RUSSO v. CITY OF ATLANTIC CITY et al

Filing 68

OPINION. Signed by Judge Renee Marie Bumb on 4/14/2016. (tf, )

[NOT FOR PUBLICATION]

[DOCKET NO. 39]

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICK RUSSO,

:
:
Plaintiff,
:
:
v.
:
:
CITY OF ATLANTIC CITY,
:
and ANTHONY COX,
:
:
Defendants.
:
___________________________:

HONORABLE RENÉE MARIE BUMB
CIVIL ACTION NO. 13-3911
OPINION

APPEARANCES:
CASTELLANI LAW FIRM, LLC
By: David R. Castellani, Esq.
450 Tilton Road, Suite 245
Northfield, New Jersey 08225
Counsel for Plaintiff
LAW OFFICES OF RILEY & RILEY
By: Tracy L. Riley, Esq.
The Washington House
100 High Street, Suite 302
Mount Holly, New Jersey 08060
Counsel for Defendant Cox
LAW OFFICE OF MICHAEL A ARMSTRONG
By: Barbara Ann Johnson-Stokes, Esq.
79 Mainbridge Lane
Willingboro, New Jersey 08046
Counsel for Defendant City of Atlantic City

BUMB, United States District Judge:
Plaintiff Rick Russo brings this employment retaliation
suit against his employer, Defendant City of Atlantic City and
1 

one of his supervisors, Defendant Anthony Cox.

The Complaint

asserts two counts: (1) violation of Russo’s First Amendment
rights (via 42 U.S.C. § 1983), and (2) violation of New Jersey’s
Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1
et seq.

Defendants move for summary judgment.

For the reasons stated herein, the motion will be granted
as to all federal claims, and the parties will be ordered to
show cause why the Court should not dismiss without prejudice
the CEPA claims pursuant to 28 U.S.C. § 1367(c)(3) (“The
district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction.”).

I.

Facts
Plaintiff Russo has been employed by Defendant Atlantic

City in its Licensing and Inspection Department since 1994.
(Russo Dep. p. 57)
in 2011.

The events leading up to this lawsuit began

Russo was Supervising Field Representative at the

time, which is a civil service position.

He reported to Garry

Alston who was Chief Field Representative.

Alston reported to

Defendant Cox who was Director of Licensing and Inspections.
In November of 2011, Cox “wrote-up” Russo for failing to
report to his superiors, including Defendant Cox, that a
Saturday overtime non-emergency inspection scheduled was not
2 

performed by an inspector whom Russo supervised. (Russo Dep. p.
57; Defs’ Ex. E)

Despite this being Russo’s very first Notice

of Disciplinary Action ever (Id. at p. 191; Defs’ Ex. E),
Defendant Cox recommended “major” disciplinary action, which is
a suspension of six or more days. (Cox Dep. p. 175, 178)
Significantly, however, Russo did not learn of the proposed
disciplinary action until many months later, on April 16, 2012,
when he was served with the notice. (Russo Dep. p. 163)
In the interim between the drafting of the notice and its
service upon Russo, an incident involving the property at 1600
Arctic Avenue occurred.

An inspector whom Russo supervised,

John Stinsman, issued a “Notice of Violation and Order to Abate”
to the owner of the property, which was identified as “1600
Arctic Avenue LLC.” (Defs’ Ex. P)

The building was undisputedly

vacant and partially boarded-up (Cox Dep. 156, 166-70), and in
accordance with regular procedures (Russo Dep. p. 137, 139), the
notice ordered that the property be “repair[ed] or
demolish[ed].” (Defs’ Ex. P)
Russo testified that he approved the notice by using Garry
Alston’s signature stamp because Alston was out on medical leave
at the time. (Russo Dep. p. 138-43)1

1

It is undisputed that Russo was temporarily serving “out-oftitle” as Chief Field Representative while Alston was on medical
leave. Russo testified that he did not have Alston’s
authorization to use the stamp, but used it because he believed
3 

As it turned out, one of the members of 1600 Arctic Avenue
LLC was Defendant Cox.

