The opinion
Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
5-9-1997
Latessa v. NJ Racing Comm
Precedential or Non-Precedential:
Docket 96-5316
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Filed May 9, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-5316
DONATO P. LATESSA; VICTORIA R. LATESSA,
Appellants,
v.
NEW JERSEY RACING COMMISSION; SANTO LALOMIA,
INDIVIDUALLY AND OFFICIALLY AS A MEMBER OF THE
NEW JERSEY RACING COMMISSION; OLIVER R.
KOVACS, INDIVIDUALLY AND OFFICIALLY AS A
MEMBER OF THE NEW JERSEY RACING COMMISSION;
STUART O. GOLDSMITH, INDIVIDUALLY AND
OFFICIALLY AS A MEMBER OF THE NEW JERSEY
RACING COMMISSION; WILLIAM E. MCGLYNN,
INDIVIDUALLY AND OFFICIALLY AS A MEMBER OF THE
NEW JERSEY RACING COMMISSION; DANIEL A.
MONACO, DR., INDIVIDUALLY AND OFFICIALLY AS A
MEMBER OF THE NEW JERSEY RACING COMMISSION;
FRANK ORECHIO, INDIVIDUALLY AND OFFICIALLY AS A
MEMBER OF THE NEW JERSEY RACING COMMISSION;
SAVINO J. RUSSONIELLO, JR., INDIVIDUALLY AND
OFFICIALLY AS A MEMBER OF THE NEW JERSEY
RACING COMMISSION; SAMUEL M. CANNELLA,
INDIVIDUALLY AND OFFICIALLY AS A MEMBER OF THE
NEW JERSEY RACING COMMISSION; PETER J.
COFRANCESCO, JR., INDIVIDUALLY AND OFFICIALLY AS
A MEMBER OF THE NEW JERSEY RACING
COMMISSION; FRANCESCO ZANZUCCKI, INDIVIDUALLY
AND AS DIRECTOR OF THE NEW JERSEY RACING
COMMISSION; MICHAEL VUKCEVICH, INDIVIDUALLY
AND AS DEPUTY DIRECTOR OF THE NEW JERSEY
STATE RACING COMMISSION,
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 94-cv-05946)
Argued February 7, 1997
Before: STAPLETON and MANSMANN, Circuit Judges,
RESTANI, Judge, Court of International Trade.*
(Filed May 9, 1997)
August R. Soltis (Argued)
Iulo & Rowek
165 Prospect Street
Passaic, New Jersey 07055
COUNSEL FOR APPELLANTS
Peter Verniero
Attorney General of New Jersey
Joseph L. Yannotti
Assistant Attorney General,
of counsel
Jed M. Milstein
Deputy Attorney General
Pamela B. Katten (Argued)
Senior Deputy Attorney General
Richard J. Hughes Justice Complex
CN 112
Trenton, New Jersey 08625
COUNSEL FOR APPELLEES
OPINION OF THE COURT
RESTANI, Judge.
Appeal is from a grant of summary judgment in favor of
the defendant, New Jersey Racing Commission
_________________________________________________________________
*The Honorable Jane A. Restani, Judge, United States Court of
International Trade, sitting by designation.
2
("Commission") and various of its employees. Appellant
challenges his non-reappointment as a racing judge
following his criticism of Commission executives' actions in
connection with penalty adjudication and his public
testimony about the same. He alleges violation of his
Fourteenth Amendment due process rights, his First
Amendment free speech rights, and the New Jersey
Conscientious Employee Protection Act, N.J. Stat. Ann.
§ 34:19-1 et seq. (West 1996).1 We review the summary
judgment record in the light most favorable to the
appellant, the non-moving party. We will affirm as to the
Fourteenth Amendment causes of action, but will reverse
and remand for fact-finding as to the First Amendment
claim and the related state law claim.
FACTS
Defendant New Jersey Racing Commission is a body
created by N.J. Stat. Ann. § 5:5-22 (West 1996) with
jurisdiction, powers and duties overseeing horse racing
conducted in the State of New Jersey. Defendant Francesco
Zanzuccki is the Executive Director of the New Jersey
Racing Commission, and defendant Michael Vukcevich is
the Deputy Director of the New Jersey Racing Commission.
In 1985, Mr. Latessa was licensed by the United States
Trotting Association as an Associate Judge with powers to
officiate as a judge at harness horse meets. In the latter
part of 1985, he began working at various race tracks in
New Jersey as either a Patrol Judge or an Associate Judge.
Mr. Latessa was first appointed by the Commission as
Presiding Judge at Garden State Park in 1988 and was also
appointed to that position at the Meadowlands Race Track
("The Meadowlands") in 1992.
In New Jersey, racing judges are appointed on a meet-by-
meet basis. N.J. Stat. Ann. § 5:5-37(a) (West 1996). They
are paid on a weekly basis and do not receive fringe
benefits. See id. They serve at the pleasure of the
Commission. N.J. Stat. Ann. § 5:5-37(a).
_________________________________________________________________
1. To the extent Latessa pursues a common law wrongful discharge claim
on appeal, Latessa may not pursue that claim on remand because he
failed to raise it before the district court in the first instance.
3
Penalty decisions are made in the first instance by
certain officials employed by the Commission, including
panels of judges. N.J. Admin. Code tit. 13, § 71-1.20(b)
(1990). The Commission itself may modify a penalty
decision. Id. § 71-1.23. Thereafter, appeal may be filed with
the Commission, but the Commission may reject or modify
on its own motion any imposed penalty or decision. Id.
