Free Letter - District Court of Delaware - Delaware

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THE NEUBERGER FIRM
A TTORNEYS AND C OUNSELLORS AT L AW

TWO EAST SEVENTH STREET SUITE 302 WILMINGTON, DELAWARE 19801-3707
WWW.N EUBERGERL AW.COM EMAIL: I NFO@N EUBERGERL AW.COM

T HOMAS S . N EUBERGER, ESQUIRE S TEPHEN J . N EUBERGER, ESQUIRE

PHONE: (302) 655-0582 FAX: (302) 655-9329

March 16, 2006 The Honorable Gregory M. Sleet United States District Court District of Delaware 844 King Street Wilmington, DE 19801 RE:

Via CM/ECF Filing

Price, et al. v. Chaffinch, et al., C.A. No. 04-956-GMS Foraker v. Chaffinch, et al., C.A. No. 04-1207-GMS Citation of Supplemental Authority Pursuant to D.Del. L.R. 7.1.2(c)

Dear Judge Sleet: Pursuant to Local Rule 7.1.2(c), plaintiffs bring to the Court's attention supplemental legal authority issued by the Third Circuit which bears upon the pending summary judgment motions and which was "decided after [plaintiffs'] final brief" was filed on the relevant issue. First Amendment Adverse Action On March 13, 2006, the Third Circuit issued its opinion in O'Connor v. City of Newark, ­ F.3d ­, 2006 WL 590357 (3d Cir. 2006). This recent opinion bears directly upon the issue of the First Amendment adverse action standard that was extensively briefed by the parties at summary judgment. In O'Connor, the Third Circuit wrote that First Amendment retaliation claims are actionable, even when the retaliation itself is "relatively minor." Id. at *2. The Court continued and again emphasized and reaffirmed prior Third Circuit and Supreme Court case law holding that the "deter a person of ordinary firmness" standard is met even when an employer fails to hold a birthday party for a public employee when intending to punish that employee for the exercise of their free speech rights. Id. (citing Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000) and Rutan v. Republican Party, 497 U.S. 62, 76 n.8 (1990)). The Third Circuit emphasized that this "deterrence ... threshold is very low" and that a plaintiff has a cause of

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action for "all but truly de minimis violations." Id. Briefly, this holding supports the position taken by plaintiffs in summary judgment briefing, that defendants' long course of unprecedented harassment and retaliation against them is more than sufficient to meet and exceed the First Amendment adverse action standard.

Respectfully submitted, /s/ Stephen J. Neuberger Attorney for Plaintiff

cc:

Thomas S. Neuberger, Esq. (via CM/ECF) Martin D. Haverly, Esq. (via CM/ECF) Richard M. Donaldson (via CM/ECF)

FTU \ Letters \ Sleet.04

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United S tates Court of App eals, Third Circuit. James D. O'CONNOR; Jeannette C. O'Con nor, Ap pellan ts v. CITY OF NEW ARK ; City of Newa rk Police Dep artm ent. No. 05-2237. Subm itted Under Third Circuit LAR 34.1(a) Feb. 13, 2006. March 13, 2006. On Appeal from the United States District Cou rt for the District of New Jersey, (D.C. No. 0 2 - c v - 0 4 3 18 ) , D i s tr ic t Ju d g e : Honorable Jose ph A. Green aw ay, Jr. Charles J. App ellants. Sciarra, Newark, NJ, for

I. Jam es O 'Con nor w as a lieutenant in the Newa rk Police Department. He provided information to investigators in a federal corruption probe targeting the former Newa rk police d irector W illiam Cele ster. Celester was convic ted of em bezz lem ent, and O'Co nn or alle ges that, because of h is assistance in the investigation, he was subjected to retaliation on the job. [FN1] FN1. Specifically, O'Connor alleges that the departm en t d en ied him a promotion, failed to expu nge his disciplin ary record, tran sferred him to a position under the comm and of a superior officer wh o wa s hostile to h im , provid ed h im with inad equ ate staff and reso urces, ass igne d him excessive wo rk, changed his w ork s c he d u le , filed un wa rrante d disc iplin ary co mp la in ts a ga in st h im , failed to cred it h im with overtime, awarded him a m edal b ut failed to invite his family to the ceremony, and failed to give sufficient c o m m e n d a ti o ns to his unit . O'Connor also alleges that he was subjected to threats and assau lts by other officers. O'Connor brought suit against the city and the depa rtm ent u nd er 42 U.S.C. § 1983, charging that th ey ha d infringed his righ ts to sub stan tive a nd procedural due p rocess (Count I) and to free expression (Coun t II). He also alleged that the defendants violated his state-law w histleblower rights under N.J.S.A. 34:19 -1 (Count III), engaged in a consp iracy in viola tion of 42 U.S .C. § 1985 (Count IV), failed to prevent that conspiracy in viola tion of 42 U.S . C. § 1986 (Coun t V),