Russo testified that he had no reason to

know this-- and in fact did not know it-- when he stamped the
notice. (Russo Dep. p. 144)
Cox testified that soon after the notice was issued, his
business partner forwarded it to him. (Cox Dep. p. 126-27, 132,
155, 167)

Cox, recognizing the conflict of interest raised by

his department inspecting a property in which he had an
ownership interest, “immediately” forwarded the notice to the
City’s Business Administrator. (Cox Dep. p. 127, 133, 155, 160)
Shortly thereafter, the Business Administrator, “just as [he
had] done in other cases,” began the process of voiding
Stinsman’s inspection and assigning the inspection to another
municipality. (Defs’ Ex. R; Cox Dep. p. 160)

Russo learned of

Defendant Cox’s ownership interest in 1600 Artic Avenue when the
Business Administrator circulated a memo advising of the
conflict. (Russo Dep. p. 144)
Notably, Cox testified that he did not know that Russo “had
a decision on” the Arctic Avenue notice (Cox Dep. p. 122), and
the notice undisputedly does not bear Russo’s name because Russo
used Alston’s signature stamp.

Cox further testified that he

was unaware that Alston was out on medical leave at the time the

“the only one who could sign [the notice] is Garry Alston, so in
lieu of him not being there, . . . [the clerical staff and I]
used the stamp.” (Russo Dep. p. 138-39)
4 

notice was issued, and was unaware that Russo was filling-in.
(Cox Dep. p. 127, 132, 167)

When asked at his deposition,

“[y]ou’re the director of the department [of Licensing and
Inspections] and you did not know that your chief of code
enforcement was on leave of absence at the time?,” Cox answered,
“[w]hat I did know was that I had four or five other divisions
that I’m responsible for and that a document shows up with Garry
[Alston’s] name stamped and an inspector.
That’s all I knew.”

That’s what I knew.

(Cox Dep. p. 128)

The Business Administrator’s internal memorandum advising
Alston of the conflict concerning 1600 Arctic Avenue is dated
March 30, 2012.

(Defs’ Ex. R)

Approximately two weeks later,

on April 16, 2012, Russo was served with the Notice of
Disciplinary Action discussed above.
In July, 2012, Russo’s disciplinary hearing on the notice
was held. (Defs’ Ex. E)

On August 20, 2012, the Hearing Officer

issued her decision which found that Russo did indeed fail to
notify his supervisors of the non-inspection (a fact which Russo
has never disputed), and concluded that Russo was “guilty of
conduct unbecoming a public employee.” (Id.)

But rather than

imposing major discipline, the Hearing Officer imposed a one-day
suspension. (Id.)
Also in August, 2012, Russo asserts that he had a
disagreement with Defendant Cox over an issue with a property
5 

located at 117 South Martin Luther King Boulevard (“the MLK
property”).

An inspector under Russo’s supervision had

previously cited the property for insufficient electrical
service. (Russo Dep. p. 106-09, 117)

Russo explained, “[e]very

dwelling unit is required to have a 60 amp service, a minimal 60
amp service per unit, as per the International Property
Maintenance Code, Chapter 601. . . . Upon inspection of the
building, it was determined that the units only had a 40 amp
service to each unit, so the inspector cited the owner to
upgrade all units to a 60 amp service.” (Id. at p. 108)

Russo

further explained that “it’s a very big violation . . . because
[fixing the problem requires] such a massive upgrade to the [52unit high rise] building,” which was built in 1929. (Id. p. 110,
120)
In August, 2012, the owner of the property “petitioned
[Defendant] Cox to have a meeting to apply for an exemption so
he wouldn’t be required to upgrade the electric.” (Russo Dep. p.
119)
N)

The meeting was held on August 2, 2012. (Defs’ Ex. H, J,

Russo attended. (Russo Dep. p. 120)

The property owner made

a “presentation” and submitted documentation showing that the
units were only drawing 27 amps per hour, therefore, he
asserted, the 40 amp service was sufficient. (Id. at p. 120-21;
see also Cox Dep. p. 212)

