SANTIAGO v. NEW YORK & NEW JERSEY PORT AUTHORITY et al

Filing 97

OPINION. Signed by Judge William J. Martini on 3/22/16. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ENID SANTIAGO,
Civ. No. 2:11-cv-04254 (WJM)

Plaintiff,
v.

OPINION

NEW YORK & NEW JERSEY PORT
AUTHORITY, et al.,
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff Enid Santiago brings this 42 U.S.C. § 1983 action against the New York
and New Jersey Port Authority (hereinafter, “Port Authority”) and six of its individual
officers (collectively, “Defendants”). Against the individual Defendants, Plaintiff raises
claims of First Amendment retaliation, race and gender discrimination, and violation of her
due process rights; against the Port Authority, she raises a Monell claim. This matter comes
before the Court on Defendants’ motion for summary judgment under Federal Rule of Civil
Procedure 56. There was no oral argument. Fed. R. Civ. P. 78(b). For the reasons set
forth below, Defendants’ motion for summary judgment is GRANTED and Plaintiff’s
Complaint is DISMISSED.
I.

BACKGROUND

The following facts are undisputed unless otherwise noted. Plaintiff, a Hispanic
woman, was formerly employed by Port Authority as a probationary police officer.
In October 2008, Plaintiff was sworn in as a Port Authority as a police officer. ECF
doc. 1 (Compl.) ¶ 10. As is customary, Plaintiff was placed on a one-year probation
(meaning, among other things, that Port Authority could terminate her employment without
an administrative hearing). Id. ¶ 10.
On October 6, 2009 (less than one month before her one-year probation period had
concluded), Plaintiff was assigned to “supervis[e] the safe and lawful movement of
vehicular traffic going in and out of the Lincoln Tunnel.” Compl. ¶ 11. While on duty,
Plaintiff responded to an “over-height alarm,” indicating that an oversized trailer truck was
attempting to enter the tunnel. Id. ¶ 11. According to Plaintiff, as she began redirecting
traffic, Tunnel and Bridge Agent (“TBA”) Gregory Noa arrived and also began directing
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traffic, which was outside the scope of his TBA duties and interfered with Plaintiff’s police
duties. Id. ¶ 12. While the truck was turning around, the truck driver struck another TBA
officer’s vehicle. Id.
That day, Plaintiff prepared a handwritten motor vehicle accident report (before
being directed to do so) addressed to her superior, Captain Donald Burns, in which she
blamed Noa for causing the accident. ECF doc. 89, Ex. C (Report). She stated that Noa’s
actions were “hindering police duties” and “harmful to the public,” and requested that the
incident be investigated. Id. Two other Port Authority police officers, Paul Pimenta and
Anthony Giardullo, also prepared handwritten reports blaming Noa for the accident. Id.,
Exs. I, J.
Upon Captain Burns’ instruction, the Port Authority’s Internal Affairs Bureau
conducted a six-month long investigation into the incident. ECF doc. 89-1 (Defendants’
Statement of Undisputed Material Facts (“SUMF”)), ¶ 36. Plaintiff alleges that this was a
“sham investigation” where certain officers filed misleading information about her.
Compl. ¶ 16.
During the course of its investigation, Internal Affairs reviewed the three
handwritten reports, and concluded that that there were numerous inconsistencies between
the officers’ accounts. D’s SUMF at ¶¶ 29-35. Both the driver and the passenger of the
truck indicated that Plaintiff alone was directing traffic when the driver struck the other
vehicle, and that no other person was directing traffic. Id. ¶¶ 37-48. After reviewing
additional evidence, including radio and phone communications, and interviewing
additional witnesses, Internal Affairs ultimately determined that Plaintiff’s version of
events was not credible and recommended her termination. Id. ¶¶ 36-74, 94. Specifically,
the Port Authority’s Director of Public Safety stated that Plaintiff was terminated because
he could not trust that she could “conduct herself in a truthful, honest or accurate manner,”
as required of a police officer. Id. ¶¶ 95-96. Plaintiff did not receive a hearing because she
was not entitled to one as a probationary police officer. Id. ¶ 97. According to Plaintiff,
following her termination, the Chief of Police Charles Torres defamed Plaintiff during a
“routine roll call attended by numerous police officers,” by disclosing the results of the
investigation and stating that she was terminated for filing a false police report. Compl.
¶ 20.
Officers Pimenta and Giardullo were both charged with violating the Port Authority
Rules of Conduct; however, because they are union employees, they are entitled to
disciplinary proceedings before termination. ECF doc. 89, Ex. R (Aff. Of Labor Relations
Attorney). According to Port Authority, it is seeking to terminate both Pimenta’s and
Giardullo’s employments once they have had their hearings. Id.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the
pleadings, the discovery [including, depositions, answers to interrogatories, and
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admissions on file] and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A factual
dispute is genuine if a reasonable jury could find for the non-moving party, and is material
if it will affect the outcome of the trial under governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Andreoli
v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).
Initially, the moving party has the burden of demonstrating the absence of a genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this
burden, the nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id. The opposing party must do more than
just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001). Rather, to withstand a proper motion for summary
judgment, the nonmoving party must identify specific facts and affirmative evidence that
contradict those offered by the moving party. Anderson, 477 U.S. at 256–57.
III.

