Farber v. City of Paterson

• Decision Date: 08 March 2006
• Docket Number: No. 04-4498.,04-4498.
• Parties: Roberta FARBER v. CITY OF PATERSON; Jose Torres; Elieser Burgos; Marge Dipasquale; Local 3474, American Federation of State, County & Municipal Employees, AFL-CIO, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

440 F.3d 131

Roberta FARBER v. CITY OF PATERSON; Jose Torres; Elieser Burgos; Marge Dipasquale; Local 3474, American Federation of State, County & Municipal Employees, AFL-CIO, Appellant.

No. 04-4498.

United States Court of Appeals, Third Circuit.

Argued November 16, 2005.

Filed March 8, 2006.

David B. Beckett, (Argued), Szaferman, Lakind, Blumstein, Blader & Lehmann, Lawrenceville, NJ, for Appellant.

James E. Patterson, (Argued), Graham, Curtin & Sheridan, Morristown, NJ, for Appellee.

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

BARRY, Circuit Judge.

The American Federation of State, County & Municipal Employees, AFL-CIO, Local 3474 ("Local 3474" or "the Union"), appeals the District Court's denial of its motion to dismiss. The District Court was persuaded, first, that political affiliation was a cognizable class under 42 U.S.C. § 1985(3) and, at least for purposes of a motion to dismiss, that the Union had conspired with appellee Roberta Farber's employer, the City of Paterson, to deprive her of her First Amendment rights on the basis of her political affiliation. The Court was also persuaded that Farber's claim that the Union breached its duty of fair representation in refusing to pursue a grievance on her behalf had been timely filed. We will affirm in part and reverse in part.

I. Background and Procedural History

We have before us a classic example of political patronage. Democrat Jose Torres defeated Republican incumbent Mayor Martin G. Barnes in the May 2002 mayoral election in Paterson, New Jersey, and subsequently declared his intent to terminate City employees who supported the former mayor. Farber, a City employee and admitted supporter of Barnes and his policies, was terminated from her administrative, non-policymaking position on June 28, 2002, after approximately eleven years on the job. She was informed of her termination in a letter from the City's Assistant Personnel Director, Marge DiPasquale, whose niece, Farber claims, was later hired to fill her position.

After her termination, Farber asked the Union to file a grievance on her behalf against the City for allegedly breaching the collective bargaining agreement that governed her employment. A meeting was held between the Union and City representatives, but ultimately the Union rejected Farber's request, citing the fact that she was a provisional employee who could be terminated at will.¹ Farber alleges that the Union's president, Manuel Ojeda, a political ally of newly elected Mayor Torres, was thereafter appointed as the City's Director of Public Works.

Farber filed suit against the City and the Union, among others, alleging, inter alia, (1) that the City and the Union conspired to deprive her of her First Amendment rights because of her political affiliation, in violation of 42 U.S.C. § 1985(3); and (2) that the Union breached the duty of fair representation it owed to her under the New Jersey Constitution and the New Jersey Employer-Employee Relations Act, N.J. Stat. Ann. § 34:13A-5.3.

The Union moved to dismiss Farber's § 1985(3) and duty of fair representation claims pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that discrimination based on political affiliation cannot support a § 1985(3) claim, and that the duty of fair representation claim was time-barred. That motion was denied. See Farber v. City of Paterson, 327 F.Supp.2d 401, 418-25 (D.N.J.2004). Relying on Perez v. Cucci, 725 F.Supp. 209, 249-53 (D.N.J.1989), aff'd, 898 F.2d 142 (3d Cir. 1990), the District Court determined that political affiliation is a cognizable class for § 1985(3) purposes, and that "Farber [pled] sufficient class-based animus when she alleged that Defendants conspired against her because she is a Republican." Farber, 327 F.Supp.2d at 424-25. The District Court also determined that, despite the New Jersey Public Employment Relations Commission's "exclusive power" to prevent unions from engaging in "unfair practices" under N.J. Stat. Ann. § 34:13A-5.4(c), a litigant may bring a duty of fair representation claim under the Employer-Employee Relations Act in court without first resorting to the Commission. Id. at 419-20. The District Court then rejected the Union's argument that the six-month statute of limitations applicable to unfair practice charges before the Commission should also apply to a duty of fair representation claim at law. It held, instead, that New Jersey's general six-year limitations period for actions alleging "tortious injury to the rights of another," N.J. Stat. Ann § 2A:14-1, applied. 327 F.Supp.2d at 421-22.

