MRAZEK v. STAFFORD TOWNSHIP et al

Filing 101

OPINION filed. Signed by Judge Freda L. Wolfson on 5/5/2017. (km)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
JOSEPH MRAZEK,
:
Civil Action No.: 13-1091(FLW)
Plaintiff,
vs.

OPINION

:
:

STAFFORD TOWNSHIP, et al.,

:

Defendants.

:

____________________________________:
WOLFSON, United States District Judge:
This Court previously rendered a partial decision on a summary
judgment motion filed by Defendants, Stafford Township (“Stafford
Township”) and its Police Chief, Joseph Giberson (“Chief Giberson”)
(collectively, “Defendants”), dismissing two of the four counts in the
Complaint — the procedural and substantive due process claims —
brought by officer-plaintiff Joseph Mrazek (“Plaintiff” or “Mrazek”) in
connection with the Stafford Township Police Department promotion
process. 1 See Mrazek v. Stafford Twp., No. CV 13-1091(FLW), 2016 WL
5417197 (D.N.J. Sept. 28, 2016).

While the Court denied summary

Plaintiffs Drew Smith and David Levi McVey also filed a summary
judgment motion in a separate, but related, case, and that motion was
decided by the Court in the same Opinion. Specifically, this Court
dismissed the due process claims in their entirety, the only causes of
action asserted by these two plaintiffs against Defendants. Because their
case has been dismissed, the instant Opinion does not concern Smith and
McVey.
1

1

judgment on Mrazek’s First Amendment retaliation (Count IV) and Monell
claims (Count III), I directed the parties to submit supplemental briefing
on the issue of Chief Giberson’s qualified immunity and Stafford
Township’s Monell lability.
Now that the issues are fully briefed, for the reasons set forth below,
Defendants’ motion for summary judgment is GRANTED in part and
DENIED in part. With respect to Count III, I find that Chief Giberson was
not a “policymaker” for purposes of imposing liability on Stafford Township
under Monell, and therefore, Stafford Township’s motion for summary
judgment on Count III is GRANTED. With respect to Count IV, I find that
Plaintiff’s Constitutional right to freedom of association based upon his
union affiliation and activities had been “clearly established,” such that
Chief Giberson should have known that his alleged retaliatory conduct
violated that right, and thus, Chief Giberson is not entitled to qualified
immunity. Consequently, Chief Giberson’s motion for summary judgment
on Count IV is DENIED.

Thus, the claim in Count IV against Chief

Giberson, is the only remaining cause of action in this case that will
proceed to trial.
DISCUSSION
The underlying facts of this suit were recounted in this Court’s
previous opinion issued on September 28, 2016. See Mrazek, 2016 WL
5417197. I will incorporate my previous opinion herein and reference it
when necessary. As a brief background, Officer Mrazek participated as a
2

candidate in a promotion process for appointment to the rank of sergeant
in Stafford Township.

That process included objective and subjective

components. At the conclusion of the objective component, Mrazek had
the highest score.

Chief Giberson and other supervisory officers then

participated in the subjective component of the exam, a roundtable
discussion, and Mrazek ranked last in that portion.

Based on his

cumulative scores, Mrazek was not promoted, and indeed, Mrazek was
never promoted after that exam process.
After failing to be promoted, Plaintiff filed a complaint, alleging that
Defendants violated his procedural and substantive due process rights
(which I dismissed in my previous Opinion), and retaliated against him in
violation of his First Amendment rights. Initially, Mrazek claimed that the
defendants retaliated against him based upon (1) his constitutionallyprotected speech criticizing the former Mayor and Stafford Township; and
(2) his union affiliation — both of which are First Amendment related
claims. However, as noted in this Court’s previous Opinion, Mrazek has
abandoned his speech claims, and he is proceeding only on the claim that
Defendants have allegedly retaliated against him in the promotion process
based

upon

his union

affiliation, which

violates

Plaintiff’s

First

Amendment right to freely associate with a union.
Specifically, in Count IV of the Complaint, Plaintiff claims that Chief
Giberson retaliated against him for his union-related activities by
negatively influencing his scores in the promotion exam process, which
3

resulted in Plaintiff being passed over for promotion. In his defense, Chief
Giberson argues he is entitled to qualified immunity. In Count III, Plaintiff
claims Stafford Township is liable under Monell v. Dept. of Soc. Servs., 436
U.S. 658 (1978), for the retaliatory acts committed by Chief Giberson.
However, in the previous motion, since neither party had adequately
addressed whether Plaintiff’s Constitutional right had been “clearly
established” for purposes of qualified immunity, and whether Chief
Giberson possessed “policymaking” authority in making promotion
decisions for Monell purposes, I directed both parties to submit
supplemental briefs. I will first turn to qualified immunity.
I.

Qualified Immunity
In my previous Opinion, I found that Plaintiff established a prima

facie claim of First Amendment retaliation: (1) Plaintiff’s rights to associate
with a union and his position as a Union President are protected under
the First Amendment; (2) Chief Giberson’s alleged failure to promote
Plaintiff solely because of Plaintiff’s union affiliation was sufficient to deter
a person of ordinary firmness from exercising his Constitutional rights;
and (3) Plaintiff met his initial burden of showing that his union
association was a “substantial” or “motivating factor” in Chief Giberson’s
decision not to promote Plaintiff. Mrazek, 2016 WL 5417197, at *9-14.
Despite Plaintiff establishing his prima facie case, Chief Giberson argues
that he should be entitled to qualified immunity.

4

Qualified

immunity

shields

government

officials,

in

their

performance of discretionary functions, “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As a government official
performing a discretionary function — administering a promotion
examination for officers — Chief Giberson is entitled to qualified immunity
unless Plaintiff “pleads facts showing (1) that [Chief Giberson] violated
[Plaintiff’s] statutory or constitutional right, and (2) that the right was
‘clearly established’ at the time of the challenged conduct.” Ashcroft v. alKidd, 563 U.S. 731, 735 (2011) (citing Harlow, 457 U.S. at 818).
As to the first prong, this Court previously determined that Plaintiff
enjoys a Constitutional right to associate with a union free from retaliation
for his union affiliation. The Court further determined that a genuine
issue of material fact exists as to whether Chief Giberson violated Plaintiff’s
right. Thus, to defeat the qualified immunity defense, Plaintiff must show
that the specific Constitutional rights asserted by Plaintiff were “clearly
established.” See Hunter v. Bryant, 502 U.S. 224, 233 (1991) (“Qualified
immunity is an affirmative defense for which the government official bears
the burden of proof. . . . [Plaintiff], however, bears the burden of proving
that the right which the defendants allegedly violated was clearly
established at the time of their conduct . . . .” (citation omitted); Hynson

5

By & Through Hynson v. City of Chester, 827 F.2d 932, 935 (3d Cir. 1987).
Accordingly, I now address that issue.
A.

