Rowan v. City of Bayonne, 041012 FED3, 11-1854

Docket Nº:11-1854
Opinion Judge:FISHER, Circuit Judge.
Party Name:EARL ROWAN; SIMON TAYLOR, Appellants v. CITY OF BAYONNE, a municipal corporation; WILLIAM O'BRIEN; JOANNE CORBETT
Judge Panel:Before: RENDELL, FISHER and CHAGARES, Circuit Judges.
Case Date:April 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

EARL ROWAN; SIMON TAYLOR, Appellants

v.

CITY OF BAYONNE, a municipal corporation; WILLIAM O'BRIEN; JOANNE CORBETT

No. 11-1854

United States Court of Appeals, Third Circuit

April 10, 2012

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) March 20, 2012

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 2-07-cv-04237) District Judge: Honorable Peter G. Sheridan.

Before: RENDELL, FISHER and CHAGARES, Circuit Judges.

OPINION

FISHER, Circuit Judge.

Earl Rowan and Simon Taylor (collectively, "Appellants") appeal from orders of the District Court granting summary judgment in favor of the City of Bayonne, William O'Brien, and Joanne Corbett (collectively, "Appellees"). For the reasons set forth below, we will affirm.

I.

We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.

Appellants both worked for the City of Bayonne, New Jersey ("City"). Rowan worked for the Bayonne Parking Authority until 2004, at which time he was assigned to work at the Bayonne Public Library ("Library"). Taylor was hired as a full-time employee in 2000, and shortly thereafter transferred to the Library. Corbett served as Appellants' supervisor. In August 2005, O'Brien, a supervisor for the Department of Public Works ("DPW"), used a racial slur to refer to Appellants. As a result of this incident, O'Brien was initially terminated by the City, but his termination was later reduced to a sixty-day suspension. On September 25, 2005, Appellants filed complaints against the City and O'Brien with the New Jersey Division of Civil Rights and the Equal Employment Opportunity Commission ("EEOC"). In May 2006, Appellants and the City reached a settlement on these claims, pursuant to which Appellants agreed to release all claims related to the August 2005 incident, and the City agreed to conduct sensitivity training within sixty days.

In June 2006, Rowan requested a schedule change due to family problems, and on September 8, 2006, he was transferred to a position at DPW, which required him to work on a garbage truck. Rowan expressed concern that a medical condition made it difficult for him to work on the garbage truck, and on August 1, 2007, DPW reassigned him to a street sweeping position.

In July 2007, Appellants filed a second complaint with the EEOC, alleging that they were discriminated against on the basis of race and that they faced retaliation as a result of their filing the initial EEOC complaint. On September 5, 2007, Appellants filed a nine-count complaint in the U.S. District Court for the District of New Jersey against the City and O'Brien, alleging First Amendment retaliation (Count One), Title VII violations (Count Eight), violations of the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. § 10:5-1, et seq. (Counts Two and Three), violations of the New Jersey Conscientious Employee Protection Act ("CEPA"), N.J. Stat. Ann. § 34:19-1, et seq. (Count Seven), as well as common law claims for intentional infliction of emotional distress (Count Four), negligent hiring and retention (Count Five), and breach of contract (Count Nine). The District Court subsequently granted, in part, Rowan's motion to amend his complaint to add Corbett as a defendant, and denied Taylor's motion to amend the complaint.

On June 30, 2010, Appellees moved for summary judgment as to all counts. On March 23, 2011, the District Court granted Appellees' motions as to several counts, and on March 31, 2011, the District Court issued a memorandum opinion and order, dismissing all remaining claims.1 Appellants filed timely notices of appeal.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and we have jurisdiction under 28 U.S.C. § 1291. We review the District Court's grant of summary judgment de novo, and apply "the same standard that guides our district courts." Dee v. Borough of Dunmore, 549 F.3d 225, 229 (3d Cir. 2008) (citation omitted). Summary judgment is appropriate if "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).

III.

Appellants first contend that the District Court erred in granting summary judgment on their First Amendment retaliation claim (Count One). We disagree.2 Rowan alleges that he was retaliated against by being twice "demoted" and Taylor alleges that he was denied overtime pay. To establish a claim for First Amendment retaliation, a plaintiff must show: "(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising h[er] constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citation omitted). The threshold inquiry is whether the speech in question is protected by the First Amendment, i.e., whether it relates to "a matter of public concern." Connick v. Myers, 461 U.S. 138, 146 (1983). Here, Appellants cite three instances in which they engaged in protected conduct: (1) their filing of an EEOC complaint in...

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