BRUCE GITTO v. CITY OF ATLANTIC CITY CITY OF ATLANTIC CITY BEACH PATROL, ROBERT LEVY ROD ALUISE, ERIC GRACE ROBERT BROWN -

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0197-11T2

BRUCE GITTO,

Plaintiff-Appellant,

v.

CITY OF ATLANTIC CITY, CITY

OF ATLANTIC CITY BEACH

PATROL, ROBERT LEVY, ROD

ALUISE, ERIC GRACE, ROBERT

BROWN,

Defendants-Respondents.

May 2, 2013

 

Submitted January 29, 2013 - Decided

 

Before Judges Yannotti and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1453-08.

 

Bruce Gitto, appellant pro se.

 

Ruderman & Glickman, P.C., attorneys for respondents (Steven S. Glickman, of counsel; Vincent M. Avery, on the brief).

 

PER CURIAM

Plaintiff Bruce Gitto appeals from orders granting summary judgment to defendants. For the reasons that follow, we affirm.

 

 

I.

The facts of record, viewed most favorably to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), are as follows. Defendants City of Atlantic City (City) and City of Atlantic City Beach Patrol (Beach Patrol) hired plaintiff as a lifeguard in 1977. In March 2005, (then) Mayor Lorenzo Langford appointed plaintiff to the Beach Patrol Pension Commission (Pension Commission), and on July 1, 2005, the Mayor promoted plaintiff from lifeguard to lieutenant. The promotion was designed to give plaintiff a "pension bump" as he approached retirement.

On August 11, 2005, the American Federation of State County and Municipal Employees (AFSCME) filed a grievance that challenged plaintiff's promotion, claiming that the City and the Beach Patrol failed to post the job opening, as required by the City's collective bargaining agreement (CBA). On May 19, 2006, plaintiff filed a counter-grievance to challenge AFSCME's grievance, asserting that it was both discriminatory and untimely. On May 30, 2006, the City settled AFSCME's grievance by agreeing to rescind plaintiff's promotion and reinstate him to his former position as a lifeguard. An arbitrator determined that plaintiff's counter-grievance was moot, because his promotion to lieutenant violated the CBA.

On May 11, 2007, plaintiff requested a "bump" in title for the last year of his employment. That same day, the City removed plaintiff from his non-salaried position as a member of the Pension Commission.

In response, on May 18, 2007 plaintiff filed a grievance to challenge both the City's refusal to give him the "bump" in title as well as his removal from the Pension Commission. After plaintiff filed this grievance, the Beach Patrol assigned him to Caspian Avenue for the remainder of the season one of the least preferred lifeguard stations, according to plaintiff. AFSCME refused to pursue plaintiff's grievance, on the ground that the claim amounted to "pension padding."

On May 5, 2008, plaintiff filed a complaint in the Law Division alleging violations of the federal and state constitutions, the New Jersey Civil Rights Act, breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress.1 He named as defendants the City, the Beach Patrol, Robert Levy, Rod Aluise, and Robert Brown (the City defendants).2 He also asserted claims against AFSCME and its representatives (the Union defendants). After plaintiff settled his claims against the Union defendants, the City defendants successfully moved for summary judgment. This appeal followed.

II.

On appeal, a motion for summary judgment is reviewed de novo under the same legal standard applied by the trial court. Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 473 (App. Div. 2008), certif. denied, 197 N.J. 476 (2009). Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2.

A. Claim under 42 U.S.C.A. 1985(3).

In his complaint, plaintiff alleged that defendants engaged in a conspiracy to deprive him of certain rights, as a result of his political affiliation. Plaintiff argues that the trial court erred by granting summary judgment to defendants on this claim. We do not agree.

Section 1985(3) allows a person injured by a conspiracy formed "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws" to bring a private cause of action against the conspirators. 42 U.S.C.A.1985(3). In such action,

the plaintiff must allege and prove four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.

 

[United Bd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29, 103 S. Ct. 3352, 3356, 77 L. Ed. 2d 1049, 1054 (1983).]

Here, plaintiff alleges that defendants engaged in a conspiracy to deprive him of certain rights based on his political affiliation; however, this claim lacks merit, as political affiliation is not a cognizable class under Section 1985(3). See Farber v. City of Paterson, 440 F.3d 131, 138-39 (3d Cir. 2006) (unlike discrimination against a class on the basis of race, sex, or mental retardation, discrimination on the basis of political affiliation is not, as a matter of law, discrimination so invidious such that Section 1985(3) applies).

B. Claim under 42 U.S.C.A. 1983.

Plaintiff also alleged that defendants engaged in a conspiracy to deprive him of certain constitutional rights. He argues that the trial court erroneously granted summary judgment to defendants on this claim. Again, we disagree.

