Robertson v. Fiore ( 1995 )

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
8-16-1995
Robertson v Fiore
Precedential or Non-Precedential:
Docket 94-5485
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Recommended Citation
"Robertson v Fiore" (1995). 1995 Decisions. Paper 222.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 94-5485
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KEVIN ROBERTSON
Appellant
v.
ALBERT FIORE;
HUDSON COUNTY IMPROVEMENT AUTHORITY
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 92-cv-03332)
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Argued Wednesday, June 28, 1995
BEFORE: HUTCHINSON, ROTH and GARTH, Circuit Judges
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(Opinion filed August 16, l995)
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Norman A. Doyle, Jr. (Argued)
Doyle & Brady
377 Kearny Avenue
Kearny, New Jersey 07032
Attorney for Appellant
Gerald T. Ford (Argued)
Adam J. Hanover
Siff Rosen
1
One Gateway Center
Suite 500
Newark, New Jersey 07102-5311
Attorneys for Appellees
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OPINION OF THE COURT
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2
PER CURIAM:
Kevin Robertson, a member of the Democratic party, appeals from an order
granted summary judgment in favor of his former employer, the Democratically contro
Hudson County Improvement Authority (HCIA), on his 42 U.S.C. § 1983 claim. Robertso
alleged a violation of his First and Fourteenth Amendment right to political associ
and a violation of his Fourteenth Amendment right to due process.
We conclude that the record does not support an inference that the HCIA
discharged Robertson on account of his political affiliation and does not support h
claims to a property or liberty interest in his employment protected by the Fourtee
Amendment. We therefore affirm the judgment of the district court on this ground.
write to clarify that the constitutional limitations on political patronage, recogn
Elrod v. Burns, 427 U.S. 347 (1976), Branti v. Finkel, 445 U.S. 507 (1980), and Rut
Republican Party of Illinois, 497 U.S. 62 (1990), extend to intraparty political di
as well as interparty political disputes.
I.
After working as a legislative aide to the Gerald McCann, former Mayor of
City, Robertson was appointed as a Supervisor at the HCIA's waste processing center
April 15, 1991. The HCIA is responsible for the pick up and disposal of all Jersey
municipal waste. After classifying waste as either standard or bulky waste at a so
facility, the HCIA ships the refuse to a landfill operated by the Hackensack Meadow
Development Commission ("HMDC") or to an out-of-state facility. As a supervisor,
Robertson was one of three people responsible for the classification and management
waste as it arrived at the HCIA sorting facility.
Robertson's short tenure at HCIA was marked by difficulties. Robertson's
failure properly to classify waste prompted complaints by Waste Management, the com
which handled HCIA waste bound for the HMDC landfill. Albert Fiore, the HCIA Execu
1
Director, noted that in May 1991 he found Robertson seated in a location where it w
impossible to examine the incoming waste for which he was responsible. On numerous
occasions, Robertson smoked in the working areas of the HCIA sorting facility despi
verbal and written warnings to stop. Because dry paper is scattered around the faci
Robertson's smoking endangered other workers and the building. Following personal
conflicts, Robertson threatened his coworkers that he would use his relationship wi
Mayor McCann to have them discharged and physically intimidated at least one of his
subordinates.
In an affidavit, Robertson alleged that his mistakes in classifying waste
the result of sporadic training by HCIA, an account not supported by other evidence
record. Robertson admitted to smoking at the sorting facility but alleged that othe
smoked. Robertson does not deny that Waste Management complained about his failure
classify waste properly or that Waste Management complained that he sought to intim
its employees based on his political affiliations. Nor does he deny Fiore's account
failure to monitor trucks properly in May 1991.
In an attempt to address these concerns about Robertson's performance, Fi
brought the complaints to the HCIA Board's attention on June 5, 1991 and received
authority from the HCIA Board to discipline or fire employees in his own discretion
Fiore gave HCIA employees notice of his authority on June 7.
On the same day, Robertson received a phone call from Mayor McCann's offi
McCann had entered a disputed race for Chairman of the Hudson County Democratic Par
Both McCann and Robert Janiszewski, the Hudson County Executive, were seeking contr
the Chairmanship and the party. McCann asked Robertson to organize the city of Kea
support of his candidacy. Robertson took leave on June 9 and June 10 to support Mc
1
Robertson contends that the meeting minutes do not mention his name even though
reflect the grant of personnel authority to Fiore. Robertson does not deny that he
personnel trouble nor did he seek any evidence from participants at the meeting tha
was not mentioned.
