The opinion of the court was delivered by: Chesler, U.S.D.J.
This matter comes before the Court on two motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56: 1) by Defendant Robert Troy ("Troy"); and 2) by Defendants City of Jersey City, Jersey City Police Department, and Mayor Jerramiah Healy (collectively, "Jersey City"). For the reasons stated below, the motions will be granted in part, and the case will be remanded to the Superior Court of New Jersey.
In brief, this case arises from a dispute over employment discrimination. The Complaint alleges that Plaintiff Valerie Montone has been a sergeant in the Jersey City Police Department since June of 1996. She alleges various injuries in connection with her employment. On December 13, 2005, Plaintiff filed a Complaint in the Superior Court of New Jersey asserting ten counts: 1) gender discrimination in employment, in violation of the New Jersey Law Against Discrimination ("NJLAD"); 2) retaliation in employment, in violation of the NJLAD; 3) retaliation for protected conduct, in violation of the New Jersey Conscientious Employee Protection Act; 4) retaliation for speech protected by the First Amendment, in violation of 42 U.S.C. § 1983; 5) retaliation for political affiliation protected by the First Amendment, in violation of 42 U.S.C. § 1983; 6) disparate treatment in violation of the Equal Protection clause of the Fourteenth Amendment, in violation of 42 U.S.C. § 1983; 7) retaliation for speech protected by the New Jersey Constitution and New Jersey Civil Rights Act; 8) retaliation for political affiliation protected by the New Jersey Constitution and New Jersey Civil Rights Act; 9) sexual harassment, in violation of the NJLAD; and 10) intentional infliction of emotional distress. Defendants then removed the action to this Court. Defendants have now moved for summary judgment.
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. The motions for summary judgment
Central to Plaintiff's case is the allegation that Defendants failed to promote Plaintiff to the rank of Police Lieutenant from the 2003-2006 list. Plaintiff contends that Defendants' decision not to promote her was based on improper motives and constitutes illegal discrimination. Defendants respond that the decision not to promote her was part of a decision to change the structure of the Police Department, and that, due to this restructuring, no one was promoted to Lieutenant from the 2003-2006 list during Robert Troy's tenure as Police Chief. It is an undisputed fact that no one was promoted to Lieutenant while Troy was Chief. Plaintiff alleges that the decision to promote no one, and the entire restructuring, was a pretext to hide the true basis for the employment decisions, which was to deny her a promotion based on improper motives.
A. Count Five: retaliation for political affiliation The parties agree on the legal requirements for Plaintiff's claim for political affiliation retaliation. To make out a prima facie case for retaliation for political affiliation, a plaintiff: must show that (1) she was employed at a public agency in a position that does not require political affiliation, (2) she was engaged in constitutionally protected conduct, and (3) this conduct was a substantial or motivating factor in the government's employment decision.
Galli v. N.J. Meadowlands Comm'n, 490 F.3d 265, 271 (3d Cir. 2007). In Galli, the Third Circuit further recognized two component elements for the third prong: knowledge by the decisionmaker of the protected conduct, and causation. Id. at 275-276.
Defendants move for summary judgment on the this claim, contending that Plaintiff has no evidence from which a reasonable jury could find in her favor as to the third element. The summary judgment burden then shifts to Plaintiff.
Plaintiff contends that her political affiliation retaliation claim is predicated on the protected conduct of refusing to assist Jerremiah Healy in his election bid in 1997, and her assisting Lou Manzo in his election bid in 2004. Defendants have not disputed these basic facts.
In briefing her opposition to Defendants' motions for summary judgment, Plaintiff has submitted a L. Civ. R. 56.1 Statement of Material Facts ("PSOMF") with 700 numbered statements. The section of Plantiff's opposition brief which deals with the political retaliation claim refers to approximately 278 of these statements. Of these, this Court finds that a large number are not probative of the proposition that Plaintiff's political affiliation was a motivating factor in the decision not to promote her -- the "motivating factor" element.
The largest number of statements -- about 138 -- concern the organizational structure of the Police Department and Troy's reorganization plan. (PSOMF ¶¶ 404-541.) One of Plaintiff's main points is that the evidence shows that promotions to Lieutenant were needed during Troy's tenure as Chief. This Court finds that this evidence is not relevant to proving the motivating factor element.*fn1 Rather, it appears that Plaintiff has approached this claim as if the McDonnell-Douglas analysis applies: this evidence might be useful to show that the employer's proffered explanation is unworthy of credence, and Plaintiff does indeed argue that this evidence shows that Defendants' explanation for the reorganization plan is pretextual. Plaintiff's political retaliation claims are not, however, decided by applying McDonnell-Douglas. Rather, Plaintiff bears the burden of proving that political retaliation was a motivating factor, and this evidence does not show this. Plaintiff's pretext argument is not relevant to the motivating factor element under Galli.
The five statements regarding Jersey City's not having an ordinance setting forth the type and number of police positions, nor written criteria for making promotions, have no relevance to the motivating factor element. (PSOMF ¶¶ 118-122.)
The second largest number of statements (74) concern alleged misconduct by various people in Jersey City government. (PSOMF ¶¶ 618-691.) None of this evidence is relevant to the motivating factor element. The allegations of misconduct by Mayor Healy (the "Bradley Beach Incident") are irrelevant, as they concern neither Montone nor retaliation for political conduct. (PSOMF ¶¶ 618-624.) The evidence that political considerations have played a role in decisions to award jobs or promotions to others in past administrations in Jersey City is also irrelevant.*fn2 Evidence that, during Mayor Healy's administration, other people have gotten jobs or promotions in Jersey City for political reasons may have some minimal probative value as background, but it is clearly insufficient by itself to support an inference that Plaintiff was retaliated against. Significantly, Plaintiff points to no evidence that others were demoted or denied promotion during the Healy administration because of their support for Mayor Healy's opponents.
Plaintiff offers evidence of other politically-motivated decisions during the Healy administration, but this is generally problematic because it is a grab-bag that conflates a variety of situations, some of which involve personal relationships and perhaps nepotism or cronyism, some of which do not concern employment at all, and some of which suggest diverse kinds of political influence. As stated, most significant is the fact that Plaintiff does not provide evidence ...