Farber v. City of Paterson, No. CIV 03-4535(DRD).
| Decision Date | 07 June 2004 |
| Docket Number | No. CIV 03-4535(DRD). |
| Citation | 327 F.Supp.2d 401 |
| Parties | Roberta FARBER, Plaintiff, v. CITY OF PATERSON, Jose Torres, Elieser Burgis, Marge DiPasquale, and Local 3474, American Federation of State, County & Municipal Employees, AFL-CIO, Defendants. |
| Court | U.S. District Court — District of New Jersey |
James E. Patterson, Esq., Graham, Curtin & Sheridan Morristown, NJ, Attorneys for Plaintiff.
Alberto Rivas, Esq., John M. Podesta, Esq., Lite DePalma Greenberg & Rivas, LLC, Newark, NJ, Attorneys for Defendants City of Paterson, Jose Torres, Elieser Burgos and Margie DiPasquale.
David B. Beckett, Esq., Szaferman, Lakind, Blumstein, Blader, Lehmann & Goldshore, P.C. Lawrenceville, NJ, Attorneys for Defendant Local 3474.
Roberta Farber ("Farber"), a former employee of the City of Paterson ("the City"), was discharged on July 1, 2002. She brings suit against the City and several of its officials and employees ("City Defendants") alleging that the discharge violated her rights under the United States and New Jersey constitutions, and the public policy of New Jersey. She also brings suit against her union — which refused to take her grievance over the discharge to arbitration — for breach of its duty of fair representation. Finally, she brings a conspiracy charge against both the union and the City Defendants. All defendants have moved to dismiss.
The court will (1) grant the City Defendants' motion to dismiss Farber's claims under the federal and state constitutions that the City Defendants deprived her of her property interest in her job without due process, (2) deny in all other respects the City Defendants' motion and (3) deny the union's motion to dismiss in its entirety.
Farber also moves for leave to amend her Complaint. None of the defendants oppose this motion, and the court will grant it. Throughout this Opinion, the court will refer to the Amended Complaint as the "Complaint."
The City hired Farber in or about 1991. She became the Assistant Director for Economic and Industrial Development ("Assistant Director") in or about 1994 and held this position until she was discharged in 2002. As Assistant Director, she reported to the Director of Economic and Industrial Development, who reported to the Director of Community Development who, in turn, reported to the Mayor of Paterson.
As Assistant Director, Farber served as Coordinator of the City's Urban Enterprise Zone program. This was an administrative, rather than a policy-making, position; Farber's job was to implement policies established by others.
Farber was a dedicated employee who served during the administrations of both Mayor William Pascrell (a Democrat) and Mayor Martin G. Barnes (a Republican). She received positive written and verbal performance evaluations throughout the course of her employment by the City.
The City of Paterson has adopted the New Jersey Civil Service Act, N.J. Stat. Ann. § 11A:1-1, et seq. See, e.g., City of Paterson v. Paterson Police P.B.A. Local, 184 N.J.Super. 591, 446 A.2d 1244, 1248 (N.J.Super.Ct.App.Div.1982). Public employment in the City is thus governed by that statute's provisions.
Under the New Jersey Civil Service Act, many public employees in the competitive division of the career service2 are regularly appointed; after successful completion of a working test period, these employees acquire tenure and become "permanent." N.J. Stat. Ann. § 11A:4-13 (a); N.J. Admin. Code tit. 4A, § 1-1.3. Under certain circumstances, however, a public employee in the competitive division of the career service may be provisionally appointed. Provisionally appointed employees hold their jobs pending the appointment of a permanent employee. Provisional appointments are in no case to last longer than twelve months. N.J. Stat. Ann. § 11A:4-13 (b); N.J. Admin.Code tit. 4A, § 4-1.3.
When Farber initially went to work for the City, it was as a provisional appointee. Despite the fact that under state law provisional appointments are not to last longer than 12 months, however, her employment status remained provisional up until the time of her termination. This is because her employer did not complete the multi-step process that must occur for a provisional employee to become a permanent employee (see section II(B)(1)(a)(ii) of this Opinion).3
In March 2002, at the City's direction, Farber took and passed the civil service examination for the position of Assistant Director. She was certified for the position by the New Jersey Department of Personnel ("DOP"), effective July 1, 2002.