The Union moved under 28 U.S.C. § 1292(b) for an interlocutory appeal of the denial of its motion to dismiss. The District Court granted the motion, certifying two issues:

(1) Are people who share a political affiliation a cognizable class for [42 U.S.C.] § 1985(3) purposes?

(2) Which statute of limitations applies to a claim brought in court for a union's breach of the duty of fair representation that is enunciated in the New Jersey [Employer-Employee Relations Act]?

We granted the Union's petition for leave to appeal. Our review of the denial of the Union's motion to dismiss is plenary. The facts alleged in the complaint and the reasonable inferences that can be drawn from those facts are accepted as true for purposes of this review.

II. 42 U.S.C. § 1985(3)

Section 1985(3) permits an action to be brought by one injured by a conspiracy formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). In a line of cases beginning with Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), the Supreme Court has made clear what a plaintiff must allege to state a claim under § 1985(3): "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (citing Griffin, 403 U.S. at 102-03, 91 S.Ct. 1790).

Section 1985(3) was initially part of Section 2 of the Ku Klux Klan Act of 1871, an Act passed to give the federal government a weapon against the wave of anarchic and violent civil resistance to Reconstruction that marred the post-Civil War South. See Novotny v. Great Am. Fed. Sav. & Loan Ass'n, 584 F.2d 1235, 1238-39 (3d Cir.1978), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979);² Keating v. Carey, 706 F.2d 377, 385 (2d Cir.1983). It does not create any substantive rights, but permits individuals to enforce substantive rights against conspiring private parties. See, e.g., Marino v. Bowers, 657 F.2d 1363, 1371 (3d Cir. 1981); Howard v. State Dep't of Highways, 478 F.2d 581, 585 (10th Cir.1973).

Due to restrictive, post-Reconstruction-era Supreme Court decisions, including one that held that § 1985(3) only reached public conspiracies, § 1985(3) was not utilized for about 70 years. In Griffin, however the Court reversed course and held that a § 1985(3) claim can reach private as well as public conspiracies that seek to deprive a class of equal protection of the laws or equal privileges under the laws. 403 U.S. at 101, 91 S.Ct. 1790. Thus, African-American plaintiffs were permitted to use § 1985(3) to sue their racially motivated white attackers for violating their constitutional right to travel. Id. at 103, 106, 91 S.Ct. 1790.

Despite its application to private conspiracies, § 1985(3) was not intended to provide a federal remedy for "all tortious, conspiratorial interferences with the rights of others," or to be a "general federal tort law." Id. at 101-02, 91 S.Ct. 1790. The Griffin Court emphasized that because § 1985(3) requires the "intent to deprive of equal protection, or equal privileges and immunities," a claimant must allege "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action" in order to state a claim. Id. at 102, 91 S.Ct. 1790 (third emphasis added). The phrase "class-based invidiously discriminatory animus" would

confine the authority of this law to the prevention of deprivations which shall attack the equality of rights of American citizens; that any violation of the right, the animus and effect of which is to strike down the citizen, to the end that he may not enjoy equality of rights as contrasted with his and other citizens' rights, shall be within the scope of the remedies of this section.

Id. at 100, 91 S.Ct. 1790 (quoting Cong. Globe, 42d Cong., 1st Sess.App. 478 (1871) (Rep.Shellabarger)).

There are two distinct aspects to the "class-based invidiously discriminatory animus" which, we now know, will support a § 1985(3) claim — the first is defined by form, and the second by function. Thus, a plaintiff must allege both that the conspiracy was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious. See Aulson v. Blanchard, 83 F.3d 1, 4-5 (1st Cir.1996).

Farber's claim that the Union and the City conspired against "supporter[s] of the former administration" fails to allege discriminatory animus against an identifiable class. But even if it did — if, for example, she alleged discriminatory animus against registered Republicans — any such animus would not trigger § 1985(3) protection. For one thing, the frequent mention of "Republicans" in the Act's legislative history, in and of itself, does not mean that Congress intended § 1985(3) to reach conspiracies bottomed on political affiliation. For another,...