PALARDY v. TOWNSHIP OF MILLBURN et al

Filing 93

OPINION. Signed by Judge Susan D. Wigenton on 7/11/2017. (JB, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL J. PALARDY, JR.,

Civil Action No. 15-02089(SDW)(LDW)

Plaintiff,
v.
OPINION
TOWNSHIP OF MILLBURN, TIMOTHY P.
GORDON, and JOHN DOES 1-5,
Defendants.
July 11, 2017

WIGENTON, District Judge
Before this Court is the Motion for Summary Judgment of Defendants Township of
Millburn and Timothy P. Gordon (collectively, “Defendants”), pursuant to Federal Rule of Civil
Procedure 56. This Court, having considered the parties’ submissions, decides this matter without
oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below,
Defendants’ Motion is GRANTED.
I.

JURISDICTION AND VENUE
This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331. Venue is proper

in this District pursuant to 28 U.S.C. § 1391(b).

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II.

BACKGROUND 1
Plaintiff Michael J. Palardy, Jr. (“Plaintiff”) filed the operative Amended Complaint, (Dkt.

No. 28), in this matter on February 22, 2016, against Defendants Township of Millburn and
Timothy P. Gordon, alleging eight claims arising out of Plaintiff’s employment as a police officer
for the Department of Police in the Township of Millburn (the “Police Department”). (See Am.
Compl. ¶ 1.) On May 2, 2016, this Court granted Defendants’ Motion for Judgment on the
Pleadings as to five of the eight counts in the Amended Complaint. (Dkt. Nos. 37-38.) The
remaining counts of the Amended Complaint allege that Defendants violated Plaintiff’s rights to
free speech and association under the United States and New Jersey Constitutions. 2
Plaintiff began working as a police officer for the Township of Millburn in 1988. (Defs.’
Statement of Undisputed Material Facts (“Defs.’ SMF”) ¶ 8.) After over twenty years as a police
officer, Plaintiff submitted his application for retirement to the Township Police Department on
August 13, 2013. (Id. ¶ 9.) He remained on terminal leave from September 1, 2013, until his
effective retirement date of February 1, 2014. (Id. ¶ 15.)

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Plaintiff did not submit a responsive statement of undisputed material facts as is required by Local Civil
Rule 56.1. Pursuant to Local Civil Rule 56.1, “any material fact not disputed shall be deemed undisputed
for purposes of the summary judgment motion.” Accordingly, this Court will presume that the facts in
Defendants’ statement of undisputed material facts are true unless they are controverted by the evidence in
the record. This Court notes that this task is further complicated by Plaintiff’s brief in opposition to the
Motion for Summary Judgment because Plaintiff’s brief is nearly devoid of any reference to the facts in
this matter and, instead, relies almost entirely on conclusory legal arguments.
2
This Court considers Counts Two, Three, and Six together. To the extent Count Three asserts a violation
of the First Amendment, that Count is redundant of Plaintiff’s identical claim brought under 42 U.S.C.
§ 1983 in Count Two. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906–07 (3d Cir. 1997) (“By
itself, Section 1983 does not create any rights, but provides a remedy for violations of those rights created
by the Constitution . . . .”) Moreover, this Court considers Counts Two and Six together because the “[New
Jersey] Constitution’s free speech clause is generally interpreted as co-extensive with the First Amendment
. . . .” State, Twp. of Pennsauken v. Schad, 160 N.J. 156, 176 (1999).

2

Plaintiff was promoted three times over the course of his career: to the rank of sergeant in
1995, lieutenant in 1998, and captain on February 21, 2012. (Id. ¶ 8.) He also was a member of
the Police Benevolent Association (“PBA”) and the Superior Officers Association (“SOA”), both
of which acted as collective bargaining representatives for individuals in the Police Department.
(Id. ¶ 18; Pl.’s Counter Statement of Material Facts (“Pl.’s CSMF”) ¶ 1.d.; Am. Compl. ¶¶ 6-7.)
Plaintiff had a number of roles with both the PBA and SOA during his career. He claims to have
been a sergeant-at-arms for the PBA in the early 1990s, after which he was a union delegate for
the PBA from approximately 1992 to 1995. (Defs.’ SMF ¶ 19.) Plaintiff also served as the SOA
Vice President in approximately 2007 or 2008 and as the SOA President from approximately 2009.
(Id. ¶ 20.) He stepped down as SOA President in approximately September of 2011, several
months before he was promoted to the rank of captain. (Id. ¶ 21.)
The actions Plaintiff took as a union member are not described with much detail in
Plaintiff’s submissions to this Court. According to Plaintiff, he was “active as a member, officer,
and member of the contracting [sic] negotiating committed [sic].” (Pl.’s CSMF ¶ 1.e.) Plaintiff
also contends that “when called upon [he] represented members of the bargaining unit in matters
of discipline, in matters of terms and conditions of employment, and in contract negotiation with
Millburn.” (Palardy Cert. ¶ 10.)