Susan S. Singer, Newark, NJ, for Appellee, City of Newark. Before SCIRICA, Chief Judg e, BARRY and FISHER, Circuit Judges. OPINION OF THE COURT FISHER, Circuit Judge. *1 In thi s case w e are asked to review the District Co urt's grant of summary judgment to New ark, New Jersey, an d its police dep artm ent, on several claims arising from alleged retaliation against a police officer based on his assistance with a federal corru ptio n probe . We will affirm .

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libeled and d efamed him (Coun t VI), [FN2] and violated a settlement agreement stemming from an earlier lawsuit (Count VIII). Finally, along with his wife, O'Connor brought a cla im for loss of consortium (Coun t VII). FN2. The District Co urt's order notes that the defam ation cou nt, Coun t VI, was dism issed ora lly pu rsuan t to Newark's m otion for sum m ary judg m ent. O'Connor does not raise that count on appeal, so we do not address it here. The D istrict Cou rt determ ined that O'Connor had failed to present evidence supporting a causal connection betw een h is participation in the investigation and the alleged retaliatory acts, and granted Ne wark 's motion for summ ary judgmen t on all counts. We have jurisdictio n ove r this appeal un der 28 U.S.C. § 1291. Our review of an order gran ting su m m ary jud gm ent is plenary. Bieregu v. Reno, 59 F.3d 1445, 1449 (3d Cir.1995). Su m m ary judg m ent is proper "if the pleading s, depositions, answ ers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no g enu ine issu e as to any ma terial fact and that th e m oving party is entitled to a judgmen t as a matter of law." Fed.R.Civ.P. 56(c) . II. Actio ns b roug ht u nd er 42 U.S .C. § 1983 are governed by the person al inju ry statute of limitations of the state in which the cause of actio n ac crue d. Cito v. Bridgewater Twp. Police Dep 't, 892 F.2d 23, 25 (3d Cir.1989). For section 1983 actions in New Jersey, "that statute is N.J.S.A. 2A:14 -2, which provides that an action for injury to the person caused by wrongful act, neglect, or defau lt, must be convened with in tw o yea rs of accrual of the cau se of action ." Brown v.

Foley, 810 F.2d 55, 56 (3d Cir.1987). The limitations period for O'Connor's claim s is therefore two years. With min or excep tions, all of the even ts described in O'Connor's complaint occurred m ore than two years before filing. O'Connor argues, however, that the statute of lim itations shou ld be d eem ed eq uitab ly tolled because his com plaint states a hostile workplace environment claim involving a "continuing violation." O'Connor's a rgum ent hinges on his hostile workplace environment theory, and requires aggre gation of acts occurring outside the limitations period with those occurring inside the period. He does not contend that there are any acts occu rrin g inside the period w hich, considered in them selves, are su fficient to sup port liability. Nor has our independent examina tion of the record revealed any such acts. Because the events that occurred with in two years of filing are n ot, on th eir own, sufficient to su ppo rt liability, the dispositive issue before u s is w heth er cla im s of the sort raised by O'Connor may survive time-barring by inclusion in a continuing violatio ns com plain t. *2 This issue was resolved by the S up rem e Cou rt in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). Morgan established a bright-line distinction between discrete acts, wh ich are in divid ually actionable, and acts which are not indiv idua lly actionable but may be agg regate d to m ake out a hos tile w ork environment claim . The form er m ust be raised within the applicable limitations period or they w ill not su ppo rt a law suit. Id. at 113 ("[D]is crete d iscrim ina tory a cts are not actionable if time barred, even when they are related to acts alleg ed in tim ely filed charg es. Each discrim inato ry act starts a new clock for filing charges alleging that act."). The latter can occur at any time so

