Palardy v. Twp. of Millburn

MICHAEL J. PALARDY, JR., Plaintiff, v. TOWNSHIP OF MILLBURN, TIMOTHY P. GORDON, and JOHN DOES 1-5, Defendants.

Civil Action No. 15-02089(SDW)(LDW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

July 11, 2017

NOT FOR PUBLICATION

OPINION

WIGENTON, District Judge

Before this Court is the Motion for Summary Judgment of Defendants Township of Millburn and Timothy P. Gordon (collectively, "Defendants"), pursuant to Federal Rule of Civil Procedure 56. This Court, having considered the parties' submissions, decides this matter without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, Defendants' Motion is GRANTED.

I. JURISDICTION AND VENUE

This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b).

II. BACKGROUND¹

Plaintiff Michael J. Palardy, Jr. ("Plaintiff") filed the operative Amended Complaint, (Dkt. No. 28), in this matter on February 22, 2016, against Defendants Township of Millburn and Timothy P. Gordon, alleging eight claims arising out of Plaintiff's employment as a police officer for the Department of Police in the Township of Millburn (the "Police Department"). (See Am. Compl. ¶ 1.) On May 2, 2016, this Court granted Defendants' Motion for Judgment on the Pleadings as to five of the eight counts in the Amended Complaint. (Dkt. Nos. 37-38.) The remaining counts of the Amended Complaint allege that Defendants violated Plaintiff's rights to free speech and association under the United States and New Jersey Constitutions.²

Plaintiff began working as a police officer for the Township of Millburn in 1988. (Defs.' Statement of Undisputed Material Facts ("Defs.' SMF") ¶ 8.) After over twenty years as a police officer, Plaintiff submitted his application for retirement to the Township Police Department on August 13, 2013. (Id. ¶ 9.) He remained on terminal leave from September 1, 2013, until his effective retirement date of February 1, 2014. (Id. ¶ 15.)

Plaintiff was promoted three times over the course of his career: to the rank of sergeant in 1995, lieutenant in 1998, and captain on February 21, 2012. (Id. ¶ 8.) He also was a member of the Police Benevolent Association ("PBA") and the Superior Officers Association ("SOA"), both of which acted as collective bargaining representatives for individuals in the Police Department. (Id. ¶ 18; Pl.'s Counter Statement of Material Facts ("Pl.'s CSMF") ¶ 1.d.; Am. Compl. ¶¶ 6-7.) Plaintiff had a number of roles with both the PBA and SOA during his career. He claims to have been a sergeant-at-arms for the PBA in the early 1990s, after which he was a union delegate for the PBA from approximately 1992 to 1995. (Defs.' SMF ¶ 19.) Plaintiff also served as the SOA Vice President in approximately 2007 or 2008 and as the SOA President from approximately 2009. (Id. ¶ 20.) He stepped down as SOA President in approximately September of 2011, several months before he was promoted to the rank of captain. (Id. ¶ 21.)

The actions Plaintiff took as a union member are not described with much detail in Plaintiff's submissions to this Court. According to Plaintiff, he was "active as a member, officer, and member of the contracting [sic] negotiating committed [sic]." (Pl.'s CSMF ¶ 1.e.) Plaintiff also contends that "when called upon [he] represented members of the bargaining unit in matters of discipline, in matters of terms and conditions of employment, and in contract negotiation with Millburn." (Palardy Cert. ¶ 10.) Plaintiff was not, however, the "lead negotiator" during negotiations on any collective bargaining agreement. (Defs.' SMF ¶ 24.) Moreover, Plaintiff testified that although the "mouthpiece" for the union during arbitration proceedings in the early 2000s was the union's attorney, Plaintiff did research to support a change in the Police Department's work schedule. (Id. ¶¶ 27-30.) Finally, Plaintiff claims to have attended a discipline hearing of a PBA president when Plaintiff was still a lieutenant in 1998 or 1999. (Palardy Cert. ¶ 14; Defs.' SMF ¶¶ 31-32.) Plaintiff did not hold any roles in the PBA or SOA, and did notparticipate in any collective bargaining negotiations, after he stepped down as SOA President in approximately September of 2011. (Defs.' SMF ¶¶ 37-39.)