DISCUSSION

Plaintiff raises, against the individual defendants, a First Amendment retaliation
claim, race and gender discrimination claims under § 1983 and § 1981, and a due process
claim; against the Port Authority, she raises a claim of municipal liability. ECF doc. 1.
Defendants move for summary judgment. ECF doc. 89.
A.

First Amendment Retaliation Claim

Plaintiff alleges that Defendants retaliated against her for exercising her First
Amendment rights by filing a handwritten incident report regarding TBA Noa following
the truck accident. Defendants are entitled to summary judgment as to this claim because
Plaintiff was not engaged in protected First Amendment activity in filing the report.
A public employee’s statement is protected First Amendment activity when, inter
alia, in making it, the employee spoke as a citizen and the statement involved a matter of
public concern. Gorum v. Sessmons, 561 F.3d 179, 185 (3d Cir. 2009) (citing Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)). A public employee does not “speak as a citizen”
when she makes a statement pursuant to her “official duties.” Garcetti, 547 U.S. at 421
(2006). The Third Circuit has “consistently held that complaints up the chain of command
about issues related to an employee’s workplace duties—for example, possible safety
issues or misconduct by other employees—are within an employee’s official duties.”
Morris v. Philadelphia Hous. Auth., 487 F. App’x 37, 39 (3d Cir. 2012); see also Kimmett
v. Corbett, 554 F. App’x 106, 112 (3d Cir. 2014); Taylor v. Pawlowski, 551 F. App’x 31,
32 (3d Cir. 2013).
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Here, Plaintiff submitted an incident report to her supervisor complaining of Noa’s
interference with her duties as a police officer. Plaintiff informed Internal Affairs that she
had been “following the guidelines of [her] senior officer,” Officer Pimenta, in submitting
the report. ECF doc. 89, Ex. G (Interview) at PA 110-11. Plaintiff’s superior, Lieutenant
Dubelbeiss, also informed Internal Affairs that he had instructed her to submit a
handwritten report. Id., at 49-50. Plaintiff’s report is a “complaint up the chain of
command” about “misconduct by [another] employee” – a classic example of a statement
made pursuant to an employee’s “official duties.” Morris, 487 F. App’x at 39.
Accordingly, Plaintiff’s speech is not protected by the First Amendment, and her retaliation
claim fails as a matter of law.1
B. Discrimination Claims
Plaintiff alleges that, in terminating her, Defendants discriminated against her on
the basis of her race and sex. This claim fails as a matter of law.
Courts apply the three-step burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 801–803 (1973) to discrimination claims. Stewart
v. Rutgers, 120 F.3d 426, 432 (3d Cir. 1997). First, the plaintiff must establish a prima
facie discrimination case. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie
case of race or sex discrimination, a plaintiff must show that: (1) she is a member of a
protected class; (2) she was qualified for the position in question; (3) she suffered an
adverse employment action; and (4) that adverse employment action gives rise to an
inference of unlawful discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–11
(3d Cir. 1999). Second, if the plaintiff makes this showing, the burden shifts to the
employer to prove a nondiscriminatory reason for its actions. McDonnell Douglas, 411
U.S. at 802. Third, if the employer meets that burden, the plaintiff then must prove that
the employer’s stated reason is merely a pretext for unlawful discrimination. Id. at 804.
The plaintiff at all times bears the ultimate burden of persuasion. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 503 (1993).
Plaintiff has not established a prima facie case of discrimination. Plaintiff has
satisfied the first three prongs of the test: (1) as a Hispanic woman, she is a member of a
protected class; (2) she was qualified for the position of a probationary police officer, given
that she passed the requisite training courses; and (3) she suffered an adverse employment
action when she was terminated. Plaintiff contends that the adverse employment action
(i.e., her termination) gives rise to an inference of unlawful discrimination because the
white male officers involved in the same incident were not immediately terminated. But
the white male officers were not “similarly situated” to Plaintiff: she was a probationary
Because the Court has determined that Plaintiff’s accident report does not constitute First Amendment speech, the
Court does not reach the issue of whether Plaintiff’s interest in reporting outweighed the Port Authority’s interest in
maintaining an efficient police force, or the Port Authority’s qualified immunity defense.
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employee not entitled to a disciplinary proceeding before termination, while the other
employees were union employees entitled to such protections. See Blanding v. Pa. State
Police, 12 F.3d 1303, 1309–10 (3d Cir. 1993) (holding that tenured troopers were not
similarly situated to a probationary trooper); Mercado v. Donahoe, 487 F. App’x 15, 18
(3d Cir. 2012) (holding that white female employee was not similarly situated to Hispanic