The “Clearly Established” Standard

At the outset, the parties have not disputed the manner in which
this Court previously framed the “clearly established” right involved here:
“whether Mrazek, as the Union President, had a clearly established
constitutional right, at the time of the official conduct, to be free from
retaliatory action taken because of his membership in the Union.” Mrazek,
2016 WL 5417197, at *16. However, as a general matter, in assessing a
“clearly established” right, “the right allegedly violated must be defined at
the appropriate level of specificity.” Saucier v. Katz, 533 U.S. 194, 202
(2001) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999)). Notably, the
Third Circuit’s recent decisions — in the context of First Amendment
claims — have narrowly framed the “clearly established” Constitutional
right allegedly violated in those cases. See, e.g., Mirabella v. Villard, 853
F.3d 641, 653 (3d Cir. Apr. 4, 2017); Rossiter v. City of Philadelphia, No.
16-1187, 2016 WL 7478494 (3d Cir. Dec. 29, 2016); Zaloga v. Borough of
Moosic, 841 F.3d 170, 175 (3d Cir. 2016). In light of those recent cases, it
is incumbent upon this Court to define the rights involved, here, at the
appropriate level of specificity, and in retrospect, I find that the way it was
defined in my previous Opinion is too broad.
To determine whether a right is clearly established, “[t]he relevant,
dispositive inquiry . . . is whether it would be clear to a reasonable officer
6

that his conduct was unlawful in the situation he confronted.” Saucier,
533 U.S. at 202 (citation omitted); accord Zaloga, 841 F.3d at 175 (“To
defeat qualified immunity, the right purportedly violated must be so clearly
established that ‘every reasonable official would have understood that
what he is doing violates that right. . . . This ‘clearly established’ standard
. . . ensur[es] that officials can reasonably . . . anticipate when their
conduct may give rise to liability for damages.’” (emphasis omitted)
(quoting Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093 (2012)
(internal quotation marks, citations, and alterations omitted))).

“This

inquiry turns on the ‘objective legal reasonableness of the action, assessed
in light of the legal rules that were clearly established at the time it was
taken.’” Pearson v. Callahan, 555 U.S. 223, 244 (2009) (quoting Wilson,
526 U.S. at 614). “If the law did not put the officer on notice that his
conduct would be clearly unlawful, summary judgment based on qualified
immunity is appropriate.”

Saucier, 533 U.S. at 202 (citation omitted);

Zaloga, 841 F.3d at 174.
While a strict factual correlation between applicable precedent and
the challenged conduct is not required to determine whether a right is
clearly established, the Third Circuit “require[s] some but not precise
factual correspondence.”

Bennis v. Gable, 823 F.2d 723, 733 (3d Cir.

1987) (quoting Three Mile Island v. Nuclear Reg. Comm’rs, 747 F.2d 139
(3d Cir. 1984)). Simply put, the Third Circuit requires officials to “relate
established law to analogous factual settings.” Id. Importantly, the Third
7

Circuit has noted that “the absence of a previous decision from [its] court
on the constitutionality of the conduct at issue is not dispositive,” Pro v.
Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996) (quoting Bieregu v. Reno, 59
F.3d 1445, 1459 (3d Cir. 1995) (internal citations omitted)), “but existing
precedent must have placed the statutory or constitutional question
beyond debate.” Zaloga, 841 F.3d at 175 (quoting al-Kidd, 563 U.S. at 741
(citations omitted)). Thus, in light of pre-existing law, “[t]he contours of
the right must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.”

Anderson v.

Creighton, 483 U.S. 635, 640 (1987).
While in the first instance, to determine a “clearly established” right,
“the right allegedly violated must be defined at the appropriate level of
specificity,” Saucier, 533 U.S. at 202 (quoting Wilson, 526 U.S. at 615); see
also Mirabella, 853 F.3d at 653, nonetheless, it also must not be drawn
with an “unduly narrow construction.” L.R. v. Sch. Dist. of Philadelphia,
836 F.3d 235, 248 (3d Cir. 2016) (quoting Estate of Lagano v. Bergen Cnty.
Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir. 2014)). Accordingly, the
level of specificity with which this Court must frame the “clearly
established” Constitutional right, here, will determine the contours of that
right sufficient to provide reasonable officials with fair notice.

See

Anderson, 483 U.S. at 639 (“The operation of this standard, however,
depends substantially upon the level of generality at which the relevant
‘legal rule’ is to be identified”).
8

Surely, a public employee enjoys the right to associate with a union
“and he is protected by the First Amendment from retaliation for doing so.”
Smith v. Arkansas State Highway Emp., Local 1315, 441 U.S. 463, 465
(1979) (citing Pickering v. Board of Educ., 391 U.S. 563, 574–75 (1968);
Shelton v. Tucker, 364 U.S. 479 (1960)). But, if the “clearly established”
inquiry were “applied at this level of generality, it would bear no
relationship to the ‘objective legal reasonableness’ that is the touchstone”
of the “clearly established” analysis. Anderson, 483 U.S. at 639. Indeed,
public employees “would be able to convert the rule of qualified immunity
that [the Supreme Court] cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of extremely abstract
rights.” Id. Hence, this Court must strike the balance between vindicating
citizens’ Constitutional rights with ensuring that public officials effectively
perform their duties, and are able to “anticipate when their conduct may
give rise to liability for damages.” Id. (footnote omitted) (quoting Davis v.
Scherer, 468 U.S. 183, 195 (1984)).
Here, Chief Giberson was administering a promotion exam that
included objective and subjective components.

The specific retaliatory

conduct that allegedly resulted in a Constitutional violation was Chief
Giberson’s alleged improper influence on the subjective component of the
exam, due to Mrazek’s union affiliation, which negatively impacted
Mrazek’s promotion process. Thus, to define the right simply as a right to
be free from employment retaliation for Plaintiff’s union association,
9

without considering Chief Giberson’s conduct, is overly broad. Rather, the
legal right must be viewed “in light of the specific context of the case,” see
Saucier, 553 U.S. at 201, and “in the light most favorable to the party
asserting the injury.” Andrews v. Scuilli, No. 15-3393, 853 F.3d 690, 2017
WL 1314882, at *3 n.8 (3d Cir. April 10, 2017) (internal citations omitted).
In this regard, to ensure notice for public officials to effectively perform
their duties, the alleged wrongful basis upon which officials make their
promotion decisions is significant in the qualified immunity inquiry. See
Anderson, 483 U.S. at 639; Mirabella, 853 F.3d at 648–49, 653.
Thus, my focus “here is whether it was clearly established that [Chief
Giberson’s allegedly negative influence on the promotions process based
upon the officer’s union affiliation] was retaliatory” in the context of a
freedom of association claim. See Mirabella, 853 F.3d at 653 (citation
omitted). Put differently, I define the legal right as whether a reasonable
public official could have recognized that negatively influencing a police
promotion process solely because of an officer candidate’s union-related
activities (resulting in his being passed over for a promotion) would violate
the officer’s First Amendment freedom to associate rights.
B.