6 

Defendant Cox granted the exemption at the meeting.
Dep. p. 123)

(Russo

According to Russo, “Cox did not ask [Russo] or

[the inspector who issued the citations] to speak on the matter.
He just said granted and that was the end of it.” (Id. at p.
123)
Russo, concerned that the exemption was not consistent with
the International Property Maintenance Code-- the very code
which the Licensing and Inspection Department undisputedly has
sole jurisdiction to enforce (Russo Dep. p. 98, 132-33; Cox Dep.
p. 214-15, 229, 134; Defs’ Ex. K, O)2-- wrote a memo to Alston,
who had not attended the meeting. (Russo Dep. p. 123)
Critically, Russo testified,
A: I wrote a memo to Garry Alston questioning the
exemption that was granted and the manner in which
it was granted. The International Property Code has
an administrative chapter that explicitly details
the steps needed to grant an exemption and none of
the steps were taken in the granting of this
exemption, including the recording of the decision.

2

Plaintiff’s brief asserts that the International [Property
Maintenance] Code Council is “an outside regulatory authority.”
(Pl’s Opposition Brief p. 2, 6, 7, 31, 32, 36) The record facts
do not support such a characterization insofar as it suggests
that the Council had regulatory or enforcement authority over
Atlantic City’s Licensing and Inspection Department. The
Council’s own letter explicitly states, “[c]ode opinions issued
by ICC staff are based on ICC-published codes and do not include
local, state or federal codes, policies or amendments. . . . As
this opinion is only advisory, the final decision is the
responsibility of the designated authority charged with the
administration and enforcement of this code.” (Defs’ Ex. G) The
record evidence suggests that the International Code Council
promulgates model statutes and regulations that various
governmental authorities have adopted. (Cox Dep. p. 214-20)
7 

Q:

Now did Mr. Alston respond to your memo?

A:

I believe he did.

Q:

How did he do that?

A:

He asked me to investigate it.

. . .
Q:

And when did he ask you to investigate it?

A:

Shortly after he received my memo.

Q: . . . [W]hat steps did he expect you or want you
to take to investigate it?
A:
Well, he thought it might be a good idea to
contact
the
International
Property
Maintenance
Council, of which I am a member of the committee . .
. . I’m the contact for the City for the
International Property Maintenance Code. . . . [S]o
I sent a letter to . . . the International Property
Maintenance Code Council . . . and asked [] a
hypothetical situation that was relevant to the [MLK
property], whether or not an exemption should be
granted based upon the information that I had
gathered in reference to that meeting.
. . .
Q:
And is it your testimony that the sole
purpose that you contacted this company was to find
out whether or not an exemption should be given?
A:

Yes.

(Russo Dep. p. 124-26)
On September 12, 2012, the Council responded in writing to
Russo. (Defs’ Ex. G)

Notably, the letter was addressed to “Mr.

Rick Russo, Supervising Field Representative Property
Improvement, City of Atlantic City – Code Enforcement
8 

Department,” and mailed to Russo at his work address.

(Id.)

The letter opined that an exemption should not be granted for “a
10 story 50 unit multi-family building built in 1929 [that] was
cited for not having an electrical service rating of not less
than 60 amperes.” (Id.)
On September 27, 2012, Russo forwarded the Council’s letter
to Alston. (Defs’ Ex. I)

Russo sent the letter with a cover

memo, drafted on “City of Atlantic City, Division of Code
Enforcement” letterhead, entitled “117 So. MLK decision from
Director to grant appeal on electrical violation 2009 IPMC
section 604.2.” (Id.)
The same day, Alston forwarded Russo’s memo and the
Council’s letter to Defendant Cox. (Defs’ Ex. J)

It is

undisputed that Cox did not change his decision.

