United States District Court, D. New Jersey
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For JEFFREY J. HEFFERNAN, Plaintiff: ALEXANDRA MARGARET ANTONIOU, EMILY KAPLAN MURBARGER, RYAN MARC LOCKMAN, LEAD ATTORNEYS, MARK B. FROST & ASSOCIATES, PHILADELPHIA, PA; GREGG L. ZEFF, LEAD ATTORNEY, LAW FIRM OF GREGG L. ZEFF, MT. LAUREL, NJ.
For CITY OF PATERSON, Defendant: ALBERT C. LISBONA, LEAD ATTORNEY, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ; ALBERTO RIVAS, LEAD ATTORNEY; VICTOR A. AFANADOR, LEAD ATTORNEY, LITE DEPALMA GREENBERG, LLC, NEWARK, NJ.
For MAYOR Jose Torres, Defendant, Cross Claimant: ALBERT C. LISBONA, LEAD ATTORNEY, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ; GARY POTTERS, POTTERS & DELLA PIETRA LLP, FAIRFIELD, NJ.
For POLICE CHIEF JAMES WITTIG, Defendant: MITZY GALIS-MENENDEZ, LEAD ATTORNEY, CHASAN, LEYNER, & LAMPARELLO, PC, SECAUCUS, NJ; ROOSEVELT JEAN, LEAD ATTORNEY, CHASAN LEYNER & LAMPARELLO, SECAUCUS, NJ; THOMAS P. SCRIVO, LEAD ATTORNEY, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP., MORRISTOWN, NJ; JOSEPH M. MORRIS, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, NEWARK, NJ.
For POLICE DIRECTOR MICHAEL WALKER, Defendant: ALBERTO RIVAS, LEAD ATTORNEY; VICTOR A. AFANADOR, LEAD ATTORNEY, LITE DEPALMA GREENBERG, LLC, NEWARK, NJ.
For POLICE CHIEF JAMES WITTIG, Cross Claimant: ALBERT C. LISBONA, LEAD ATTORNEY, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ; MITZY GALIS-MENENDEZ, LEAD ATTORNEY, CHASAN, LEYNER, & LAMPARELLO, PC, SECAUCUS, NJ; THOMAS P. SCRIVO, LEAD ATTORNEY, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP., MORRISTOWN, NJ; JOSEPH M. MORRIS, MCELROY, DEUTSCH, MULVANEY & CARPENTER, LLP, NEWARK, NJ.
For CITY OF PATERSON, Cross Defendant: ALBERT C. LISBONA, LEAD ATTORNEY, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ; ALBERTO RIVAS, LEAD ATTORNEY.
For CITY OF PATERSON, Cross Defendant: ALBERT C. LISBONA, LEAD ATTORNEY, DWYER, CONNELL & LISBONA, ESQS., FAIRFIELD, NJ; ALBERTO RIVAS, LEAD ATTORNEY; VICTOR A. AFANADOR, LEAD ATTORNEY, LITE DEPALMA GREENBERG, LLC, NEWARK, NJ.
HON. KEVIN MCNULTY, United States District Judge.
The plaintiff, Jeffrey Heffernan, a veteran police officer in the City of Paterson, was demoted following a report that he had picked up a lawn sign from a campaign worker for a mayoral candidate. Heffernan has made a number of claims, but the one that best fits the evidence is that the Defendants, his employers, believed Heffernan had engaged in political speech or campaigning, when in fact he had not. At least one other Circuit has recognized a First Amendment claim for retaliation based on such a mistaken belief. The United States Court of Appeals for the Third Circuit, however, has rejected that " perceived support" rationale--explicitly as to free speech, and by strong implication as to freedom of association. As to this and related claims, Defendants and Plaintiff have moved for summary judgment. Following what I believe to be the law of this Circuit, I will enter summary judgment in favor of Defendants and against Heffernan.
The facts are stated briefly here, and developed in greater detail in the discussion of the issues.
The plaintiff, Jeffrey Heffernan, has been an officer in the Paterson Police Department since 1985. In 2005, he became a detective, assigned to the office of Police Chief James Wittig. At all relevant times, Defendant Jose Torres was the Mayor of Paterson and Defendant Michael Walker was the Police Director.