2
efforts. Because the leave required administrative approval, Fiore became aware of
Robertson's activity.
On June 11, 1991, at separate meetings, both McCann and Bruce Walter,
Janiszewski's candidate, were elected as Chairman with competing claims. Fiore sup
Janiszewski in the election. Ultimately, McCann's election was declared invalid.
Following these elections, a political battle erupted for control of the
Between June 11 and July 1, McCann sought to replace the HCIA Board and terminate F
McCann's attempts failed, and on August 8, 1991, Janiszewski forced a reorganizatio
the HCIA Board and eliminated all of McCann's supporters.
In the interim, Robertson continued to defy HCIA rules. On June 7, 1991,
Robertson was reprimanded by his political ally Jerry Papick for smoking at the HCI
facility. On the same day, another employee filed a complaint that Robertson had c
Fiore a derogatory name and had questioned Fiore's authority. On June 13, 1991,
HCIA employees reported that Robertson had interfered with their work, had harassed
based on their political affiliation, and had verbally and physically threatened th
On June 20, 1991, Fiore placed three memos in Robertson's files, document
complaints of misconduct. The next day, Fiore notified Robertson that he intended
discharge him for insubordination and poor performance and suspended him with pay,
an administrative hearing. The HCIA's affidavits state that other McCann supporter
retained after the political dispute was resolved.
After legal wrangling between Robertson and the HCIA regarding whether th
grievance hearing should be transcribed, Robertson received a hearing on the miscon
charges. Robertson complained that the hearing was conducted by Sheldon Cohen, a pa
at DeCotiis & Pinto, a law firm which was representing Fiore and Janiszewski in a s
legal challenge to their authority over the HCIA. Cohen denied Robertson's motion
disqualify, heard Robertson's grievance claim, and affirmed the decision in HCIA's
3
Soon thereafter, Robertson filed this 42 U.S.C. § 1983 claim, alleging a
violation of his first amendment right to political association, a violation of the
process clause, and pendent state law claims. Following discovery, the district co
granted the HCIA's motion for summary judgment on all Robertson's claims. The dist
court granted judgment on the due process claims because Robertson failed to demons
any protected liberty or property interest. With respect to the first amendment cl
the court concluded that dismissals based on intraparty conflicts do not state a cl
under the first amendment and that Robertson failed to produce evidence which would
a jury to conclude that his political association was a substantial cause of his
dismissal. Robertson filed a timely notice of appeal.
4
II.
We exercise plenary review over a grant of summary judgment. Chipollini
Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dism'd, 483 U.S.
(1987). We apply the same test that the district court should have applied initial
Id. Summary judgment is appropriate only when the admissible evidence fails to
demonstrate a genuine dispute of material fact and the moving party is entitled to
judgment as a matter of law. Id.; see Fed. R. Civ. Proc. 56(c) (1994). In reviewi
record, we give the nonmoving party the benefit of any reasonable inferences that c
drawn from the record, leaving credibility determinations for trial. Josey v. John
Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993); Gray v. York Newspapers, Inc
F.2d 1070, 1077 (3d Cir. 1992); Chipollini, 814 F.2d at 900.
III.
"To the victor belong only those spoils that may be constitutionally obta
Rutan v. Republican Party of Illinois, 497 U.S. 62, 64 (1990). In this manner, Jus
Brennan summarized the principle, recognized by the Supreme Court in Elrod v. Burns
U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), that public agencies may
hire, transfer, promote, or discharge public employees based on their political
affiliations unless their work requires political allegiance. This principle flows
the constitutional prohibition against discharging public employees on account of t
speech regarding issues of public concern. See Connick v. Myers, 461 U.S. 138, 142
(1983); Pickering v. Board of Education, 391 U.S. 563 (1968).