The “Clearly Established” Right

I begin my analysis by considering the clearly established law at the
time Chief Giberson allegedly violated Plaintiff’s First Amendment rights
— January 2013. It is well-accepted and long established that the First
Amendment protects the freedom to associate.
10

See, e.g., Griswold v.

Connecticut, 381 U.S. 479, 483 (1965) (“[F]reedom of association [i]s a
peripheral First Amendment right.”); Nat’l Ass’n for Advancement of
Colored People v. State of Ala., 357 U.S. 449, 462 (1958) (“This Court has
recognized the . . . freedom to associate . . . .”). Even more specifically,
here, “the First Amendment’s freedom-of-association clause protects the
right to join a union.” Carroll v. Clifford Twp., 625 F. App’x 43, 47 (3d Cir.
2015) (citing Hobbs v. Hawkins, 968 F.2d 471, 482 (5th Cir. 1992) (citing
Thomas v. Collins, 323 U.S. 516, 532 (1945))).
Indeed, the freedom to associate “includes the right to express one’s
attitudes or philosophies by membership in a group or by affiliation with
it or by other lawful means.” Griswold, 381 U.S. at 483. In this regard,
“[t]he First Amendment protects the right of an individual to speak freely,
to advocate ideas, [and] to associate with others.” Smith, 441 U.S. at 464;
Perna v. Twp. of Montclair, 409 F. App’x 581, 583 (3d Cir. 2011) (“That an
employee’s right to pursue affiliation with a Union is protected by the First
Amendment is beyond cavil” (citations omitted)). And, importantly, the
First Amendment “protects the right of associations to engage in advocacy
on behalf of their members.” Id. (citing Nat’l Ass’n for Advancement of
Colored People v. Button, 371 U.S. 415 (1963); Eastern R.R. Presidents
Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961)). In this context,
association “is a form of expression of opinion,” falling squarely within the
bundle of First Amendment rights. Griswold, 381 U.S. at 483; Marshall v.
Allen, 984 F.2d 787, 800 (7th Cir. 1993) (explaining “the right to associate
11

‘is cut from the same cloth’ ” as the other rights contained in the First
Amendment”). Accordingly, “[t]he government is prohibited from infringing
upon these guarantees.” Smith, 441 U.S. at 464 (citing Button, 371 U.S.
415; e. g., Brandenburg v. Ohio, 395 U.S. 444 (1969); Garrison v. Louisiana,
379 U.S. 64 (1964)).
In the public employment context, the Third Circuit has clearly
established the illegality of “retaliatory discharges, transfers, letters of
reprimand, . . . demotions accompanied by transfers . . . , [and] demot[ions]
. . . for [a public employee] exercising his rights under the first
amendment.” Bennis, 823 F.2d at 733 (footnote omitted). At the time of
Chief Giberson’s alleged conduct at issue here, the Third Circuit had
applied the above retaliatory prohibitions to several exercises of First
Amendment rights by public employees. See, e.g., Carroll v. Rochford, 71
F. App’x 124, 126 n.2 (3d Cir. 2003) (noting that demoting, harassing, and
terminating an employee for his political affiliation is unlawful under the
First Amendment); Burns v. Cnty. of Cambria, Pa., 971 F.2d 1015, 1025
(3d Cir. 1992) (holding that it was clearly established that public officials
contravene the First Amendment when they fire an employee for his
political support unless they can show that the particular position comes
within the narrow Pickering exception); Bennis, 823 F.2d at 733
(concluding that the law is clearly established that a public employee
cannot be demoted in retaliation for exercising his First Amendment right
to associate for political purposes); see also McGreevy v. Stroup, 413 F.3d
12

359 (3d Cir. 2005) (finding that giving an employee a grossly unsatisfactory
employment rating, then effectively terminating the employee for engaging
in protected speech was a violation of clearly established law); Merkle v.
Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) (terminating
employee and maliciously prosecuting employee for outspokenness on
multicultural programs in the school district violated clearly established
First Amendment law); In re Montgomery Cnty., 215 F.3d 367 (3d Cir.
2000) (terminating a public employee in retaliation for speaking out
against the County’s allegedly racially discriminatory employment
practices violated a clearly established right); Pro, 81 F.3d 1283 (finding
it clearly established that a public employee has a First Amendment right
to respond to a subpoena to appear in a proceeding without fear of
retaliation); Zamboni v. Stamler, 847 F.2d 73, 79 n.7 (3d Cir. 1988) (finding
that transferring and taking other disciplinary action against an employee
for speech protected under Pickering is a First Amendment violation).
Accordingly, Third Circuit law clearly establishes that retaliatory
employment action solely based on one’s exercise of his or her First
Amendment rights is unlawful in various circumstances. Furthermore,
the right to freely associate with a union falls within the First Amendment.
See Carroll, 71 F. App’x at 126 n.2; Suppan v. Dadonna, 203 F.3d 228, 237
(3d Cir. 2000).

And, a failure to promote is an adverse employment

decision similar to a demotion or transfer. See Rutan v. Republican Party
of Ill., 497 U.S. 62, 74, 75 (1990) (likening promotion decisions to decisions
13

on dismissals and transfers as impermissible infringements on the First
Amendment right of public employees when they are based on political
affiliation or support).

However, since the Third Circuit has not yet

squarely addressed the issue before this Court — whether negatively
influencing a police promotion process because of an officer’s unionrelated activities would violate the First Amendment’s freedom to associate
— I am required to “consider decisions by other Courts of Appeals as part
of [my] ‘clearly established’ analysis.” Schmidt v. Creedon, 639 F.3d 587,
598 (3d Cir. 2011) (quoting Williams v. Bitner, 455 F.3d 186, 192–93 (3d
Cir. 2006)); see also L.R., 836 F.3d at 248 (“[A] ‘robust consensus of cases
of persuasive authority’ in the Court[s] of Appeals could clearly establish
a right for purposes of qualified immunity” (quoting Mammaro v. N.J. Div.
of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting
Taylor v. Barkes, ––– U.S. ––––, 135 S.Ct. 2042, 2044 (2015) (per curiam)))).
The most analogous case to the facts here is Zerman v. City of
Strongsville, Ohio, 259 F. App’x 723 (6th Cir. 2008), wherein firefighters for
the City of Strongsville claimed, inter alia, that the fire chief, along with
the city, wrongfully passed them over for a promotion because of their
union activities and positions as union officers. Plaintiff Zerman ranked
first in the promotional examination, but after undergoing the interviewing
portion of the exam, Zerman was passed over for promotion.2 Zerman v.
2

Here, too, Mrazek ranked first before beginning the roundtable
portion of the promotion examination process. Mrazek, 2016 WL 5417197,
14