On April 13, 2006, Heffernan's mother, who was ill, asked him to bring her a lawn sign supporting the candidacy of Lawrence Spagnola (the former chief of police) for mayor of Paterson. She wanted to place the sign in front of her Paterson home. Heffernan called a campaign representative he knew. That representative suggested that Heffernan contact Spagnola's campaign manager, Councilman Aslon Goow, who was distributing signs around Paterson. Later that day, while off duty, Heffernan and his son drove to a street corner in Paterson to get a large lawn sign from Goow. (Pltf's 56.1 Statement ¶ ¶ 4, 7, 8; Dfd's Resp. Statement ¶ ¶ 4, 7, 8; see Pltf's Trial Testimony, Lockman Cert. (ECF No. 190-5) Ex. CC at A488). At the street corner, Heffernan spoke to Goow and obtained the sign for his mother. There is a dispute as to whether there was a gathering of Spagnola supporters at the corner. (Pltf's 56.1 Statement ¶ 10; Dfd's Resp. Statement ¶ 10).
Officer Arsenio Sanchez, a member of defendant Mayor Torres's security detail (Sanchez Trial Testimony, Lockman Cert.
Ex. BB at A 276), was on traffic patrol at the time. Sanchez saw Goow, Heffernan, and Heffernan's son at the corner. (Pltf's 56.1 Statement ¶ 11 (citing Sanchez testimony)). There is a record of a cell phone call from Wittig to Sanchez minutes later. Sanchez denied under oath that he spoke with Wittig that day. (Lockman Cert. Ex. BB at A284-285) Wittig, however, testified in his deposition that he spoke to Sanchez, who advised him that " Heffernan was out hanging political signs in the second ward with Councilman Goow." (Wittig Dep. Tr., Afanandor Cert. (ECF No. 196-1) Ex. 5 at 75:18 to 76:21). Heffernan contends that Sanchez and Wittig did indeed speak about him in that call. ( Id. at ¶ ¶ 13-14; Lockman Cert. Ex. BB at A292).
At any rate, word got back to the office. The parties agree that the next day, Lieutenant Patrick Papagni informed Heffernan that he was being transferred out of the Chief's office. After Heffernan picked up his personal belongings, Papagni and Deputy Chief William Fraher told him that he was being demoted to walking patrol because of his political involvement with Spagnola. (Pltf's 56.1 Statement ¶ 34; Dfd's Resp. Statement ¶ 34). Wittig testified that Heffernan " breached his trust" as well as office policy by being " overtly involved in the political campaign." That political involvement, said Wittig, was the cause of his demotion. (Wittig Trial Testimony, Lockman Cert. Ex. DD at A644-646).
Heffernan seemingly did deliver the sign to his mother's home in Paterson. He did not display the sign or post it on his mother's property. (Dep. Testimony of Heffernan, Ex. S to Lockman Cert. (ECF No. 197-4) at A199 at 132:23-133:17).
Heffernan was a close friend of Spagnola. (Pltf's 56.1 Statement ¶ 5; Dfd's Resp. Statement ¶ 5). He " supported" Spagnola's candidacy in the sense that he wanted Spagnola to win, (Pltf's Testimony, Lockman Cert. Ex. CC at A486:17-23). Heffernan did not, however, live in Paterson and he was not eligible to vote there. ( Id. ). A campaign representative told Heffernan " it would help them out" if he met Goow at the street corner ( id. at A488:7). Heffernan also testified that he believed he was associated with people in the campaign. ( Id. at A637:13-15).
Heffernan filed this action on August 17, 2006. The case was initially assigned to District Judge Peter G. Sheridan. Shortly before trial, the defendants moved for summary judgment on the ground that Heffernan had not engaged in any protected speech. On April 3, 2009, Judge Sheridan denied that motion without the benefit of briefing by Heffernan. (ECF No. 62). In that ruling, Judge Sheridan remarked that Heffernan's claim more closely resembled a freedom-of-association claim (Opinion on the Record, Lockman Cert. Ex. F at A135-137) Defendants, at the outset of trial, expressed some surprise that any freedom-of-association claim was in the case. Trial Transcript, Lockman Cert. Ex. BB at A270-271). Judge Sheridan then clearly ruled that the Final Pretrial Order adequately set forth freedom of association as an issue to be tried, and that it would be tried. ( Id. ). See also pp. 14-17, infra. Following Judge Sheridan's ruling, the parties tried the case on the issue of whether Heffernan's freedom of association rights had been violated.
At the conclusion of that April 2009 trial, the jury entered a verdict against Mayor Torres and Chief Wittig. The jury found that Torres and Wittig had retaliated against Heffernan for exercising his first amendment right of association. It awarded $37,500 in compensatory damages against Torres, $37,000 against Wittig, and $15,000 in punitive damages against each.
(ECF No. 76-77). Judgment was entered accordingly. (ECF No. 78). Heffernan, though victorious, moved for a new trial, arguing, among other things, that the Court erred by not allowing Heffernan to go forward with his freedom-of- speech claim. (ECF No. 80). Meanwhile, the Defendants appealed the judgment, arguing, inter alia, that Judge Sheridan erred in permitting Heffernan to go forward on a freedom-of-association claim. (ECF No. 83).
