MCGUIRE v. UNION COUNTY PROSECUTOR'S OFFICE et al

Filing 67

OPINION AND ORDER denying deft's 50 Motion for Summary Judgment ; denying 52 Motion for Summary Judgment; modifying the final pretrial order dated 4/27/2012 and scheduling trial for June 12, 2012 at 9:30a.m.. Signed by Judge Faith S. Hochberg on 5/30/2012. (nr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
STEPHEN MCGUIRE,
Plaintiff,
v.
UNION COUNTY PROSECUTOR’S OFFICE, et
al.,
Defendants.
__________________________________________

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Hon. Faith S. Hochberg, U.S.D.J.
Civil Case No. 11-1989 (FSH) (PS)
OPINION & ORDER
Date: May 30, 2012

HOCHBERG, District Judge:
This matter comes before the Court upon the Defendants’ Motions for Summary
Judgment. The Court having reviewed the submissions of the parties pursuant to Fed. R. Civ. P.
78; and
it appearing that, pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will
be granted 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 judgment as a matter of law, see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); and
it appearing that “[s]ummary judgment may be granted only if there exists no genuine
issue of material fact that would permit a reasonable jury to find for the nonmoving party,”
Miller v. Indiana Hosp., 843 F.2d 139, 143 (3d Cir. 1988); and

it appearing on the face of the parties’ voluminous submissions that they dispute a
number of material facts with respect to Plaintiff’s claims, making the claims unsuitable for
summary judgment; 1
IT IS, therefore, on this 30th day of May, 2012,

1

Plaintiff contends that his First Amendment rights to free speech, petition, and associate
were infringed when he was suspended based on the content in an e-mail he sent to members of
the police union, of which he is president. The e-mail discussed an arbitration concerning the
Union County Prosecutor’s Office’s policy of reimbursing officers for their fuel costs. (See
Defs.’ 56.1 Statement ¶¶ 37-40; Pls.’ 56.1 Statement ¶¶ 24-28.) It also contained language that
Chief of Detectives Buccino found “disloyal or disrespectful to the administration including
[himself] and Deputy Chief Clay.” (Defs.’ 56.1 Statement ¶ 43.) Plaintiff was subsequently
suspended for five days for violating Union County Prosecutor’s Office policies on loyalty and
insubordination. (Defs.’ 56.1 Statement ¶¶ 48-50.)
A three-part test governs a claim for retaliation for protected First Amendment activities:
l) Plaintiff must show that he engaged in protected activity, including speech that is a matter of
public concern; 2) Plaintiff must show the protected activity was a substantial or motivating
factor in the alleged retaliation; and 3) Defendants may refute the claim by demonstrating they
would have taken the same action absent the protected activity. See Baldassare v. State of New
Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001); Crane v. Yurick, 287 F. Supp. 2d 553, 559-60
(D.N.J. 2003). Union speech is generally protected. See Yurick, 287 F. Supp. 2d at 560
(collecting cases). If Plaintiff spoke as union president, the speech is protected; if he spoke as an
employee, it is not. See Fuerst v. Clarke, 454 F.3d 770, 775 (7th Cir. 2006); Shirden v. Cordero,
509 F. Supp. 2d 461, 466-67 (D.N.J. 2007). Defendants note that the e-mail was sent from
Plaintiff’s work e-mail and that Deputy Chief Clay, who did not usually receive union messages,
was a recipient. (Defs.’ 56.1 Statement ¶¶ 31-37.) Plaintiffs counter that all recipients were
union members, that the e-mail concerned a long-running dispute between the union and the
administration, and that the e-mail indicated it was sent from the union president. (Pls.’ 56.1
Statement ¶¶ 18-28.) Where, as here, there are disputed issues of material fact as to the factual
predicates for determining whether the speech is protected, summary judgment is inappropriate.
Fuerst, 454 F.3d at 775; see also Shirden, 509 F. Supp. 2d at 467. These factual predicates will
be submitted to the jury.
There are also disputed issues of material fact as to two and three of the Baldassare test.
Plaintiff contends that his suspension was retaliation for his union activities (Pls.’ 56.1 Statement
¶ 60, 84-101), and was part of a pattern of retaliatory action in response to union activities (Pls.’
56.1 Statement ¶¶ 61-101). Defendants contend the suspension was motivated solely by the
allegedly insubordinate comments contained in the e-mail. (Defs.’ 56.1 Statement ¶¶ 43-45, 4757.) Additionally, the parties dispute whether the e-mail was intended to or had the potential to
disrupt personnel or undermine the administration of the Union County Prosecutor’s Office.
(Defs.’ 56. 1 Statement ¶¶ 43-45; Pls.’ 56.1 Statement ¶¶ 29-36, 51.)
2

ORDERED that Defendants’ Motions for Summary Judgment are DENIED; and it is
further
ORDERED that the Final Pretrial Order dated April 27, 2012 is hereby modified so that
any responses to pretrial motions are now due June 8, 2012; and it is further
ORDERED that trial is scheduled to begin on June 12, 2012 at 9:30 AM before the
undersigned in Courtroom 1, U.S. Post Office and Courthouse, Newark, NJ 07101. This date is
peremptory and will not be adjourned.

/s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.

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