Cox testified

that, in his opinion, the IPMC did not apply. (Cox Dep. p. 214)
In November, 2012, Alston announced his retirement
effective at the end of the month, and recommended to Defendant
Cox that Russo be promoted to the position Alston was vacating-Chief Field Representative, Property Improvement. (Defs’ Ex. S,
T; Cox Dep. p. 79-80, 86)
Effective immediately upon Alston’s retirement, Russo began
performing Alston’s duties as Acting Chief Field Representative
just as he had done when Alston was previously out on medical

9 

leave. (Russo Dep. p. 118)

Further, Russo admits that Defendant

Cox promoted him to Acting Chief. (Id.)
This time, however, Russo contends that the situation was
different because Russo was filling a vacancy, rather than a
temporary leave of absence.

Russo contends that he should have

been appointed provisionally to Alston’s spot-- with a
corresponding increase in pay-- rather than continuing to serve
“out-of-title” in an “acting” capacity, with less pay. (Russo
Dep. p. 183-84; Cox Dep. p. 68, 73)

On January 29, 2013, Russo

submitted a grievance concerning Defendant Cox’s failure to
provisionally appoint him to Alston’s position. (Pl’s Ex. C)
Shortly thereafter, he also filed a “desk audit” with the state
civil service commission3 concerning the same issue. (Russo Dep.
p. 226; Cox Dep. p. 253-54)
In March, 2013, Defendant Cox decided to remove Russo as
Acting Chief (effectively returning Russo to the position he
occupied prior to Alston’s retirement-- Supervising Field
Representative), and posted a formal vacancy announcement for
Alston’s position. (Russo Dep. p. 184; Defs’ Ex. V)

3

“Under N.J.A.C. 4A:3-3.9(a), an employee who believes that his
or her ‘duties . . . do not conform to the approved job
specification for the title assigned to that position’ may
request a review of his or her job classification. This review
is commonly referred to as a ‘desk audit.’” In re Camuso, 2015
N.J. Super. Unpub. LEXIS 106, *2 n.2 (App. Div. Jan. 20, 2015).
10 

According to Russo, the manner in which his removal was
accomplished was “very disrespectful.” (Russo Dep. p. 185)

He

explains that he was informed of the decision on a Thursday,
when he had a four-day vacation planned to begin the following
Monday.

(Id. at p. 222)

Russo planned to empty his desk and

move offices when he returned from vacation. (Id. at p. 223)
But upon his return, he discovered that a move was already
underway.

Specifically, Russo testified, someone had “go[ne]

into my locked office, empt[ied] out my drawers that were all
locked, dump[ed] all of my personal stuff . . . in a big pile so
that when I came back, I was basically humiliated, because all
the other inspectors saw that and they thought geez.” (Id. at p.
224)

Russo’s phone allowance was also taken away. (Id. at p.

185-87)
Shortly thereafter, Russo submitted another grievance over
his removal from the Acting Chief position. (Pl’s Ex. C)
Russo responded to the vacancy announcement and formally
applied for the permanent position of Chief Field
Representative. (Defs’ Ex. X, Y)
applied. (Cox Dep. p. 110)

Four people, including Russo,

Russo was not selected.

Instead,

Defendant Cox chose Kathleen Dierwechter, who was tied, along
with Russo, for the number-one ranking on the civil service
list. (Russo Dep. p. 248)

Russo contends that Dierwechter was

11 

less qualified for the position because she had no supervisory
experience, whereas Russo did. (Russo Dep. p. 254-55)

II.

Legal Standard
“[S]ummary judgment is proper ‘if the pleadings,

depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’”

Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
56(c)).

When deciding whether the moving party is entitled to

summary judgment, the Court must construe the facts and
inferences in a light most favorable to the nonmoving party.
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d
Cir. 1986).

The Court’s role is not “to weigh the evidence and

determine the truth of the matter, but to determine whether
there is a genuine issue for trial.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986).

III. Analysis
Russo identifies three instances of alleged protected
speech4: (1) his approval of the 1600 Arctic Avenue citation; (2)

4

The district court “‘must conduct a particularized examination
of each activity for which the protection of the First Amendment
12 

Russo’s request for an opinion from the International Property
Maintenance Code Council in connection with the exemption
Defendant Cox granted to the MLK property; and (3) the
grievances Russo submitted concerning his out-of-title status
(i.e., non-appointment to a provisional position) and removal
from Acting Chief.5
The retaliatory acts are asserted to be: (1) being served
with the Notice of Disciplinary Action and continued pursuit of
disciplinary action at the disciplinary hearing; (2) Cox’s
decision to remove Russo from the Acting Chief Field
Representative position; and (3) Russo’s non-selection for the
permanent position of Chief Field Representative.