§ 71-3.3 (1995). Sometime in early 1993, Mr. Zanzuccki
and Mr. Vukcevich began making penalty
"recommendations" in horse drugging cases prior to the
formal action of the three judge panel authorized to take
initial action in such matters.
In July of 1993, Mr. Zanzuccki told Mr. Latessa that a
120-day penalty should be imposed on Thomas Milici, a
horse trainer accused of administering an illegal drug, by
the panel of judges which included Mr. Latessa. Mr.
Latessa did not demur, but rather advised the panel of Mr.
Zanzuccki's statement. The other judges disagreed,
believing that the penalty would be inconsistent with
penalties imposed in like circumstances previously and
imposed a 90-day sentence. Mr. Latessa did not register a
contrary vote.
Mr. Zanzuccki was not pleased with the outcome of the
Milici matter and demanded reports from the three judges
as to what had occurred. The other two judges did not
discuss what had occurred procedurally, but reported on
the substance of their reasoning. Mr Latessa described
similar reasoning, but also indicated that while he had
advocated Mr. Zanzuccki's preferred penalty, he had been
outvoted. Follow-up questioning of the other judges
indicated to Mr. Zanzuccki that Mr. Latessa's "advocacy"
did not go beyond reporting Mr. Zanzuccki's statement and
that Mr. Latessa registered no formal dissenting vote.
During the summer of 1993, Mr. Zanzuccki continued to
either recommend or direct drug violation penalties prior to
the completion of proceedings before the panel of racing
judges. It was in connection with one of these cases that
Mr. Latessa later gave testimony before the Office of
Administrative Law about the early intervention of Mr.
Zanzuccki in the proceedings.
4
At the end of the summer Mr. Latessa was reappointed
as the Presiding Judge for the upcoming harness racing
meet at Garden State Park. During the early fall Mr.
Latessa, Mr. Vukcevich, and Mr. Zanzuccki continued to
disagree about the manner in which the Milici matter was
handled. In the first week of November, during a racing
meet in California, Santo Lalomia, Chairman of the New
Jersey Racing Commission, interviewed Michael Corley for
the position of Presiding Judge. On November 16, 1993, Mr.
Zanzuccki requested a meeting with Mr. Latessa scheduled
for November 30, 1993. On November 19, 1993, Mr.
Vukcevich sent Mr. Latessa a memorandum noting the
"inconsistent" accounts of the Milici deliberations, as well
as other points of disagreement. On November 22, 1993,
Mr. Latessa testified before the Office of Administrative Law
and one day later Mr. Zanzuccki sent a memorandum to
Mr. Lalomia indicating he had decided not to reappoint Mr.
Latessa. The administrative law judge credited Mr.
Latessa's testimony and issued an opinion on November 29,
1993, critical of the actions of Mr. Zanzuccki and his
deputy. The administrative law judge said in part:
The impartiality of the agency head - the NJRC - will
be compromised if the Executive Director and/or
Deputy Director participate in any advisory capacity
concerning the penalty issue. The Executive Director
and Deputy Director have already instructed the judges
to impose a two-year suspension. The Deputy Director
and Executive Director have in the past discussed
penalty with the NJRC after an ALJ issued a decision,
thereby making the proceedings before the OAL seem
rather superfluous. "The primary reason for
establishing the [OAL] was `to bring impartiality and
objectivity to agency hearings and ultimately to achieve
higher levels of fairness in administrative
adjudications.' " In re Uniform Administrative Procedure
Rules, 90 N.J. 85, 90 (1982) (citation omitted); . . .
While an administrative agency has the ultimate
authority to adopt, reject or modify an ALJ's
recommended findings of fact and conclusions of law,
"the agency head must base the final decision solely on
the record established at the hearing." Matter of
5
Opinion No. 583, supra, 107 N.J. at 238. Thus, if the
NJRC considers "other" information from the Executive
Director and Deputy Director, the very individuals who
proposed the penalty in this case, then the NJRC, as
the final authority, would be admitting new evidence
that neither the opposing party nor this ALJ had the
opportunity to consider. Such actions, if permitted,
would undermine the very purpose of the OAL
proceeding. On a lesser scale of importance, but
significant, and equally troubling, is the apparent
blending of functions that seems to be common
practice at the NJRC. Presiding Judge Latessa plainly
acknowledged that he did not feel that the judges could
do anything but follow the penalty proposed. From his
testimony, a licensee, like Rubin, must question how
impartial is such a hearing and, even assuming that
there is nothing wrong with this practice, which seems
to be at odds with basic due process notions, there is
an [sic] least an appearance of impropriety. Such
practices place individuals of high integrity, like
Latessa and Gallagher, who essentially serve at the
pleasure of the NJRC, in a difficult and possibly a
compromising position. The potential for abuse is
present and carried to its logical extreme, could result
in the dismissal of a conscientious judge or steward.
App. at 195-96 (emphasis in original).
On December 3, 1993, Mr. Corley was recommended as
the replacement for Mr. Latessa at the 1994 Meadowlands
Harness Race Meeting.
Discussion
I
Pursuant to 28 U.S.C. § 1291 we have jurisdiction to
decide this appeal from a final decision of the district court.
The district court had jurisdiction under 28 U.S.C. § 1331
as plaintiff brought claims under 42 U.S.C. SS 1981, 1983,
1985 and 1988.2
_________________________________________________________________
2. The district court's dismissal of appellants' claim under 42 U.S.C.
§ 1985(2) is not the subject of the appeal. The district court indicated
6
As this matter comes to us following a grant of summary
judgment under Fed. R. Civ. P. 56 in favor of defendants on
all claims, review is plenary. Jefferson Bank v. Progressive
Cas. Ins. Co., 965 F.2d 1274, 1278 (3d Cir. 1992). We also
address whether the district court abused its discretion in
denying leave to amend the complaint under Fed. R. Civ. P.
