Baldassare v. State of NJ.

• Decision Date: 02 May 2001
• Docket Number: No. 00-5263,00-5263
• Citation: 250 F.3d 188
• Parties: (3rd Cir. 2001) MARK G. BALDASSARE, Appellant v. THE STATE OF NEW JERSEY; COUNTY OF BERGEN; COUNTY OF BERGEN BOARD OF CHOSEN FREEHOLDERS; OFFICE OF THE PROSECUTOR; CHARLES R. BUCKLEY, under color of state law, individually and in his capacity as Acting Prosecutor for Bergen County; JOHN and JANE DOE 1-10, individually in their official capacities
• Court: U.S. Court of Appeals — Third Circuit

Page 188

250 F.3d 188 (3rd Cir. 2001)

MARK G. BALDASSARE, Appellant v. THE STATE OF NEW JERSEY; COUNTY OF BERGEN; COUNTY OF BERGEN BOARD OF CHOSEN FREEHOLDERS; OFFICE OF THE PROSECUTOR; CHARLES R. BUCKLEY, under color of state law, individually and in his capacity as Acting Prosecutor for Bergen County; JOHN and JANE DOE 1-10, individually in their official capacities

No. 00-5263

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued December 13, 2000

Filed May 2, 2001

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

LINDA B. KENNEY, ESQUIRE (ARGUED), NANCY S. MARTIN, ESQUIRE, Kenney, Schaer & Martin, Red Bank, New Jersey, Attorneys for Appellant.

BARBARA H. PARKER, ESQUIRE, Office of County Counsel, Hackensack, New Jersey, Attorney for Appellee, County of Bergen.

J. SHELDON COHEN, ESQUIRE (ARGUED), PETER A. TUCCI, JR., ESQUIRE, DeCotiis, Fitzpatrick, Gluck, Hayden & Cole, Teaneck, New Jersey, Attorneys for Appellees, Office of the Prosecutor and Charles R. Buckley, Acting Prosecutor for Bergen County.

DENNIS G. HARRAKA, ESQUIRE, Greenberg, Ferrara, Covitz, Turitz, Harraka & Goldberg, Hackensack, New Jersey, Attorney for Appellee, Board of Chosen Freeholders of Bergen County.

Before: Before: SCIRICA and AMBRO, Circuit Judges, and POLLAK, District Judge.^*

OPINION OF THE COURT

SCIRICA, Circuit Judge.

The Bergen County Prosecutor demoted and later fired one of his investigators allegedly for his role in an investigation of fellow law enforcement officers. The principal issue on appeal is whether the investigator's dismissal violated his First Amendment rights. Holding the prosecutor's interest in an efficient workplace outweighed the investigator's interest in his speech, the District Court granted summary judgment for the prosecutor and related state entities on the First Amendment claim and declined exercising supplemental jurisdiction over his remaining state law claim.¹ For reasons that follow, we will reverse in part, affirm in part, vacate in part, and remand.²

I. FACTS

In 1983, Mark Baldassare commenced working at the Bergen County Prosecutor's Office as an agent; in 1984 he was promoted to investigator; and in 1989 he was promoted to Lieutenant of Investigators and Director of the Computer Division.³ Over the years, Baldassare received several promotions culminating in his appointment in January 1995 as Acting Chief of Investigators by the Bergen County Prosecutor, John Fahy.

The incident that sets the stage for this lawsuit took place in 1994 when allegations of criminal activity began to circulate within the Bergen County Prosecutor's Office. At a disciplinary hearing of Senior Investigator Richard Barbato, his attorney accused Deputy Chief Ed Denning and Lieutenant Mike Carlino of a "car scam"--buying previously leased county vehicles well below market price. Baldassare reported these allegations to First Executive Assistant Robert Hennessey and Prosecutor Fahy, who later instructed Baldassare to ascertain whether the cars owned by Denning and Carlino had been previously leased by the County. After determining the vehicle identification numbers matched, Prosecutor Fahy instructed Baldassare to perform an internal investigation into the allegations against Denning and Carlino. At its conclusion, Prosecutor Fahy decided Denning and Carlino should be charged criminally and authorized a complaint. Because of a conflict of interest, Prosecutor Fahy turned the matter over to the New Jersey Attorney General. But after investigating, the Attorney General's Criminal Division dismissed the charges for lack of evidence of criminal intent.⁴ Despite the Attorney General's decision, Prosecutor Fahy brought administrative charges of wrongdoing against Denning and Carlino. As a result, both were suspended without pay. Denning chose to retire.

