MARESCA v. THE PORT AUTHORITY OF NY & NJ et al
Filing
160
OPINION. Signed by Judge Esther Salas on 12/27/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
CAROL MARESCA,
:
:
Plaintiff,
:
:
v.
:
:
THE PORT AUTHORITY OF NY & NJ, :
a Bi-state agency, et al.
:
:
Defendants.
:
___________________________________ :
Civil Action 10-1055 (ES) (SCM)
OPINION
SALAS, District Judge
I.
INTRODUCTION
Pending before this Court is Defendants, The Port Authority of NY & NJ (“Port
Authority”), Ernesto Butcher (“Butcher”), Anthony Coscia (“Coscia”), Christopher Ward
(“Ward”), Susan Bass Levin (“Levin”), Louis LaCapra (“LaCapra”), and Mary Lee Hannell’s
(“Hannell”) (collectively, “Defendants”) motion for summary judgment. (Defs.’ Mem. of Law
in Supp. of Their Mot. For Summ. J. Pursuant to Fed. R. Civ. P. 56 (“Defs.’ Mov. Br.”), D.E.
No. 153).1 Plaintiff Carol Maresca (“Plaintiff” or “Maresca”) opposes the motion. (Pl.’s Br. in
Opp’n to Mot. For Summ. J. (“Pl. Opp. Br.”), D.E. No. 154). The Court has considered the
parties’ submissions made in support of and in opposition to the instant motion.2 This Court has
1
The Court notes that Defendant Paul Blanco has not joined in this motion, and as a result, is not subject to the
rulings made in this Opinion.
2
On April 17, 2012, Defendants filed a reply brief. (Defs.’ Reply Mem. of Law in Further Supp. of Their Mot. For
Summ. J. Pursuant to Fed. R. Civ. P. 56 (“Defs.’ Reply Br.”), D.E. No. 155). The Court received two sur-replies
from Plaintiff, (D.E. Nos. 156, 157), as well as a response letter from Defendants, (D.E. No. 158), and a reply letter
from Plaintiff, (D.E. No. 159). This Court will not consider these letters, because they were filed without leave of
Court. See L. Civ. R. 7.1(d)(6) (“No sur-replies are permitted without permission of the Judge or Magistrate Judge
to whom the case is assigned.”).
1
jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). The Court decides
the motion on the papers without oral argument under Federal Rule of Civil Procedure 78(b).
For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED in
part and DENIED in part.
II.
BACKGROUND
Plaintiff worked for the Port Authority for approximately 25 years. (Pl.’s Resp. to Defs.’
L. Civ. R. 56.1 Statement of Facts (“Pl. SMF”) ¶ 1, D.E. No. 154-44). In May 2004, the Port
Authority promoted Plaintiff to Assistant Director of Administration of its Public Safety
Department (“PSD”) and increased her salary from $106,000 to $123,000. (Id. ¶ 12). As
Assistant Director of Administration, the Port Authority provided Plaintiff with an agency
vehicle and gas charge card. (Pl.’s First Am. & Supp’l Compl. (“Pl.’s Am. Compl.”) ¶ 16, D.E.
No. 67). In February 2005, Plaintiff received a promotion supplement, which brought her salary
to $135,000. (Pl. SMF ¶ 12). In June of 2005, Plaintiff’s salary increased to approximately
$145,000 when the Port Authority promoted her to Deputy Director of PSD. (Id. ¶ 13). A year
later, she received a merit salary increase that brought her salary to approximately $152,000. (Id.
¶ 13). In May 2007, Plaintiff’s salary increased to approximately $160,000. (Id.).
In August 2007, the Port Authority promoted Plaintiff to Deputy Director of PSD/Deputy
Superintendent, Port Authority Police Department (“PAPD”), and her salary increased to
$165,594. (Id. ¶ 14; Ex. E to Cert. of Rosemary Alito in Support of Defs.’ Mot. for Summ. J.
(“Alito Cert.”) at D 000000045). Among other things, as Deputy Director of PSD/Deputy
Superintendent, Plaintiff was “responsible for implementing and administering policies and
programs as well as managing the administrative functions that support the police and PSD.”
(Pl. SMF ¶ 18). One year later, Plaintiff received a merit increase that brought her salary to
2
$171,392. (Pl. SMF ¶ 15; Ex. E to Alito Cert. at D 000000045). Plaintiff did not receive a merit
increase in 2009. (Pl. SMF ¶ 16; Ex. E to Alito Cert. at D 000000045).
In June 2009, LaCapra, Ward, Blanco, Levin, and Butcher held a meeting in which they
discussed their concerns about the performance of the PSD. (Pl. SMF ¶ 20). Then, on June 23,
2009, Butcher advised Plaintiff that she was being reassigned to a newly-created Deputy Director
position in the Technology Services Department (“TSD”). (Id. ¶ 26). She was also transferred
to a small office (previously held only by lower management), and was directed to return her
agency vehicle. (Id. ¶¶ 29, 30; Cert. of Carol Maresca (“Maresca Cert.”) ¶¶ 26, 27, D.E. No.
154-22).
Plaintiff protested the reassignment, “asserting that her involuntary transfer was
discriminatory, based on her sex.” (Pl. SMF ¶ 37; Pl.’s Am. Compl. ¶ 29). Plaintiff claims that
the reassignment “was so emotionally stressful and painful to her that it so severely aggravated
her rheumatoid arthritis condition that” her doctor advised her not to report to work in her new
position. (Pl.’s Am. Compl. ¶ 30). Plaintiff last reported to work at the Port Authority on or
about July 5, 2009 and went on extended medical leave. (Pl. SMF ¶ 38).