Here, the trial court properly determined that plaintiff's "political conspiracy" claim failed as a matter of law because the individual City defendants have qualified immunity from civil liability for actions performed within the scope of their authority.

42 U.S.C.A. 1983 provides:

 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]

 

Section 1983 creates a private cause of action for violation of any of the rights afforded to citizens by the United States Constitution. Hill v. Kutztown, 455 F.3d 225, 233 n.8 (3d Cir. 2006). In such actions, a court must first identify the state actor, or "person acting under color of law," causing the alleged deprivation. Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (1996). Then, a court must "identify a 'right, privilege or immunity' secured to the claimant by the Constitution or other federal laws of the United States." Ibid. (quoting 42 U.S.C.A. 1983).

A government official is entitled to qualified immunity from liability for civil damages under Section 1983 unless his conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982). A right is clearly established when it is "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523, 531 (1987). It is not necessary for the plaintiff to prove that the precise act in question was previously held to be unlawful, but rather, whether the law was apparent in relation to specific facts confronting the defendants when they acted. Ibid.

The individual City defendants Brown, Aluise and Levy were properly granted summary judgment because they have qualified immunity for actions performed within the scope of their authority. In granting summary judgment for these defendants on qualified immunity grounds, the court stated:

Defendants were acting within their official capacity. . . . Defendants were not acting outside the scope of their authority or in [a] manner that was so outrageous to pierce their immunity. Plaintiff's allegations involve [d]efendants' acts and decisions related to their job function.

Here, the individual City defendants were sued for discretionary acts that fall within their authority. Brown was the Assistant Chief of the Beach Patrol and responsible for reviewing grievances. Defendants Aluise and Levy also acted within their scope of authority in approving Brown's actions. Therefore, qualified immunity applies.

C. Conspiracy Claim.

Plaintiff also alleged that the City defendants conspired with the Union defendants to violate his rights by convincing the Union defendants to refuse to prosecute his grievance to arbitration, and that this led to his demotion. Plaintiff argues that the trial court erred by grating summary judgment to defendants on this claim. We do not agree.

Here, the trial court correctly determined that plaintiff failed to provide any legal basis for holding the City defendants independently liable for the union's failure to pursue his grievances. The union's handling of the grievances following the City's initial determination is a matter between defendant and his union and outside of the scope of a lawsuit against the City defendants. See N.J.S.A. 34:13A-5.3 ("review procedures established by agreement between the [public employer] and the majority representative shall be utilized for any dispute covered by the terms of such agreement").

Here, the City defendants complied with the procedures established in plaintiff's employment contract and the CBA. The facts show that plaintiff and another employee were demoted because the posting requirements in the collective bargaining agreement were violated. Plaintiff then filed grievances, his grievances were denied and his union declined to pursue his claims.

In the course of the lawsuit, plaintiff settled his claims against the Union defendants. Moreover, plaintiff cannot assert in this proceeding a contractually-based claim to a "bump" in salary prior to retirement, as the CBA has a mandatory arbitration process in place to resolve such claims.

The record contains no evidence that plaintiff's promotion was rescinded due to retaliation against his political affiliation. Plaintiff's complaint initially alleged that defendants rescinded his promotion to Lieutenant in retaliation for his "exercise of his First Amendment Rights in relation to his political affiliation with Mayor Langford and his exercise of Freedom of Speech" as well as the New Jersey Constitution.

The record shows that by the time defendants filed their motion for summary judgment, plaintiff had acknowledged that the City "demoted him and another employee because the posting requirements per the collective bargaining agreement were violated." In granting summary judgment for defendants on the Section 1983 claim, the court stated:

Plaintiff has not offered any evidence that he was not promoted to Lieutenant because of his political affiliation or his exercise of protected speech. . . . Plaintiff lost his promotion because the job was not posted according to the collective bargaining agreement, and because employees who wanted the opportunity to complete for the job could not do so because the job was not posted.

Here, plaintiff's union filed a grievance challenging the promotion based on the grounds that it was not posted according to the terms and conditions of the parties' valid CBA, and the promotion was then rescinded due to those violations. The record lacks evidence that would suggest plaintiff was not promoted to Lieutenant because of his political affiliation or his exercise of any "protected speech." Accordingly, the City defendants were entitled to dismissal of plaintiff's Section 1983 claims.

 

 

 

D. Hostile Work Environment and Adverse Employment Action

Claims.

Plaintiff also claimed that he was subjected to a hostile work environment, claiming that he was reassigned to an undesirable location and experienced constant hostility from his superiors and co-workers. Plaintiff argues that the trial court erred by granting summary judgment to defendants on this claim. Again, we disagree.