A.

“‘To establish a First Amendment retaliation claim, a
public employee must show that (1) his speech is protected by
the First Amendment and (2) the speech was a substantial or
motivating factor in the alleged retaliatory action, which, if
both are proved, shifts the burden to the employer to prove that

is claimed.’” Jerri v. Harran, 625 Fed. Appx. 574, 580 (3d Cir.
2015)(quoting Johnson v. Lincoln Univ., 776 F.2d 443, 451 (3d
Cir. 1985)).
5

Plaintiff’s brief uses “grievances” to refer to both union
grievance forms as well as the desk audit filed with the civil
service commission. The Court’s use of “grievances” includes
all three documents as well.

13 

(3) the same action would have been taken even if the speech had
not occurred.’” Munroe v. Central Bucks School District, 805
F.3d 454, 466 (3d Cir. 2015)(quoting Garcetti v. Ceballos, 547
U.S. 410, 986 (2006)).6

(1) None of the speech at issue is protected by the First
Amendment’s Free Speech Clause
Speech is constitutionally protected only if: (a) “the
employee . . . speak[s] as a citizen (and not as an employee)”;
(b) “‘the speech . . . involve[s] a matter of public concern’”;
and (c) “the government lack[s] ‘an adequate justification’ for
treating the employee different than the general public.”
Munroe, 805 F.3d at 466 (quoting Garcetti).
The Court holds that a reasonable factfinder could only
conclude that Russo spoke as an employee and not a citizen in
connection with the 1600 Arctic Avenue citation and the MLK
property exemption.

Additionally, the Court holds that Russo’s

grievances did not involve a matter of public concern.
With regard to whether a plaintiff spoke as an employee,
the Third Circuit has explained, “the ‘controlling factor’ is

6

The Court is compelled to observe that none of the papers
submitted by either side in connection with the instant motion
even cite Garcetti, much less apply its standard to the facts of
this case. The Third Circuit cases applying the Garcetti
standard (extensively cited herein) are numerous and recent.
Counsels’ failure to cite and apply controlling Supreme Court
precedent, as well as their failure to cite any Third Circuit
decision issued later than 2008, is deeply disturbing.
14 

whether the statements were ‘made pursuant to the speaking
employee’s duties,’ that is, ‘whether such utterances were among
the things that the employee ‘was employed to do.’” Flora, Jr.
v. County of Luzerne, 776 F.3d 169, 177 (3d Cir. 2015)(quoting
Garcetti).
Conversely, “[t]he responsibility of a district court in
evaluating whether a public employee’s speech was made as a
private citizen is to ask whether the speech at issue was
‘outside the scope of his ordinary job responsibilities.’” Id.
at 179 (quoting Lane v. Franks, 134 S.Ct. 2369, 2378 (2014));
see also Dougherty v. School District of Philadelphia, 772 F.3d
979, 990 (3d Cir. 2014)(“Lane reinforces Garcetti’s holding that
a public employee may speak as a citizen even if his speech
involves the subject matter of his employment. . . . ‘the
critical question under Garcetti is whether the speech at issue
is itself ordinarily within the scope of an employee’s duties,
not whether it merely concerns those duties.’”)(quoting Lane).
“Whether speech is protected depends on the answers to
several fact-intensive questions: what did a person say, in what
form, in what context, what was the scope of his employment, and
was the speech on a matter of public concern?” Jerri v. Harran,
625 Fed. App’x 574, 579 (3d Cir. 2015).
The record considered as a whole, and construed in the
light most favorable to Russo, clearly demonstrates that with
15 

regard to the 1600 Arctic Avenue citation and MLK property
exemption incidents, Russo spoke as an employee, not as a
private citizen.
Russo’s involvement in the 1600 Artic Avenue citation was
very limited.

