Goldrich v. City of Jersey City

DAVID GOLDRICH, Plaintiff, v. CITY OF JERSEY CITY, et al., Defendants.

Case No. 15-cv-885 (SDW) (LDW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

December 8, 2017

NOT FOR PUBLICATION

OPINION

WIGENTON, District Judge.

Before this Court is Defendants City of Jersey City ("Jersey City"), Steven Fulop, James Shea, Philip Zacche, and Joseph Connors' (collectively, "Defendants") Joint Motion for Summary Judgment, brought pursuant to Federal Rule of Civil Procedure 56.

This Court has jurisdiction over this action pursuant to 128 U.S.C §§ 1331, 1343(3), and 1367. Venue is proper pursuant to 28 U.S.C. § 1391. This motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78.

For the reasons discussed below, Defendants' Joint Motion for Summary Judgment is GRANTED in part, and DENIED in part.

I. BACKGROUND AND PROCEDURAL HISTORY

At all times relevant to the Complaint, Plaintiff David Goldrich ("Goldrich" or "Plaintiff") was a Lieutenant for the Jersey City Police Department ("JCPD"). From approximately 2008 through 2013, Plaintiff was a political supporter of Defendant Steven Fulop ("Fulop"). Plaintiff donated to and volunteered for Fulop's campaigns for City Council and Mayor of Jersey City. After Fulop won the mayoral election in 2013, he appointed then Deputy Chief Robert "Bubba" Cowan ("Cowan") to serve as JCPD's Chief of Police. Cowan had also contributed to and volunteered for Fulop's mayoral campaign, and coordinated support for Fulop within the police department. (Lockman Cert., Ex. 3, Cowan Aff. ¶ 4, ECF No. 126-6.) In 2014, Cowan made Plaintiff an Off-Duty Coordinator for the JCPD's Off-Duty Program, which made Plaintiff eligible for overtime pay and gave him the authority to assign JCPD supervisors to off-duty work.¹

Following Cowan's disagreements with Fulop and Jersey City's Director of Public Safety, Defendant James Shea ("Shea"), over the day-to-day operations of the JCPD, and Cowan's subsequent demotion to Deputy Chief, Plaintiff alleges that he ceased his support for Fulop in or around September 2014. (Pl.'s Counter Statement Facts ¶¶ 21-22, 25, 36, 41, ECF No. 126-1) [hereinafter Pl.'s 56.1]. Shortly thereafter, when the Hudson County Democratic Organization ("HCDO") contacted Plaintiff to sell tickets to their Fall Gala, he declined to buy them because he believed purchasing a ticket was effectively a campaign donation to the HCDO, of which Fulop is a prominent member. (Lockman Cert., Ex. 10, Pl.'s Resp. Defs.' Interrogs. at 8, ECF No. 126-8.)

After Cowan was demoted in July 2014, Defendant Philip Zacche ("Zacche") was named Acting Chief of Police, and then officially appointed Chief of Police in October 2014. Plaintiff continued to support former Chief Cowan, however, and alleges that others on the JCPD considered him a "Bubba guy," in reference to Cowan's nickname. (Goldrich Dep. 73:13-74:17, Apr. 1, 2016, ECF No. 126-8; Lockman Cert., Ex. 10 at 9.)

In September 2014, around the time that he decided to no longer support Fulop, Plaintiff alleges that he notified a union designee that funds from the off-duty trust account were being "illegally misappropriat[ed]" by Jersey City's Business Administrator Robert Kakoleski ("Kakoleski") to "plug holes" in the City's main operating budget.² (Pl.'s 56.1 ¶¶ 81-82). Plaintiff subsequently met with Shea and the Off-Duty Intake Coordinator Tom Mahoney ("Mahoney"), during which time Plaintiff raised his concerns about the off-duty account.