Defendant Jose Torres ("Mayor Torres") was elected Mayor of Paterson in May 2002. He was scheduled to be sworn in on July 1, 2002.
Farber was a supporter of former Mayor Barnes and his policies. She openly expressed this support, and the defendants were aware of it.
After his election, Mayor Torres expressed his intent to terminate from employment supporters of the previous administration. In a newspaper interview,4 Mayor Torres specifically identified Farber as such a supporter, and stated (falsely) that he had requested her resignation.
In the same interview, Mayor Torres indicated that Farber's work (and the work of some of her colleagues whose employment had been terminated) was sub-standard, and that consequently she and they would be or had been terminated. Specifically, he stated that his "goal is not to be a hatchet man, but if you can't cut the mustard, then I'm sorry."
Finally, Mayor Torres implied in the interview that Farber and her colleagues were not hard-working when he vowed that under his administration there would be "no more two hour lunches." These comments and their innuendos were false and adversely affected Farber's reputation in the community.
At 10:00 a.m. on July 1, 2002 — the day Mayor Torres was sworn in — Farber received a letter informing her that the City was terminating her employment, effective at noon that day. The Complaint does not specify whether the letter included an explanation for the termination, or notification to Farber that she had hearing or appeal rights. Because Farber refers to the termination as "summary," however, the court assumes the letter did not include any of these things.
The letter stated that it was possible to so terminate Farber because she was a provisional employee who did not possess job protection rights. The letter was signed by the City of Paterson's Assistant Personnel Director Marge DiPasquale ("DiPasquale") and dated June 28, 2002. Copies of the letter were sent to Mayor Torres and City of Paterson Business Administrator Elieser Burgos ("Burgos"), but not to Farber's superiors.5 After Farber was terminated, the City hired DiPasquale's niece to replace her.
Farber had been a member of Local 3474, American Federation of State, County & Municipal Employees, AFL-CIO ("the union" or "Local 3474") in good standing since 1991 and had consistently paid her monthly dues. After she was terminated, she asked the union to prosecute a grievance on her behalf. The grievance presumably would have alleged that Farber's termination violated a term of the collective bargaining agreement ("CBA") that governed her employment, see N.J. Stat. Ann. § 34:13a-5.3, although Farber does not cite or quote the CBA in her Complaint.
At the time Farber approached the union, Manuel Ojeda ("Ojeda") — who was known to be a political ally and supporter of Mayor Torres — was its President. The union set about reviewing Farber's termination. A meeting between the union and City representatives was arranged to discuss the matter. The union refused to allow Farber to bring her individual attorney to the meeting. Furthermore, Ojeda, who was supposed to attend and participate in a meeting, failed to attend.
Ultimately, the union refused to pursue Farber's claims to arbitration.6 It stated that it would not arbitrate the claims because she was a provisional employee. Shortly thereafter, Mayor Torres appointed Ojeda to the position of Director of Public Works for the City.
Farber filed a Complaint in this court in September 2003 seeking reinstatement, compensatory and punitive damages, attorneys' fees and costs. The Complaint alleges that she was terminated because of her affiliation with and support of former Mayor Barnes' administration, in violation of her rights of association and free speech. The Complaint accordingly includes (1) a claim under 42 U.S.C. § 1983 (" § 1983") for violation of the First Amendment of the United States constitution, (2) a claim for violation of the counterpart provisions of the New Jersey constitution (N.J. Const. Art. I, ¶¶ 5 & 6), and (3) a claim for wrongful discharge in violation of New Jersey public policy, against the City Defendants. It also includes a claim under 42 U.S.C. § 1985(3) ("§ 1985(3)") against the City Defendants and Local 3474 alleging conspiracy to violate Farber's First Amendment rights.
The Complaint also alleges that Farber was deprived of protected interests without due process of law in two distinct ways. First, by summarily terminating her, Farber alleges, the City Defendants deprived her without due process of her property interest in an expectation of continued employment. Second, by defaming her in the newspaper article in connection with her termination, Farber alleges, Mayor Torres deprived her without due process of her liberty interest in her reputation. The Complaint thus includes (1) a § 1983 claim for violation of the Fourteenth Amendment of the U.S. constitution and (2) a claim for violation of the analogous provision of the New Jersey constitution.7
Finally, the Complaint alleges that when the union refused to pursue...
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Farber v. City of Paterson
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