Palardy v. Twp. of Millburn, 17-2597

• Decision Date: 28 September 2018
• Docket Number: No. 17-2597,17-2597
• Citation: 906 F.3d 76
• Parties: Michael J. PALARDY, Jr., Appellant v. TOWNSHIP OF MILLBURN; Timothy P. Gordon
• Court: U.S. Court of Appeals — Third Circuit

906 F.3d 76

Michael J. PALARDY, Jr., Appellant

v.TOWNSHIP OF MILLBURN; Timothy P. Gordon

No. 17-2597

United States Court of Appeals, Third Circuit.

Argued April 24, 2018

Filed: September 28, 2018

Dennis A. Durkin, Esquire (Argued), Law Offices of Dennis A. Durkin, P.O. Box 88, Roseland, NJ 07068, Counsel for Appellant

Littie E. Rau, Esquire (Argued), Ruderman Horn & Esmerado, 675 Morris Avenue, Suite 100, Springfield, NJ 07081, Counsel for Appellees

Before: AMBRO, SCIRICA, and SILER, JR.^* , Circuit Judges

OPINION OF THE COURT

SILER, Circuit Judge

Michael Palardy, a retired police officer of Township of Millburn, New Jersey, alleges that the Township’s business administrator, Timothy Gordon, unlawfully prevented him from becoming Chief of Police because Gordon opposed Palardy’s union membership and activity. The district court held Palardy’s union-related speech and association were not constitutionally protected and granted summary judgment in favor of the Township and Gordon on his 42 U.S.C. § 1983 First Amendment retaliation claims. We agree with Palardy that the district court should have analyzed his speech and association claims separately and that his association with the union deserves constitutional protection. However, Palardy’s speech claim must fail because it is indistinguishable from his associational claim. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

I.

Palardy worked as a police officer for the Township from 1988 until his retirement in 2014. During his employment, he was promoted three times: first to sergeant in 1995, then to lieutenant in 1998, and finally to captain in 2012.

Palardy was also active in the police officers’ unions—first the Patrolmen’s Benevolent Association (PBA), and then the Superior Officers’ Association (SOA). In 1991 or 1992, Palardy served as the PBA’s sergeant-at-arms. He was also a union delegate from 1992 to 1995. Later in his career, Palardy became more involved in union leadership. He served as the SOA’s vice president in 2007 or 2008, and as its president in 2009 or 2010. During his employment, Palardy estimates that he participated in four or five contract negotiations between the unions and the Township. He also attended at least two disciplinary hearings for fellow officers.

Gordon was the Township’s business administrator during Palardy’s entire employment. Among other duties, he was responsible for the Township’s personnel matters and had the authority to hire, fire, and promote Township employees, including police officers. According to Palardy, Gordon repeatedly stymied Palardy’s attempts to become Chief of Police. Palardy testified that other officers told him Gordon repeatedly made statements reflecting negatively on Palardy’s union activity. For instance, Gordon told officer Robert Brown that Palardy would never become chief "because of his union affiliation and being a thorn in my side for all these years." Gino Baldani said that Gordon told him Palardy "wasn’t a good supervisor ... because [he] was too close to [his] men and [he] would have problems separating [his] union business with police department work and being a supervisor." And Gordon told former chief Paul Boegershausen that Palardy "ha[d] to learn how to separate [him]self from the rank and file."

The events relevant to this case began in late 2010, when the Township was without a chief or a team of captains. By then, Palardy was the department’s most senior lieutenant and was next in line to become a captain. The Township’s custom during this time was to select its new chief from its roster of captains; during Gordon’s tenure, there had never been an exception to this rule. Because Palardy was a lieutenant, he was not eligible to immediately become chief. However, Palardy believed that he could have been promoted to captain for a short time and then promoted to chief. According to Palardy, this is precisely what happened shortly after his retirement: Palardy testified that, as of September 2016, the acting chief had only been a captain for a few months prior to his promotion.