15(a) to add new state law claims. Douglas v. Owens, 50
F.3d 1226, 1235 (3d Cir. 1995).
Mr. Latessa alleges three causes of action under 42
U.S.C. § 1983 based on deprivation of federal constitutional
rights. First, he alleges violation of his Fourteenth
Amendment due process rights stemming from his liberty
interest in remaining free to work as a racing judge.
Second, he alleges violation of his Fourteenth Amendment
due process rights stemming from his property interest in
his position as Presiding Judge for the New Jersey Racing
Commission. Third, he alleges violation of his free speech
rights under the First Amendment. We will address these
issues in the order set forth.
II
Mr. Latessa alleges violation of his Fourteenth
Amendment due process rights stemming from his liberty
interest in remaining free to work as a racing judge. The
liberty interest at issue is the right to "pursue a calling or
occupation, and not the right to a specific job." Piecknick v.
Commonwealth of Pennsylvania, 36 F.3d 1250, 1259 (3d
_________________________________________________________________
that no claim existed under 42 U.S.C. § 1981 and plaintiff presented no
arguments on appeal indicating he has such a claim. Thus, we affirm
dismissal of the action as to that section. The district court also
indicated that the parties were in agreement that the Eleventh
Amendment requires dismissal of the federal causes of action against the
state agency defendant. While claims based on statutes implementing
the Fourteenth Amendment are not barred by the Eleventh Amendment
if the intent to abrogate state immunities is clear, see Seminole Tribe of
Florida v. Florida, 116 S. Ct. 1114, 1131 n.15 (1996), here, the parties
agreed that the Commission is a state agency and not a "person" for
purposes of 42 U.S.C. § 1983. See Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989). Waiver of immunity for the state law claims was
not addressed.
7
Cir. 1994) (quoting Wroblewski v. City of Washburn, 965
F.2d 452, 455 (7th Cir. 1992)).
We affirm the district court's grant of summary judgment
against Mr. Latessa as "there is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Mr. Latessa
failed to present any support for his contention that due to
his non-reappointment he was effectively banned from all
work in his occupation as a racing judge. In response to the
motion for summary judgment he offered neither affidavits
nor evidence of unsuccessful attempts to secure such
employment following the non-reappointment at The
Meadowlands.3 Mr. Latessa worked at tracks other than
The Meadowlands and he did not attempt to establish that
employment at other venues was not reasonably available
to him. Moreover, Mr. Latessa offers no support for the
proposition that he was unreasonably restricted in his
ability to pursue his chosen occupation. Thus, the district
court appropriately granted defendants' summary judgment
on Mr. Latessa's claim of deprivation of a liberty interest
without due process of law in violation of the Fourteenth
Amendment.
III
In order to succeed on a claim of deprivation of due
process under the Fourteenth Amendment with respect to
termination of a specific employment position, a plaintiff
must first establish a property interest in the employment.
Board of Regents of State Colleges v. Roth, 408 U.S. 564,
576 (1972). To have a property interest in a job or job
benefit, an employee must have a legitimate claim of
entitlement, not just a unilateral expectation. Id. at 577.
Mr. Latessa lacked a legitimate claim of entitlement to his
position. The parties do not dispute that New Jersey racing
judges are appointed on a meet-by-meet basis, paid on a
weekly basis, and receive no fringe benefits. Moreover, they
_________________________________________________________________
3. Following the non-reappointment, he did work as a racing judge in
Maryland for a short time, but he found it unacceptable for geographical
reasons.
8
serve at the pleasure of the New Jersey Racing
Commission. See N.J. Stat. Ann. § 5:5-37(a). Thus, if only
the statute were at issue, we would conclude that Mr.
Latessa was an at-will employee without a property interest
in his employment as a racing judge.4
Property interests in employment may also arise,
however, from " `mutually explicit understandings' between
a government employer and employee." Stana v. School Dist.
of City of Pittsburgh, 775 F.2d 122, 126 (3d Cir. 1985). Mr.
Latessa asserts there is a triable issue of fact as to the
existence of a property interest based on such
understandings. He points to the deposition of Santo
Lalomia, a defendant and Chairman of the New Jersey
Racing Commission in support. In his deposition, Mr.
Lalomia indicated that there was little turnover in the
racing judge appointments, and "generally speaking" if one
"keeps his nose clean" and lives up to expectations,
employment would continue. This generalized statement is
insufficient to create a position requiring just cause as a
prerequisite for involuntary termination.
Mr. Latessa suggests the mutual understanding
described by Mr. Lalomia's deposition testimony is similar
to the understanding documented in Perry v. Sindermann,
408 U.S. 593, 601 (1972).5 Perry, however, is
distinguishable. In that case, plaintiff alleged a de facto
tenure program for college professors "secured by `existing
rules or understandings.' " Id. (citing Roth, 408 U.S. at 577).
The plaintiff alleged that the mutual understanding of
continued employment was documented in the employer's
official faculty guide which stated a faculty member "has
permanent tenure as long as his teaching services are
_________________________________________________________________
4. We assume for the sake of argument that the legislature has not
barred the Commission from granting employment rights of the type
claimed here.