In July 2009, the Port Authority transferred Cifelli to Plaintiff’s former position, Deputy
Director PSD/Deputy Superintendent of PAPD. (Pl. SMF ¶ 47). Cifelli had been employed by
the Port Authority since 2003. (Id. ¶ 49). Plaintiff alleges that Cifelli’s salary was $209,768,
which was approximately $38,000 more than Plaintiff last made in the same position. (Pl. Opp.
Br. 8; Ex. P to Decl. of Gary Trachten in Opp. to Defs.’ Mot. for Summ. J. (“Trachten Decl.”)).3
3
Defendants state that Cifelli’s salary in this position was $208,768. (Def. Mov. Br. 14). The Court does not find
the difference between $209,768 and $208,768 germane to its ruling. The Court notes, for purposes of deciding
Defendant’s motion, that Cifelli made approximately $38,000 or $37,000 more than Plaintiff did in her last position
at the Port Authority.
3
In September 2009, Plaintiff filed a charge alleging sex discrimination against the Port
Authority with the United States Equal Employment Opportunity Commission (“EEOC”). (Pl.’s
Am. Compl. ¶ 32). Port Authority was advised of the charge in October 2009. (Pl.’s Am.
Compl. ¶ 33).
In September 2010, Cifelli resigned from the Port Authority and Gerarld Speziale
(“Speziale”) joined the Port Authority earning a salary of $198,510. (Pl. SMF ¶¶ 60, 63). In
January 2011, Superintendent Michael Fedorko (“Fedorko”) announced a reorganization with
PSD. (Id. ¶¶ 66, 70).
Plaintiff filed her initial Complaint on March 3, 2010, (D.E. No. 1), and amended her
Complaint on February 8, 2011, (D.E. No. 67). In her Amended Complaint, Plaintiff asserted
that Defendant Port Authority violated her rights under the Equal Pay Act of 1963 (“EPA”), 29
U.S.C. §§ 206(d)(1) and 215(a)(3). (Pl.’s Am. Compl. ¶¶ 63-69). Plaintiff also asserted that
Defendants violated her rights under the United States Constitution pursuant to 42 U.S.C. §
1983. (Pl.’s Am. Compl. ¶¶ 70-82). Defendants filed the instant motion seeking summary
judgment on April 13, 2012.
III.
Legal Standard
Summary judgment is appropriate “where the pleadings, depositions, answers to
interrogatories, admissions, and affidavits show there is no genuine issue of material fact and that
the moving party is entitled to judgment as a matter of law.” Azur v. Chase Bank, USA, Nat’l
Ass’n, 601 F.3d 212, 216 (3d Cir. 2010) (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir.
2000) (en banc) (citing Fed. R. Civ. P. 56)). “To be material, a fact must have the potential to
alter the outcome of the case.” DeShields v. Int’l Resort Props. Ltd., 463 F. App’x 117, 119 (3d
Cir. 2012) (citation omitted). “Once the moving party points to evidence demonstrating no issue
4
of material fact exists, the non-moving party has the duty to set forth specific facts showing that
a genuine issue of material fact exists and that a reasonable factfinder could rule in its favor.”
Azur, 601 F.3d at 216. “In determining whether summary judgment is warranted ‘[t]he evidence
of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’”
DeShields, 463 F. App’x at 119 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)).
IV.
Discussion
In the instant action, Plaintiff asserts that Defendant Port Authority violated her rights
under the Equal Pay Act of 1963 (“EPA”), 29 U.S.C. §§ 206(d)(1) and 215(a)(3) (First Count).
(Pl.’s Am. Compl. ¶¶ 63-69). Plaintiff also asserts that Defendants violated her rights under First
and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983
(Second Count). (Pl.’s Am. Compl. ¶¶ 70-82).
Below, the Court finds that genuine issues of
material fact exist as to Plaintiff’s EPA claim under § 206(d)(1) and her Equal Protection claim
under § 1983.4 The Court, however, also concludes that no genuine issues of material fact exist
and that the moving party is entitled to judgment as a matter of law as to Plaintiff’s retaliation
claim under 29 U.S.C. § 215(a)(3), as well as Plaintiff’s First Amendment right to petition and
Due Process claims under 42 U.S.C. § 1983.
A. Equal Pay Act Claims
i. EPA, 29 U.S.C. § 206(d)(1)
a. Prima Facie Case of Discrimination Under the EPA
In Count One of Plaintiff’s Amended Complaint, Plaintiff claims that the Port Authority
paid her less than male employees for substantially equal work on account of her gender, in
4
The Court reserves on the limited issue of the Port Authority’s individual liability under § 1983.
5
violation of the EPA, 29 U.S.C. § 206(d)(1). (Pl.’s Am. Compl. ¶ 65). The EPA states, in
relevant part:
No employer having employees subject to any provisions of this
section shall discriminate, within any establishment in which such
employees are employed, between employees on the basis of sex
by paying wages to employees in such establishment at a rate less
than the rate at which he pays wages to employees of the opposite
sex in such establishment for equal work on jobs the performance
of which requires equal skill, effort, and responsibility, and which
are performed under similar working conditions, except where
such payment is made pursuant to (i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity
or quality of production; or (iv) a differential based on any other
factor other than sex: Provided, That an employer who is paying a
wage rate differential in violation of this subsection shall not, in
order to comply with the provisions of this subsection, reduce the
wage rate of any employee.