Plaintiff was not, however, the “lead negotiator” during

negotiations on any collective bargaining agreement. (Defs.’ SMF ¶ 24.) Moreover, Plaintiff
testified that although the “mouthpiece” for the union during arbitration proceedings in the early
2000s was the union’s attorney, Plaintiff did research to support a change in the Police
Department’s work schedule. (Id. ¶¶ 27-30.) Finally, Plaintiff claims to have attended a discipline
hearing of a PBA president when Plaintiff was still a lieutenant in 1998 or 1999. (Palardy Cert.
¶ 14; Defs.’ SMF ¶¶ 31-32.) Plaintiff did not hold any roles in the PBA or SOA, and did not

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participate in any collective bargaining negotiations, after he stepped down as SOA President in
approximately September of 2011. (Defs.’ SMF ¶¶ 37-39.)
According to Plaintiff, Defendant Township of Millburn and Defendant Gordon, the
Township’s former Business Administrator, violated Plaintiff’s free speech and association rights
through a number of actions Plaintiff claims were retaliatory. (See generally Pl.’s Br. Opp. Mot.
Summ. J. (“Pl.’s Br. Opp.”).) Although Plaintiff does not clearly outline which of Defendants’
actions he believes to have been retaliatory, he appears to complain of the following conduct.
First, Plaintiff contends that Defendants retaliated against him by commissioning two
studies performed by Dr. Wayne Fisher: a 2008 study into the overtime authorization procedure
and internal affairs procedure, as well as, a 2011 study of the table of organization of the Township
Police Department. (Am. Compl. ¶ 10; Defs.’ SMF ¶¶ 53-59.) Although Plaintiff contends that at
least one of these studies was conducted for the purpose of preventing him from being promoted
to the rank of captain, he concedes both that he was eventually promoted to that rank, and also,
that he was not adversely impacted by either study. (Defs.’ SMF ¶¶ 54, 56, 58-59.)
Second, Plaintiff contends that Defendants retaliated against him by refusing to pay him a
retroactive wage increase granted to other Township employees. (Am. Compl. ¶ 13.) However,
this retroactive wage increase, which the SOA and Township jointly agreed to on April 21, 2014,
as part of changes to their collective bargaining agreement, was made applicable only to those
employees on the Township’s payroll at the time the agreement was made. (Defs.’ SMF ¶¶ 42-44.)
Plaintiff was not on the Township’s payroll at the time of the agreement because he retired over
two months earlier on February 1, 2014. (Id. ¶ 42, 44.) Moreover, Plaintiff concedes both that he
was aware the Township was considering the retroactive wage increase, and also, that he could
have extended his terminal leave past his February 1, 2014 retirement date. In addition, Defendants

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contend, and Plaintiff does not dispute, that the same retroactive wage increase and the
accompanying limitation of eligibility to those employees on the payroll at the time of the
agreement, “was added to all of the Township’s union agreements during this time period—
including the PBA, the fire department and the road department.” (Id. ¶ 46.)
Third, although Plaintiff did not include this accusation in his Amended Complaint, he
contends that Defendants retaliated against him by considering the Chief of the Livingston Police
Department for a position as the Chief of the Millburn Police Department. (Id. ¶ 60.) However,
Plaintiff concedes that this took place when Plaintiff was a lieutenant, and also, that the Livingston
Chief was not hired as the Millburn Chief. (Id. ¶ 62.)
Finally, Plaintiff contends that Defendant’s retaliated against him by not promoting him to
the position of Chief of the Millburn Police Department. (Pl.’s CSMF 1.i.) However, Plaintiff also
contends that he retired over a year before the position would have become available in April of
2015 because the “writing was on the wall” that he would not be promoted. (Defs.’ SMF ¶¶ 6367.) Moreover, Plaintiff admits that he was “never passed over for the chief’s position,” that he
never discussed a promotion to that position with Defendant Gordon, and that he was, in fact, never
passed over for any promotion within the Police Department. (Defs.’ SMF ¶¶ 68-74.)
In light of these accusations, Plaintiff now contends that Defendants’ actions violated his
rights to free speech and association in contravention of the United States and New Jersey
Constitutions. Defendants filed the Motion for Summary Judgment now before this Court on
March 10, 2017. (See generally Defs.’ Br. Supp. Mot. Summ. J. (“Defs.’ Br. Supp.”).) Plaintiff
filed his brief in opposition on April 24, 2017, and Defendants filed a brief in reply on May 1,
2017.