male employee because she was not a probationary employee). Moreover, Defendants
have provided evidence that they recommended termination of the two white male
employees simultaneous to their recommendation that Plaintiff be terminated, and Plaintiff
has not refuted this evidence. Accordingly, Plaintiff has not stated a prima facie case of
discrimination. See Red v. Potter, 211 F. App’x 82, 84 (3d Cir. 2006) (Plaintiff failed to
state a prima facie case because employees who were allegedly treated more favorably
were not similarly situated).
However, even assuming arguendo that Plaintiff has made a prima facie case of
discrimination, Port Authority has articulated a legitimate, non-discriminatory reason for
terminating Plaintiff. The Port Authority Policy Recruit Guidebook mandates that “[i]f a
recruit is found to have been untruthful or dishonest, a recommendation for his/her
termination will be forwarded to the Superintendent of Police/Director of Public Safety.”
Id., Ex. N. Port Authority conducted a six-month long investigation in which over ten
witnesses were interviewed, radio and telephone communications and handwritten
statements were analyzed, and ultimately determined that Plaintiff was untruthful in her
report of the incident. As a result, Plaintiff was terminated.
In her opposition, Plaintiff contends that Defendants relied on inaccurate, “sham”
statements about her and incorrectly determined that she was untruthful in her incident
report. This contention is insufficient to establish pretext. See Wilcher v. Postmaster Gen.,
441 F. App’x 879, 881 (3d Cir. 2011) (“Inaccuracy does not establish pretext . . . . The
issue is not whether the [employer’s] decision was unwise or even correct but whether the
[employer] unlawfully discriminated against [Plaintiff.]”); Fuentes v. Perskie, 32 F.3d 759,
765 (3d Cir. 1994) (Once an employer provides a non-discriminatory justification for its
actions, a plaintiff can only survive summary judgment by presenting “sufficient evidence
to meaningfully throw into question, i.e., to cast substantial doubt upon,” the employer’s
proffered reason for its action . . . the employee cannot carry her burden by showing that
the employer’s decision was wrong or mistaken). The Court therefore concludes that
Defendants are entitled to summary judgment as to Plaintiffs’ discrimination claims.
C. Due Process Claim
Plaintiff alleges that her due process rights were violated by Defendants’ damage to
her “reputation and career in law enforcement.” ECF doc. 92 (P. Opp) at 39. Not so.
“[T]o make out a due process claim for deprivation of a liberty interest in reputation,
a plaintiff must show a stigma to his reputation plus deprivation of some additional right
or interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). For public
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employees, this test is satisfied when “an employer creates and disseminates a false and
defamatory impression about the employee in connection with his termination.” Id.
(internal quotations omitted). To satisfy this test, it must be alleged that the purportedly
stigmatizing statement were made publicly. Bishop v. Wood, 426 U.S. 341, 348 (1976);
Chabal v. Reagan, 841 F.2d 1216, 1223-1224 (3d Cir. 1988).
Plaintiff’s due process claim fails because she has not produced any evidence that
the allegedly false statements were disseminated to the public. To be sure, Plaintiff alleges
that Chief Torres disseminated a false statement following her termination during the
police officers’ “roll call.” But this does not constitute a “public statement” for purposes
of a due process claim. See Chabal, 841 F.2d at 1224 (finding no liberty interest violation
because the plaintiff made “no allegation whatsoever that the government communicated
to the general public any information regarding the reasons for his dismissal”); Yu v. U.S.
Dep't of Veterans Affairs, 528 F. App’x 181, 185 (3d Cir. 2013) (finding evidence that
people within the organization were aware of the investigation and results “was not
publication to the general public.”). Accordingly, summary judgment is warranted in favor
of Defendants as to this claim.
D. Monell Claim
Finally, Plaintiff alleges that Port Authority has “engaged in a continuing pattern
and practice of harassment, disparate treatment, discrimination, and retaliation against
Hispanic, minorities, and female employees.” Compl. ¶ 9.
As explained in the foregoing section, the individual Port Authority officers are
entitled to summary judgment on all claims against them. It is well settled that “[w]ithout
a constitutional violation by the individual officers, there can be no § 1983 or Monell …
liability.” Phillips ex rel. Estate of Phillips v. Northwest Regional Communications, 391
Fed. Appx. 160, 168 n. 7 (3d Cir. 2010) (citing Sanders v. City of Minneapolis, 474 F.3d
523, 527 (8th Cir. 2007)). In light of that rule, Port Authority is entitled to summary
judgment on Plaintiff’s Monell claims.
IV.

CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment is
GRANTED and the Complaint is DISMISSED WITH PREJUDICE. An appropriate
Order follows.
/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.
Date: March 22, 2016

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