29 U.S.C. § 206(d)(1) (emphasis in original). To establish a prima facie case of discrimination
under the EPA, a plaintiff must show that (1) employees of opposite genders were paid unequally
(2) for equal “work of substantially equal skill, effort and responsibility,” (3) “under similar
working conditions.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974); Stanziale v.
Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000).
The pertinent issue is not the “name under which the position was classified but what was
actually done.” Brobst v. Columbus Servs. Int’l, 761 F.2d 148, 155 (3d Cir. 1985). “The crucial
finding on the equal work issue is whether the jobs to be compared have a common core of tasks,
i.e., whether a significant portion of the two jobs is identical.” Id. at 156 (internal quotation
marks omitted); Usery v. Allegheny Cnty. Inst. Dist., 544 F.2d 148, 152 (3d Cir. 1976), cert.
denied, 430 U.S. 946 (1977). If a court determines that the jobs share a common core of tasks,
“[t]he inquiry then turns to whether the differing or additional tasks make the work substantially
different.” Brobst, 761 F.2d at 156.
6
In determining whether the jobs are similar, courts consider whether the tasks “require
similar quality and quantity of production, education, relevant prior work experience, conduct
and skill.” Dubowsky v. Stern, Lavinthal, Norgaard & Daly, 922 F. Supp. 985, 990 (D.N.J.
1996) (citing 29 C.F.R. § 1620.13). Courts should only consider the qualifications and skills
necessary to perform the job, not the specific qualifications of the employees who occupy the
positions. Cox v. Office of Attorney Ethics of the Supreme Court of N.J., No. 05–1608, 2006 WL
3833470, at *6 (D.N.J. Dec. 29, 2006); Hodgkins v. Kontes Chemistry & Life Scis. Prod., No.
98–2783, 2000 WL 246422, at *15 (D.N.J. Mar. 6, 2000) (observing that focus of inquiry is on
job, not a comparison of individual abilities of employees). Courts should further rely on “actual
job performance and content rather than job descriptions.” Heller v. Elizabeth Forward Sch.
Dist., 182 F. App’x 91, 95 (3d Cir. 2006). Ultimately, “because of the heavily fact-driven
character of the inquiry, substantial equality must be determined on a case-by-case basis.” Id.
Plaintiff identifies Cifelli and Speziale as comparators for EPA purposes. The Court
finds that issues of fact exist as to whether Plaintiff and her two comparators performed “work of
substantially equal skill, effort and responsibility.” Stanziale, 200 F.3d at 107. Plaintiff claims
that the “dual position of Deputy Director Public Safety/Deputy Superintendent Port Authority
Police as occupied by both plaintiff and Arther Cifelli were equal and/or substantially equal in
skill, effort and responsibility.” (Reply to Pl.’s Resp. to Defs.’ L. Civ. R. 56.1 Statement &
Resp. to Pl.’s Suppl. Statement Pursuant to L. Civ. R. 56.1 (“Defs.’ SMF Resp.”) 30 ¶ 1).5 The
Port Authority admits that Cifelli succeeded Plaintiff in the same title but dispute that Cifelli’s
role was “substantially equal in skill, effort and responsibility” by submitting organizational
5
In an improper sur-reply, Plaintiff objects to Defendants’ reply statements to Plaintiff’s Response to Defendants’
Local Rule 56.1 Statement in a sur-reply. The Court need not rule on whether Defendants’ reply statements were
proper. Notwithstanding, the Court only relies on Defendants’ Response to Plaintiff’s Supplemental Statement of
Disputed Material Facts and finds that the reply statements are not dispositive.
7
reporting structure charts under both Plaintiff and Cifelli’s leadership. (Id.; Ex. O to Trachten
Decl.).
The organizational charts reveal that Plaintiff and Cifelli may have different job
responsibilities. (Ex. O to Trachten Decl.). Although both Plaintiff and Cifelli occupied the
same dual title, the organizational chart under Cifelli has been restructured and eliminates certain
responsibilities. (Id.; see also Maresca Cert. ¶ 11). The Port Authority explains that Cifelli’s job
“focused on police operations and security whereas plaintiff’s job responsibilities were primarily
administrative in nature.”
(Ex. O to Trachten Decl.; Defs.’ Reply Br. 2).
Under these
circumstances, the Court finds that there are disputed questions of fact whether Plaintiff and
Cifelli performed equal work. See, e.g., Cox, 2006 WL 3833470, at *4 (denying summary
judgment on an EPA claim where questions of fact existed as to whether the work was
substantially equal).
As to Speziale, the Port Authority asserts that Speziale’s position and responsibilities
were different as Deputy Superintendent of PAPD and that he was responsible for uniform staff,
certain civilian staff in the police department and overall police activities. Specifically, the job
was reflective of Speziale’s extensive law enforcement background and skills that Plaintiff did
not possess. (Pl. SMF ¶¶ 64, 66).
Plaintiff asserts that Speziale had additional job
responsibilities that made their jobs similar and that he initially succeeded to the same duties and
responsibilities that had been Cifelli’s until Superintendent Michael Fedorko (“Fedorko”)
announced a reorganization within the PSD in January 2011. (Id. ¶¶ 66, 70).
Thus, as with
Cifelli, the Court finds that material issues of fact exist, precluding summary judgment.