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III.

LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The “mere existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A
fact is only “material” for purposes of a summary judgment motion if a dispute over that fact
“might affect the outcome of the suit under the governing law.” Id. at 248. A dispute about a
material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Id. The dispute is not genuine if it merely involves “some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986).
The moving party must show that if the evidentiary material of record were reduced to
admissible evidence in court, it would be insufficient to permit the non-moving party to carry its
burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party
meets its initial burden, the burden then shifts to the non-moving party to set forth specific facts
showing a genuine issue for trial and may not rest upon the mere allegations, speculations,
unsupported assertions, or denials of its pleadings. Shields v. Zucc arini, 254 F.3d 476, 481 (3d
Cir. 2001). “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the non-moving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’”

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Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at
255).
The non-moving party “must present more than just ‘bare assertions, conclusory
allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv.,
409 F.3d 584, 594 (3d Cir. 2005) (quoting Celotex Corp., 477 U.S. at 325). Further, the nonmoving party is required to “point to concrete evidence in the record which supports each essential
element of its case.” Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 286 (D.N.J.
2004) (citing Celotex Corp., 477 U.S. at 322-23.) If the non-moving party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on which . . .
[it has] the burden of proof,” then the moving party is entitled to judgment as a matter of law.
Celotex Corp., 477 U.S. at 322-23.
Furthermore, in deciding the merits of a party’s motion for summary judgment, the court’s
role is not to evaluate the evidence and decide the truth of the matter, but to determine whether
there is a genuine issue for trial. Anderson, 477 U.S. at 249. The non-moving party cannot defeat
summary judgment simply by asserting that certain evidence submitted by the moving party is not
credible. S.E.C. v. Antar, 44 F. Appx. 548, 554 (3d Cir. 2002).
IV.

DISCUSSION
In order to prove a claim of retaliation in violation of the First Amendment right to free

speech, a plaintiff must show “(1) constitutionally protected conduct, (2) retaliatory action
sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3)
a causal link between the constitutionally protected conduct and the retaliatory action.” Killion v.
Coffey, No. 16-3909, 2017 WL 2628881, at *1 (3d Cir. June 19, 2017) (quoting Thomas v. Indep.

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Twp., 463 F.3d 285, 296 (3d Cir. 2006)) (internal quotation marks omitted). 3 As discussed below,
Plaintiff has not identified any evidence to support his assertions that he engaged in
constitutionally protected conduct and Defendants are, therefore, entitled to summary judgment.
“[W]hile the First Amendment invests public employees with certain rights, it does not
empower them to ‘constitutionalize the employee grievance.’” Garcetti v. Ceballos, 547 U.S. 410,
420 (2006) (quoting Connick v. Myers, 461 U.S. 138, 154 (1983)). Therefore, a public employee’s
speech is protected under the First Amendment only “when (1) in making it, the employee spoke
as a citizen, (2) the statement involved a matter of public concern, and (3) the government
employer did not have ‘an adequate justification for treating the employee different from any other
member of the general public’ as a result of the statement he made.” Killion, 2017 WL 2628881,
at *1 (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir. 2006)) (internal
quotation marks omitted). 4 In this instance, Defendants argue that Plaintiff cannot show he
engaged in constitutionally protected conduct both because he did not act as a private citizen, and
also, because none of his speech was on a matter of public concern. (See Defs.’ Br. Supp. at 1332.) This Court agrees.
In order to satisfy the requirement that he engaged in constitutionally protected conduct,
Plaintiff must have acted or spoken regarding a matter of public concern. See Hill, 455 F.3d at
241-42 (citing Garcetti, 547 U.S. at 417). “Speech involves matters of public concern ‘when it