To establish a legally cognizable "hostile work environment" claim plaintiff must show that the incidents that he complains of were collectively "'sufficiently severe or pervasive to have altered plaintiff's conditions of employment in an important and material manner.'" El-Sioufi v. St. Peter's University Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005) (quoting Cokus v. Bristol-Myers Squibb Co., 362 N.J. Super. 245, 246 (App. Div.), certif. denied, 178 N.J. 32 (2003)).

"[A]ctions that affect wages, benefits, or result in direct economic harm qualify [as retaliation]. So too, noneconomic actions that cause a significant, non-temporary adverse change in employment status or the terms and conditions of employment would suffice." Victor v. State, 401 N.J. Super. 596, 616 (App. Div. 2008), aff'd in part and modified in part, 203 N.J. 383 (2010).

"[E]motional factors alone cannot constitute adverse employment action." Shepherd v. Hunterdon Developmental Ctr., 336 N.J. Super. 395, 420 (App. Div. 2001), aff'd in part rev'd in part, 174 N.J. 1 (2002); see also El-Sioufi, supra, 382 N.J. Super. 145 (nurse's demotion from a scrub nurse to a break nurse when viewed in conjunction with her personnel records, which contained numerous complaints regarding plaintiff's work performance, did not amount to adverse employment action under the LAD); Beasley v. Passaic County, 377 N.J. Super. 585, 607 (App. Div. 2005) (actions resulting in a "bruised ego" are not covered by CEPA) (quoting Klein v. Univ. of Med. and Dentistry of New Jersey, 377 N.J. Super. 28, 47 (App. Div.) (temporary reassignment is generally not actionable), certif. denied, 185 N.J. 39 (2005)); Cokus v. Bristol-Myers Squibb Co., 362 N.J. Super. 366, 379 (Law Div. 2002) (supervisor's decision to no longer socialize with employee is not adverse employment action), aff'd, 362 N.J. Super. 245, 246-47 (App. Div.), certif. denied, 178 N.J. 32 (2003); Hancock v. Borough of Oaklyn, 347 N.J. Super. 350, 361 (App. Div.) (generally, emotional distress alone is not actionable), certif. granted, 174 N.J. 191 (2002), appeal dismissed, 177 N.J. 217 (2003).

Here, plaintiff alleged that the Beach Patrol assigned him to Caspian Avenue, one of the least preferred lifeguard stations, for the remainder of the season due to his support of the previous mayor. Nonetheless, there is no evidence that plaintiff suffered any decrease in wages or reduction in status as a result of the reassignment to Caspian Avenue.

We have found that "a job reassignment with no corresponding reduction in wages or status is insufficient" to qualify as a cognizable "adverse employment action." Victor, supra, 401 N.J. Super. at 615 (internal quotation marks and citation omitted). Appellant's emotional dissatisfaction with a move from one station to another cannot alone constitute an adverse employment action. Therefore, the judge correctly found no adverse employment action as a result of plaintiff's transfer.

There also was no cognizable cause of action based on plaintiff's assertion that he was treated with constant hostility from his superiors and co-workers. As we stated in Cokus:

[T]o sustain a claim of hostile work environment . . . a plaintiff must establish that the conduct complained of would not have occurred but for his or her activities, and that it was severe or pervasive enough to make a reasonable person in the employee's shoes believe that the conditions of employment had been altered and the working environment had become hostile and abusive to the point that the conduct in question is the equivalent of an adverse action.
 
[Cokus, supra, 362 N.J. Super. at 387.]

We went on to find that "hostility and ostracism" from superiors and co-workers were not enough to constitute a "hostile work environment" because "[t]he fact that her co-workers and superiors chose to limit their contact with her to business only and otherwise ignored her, stared/glared at her when they walked by her, and, even as plaintiff believed talked about her behind closed doors, neither creates a hostile environment nor [an] adverse action . . . ." Id. at 382-83.

Here, the trial court acknowledged that "[t]here is some evidence that [p]laintiff was not liked among his workers and an allegation former Mayor Levy resented Plaintiff for supporting Mayor Langford." However, similar to Cokus, plaintiff's allegations equate to no more than "hostility and ostracism" at worst, which is insufficient to support an actionable claim.

We are satisfied that plaintiff failed to submit sufficient evidence of any conduct on the part of the City defendants that could give rise to a hostile work environment claim. Plaintiff's re-assignment to a beach that he found less desirable is not cognizable as "adverse employment action."

E. Claims related to removal from the Pension Commission.

Plaintiff alleged that he was unlawfully removed from the Pension Commission based on his political affiliation. The trial court erred by granting summary judgment to defendants on this claim. We disagree.

