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James Mckeever v. Township of Washington

January 7, 2011

JAMES MCKEEVER, PLAINTIFF,
v.
TOWNSHIP OF WASHINGTON, MAYOR AND COUNCIL OF THE TOWNSHIP OF WASHINGTON, AND MATTHEW LYONS, DEFENDANTS.



The opinion of the court was delivered by: Kugler, United States District Judge:

NOT FOR PUBLICATION (Doc. Nos. 16, 17, 18)

OPINION

This matter comes before the Court upon the motion for summary judgment by Defendants Township of Washington (the "Township"), Mayor and Council of the Township of Washington, and Matthew Lyons (Doc. Nos. 16, 17) pursuant to Federal Rule of Civil Procedure 56, and the cross-motion for summary judgment filed by Plaintiff James McKeever (Doc. No. 18). On March 16, 2009, Plaintiff brought claims against all Defendants under 42 U.S.C. § 1983. Plaintiff alleged that Defendants engaged in unlawful political discrimination, political retaliation, and violation of the Petition Clause. In addition, Plaintiff alleged that Defendants violated Article One of the New Jersey Constitution. For the following reasons, Defendants' motion is GRANTED, and Plaintiff's cross-motion is DENIED.

I. BACKGROUND

James McKeever is a registered Democrat and a resident of the State of New Jersey. McKeever resides in the Township of Washington, Gloucester County, New Jersey. In June 1989, the mayor of the Township, Mr. Gerald J. Luongo, appointed McKeever to the position of Director of Public Works. McKeever held the position until the 2000 mayoral election, when Mayor Luongo was defeated by the challenger, Randee Davidson. Upon assuming office, Mayor Davidson decided not to reappoint McKeever to the position of Director of Public Works.*fn1

In response, McKeever filed a lawsuit against the Township, alleging, inter alia, political discrimination and violation of the New Jersey Tenure Statute, N.J. Stat. Ann. § 40A:9-154.6 ("NJTS"). McKeever v. Twp. of Washington, et al., 236 F. Supp. 2d 400, 403 (D.N.J. 2002). During the litigation, both parties moved for summary judgment. On August 7, 2002, Judge Rodriguez denied the Township's motion, and granted in part and denied in part McKeever's cross-motion. Id. On April 9, 2003, the parties entered into a settlement agreement (the "Settlement Agreement"). Paragraph 2 of the Settlement Agreement provides:

McKeever also releases forever the Township, its officers, directors, employees, agents, predecessors, successors and assigns . . . from all actions, suits, claims and demands in law or equity, that he ever had, now has, or hereafter may have, resulting from anything which has happened up until now, including but not limited to, any matter, cause or claims relating in any way to his employment relationship, or the alleged termination of his employment relationship with Township, including but not limited to, any matter, cause or claims arising under the New Jersey Law Against Discrimination; Title VII of the Civil Rights Act of 1964; the Civil Rights Act of 1866; the Civil Rights Act of 1991; the Age Discrimination in Employment Act of 1967; the Federal Equal Pay Act; the New Jersey Wage Payment Law; the United States Constitution; the New Jersey State Constitution; the Employee Retirement Income Security Act; the Federal Americans with Disabilities Act; the Conscientious Employee Protection Act; the Federal False Claims Act; the Family and Medical Leave Act; the New Jersey Family Leave Act; Executive Orders 11246 and 11141; and any other federal, state or local law or ordinance and any common law claims under tort, contract, or any other theories now or hereafter recognized, and including but not limited to all claims that were asserted or that could have been asserted in the litigation filed by McKeever against the Defendants in the United States District Court for the District of New Jersey and captioned as Civil Action No. 01-cv-00712 . . . . The release recited in this paragraph shall include any and all claims which McKeever may have for any type of damages cognizable under any of the law referenced herein, including, but not limited to, any and all claims for compensatory damages, punitive damages, and/or attorney's fees. (Settlement Agreement ¶ 2). Paragraph 18 of the Settlement Agreement provides:

McKeever understands the terms of this Agreement, including the fact that he has permanently and irrevocably severed his employment relationship and/or his alleged employment relationship with Township and that this Agreement releases forever Defendants from any legal action he may bring, including but not limited to, any action arising from his employment relationship and the alleged termination of his employment relationship with Township. McKeever signs this Agreement of his own free will in exchange for the consideration to be given to him, which he acknowledges as adequate and satisfactory. (Id. ¶ 18). In exchange for the above release, the Township agreed to pay McKeeveer $366,585.33. (Id. ¶ 4).

