July 24, 2012
ALLYN C. SEEL, PLAINTIFF-APPELLANT,
LORENZO LANGFORD, MAYOR, AND THE CITY OF ATLANTIC CITY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0201-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued July 10, 2012
Before Judges Sabatino and Kennedy.
Plaintiff Allyn C. Seel appeals from an order dated November 5, 2010, granting partial summary judgment in favor of defendants dismissing the second count of his complaint, which alleged that defendants violated his "civil rights as defined and protected by N.J.S.A. 10:6-2" by removing him as Emergency Management Coordinator for Atlantic City. We affirm.
On January 1, 2007, the Mayor of Atlantic City appointed plaintiff as the municipal Emergency Management Coordinator (EMC) pursuant to N.J.S.A. App. A:9-40.1, which is part of the Civilian Defense Act and Disaster Control Act (the Act). The Act provides that a duly appointed EMC shall serve a three-year term of office.
On December 8, 2008, defendant Lorenzo Langford, who began serving as Mayor of Atlantic City in November 2008, removed plaintiff as EMC and appointed him as deputy EMC at a lower salary. Langford then appointed another person as EMC eleven days later.
On January 14, 2009, plaintiff filed a two-count complaint against Langford and the City of Atlantic City. The first count alleged that by statute, only the New Jersey Governor may remove an EMC during the appointee's term of office, and that such removal must be for "cause." Plaintiff sought an order declaring that his termination by Langford was "null and void" and demanded various forms of relief. The second count asserted that plaintiff's 2007 appointment as EMC gave him a "property interest in the position" and that, by removing him from the position, the "[d]efendants did . . . intentionally and recklessly violate plaintiff's civil rights as defined and protected by N.J.S.A. 10:6-2(c)." Plaintiff sought an award of reasonable counsel fees pursuant to N.J.S.A. 10:6-2(f).
Plaintiff thereafter moved for summary judgment as to count one of the complaint. Defendants admitted that plaintiff was appointed as EMC in 2007 and removed by Langford in 2008, but argued that Langford, as the mayor of Atlantic City, was not precluded from replacing an EMC under the statute. Judge Valerie H. Armstrong, in a comprehensive and well-reasoned written opinion, concluded that
The object of the Civilian Defense Act is coordination and uniformity of response to a disaster. A municipal EMC's statutorily based "right to continue for the full term of his appointment" if the requisite coursework requirement is met, N.J.S.A. App. A:9-40.1, furthers this object by insulating the position from frequent political changes in a municipality. Nothing in the language and scheme of the Civilian Defense Act manifests an intent by the legislature to vest a mayor with removal power over the position. The Faulkner Act does not change this result. A municipality's ability to govern itself is not harmed by denying a mayor such power. The same cannot be said for the State's disaster response mechanism if this [c]court were to hold otherwise.
On August 12, 2009, the judge entered an order granting summary judgment in favor of plaintiff declaring that the "Mayor in a mayor-council form of government has no authority to remove a municipal Emergency Management Coordinator" prior to the expiration of his or her three year term and that such authority "is vested only with the Governor" under the statute.
Subsequently, defendants moved for summary judgment seeking to dismiss the second count of the complaint, including a claim for attorneys fees. By this time, both plaintiff and Langford had been deposed. Langford conceded that he could recall no consultations with municipal counsel or his staff about removing plaintiff, but had "always been of [the] opinion" that he had the "ability and the right" to appoint "[his] own" EMC. Langford added that his decision to replace plaintiff had nothing to do with plaintiff's training or competence.
Plaintiff testified at his deposition that he had been active in Atlantic City politics and that he had supported candidates that opposed Langford in the past. Plaintiff stated that the city's assistant business administrator told him that Langford simply wanted "his own guy" in the job.
While a fair reading of the second count of plaintiff's complaint would indicate that plaintiff was asserting a "substantive due process" right to his employment as the Atlantic City EMC, plaintiff's opposition to summary judgment -and, indeed, the "principal issue" identified in his brief on appeal - concerned the claim that the exercise of his "First Amendment free speech rights" caused his removal as EMC for the city. Judge Armstrong, in another cogent and legally sound opinion, rejected the argument, however.