City of Strongsville, Ohio, No. 1:04CV2493, 2006 WL 2812173, at *4 (N.D.
Ohio Sept. 28, 2006), aff’d, 259 F. App’x 723 (6th Cir. 2008). The district
court in Zerman, like here, found that there were genuine issues of
material fact over whether Zerman was “passed over for promotion
[b]ecause of [his] past union activities . . . . The perception [wa]s that [he
was] a union troublemaker.” Id. at *2 (internal quotations and citations
omitted). Thus, the disputed issues of material fact precluded summary
judgment on Zerman’s freedom of association retaliation claim.
Then, the Zerman trial court turned to the fire chief’s qualified
immunity argument and found that the law was clearly established that a
public employee cannot be denied a promotion solely because of his union
activity:
[T]he Sixth Circuit’s statement, more than twenty years ago,
demonstrates the . . . clearly established right:
We have no doubt that an employee who is
disciplined solely in retaliation for his
membership in and support of a union states a
valid first amendment claim under Connick and
Pickering.
Id. at *16 (emphasis original) (quoting Boals v. Gray, 775 F.2d 686, 693
(6th Cir. 1985) (citing Grossart v. Dinaso, 758 F.2d 1221, 1230 n.12 (7th
Cir. 1985); Prof’l Ass’n of Coll. Educators (PACE) v. El Paso Cnty. Cmty. Coll.
Dist., 730 F.2d 258, 262–63 (5th Cir. 1984))). On appeal, the Sixth Circuit

at *12. Furthermore, there no in-person interviews were conducted during
the subjective component of Mrazek’s promotional exam.
15

affirmed “the district court’s well-reasoned opinion [that] support[ed] the
denial of qualified immunity and that the issuance of a detailed written
opinion from [the circuit] would be repetitious.” Zerman, 259 F. App’x at
724.
Similarly, the Fifth Circuit, in Boddie v. City of Columbus, Miss., 989
F.2d 745, (5th Cir. 1993), was concerned with “no more than associational
activity,” Id. at 750, when a fireman alleged he was fired simply “because
he associated with union members.” Id. at 748. At trial, the “jury found
that firing Boddie [did in fact] violate[] his right to freedom of association.”
Id. at 747. The court rejected the fire chief’s defense — that Boddie was
fired “on the basis of [his] poor attitude” — and was “persuaded that in
1987 it was clear that the First Amendment protects an employee’s right
to associate with a union.” Id. at 748, 750. Therefore, the Boddie court
“conclude[d] that [the fire chief] should reasonably have known that firing
Boddie for his association with union firemen violated clearly established
law.” Id. at 750. Having found the fire chief violated clearly established
law, the court rejected the fire chief’s defense of qualified immunity. Id.
Likewise, the Tenth Circuit, in Shrum v. City of Coweta, Okla., 449
F.3d 1132 (10th Cir. 2006), held that it was unconstitutional to retaliate
against an employee for his union association. In Shrum, a police-officer
plaintiff claimed that the chief of police and the city violated his freedom
of association, among other claims, by retaliating against him for his
membership in the labor union.

Id. at 1134–35. There, the retaliatory
16

action consisted of rearranging the police officer’s work schedule to cause
conflicts with his duties as a church minister. Id. at 1134. Shrum had
previously arranged with the police department to have “Wednesday
evenings and Sundays off, so that he could continue to carry out his
ministerial duties.”

Id. at 1135.

However, after another officer was

promoted to chief of police and after a dispute over Shrum’s collective
bargaining rights, he was “[f]orced to choose between his police and his
ministerial responsibilities, [and subsequently Shrum] resigned from the
police department and filed . . . [ ]suit.” Id. at 1134. Ultimately, the court
held that “[n]ot only does the First Amendment freedom of association
protect public employees from retaliation for participation in a union . . .
, but as this Court held in Morfin [v. Albuquerque Pub. Sch.], 906 F.2d
[1434,] 1439 [(10th Cir. 1990)], ‘[t]he unconstitutionality of retaliating
against an employee for participating in a union [is] clearly established.’”
Shrum, 449 F.3d at 1139 (internal citation omitted); Cillo v. City of
Greenwood Vill., 739 F.3d 451, 466 (10th Cir. 2013) (discussing, in the
context of qualified immunity, that a police officer’s “First Amendment
right to associate with a union was . . . clearly established”). Accordingly,
the Tenth Circuit affirmed the district court’s denial of summary judgment
and held the chief was not entitled to qualified immunity.
Indeed, the Supreme Court has clearly established that a public
employee cannot be faced with adverse employment action, i.e., being
passed over for a promotion, solely for exercising his or her right to freely
17

associate (unless that association interferes or disrupts the administration
of a public duty); but most of these cases “revolve around an employee’s
right to associate in order to express political ideas through a union.”
Marshall v. Allen, 984 F.2d 787, 799 (7th Cir. 1993); see e.g., Branti v.
Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976). While
there are few cases that provide a “precise factual correspondence” to the
facts of the instant matter, the cumulative precedent does, however, show
that the contours of the right to freely associate with a union are beyond
debate: a reasonable officer should comprehend the unlawfulness of
basing promotion decisions of another officer solely on his association with
a union. Cf. Carroll, 71 F. App’x at 126 n.2 (“It is reasonable to conclude
that a reasonable officer would comprehend the unlawfulness of basing
any hiring decision of a public employee on party affiliation and support
when party affiliation is not a requirement for the position”).
Lastly, notwithstanding this body of clearly established law, the
Third Circuit’s decision in Rossiter, 2016 WL 7478494, is noteworthy
because it presented a similar freedom of association issue involving a
union, albeit with discernibly different factual circumstances from this
case. The Rossiter case involved a dispute between the local police labor
union and Police Commissioner. Id. at *1. Without approval from the
police union, the police commissioner implemented a new disciplinary
code. Id. The police union responded with a complaint to the Pennsylvania
Labor Relations Board, arguing that the disciplinary code must be
18

negotiated prior to its implementation, and asserting unfair labor
practices. Id. As the police department and labor union were working to
resolve the dispute over the disciplinary code, the police department was
separately dealing with plaintiff-officer Rossiter for another disciplinary
action. Id.
Eventually, the police department offered to resolve Rossiter’s
disciplinary action if the labor union withdrew its unfair labor practices
complaint. Id. at *2. When the union refused to withdraw its complaint,
Rossiter was suspended and subsequently terminated.

Id.

Rossiter

brought, inter alia, a First Amendment retaliation claim against the police
commissioner, and the commissioner claimed qualified immunity. As to
the question of “clearly established” right, the Third Circuit framed its
inquiry as “whether there is an established right of [an] employee in a
pending disciplinary proceeding to associate passively with a union whose
representatives oppose internal policies.”

Id. at *3.

