Robertson v. Fiore, 94-5485

• Citation: 62 F.3d 596
• Decision Date: 16 August 1995
• Docket Number: No. 94-5485,94-5485
• Parties: Kevin ROBERTSON, Appellant, v. Albert FIORE; Hudson County Improvement Authority.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 596

62 F.3d 596

Kevin ROBERTSON, Appellant, v. Albert FIORE; Hudson County Improvement Authority.

No. 94-5485.

United States Court of Appeals Third Circuit.

Argued June 28, 1995.

Decided Aug. 16, 1995.

Norman A. Doyle, Jr. (argued), Doyle & Brady, Kearny, N.J., for appellant.

Gerald T. Ford (argued), Adam J. Hanover, Siff Rosen, Newark, N.J., for appellees.

Before HUTCHINSON, ROTH and GARTH, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

Kevin Robertson, a member of the Democratic party, appeals from an order which granted summary judgment in favor of his former employer, the Democratically controlled Hudson County Improvement Authority (HCIA), on his 42 U.S.C. Sec. 1983 claim. Robertson had alleged a violation of his First and Fourteenth Amendment rights to political association and a violation of his Fourteenth Amendment right to due process.

We conclude that the record does not support an inference that the HCIA discharged Robertson on account of his political affiliation and does not support his claims to a property or liberty interest in his employment protected by the Fourteenth Amendment. We therefore affirm the judgment of the district court on this ground. We write to clarify that the constitutional limitations on political patronage, recognized in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), and Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), extend to intraparty political disputes as well as interparty political disputes.

I.

After working as a legislative aide to Gerald McCann, former Mayor of Jersey City, Robertson was appointed as a Supervisor at the HCIA's waste processing center on April 15, 1991. The HCIA is responsible for the pick up and disposal of all Jersey City municipal waste. After classifying waste as either standard or bulky waste at a sorting facility, the HCIA ships the refuse to a landfill operated by the Hackensack Meadowlands Development Commission ("HMDC") or to an out-of-state facility. As a supervisor, Robertson was one of three people responsible for the classification and management of waste as it arrived at the HCIA sorting facility.

Robertson's short tenure at HCIA was marked by difficulties. Robertson's failure properly to classify waste prompted complaints by Waste Management, the company which handled HCIA waste bound for the HMDC landfill. Albert Fiore, the HCIA Executive Director, noted that in May 1991 he found Robertson seated in a location where it was impossible to examine the incoming waste for which he was responsible. On numerous occasions, Robertson smoked in the working areas of the HCIA sorting facility despite verbal and written warnings to stop. Because dry paper is scattered around the facility, Robertson's smoking endangered other workers and the building. Following personal conflicts, Robertson threatened his coworkers that he would use his relationship with Mayor McCann to have them discharged and physically intimidated at least one of his subordinates.

In an affidavit, Robertson alleged that his mistakes in classifying waste were the result of sporadic training by HCIA, an account not supported by other evidence in the record. Robertson admitted to smoking at the sorting facility but alleged that others also smoked. Robertson does not deny that Waste Management complained about his failure to classify waste properly or that Waste Management complained that he sought to intimidate its employees based on his political affiliations. Nor does he deny Fiore's account of his failure to monitor trucks properly in May 1991.

In an attempt to address these concerns about Robertson's performance, Fiore brought the complaints to the HCIA Board's attention on June 5, 1991 and received authority from the HCIA Board to discipline or fire employees in his own discretion. ¹ Fiore gave HCIA employees notice of his authority on June 7.

On the same day, Robertson received a phone call from Mayor McCann's office. McCann had entered a disputed race for Chairman of the Hudson County Democratic Party. Both McCann and Robert Janiszewski, the Hudson County Executive, were seeking control of the Chairmanship and the party. McCann asked Robertson to organize the city of Kearny in support of his candidacy. Robertson took leave on June 9 and June 10 to support McCann's efforts. Because the leave required administrative approval, Fiore became aware of Robertson's activity.

On June 11, 1991, at separate meetings, both McCann and Bruce Walter, Janiszewski's candidate, were elected as Chairman with competing claims. Fiore supported Janiszewski in the election. Ultimately, McCann's election was declared invalid.