5. The Supreme Court in Perry did not hold that the plaintiff had a
legitimate claim of entitlement to job tenure. Id. at 602. Instead, it found
that the plaintiff had alleged the existence of rules and understandings
that "may justify his legitimate claim of entitlement to continued
employment absent `sufficient cause' " and remanded to the district court
to make such a determination. Id. at 602-03.
9
satisfactory . . . ." Id. at 600. Moreover, plaintiff relied upon
Guidelines promulgated by the Coordinating Board of the
Texas College and University System which stated if
employed for seven years, the employee has some form of
job tenure. Id. Mr. Latessa, however, has pointed to no
evidence of such rules or understandings as to racing
judges. The very generalized testimony cited does not reflect
a specific bilateral understanding that particular cause
must be shown before non-reappointment may occur. Thus,
the district court correctly granted summary judgment to
defendants on the basis of no triable issues of fact as to the
existence of a property interest in plaintiff's position as
racing judge.
IV
Unlike Fourteenth Amendment due process rights,
appellant's First Amendment right to be free from
retaliation for speech is not defeated by the lack of a
property or liberty interest in his employment. Id. at 599. A
public employee's claim of retaliation for a protected
activity, here speech, is analyzed in three steps. Green v.
Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997);
Pro v. Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996);
Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir.
1995). First, the plaintiff must demonstrate that his speech
was protected. Green, 105 F.3d at 885. Second, the plaintiff
must show that the speech was a motivating factor in the
alleged retaliatory action. Id. Third, the defendant may
defeat the plaintiff's claim by establishing that the adverse
action would have been taken even in the absence of the
protected speech. Id.
The district court focused on Mr. Latessa's testimony of
November 22, 1993 before the New Jersey Office of
Administrative Law which indicated that Mr. Latessa did
not feel free to disagree with the penalty recommendations
of Mr. Zanzuccki. The court determined that the decision
not to reappoint Mr. Latessa occurred prior to November
22, 1993, and thus the testimony could not have been a
motivating factor in the alleged retaliatory non-
reappointment.
10
In denying defendants' prior motion to dismiss, the
district court had found that Mr. Latessa raised issues
potentially satisfying the first prong of the test. For speech
by a government employee to be protected, it must be
regarding a public concern, as opposed to employment
matters unrelated to such concerns. See Connick v. Myers,
461 U.S. 138, 142 (1983); Azzaro v. County of Allegheny,
No. 95-3253, 1997 WL 170285 (3d Cir. Apr. 11, 1997).
Furthermore, we held in Green that a public employee's
truthful testimony before a government adjudicating or
fact-finding body, whether pursuant to a subpoena or not,
is a matter of public interest. 105 F.3d at 887. Thus, Mr.
Latessa's testimony before the Office of Administrative Law
is a matter of public concern.
A balancing test exists to determine if such public
concern speech by a government employee is protected. See
Pickering v. Board of Educ. of Township High Sch. Dist. 205,
Will County, Illinois, 391 U.S. 563, 568 (1968). The public
interest favoring expression "must not be outweighed by
any injury the speech could cause to the interest of the
state as an employer in promoting the efficiency of the
public services it performs through its employees." Watters,
55 F.3d at 892. Under the test, the government must show
that the public concern value of the speech was likely to be
outweighed by the disruption. Id. at 896 (applying new test
of Waters v. Churchill, 511 U.S. 661, 673 (1994)).
Appellees' position is that Mr. Latessa was fired for
"lying" in conversation and memoranda between Mr.
Latessa and Mr. Zanzuccki, not because Mr. Latessa's
testimony critical of administrative procedures was likely to
be disruptive. Thus, for purposes of this appeal, the public
concern speech represented by the testimony is treated as
protected speech and the issue of whether Mr. Latessa was
not reappointed in retaliation for his testimony must be
addressed. For the following reasons we find this issue
cannot be resolved as a matter of law.
First, although Mr. Latessa had previously complained
internally about what he believed was Mr. Vukcevich's and
Mr. Zanzuccki's unlawful interference in the initial stages of
the penalty proceedings, his public testimony occurred one
day before Mr. Zanzuccki's memorandum indicating Mr.
11
Latessa would not be recommended for reappointment.
Second, even though Mr. Latessa's eventual replacement,
Mr. Corley, was interviewed before the testimony, there is
no indication that a decision to appoint him had been made
before the testimony.6
Moreover, a fact-finder reasonably might view the
accusation of "lying" as mere pretext. See Waters v.
Churchill, 511 U.S. at 677 (employer may not rely on
unreasonable conclusion as to what was said as pretext for
firing because of protected speech). Here, the "lie" was Mr.
Latessa's statement representing his presentation of Mr.
Zanzuccki's "recommendation" to the panel of judges in the
Milici matter as "advocacy." The "lie" may also have
included his characterization of his action in the Milici
matter as either a vote, a lack of a vote or the Commission's
vote. While a trier of fact might conclude Mr. Latessa was
fired because he was reasonably perceived to be lying,
based on the evidence a trier of fact might also conclude
otherwise. Given the fluidity of the panel deliberations,
there may have been no "lie" in the sense of a knowingly
false statement, and a trier of fact might conclude that Mr.
Zanzuccki perceived just that and fired Mr. Latessa for the
protected speech before the Office of Administrative Law. In
view of the content of Mr. Latessa's speech, its temporal
relation to the first indication in the record of a decision not
to reappoint, and because a fact finder might reasonably
reject as pretext the "lie" explanation for non-
reappointment, a fact finder might also reasonably
conclude that the testimony was the final straw, and hence
a motivating factor for the failure to reappoint.