Judge Armstrong explained that to establish a right to relief on such a claim, plaintiff would have to demonstrate that his exercise of his constitutionally-protected free speech rights was a "substantial or motivating factor" in an adverse employment action. She concluded:
Since [p]laintiff has not demonstrated that the [d]efendants had any knowledge of his campaigning activity or that he was removed as EMC due to that activity, he cannot show that his free speech was the substantial reason or motivation behind his demotion by Mayor Langford.
The judge entered an order on November 5, 2010, granting summary judgment dismissing the second count of plaintiff's complaint.
The parties thereafter presented the judge with a "final judgment by consent" whereby defendants would pay $6000 in full satisfaction of plaintiff's claims for economic damages on count one of the complaint, and plaintiff's right to appeal the dismissal of the second count would be reserved. Judgment was entered on September 23, 2011, and this appeal followed.
Plaintiff argues on appeal that the trial judge erred in granting summary judgment dismissing count two because "[a]lthough there is no direct evidence in . . . Langford's deposition that he removed [p]laintiff . . . because of his political affiliations, there are reasonable inferences that a jury could draw" from the record to establish that fact. Plaintiff further argues that a reasonable jury could conclude that Langford's actions were "conscience shocking" and were "calculated to damage the reputation and privacy" of plaintiff. Plaintiff claims that the latter inference is supported by Langford's involvement in prior litigation (not involving the same issue or plaintiff) over the EMC position and by Langford's failure to consult with legal counsel before removing plaintiff as EMC.
We find these arguments to be unpersuasive and we affirm the dismissal of count two of the complaint essentially for the reasons set forth by Judge Armstrong in her comprehensive and well-reasoned written opinion issued on November 5, 2010. In such circumstances, another written opinion addressing the same arguments is unnecessary. R. 2:11-3(e)(2)(E). We add only the following.
We review the trial court's award of summary judgment de novo. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). We apply the same standard employed by the trial court. Bello v. Lyndhurst Bd. of Educ., 344 N.J. Super. 187, 190 (App. Div. 2001). Generally, summary judgment should be granted when "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 challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Plaintiff asserts he is entitled to pursue claims under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and that the trial court erred in ruling to the contrary. Specifically, plaintiff contends that (1) [d]efendants clearly violated state laws and both federal and state constitutional standards, and (2) the actions of Langford "shock the conscience."
The CRA provides, in pertinent part, that:
[a]ny person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State . . . may bring a civil action for damages and for injunctive or other appropriate relief. [N.J.S.A. 10:6-2(c).]
In a CRA claim, "the court may award the prevailing party reasonable attorney's fees and costs." N.J.S.A. 10:6-2(f).
The Legislature adopted the CRA "for the broad purpose of assuring a state law cause of action for violations of state and federal constitutional rights and to fill any gaps in state statutory anti-discrimination protection." Owens v. Feigin, 194 N.J. 607, 611 (2008) (citation omitted). The CRA was modeled after 42 U.S.C.A. § 1983. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114-15 (App. Div.), certif. denied, 208 N.J. 366 (2011). The CRA has been interpreted analogously with Section 1983. See Trafton v. City of Woodbury, 799 F. Supp. 2d 417, 443 (D.N.J. 2011).
In Filgueiras v. Newark Public Schools, ___ N.J. Super. ___ (App. Div. 2012)(slip op. at 28-29), another case in which we considered a claim pleaded under the CRA, we recently held:
To establish a § 1983 claim, "the first task . . . is to identify the state actor, 'the person acting under color of law,' that has caused the alleged deprivation." Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (citing Monell v. City Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978)), cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). "The second task is to identify a 'right, privilege or immunity' secured to the claimant by the Constitution or other federal laws of the United States." Ibid. (quoting 42 U.S.C.A. § 1983). Thus, Section 1983 "'is not itself a source of substantive rights,' but merely provides 'a method [for] vindicating federal rights elsewhere conferred. . . .'" Ibid. (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d 433, 442 n.3 (1979)).
