Montone v. City of Jersey City

• Decision Date: 08 March 2013
• Docket Number: Nos. 11–2990,11–3516.,s. 11–2990
• Citation: 709 F.3d 181
• Parties: Valerie MONTONE, Appellant in No. 11–2990 v. CITY OF JERSEY CITY; Jersey City Police Department; Mayor Jerramiah Healy, in his individual and official capacities; Police Chief Robert Troy, in his individual and official capacities. John Astriab; Clyde Banks; James Buckley; William Cullinane; Richard DeStefano; David LaBruno; Ezio Scerbo; John Whalen, Appellants in No. 11–3516 v. City of Jersey City; Jersey City Police Department; Mayor Jerramiah Healy, in his individual and official capacities; Police Chief Robert Troy, in his individual and official capacities; Business Administrat Brian O'Reilly, in his individual and official capacities.
• Court: U.S. Court of Appeals — Third Circuit

709 F.3d 181

Valerie MONTONE, Appellant in No. 11–2990

v.CITY OF JERSEY CITY; Jersey City Police Department; Mayor Jerramiah Healy, in his individual and official capacities; Police Chief Robert Troy, in his individual and official capacities.

John Astriab; Clyde Banks; James Buckley; William Cullinane; Richard DeStefano; David LaBruno; Ezio Scerbo; John Whalen, Appellants in No. 11–3516

v.City of Jersey City; Jersey City Police Department; Mayor Jerramiah Healy, in his individual and official capacities; Police Chief Robert Troy, in his individual and official capacities; Business Administrat Brian O'Reilly, in his individual and official capacities.

Nos. 11–2990, 11–3516.

United States Court of Appeals, Third Circuit.

Argued Sept. 25, 2012.

Filed: March 8, 2013.

Lisa Manshel, Esq., argued, Francis & Manshel, Millburn, NJ, for Appellant Valerie Montone.

Patricia Breuninger, Esq., Kathleen P. Ramalho, Esq., argued, Breuninger & Fellman, Scotch Plains, NJ, for Appellants John Astriab, Clyde Banks, James Buckley, William Cullinane, Richard DeStefano, David LaBruno, Ezio Scerbo, and John Whalen.

Richard A. Gantner, Esq., argued, Nee, Beacham & Gantner, Hillsborough, NJ, for Appellees City of Jersey City, Jersey City Police Department, and Jerramiah Healy.

Domenick Carmagnola, Esq., argued, Carmagnola & Ritardi, LLC, Morristown, NJ, for Appellee Robert Troy.

Before: McKEE, Chief Judge, JORDAN and VANASKIE, Circuit Judges.

OPINION OF THE COURT

VANASKIE, Circuit Judge.

This consolidated appeal consists of two cases in which current and former sergeants in the Jersey City Police Department accuse defendants Jersey City, the Jersey City Police Department, Jersey City Mayor Jerramiah Healy (collectively, “Jersey City”), and former Jersey City Police Chief Robert Troy of retaliation for exercise of First Amendment rights and discrimination, in violation of 42 U.S.C. § 1983 and New Jersey state law. The District Court granted the defendants' motions for summary judgment. For the reasons that follow, we will vacate the judgments of the District Court.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Plaintiff Valerie Montone was a police officer with the Jersey City Police Department (“JCPD”) from January, 1981 until April, 2010, when she retired as a sergeant. Plaintiffs John Astriab, Clyde Banks, James Buckley, William Cullinane, Richard DeStefano, David LaBruno, Ezio Scerbo, and John Whalen (the “ Astriab plaintiffs”) are present or former sergeants in the JCPD. The plaintiffs' claims arise out of their failure to be promoted from the rank of sergeant to lieutenant during Healy and Troy's tenure as mayor and police chief, respectively.

In 2004, Healy ran for mayor in a special election to complete the previous mayor's unexpired term. Montone supported opposing mayoral candidate Lou Manzo, and used saved vacation time to work in a leadership capacity on Manzo's campaign.

The campaign became particularly heated and personal, including allegedly threatening statements. Healy ultimately won the election, and appointed Troy as police chief in November, 2004. Troy served in this capacity until his retirement in July, 2006.

As police chief, Troy had the authority to make promotions within the JCPD. Promotions from sergeant to lieutenant in the JCPD are made from the “Eligible/Fail Roster,” informally known as “the promotion list.” (Montone Appendix 450–52 [“M.A.”].) Officers are ranked on the list based on their performance on a civil service examination. Promotions to lieutenant are generally made starting at the top of the list with the most highly-ranked candidate and working down the list in numerical order.¹

Plaintiffs claim that all promotions from sergeant to lieutenant were halted by Healy and Troy during Troy's tenure as police chief to penalize Montone for her support of Mayor Healy's opponent. Each of the plaintiffs had passed the civil service examination required to be promoted to the rank of lieutenant and were ranked accordingly on the 2003–2006 promotion list. From November 2004, when Healy and Troy took office, to January 15, 2006, when the promotion list expired,² Montone was ranked fifth out of thirty-nine eligible officers. The other plaintiffs were ranked as follows. Scerbo was first; LaBruno, second; Whalen, third; Buckley, seventh; Cullinane, eighth; Banks, ninth; Astriab, tenth; and DeStefano, eleventh.