In 2004, Paul Moriarty was elected Mayor of the Township. In January 2005, Mayor Moriarity reappointed McKeever to the position of Director of Public Works. On January 2, 2005, the Township Council held a reorganization meeting to confirm McKeever's appointment. During the meeting, three councilmembers voted in favor of McKeever's appointment and councilmembers Steve Altamuro and Matthew Lyons voted against his appointment. When asked whether he did not support McKeever because of the lawsuit in 2001, Mr. Lyons replied: "I believe that was part of it, yes, but it was specific to the involvement of the entire [sic] and how the litigation was concluded, not for the institution of the suit, it had to do with the terms of the agreement of resolution." (Lyons and McKeever Dep. 28:1-16, June 7, 2010). In a sworn affidavit, Mr. Lyons also stated: "I voted against [Plaintiff's] appointment as Director of Public Works because I was concerned whether terms of [Plaintiff's] April 4, 2003 Confidential Settlement Agreement and Release in the matter of McKeever v. Township of Washington, 236 F. Supp. 2d 400 (D.N.J. 2002), would entitle [Plaintiff]/preclude [Plaintiff] from being a 'tenured' employee per N.J.S.A. § 40A:9-154.6 upon his confirmation as the Director of Public Works." (Lyons Aff. ¶ 4). Notwithstanding Lyons's opposition, McKeever was confirmed and served as Director of Public Works until November 2008, when Mr. Lyons was elected mayor.

Mr. Lyons is a Democrat. Before selecting a new Director of Public Works, Mayor Lyons considered the following three individuals: (1) the Director of Public Works for the town of Audubon, New Jersey, (2) a Regional Administrator for the Department of Environmental Protection, and (3) Mr. Nicholas Pileggi, the CFO/General Manager of Riverwinds and White Oaks Golf and Tennis Facilities (the "Riverwinds") and former Business Administrator for Monroe Township, New Jersey.*fn2 In a sworn affidavit, Mayor Lyons stated that he wanted to fill the position of Director of Public Works with a person with business experience and financial training. McKeever had a limited college education and no accounting or financial training. (Lyons and McKeever Dep. 75:17-76:6, 89:24-25, June 7, 2010). After considering each of the candidates, Mayor Lyons selected Mr. Pileggi for the position. Prior to selecting Mr. Pileggi, Mayor Lyons discussed Mr. Pileggi's credentials with Jerry White, the former Business Administrator for West Deptford, New Jersey. Mr. White confirmed that Mr. Pileggi was a good supervisor and administrator. (McKeever and Lyons Dep. 36:4 - 37:1, June 7, 2010). At the time of his appointment, Mr. Pileggi was not a certified Public Works Manager.*fn3

On March 16, 2009, McKeever brought a lawsuit against the Township, Mayor Lyons, and the Council of the Township of Washington. McKeever alleged that: (1) Defendant Lyons discriminated against him by not reappointing him to the position of Director of Public Works due to his political affiliations in violation of the First and Fourteenth Amendments of the United States Constitution and Article One of the New Jersey Constitution (Count One), (2) Defendant Lyons did not reappoint him to the position of Director of Public Works in retaliation for the lawsuit Plaintiff filed against Defendants in violation of the First and Fourteenth Amendments of the United States Constitution and Article One of the New Jersey Constitution, (Count Two), and (3) Defendants deprived Plaintiff of his due process rights by terminating his employment without a hearing in violation of the United States Constitution and the New Jersey Constitution.*fn4 On August 16, 2010, Defendants moved for summary judgment. On September 3, 2010, McKeever cross-moved for summary judgment. The parties submitted their respective briefs and the motion is ripe for review.

II.STANDARD

Summary judgment is appropriate where the court is satisfied that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine issue of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the court weighs the evidence presented by the parties, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

The burden of establishing the nonexistence of a "genuine issue" is on the party moving for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). The moving party may satisfy its burden either by "produc[ing] evidence showing the absence of a genuine issue of material fact" or by "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

Once the moving party satisfies this initial burden, the nonmoving party must "set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). To do so, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, to survive summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Furthermore, "[w]hen opposing summary judgment, the nonmoving party may not rest upon mere allegations, but rather must 'identify those facts of record which would ...


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