In deciding that

defendant was entitled to qualified immunity, the Rossiter court held that
there was “no consensus of authority that leveraging a claim against a
specific union member facing good faith disciplinary action in an effort to
settle internal police affairs implicates a clearly established constitutional
right.” Id. at *5.
Here, by contrast, there is no disciplinary proceeding, nor a
negotiation over unfair labor practices, nor any other ancillary dispute; the
alleged retaliation in this matter is purely based on Plaintiff’s union
19

association and his position as Union President.

Contrary to Chief

Giberson’s position, Rossiter did not deal with the type of Constitutional
issue involved in this case — negatively influencing a promotions process
for an officer, who was otherwise qualified to be promoted, solely because
of his union association.
Chief Giberson also urges this Court to look to Killion v. Coffey, No.
13-1808, 2016 WL 5417193 (D.N.J. Sept. 27, 2016), for guidance.
According to Chief Giberson, the Killion court found that Plaintiff’s right to
be free from retaliation for his union association was not clearly
established. I disagree. In Killion, plaintiffs’ claims were not based on
union association, but rather on speech related claims. In fact, the Killion
court found that plaintiffs “repackage[d] [their] freedom of speech claims
as freedom of association claims,” and that plaintiffs’ “allegations d[id] not
support a claim for freedom of association.” Id. at *7. Hence, the court
found “that Plaintiffs’ freedom of association claim is ‘barely an extension’
of their freedom of speech claim.” Id. (citing Bell v. City of Philadelphia,
275 F. App’x 157, 160 (3d Cir. 2008)). The Killion court further explained
that “Plaintiffs’ claims fail because Plaintiffs have not adequately pled
constitutionally protected activity or the requisite causal link between
their conduct and Defendants’ alleged retaliation.”

Id. at *16.

Nonetheless, out of “an abundance of caution” the court addressed the
issue of whether defendant was entitled to qualified immunity. Id. In

20

addressing the “clearly established” prong of qualified immunity, the court
framed its inquiry as
whether a police officer’s conduct or speech in support of the
implementation of twelve hour shifts is an exercise of a clearly
established constitutional right, such that it would have been
clear to the Defendants that their alleged retaliation for that
conduct . . . or their failure to investigate such retaliation . . .
was unlawful.
Id. at *17 (emphasis added).

Importantly, the court’s inquiry was

unrelated to a right to associate with a union. While the court found “[i]t
would not have been clear to a reasonable officer . . . that the Plaintiffs
were exercising any clearly established First Amendment rights,” id., the
court’s holding that defendant was entitled to qualified immunity is not
analogous to the issue before this Court, i.e., freedom to associate.
Moreover, Chief Giberson’s citation to other speech cases, without
further explication is not persuasive. See, e.g., Morris v. Philadelphia Hous.
Auth., 487 F. App’x 37 (3d Cir. 2012) (finding that because a city housing
authority employee’s statements were not protected speech, the court need
not reach the question of qualified immunity); Beresford v. Wall Twp. Bd.
of Educ., No. No. 08-2236, 2010 WL 445684 (D.N.J. Feb. 3, 2010) (finding
that statements made in a Union President’s official capacity regarding
raises, sick days, and overtime during union contract negotiations were
not protected speech); Rodriguez v. Torres, 60 F. Supp. 2d 334 (D.N.J.
1999) (finding that first, factual issues precluded summary judgment on
plaintiff’s First Amendment retaliation claim involving harassment, but
21

providing defendant with qualified immunity because the court could not
say it was clearly established that the creation of a hostile work
environment would violate plaintiff’s mixed speech and association rights
under the First Amendment, and second, importantly, the court permitted
plaintiff’s First Amendment retaliation claim based on a failure to promote
to proceed to trial.); see also Killion, 2016 WL 5417193, at *16–*17. In
short, Chief Giberson fails to provide analogous precedent to the
Constitutional rights implicated in this case: (1) being passed over for a
promotion (2) because of union-activities.
Finally, Chief Giberson also attempts to relitigate his summary
judgment motion, arguing that Plaintiff’s position as Union President was
not discussed during the roundtable portion of the promotion process.
However, this Court has already found a genuine issue of material fact
exists as to the roundtable discussions and their import, and whether
Chief Giberson retaliated against Mrazek because of his union affiliation.
See Mrazek, 2016 WL 5417197, at *9–15. I will not revisit that issue here.
In sum, clearly established law provides a public employee the right
to join a union and prohibits retaliatory employment action — such as
passing over a public employee for a promotion — for exercising his or her
First Amendment right to associate. To hold otherwise would render the
right to join a union a hollow exercise. 3 Therefore, “[w]hen the balance of

As the Supreme Court suggested in dictum, if the government had
“tak[en] steps to prohibit or discourage union membership or association,”

3

22

cognizable interests weighs . . . in an employee’s favor, our cases make
plain that the law is clearly established.”

Dougherty v. Sch. Dist. of

Philadelphia, 772 F.3d 979, 994 (3d Cir. 2014) (quoting McGreevy, 413
F.3d at 367).
II.

MONELL LIABILITY
Count III of Mrazek’s Complaint asserts a § 1983 Monell claim

against Stafford Township.

Mrazek alleges that Stafford Township,

through Chief Giberson, retaliated against him for engaging in union
activities, which subsequently resulted in Plaintiff being passed over for a
promotion. Mrazek contends that Chief Giberson is the final “policymaker”
for the Police Department, an administrative arm of the municipality, and
therefore, Chief Giberson’s retaliatory decision “against Mrazek on the
account of his union membership constitutes an unwritten policy.”
Mrazek, 2016 WL 5417197, at *16. In response, “Defendants contend that
Mrazek may not premise his Monell claim based upon the act of the
Township’s employee, i.e., Chief Giberson; rather, Defendants maintain

Smith, 441 U.S. at 466, it would be unlawful. see Rossiter, 2016 WL
7478494, at *4; see also Perry v. Sindermann, 408 U.S. 593, 597 (1972)
(“For if the government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of those
freedoms would in effect be penalized and inhibited” (citation omitted)).
Here, Chief Giberson allegedly influenced the promotion process based
upon Plaintiff’s union affiliation and this allegedly resulted in the failure
to promote Plaintiff. Such conduct is precisely the type of governmental
action that discourages union membership and taking on a leadership role
within a union.
23

that Mrazek must identify a policy or custom of the Township itself that
caused him injuries.” Id. I asked the parties to submit additional briefing
to address whether Chief Giberson’s promotion decisions as to Mrazek can
bind Stafford Township under Monell.
Under § 1983, to hold a municipality liable for a Constitutional
wrong, the alleged violation must be the result of an official policy or
custom. Monell, 436 U.S. at 694; Beck v. City of Pittsburgh, 89 F.3d 966,
971 (3d Cir. 1996). “A policy may be made only when a policymaker issues
an official proclamation or decision.” Hernandez v. Borough of Palisades
Park Police Dep’t, 83 F. App’x 909, 912 (3d Cir. 2003) (citing Andrews v.
City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citations
omitted)). Whereas, “[a] custom may exist where the relevant practice is
so permanent and ‘widespread as to have the force of law.’” Hernandez, 83
F. App’x at 912 (quoting Bryan Cnty. Comm’rs v. Brown, 520 U.S. 397, 404
(1997)).
Generally, there are three scenarios in which a municipality may be
liable for the torts of its employees under Monell:
1. If a municipality’s employee acts “pursuant to a formal
government policy or a standard operating procedure long
accepted within the government entity;”
2. “[W]hen the individual has policy making authority
rendering his or her behavior an act of official government
policy;” and
3. “[I]f an official with authority has ratified the
unconstitutional actions of a subordinate, rendering such
behavior official for liability purposes.”
24