All of the record evidence is consistent on this

point: Russo merely stamped his approval of a citation issued by
an inspector he supervised.

He did so as Acting Chief Field

Representative, and approving citations was a routine action for
the Chief Field Representative-- so much so that approvals were
issued with a signature stamp.

Indeed, as to the citation of

1600 Artic Avenue specifically, Russo testified:
Well, it was just a course of inspections done as
any other day and this was just one of the
violations that came through. There might have been
20 or 30 of them done. . . . I saw that [1600 Artic
Avenue] had a repair or demolish [citation], that
looked fine, stamped it and that was it. It didn’t
seem anything out of the ordinary.
(Russo Dep. p. 139)
John Stinsman, the inspector who issued the citation, also
testified as to the citation of 1600 Arctic Avenue:
Q: Can you tell me, is that Garry Alston’s
signature or Garry Alston’s stamp?
A:

Looks like a stamp to me.

Q: When you completed this form . . . what did you
do with it?
A: I kept a copy for my records and then it was
turned in, it was logged, and put in a notice of
violation book.
16 

(Stinsman Dep. p. 61)
Thus, a reasonable factfinder could only conclude that
Russo was acting within the scope of his ordinary employment
duties when he approved the citation of 1600 Artic Avenue.
Therefore, the Court holds that Russo’s speech is not protected
by the First Amendment.
Likewise, a reasonable factfinder could only conclude that
Russo was acting within the scope of his ordinary employment
duties when he sought an opinion from the International Code
Council concerning the exemption granted to the MLK property.
Russo testified, “I’m the contact for the City for the
International Property Maintenance Code.” (Russo Dep. p. 125)
He also testified that he wrote the letter to the International
Code Council, at the direction of his supervisor, Garry Alston.
(Id. at p. 124-25)

Additionally, the letter inquiry was

relatively narrow in scope, insofar as it sought an opinion in
relation to one specific exemption given to one specific
property, and was written solely for the purpose of “find[ing]
out whether or not an exemption should be given.” (Russo Dep. p.
126; Defs’ Ex. G)
The Third Circuit has “held . . . that a claimant’s speech
might be considered part of his official duties if it relates to
special knowledge or experience acquired through his job.” Gorum

17 

v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)(internal citation
and quotation omitted).

A reasonable factfinder could only

conclude on this record that Russo’s special knowledge of, and
experience with applying, the International Property Maintenance
Code was acquired through his decades-long employment in the
Atlantic City Licensing and Inspections Department, and more
specifically, as the City’s contact for the International
Property Maintenance Code.
Moreover, the undisputed fact that Russo wrote the letter
at the direction of his supervisor, while not dispositive, is
one relevant factor further supporting the conclusion that
Russo’s speech was made pursuant to his duties as Supervising
Field Representative, not as a private citizen.

See Foraker v.

Chaffinch, 501 F.3d 231, 243 (3d Cir. 2007) abrogated on other
grounds by Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379
(2011).
Thus, a reasonable factfinder could only conclude that
Russo was acting within the scope of his ordinary employment
duties when he wrote the letter to the International Code
Council.

Therefore, the Court holds that Russo’s speech as it

relates to the MLK property exemption is not protected by the
First Amendment.
Finally, the Court holds that Russo’s grievances concerning
Cox’s two specific personnel decisions occurring within a
18 

relatively short period of time within the Department of
Licensing and Inspections are not a matter of public concern.
“[I]nternal workplace matters and personal grievances . . .
clearly fall outside the sphere of First Amendment protection.”
Garcia v. Newtown Township, 483 F. App’x 697, 703 (3d Cir.
2012).