3

To the extent Plaintiff intended to include a freedom of association claim, this Court considers the claims
together because his “associational claim is barely an extension of his free speech claim.” Bell v. City of
Philadelphia, 275 F. App'x 157, 160 (3d Cir. 2008) (first citing Sanguigni v. Pittsburgh Bd. of Pub. Educ.,
968 F.2d 393, 400 (3d Cir. 1992); then citing Dible v. City of Chandler, 502 F.3d 1040, 1050 (9th Cir.
2007)).
4
As the core of Plaintiff’s freedom of association claim is the same as his freedom of speech claim (i.e.,
that Defendants retaliated against him because he spoke out as an active member of the PBA and SOA on
numerous occasions), both claims are subject to these requirements. See Killion v. Coffey, No. 16-3909,
2017 WL 2628881, at *1 (3d Cir. June 19, 2017).
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can “be fairly considered as relating to any matter of political, social, or other concern to the
community,” or when it ‘is a subject of legitimate news interest; that is, a subject of general interest
and of value and concern to the public.’” Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (quoting
Snyder v. Phelps, 131 S. Ct. 1207, 1216 (2011)). That said, Courts in this Circuit generally
recognize that speech regarding “working conditions and other issues in union members’
employment” are “personnel matters . . . [which are not] of interest to the broader community.”
Thomas v. Delaware State Univ., 626 F. App’x 384, 389 (3d Cir. 2015) (citations omitted); see,
e.g., Beresford v. Wall Twp. Bd. of Educ., No. CIV.A.08-2236(JAP), 2010 WL 445684, at *6
(D.N.J. Feb. 3, 2010) (holding that a union president’s speech was not on a matter of public concern
because it “related to his and the [union] members’ employment, raises, sick days and overtime”)
In this instance, Plaintiff contends that he was “active as a member, officer, and member
of the contracting [sic] negotiating committed [sic],” (Pl.’s CSMF ¶ 1.e.), and that he “represented
members of the bargaining unit in matters of discipline, in matter of terms and conditions of
employment, and in contract negotiation with Millburn.” (Palardy Cert. ¶ 10.) To the extent
Plaintiff claims to have engaged in other speech related to his union membership, that speech
pertained to matters of employee discipline, promotion, salaries, and work hours. (See Defs.’ SMF
¶¶ 18-36.) As a result, Plaintiff argues, his “speech concerned a community interest.” (Pl.’s Br.
Opp. at 9.) However, as Plaintiff’s speech related to personnel matters rather than matters of
political, social, or community concern, none of the speech Plaintiff engaged in rose to the level
of constitutionally protected conduct. See Thomas, 626 F. App’x at 389; Garvey v. Barnegat Bd.
of Educ., No. CIV. A. 07-6134 MLC, 2008 WL 2902617, at *6 (D.N.J. July 24, 2008)
(“Membership in a union ‘negotiating team’ does not constitute conduct protected by the First
Amendment. Further, statements made by a public employee carrying out official duties, including

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negotiating terms of employment, are not entitled to First Amendment protection.”); Garcia v.
Newtown Twp., 483 F. App’x 697, 703 (3d Cir. 2012) (explaining that “internal workplace matters
and personal grievances . . . fall outside the sphere of First Amendment protection.”). Accordingly,
Plaintiff has not identified any speech or conduct by which he acted regarding a matter of public
concern. Moreover, even if Plaintiff’s conduct did address a matter of public concern, Plaintiff
has not identified any evidence to support his contention that he “spoke as a private citizen.” (Pl.’s
Br. Opp. at 9.)
Although Plaintiff has not identified any evidence to support his contention that he spoke
on a matter of public concern, Defendants are entitled to summary judgment for the additional
reason that Plaintiff cannot show that he acted or spoke as a private citizen. To the extent that
Plaintiff advocated regarding personnel matters, including discipline, work schedules, and salaries,
he was “able and eager [to do so] . . . precisely because of [his] employment as [a] police officer[]
and the special knowledge and experience acquired through that employment.” Killion, 2017 WL
2628881, at *2 (citation and internal quotation marks omitted). As the Third Circuit explained in
Killion v. Coffey, even if union-related speech by a police officer regarding personnel matters did
implicate a matter of public concern, the police officer engages in such conduct “to advance [his
or her] position as [a] police officer[].” Id.; see also Hill v. City of Philadelphia, No. CIV.A. 056574, 2008 WL 2622907, at *6 (E.D. Pa. June 30, 2008), aff'd, 331 F. App’x 138 (3d Cir. 2009)
(“Any activity or related speech which allegedly led to retaliation against [the plaintiff] was
conducted pursuant to his official duties as a union delegate acting on behalf of employees of a
municipal agency, and not as a citizen.”) Accordingly, Plaintiff cannot show that he engaged in
constitutionally protected conduct and Defendants are, therefore, entitled to summary judgment.

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V.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Summary Judgment is

GRANTED. An appropriate order follows.
s/ Susan D. Wigenton
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE

Orig:
cc:

Clerk
Magistrate Judge Leda D. Wettre
Parties

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