In summary, as we view the current record, Mr. Latessa
has marshaled substantial evidence tending to support the
proposition that his testimony, rather than any lack of
personal integrity in connection with the Milici matter,
caused his non-renewal. First, Mr. Latessa had served for
many years as a judge without challenge to his integrity.
_________________________________________________________________
6. The prior scheduling of a meeting between Mr. Zanzuccki and Mr.
Latessa for November 30, 1993 is not determinative, because the record
does not reveal what the purpose of the meeting was at the time of
scheduling.
12
Second, Mr. Latessa's letters of July 13 and July 21, which
are said by appellee to have demonstrated Mr. Latessa's
lack of personal integrity in the Milici matter, are at best
ambiguous and could be found by a reasonable trier of fact
to be entirely consistent with his being qualified to serve as
a judge. Third, Mr. Latessa was reappointed as the
Presiding Judge for the fall meet on August 23, 1993, more
than a month after he is said to have demonstrated this
lack of personal integrity. Fourth, prior to his testimony
before the Administrative Law Judge on November 22,
1993, there is no documentation of a decision having been
made by anyone not to renew Mr. Latessa. Fifth, Mr.
Latessa's testimony before the Administrative Law Judge
could be regarded by a trier of fact as very embarrassing to
Zanzuccki, Vukcevich and the Commission. And, finally, on
November 23, 1993, the day after this potentially
embarrassing testimony was given, Zanzuccki wrote a letter
to the Chairman of the Commission advising him that he
intended to notify Latessa on November 30 that he would
not be renewed. This letter is significant not only because
it is the first documentation of a decision by anyone not to
renew, but also because it reveals that Zanzuccki was then
lobbying for the support of the Chairman and did not
regard the non-renewal decision to be a fait accompli.
Accordingly, we will remand to the district court because
the second prong of the three-step analysis requires a
factual determination as to whether Mr. Latessa's November
22, 1993 testimony was a motivating factor in the decision
not to reappoint him as a Presiding Judge.
Furthermore, the district court appears to have ruled
alternatively that even if the protected conduct was a
motivating factor in Latessa's reappointment, for
independent reasons he would not have been reappointed.
See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 285 (1977). If viewed in the light most favorable
to plaintiff, the facts discussed previously do not permit
summary judgment for defendant on this ground.
V
It is unclear from the presentation of this case as to
whether Mr. Latessa alleges his "vote" in the Milici matter
13
was protected speech and was part of the motivation for the
non-reappointment. Mr. Latessa does allege that his right
to vote freely in other cases was chilled by Mr. Zanzuccki's
actions following the Milici matter. Numerous employment
actions directed by an employer involve the medium of
speech. All such actions do not become protected simply
because some expression is involved. See Connick v.
Meyers, 461 U.S. 138, 143 ("Government offices could not
function if every employment decision became a
constitutional matter."). While Mr. Latessa's public
statements about the procedures affecting voting may be of
public concern and hence protectable, his generalized
allegation that he could not vote as he wished does not
support a claim based on the First Amendment. The vote in
any particular case was not improper compelled expression
on a political or ideological matter. See, e.g., West Virginia
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
(compulsion to salute flag and recite the pledge of
allegiance invalid as "no official . . . can prescribe what
shall be orthodox in politics, nationalism, religion, or other
matters of opinion or force citizens to confess by word or
act their faith therein"). Nor was any particular penalty vote
otherwise relevant to a self-governing society's ability to
self-govern. See Azzaro, 1997 WL 170285, at *10. Mr.
Latessa's complaints involved the procedure employed and
it is his expression about such procedure that is of public
concern.
Of more substance is Mr. Latessa's argument that he was
discharged because of his ongoing internal objections to
Mr. Zanzuccki's and Mr. Vukcevich's interference in initial
penalty decision-making. Internal expression may also be
protected. Id. ("Private dissemination of information and
ideas can be as important to effective self-governance as
public speeches."). Such claims must be analyzed under
Connick v. Myers, 461 U.S. 138 (1983). In that case an
assistant district attorney who was protesting transfer
circulated an office questionnaire relating to internal office
matters not of public concern and also relating tangentially
to a matter of public concern, specifically, pressure to work
in political campaigns. The question once more is to what
degree the internal speech touches upon matters of public
concern and to what degree effective functioning of the
14
governmental office is likely to be disrupted by the speech.
See id. at 150. The Commission's burden in justifying its
action "varies depending on the nature of the employee's
expression." See id. For the following reasons, we remand
this issue to the district court to apply the three step
procedure set forth in Pickering and Connick, as modified by
Waters.
First, appellees have not asserted directly any likely
disruption to governmental functions as they continue to
allege only that Mr. Latessa was fired for lying. See Connick,
461 U.S. at 150. Second, the balance in the internal
complaints between nonpublic and public concerns is
unclear. Mr. Vukcevich's memorandum of November 19,
1993, does reveal that Mr. Latessa was understood to be
complaining about the intervention in initial penalty
decision-making, as well as other matters of both public
and personal concern. Third, the district court did not
address whether the public concern portion of this internal
speech, rather than the testimony only, was a motivating
factor in the non-reappointment. Finally, although the
district court concluded that early Commission intervention
was not illegal, the New Jersey law is ambiguous. One
could reasonably argue, as the administrative law judge
noted upon hearing Mr. Latessa's testimony, that if the
Commission decides from the outset what penalties should
be imposed there is no point to a multi-layered adjudicatory
system. In any case, the wisdom of the early intervention is
a matter of public concern, even if it is not prohibited
under current New Jersey law. Because Mr. Latessa's
internal complaints about administrative procedures touch
upon matters of public concern rather the issue of
retaliatory action for internal speech must be remanded.