The First Amendment of the United States Constitution prohibits public employers from discriminating against "low-level" employees based upon their political affiliation. Rutan v. Republican Party, 497 U.S. 62, 64-65, 110 S. Ct. 2729, 2732, 111 L. Ed. 2d 52, 60 (1990). "To make out a claim of discrimination based on political association, a public employee must prove (1) that the employee works for a public [employer] in a position that does not require a political affiliation, (2) that the employee maintained an affiliation with a political party, and (3) that the employee's affiliation was a substantial or motivating factor in the adverse employment decision." Goodman v. Pennsylvania Turnpike Comm'n, 293 F.3d 655, 663-64 (3d Cir. 2002) (quoting Robertson v. Fiore, 62 F.3d 596, 599 (3d Cir. 1995)).

Claims brought under the New Jersey Constitution are assessed in almost identical fashion. See Fioriglio v. City of Atlantic, 996 F. Supp. 379, 391 (D.N.J. 1998) (in order to succeed on a claim under the New Jersey Constitution, a plaintiff must show that "he engaged in protected speech and that the speech was a substantial motivating factor in the adverse employment decision."), aff'd, 185 F.3d 861 (3d Cir. 1999), cert. denied, 528 U.S. 1075, 120 S. Ct. 789. 145 L. Ed. 2d 666 (2000).

To determine whether a particular position qualifies as a "policymaking" position, the Third Circuit has held that the "'key factor seems to be not whether the employee was a supervisor or had a great deal of responsibility[,] but whether [she] has meaningful input into decision[-]making concerning the nature and scope of a major [] program.'" Galli, supra, 490 F.3d at 271 (quoting Armour v. County of Beaver, 271 F.3d 417, 429 (3d Cir. 2001)).

Here, plaintiff's unpaid position on the Pension Commission qualified as a "policymaking" position. The Pension Commission is the final arbiter as to all pension related issues that fall within its jurisdiction. The Commission is the sole entity responsible for determining the amount of each retiring Beach Patrol employee's pension.

When Beach Patrol employees decide to retire, the Commission has the responsibility for calculation of the employee's pension. Ibid. In specifically explaining the discretion that the Pension Commission exercises, Norman Draper, former president of the defendant's union, testified at deposition:

Q: Now, the pension commission has discretion to use any of the last three years in terms of calculating the pension, correct?

 

A: Yes.

 

Q: They don't have to use the last year [of employment], correct?

 

A: [It] was the pension commission who generally made the best decision for the, you know, what was fairest for the individual retiree.

 

Plaintiff confirmed this testimony. As a result, a position on the Pension Commission clearly involves "policymaking."

Here, the members of the Commission were appointed by, and served at the pleasure of, the Mayor. Plaintiff was appointed by one Mayor and replaced when the next administration took office. Accordingly, summary judgment was properly granted, as plaintiff's removal from the Commission falls within the "policymaking" exception to the prohibition on political affiliation discrimination.

F. Claim under the New Jersey Civil Rights Act.

Plaintiff claimed that the City defendants wrongfully failed to grant him a "bump" in salary prior to retirement in violation of the New Jersey Civil Rights Act. He argues that the trial court erred by granting summary judgment to defendants on this claim. We do not agree.

Plaintiff argues that that defendants violated the New Jersey Civil Rights Act by retaliating against him for "exercise[ing] . . . his rights as a union member and . . . challenging the failure of the defendants to afford him the past practice of [a] promotion at the end of his last season with the [ACBP]."

Under the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c):

Any person who has been deprived of any substantive due process or equal protection rights, privileges or immunities secured by the Constitution or laws of the United States, or any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive or other appropriate relief.

In granting summary judgment for the City defendants, the trial court stated:

There is no evidence that Plaintiff or his fellow employees bargained for guaranteed salary increases in their final year of employment, and there is no evidence of an express provision for a salary increase in the final year of employment in Plaintiff's contract. Therefore, the relief Plaintiff is requesting from the Court and City Defendants is not warranted and could be viewed as fraud. Accordingly, the Court holds Plaintiff is not per se entitled to a salary bump because he chose to retire.

 

Even if there had been a past practice of giving a "bump" in rank prior to retirement, defendant would still not have a valid claim because there is no constitutionally or statutorily guaranteed right to receive a "bump" in rank in the last year prior to retirement. All of the evidence in the case, including the testimony of plaintiff's own union representatives, shows that the City denied this "bump" because it believed that promoting an employee in the last year of his employment solely for the purpose of artificially inflating his pension was illegal and amounted to fraud on the pension system. Furthermore, defendant's union declined to pursue this "bump" grievance because it determined that the grievance sought to compel pension fraud.

Accordingly, the court properly granted summary judgment as to plaintiff's claim that defendant's wrongfully denied plaintiff a "bump" in salary prior to retirement.

We have considered plaintiff's remaining arguments and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Plaintiff later stipulated to a dismissal of his intentional infliction of emotional distress claim.

2 During the time period plaintiff claims his rights were violated, Robert Levy was the Mayor of the City, and Rod Aluise and Robert Brown were the Chief and Assistant Chief of the Beach Patrol, respectively.