"The principle of substantive due process, founded in the federal Constitution, U.S. Const. amend. XIV, § 1, and our State Constitution, N.J. Const. art. I, § 1, protects individuals from the 'arbitrary exercise of the powers of government' and 'governmental power [. . .] being used for [the] purposes of oppression.'" Felicioni v. Admin. Office of the Courts, 404 N.J. Super. 382, 392 (App. Div. 2008) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662, 668 (1986)), certif. denied, 203 N.J. 440 (2010). "However, the constitutional guarantee 'does not protect individuals from all governmental actions that infringe liberty or injure property in violation of some law.'" Ibid. (quoting Rivkin, supra, 143 N.J. at 366). "[S]ubstantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that 'shock the conscience or otherwise offend . . . judicial notions of fairness . . . [and that are] offensive to human dignity.'" Ibid. (second alteration in original) (quoting Rivkin, supra, 143 N.J. at 366). Accord Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) ("To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience.").
"To establish a cause of action [under the CRA], a plaintiff must allege a specific constitutional violation." Matthews v. N.J. Inst. of Tech., 717 F. Supp. 2d 447, 452 (D.N.J. 2010) (citing N.J.S.A. 10:6-2(c)). Here, plaintiff claims that right infringed is his right to free speech under U.S. Const. amend. I and N.J. Const. art. I, ¶ 6.*fn1
To succeed on a free speech claim brought pursuant to Section 1983, plaintiff must establish (1) that he engaged in conduct protected by the First Amendment; (2) that he suffered an adverse employment action; and (3) that his protected conduct was a "substantial" or "motivating" factor in the adverse employment decision. Ferraro v. City of Long Branch, 314 N.J. Super. 268, 280 (App. Div. 1998); Anderson v. Davila, 125 F.3d 148, 161, (3d Cir. 1997); see Bello, supra, 344 N.J. Super. at 194. An employment action is adverse for the purposes of determining unlawful retaliation if it is "sufficient to deter a person of ordinary firmness from exercising his First Amendment rights." Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000); see also Board of Social Services, 164 F. Supp. 2d 455, 467 (D.N.J. 2001) (noting that "an employment action is considered adverse, for the purposes of determining unlawful retaliation, if it is likely to chill a person of ordinary firmness in the exercise of their First Amendment rights.") (internal quotations omitted).
Once plaintiff makes this showing, the municipality may show it would have taken the same action in the absence of protected speech. Stephens v. Kerrigan, 122 F.3d 171, 176 (3d Cir. 1997). As Judge Armstrong recognized, however, before this burden shifting is required, the record must support a "legitimate inference, as opposed to mere speculation" that an adverse employment action was taken because of plaintiff's exercise of his free speech rights. Bello, supra, 344 N.J. Super. at 196.
Here, even granting that plaintiff engaged in conduct protected by the First Amendment, he has not adduced sufficient evidence from which a reasonable jury could find that he suffered an actionable, adverse employment action and that speech was a motivating factor in defendants' actions. Such an inference cannot legitimately arise merely because plaintiff and Langford are not allied politically, particularly where, as here, there is no showing that Langford even knew of plaintiff's political activities.
Beyond this, plaintiff has not adduced sufficient facts to support a claim that he suffered an invasion of any protectable interest in his reputation. See John Doe v. Poritz, 142 N.J. 1, 104-07 (1995). Moreover, the actions asserted against defendants are not so "conscience shocking" as to require us to determine if plaintiff's status as an employee with a three-year term is an interest protected by substantive due process. See Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008) ("To establish a substantive due process claim, a plaintiff must prove the particular interest at issue is protected by the substantive due process clause and the government's deprivation of that protected interest shocks the conscience.").
Nor do we need to consider whether, independent of the asserted constitutional violations, plaintiff's removal as EMC deprived him of a "substantive right . . . secured by the laws of this State," within the meaning of the CRA. There is no indication that such an argument was presented to the trial judge, as plaintiff instead rested his CRA claims essentially upon a theory of constitutional deprivation. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-235 (1973) ("It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. den. 31 N.J. 554 (1960)).