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long as they are linked in a pattern of action s wh ich con tinue s into the ap plicab le l i m i ta t io n s perio d. Id. at 1 05 ("[C]onsideration of the entire scope o f a hostile wo rk en viron m ent claim , including behavior alleged outside the statuto ry tim e period, is permissible for purposes of assessing liability, so lo ng as any act contributing to that hostile environment takes place within the statu tory tim e period."). Morgan provides fairly precise guidance as to wh at sorts of acts are "discrete." The Cou rt first observes that "[d]iscrete acts such as termination, failure to promote, denial of tran sfer, or refu sal to hire a re easy to identify," id. at 114, then lists the discrete acts in the case be fore it: "Morgan contends that he was wron gfully suspended ... charged with a violation of [a workplace rule], denied training, and falsely accused of threatening a manager." Id. (em pha sis added ). We can thus take from Morgan the following non-exhaustive list of discrete ac ts for wh ich the limita tions p eriod runs from the act: term inatio n, failure to promote, denial of transfer, refusal to hire, wrongful suspension, wrongful discipline, denial of training, wrongful accusation. App lying the Morgan distinctio n to O'C on no r's allegations lis ted a bov e, sup ra note 1, it is apparent that nearly all of them fall into the category of discrete acts. Accordingly, un der Morgan, they cannot be aggregated under a continuing violations theory. Fu rthermore, the Morgan rule that individually action able a llegatio ns can not be aggregated is of particular import in the context of First Am end m ent retaliation claims. First Am end m ent retalia tion cla im s

are always individually actionable, even when relatively minor. Even "an act of retaliation as trivial as failing to hold a birthday party for a p ublic e m ploye e," if "intended to punish her for exercising her free speech rights," may be actionable if under the circumstances it would be sufficient to "deter a person of ordina ry firmness" from exercising his or her First Amendment righ ts. Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir.2000) (citing Rutan v. Republican Party, 497 U.S. 62, 76 n.8 (1990)). A First Amend men t retaliation claim will lie for any individua l act which m eets this "d eterrence thres hold," and that thresh old is very low: as we said in Suppan, a cause of action is supp lied by all bu t truly de m inim is violatio ns. Id. *3 In su m , if Morgan applies to this case, then O'Connor's claims are time-barred. [FN3] O'Connor argues that because Morgan was a Title V II case, it shou ld no t be read to gov ern claims arising under other provisions of federal law. We must therefore decide whether to join several of our sister circuits in applying Morgan to section 1983 cases not bro ug ht u nd er Title VII. [FN4] FN3. If Morgan does not apply, then so me or all o f O'Con no r's cla im s might still be time-barred, but we wou ld not hav e recourse to Morgan' s bright-line catego rical distin ction in making that determination. FN4. It does not appear that we have yet stated expressly in a published opinion that the Morgan distinction applies in n on -Title V II suits involving adverse employment actions. However, we have applied it, in u np ub lished d ecisio ns, to ADA actions. See Zdziech v. DaimlerChrysler Corp ., 114 Fed. Appx. 469, 471 (3d Cir.2004);

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Shenkan v. Potter, 71 Fed. Appx. 893, 895 (3d Cir.2003). III. We find persuasive the reasoning of our sister circuits that the distinction between "continuing violations" and "discrete acts" is not an artifact of Title VII, bu t is rath er a gen eric featu re of federal employment law. Thus, in whatever statutory context the distinction m ay a rise, Morgan will control. So far, the Cou rts of Appeals for the Sixth, Seventh, and Ninth Circuits have applied Morgan to § 1983 case s. See Sharpe v. Cureton, 319 F.3d 259, 267 (6th Cir.2003); Hildebrandt v. Ill. Dep't of N atu ral Re s., 347 F.3d 1014, 1036 (7th Cir.2003); RK Ventu res, Inc. v. City of S eattle, 307 F.3d 1045, 1061 (9th Cir.2002). The S ixth Circuit explained that it could "find no principled basis upon which to restrict Morgan to Title VII claim s." [FN5] FN5. Seve ral district courts have also recently a pplied Morgan to section 1983 cases. Se e, e.g ., Ru iz Casillas v. Cam acho M orales, No. 022640, 200 4 U.S . Dist. LEXIS 28135, at *15 (D .P.R.2004) ("[ T]h e continuing violation theory, wh ich originated from T itle VII Civil R ights cases, has b een w idely a pplie d to Section 1983 cases w ithin th is Circuit."); Turner v. District of Columbia, 383 F.Supp.2d 157, 168 (D.D .C.2005) ("The sam e ana lysis shou ld be applied to discrimination claim s broug ht u nd er § 1983."). We agree. The princip les at w ork in Morgan app ly with equal force to § 1983 claims. Morgan held simply that causes of action that can be brought indiv idua lly exp ire with the applicable limitations period. By c o n t r a st , the " h o st i le w o r k p l a ce enviro nm ent" theory is d esign ed exp licitly