McGreevy, 413 F.3d at 368 (citing Jett v. Dallas Independent School
District, 491 U.S. 701, 737 (1989); Pembaur v. City of Cincinnati, 475 U.S.
469, 480–81 (1986) (plurality opinion); City of St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988)). Because Plaintiff has premised his claim on a single
decision, this Court’s Opinion focuses only on the second scenario.
Of course, “not every decision by municipal officers automatically
subjects the municipality to § 1983 liability.” Pembaur, 475 U.S. at 481.
In essence, such a rule would be akin to respondeat superior.

And,

“[g]overnmental liability under § 1983 may not attach merely by operation
of respondeat superior” because a decisionmaking officer violates a policy.
Marable v. W. Pottsgrove Twp., 176 F. App’x 275, 283 (3d Cir. 2006) (citing
Monell, 436 U.S. at 691); Simmons v. City of Phila., 947 F.2d 1042, 1060
(3d Cir. 1991).

Indeed, “[t]he fact that a particular official — even a

policymaking official — has discretion in the exercise of particular
functions does not, without more, give rise to municipal liability based on
an exercise of that discretion.” Pembaur, 475 U.S. at 481–82.
Rather, where the alleged violation results from a single decision, “a
municipality generally may incur Monell liability only where the
decisionmaker is a municipal ‘policymaker.’” Marable, 176 F. App’x at 283
(citing Pembaur, 475 U.S. at 481–82). More specifically, “only where the
decisionmaker possesses final authority to establish municipal policy with
respect to the action ordered” does municipal liability attach. Pembaur,
25

475 U.S. at 481 (emphasis added). In other words, to attach government
liability under Monell, the alleged Constitutional violation must be
considered an official action taken by the municipality through an
individual that has final policymaking authority. Id. at 483.
To determine whether an official “has final policy-making authority,
and can thus bind the municipality by his conduct,” Hill v. Borough of
Kutztown, 455 F.3d 225, 245 (3d Cir. 2006), this Court must first
determine whether “the official is responsible for making policy in the
particular area of municipal business in question,” id. (emphasis original)
(citing McMillian v. Monroe County, 520 U.S. 781, 785 (1997); Praprotnik,
485 U.S. 112), and, second, “whether the official’s authority to make policy
in that area is final and unreviewable.”

Id. (emphasis original) (citing

Praprotnik, 485 U.S. 112; Pembaur, 475 U.S. at 483; McGreevy, 413 F.3d
at 369; Brennan v. Norton, 350 F.3d 399, 428 (3d Cir. 2003)). Importantly,
“if a municipal employee’s decision is subject to review, even discretionary
review, it is not final and that employee is therefore not a policymaker for
purposes of imposing municipal liability under § 1983.”

Brennan, 350

F.3d at 428 (citation omitted).
Due to the “extremely wide latitude [states have] in determining the
form that local government takes,” Praprotnik, 485 U.S. at 124, whether
an official is vested with “final policymaking authority is a question of state
law.” Pembaur, 475 U.S. at 483. Accordingly, in determining whether
Chief Giberson had final policymaking authority, this Court must look to
26

state law and local ordinances and regulations governing Stafford
Township’s police department. See Praprotnik, 485 U.S. at 125.
To begin, Mrazek points to N.J.S.A. 40A:14-118, known as the
Chief’s Bill of Rights, and argues that Chief Giberson is “vested with
authority to oversee the day-to-day activities in the police department
through [this statute].”

Pl.’s Br. 2.

While Mrazek is correct that this

statute provides Chief Giberson with authority over “routine day to day
operations,” id.; accord Hernandez, 83 F. App’x at 913 (explaining the chief
of police is the final policymaker for “personnel functions and operations”
and in setting “administrative policies of the department” (emphasis
added)), his assertion that Chief Giberson has authority “to make policy”
with respect to promotions or promotion decisions is erroneous. See Pl.’s
Br. 2–3. As Mrazek relies heavily on this statute, this Court will quote the
law in its entirety:
The governing body of any municipality, by ordinance, may
create and establish, as an executive and enforcement
function of municipal government, a police force, whether as
a department or as a division, bureau or other agency thereof,
and provide for the maintenance, regulation and control
thereof. Any such ordinance shall, in a manner consistent
with the form of government adopted by the municipality and
with general law, provide for a line of authority relating to the
police function and for the adoption and promulgation by the
appropriate authority of rules and regulations for the
government of the force and for the discipline of its members.
The ordinance may provide for the appointment of a chief of
police and such members, officers and personnel as shall be
deemed necessary, the determination of their terms of office,
the fixing of their compensation and the prescription of their
powers, functions and duties, all as the governing body shall
deem necessary for the effective government of the force. Any
27

such ordinance, or rules and regulations, shall provide that
the chief of police, if such position is established, shall be the
head of the police force and that he shall be directly responsible
to the appropriate authority for the efficiency and routine day
to day operations thereof, and that he shall, pursuant to
policies established by the appropriate authority:
a.

Administer and enforce rules and regulations and
special emergency directives for the disposition and
discipline of the force and its officers and personnel;

b.

Have, exercise, and discharge the functions, powers and
duties of the force;

c.

Prescribe the duties and assignments
subordinates and other personnel;

d.

Delegate such of his authority as he may deem
necessary for the efficient operation of the force to be
exercised under his direction and supervision; and

e.

Report at least monthly to the appropriate authority in
such form as shall be prescribed by such authority on the
operation of the force during the preceding month, and
make such other reports as may be requested by such
authority.

of

all

As used in this section, “appropriate authority” means the
mayor, manager, or such other appropriate executive or
administrative officer, such as a full-time director of public
safety, or the governing body or any designated committee or
member thereof, or any municipal board or commission
established by ordinance for such purposes, as shall be
provided by ordinance in a manner consistent with the degree
of separation of executive and administrative powers from the
legislative powers provided for in the charter or form of
government either adopted by the municipality or under
which the governing body operates.
Except as provided herein, the municipal governing body and
individual members thereof shall act in all matters relating to
the police function in the municipality as a body, or through
the appropriate authority if other than the governing body.

