United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
Plaintiff Hakim Sims, a police officer employed by the City of Orange Police Department, commenced this action against the City of Orange (the "City"), its former mayor, Eldridge Hawkins, Jr. ("Hawkins"), and its former police director, John E. Rappaport ("Rappaport"). Sims alleges that he was unlawfully punished for speech protected under the First Amendment. His Complaint asserts against all defendants claims under the Conscientious Employee Protection Act (Count I), the New Jersey Civil Rights Act (Count II), and 42 U.S.C. § 1983 (Count III). Now before the Court are the defendants' motions for summary judgment. For the reasons set forth below, the motion filed by the City and Hawkins (Dkt. No. 24-1) is granted in part and denied in part, and the motion filed by Rappaport (Dkt. No. 23-4) is granted. In short, this case will be permitted to go forward against the City and Hawkins on Counts II and III, which allege First Amendment retaliation under the federal and State civil rights statutes.
There is less to this case than meets the eye, however. All claims against defendant Rappaport have been voluntarily dismissed; the only defendants remaining are the City and Hawkins. Count I has been voluntarily dismissed; the only counts remaining are Counts II and III (First Amendment retaliation under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act). Sims, a police captain, claims that he was not given a required promotion and was further demoted to punish his political speech and affiliations. When the mayoral regime changed in 2012, however, he was retroactively promoted to his former rank, awarded back pay, and reimbursed for fees and costs. Compensatory damages seem to be moot. The complaint does not request injunctive relief (and Sims has in any event been reinstated). Sims may have a residual claim for nominal damages for violation of a constitutional right. He seeks punitive damages, but those are unavailable as a matter of law against the City. The remaining claims have not been fully discussed by the parties, but in practical terms, this action seems to be a standalone quest for punitive damages against defendant Hawkins.
The plaintiff, Hakim Sims, has been employed as a police officer by the City of Orange Police Department ("OPD") since 1989. In 2006, he was promoted to the rank of captain. Defendant Eldridge Hawkins, Jr., was elected Mayor of Orange in May 2008, but was defeated in the next mayoral election in June 2012. Over the course of Hawkins's term as mayor, Sims and Hawkins developed what is fairly described as an increasingly antagonistic relationship.
Background Encounters Between Sims and Hawkins
The two had a run-in in August 2010 when Hawkins visited a shooting range located at the Essex County Police Academy. Hawkins-who previously served as an OPD officer but retired before he was elected mayor-intended to become qualified to use the type of gun issued by the OPD. (Statement of Material Facts by Defendants City of Orange and Eldridge Hawkins, Dkt. No. 24-2, ¶5) At the time, Sims was responsible for supervising the range qualification process for OPD officers. Only OPD officers were permitted to use the range and handle OPD-issued weapons. (Id. at ¶6) Therefore, because Hawkins was a civilian, Sims objected to his presence, stating that it was not "lawful or appropriate." (Id.) That challenge reportedly irritated Hawkins. (Deposition of Hakim Sims, Dkt. No. 24-3, at 12) He insisted that although he was no longer an OPD officer, he was still a sworn auxiliary police officer, and was therefore authorized to use the range. It is unclear whether Hawkins actually used the range that day. In any event, there was no immediate fallout from this dispute. Sims informed defendant Rappaport, the police director, of what had occurred, but did not press the matter any further.
About a month later, in September 2010, Sims again encountered Hawkins at a retirement dinner. (Dkt. No. 24-2, ¶8) Sims had heard that Hawkins was criticizing him, and approached to ask him why. (Dkt. No. 24-3, at 10) Sims suspected that it had to with the incident at the shooting range; Hawkins answered, however, that he was dissatisfied with the performance of the OPD's patrol division, which Sims headed. (Deposition of Eldridge Hawkins, Jr., Dkt. No. 28-4, at 15-16) Hawkins apparently believed that the patrol division's "daily totals"-the number of citations, tickets, and arrests-were too low. (Id.; see also Deposition of Hakim Sims, Dkt. No. 24-3, at 13) Sims and Hawkins agree that this conversation was conducted professionally and that it ended without incident.
Demotion for Budgetary Reasons
By early 2011, the City was experiencing budgetary problems. To cut salary costs, in January 2011 the City demoted 14 senior police officers- seven sergeants, five lieutenants, and two captains-by one rank. (Dkt. No. 24-2, ¶ 12) Sims was one of the two captains demoted to lieutenant. (Id.) The demotions were designed to be temporary. In November 2011, the City executed an agreement with the Superior Officers Association (the "SOA Agreement"), under which it promised to re-promote all 14 officers, including Sims, to their former rank "on or before June 1, 2012." (Re-Promotion Agreement, Dkt. No. 28-6, at 2) The SOA Agreement provided that upon repromotion, the officers would continue to receive compensation at their demoted rank for an additional three months. (Dkt. No. 24-2, ¶ 15) The SOA Agreement further provided that if the City failed to re-promote an officer on or before June 1, 2012, the officer would be entitled to back pay as if he or she had been re-promoted. (Dkt. No. 28-6, at 3)
Sims's Altercation with Hawkins
In the fall of 2011, Duane Warren announced his intention to run for Mayor of Orange. Sims, angry about his demotion and other issues regarding Hawkins's management of the OPD, decided to support Warren's candidacy. (Deposition of Hakim Sims, Dkt. No. 24-3, at 23) In November 2011, he attended a fundraiser that marked the start of Warren's campaign. (Dkt. No. 24-2, ¶ 22)
Word of Sims's support for Warren reached Hawkins. On February 6, 2012, Hawkins told Keith Jackson, the head of the Superior Officer's Association, that he knew Sims was supporting Warren's candidacy. According to Sims, Hawkins also told Jackson that, as a result, he would not re-promote him to the rank of captain. Hawkins denies that part of the conversation. (Dkt. No. 28-20, at 14-15)
On February 7, 2012, the day after Hawkins's conversation with Jackson, Sims attended a ceremony at the City of Orange Municipal Courtroom to celebrate the promotion of a group of sergeants to the rank of lieutenant. (Dkt. No. 24-2, ¶ 26) Sims was off-duty at the time and wore plain clothes. After the ceremony, Hawkins proceeded to shake hands with the attendees. Hawkins attempted to shake Sims's hand, but Sims refused. (Statement of Material Facts by Plaintiff Hakim Sims, Dkt. No. 28-1, ¶ 2) Hawkins asked why Sims would not shake his hand. Sims responded that he had heard that Hawkins was not going to re-promote him, based on Sims's support for Warren. (Id. ) Hawkins then told Sims: "You're right. In corporate America when you go against the grain, this is what happens." (Id. ) Hawkins does not deny making this comment, but contends that he was merely referring to Sims's performance as head of the patrol division. ( See Dkt. No. 28-20, at 20) Hawkins also maintains that he told Sims that he was obligated by the SOA Agreement to re-promote him, whether or not he supported Hawkins's administration.