to address situa tions in which the plaintiff's claim is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by th e defendan t. In such cases, obviously the filing clock cannot beg in running with the first act, because at that poin t the plaintiff h as n o cla im ; nor can a claim expire as to that first act, because the full co urse of condu ct is the ac tiona ble infring em ent. Morgan, 536 U.S. at 117-18. The Cou rt did noth ing m ore than to restate, in the em ploym ent discrim inatio n con text, the comm on-sense proposition that an app licable statu te of lim itation s beg ins to ru n a t th e tim e the claim accrues, and that time-barred claim s cannot be resurrected by being aggregated and labeled continuing violations. [FN6] FN6. W e deem it worthy of note that wh ile the Morgan Cou rt split 5-4 on other issues, it was unan imous on this poin t. See Morgan, 536 U .S. at 123 (O'C onn or, J., concurring in part and dissenting in part, joined in relevant part by Reh nqu ist, C.J., and Scalia, Kennedy and Brey er, J.J.) ("I agree that Title VII suits based on discrete discrim ina tory acts a re tim e barred w hen the p lain tiff fails to file ... with in the [limitations period] designated in the statute."). Indeed, the dissenters would have gone even further than the m ajority an d he ld t h a t c u m u l a t i v e hostile-workplace-environment suits we re tim e-b arred as w ell. Id. ("I dissent from the remainder of the Co urt's opinion, how ever, because I believe a similar restriction applies to all types of Title VII suits, including those based on a claim that a plaintiff has been subjected to a hostile work env ironm ent."). Thus there is not a single vote on the Cou rt for the proposition that

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indiv idua lly action able d iscrete acts m ay supp ort suit ou tside th e limitations perio d if they are aggregated and labele d as a hostile en viro nm en t cla im . If the allegations in O'Connor's complaint are discrete, then each gave rise to a cause of action at the time it occurred. That cause of action persisted for two years and then l a p se d . O'Co nn or c laim s that th e department engaged in severe retaliation again st him to punish him for the exercise of his First Amend men t rights. Under Morgan, the law req uired h im to sue w ithin two years of the occurrence of these incidents. He did not sue in time, and he is now barred from doing so. Accordingly, we will affirm th e District Cou rt's order with respect to Counts I, II, IV, and V. [FN7] FN7. Cou nts IV an d V a llege violations of 42 U.S.C. §§ 1985 and 1986 . These sections cover, respectively, consp iracies to vio late federal rights, and failures to prevent such violations by those with the relevant knowledge and p ow er to do so. Morgan applies to these sections just as it do es to section 1983. IV. With respect to Count VIII, the alleged violation of a prior settlement agreement betw een th e parties , we ca n find no h int in the record of any agreement to expunge O 'Co nn or's disc iplin ary r e co r d . The docu m ents before us are a February 5, 1997 resolution of the Ne wa rk City C oun cil authorizing paym ent to O'Connor of $500,000 to settle a lawsuit, and a subsequent exchange of letters between O'C on no r's attorney and an attorney for the city. Examination of these docum ents reveals n o bas is for O'Con nor's claim .