28

Nothing herein contained shall prevent the appointment by
the governing body of committees or commissions to conduct
investigations of the operation of the police force, and the
delegation to such committees or commissions of such powers
of inquiry as the governing body deems necessary or to
conduct such hearing or investigation authorized by law.
Nothing herein contained shall prevent the appropriate
authority, or any executive or administrative officer charged
with the general administrative responsibilities within the
municipality, from examining at any time the operations of the
police force or the performance of any officer or member
thereof. In addition, nothing herein contained shall infringe
on or limit the power or duty of the appropriate authority to
act to provide for the health, safety or welfare of the
municipality in an emergency situation through special
emergency directives.
N.J.S.A. 40A:14-118 (emphasis added). Nowhere in the statute is there a
scintilla of “final and unreviewable” authority delegated to any chief of
police, let alone Chief Giberson, to make employment related policy or
decisions — specifically, promotions. See Santiago v. City of Vineland, 107
F. Supp. 2d 512, 540 (D.N.J. 2000).

In fact, the chief of police acts

“pursuant to policies established by the appropriate authority,” and the
chief of police is required to provide monthly reports to the “appropriate
authority,” which is defined by the statute as “the mayor, manager, or such
other appropriate executive or administrative officer, such as a full-time
director of public safety . . . .” N.J.S.A. 40A:14-118; see Santiago, 107 F.
Supp. 2d at 540. Thus, New Jersey’s “Chief’s Bill of Rights” does not confer
“final and unreviewable” authority to Chief Giberson to make policy or
decisions in the particular context of promoting officers.
Moreover, both parties agree that the promotion policy related to
Mrazek’s alleged Constitutional injury must be approved, adopted, and
29

incorporated in the Township Code by way of a Resolution. While Chief
Giberson may have written the promotion policy and played a “major role”
in developing the policy, it is clear that his authority was not “final and
unreviewable.” Additionally, neither promoting officers nor drafting a new
promotion policy qualify as “routine day to day operations” as enumerated
in New Jersey’s “Chief’s Bill of Rights” statute. See N.J.S.A. 40A:14-118(a)(e).

These particular actions are always subject to the parameters

established by Stafford Township. See id.; accord Stafford Township Code
§§ 41-3A, 41-4A, 41-6A.
Fittingly, the Supreme Court in Pembaur discussed an analogous
example to the instant facts. There, the Court noted:
the County Sheriff may have discretion to hire and fire
employees without also being the county official responsible
for establishing county employment policy. If this were the
case, the Sheriff’s decisions respecting employment would not
give rise to municipal liability, although similar decisions with
respect to law enforcement practices, over which the Sheriff is
the official policymaker, would give rise to municipal liability.
Instead, if county employment policy was set by the Board of
County Commissioners, only that body’s decisions would
provide a basis for county liability. This would be true even if
the Board left the Sheriff discretion to hire and fire employees
and the Sheriff exercised that discretion in an
unconstitutional manner; the decision to act unlawfully would
not be a decision of the Board. However, if the Board delegated
its power to establish final employment policy to the Sheriff,
the Sheriff's decisions would represent county policy and
could give rise to municipal liability.
Pembaur, 475 U.S. at 484 n.12 (emphasis original). Under this guidance,
the only other way that Chief Giberson’s decisions involving promotions
can give rise to municipal liability is where final employment power is
30

delegated to him by Stafford Township. Accordingly, this Court must look
to Stafford Township’s Administrative Code to determine whether Chief
Giberson was delegated the authority to make promotion decisions
without municipal review.
Mrazek argues that “the policies and ordinances of the Township of
Stafford” provide Chief Giberson with policymaking authority in the
context of promotions. However, Mrazek fails to provide, or cite to, the
relevant Township policies and ordinances that confer this specific
authority. Rather, the policies and ordinances of Stafford Township cited
by Mrazek actually support Stafford Township’s position.
First, Stafford Township Code provides that Chief Giberson’s
promotion policy and subsequent decisions to promote specific officers are
subject to approval by the Township Council. Indeed, Stafford Township’s
Code provides that the chief of police, similar to N.J.S.A. 40A:14-118, acts
“pursuant to the policies established by the appropriate authority” and
reports back to the appropriate authority regularly. See Stafford Township
Code § 41-3A. Further, “[a]ll police officers, without regard to rank, shall
be appointed by the Township Council by resolution.

All promotions

within the Department shall be made by the Township Council by
resolution.” Id. § 41-4A (emphasis added). Similarly, when new “[r]ules
and regulations [are adopted] for the efficient operation of the Police
Department[, those rules and regulations] shall be recommended by the
appropriate authority and submitted to the Township Council for adoption
31

by resolution. . . . The rules and regulations may be amended at any time
by the Township Council by the adoption of a resolution setting forth any
amendments or additions to the police rules and regulations.” Id. § 41-6A
(emphasis added).

Pursuant to these municipal provisions, Chief

Giberson’s promotion policy and all of Chief Giberson’s selections for
promotion needed to be reviewed and subsequently adopted through
resolutions by the Township Council. Indeed, Stafford Township followed
this very protocol in promoting its officers by way of resolution, see, e.g.,
Stafford Township Resolution 2013-148; Stafford Township Resolution
2013-187; Stafford Township Resolution 2014-175; Stafford Township
Resolution 2016-111, and amending its promotion policy by way of
resolution, see, e.g., Stafford Township Resolution 2016-103.
Mrazek also contends that several cases illustrate that a chief of
police has policymaking authority in the context of promotions. However,
Mrazek relies on cases that tend to show that the chief has policymaking
authority in other contexts (and in other municipalities with their own
respective and different policies and procedures). For example, Mrazek
argues that Hernandez v. Borough of Palisades, 83 F. App’x 909 (3d Cir.
2003) and Black v. Stephens, 662 F.2d 181 (3d Cir. 1981), support Chief
Giberson having policymaking authority. But, Mrazek misses the point,
because neither case deals with policymaking authority “in the particular
area of municipal business in question.” Hill, 455 F.3d at 245 (emphasis
original) (citation omitted). In Hernandez, the court explained that the
32

chief of police, there, was the final policymaker for “personnel functions
and operations” and in setting “administrative policies of the department.”
Hernandez, 83 F. App’x at 913 (emphasis added). In Black, the court
explained that because the chief “wrote and implemented an official police
regulation concerning disciplinary hearings” and was a “member of the
Mayor’s cabinet, [where he] propose[d] and manage[d] the budget and
establishe[d] policies and procedures for the entire police department,” his
actions constituted an official act of policy with respect to investigating
complaints, disciplining officers, and encouraging excessive force. Black,
662 F.2d at 189–91. As such, these distinguishable cases do not support
Plaintiff’s position here.
Additionally, Mrazek’s reliance on Hines v. Albany Police Dep’t, 520
F. App’x 5 (2d Cir. 2013) and Andrews v. City of Philadelphia, 895 F.2d
1469 (3d Cir. 1990) is similarly misplaced. Hines involved a search and
seizure police policy, which that court found was a policy for which the
chief of police was responsible for providing final oversight. See Hines,
520 F. App’x 5, at *2.