8
b. Affirmative Defenses Under the EPA
Although the Court finds there are issues of material fact, the Court will still consider
whether the Defendant proved at least one affirmative defense.6 Once a plaintiff establishes her
prima facie case, the burden of persuasion shifts to the employer to demonstrate that the
differential payments were made pursuant to at least one of four affirmative defenses specified in
the EPA. Stanziale, 200 F.3d at 107 (citations omitted). The four affirmative defenses are: “(i)
a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or
quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. §
206(d)(1). “Acceptable factors other than sex include education, experience, prior salary, or any
other factor related to performance of the job.” Dubowsky, 922 F. Supp. at 990. At this stage of
the inquiry, the Court may compare the abilities and qualifications of the particular employees
who filled the jobs. Id.
On summary judgment, “the employer must prove at least one affirmative defense so
clearly that no rational jury could find to the contrary.” Stanziale, 200 F.3d at 107 (internal
quotation marks and citation omitted). Consequently, “an employer must submit evidence from
which a reasonable factfinder could conclude that the proffered reasons actually motivated the
wage disparity.” Id. at 108.
Evidence that merely “could explain the wage disparity” is
insufficient; rather “the proffered reasons” must “explain the wage disparity.” Id. at 107–08
6
Plaintiff argues that the Port Authority waived its EPA affirmative defenses by failing to timely plead them in the
initial Answer or by seeking leave of Court. (Pl. Opp. Br. 28-31). Defendant argues that they did not waive their
affirmative defenses to the EPA claim because it timely pled the defense in its initial Answer by asserting that
Defendant’s actions were taken for legitimate business reasons, and then again with more specificity in its Answer
to the Plaintiff’s First Amended Complaint. (Defs.’ Reply Br. 9-12). Defendant also contends that Plaintiff
previously raised this issue before Judge Patty Shwartz and the Court permitted contention interrogatories to cure
any claim of lack of notice. (Id. at 10-11; Ex. D to Reply Cert. of Rosemary Alito, Esq. in Further Support of Defs.’
Mot. for Summ. J. (“Reply Alito Cert.”) at 25:5-26:13). The Court finds Plaintiff’s argument tenuous because
Plaintiff previously raised this issue, the Court permitted additional interrogatories to ameliorate any claim of lack of
notice of the affirmative defenses, and Plaintiff did not object.
9
(emphasis in original). If defendants succeed in proving at least one affirmative defense, the
plaintiff may yet rebut the defense by offering evidence that the nondiscriminatory justification
is a pretext for discrimination. Dubowsky, 922 F. Supp. at 990.
This Court finds that questions of fact exist as to whether there were reasons other than
gender that determined the salary differential. The Port Authority defends its conduct by arguing
that the salary differential between Plaintiff and Cifelli is due to the Port Authority’s policy of
allowing employees to retain their salaries when transferred to a different department. (Defs.’
Mov. Br. 14; Pl. SMF ¶ 55). Plaintiff asserts that no written policy has ever been produced, that
Port Authority’s own witnesses have acknowledged that no policy can be found in any
documents, and that evidence suggests that this was an ad hoc practice. (Pl. Opp. Br. 8-10; Pl.
SMF ¶¶ 55, 56). Plaintiff contends that Cifelli’s salary could not be explained solely by the Port
Authority’s salary retention policy because the Port Authority had reduced Cifelli’s salary once
before in 2005. (Pl. Opp. Br. 9-10; Ex. P to Trachten Decl.). Plaintiff also argues that Cifelli’s
reassignment was voluntary and not subject to this alleged policy. In addition, Plaintiff claims
that this policy does not exist because Levin sought to confirm that Plaintiff would retain her
salary when Plaintiff was transferred. The Court finds that genuine issues of material fact exist
because (1) the existence of a true policy, as opposed to an ad hoc practice, is unclear, and (2)
the existence of a policy like the one the Port Authority describes could potentially serve as a
proper defense to Plaintiff’s EPA claim using Cifelli as a comparator. Accordingly, summary
judgment is denied as to this claim.
As to Speziale, the Port Authority argues that he was “compensated at a rate in
recognition of his salary history, experience in law enforcement, public safety and suitability for
the position—all of which were unrelated to gender.” (Def. Reply Br. 26; Pl. SMF ¶ 64). In
10
opposition, Plaintiff argues that “[i]nterrogatory responses and the deposition testimony of
Hannell claim that Speziale was a political appointee and that his salary was dictated by the New
Jersey Governor’s office. However, Speziale testified that he applied for the job without political
sponsorship and negotiated his own salary directly.” (Pl. Opp. Br. 11; Pl. SMF ¶ 64). The Court
finds that genuine issues of material fact exist as to whether the proffered reasons actually
motivated the wage disparity. Therefore, summary judgment is denied as to this claim.
Accordingly, the Court will deny Port Authority’s motion for summary judgment as it
relates to the Equal Pay Act claim under 29 U.S.C. § 206(d)(1).
ii. Retaliation Claim Under EPA, 29 U.S.C. § 215(a)(3)
In her Amended Complaint, Plaintiff claims that the Port Authority (1) withheld a merit
increase based on Plaintiff’s 2008-2009 performance, (2) took away her automobile benefits, and
(3) did not reassign Plaintiff to the vacancy created by Cifelli’s departure in August 2010,
because Plaintiff complained of sex discrimination, in violation of the EPA, 29 U.S.C. §
215(a)(3). (Pl.’s Am. Compl. ¶¶ 53, 58, 67). The Court notes that Plaintiff does not address
Defendant’s argument as to this claim.