According to Plaintiff, Defendant Township of Millburn and Defendant Gordon, the Township's former Business Administrator, violated Plaintiff's free speech and association rights through a number of actions Plaintiff claims were retaliatory. (See generally Pl.'s Br. Opp. Mot. Summ. J. ("Pl.'s Br. Opp.").) Although Plaintiff does not clearly outline which of Defendants' actions he believes to have been retaliatory, he appears to complain of the following conduct.

First, Plaintiff contends that Defendants retaliated against him by commissioning two studies performed by Dr. Wayne Fisher: a 2008 study into the overtime authorization procedure and internal affairs procedure, as well as, a 2011 study of the table of organization of the Township Police Department. (Am. Compl. ¶ 10; Defs.' SMF ¶¶ 53-59.) Although Plaintiff contends that at least one of these studies was conducted for the purpose of preventing him from being promoted to the rank of captain, he concedes both that he was eventually promoted to that rank, and also, that he was not adversely impacted by either study. (Defs.' SMF ¶¶ 54, 56, 58-59.)

Second, Plaintiff contends that Defendants retaliated against him by refusing to pay him a retroactive wage increase granted to other Township employees. (Am. Compl. ¶ 13.) However, this retroactive wage increase, which the SOA and Township jointly agreed to on April 21, 2014, as part of changes to their collective bargaining agreement, was made applicable only to those employees on the Township's payroll at the time the agreement was made. (Defs.' SMF ¶¶ 42-44.) Plaintiff was not on the Township's payroll at the time of the agreement because he retired over two months earlier on February 1, 2014. (Id. ¶ 42, 44.) Moreover, Plaintiff concedes both that he was aware the Township was considering the retroactive wage increase, and also, that he could have extended his terminal leave past his February 1, 2014 retirement date. In addition, Defendantscontend, and Plaintiff does not dispute, that the same retroactive wage increase and the accompanying limitation of eligibility to those employees on the payroll at the time of the agreement, "was added to all of the Township's union agreements during this time period—including the PBA, the fire department and the road department." (Id. ¶ 46.)

Third, although Plaintiff did not include this accusation in his Amended Complaint, he contends that Defendants retaliated against him by considering the Chief of the Livingston Police Department for a position as the Chief of the Millburn Police Department. (Id. ¶ 60.) However, Plaintiff concedes that this took place when Plaintiff was a lieutenant, and also, that the Livingston Chief was not hired as the Millburn Chief. (Id. ¶ 62.)

Finally, Plaintiff contends that Defendant's retaliated against him by not promoting him to the position of Chief of the Millburn Police Department. (Pl.'s CSMF 1.i.) However, Plaintiff also contends that he retired over a year before the position would have become available in April of 2015 because the "writing was on the wall" that he would not be promoted. (Defs.' SMF ¶¶ 63-67.) Moreover, Plaintiff admits that he was "never passed over for the chief's position," that he never discussed a promotion to that position with Defendant Gordon, and that he was, in fact, never passed over for any promotion within the Police Department. (Defs.' SMF ¶¶ 68-74.)

In light of these accusations, Plaintiff now contends that Defendants' actions violated his rights to free speech and association in contravention of the United States and New Jersey Constitutions. Defendants filed the Motion for Summary Judgment now before this Court on March 10, 2017. (See generally Defs.' Br. Supp. Mot. Summ. J. ("Defs.' Br. Supp.").) Plaintiff filed his brief in opposition on April 24, 2017, and Defendants filed a brief in reply on May 1, 2017.

III. 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 non-moving 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 non-moving party to 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. Zucc arini, 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...