In Andrews, the police commissioner was a

policymaker in the context of sexual discrimination because the
commissioner “promulgated and disseminated a police department
training manual and a course outline explaining the prohibitions against
sexual harassment and discrimination.”

Andrews, 895 F.2d at 1481.

Moreover, the commissioner “also set up a division, the Equal Employment
Office, to deal with problems of discrimination and he personally reviewed
33

the [Internal Affairs Division] report issued in th[e] case.” Id. As such, the
Third Circuit found “that, at the least, [the commissioner] ‘retained the
authority to measure’” the conduct in issue. Id. Thus, the cases Mrazek
relies upon do not no bear on Chief Giberson’s authority with respect to
promoting officers in Stafford Township.
Finally, Mrazek’s argument that Chief Giberson was the “issuing
authority” for the promotion policy and played a “major role” in developing
the policy does not carry the day. As discussed above, the municipality
retained the authority to review, adopt, and amend the promotion policy.
That the policy was adopted in full does not somehow relinquish Stafford
Township’s authority to review the promotion policy.

Nevertheless,

Plaintiff argues that this was a case of township acquiescence. Plaintiff
reasons that even if Stafford Township could have disapproved Chief
Giberson’s promotion decisions, they effectively gave the Chief unfettered
“power” to make all promotion decisions. Pl. Supp. Br., p. 7. For support,
Plaintiff points to a New Jersey Supreme Court decision, Besler v. Bd. of
Educ. of W. Windsor-Plainsboro Reg’l Sch. Dist., 201 N.J. 544 (2010), which,
on its facts is not helpful to Plaintiff’s position. More importantly, Plaintiff
has not cited to any Third Circuit case law that has endorsed this theory
of acquiescence in the Monell context.
In Besler, the plaintiff alleged that his First Amendment right to free
speech was violated when a school board president stopped him from
completing a statement regarding a coach’s verbally abusive demeanor.
34

Id. at 555-56. While the president was not endowed with final decisionmaking authority on all board-related issues, the Court found that the
board members, who were also present when the president allegedly stifled
plaintiff’s speech, acquiesced in the decision to silence the plaintiff. Id. at
568. However, in making this determination, the Court found dispositive
that the board members were aware of the purported wrongful conduct
(indeed, the board members were present at the time the alleged
unconstitutional act was committed in Besler) and that such awareness
must be shown before acquiescence can be established. Id. at 567. Here,
nothing in the record indicates that either the Mayor or Township Council
was aware of Chief Giberson’s alleged retaliatory animus during Mrazek’s
promotion process. Moreover, Plaintiff has not presented any evidence to
show that Stafford Township somehow empowered Chief Giberson to make
all promotion decisions without any oversight. Rather, Plaintiff maintains
— in a conclusory manner in his brief, without citations to anything in the
record — that merely because Chief Giberson drafted and recommended
the promotion exam and its policy to the Township Council, which were
then adopted by the Council without change, the Council must have
provided the Chief with unchecked power to make any and all promotion
decisions, including which candidates to promote to the rank of sergeant.
Glaringly, however, Plaintiff points to no evidence in the record to support
his theory, and discovery has concluded.

35

Moreover, the promotion policy is not the proximate cause of
Mrazek’s alleged injury. Rather, Mrazek’s alleged injury results from Chief
Giberson’s decision not to recommend Mrazek for promotion. Although
Mrazek argues that Chief Giberson also heard exam score appeals, as this
Court has already concluded, Chief Giberson’s authority to recommend
officers for promotion is subject to review, and therefore, not final. See
Brennan, 350 F.3d at 428; e.g., Stafford Township Resolution 2013-148;
Stafford Township Resolution 2013-187; Stafford Township Resolution
2014-175; Stafford Township Resolution 2016-111.
Ultimately, Plaintiff fails to meet his burden to show that the Mayor
or Township Council played any role in, or were even aware of, the alleged
retaliatory behavior on the part of Chief Giberson. And, there is no
evidence in the record that the municipality delegated any of its
policymaking authority with regard to promoting officers to Chief Giberson
by acquiescence or otherwise.

Insofar as Chief Giberson’s alleged

retaliatory conduct against Mrazek constituted an unofficial policy against
union activities, it is in contravention of Stafford Township’s established
policy. 4 Plaintiff’s theory of liability is, instead, akin to respondeat superior

Additionally, Stafford Township’s policy is not inconsistent with its
collective bargaining agreement with Stafford Township Local 297
Policeman’s Benevolent Association, the Union wherein Mrazek was
President. See Def.’s Br. Ex. L and M (providing in Article IX that “Nothing
in this Agreement shall interfere with the right of the Employer[, defined
as the “Township of Stafford”,] in accordance with the applicable statutes,
ordinances, rules and regulations to: . . . promote . . . employees in
positions within the municipality . . . .” (emphasis added)).
4

36

because, without “final and unreviewable” authority, Chief Giberson was
not a final policymaker with respect to promoting officers. Put differently,
if Chief Giberson acted in violation of Mrazek’s First Amendment rights,
he did so personally — not in the manner in which the municipality would
be responsible under Monell.

See Pembaur, 475 U.S. at 480 (“Monell

reasoned that recovery from a municipality is limited to acts that are,
properly speaking, acts ‘of the municipality’ — that is, acts which the
municipality has officially sanctioned or ordered”).
To conclude, Chief Giberson’s discretionary decisions on whom to
promote “are constrained by policies not of [his own] making, those
policies, rather than [Chief Giberson’s] departures from them, are the act
of the municipality.” Praprotnik, 485 U.S. at 127 (emphasis added). The
final “policymaker” for promoting officers rests with Stafford Township,
and as a result, Chief Giberson is not a “policymaker” for Monell purposes
in the context of this case. See Davison v. City of Minneapolis, Minn, 490
F.3d 648, 660 (8th Cir. 2007) (explaining that although the Chief “had the
authority to select particular individuals for promotion and even to design
the procedures governing promotions within his department, this
authority d[oes] not include responsibility for establishing substantive
personnel policy governing the exercise of his authority” (citation omitted));
Greensboro Prof’l Fire Fighters Ass’n, Local 3157 v. City of Greensboro, 64
F.3d 962, 965 (4th Cir. 1995) (same).

37

CONCLUSION
For the above reasons, Defendants motion for summary judgment is
DENIED in part and GRANTED in part. Chief Giberson is not entitled to
qualified immunity and summary judgment on Count IV is denied.
However, because Chief Giberson did not have final policymaking
authority to make promotion decisions, Plaintiff’s Monell claim fails;
summary judgment on Count III is granted.

Dated: May 5, 2017

/s/
Freda L. Wolfson
Freda L. Wolfson
United States District Judge

38