“‘While the First Amendment invests public employees

with certain rights, it does not empower them to
constitutionalize the employee grievance.’” Abernethy, Jr. v.
Mercer, 532 F. App’x 160, 163 (3d Cir. 2013)(quoting Garcetti
and holding that “workplace complaints about the behavior of
[plaintiff’s] supervisors” were not a matter of public
interest).
Nothing about Russo’s grievances concerning solely his own
job placement “adds to the debate on matters of public
importance.” Borden v. School District of the Township of East
Brunswick, 523 F.3d 153, 170 (3d Cir. 2008); see also Montone v.
City of Jersey City, 709 F.3d 181, 193 (3d Cir. 2013)(“the key
to the ‘public concern’ inquiry is ‘whether expression of the
kind at issue is of value to the process of selfgovernance.’”)(quoting Azzaro v. County of Allegheny, 110 F.3d
968, 977 (3d Cir. 1997)(en banc)).

19 

The Court holds that Russo’s grievances are not speech
protected by the First Amendment because they do not involve an
issue of public concern.7

(2) Additionally, Plaintiff’s evidence fails to support a
finding that Russo’s approval of the 1600 Arctic Avenue citation
was a motivating factor in any of the asserted retaliatory
actions

A factfinder could not reasonably infer on this record that
Defendant Cox knew that Russo approved the citation of 1600
Arctic Avenue.

Russo’s name appears nowhere on the citation;

the document bears only Garry Alston’s signature stamp.

(Defs’

Ex. P)
Russo invites the Court to conclude that Cox must have
known that Russo approved the specific citation for 1600 Artic
Avenue from the solitary fact that Cox was Director of the

7

  Plaintiff’s complaint is clear: Plaintiff only asserts a claim
for violation of his First Amendment free speech rights, not any
First Amendment right to petition. See Compl., Count 1 ¶¶ 1-3.
There being no claim for violation of Plaintiff’s right to
petition, the Court does not address the issue. See Brennan v.
Norton, 350 F.3d 399, 417 (3d Cir. 2003) (“We reject Brennan’s
Petition Clause argument not because the district court required
a showing of a ‘public concern’ analysis, but because Brennan
never made a Petition Clause argument in the district court in
the first place. His only First Amendment claim there was based
on the Speech and Association Clauses. His complaint alleged:
‘the defendants’ acts and conduct described herein deprived
plaintiff of his rights to free speech and free association
under the First Amendment, including but not limited to the
right to speak on matters of public concern, in violation of the
First Amendment to the United States Constitution and 42 U.S.C.
§ 1983.’ There was no reference to the Petition Clause.”).

20 

Department of Licensing and Inspections.

According to Russo,

Cox must have known whether or not his subordinates were in the
office on any given day.
Even assuming arguendo the reasonableness of that
particular inference however,8 Russo’s argument requires an
additional inference.

Not only would Cox need to know that

Alston was out on medical leave on the particular day the 1600
Artic Avenue citation was approved (March 1, 2012), he would
also have to know that Russo used Alston’s signature stamp to
approve that particular citation.

There is absolutely no

evidence in the record to support that additional logical leap.
Contrary to Russo’s argument, the memo from the City’s Business
Administrator, requesting the names of everyone involved in the
citation for the purpose of voiding the Department’s previous
actions (Defs’ Ex. R) does not support such a conclusion.

The

memo directs that names be sent to the Business Administrator,
not Defendant Cox.

Defendant Cox was merely carbon copied on

the memo requesting the names. (Id.)
Cox testified that he did not know that Russo had any
involvement with the citation of 1600 Arctic Avenue (Cox Dep. p.
122), and there is no record evidence supporting an inference to
the contrary.

Accordingly, the record evidence fails to support

8

Cox’s deposition testimony calls into question the
reasonableness of that inference, see supra at p. 4-5, but the
Court need not decide the issue.
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a finding that Cox retaliated against Russo for approving the
citation of 1600 Arctic Avenue.

(3) Defendant Cox having committed no constitutional violation,
Defendant City of Atlantic City has no § 1983 liability
Russo seeks to impose liability on the City of Atlantic
City on the theory that Defendant Cox was a policymaker with
regard to the alleged retaliatory actions that were taken.9
However, absent an underlying constitutional deprivation, there
can be no municipal liability.