Mr. Latessa's state law claim was also dismissed because
he did not establish that protected speech was a motivating
factor in his nonreappointment. Thus, this claim will also
be remanded. Because denial of plaintiff's motion to amend
to add other state law claims apparently was based on the
district court's dismissal of all federal claims, this issue will
be remanded as well.7
_________________________________________________________________
7. The district court did not state its reason expressly.
15
MANSMANN, Circuit Judge, concurring in the result in part
and dissenting in part.
I agree with the majority that the district court properly
granted the Commission's motion for summary judgment as
to Latessa's Fourteenth Amendment claims. I also believe,
however, that the district court was correct when it granted
the Commission's motion as to Latessa's First Amendment
claim. I would therefore affirm the judgment of the district
court in all respects; I respectfully dissent in part.
I.
My disagreement with the majority stems from the
policies and procedures of the Commission, and from the
facts surrounding the Milici incident and Latessa's
testimony. I therefore set forth my understanding of the
undisputed facts at some length.
The Commission is a regulatory body responsible for
overseeing all horse racing conducted in New Jersey. Horse
racing occurs at three facilities in New Jersey, and each
facility operates one "meeting" per year. Prior to each
meeting, the Commission appoints a panel of one presiding
judge and two associate judges to officiate and monitor
horse races, review the conduct of race participants, and
review the medical status of the horses. If it appears that
an infraction has occurred, the judges conduct a hearing to
determine the guilt or innocence of the accused. If an
infraction is found, the judges are empowered to impose a
penalty. While the judges impose penalties "in the first
instance," N.J. Admin. Code tit. 13, § 71-1.20(b), the
Commission is free to disregard the judges' decision and
may impose a penalty of its choosing. Id. § 71-1.23.
The Commission appoints the judges on a meet-by-meet
basis, and they serve "at the pleasure of the commission."
N.J. Stat. Ann. § 5:5-37(a). At the conclusion of each meet,
the judges are ordinarily (but not always) reappointed for
the next meet. In 1985, the Commission appointed Latessa
as an associate judge. For the next several years, the
Commission regularly reappointed Latessa, eventually
appointing him as the presiding judge.
16
In May 1993, two horses tested positive for prohibited
drugs. After the trainers were found guilty of administering
the drugs, but prior to the imposition of penalties,
Francesco Zanzuccki, the Executive Director of the
Commission, contacted Latessa. Zanzuccki told Latessa to
impose a 120-day suspension on trainer Milici and a 90-
day suspension on trainer Riegle. Latessa relayed
Zanzuccki's recommendations to the other two judges on
the panel, but the judges voted unanimously to impose a
90-day suspension on both trainers.
When Zanzuccki learned about the suspensions, he
contacted Latessa to inquire about the deliberations.
Latessa responded that he advocated the 120-day
suspension for Milici but that he was outvoted two to one.
Zanzuccki then contacted the two associate judges. Those
judges did not state that Latessa had advocated or voted for
the 120-day suspension, but stated that Latessa merely
told them about the recommendation.
In a subsequent letter to Zanzuccki, Latessa stated that
"[t]he vote was 2 to 1, to make it unanimous, I concurred."
In a subsequent letter, however, Latessa stated that the "2
to 1" vote meant "2 associate votes to the 1 commission
vote." In the second letter, Latessa added that he had
always supported a 90-day suspension for Milici.
In his deposition, Zanzuccki testified that he believed
that Latessa would advocate in favor of a 120-day
suspension for Milici and that he was disturbed when he
discovered that Latessa did not do so. Zanzuccki was also
bothered by the fact that Latessa stated that he changed
his vote to establish unanimity, when the purpose of a
three-judge panel is to allow dissenting views. In addition,
Zanzuccki was upset that Latessa originally stated that he
voted for a 120-day suspension, but that he later stated
that he always supported a 90-day suspension and that the
"1" in the "2 to 1" vote represented a Commission vote.
Finally, Zanzuccki believed that Latessa's statements about
the deliberations and the vote were inconsistent with each
other and with the statements of the associate judges.
Zanzuccki testified that the Commission decided not to
reappoint Latessa in the early fall of 1993, and Latessa
17
does not offer any evidence to the contrary. On October 7,
1993, the Commission received a letter from Michael Corley
expressing interest in the presiding judge position. In the
first week of November, Commission Chairman Santo
Lalomia interviewed Corley for the position.
By letter dated November 16, Zanzuccki requested that
Latessa meet with Zanzuccki on November 30, 1993.
Zanzuccki testified that he scheduled the meeting to inform
Latessa about the Commission's decision not to reappoint
him for another meet. Zanzuccki explained that the meeting
was not scheduled until November 30 because Latessa was
serving as presiding judge when the meeting was scheduled
and it would have been difficult to replace him on short
notice. Latessa does not offer any evidence to the contrary.
On November 22, 1993, Latessa was called to testify at a
hearing in the Office of Administrative Law in the case of
Jordan Rubin, a trainer suspended by Latessa's panel for
two years. When asked about the severe penalty, Latessa
testified that the decision to impose a two-year penalty was
made at the direction of the Commission. When asked if he
felt free to impose a different penalty, Latessa said "No."