Notwithstanding Plaintiff’s silence, “[i]n order to establish a prima facie case of illegal
retaliation under the anti-discrimination statutes, a plaintiff must show: (1) protected employee
activity; (2) adverse action by the employer either after or contemporaneous with the employee’s
protected activity; and (3) a causal connection between the employee's protected activity and the
employer's adverse action.” Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759 (3d
Cir. 2004) (internal quotations marks and citations omitted). If the plaintiff establishes a prima
facie case, the burden shifts to the defendant to produce a “legitimate, non-discriminatory
reason” for its actions. Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006). Thereafter, to
11
defeat summary judgment, “the plaintiff must point to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than
not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1994).
The Port Authority contends that Plaintiff cannot prove causation with regard to the
denial of a merit increase in 2009 because such denial occurred before she submitted her
complaint to the EEOC in the fall of 2009 and before she filed this lawsuit in March 2010.
(Defs.’ Mov. Br. 28). Plaintiff does not address this attack on causation—presumably because
she cannot. Indeed, Plaintiff filed her complaint with the EEOC in September 2009—after she
was denied the merit increase. Additionally, the Port Authority was notified of the complaint in
October 2009. The Court, therefore, grants summary judgment in favor of the Port Authority as
to the portion of Plaintiff’s retaliation claim that concerns the merit denial in 2009.
Next, the Port Authority contends that the revocation of Plaintiff’s vehicle similarly fails
because she was asked to return her vehicle in June 2009—before she filed her EEOC complaint
and the Port Authority was notified of the charges. (Id. 29). Again, Plaintiff does not address,
let alone oppose, the Port Authority’s argument as to the vehicle perks. The Court grants
summary judgment in favor of the Port Authority as to the portion of Plaintiff’s retaliation claim
that concerns the revocation of the vehicle and gas card benefits.
Finally, the Port Authority argues that the decision not to reassign Plaintiff to the vacancy
created by Cifelli’s departure in August 2010 was the result of Plaintiff’s impropriety for that
role. The Port Authority contends that Plaintiff had been removed from that position roughly
one year earlier in order to “effectuate a management change and new direction.” (Id. 29-30).
12
She was not reassigned to that position upon Cifelli’s departure because “the Deputy
Superintendent position took on an operational (versus administrative) dimension and was filled
by someone with extensive law enforcement experience.”
(Id. 30).
Plaintiff has no law
enforcement background, and, therefore, she was not qualified for the job as restructured in
2010. (Id.). Again, Plaintiff does not address, let alone oppose, the Port Authority’s argument as
to the vacancy and reassignment. The Court grants summary judgment in favor of the Port
Authority as to the portion of Plaintiff’s retaliation claim that concerns the Port Authority’s
decision not to reassign her to the vacancy left by Cifelli.
Because the material facts are undisputed, Plaintiff’s retaliation claim fails as a matter of
law.
B. Section 1983 Claims
To establish a section 1983 civil rights claim, a plaintiff must demonstrate that the
conduct complained of was committed by a person acting under state law and that the conduct
deprived him of federal rights, privileges or immunities secured by the Constitution. Gomez v.
Toledo, 446 U.S. 635, 640 (1980); Torres v. Davis, No. 12-3068, 2012 WL 6019090, at *2 (3d
Cir. Dec. 4, 2012). In Count Two of Plaintiff’s Amended Complaint, Plaintiff asserts that
Defendants violated § 1983 by infringing on her First Amendment right to petition and her Due
Process and Equal Protection rights under the Fourteenth Amendment. (Pls.’ Am. Compl. ¶¶ 7082). Defendants do not dispute that they were acting under the color of state law. Therefore, the
Court considers whether there is a genuine issue of material fact as to the alleged violations of
the First and Fourteenth Amendments.
13
i. Petition Clause
In Count Two of the Amended Complaint, Plaintiff contends that Defendants violated §
1983 by violating her First Amendment right to petition the Government for a redress of
grievances. (Pls.’ Am. Compl. ¶¶ 70-82). Specifically, she asserts that Defendants retaliated
against her for filing a lawsuit and an EEOC charge. To establish a First Amendment retaliation
claim, based upon the Petition Clause, a plaintiff must prove (1) that the First Amendment
protected the conduct, (2) that a state actor responded with a retaliatory action, and (3) that the
protected activity was a substantial motivating factor in the retaliation. Warwas v. City of
Plainfield, No. 11-1736, 2012 WL 3024423, at *3 (3d Cir. July 25, 2012); Brightwell v. Lehman,
637 F.3d 187, 194 (3d Cir. 2011). Plaintiff cannot prove that her EEOC complaint in the fall of
2009 or her filing of this lawsuit in March 2010 were substantial motivating factors in the alleged
retaliation. Her reassignment and denial of merit increase took place before she filed the EEOC
complaint and this lawsuit. (Defs.’ Mov. Br. 28). Because Plaintiff fails to cite to any material
facts from which a factfinder could find retaliation, Plaintiff’s Petition Clause claim fails as a
matter of law.7
ii. Due Process Rights
Plaintiff also contends that Defendants violated § 1983 by violating her Due Process
rights under the Fourteenth Amendment. (Pl.’s Am. Compl. ¶¶ 70-82). Defendants argue that
Plaintiff “has no property right or liberty interest in the Deputy Director position to render it
protected by substantive or procedural due process” because at-will employees have no property
7
The parties argue over whether Plaintiff’s claim is foreclosed by Borough of Duryea, Pa. v. Guarnieri, __U.S.__,
131 S. Ct. 2488, 2500 (2011) and specifically whether Plaintiff must demonstrate that her underlying “petition”
relates to a matter of public concern. (Defs.’ Mov. Br. 32-33; Pl. Opp. Br. 36-41; Defs.’ Reply Br. 13-17). The
Court does not need to address this issue because it finds that her EEOC complaint and the instant lawsuit could not
have been a contributing factor in the alleged retaliation.