See Grazier v. City of Phila.,

328 F.3d 120, 124 (3d Cir. 2003) (“There cannot be an ‘award of
damages against a municipal corporation based on the actions of
one of its officers when in fact the jury has concluded that the
officer inflicted no constitutional harm.’”)(quoting City of Los
Angeles v. Heller, 475 U.S. 796, 799 (1986)).
Accordingly, summary judgment will be granted to Defendant
City of Atlantic City on the First Amendment retaliation claims.

B.
The Third Circuit has repeatedly stated, “‘where the claim
over which the district court has original jurisdiction is

9

The Court makes no ruling on whether Defendant Cox actually
was, as a matter of law, a policymaker. Notably, Russo
testified that the “appointing authority,” at least for the
position of Chief Field Representative, was not Defendant Cox,
but rather the Mayor of Atlantic City. (Russo Dep. p. 245-47)
22 

dismissed before trial, the district court must decline to
decide the pendent state law claims unless considerations of
judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.’”

Hedges v.

Musco, 204 F.3d 109, 123 (3d Cir. 2000)(citing 28 U.S.C. §
1367(c)(3), and quoting Borough of West Mifflin v. Lancaster, 45
F.3d 780, 788 (3d Cir. 1995))(emphasis added); cf. Sarpolis v.
Tereshko, 625 F. App’x 594, 600 (3d Cir. 2016)(affirming
district court’s retention and exercise of supplemental
jurisdiction under § 1367(c)(3) because the district court had
“an affirmative justification for exercising supplemental
jurisdiction.”)(quoting Hedges).
There appears to be no affirmative justification for
retention of jurisdiction over the CEPA claims.

However, the

Court will allow the parties an opportunity to show cause why
the CEPA claims should not be dismissed without prejudice
pursuant to 28 U.S.C. § 1367(c)(3).

C.
Lastly, Defendants’ Answer purports to assert a
“counterclaim,” pursuant to 42 U.S.C. § 1988(b), for attorneys
fees associated with the § 1983 claims.

The Court does not

construe this asserted counterclaim as a separate federal claim
for purposes of retaining or declining supplemental
23 

jurisdiction.

Indeed, § 1988 expressly states that attorneys

fees may be “allow[ed]” “as part of the costs” within “any
action or . . .

to enforce a provision of section[] [1983],”

(emphasis added), thus suggesting that a request for attorneys
fees under the statute is not a separate cause of action, or at
least need not be brought as a separate claim or counterclaim.
In the event that the Court does decline to retain
supplemental jurisdiction over the state law claims, Defendants
may still file a motion for fees pursuant to § 1988.

See Local

Union No. 1992 of IBEW v. Okonite Co., 358 F.3d 278, 287 (3d
Cir. 2004)(“As the Supreme Court explained in Budinich v. Becton
Dickinson & Co., [486 U.S. at 199, 202 (1988)] the pendency of a
motion for attorneys’ fees does not preclude entry of a final
judgment. . . . As a result, it is often the case tha[t] an
order embodying a final judgment leaves open the assessment of
attorneys’ fees.

Indeed, Rule 58 contemplates that ‘entry of

the judgment shall not be delayed, nor the time for appeal
extended, in order to tax costs or award fees.’ Fed. R. Civ. P.
58.”); see also White v. N.H. Dep't of Employment Sec., 455 U.S.
445, 452 (1982)(holding that a postjudgment motion for attorneys
fees under § 1988 should be construed as a motion for costs
rather than a motion to alter or amend the judgment).
Accordingly, unless the parties, in response to the order
to show cause, provide an adequate justification for exercising
24 

supplemental jurisdiction over the CEPA claims, the disposition
of this suit will be the following: the Court will (1) enter
final judgment for Defendants on the First Amendment claims; (2)
dismiss without prejudice the CEPA claims; and (3) grant
Defendants leave to file a motion for attorneys fees pursuant to
§ 1988(b) within 60 days of the entry of final judgment.

IV.

Conclusion
For the above-stated reasons, Defendants’ motion for

summary judgment will be granted as to all § 1983 claims.

As to

the remaining CEPA claims, the parties will be ordered to show
cause why those claims should not be dismissed without
prejudice.

An appropriate order accompanies this opinion.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

Dated:_April 14, 2016

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