*4 The C ity Cou ncil re solutio n mem orializes the agreement between O'Connor and the city that the $500,000 payment is ma de in consideration of O'C on no r's "agree[m ent] to a m icably resolve and com prom ise [h is] cla im s." The resolution conta ins no me ntio n of O'Connor's disciplinary record. O'Co nn or claim s tha t the letters are evidence of an unrecorded "verbal term of the settlement agreem ent" that specified that his record would be expunged. The letters show no such thing. The first letter is a request by O'Connor's attorney to have O'C on no r's record expunged , but neither that letter nor the city's response gives any indication that either side connected that request to the settle m ent ag reem ent. O'C on no r's attorn ey w rote to the city on February 26, 1997, three weeks after the city council resolution authorizing the settlement payment. In the letter, he states that O'Connor is "concerned" abo ut his disc iplin ary file and suggests that "per administrative decision of the Attorney General's offices, officers in the [sic] O'C on no r's positions [sic] are auth orized to have their respective files purged of all such improper charges. Obv iously such a ction can only be taken at the direction of the Police Directo r in accorda nce w ith esta blish ed p roced ures ." This letter, written by O'C on no r's attorney only three weeks after the cou ncil resolution was passed, seeks expungement based on an adm inistrativ e decision of the Attorney Gen eral, not the settlement agreem ent. The letter does not even mention the settlement agree m ent; still less do es it anyw here sugge st that the agreement requires purging the files. Indeed , it states exp licitly that "m y clients recognize that this is the province of the Director in con junc tion w ith Internal Affairs procedu res." We think it not

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unre ason able to expe ct that, if O'Connor had an agreement with the city to h ave h is files purg ed, his a ttorney would have m ention ed it. We will therefore affirm dismissal of Count VIII. V. O'Conno r's sta te-law claim in C ount III arises under the New Jersey Conscientious Emp loyee Protection Act ("CEPA"), and thus presen ts a somew hat different question from the federal claims. The underlying facts supp orting C oun t III are the same as with the other claim s, but the source of the right is state rath er than federal law . It is therefore not self-evide nt tha t the distinction between discrete acts and agg regab le acts, and the limits on the availa bility of the continuing violations exception, will be the same for C EP A cla im s as for federal claims. The New Jersey Suprem e Court considered the app lication of Morgan to state law in Sh eph erd v. Hunterdon D evelopm enta l Ctr ., 803 A.2d 611 (N.J.2002). The court noted that while in general federal and New Jersey law "mirror" one another in the area of employment discrim ina tion , federal law is "merely a g uide." Preliminarily, we mu st determine whether to apply Morgan' s ana lytical fra m ewo rk when evaluating a state cause of action under the LAD [the "Law Against D is c ri m i n a t i o n"]. We have note d previou sly that in resolving disputes under our State employment-law jurisprudence, federal case law is merely a gu ide. See Ald eriso v. Med. Ctr. of Ocean County, Inc., 167 N.J. 191, 201, 770 A.2d 275 (2001) (rejecting federal ca se law in determining accrual of wrongful discharge claim unde r New Jersey's Conscientious Emp loyee Protection Act). That said, we consider Morgan' s formulation of the continuing violation doctrine to be similar

to the one advanced in Wilson. The re also is a benefit in having our State jurisprudence mirror the approach taken in Morgan to avoid further confusion in an already complicated area of law. We thus will app ly Morgan' s ana lytica l fram ew ork to the presen t actio n. *5 Shepherd, 803 A.2d at 623. Mo re recently, the cou rt has noted that "[t]he policy c o n c e rn s und erpinn ing th e determination in Sh eph erd in respect of LAD cla im s require th e app lication of the Mo rgan/S hep herd framework in CEPA actions." Gree n v. Je rsey C ity Bd . of Edu c., 828 A.2d 883, 891 (N.J.2003). We read th ese case s as ho lding that w hile federal and state discrimination law are not always coexten sive, they overlap with respect to "Morgan' s fo rm ulation of the continuing viola tion doctrine ." Because that doctrine con trols th is cas e, it ap pea rs to us that "application of the Mo rgan/S hep herd framework" requ ires, as a m atter of state law, that O'Connor's CEPA claim be dismissed. Accord ingly , we w ill affirm th e dism issal of tha t claim as w ell. [FN8] FN8. We w ill affirm the dism issal of Count VII, loss of consortium, insofar as it was deriv ativ e of so me independent pred icate claim , of which there remain none. VI. For the foregoing reasons, the order of the District Court will be affirmed. 2008654667 2008654667 --- F.3d ----, 2006 Cir.(N.J.)) END OF DOCUMENT WL 5 9035 7 (3rd

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