On this occasion, though, Gordon told Palardy and another lieutenant that he did not believe any of the lieutenants had enough experience to become chief, and that he was considering having the Chief of Police from nearby Livingston, New Jersey, serve in a dual capacity as the chief of both towns. That plan did not come to fruition because Gregory Weber, a Millburn captain who had been on inactive duty for health reasons, returned to active duty and was promoted to chief in September 2011. Weber then gave Palardy the title of "acting captain," which came with additional responsibilities but no pay increase. Around this time, Palardy stepped down as union president because he "knew Mr. Gordon had a problem with [his] union affiliation" and he wanted "to get the stigma off ... [himself] that [he] was only a union guy." Palardy believed that, if he gave up his union presidency, it would increase his chances to receive an official promotion to captain.

In October 2011, Gordon retained a consultant to study the police department’s "rank structure and current vacancies." Gordon admitted that the study "could have" resulted in the rank of captain being eliminated. However, the consultant recommended that the department retain the captain rank and fill the existing vacancies in that position. To that end, Gordon promoted Palardy to captain in February 2012—according to Palardy, "out of desperation."

Chief Weber was scheduled to retire in April 2015. In the summer of 2013, Palardy was offered a part-time position as Security Coordinator for the Township’s Board of Education. He says he "saw the writing on the wall that he would never become chief," so he decided to retire from the police department and accept the school board’s job offer. Beginning on September 1, 2013, Palardy was on terminal leave, and he retired effective February 1, 2014.

Palardy then filed suit against the Township and Gordon. His amended complaint asserted eight claims. The district court granted Defendants’ motion for judgment on the pleadings as to five of the eight counts, but allowed his state and federal constitutional free speech and association claims to proceed to discovery. Defendants then moved for summary judgment on Palardy’s remaining claims.

The court granted Defendants’ motion, holding Palardy’s union-related activity was not constitutionally protected. Analyzing his speech and association claims together, the court concluded Palardy neither acted as a private citizen nor spoke out on a matter of public concern, as required by Garcetti v. Ceballos , 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). This appeal followed.

II.

This Court "exercise[s] plenary review over a grant of summary judgment and appl[ies] the same standard the district court applies." Migliaro v. Fid. Nat’l Indem. Ins. Co. , 880 F.3d 660, 664 n.6 (3d Cir. 2018) (citation omitted). "Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Id. (citing Fed. R. Civ. P. 56(a) ).

The Free Speech Clause contained within the New Jersey Constitution "is generally interpreted as co-extensive with the First Amendment," so the analysis of Palardy’s state free speech claim is identical to its federal counterpart. Twp. of Pennsauken v. Schad , 160 N.J. 156, 733 A.2d 1159, 1169 (1999).

III.

A.

To prevail on a § 1983 First Amendment retaliation claim, the plaintiff must prove that (1) he engaged in "constitutionally protected conduct," (2) the defendant engaged in "retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights," and (3) "a causal link [existed] between the constitutionally protected conduct and the retaliatory action." Thomas v. Indep. Twp. , 463 F.3d 285, 296 (3d Cir. 2006) (citation omitted). Here, the District Court held that Palardy’s First Amendment claims faltered at the first step because he failed to show that his association with, and speech on behalf of, the police officers’ union was protected conduct.

Not all First Amendment activity is constitutionally protected in the public workplace. "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 (citation omitted). Insofar as workplace speech is concerned, the Supreme Court has long held that public employees only receive First Amendment protection from retaliation in the workplace when they speak out on a matter of public concern and their interest in speaking outweighs the government’s interest in promoting workplace efficiency and avoiding disruption. See Connick v. Myers , 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ; Pickering v. Bd. of Educ. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Garcetti , the Court added a further wrinkle to its workplace speech jurisprudence, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti , 547 U.S. at 421, 126 S.Ct. 1951. Following Garcetti , then, "[a] public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public.’ " Hill v. Borough of Kutztown , 455 F.3d 225, 241-42 (3d Cir. 2006) (quoting Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 ).

Although Pickering , Connick , and Garcetti were cases about speech, some circuits apply the same rubric to cases involving the associational rights of public employees. This is especially true when an...