the Munoz trial also reported that "Flipping was one of the state's prime targets in its investigation . . . and could still face charges once the Munoz case is decided, both sides in the trial have indicated."
In September, 2002, Flipping was promoted to Director of Public Safety.*fn6 While the record is unclear whether the Public Safety Director has the final authority to make promotion decisions or disciplinary decisions, it is clear that Flipping, as Public Safety Director, had a leading role in the decision in Reilly's case. Police officer Timothy Friel ("Friel")*fn7 testified at his deposition that based on his knowledge of the events surrounding the Munoz trial and conversations with Flipping around the time Flipping became Public Safety Director, Friel believed that Flipping wanted to prevent Reilly's promotion. (Pls. Ex. B) Specifically, Friel stated,
So there was a dislike, and Flipping being very close---very, very close with Munoz for his whole career, in my opinion, was very pissed off about it and really, really disliked [Reilly] because of that. . . . It was my opinion that when Flipping became the director of public safety and had some say as to whether it was going to be promotions or not, it was his first true opportunity to get even with Reilly for that investigation with Dennis Munoz.
According to Reilly, Flipping's opportunity came in February, 2003, when an independent hearing officer found that Reilly had violated Atlantic City Police Department Rules and Regulations prohibiting sexual harassment.*fn8 Though not entirely clear in the record, it appears that Reilly's hearing was conducted pursuant to the "major discipline" procedure for civil service employees set out in the New Jersey Administrative Code. See N.J. Admin. Code § 4A:2-2.5 -2.6; see generally N.J. Admin. Code §§ 4A:2-1.1 -4A:2-6.2. Thus, a "designated representative," in this case, Hearing Officer Willis Flower, Esq., presided over the hearing, where both Atlantic City and Reilly were represented by counsel. See N.J. Admin. Code § 4A:2-2.6(a)-(b).
In a 28-page opinion, Hearing Officer Flower thoroughly summarized what took place at the hearing, including the testimony of the complaining officer, Reilly, and at least eleven other witnesses. (Defs. Ex. I) Hearing Officer Flower made findings of fact and conclusions of law after having considered briefs submitted by both sides. (Id.) Specifically, Hearing Officer Flower found that Reilly "made derogatory comments involving women" in the complainant's presence which "embarrassed and intimidated" her.*fn9 (Id. at 10-11) He also found that Reilly had engaged in other conduct that, while not necessarily sexual in nature, "contributed to a hostile work environment that intimidated, derided and belittled" the complainant. (Id. at 11) These findings notwithstanding, Hearing Officer Flower also found that Reilly had not intended to intimidate the complainant. (Id. at 21) He then recommended: "In my judgment, dismissal, reduction in rank or lengthy suspension is not called for here. . . . My recommendation for appropriate discipline is a four day suspension without pay." (Id.)
Shortly after receiving the opinion, Defendant Police Chief Arthur Snellbaker ("Snellbaker") discussed it with Flipping, his immediate supervisor, who also received the opinion. Snellbaker expressed "consternation" over the opinion and asked Flipping whether he was required to follow the disciplinary recommendation, which Snellbaker considered "unacceptable." (Pls. Ex. D at 48-50) Flipping stated that he believed that Snellbaker was responsible for enforcing the department rules and regulations, and indicated that Flipping would await Snellbaker's recommendation.*fn10 (Id.)
Accordingly, on February 24, 2003, Snellbaker drafted a memorandum to Flipping in which he quoted Hearing Officer Flower's recommendation but made his own recommendation that Reilly should be reduced in rank. (Defs. Ex. J) He based this recommendation on his view that Reilly's conduct was "egregious and reprehensible" especially because it was directed towards "the most impressionable of his subordinates." (Id.) Snellbaker explained, "[t]he essence of leadership is dignity. No one will willingly follow a clown or 'one of the boys' into harm's way."*fn11 (Id.)
After receiving Snellbaker's recommendation, Flipping reviewed Reilly's disciplinary history and drafted his own memorandum to the department's business administrator recommending that Reilly be removed from the promotion list for his negative "prior employment history." (Defs. Ex. L) Flipping wrote, "While it is clear that almost fifteen years have passed since Reilly's last disciplinary incident [not including the recent sexual harassment case], it should be noted that he has had assignments during that period that removed him from the day to day type of public contact. Reilly was placed in plain clothes type activities where supervision is in large measure laissez fair." (Id. at 2) He continued,
Sergeant Reilly has exhibited behavior throughout his career that indicates racism, bigotry, sexism, lack of impartiality toward the public, irresponsibility, bringing the department into disrepute, failures to perform lawful duties from competent authority as directed and failures to treat others with respect. The seeming 'hiatus' during the middle of his career should not mislead anyone into believing that this is a history of unrelated or isolated incidents or that Reilly's behavior has changed or improved. Clearly the most recent incidents belie that argument. For reasons unknown (perhaps related to previous administrations' lapse or malaise) no appropriate action was taken against Reilly's insidious behavior. This administration must rise up and confront this situation and set the matter right.
Reilly's disciplinary record, which dates back to March, 1979, has a total of eight entries, all of which are suspensions.*fn12 (Pls. Ex. I) Among those eight, four were 3-day suspensions resulting from failing to honor a subpoena. (Id.) Reilly was suspended once, in 1979, for "remarks of a racial nature" which were made in connection with a "falsified report" and poor "conduct toward the public." (Id.)
Flipping did not review Reilly's personnel file which was maintained separately from the disciplinary records. Reilly's personnel file contained, among other things, his most recent Employee Performance Evaluation in which his overall job performance was rated as "Exceeds Expectations," the highest of the available ratings. (Pls. Ex. K) Reilly's direct supervisor further commented, "[t]he only way Sgt. Reilly's job performance could be improved is promotion." (Id.)
In a separate memorandum to the City business administrator, dated the same day as the above-quoted Flipping memorandum, Flipping recommended that Reilly's punishment should include both Flipping's recommended removal from the promotion list and Chief Snellbaker's recommended demotion. (Defs. Ex. M) Flipping further stated, "had prior administrators acted prudently, I believe that Reilly should have been terminated prior to this matter." (Id.)
City Solicitor Smoger and Personnel Director Upshaw reviewed Flipping's recommendations and Hearing Officer Flower's opinion. (Defs. Ex. N) In a memorandum dated March 26, 2003, City Solicitor Smoger advised, "Personnel Director Upshaw and I concur with your assessment and finding and jointly request that you implement the appropriate procedures in this matter." (Id.) There is no evidence in the record that either Smoger or Upshaw reviewed Reilly's disciplinary record or any other documentation other than Flipping's recommendation and Hearing Officer Flower's opinion.
Reilly asserts claims against Defendants City of Atlantic City, Flipping, McCullough*fn13 and Snellbaker pursuant to 42 U.S.C. § 1983 for violation of his Fourteenth Amendment procedural due process and First Amendment freedom of expression rights.*fn14 He also asserts against these Defendants claims of conspiracy to violate his civil rights pursuant to 42 U.S.C. § 1985, common law civil conspiracy, and retaliation in violation of New Jersey's Conscientious Employee Protection Act, N.J.S.A. § 34:19-1 et seq. ("CEPA").*fn15 Reilly seeks compensatory and punitive damages.*fn16 We have subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367.
"[S]ummary judgment is proper '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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). 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. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, 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.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. ...