Plaintiff alleges that Defendants retaliated against him because he withdrew his support for Fulop and complained about the misappropriation of off-duty account funds. (Am. Compl. ¶ 17.) Plaintiff avers that during a conversation with Deputy Chief Joseph Delaney, he was told that Defendant Joseph Connors ("Connors"), the Deputy Chief Operations Commander, had said, "all Bubba people must go" at a meeting of senior command in October 2014. (Goldrich Dep. 122:22-126:3, Apr. 1, 2016.)

On October 27, 2014, newly-appointed Chief Zacche moved Plaintiff to the Patrol Division to serve as a Desk Lieutenant.³ Prior to being transferred, Plaintiff and his wife, who is a JCPD police officer, were able to work on the same days. Plaintiff alleges that as a result of being transferred, they no longer share the same work schedule, and thus "spend almost no waking time together." (Pl.'s 56.1 ¶ 149.) Plaintiff was also denied a transfer to serve as the Executive Officer of the East District.⁴ (Pl.'s 56.1 ¶¶ 136, 141, 143.) Furthermore, he was no longer given overtime or additional pay for his work as the Off-Duty Coordinator. (Lockman Cert., Ex. 10 at 13.)

Plaintiff filed suit in this Court on February 5, 2015. (ECF No. 1.) He amended his Complaint on December 24, 2015, setting forth claims for: (1) violations of his First Amendment rights to free association and free speech, pursuant to 42 U.S.C. § 1983; (2) Jersey City's violations of 42 U.S.C. § 1983; (3) violations of the Conscientious Employee Protection Act ("CEPA") under N.J. Stat. Ann. § 34:19-1 et seq.; (4) common law conspiracy; and (5) violations of the New Jersey Civil Rights Act ("NJCRA").⁵ (ECF No. 21.) Defendants moved for summary judgment on June 14, 2017. (ECF No. 121.) Plaintiff filed his opposition on August 4, 2017, and Defendants replied on August 18, 2017. (ECF Nos. 126, 129.)

II. LEGAL STANDARD

Summary judgment is appropriate "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). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." Id. at 248. A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The dispute is not genuine if it merely involves "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the nonmoving party to carry its burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party meets its initial burden, the burden then shifts to the nonmovant who must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations, speculations, unsupported assertions or denials of its pleadings. Shields v. Zuccarini, 254 F.3d 476, 481 (3d Cir. 2001). "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).

The nonmoving party "must present more than just 'bare assertions, conclusory allegations or suspicions' to show the existence of a genuine issue." Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party is required to "point to concrete evidence in the record which supports each essential element of its case." Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J. 2004). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which . . . [it has] the burden of proof[,]" then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23. Furthermore, in deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The nonmoving party cannot defeat summary judgment simply by asserting that certain evidence submitted by the moving party is not credible. S.E.C. v. Antar, 44 F. App'x 548, 554 (3d Cir. 2002).

III. DISCUSSION

a. Count One - 42 U.S.C. § 1983

A plaintiff in a § 1983 action "must allege that some person has deprived him of a federal right . . . [and] that the person who has deprived him of that right acted under color of state or territorial law." Gomez v. Toledo, 446 U.S. 635, 640 (1980). Here, Plaintiff alleges Defendants infringed on his First Amendment rights to freedom of association and freedom of speech in violation of 42 U.S.C. § 1983. Defendants do not dispute that they acted under color of state law when making the employment decisions at issue here. Therefore, this Court's analysis focuses on whether the relevant employment decisions deprived Plaintiff of a cognizable federal right.

i. Freedom of Association

The "freedom to associate with others for the common advancement of political beliefs and ideas is . . . protected by the First and Fourteenth Amendments." Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973) (citing NAACP v. Button, 371 U.S. 415, 430 (1963); Bates v. Little Rock, 361 U.S. 516, 522-23 (1960); NAACP v. Alabama, 357 U.S. 449, 460-61 (1958)). Here, Plaintiff alleges he was retaliated against: (1) for his political association with Cowan, and (2) because he ceased his support of Fulop. To establish a claim of discrimination based on political patronage in violation of the First Amendment, Plaintiff must show that (1) he "was employed at a public agency in a position that does not require political affiliation," (2) he "was engaged in...