On November 23, 1993, Zanzuccki sent Lalomia a
confidential memorandum stating that he intended to notify
Latessa on November 30 that he would not be offered
employment with the Commission in 1994. Zanzuccki
stated that the memorandum contained several
attachments that demonstrate "the type of problems" that
led Zanzuccki to decide not to offer Latessa employment for
the upcoming year. The memorandum specifically refers to
"the untruthfulness of [Latessa]." The memorandum does
not mention Latessa's November 22 testimony before the
OAL.
On November 30, 1993, Zanzuccki advised Latessa that
Latessa would not be offered employment with the
Commission in 1994. In December 1993, the Commission
voted not to reappoint Latessa as presiding judge.
II.
I agree with the majority that the district court properly
dismissed Latessa's Fourteenth Amendment liberty claim.
18
Latessa has failed to demonstrate that he was deprived of
a liberty interest sufficient to enable him to invoke
procedural due process protection. While the Constitution
may recognize a liberty interest in employment, the
Constitution only protects that interest from state actions
that threaten to deprive persons of the right to pursue their
chosen occupation. Piecknick v. Commonwealth of Pa., 36
F.3d 1250, 1259-60 (3d Cir. 1994). State actions that
exclude a person from one particular job are not actionable
in suits brought directly under the due process clause. Id.
"It stretches the concept too far to suggest that a person is
deprived of `liberty' when he simply is not rehired in one job
but remains as free as before to seek another." Board of
Regents v. Roth, 408 U.S. 564, 575 (1972).
Latessa never applied for a position with the Commission
after he was not reappointed. In addition, Latessa worked
as a racing judge in Maryland subsequent to not being
reappointed in New Jersey. Latessa decided not to remain
in Maryland, however, and he rejected other potential job
offers as well. Thus, the Commission did not deprive
Latessa of the right to work in his chosen occupation;
Latessa did.
A plaintiff cannot assert a liberty interest where none
exists merely by limiting his chosen occupation to the point
where "occupation" becomes synonymous with "job." By
unnecessarily limiting his "chosen occupation" to "presiding
racing judge in New Jersey employed by the Commission,"
Latessa asks us to find a liberty interest in a job. We
should not do so.
Latessa's Fourteenth Amendment property interest
argument is equally without merit. To succeed on this
claim, Latessa must show that he has a property interest in
the position of presiding judge. To have a property interest
in a job, "a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim
of entitlement to it." Roth, 408 U.S. at 577; Carter v. City of
Phila., 989 F.2d 117, 120 (3d Cir. 1993) ("One alleging a
property interest in a benefit protected by due process must
go beyond showing an unsubstantiated expectation of the
benefit.").
19
A person's interest in a job is a "property" interest for due
process purposes if there are "mutually explicit
understandings" that support his claim of entitlement to
the job. Perry v. Sindermann, 408 U.S. 593, 601 (1972);
Carter, 989 F.2d at 120. Unilateral expectations of a
plaintiff are not sufficient to create a property interest.
Latessa contends that there was a mutually explicit
understanding between the Commission and the judges
that absent just cause for non-reappointment, the judges
would always be reappointed. By statute, however, Latessa
is an at-will employee who is appointed on a meet-by-meet
basis and who serves at the pleasure of the Commission.
N.J. Stat. Ann. § 5:5-37(a). While a statute can, in some
cases, create a property interest in a job, the statute here
expressly precludes such a property interest. Any property
interest Latessa arguably may have had in his position
lasted no longer than the length of one meet. To the extent
that Latessa held an expectation of being continuously
reappointed to the position of presiding judge, that
expectation was unilateral and is not sufficient to support
a property interest for due process purposes.
III.
Latessa also alleged that the Commission failed to
reappoint Latessa due to the exercise of Latessa's free
speech rights. Latessa contends that he was not
reappointed because on November 22, 1993, he testified
about Zanzuccki's influence in the penalty phase of the
judges' deliberations.
As the majority recognizes, a public employee's claim of
retaliation for engaging in a protected activity is analyzed
under a three-step process. Green v. Philadelphia Hous.
Auth., 105 F.2d 882, 885 (3d Cir. 1997). First, Latessa
must show that the activity in question was protected. Id.
If Latessa shows the activity was protected, he must then
show that the activity was a motivating factor in the
Commission's decision. Id. Finally, if he meets these
burdens, the Commission has an opportunity to defeat his
claim by demonstrating that it would have taken the same
action even in the absence of the protected activity. Id.
20
Assuming that Latessa's testimony constituted protected
activity, I agree with the district court that Latessa cannot
show that the testimony was a motivating factor in his
failure to be reappointed. The evidence of record
demonstrates without contradiction that the Commission
decided not to reappoint Latessa no later than early
November--before Latessa testified. It is undisputed, for
example, that the Commission interviewed Latessa's
replacement prior to November 22, 1993. Zanzuccki
testified without contradiction that prior to November 22,
he decided not to reappoint Latessa, but that he decided to
wait until November 30 to notify Latessa because of an
ongoing meet. A letter dated November 16, 1993, confirms
that prior to the testimony, Zanzuccki scheduled a meeting
with Latessa. Latessa does not offer any evidence linking
the reappointment decision to the November 22 testimony.
In addition, the Commission has explained that it
decided not to reappoint Latessa because Latessa failed to
properly communicate to Zanzuccki his position on the
penalty deliberations in the Milici case. The record supports
the Commission's position that Latessa's communications
regarding the Milici incident were inconsistent. Zanzuccki's
November 23 letter confirms that Zanzuccki was concerned
about Latessa's honesty, not about the November 22
hearing. Latessa does not offer any evidence from which a
finder of fact could determine that the Commission's
reasons for failing to reappoint him were pretextual.