To make out a claim of discrimination based on political association, a p
employee must prove (1) that the employee works for a public agency in a position d
require a political affiliation,2 (2) that the employee maintained an affiliation w
2
While the employee must demonstrate employment by a public entity, the employer
the burden of proving that the position is one for which party affiliation is an
5
political party, and (3) that the employee's political affiliation was a substantia
motivating factor in the adverse employment decision. Laskaris v. Thornburgh, 733
260, 265 (3d Cir.), cert. denied, 469 U.S. 886 (1984); Perez v. Cucci, 725 F. Supp.
238-39 (D.N.J. 1989), aff'd, 898 F.2d 139 (1990). If the employee demonstrates the
elements, the employer may avoid a finding of liability by demonstrating by a
preponderance of the evidence that it would have made the same decision even in the
absence of the protected affiliation. Mt. Healthy City School Dist. Bd. of Educati
Doyle, 429 U.S. 274, 287 (1977); Laskaris, 733 F.2d at 264.
The HCIA does not dispute that Robertson was a public employee whose posi
does not require political allegiance. Thus, that element of Robertson's claim is
satisfied.
A.
However, the HCIA argues that Robertson did not maintain a protected poli
affiliation because Robertson belonged to the same political party as Fiore and the
HCIA officers. According to the HCIA, the constitution comes into play only when t
dispute is between members of a different political party. Hence, HCIA maintains t
the present context, only Republicans are protected from politically motivated disc
by the Democratically controlled HCIA Board and administration. We disagree.
The constitutional prohibition against patronage derives from the coerciv
aspects of the spoils system which inhibit the rich political discourse protected b
first amendment. See Elrod, 427 U.S. at 355-60. Without the protection afforded b
constitution, employees might forgo the expression of their political beliefs or
artificially change their political association to avoid displeasing their supervis
appropriate requirement, should it choose to raise the issue. Peters v. Delaware R
Port Auth. of Penn. & New Jersey, 16 F.3d 1346, 1353 (3d Cir.), cert. denied, 115 S
62 (1994); Laskaris v. Thornburgh, 733 F.2d 260, 264 n.4 (1989), cert. denied, 469
886 (1984).
6
Id. Such coercion, whether direct or indirect, is incongruent with a free politica
marketplace.
The danger that employees will abandon the expression or exercise of thei
political beliefs to appease their supervisors is not diminished because a supervis
supports a different identifiable faction within a party as compared to a different
altogether. Tomczak v. City of Chicago, 765 F.2d 633, 640 (7th Cir.), cert. denied
U.S. 946 (1985). Whenever an employee, whose position does not require political
decision-making, yields his political will to his superior, the political process i
harmed whether the employee is of the same or a different party.
Because of the dominance of one political party in some locations, intrap
battles will sometimes overshadow interparty battles. Id.; Barnes v. Bosley, 745 F
501, 506 n.2 (8th Cir. 1984). For example, in Cook County, Illinois, Democratic do
may diminish the significance of all elections following the primaries. In Orange
California, Republican influence may similarly overwhelm Democratic opposition. If
first amendment did not reach intraparty patronage practices, public employees in t
and similar locations would not enjoy the same political rights as their counterpar
more politically diverse locales.
As the Seventh Circuit has recognized, opposition to a manager's politica
superiors can "make[] the candidate a political enemy of his boss whether or not th
members of the same party -- some of the bitterest political fights are intraparty
consider Senator Edward Kennedy's campaign to supplant President Carter as the Demo
Party's 1980 Presidential candidate, or Patrick Buchanan's campaign to supplant Pre
Bush as the Republican Party's 1992 Presidential candidate." Wilbur v. Mahan, 3 F.
218 (7th Cir. 1993).
Previously, in Liotta v. Borough of Springdale, 985 F.2d 119 (3d Cir. 199
had considered the question presented here, but did not decide it because there was
7
evidence that Liotta's political affiliations contributed to his discharge. Nonethe
we expressed concern with according intraparty disputes equal weight:
Certainly if First Amendment protections against terminations for
political reasons are to be extended beyond the clearly delineated
situations in which employees claim they were discharged by reason of
a change in the party controlling the government office with the power
of appointment and discharge, a point we do not decide, an employee's
case must be based on more than speculation. Otherwise, there is a
danger that disputes among public officials of every nature would be
characterized as "political" in an attempt to bring the action within
the First Amendment framework.