While post-trial motions were pending, Judge Sheridan became aware of a conflict of interest. Judge Sheridan acknowledged that his earlier work at a law firm created an appearance of impropriety and that " [t]he only recourse is to set aside the verdict, and permit a new trial before a different judge." (ECF No. 108). Judge Sheridan therefore entered an Order granting a new trial. (ECF No. 109-110). The case was then reassigned to District Judge Dennis M. Cavanaugh.
Judge Cavanaugh initially told the parties that he would not consider any dispositive pre-trial motions or permit the parties to re-raise issues previously decided. (ECF No. 143). The parties objected. A few weeks later, Judge Cavanaugh relented in part, and permitted the parties to re-file their earlier motions. (ECF No. 147). Torres and Wittig re-filed their earlier motions for summary judgment. (ECF No. 158, 159, 160). Judge Cavanaugh, unlike Judge Sheridan, granted the motions of Defendants Torres and Wittig for summary judgment. He held that Heffernan did not engage in any protected speech and thus had no cognizable First Amendment freedom-of-speech retaliation claim. (ECF No. 167-168). Judge Cavanaugh's opinion and order, however, did not address Heffernan's freedom-of-association claim, the one on which the jury had previously entered a verdict in Heffernan's favor.
Heffernan appealed. The Third Circuit reversed Judge Cavanaugh's judgment on August 7, 2012. (ECF No. 179). The Court of Appeals ruled that Judge Cavanaugh should have afforded Heffernan an opportunity to file papers in opposition to the renewed summary judgment motions. ( Id. at 6). The Court of Appeals also ruled that facts adduced at the April 2009 jury trial were relevant to summary judgment and should have been considered. Such evidence, " even [from a trial] involving a later recusal,  is at least as reliable as other pieces of evidence, such as affidavits, that are routinely considered on summary judgment." ( Id. at 8). Finally, the Court of Appeals ruled that " the able District Judge erred by failing to address Heffernan's Free Association Claim...before entering judgment in favor of the Defendants." ( Id. at 9).
The Court of Appeals remanded the case with instructions that the District Court (a) permit the filing of updated motions for summary judgment; (b) permit the filing of opposition and reply briefs; (c) freely consider evidence adduced at the 2009 trial in connection with those motions; and (d) determine whether the freedom of association claim is properly before the district court. ( Id. at 8-10).
After remand, on May 17, 2013, this case was reassigned to me. (ECF No. 202) In accordance with the Court of Appeals' four-part mandate ( see supra ), (a) Defendants have submitted renewed motions for summary judgment; (b) the Court has accepted opposition and reply papers; (c) those papers have cited, and I have considered, evidence of record from the April 2009 trial; and (d) I have permitted Heffernan to assert his claim based on the right to freedom of association under the First Amendment.
Currently before this Court are Defendants' renewed summary judgment motions, now fully briefed by both sides, as well as Plaintiff's motion for partial summary judgment. Heffernan contends that he was demoted in retaliation for his exercise of his First Amendment freedoms of speech and political association. Defendants assert that Heffernan did not speak or express himself at all, so no free speech claim is presented. Defendants add that no freedom of association claim was properly pled or otherwise asserted. In the alternative, however, they argue that any freedom-of-association claim should be dismissed on summary judgment. In addition, Defendants assert that, under Section 1983, the City of Paterson cannot be held vicariously liable for the actions of Wittig and Torres, the individual defendants remaining in this case, and that no evidence at all connects Mayor Torres to Heffernan's demotion. ( See Dfd's Mot. for Summ. J. (ECF No. 189); Dfd's Opp. to Pltf's Mot. for Summ. J. (ECF No. 196); Dfd's Reply in Further Supp. (ECF No. 201)).
Heffernan argues that he suffered retaliation after exercising two First Amendment freedoms: freedom of association and freedom of speech. Upon review of the entire record, I find that the arguments of Defendants Torres and Wittig are correct under the law of this Circuit. I will enter summary judgment in their favor, and deny Heffernan's motion. That ruling renders moot the issue of whether the City of Paterson or Mayor Torres would have been derivatively liability for those alleged First Amendment violations.
A. Legal Standard on Motion for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts and inferences in the light most favorable to the nonmoving party. See Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265, (1986). " [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." Id. at 325.
If the moving party meets its threshold burden, the opposing party must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; see also Fed.R.Civ.P. 56(c) (setting forth types of evidence on which nonmoving party
must rely to support its assertion that genuine issues of material fact exist). " [U]nsupported allegations ... and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (" 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." ).