14
interest in their jobs and employment decisions short of termination never involve protectable
property interests. (Defs.’ Mov. Br. 33-35).
Plaintiff does not address, let alone oppose,
Defendants’ arguments on Due Process.
To prevail on a substantive due process claim, “a plaintiff must establish as a threshold
matter that he has a protected property interest to which the Fourteenth Amendment’s due
process protection applies.” Nicholas v. Pa. State Univ., 227 F.3d 133, 139-40 (3d Cir. 2000).
In Nicholas, the Third Circuit stated that public employment, unlike real property interests, is not
a fundamental right worthy of substantive due process protection. Id. at 142-43; see also Bishop
v. Wood, 426 U.S. 341, 349 (2000) (observing that “Due Process Clause of the Fourteenth
Amendment is not a guarantee against incorrect or ill-advised personnel decisions” and
employment decision short of termination are not protectable property interests); Piecknick v.
Pennsylvania, 36 F.3d 1250, 1259 (3d Cir. 1994) (“It is the liberty to pursue a calling or
occupation, and not the right to a specific job, that is secured by the Fourteenth Amendment.”)
(internal quotation marks and citation omitted). Similarly, a procedural due process violation is
also dependent upon a denial of a constitutionally-protected interest, which does not exist here.
Piecknick, 36 F.3d at 1256. Accordingly, the Court grants summary judgment in favor of
Defendants on the Due Process claim.
iii. Equal Protection Rights
Plaintiff further avers that Defendants violated § 1983 by violating her Equal Protection
rights under the Fourteenth Amendment.
(Pl.’s Am. Compl. ¶¶ 70-82).
Plaintiff’s Equal
Protection Clause claim via § 1983 is analyzed using the framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See id. at 800 (“The critical issue before us
concerns the order and allocation of proof in a private, non-class action challenging employment
15
discrimination.”); Stewart v. Rutgers, the State Univ., 120 F.3d 426, 431-32 (3d Cir. 1997).
Plaintiff must first establish a prima facie case of gender discrimination. McDonnell Douglas
Corp., 411 U.S. at 802. Once plaintiff has established a prima facie case, the burden shifts to the
defendant to “articulate some legitimate, nondiscriminatory reason” for the action taken. Id. If
the defendant makes this showing, the burden shifts back to the plaintiff to demonstrate that the
stated reason is merely a pretext for discrimination.
Id. at 804.
The ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981).
To make out a prima facie claim for employment discrimination, a plaintiff must show:
“(1) she belongs to a protected class, (2) she was qualified for the position in question, (3) she
was subjected to an adverse employment action, and (4) the existence of circumstances which
give rise to an inference of prohibited discrimination.” See Wood v. Univ. of Pittsburgh, 395 F.
App’x 810, 814 (3d Cir. 2010) (citations omitted). To make a prima facie case of gender
discrimination under the Equal Protection Clause, plaintiff must show purposeful discrimination.
Andrews v. Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990). Plaintiff must prove that she
“‘receiv[ed] different treatment from that received by other individuals similarly situated’ and
that the disparate treatment was based upon her gender.” Id. (citation omitted).
Defendants argue that Plaintiff’s prima facie case fails because (1) “a lateral transfer with
no change in salary does not constitute an adverse employment action[,]” and (2) there is no
evidence that any of the individual defendants “treated plaintiff differently from similarly
situated males because she was a female.” (Defs.’ Mov. Br. 36).
16
Plaintiff contests that her reassignment was not merely a lateral transfer. (Id. 36-38).
Specifically, Plaintiff cites to testimony by Levin that she knew that Plaintiff would, as Deputy
Director of the TSD, operate in a “smaller department,” with a “smaller budget,” and would
“seem to [Levin] to be somewhat less demanding.” (Ex. H to Tracten Decl. at 77; Defs.’ SMF
Resp. 32-33 ¶¶ 3-4; Pl. SMF ¶¶ 29, 30; Maresca Cert. ¶¶ 26, 27). Further, Plaintiff contends that
the position in TSD was created for Plaintiff, as evidenced by the absence of the Deputy Director
position in the 2006 and 2007 budget statements. (Ex. T to Trachten Decl.; Defs.’ SMF Resp. 31
¶ 2). Although Plaintiff acknowledges that her salary did not change, she argues that her
automobile perk was taken away – “resulting in a reduction in her compensation.” (Pl. Opp. Br.
44). Further, Plaintiff contends that the “Port Authority’s own documentation showed the job to
which she was being transferred as comparable not to her dual position in PSD, but rather her
earlier Assistant Director PSD position.” (Id. 44-45; Ex. H to Maresca Cert. ¶¶ 38-39). Plaintiff
contends that this matter should be sent to a jury because there is a genuine issue of fact as to
whether Plaintiff’s transfer was adverse.