Id. at 122. Whatever concern we had in Liotta that employees might manufacture
"political" disputes to seek a remedy for layoffs which resulted from poor performa
this case does not present them. Where, as here, a public employee is associated w
identifiable political faction within a single party, we need not be concerned that
activities were not legitimately political or legitimately divisive.
In this case, McCann and Janiszewski campaigned vigorously against one an
for the leadership of the Hudson County Democratic party. This fiercely contested
political battle proved to have an important impact on the predominately Democratic
county. The record makes clear that Fiore and Robertson had aligned themselves on
opposing sides of this dispute. The fact that the record does not support Robertso
claims that he was the subject of a political discharge does not mean that Robertso
affiliation with the McCann faction of the Democratic party lacked protection under
first amendment.
Hence, because the dangers inherent in vigorous intraparty conflicts are
equivalent to the dangers presented by interparty conflict, we conclude that the
Constitution, as interpreted in Elrod, Branti, and Rutan, protects a Democratic emp
equally from discharge for supporting a losing Democrat as for supporting a losing
Republican. In doing so, we join all other courts that have previously addressed t
question. Dickenson v. Quarberg, 844 F.2d 1435, 1437 n.2 (10th Cir. 1988); Tomczak
of Chicago, 765 F.2d 633, 640 (7th Cir.), cert. denied, 474 U.S. 946 (1985); Barnes
8
Bosley, 745 F.2d 501, 506 n.2 (8th Cir. 1984), cert. denied, 471 U.S. 1017 (1985);
also, Bennis v. Gable, 823 F.2d 723, 727 n.4 (3d Cir. 1987) (reaching the same conc
in dicta); Perez v. Cucci, 725 F. Supp. 209 (D.N.J. 1989) (finding a violation in t
of an intraparty conflict without expressly addressing the question), aff'd, 898 F.
(1990).
B.
Having considered the first two elements of Robertson's first amendment c
we reach the issue of causation. We find no merit in Robertson's argument that he
produced sufficient evidence to substantiate a claim that his political affiliation
Mayor McCann was a substantial or motivating factor in his discharge.
The record amply reflects Robertson's poor performance at the HCIA. He
endangered the sorting facility by his smoking. He verbally and physically threaten
other employees. He demonstrated little interest in his responsibilities and repea
misclassified waste, imposing additional costs on the HCIA and its contractors.
Robertson admits most of this behavior. Nonetheless, he seeks to defeat
judgment by arguing that others performed poorly but were not discharged as well.
evidence is belied by the frequency and number of complaints from HCIA contractors
employees directed at Robertson and Robertson alone. Further, Robertson fails to i
the similar situated employees who he alleges also flaunted HCIA rules and does not
identify their political affiliation to permit a relevant comparison. Nor does he
the HCIA's statement that three identified McCann supporters were retained by the H
following the political battle.
This record will not support a conclusion that politics, rather than poor
performance, caused Robertson's discharge, and thus we affirm the district court's
of summary judgment on the first amendment claims.
9
IV.
Similarly, we find no merit in Robertson's claims that the HCIA deprived
due process. Robertson was an at will employee. Consequently, he lacks a protecte
property interest in his position within the meaning of the Fourteenth Amendment. U
National Residents Matching Program, 928 F.2d 1392, 1398-99 (3d Cir. 1991) (limitin
protected property interest to claims of legal entitlement, dependence, or permanen
Nor does he allege that the HCIA foreclosed his opportunity to pursue a career by i
a legal or administrative disability which deprived him of a protected liberty inte
See Siegert v. Gilley, 500 U.S 226, 234 (1991) (damage flowing from harm to reputat
alone does not give rise to a protected liberty interest); Valmonte v. Bane, 18 F.3
1001 (2d Cir. 1994) (requiring an affirmative disability to make out a due process
Consequently, Robertson's due process claim fails. Robb v. Philadelphia, 733 F.2d
292 (3d Cir. 1984).3
V.
Because the record does not reflect genuine issues of disputed material f
Robertson's first amendment or due
3
Robertson's brief does not argue that the district court improperly granted summa
judgment on his state law claims. Accordingly, we consider any appeal from these cl
be waived. Industry Network Sys. Inc. v. Armstrong World Indus. Inc., 54 F.3d 150,
n.4 (3d Cir. 1995).
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process claims, we will affirm the district court's grant of summary judgment.
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