On February 28, 1995, Deputy Attorney General Charles Buckley questioned Baldassare about his role in the Denning and Carlino investigation. Buckley allegedly told Baldassare that Denning and Carlino were friends and that criminal charges should not have been pursued. He then allegedly asked Baldassare to name all those involved in the investigation, noting his unhappiness that "two good men's careers had been ruined."

The following day, Prosecutor Fahy resigned and Buckley became Acting Prosecutor for Bergen County. Baldassare contends it soon became clear that Buckley held him responsible for the officers' punishment, and began engaging in "rude, disrespectful and retaliatory conduct."

Buckley subsequently demoted Baldassare two levels from Acting Chief of Investigators to Captain; transferred him to the Bergen County Police Academy; and prohibited him from further contact with the Bergen County Prosecutor's Office Computer Division which he previously managed. Baldassare also contends Buckley searched for evidence that would cast him in an unfavorable light. The matter came to a head, Baldassare charges, when Buckley terminated him with neither notice nor cause on October 10, 1995.

Buckley maintains that after assuming office as Acting Prosecutor, he realized Baldassare was not qualified to serve as Acting Chief of Investigators. Buckley's defense details Baldassare's dearth of qualifications and errors, which include making false accusations, mishandling a murder and an organized crime investigation, and attempting to cover-up the improper discharge of his firearm. Moreover, Buckley insists that Baldassare was insubordinate and exhibited an unhelpful attitude. For these reasons--and not for retaliatory purposes--Buckley professes he demoted Baldassare from Acting Chief of Investigators to Captain and assigned him to the Police Academy in June 1995. When Baldassare purportedly failed to adjust his poor attitude and adequately perform his duties, Buckley fired him.

II. PROCEDURAL HISTORY

Baldassare sued Buckley, Bergen County, the Bergen County Prosecutor's Office, the State of New Jersey and the County of Bergen Board of Chosen Freeholders under 42 U.S.C. 1983⁵ for violating his procedural and substantive due process rights by "failing to allow him to exercise his freedom of speech in speaking out about various public issues and/or in exercising his role as Captain of the County Prosecutor's Office when he investigated and reported other officers for their violation of the law and public policy." Baldassare also brought state law claims--breaches of contract, violation of New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. 34:19-1 to -8, and violations of the New Jersey Constitution.

Defendants filed motions to dismiss. The District Court dismissed Baldassare's Fifth and Fourteenth Amendment due process claims and his CEPA claim against the State of New Jersey on sovereign immunity grounds. After discovery, the District Court granted defendants' motion for summary judgment and declined to exercise supplemental jurisdiction over the state law CEPA violation. Baldassare appeals the grant of summary judgment on his claims brought under 42 U.S.C. 1983 for violation of his First Amendment rights, tortious violation of his state constitutional right to freedom of speech, and tortious interference of economic advantage.

III. FIRST AMENDMENT

A public employee has a constitutional right to speak on matters of public concern without fear of retaliation. Rankin v. McPherson, 483 U.S. 378, 383-84, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994) ("A state cannot lawfully discharge an employee for reasons that infringe upon that employee's constitutionally protected interest in freedom of speech."). Public employers cannot silence their employees simply because they disapprove of the content of their speech. Rankin, 483 U.S. at 384; Watters, 55 F.3d at 891. While "the government's role as employer . . . gives it a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large," this hand cannot act with impunity. Waters v. Churchill, 511 U.S. 661, 671, 128 L. Ed. 2d 686, 114 S. Ct. 1878 (1994) (plurality opinion); Watters, 55 F.3d at 895-96.

A public employee's retaliation claim for engaging in protected activity must be evaluated under a three-step process. Green v. Phila. Hous. Auth., 105 F.3d 882 885 (3d Cir. 1997); Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996). First, plaintiff must establish the activity in question was protected. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). For this purpose, the speech must involve a matter of public concern. Connick, 461 U.S. at 147; Watters, 55 F.3d at 892. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) (requiring courts to strike "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees"); Azzaro, 110 F.3d at 976; Green, 105 F.3d at 885. These determinations are questions of law for the court. Waters, 511 U.S. at 668; Green, 105 F.3d at 885.

If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Watters, 55 F.3d at 892; Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir. 1994). Lastly, the public employer can rebut the claim by demonstrating "it would have reached the same decision . . . even in the absence of the protected conduct." Doyle, 429 U.S. at 287; Swineford, 15 F.3d at...