When, as here, the parties file cross-motions for summary judgment, the governing standard " does not change." Clevenger v. First Option Health Plan of N.J., 208 F.Supp.2d 463, 468-69 (D.N.J. 2002) (citing Weissman v. U.S.P.S., 19 F.Supp.2d 254 (D.N.J.1998)). The court must consider the motions independently, in accordance with the principles outlined above. Goldwell of N.J., Inc. v. KPSS, Inc., 622 F.Supp.2d 168, 184 (2009); Williams v. Philadelphia Hous. Auth., 834 F.Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir.1994). That one of the cross-motions is denied does not imply that the other must be granted. For each motion, " the court construes facts and draws inferences in favor of the party against whom the motion under consideration is made" but does not " weigh the evidence or make credibility determinations" because " these tasks are left for the fact-finder." Pichler v. UNITE, 542 F.3d 380, 386 (3d Cir. 2008) (internal quotation and citations omitted).
B. Freedom of Speech Claim
Heffernan claims that Defendants retaliated against him for engaging in speech protected by the First Amendment, and has moved for entry of partial summary judgment. Defendants have moved for summary judgment dismissing this freedom-of-speech claim. The first issue is whether Heffernan did engage in protected speech or expression. The second is whether he nevertheless has a cause of action because Defendants retaliated against him based on their belief that he had engaged in protected speech or expression. I also consider whether Heffernan aided and abetted the speech of his mother.
1. Actual First Amendment speech
A public employee is protected by the First Amendment if he  can show that he suffered an adverse employment decision as a result of speaking on a matter of public concern, and that his First Amendment interest outweighs the government's concern " with the effective and efficient fulfillment of its responsibilities to the public." Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997) (citing Green v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997)). " This test is based on a series of cases in which the Supreme Court struck a balance between the employee's right to speak and the government-employer's duty to serve the public productively." Id. at 888-89 (citing, inter alia, Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)).
The initial question is whether Heffernan engaged in protected speech. " [I]n the absence of protected speech, a public employee may be discharged even if the action is unfair, or the reasons " are alleged to be mistaken or unreasonable." Id. at 889 (quoting Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). In Fogarty, for example, the Third Circuit affirmed summary judgment
against the plaintiff, a teacher, who lost his job after being accused of contacting a newspaper reporter about harmful pollution emanating from construction at the school. Id. at 887, 891. The teacher insisted that the principal's information was false; the teacher never spoke to the newspaper reporter. The teacher sued the principal, but lost on summary judgment. Affirming, the Third Circuit " conclude[d] that the absence of speech--in fact, its explicit disclaimer by plaintiff--is fatal to the plaintiff's claim." Id. at 891.
Here, too, Heffernan allegedly suffered an adverse employment action based on speech that, by his own account, did not occur. The alleged speech--political campaigning--would obviously constitute protected speech. But Heffernan has always denied any political link to Spagnola. He has stated repeatedly that he delivered the Spagnola lawn signs, not as a political statement, but as a favor to his ailing mother.
Defendants compare this case to Lombardi v. Morris County Sheriff's Dep't, (D.N.J. May 22, 2007) (Debevoise, S.D.J.). There, the plaintiff alleged retaliation motivated by his " support" of a fellow officer in an internal affairs investigation. The plaintiff served as the officer's union representative, and his support consisted of " merely standing by [the officer] and being a witness" to an interview. The plaintiff " did not make any comments during the interview." Id. at *17. Quoting Fogarty's rule regarding the " absence of speech," Judge Debevoise ruled that the plaintiff had not engaged in protected speech, and therefore had no cause of action. Id. at *18-*19.
Heffernan seeks to distinguish his case from Lombardi, arguing that his purported speech was political in nature. This argument--that Heffernan engaged in political speech in fact --is factually dubious, because it contradicts Heffernan's own testimony. It also bypasses the issue of whether Heffernan spoke at all, arguing instead that any speech must have been protected because Heffernan undertook it in connection with the Spagnola campaign. (Pltf's Br. Opp. Dfd's Mot. for Summ. J. at 22). Heffernan's real stumbling block here--like that of the plaintiff in Lombardi --is his failure to express himself. Heffernan concedes that " [he] did not 'speak.'" ( Id. at 22-24). Even assuming arguendo that Heffernan privately held politically-charged feelings in favor of Spagnola's candidacy--and he never makes such a contention--he did not say a word regarding Spagnola.
Actual speech, then, is not the issue. I turn now to the issue of whether Heffernan's alleged conduct nevertheless ...