During Troy's tenure as police chief, the number of officers in the rank of lieutenant decreased from fifty-six to thirty, even though an agreement between Jersey City and the State of New Jersey Division of Local Government authorized sixty-six lieutenants. In November, 2004, February, 2005, and March, 2005, JCPD Operations Division Commander Inspector Mark Russ issued memoranda to Troy recommending that between five and eleven officers be promoted to lieutenant.

Nonetheless, during Troy's term as police chief, not a single police officer was promoted to lieutenant. Promotions were made to other ranks within the JCPD, including to the ranks of deputy chief, inspector, captain, sergeant, and detective. On December 16, 2006, Healy, then-police chief Thomas Comey, and the recently-retired Troy held a meeting during which they decided not to promote any of the plaintiffs to lieutenant, despite Business Manager Brian O'Reilly's urging to do so. Two days later, on December 18, 2006, twelve officers were promoted to lieutenant from the 2006–2009 promotion list. Only plaintiff Scerbo was promoted to lieutenant from the 2006–2009 promotion list. ³

A number of witnesses gave deposition testimony in support of plaintiffs' theory that all promotions from sergeant to lieutenant were halted to retaliate against Montone. DeStefano, for example, stated in his deposition that Troy told him that he would not be promoted because he was behind Montone on the promotion list and “[t]he Mayor will not promote her.” (M.A. 1792.) In this same conversation, Troy noted that DeStefano was “okay with us” because he “didn't try to hurt us.” (M.A. 1792.) DeStefano understood this to mean that because he had not “come out against [Healy] in the election,” he had not been blacklisted. (M.A. 1792.) Whalen testified to having a substantially similar conversation with Troy, who stated that Whalen “didn't hurt us,” and that Troy was “not making promotions” and “not promoting her.” (M.A. 2265.) When Whalen protested that this was “not fair,” Troy responded by asking Whalen, “Well, how would you feel if your best friend's wife is sitting at the kitchen table crying over threats made by [Montone] against her son and nephew?” (M.A. 2265.) Scerbo, meanwhile, testified that Troy had told him that he “should have no problem” getting a promotion because he “was before Valerie” on the promotion list. (M.A. 2094.)

Montone also points to evidence of Healy and Troy promoting their political supporters, and of Jersey City's history of political patronage. Healy testified, for example, that he had spoken to Troy about both Kevin Guy and Patricia Cassidy, whose relatives were political supporters of Healy and both of whom were ultimately promoted to sergeant.

Jersey City argues that no lieutenant promotions were made “due to budgetary concerns at the Police Department and a desire to improve the department's organizational structure to permit more supervisory police officers on patrol.” (Jersey City's M. Br. 6.) ⁴ Jersey City emphasizes that “[t]here was no plan to stop promotions in order to avoid promoting [Montone].” (Jersey City's M. Br. at 7.) Troy further contends that “there was not a shortage of Lieutenants,” (Troy's M. Br. 4), and that political opponents of Healy, such as Edwin Gillan and Roberto Atkinson, were promoted to sergeant despite being “vocal supporters of Louis Manzo in the 2004 Election.” (Troy's M. Br. 7.)

Montone contends that in addition to suffering retaliation for her political activities, she also incurred retaliation because of her involvement in numerous sexual harassment investigations and complaints against the JCPD, dating back to 1993 and continuing until her retirement in 2010. Most notably, Montone reported to Captain Anthony D'Aiuto in 2002 that another officer, Marisa Johnston, was being sexually harassed by then-lieutenant Troy.

In addition to not being promoted, Montone alleges that the retaliation against her included other conduct, such as Troy spreading rumors that Montone was the individual responsible for distributing embarrassing photographs of the mayor at his daughter's wedding, and that Montone “had threatened the mayor's son.” (M.A. 467.) Montone also claims that political retaliation was the motive behind an internal JCPD investigation into whether she was sleeping on the job, and her subsequent reassignment to the less desirable evening tour. Captain Kevin Oras testified in support of Montone's theory, stating that Troy told him that “[a]s long as I'm Chief, that cow c* *t will never get promoted to lieutenant” and “will never go on the day tour.” (M.A. 460.)

B. Procedural History

On December 13, 2005, Montone filed suit against Jersey City and Troy in the Superior Court of New Jersey, asserting ten causes of action: (1) gender discrimination in employment, in violation of the New Jersey Law Against Discrimination (“NJLAD”); (2) employment retaliation, also in violation of the NJLAD; (3) retaliation for protected conduct, in violation of the New Jersey Conscientious Employee Protection Act; (4) retaliation for protected First Amendment speech, in violation of 42 U.S.C. § 1983; (5) retaliation for political affiliation protected by the First Amendment, also in violation of § 1983; (6) disparate treatment in violation of the Equal Protection Clause and § 1983; (7) retaliation for speech protected by the New Jersey Constitution and the New Jersey Civil Rights Act; (8) retaliation for political affiliation protected by the New Jersey Constitution and the New Jersey Civil Rights Act; (9)...