Defendants contend that none of the purported actions taken against Plaintiff are truly
adverse. (Defs.’ Reply Br. 17-18). Defendants provide several non-discriminatory reasons for
Plaintiff’s transfer. First, transfers of males and females at the executive level routinely occurred
at the Port Authority to fulfill agency needs. Second, Cifelli—who previously held very highlevel positions at the Port Authority—was paid more than Plaintiff because of the Port
Authority’s policy to maintain executives’ salaries upon a transfer. (Pl. SMF ¶ 55; Defs.’ Mov.
Br. 38). Third, Speziale’s law enforcement experience—which Plaintiff did not have—“enabled
him to perform a completely different job than plaintiff (and Mr. Cifelli), as envisioned by
Superintendent Fedorko and Port Authority Executives.” (Pl. SMF ¶ 64; Defs.’ Mov. Br. 38-39).
17
Defendants explain that Plaintiff was transferred because of her alleged failure to respond to
overtime control and other budgetary matters articulated by executives, and because of a need for
her in TSD. (Pl. SMF ¶¶ 20, 22-25, 28, 32-36).
Plaintiff argues that the reasons provided by Defendants are mere pretext. Specifically,
she argues that (1) there is a “complete dearth of any documented criticism of Maresca’s
performance in PSD,” (2) only weeks before her transfer, Butcher complemented Maresca in an
email on the work she had done on overtime issues, (3) former Inspector Preston Fucci explained
that the Executive Director complemented the work performed by the unit created for overtime
control, and (4) that she had not been alerted to any claim of substandard performance of the
issue. (Pl. Opp. Br. 45-46). Specifically, Plaintiff claims that Defendants never told her that:
(1) her job performance was deficient, (2) there were problems relating to overtime, (3) she
failed to implement their recommendations, or (4) she needed to change the “mission” of the
PSD. (Pl. SMF ¶¶ 21-23; Maresca Cert. ¶¶ 13, 14, 17, 21). On the contrary, Plaintiff notes that
she received only positive feedback and, in fact, “overtime was cut by almost ten million dollars
in the first eight months of 2009” before she was transferred, which reflected a 25% decrease
from 2008 to 2009. (Maresca Cert. ¶¶ 13, 14, 17, 21). Fucci’s certification “shows a high level
of planning and progress with respect to reduction of overtime and overtime expense in the PSD
during the more than 6 months just prior to Maresca’s removal.” (Id. 46; Pl. SMF ¶¶ 21, 23;
Certification of Preston Fucci (“Fucci Cert.”)8 ¶¶ 3-5, 7-15, 17-18, D.E. No. 154-33). Further,
Inspector Fucci stated that Cifelli demonstrated a lack of knowledge about the overtime
challenges in PSD. (Pl. Opp. Br. 46-47; Fucci Cert. ¶ 16).
8
Defendants state that Plaintiff never produced the documents attached to Fucci’s Certification. This Court finds it
sufficient to rely on the Certification of Preston Fucci, which raises issues for the factfinder.
18
The Court finds that a genuine issue of material fact does exist as to whether an adverse
employment decision was made against Plaintiff.
Although Plaintiff received the same
compensation in the TSD position and held the same title, she offers the testimony of Levin who
describes the TSD position as being essentially less desirable because TSD was a “smaller
department,” with a “smaller budget,” and was “less demanding.” Goosby v. Johnson & Johnson
Med., Inc., 228 F.3d 313, 319 (3d Cir. 2000) (genuine issue of material fact existed where
Plaintiff’s new position had equivalent compensation and the opportunity for advancement and
promotions were the same as other positions, but Plaintiff believed her position was the least
desirable because it dealt in new markets).
The Court further finds that there are genuine issues of material fact as to Defendants’
motives in assigning Plaintiff to the TSD role. Id. at 321 (“In an employment discrimination
case ‘a trial court must be cautious about granting summary judgment to an employer when, as
here, its intent is at issue.’”) (citation omitted).
Plaintiff’s evidence calls into question
Defendants’ proffered reasons for transferring Plaintiff. Reviews of her work on the overtime
issue and performance in general prior to her transfer are conflicting and, therefore, this matter
should be resolved by a jury. (Pl. SMF ¶¶ 21-23; Defs.’ SMF Resp. 30 ¶ 5; Maresca Cert. ¶¶ 13,
14, 17, 21). For example, although Defendants offer evidence indicating that executives were
unhappy with Plaintiff’s performance on the overtime issue, Plaintiff counters with evidence that
only weeks before her transfer, Butcher complemented her in an email on the work she had done
on overtime issues and former Inspector Fucci submitted that the Executive Director
complemented the work performed by the unit created for overtime control.
summary judgment is denied as to the Equal Protection claim.
19
Accordingly,
iv. Section 1983 Liability as to the Port Authority and the Individual
Defendants
Plaintiff asserts that the Port Authority9 and individual Defendants may be held
individually liable under § 1983. (Pl’s. Am. Compl. ¶¶ 80-81). Defendants disagree. (Defs.’
Mov. Br. 40-43). With respect to the individual defendants, “‘[a] defendant in a civil rights
action must have personal involvement in the alleged wrongs [whether] by ‘personal direction or
. . . actual knowledge and acquiescence.’” Shipman v. S. Brunswick Twp., No. 07-1107, 2010
WL 1372297, at *3 (D.N.J. Mar. 31, 2010) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988).