Following these elections, a political battle erupted for control of the HCIA. Between June 11 and July 1, McCann sought to replace the HCIA Board and terminate Fiore. McCann's attempts failed, and on August 8, 1991, Janiszewski forced a reorganization of the HCIA Board and eliminated all of McCann's supporters.

In the interim, Robertson continued to defy HCIA rules. On June 7, 1991, Robertson was reprimanded by his political ally Jerry Papick for smoking at the HCIA facility. On the same day, another employee filed a complaint that Robertson had called Fiore a derogatory name and had questioned Fiore's authority. On June 13, 1991, two HCIA employees reported that Robertson had interfered with their work, had harassed them based on their political affiliation, and had verbally and physically threatened them.

On June 20, 1991, Fiore placed three memos in Robertson's files, documenting the complaints of misconduct. The next day, Fiore notified Robertson that he intended to discharge him for insubordination and poor performance and suspended him with pay, pending an administrative hearing. The HCIA's affidavits state that other McCann supporters were retained after the political dispute was resolved.

After legal wrangling between Robertson and the HCIA regarding whether the grievance hearing should be transcribed, Robertson received a hearing on the misconduct charges. Robertson complained that the hearing was conducted by Sheldon Cohen, a partner at DeCotiis & Pinto, a law firm which was representing Fiore and Janiszewski in a separate legal challenge to their authority over the HCIA. Cohen denied Robertson's motion to disqualify, heard Robertson's grievance claim, and affirmed the decision in HCIA's favor.

Soon thereafter, Robertson filed this 42 U.S.C. Sec. 1983 claim, alleging a violation of his First Amendment right to political association, a violation of the due process clause, and pendent state law claims. Following discovery, the district court granted the HCIA's motion for summary judgment on all Robertson's claims. The district court granted judgment on the due process claims because Robertson failed to demonstrate any protected liberty or property interest. With respect to the First Amendment claim, the court concluded that dismissals based on intraparty conflicts do not state a claim under the First Amendment and that Robertson failed to produce evidence which would permit a jury to conclude that his political association was a substantial cause of his dismissal. Robertson filed a timely notice of appeal.

II.

We exercise plenary review over a grant of summary judgment. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987). We apply the same test that the district court should have applied initially. Id. Summary judgment is appropriate only when the admissible evidence fails to demonstrate a genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Id.; see Fed.R.Civ.Proc. 56(c) (1994). In reviewing the record, we give the nonmoving party the benefit of any reasonable inferences that can be drawn from the record, leaving credibility determinations for trial. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir.1993); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1077 (3d Cir.1992); Chipollini, 814 F.2d at 900.

III.

"To the victor belong only those spoils that may be constitutionally obtained." Rutan v. Republican Party of Illinois, 497 U.S. 62, 64, 110 S.Ct. 2729, 2731, 111 L.Ed.2d 52 (1990). In this manner, Justice Brennan summarized the principle, recognized by the Supreme Court in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980), that public agencies may not hire, transfer, promote, or discharge public employees based on their political affiliations unless their work requires political allegiance. This principle flows from the constitutional prohibition against discharging public employees on account of their speech regarding issues of public concern. See Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

To make out a claim of discrimination based on political association, a public employee must prove (1) that the employee works for a public agency in a position that does not require a political affiliation, ² (2) that the employee maintained an affiliation with a political party, and (3) that the employee's political affiliation was a substantial or motivating factor in the adverse employment decision. Laskaris v. Thornburgh, 733 F.2d 260, 265 (3d Cir.), cert. denied, 469 U.S. 886, 105 S.Ct. 260, 83 L.Ed.2d 196 (1984); Perez v. Cucci, 725 F.Supp. 209, 238-39 (D.N.J.1989), aff'd, 898 F.2d 139 (1990). If the employee demonstrates these elements, the employer may avoid a finding of liability by demonstrating by a preponderance of the evidence that it would have made the same decision even in the absence of the protected affiliation. Mt. Healthy City Sch....