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Leroy E. Bibbs v. Township of Kearney et al

February 25, 2011

LEROY E. BIBBS, PLAINTIFF,
v.
TOWNSHIP OF KEARNEY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chesler, U.S.D.J.

NOT FOR PUBLICATION

OPINION

This matter comes before the Court on the motion for summary judgment by Defendants Township of Kearney and Joseph Lauer (collectively, "Defendants.") For the reasons stated below, the motion will be granted in part and denied in part.

BACKGROUND

This case arises from an employment dispute. The following facts are undisputed. Since 1998, Plaintiff has been employed by the Township of Kearney (the "Township") as a police officer. Joseph Lauer ("Lauer") has been employed by the Township at the Police Department and supervised Plaintiff until May of 2006.

On July 29, 2009, Plaintiff filed a Complaint asserting three counts: 1) race discrimination, in violation of 42 U.S.C. § 1981; 2) retaliation, in violation of 42 U.S.C. § 1983; and 3) hostile work environment, in violation of New Jersey's Law Against Discrimination ("NJLAD.") Defendants have moved for summary judgment on the Complaint.

ANALYSIS

I. Relevant legal standard

A. Motions for summary judgment Summary judgment is appropriate under FED. R. CIV. P. 56(a) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence 'is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). "[W]ith respect to an issue on which the nonmoving 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." Celotex, 477 U.S. at 325.

Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). "A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).

If the nonmoving party has failed "to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial, . . . there can be 'no genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

II. Defendants' motion for summary judgment

A. Second Count: violation of § 1983, against Lauer Defendants first move for summary judgment on the Second Count of the Complaint, contending that the evidence cannot support a retaliation claim against Defendant Lauer. Specifically, Defendants argue that the sole act of retaliation that Plaintiff has alleged -- the referral for investigation of the CJIS incident -- is insufficient, as a matter of law, to support a retaliation claim. In opposition, Plaintiff states: "Retaliation can be inferred based upon Lauer's approval to obtain Bibbs' nephew's drivers license, providing him the document and then reporting him." (Pl.'s Opp. Br. 28.) There is no dispute here about the facts. The sole question before the Court is whether these facts are insufficient to support a retaliation claim as a matter of law.

There are three elements to a § 1983 claim for retaliation for the exercise of First Amendment rights: "(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Plaintiff has alleged that he filed complaints for race discrimination in December of 2006 and January of 2007, and that Lauer's referral of Plaintiff for investigation in March of 2008 was an actionable act of retaliation.

Defendants argue that Lauer's act of referring Plaintiff for investigation cannot, as a matter of law, constitute a retaliatory action sufficient to support a claim under ยง 1983. This Court agrees. The parties do not dispute two key facts: 1) the investigation concluded that Plaintiff's use of the CJIS system violated Department policy; and 2) the investigation resulted in no formal discipline for Plaintiff. In assessing whether an action is sufficient to support a claim for retaliation in relation to First Amendment rights, the key question is whether the "alleged retaliatory conduct ...


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