Defendants argue that Plaintiff offers no evidence that the individual
Defendants—specifically Ward, Bass Levin, Butcher and LaCapra—had a specific intent to deny
her constitutional rights because she is a woman. As to Coscia and Hannell, Defendants claim
that they were not involved in the decision to transfer Plaintiff, and that Plaintiff does not even
contend that Coscia or Hannell treated her unfairly because of her gender.
As to Defendants Ward, Levin, Butcher and LaCapra, the record shows that they were
involved in the decision to transfer Plaintiff and issues of fact exist as to whether their motive
and intent was discriminatory. It is undisputed that LaCapra, Ward, Blanco, Levin, and Butcher
held a meeting in June 2009 in which they discussed their concerns about the performance of the
PSD. (Pl. SMF ¶ 20). Shortly thereafter, Butcher advised Plaintiff that she was being reassigned
9
The Port Authority may be held liable under § 1983 only when the “execution of a government’s policy or custom”
inflicted the alleged injury. Monell v. Dep’t of Social Servs., 436 U.S. 658, 694-95 (1978); Bielevicz v. Dubinon,
915 F.2d 845, 849-850 (3d Cir. 1990) (stating that “liability may not be proven under the respondeat superior
doctrine, but must be found upon evidence that the government unit itself supported a violation of constitutional
rights”). Plaintiff must also prove that the custom or practice was the proximate cause of the injuries suffered.
Bielevicz, 915 F.2d at 850. In the instant matter, Plaintiff has failed to directly respond to whether the Port
Authority can be held liable under § 1983. The Court chooses to reserve on whether there are sufficient issues of
fact to show that the Port Authority may be responsible for “either the affirmative proclamation of a policy or
acquiescence in a well-settled custom” of discriminating against women and that this practice was the proximate
cause of the injuries suffered. (Id.). The Court finds that it will benefit from oral argument on this limited issue.
New arguments and evidence will not be permitted.
20
to a newly-created Deputy Director position in the TSD, which position was less desirable. (Pl.
SMF ¶¶ 26, 29, 30; Maresca Cert. ¶¶ 26, 27). Plaintiff disputes Defendants’ contention that their
directives were not being carried out to their satisfaction and that no progress was being made to
the overtime concerns. (Pl. SMF ¶¶ 21-23; Fucci Cert. ¶¶ 13-15, 18; Maresca Cert. ¶¶ 13, 1618). Accordingly, issues of material fact remain as to whether LaCapra, Ward, Levin and
Butcher were personally involved in the alleged wrongs by personal direction or acquiescence.
As to Defendant Hannell, Plaintiff merely states that Hannell (1) was asked to create a
job description for Plaintiff, (2) was “aware” of the transfer, (3) was responsible for
“administering the salary policy,” and (4) had Plaintiff’s 2009 merit increase on her desk. (Pl.
Opp. Br. 5; Ex. C to Alito Cert. at 231:19-234:7). A factfinder cannot reasonably find from these
facts, alone, that Hannell was personally involved with the intent to discriminate against
Plaintiff. As to Defendant Coscia, Plaintiff has not provided this Court with any evidence of his
personal involvement in any action against Plaintiff.
Accordingly, this Court finds that
Defendants Ward, Levin, Butcher and LaCapra are not entitled to summary judgment on the
surviving § 1983 claim. The Court further holds that Defendants Hannell and Coscia are entitled
to summary judgment as a matter of law.
C. Federal Rule Civil Procedure 56(d) Relief
Plaintiff is not entitled to relief under Federal Rule Civil Procedure 56(d). Rule 56(d)
(titled “When Facts Are Unavailable To the Nonmovant”) provides when a nonmovant cannot,
for reasons specified in a declaration or affidavit, present essential facts to justify its opposition,
the Court may defer the motion, deny it, allow time to obtain discovery or issue another
appropriate order. Fed. R. Civ. P. 56(d). Plaintiff’s counsel submits a draft certification that
Beecher refused to sign, but that counsel represents includes statements that Beecher stated in an
21
interview. (Pl. Opp. Br. 47). Although Plaintiff first claims that the draft affidavit is not
necessary to defeating summary judgment, Plaintiff nonetheless seeks to depose Beecher. (Id.
48; Decl. of Alisa Fermaglich in Opp. to Summ. J. (“Fermaglich Decl.”) ¶¶ 7-8). Defendants
argue that Plaintiff’s counsel should not have submitted or relied upon the unsigned affidavit,
because Beecher disavowed the affidavit, refusing to sign it and accusing Plaintiff’s counsel of
harassment. (Defs.’ Reply Br. 23-26).
This Court denies Plaintiff’s request. As the title notes in Rule 56(d), this relief is
available to nonmovants who have not had a reasonable opportunity to take discovery to gather
evidence that is necessary to oppose the motion. Here, Plaintiff had ample opportunity to seek
discovery since the filing of the initial Complaint in March 2010.
(See D.E. No. 1).
Additionally, Plaintiff improperly attempts to submit an unsigned, draft affidavit. Yet, the facts,
by Plaintiff’s own admission, are not essential to opposing this motion. Accordingly, the Court
will not grant relief under Rule 56(d).
V.
Conclusion
For the foregoing reasons, Defendants’ motion for summary judgment is DENIED in
part, and GRANTED in part. An appropriate order shall accompany this opinion.
s/Esther Salas
Esther Salas, U.S.D.J.
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?