The parties disagree on what happened next. Each asserts that the other became physically confrontational. Sims says that he attempted to walk away but that Hawkins followed him, approached him aggressively, and demanded that he salute him and show "respect." (Deposition of Hakim Sims, Dkt. No. 24-3, at 16) Hawkins admits that he asked Sims to salute him, but insists that he did so in a calm and non-threatening way; he says Sims escalated things by repeatedly yelling that he would "do what he wanted, " and "chest bump[ing]" him in front of the crowd. (Deposition of Eldridge Hawkins, Jr., Dkt. No. 28-20, at 65-66) Ultimately, Sims and Hawkins were separated by onlookers and Hawkins left the courtroom.
Later that same day, Hawkins sent Rappaport a memorandum ordering him to initiate disciplinary proceedings against Sims. The memorandum depicts Sims as the aggressor and concludes thus:
As the chief executive officer of this City I am appalled at the disorderly and disruptive conduct of this officer. His public display and outburst is embarrassing to this department and most certainly violates a whole host of rules and regulations. Further, if he would exercise such poor judgment by showing such public disrespect and aggressive behavior towards a public official then there is no question that he could conduct himself inappropriately when interacting with others or more specifically the residents whom we all ultimately serve. I am ordering you to refer this matter to internal affairs for swift and immediate disciplinary action.
(Hawkins Memorandum, Feb. 7, 2012, Dkt. No. 28-9, at 3)
Rappaport heeded Hawkins's order. The next day, Sims received a Preliminary Notice of Disciplinary Action ("PNDA") charging him with simple assault, insubordination, conducting unbecoming, and other infractions under the OPD's internal rules. (Dkt. No. 28-1, ¶ 4; see also PNDA, Dkt. No. 28-7, at 2) Sims was also suspended without pay on the grounds that his "presence constitutes a hazard and danger." (Dkt. No. 28-7, at 2)
Following a hearing on March 12, 2012, at which both sides presented testimony, all charges except the assault charge were sustained. In particular, the hearing officer found that "[t]here was no testimony suggesting that Mayor Hawkins had displayed any public animosity towards [Sims]" and that the City had "sustained its burden in demonstrating that Lt. Sims was insubordinate and engaged in conduct that was unbecoming." (Dkt. No. 24-2, ¶35) The hearing officer ultimately recommended a 120-day suspension without pay. (Id. at ¶34)
Hawkins contends that, as mayor, he had the final authority to set the terms of Sims's punishment. In addition to the suspension ordered by the hearing officer, Hawkins ordered that Sims be demoted from lieutenant to sergeant. Hawkins testified at his deposition that "no matter what the hearing officer's decision was, I was going to do what I felt was appropriate under the circumstances." (Dkt. No. 28-4, at 28). A Final Notice of Disciplinary Action ("FNDA"), issued May 7, 2012, memorialized the resolution of the disciplinary action. The demotion meant that Sims, now two grades below the rank of captain, was ineligible to be re-promoted to captain under the SOA Agreement.
Sims alleges that a host of procedural irregularities tainted the disciplinary action against him. He maintains that at every stage of the action-from the issuance of the PNDA, to the selection of the hearing officer, to the decision regarding his final punishment-the OPD failed to follow its own Policy and Procedures for Internal Affairs. He also points to a conflict of interest: the Mayor, who was the complainant, also ordered the disciplinary action and imposed the punishment. Sims alleges that the entire process was driven or unduly influenced by Hawkins's desire to retaliate against him.
Sims commenced this action on May 17, 2012. The complaint asserts claims against the City, Hawkins, and Rappaport under the New Jersey Conscientious Employee Protection Act (Count I), the New Jersey Civil Rights Act (Count II), and 42 U.S.C. § 1983 (Count III). Sims contends that his support of Warren's candidacy and his refusal to shake Hawkins's hand constituted expressive conduct under the First Amendment. The essence of his Complaint is that the defendants unlawfully retaliated against him for engaging in this constitutionally protected activity by bringing the disciplinary action against him and demoting him to sergeant. Sims seeks compensatory damages for economic harm, interest, punitive damages, and attorney fees and costs.
In June 2012, Warren defeated Hawkins in the mayoral election. The change in leadership brought a change in Sims's fortunes. On July 6, 2012, the City executed a settlement agreement ("Settlement Agreement") with Sims which dismissed "all charges referenced and/or identified in the PNDA and/or FNDA." (Settlement Agreement, Dkt. No. 28-22, at 3) The Settlement Agreement also re-promoted Sims to the rank of captain, reimbursed him for "all back pay and benefits not received as a result of the suspension, " and ...