Because I believe that Latessa cannot satisfy the second
prong of our First Amendment analysis, I agree with the
district court that the Commission was entitled to summary
judgment on Latessa's First Amendment claim. The
majority concludes, however, that the issue of whether
Latessa was not reappointed in retaliation for his testimony
cannot be resolved as a matter of law. The majority makes
three arguments in support of its position.
First, the majority observes that Latessa testified one day
before Zanzuccki sent the memorandum indicating that
Latessa should not be reappointed. While it is true that
Latessa was not notified of his non-reappointment until
shortly after his testimony before the OAL, uncontradicted
evidence demonstrates that the decision not to reappoint
21
Latessa was made prior to the testimony. In addition, the
memorandum at issue makes no mention of the testimony;
instead, it explains that Zanzuccki was concerned about
Latessa's honesty. There is no indication that the decision
not to reappoint Latessa was made after the testimony.
Even if the decision to not reappoint Latessa was made
the day after Latessa testified, however, we have held that
"timing alone will not suffice to prove retaliatory motive."
Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 199 n.10 (3d Cir.
1996); see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 501
(3d Cir. 1991). While timing may be used to establish a
causal link between protected activity and a subsequent
employment action, see Jalil v. Avdel Corp., 873 F.2d 701,
708 (3d Cir. 1989), it may not, without more, establish
retaliatory motive.
Second, the majority observes that there is no evidence
that the Commission decided to hire Corley prior to
Latessa's testimony. This observation, while true, is not
relevant. Even if we assume that the decision to hire Corley
was made after Latessa's testimony (and the evidence in
this regard is inconclusive), the decision to interview Corley
was made weeks before the testimony. The timing of the
interview demonstrates that the Commission desired to
replace Latessa prior to the testimony.
Finally, the majority asserts that a trier of fact "might"
view Zanzuccki's explanation as mere pretext. As noted,
Zanzuccki testified that he was concerned about Latessa's
honesty. Given Latessa's inconsistent statements regarding
the Milici matter, this concern was eminently reasonable.
The majority reasons, however, that "there may have been
no `lie' in the sense of a knowingly false statement, and a
trier of fact might conclude that Mr. Zanzuccki perceived
just that and fired Mr. Latessa for the protected speech
before the Office of Administrative Law." Maj. Op., at 12.
While I take issue with the majority's premise that there
may not have been a "lie" (the record clearly establishes
that Latessa made inconsistent statements about the Milici
matter), I am more concerned about the majority's decision
to permit a case to be tried on nothing more than
speculation. In Sheridan v. E.I. DuPont de Nemours & Co.,
22
100 F.3d 1061 (3d Cir. 1996) (en banc), we recognized that
a plaintiff may survive summary judgment in a pretext case
"if the plaintiff produce[s] sufficient evidence to raise a
genuine issue of fact as to whether the employer's proffered
reasons were not its true reasons for the challenged
employment action." Id. at 1067 (emphasis supplied); see
also id. at 1072 (plaintiff must introduce "evidence that
undermines the employer's proffered reasons for its
actions").1
When faced with a motion for judgment as a matter of
law, the court must determine "whether the plaintiff has
cast sufficient doubt upon the employer's proffered reasons
to permit a reasonable factfinder to conclude that the
reasons are incredible . . . ." Id. at 1072. In this case,
Latessa has not offered any evidence whatsoever to support
his claim that the Commission's explanation for its
reappointment decision was a pretext for retaliation. The
Commission's explanation for its decision was credible and
remains unchallenged. The majority does not offer any
evidence to support its conclusion that the trier of fact
"might" view the Commission's explanation as a pretext for
retaliation.
Our precedent requires more than a mere possibility that
a trier of fact might disbelieve an employer's explanation for
its employment decision; it requires that the plaintiff offer
some evidence that would support the trier of fact's disbelief.2
This is ordinarily done by demonstrating "such weaknesses,
implausibilities, inconsistencies, incoherences, or
_________________________________________________________________
1. While Sheridan involved a retaliation claim brought under Title VII, the
determination of whether First Amendment protected activity was a
motivating factor in the alleged retaliatory action may follow Title VII
pretext analysis. See, e.g., Azzaro v. County of Allegheny, No. 95-3253,
1997 WL 170285, at *7, *14 (3d Cir. April 9, 1997) (en banc); Maj. Op.,
at 11-12.
2. Cf. Azzaro v. County of Allegheny, No. 95-3253, 1997 WL 170285, at
*7 (3d Cir. April 9, 1997) (en banc) (emphasis supplied) ("Azzaro tendered
evidence from which it could be inferred that the reason given by Braun
for her discharge was pretextual . . . ."); id. at *14 (emphasis supplied)
("Based on the evidence . . . we also conclude that there is a material
dispute of fact as to whether her reports were a motivating factor in the
discharge decision.")
23
contradictions in the employer's proffered legitimate
reasons for its action that a reasonable factfinder could
rationally find them `unworthy of credence.' " Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (emphasis omitted)
(quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983
F.2d 509, 531 (3d Cir. 1993)). The Commission's
explanation does not suffer from any of these defects.
Under the majority's reasoning, if an employee who
engages in protected activity subsequently suffers an
adverse employment action, the employer cannot obtain
summary judgment on the employee's retaliation claim so
long as its explanation "might" be disbelieved--even if there
is nothing to support such disbelief. Under our precedent,
the plaintiff has the burden to demonstrate that the
employer's explanation for its action is a pretext for
retaliation. The majority turns this precedent on its head,
requiring the employer to prove that its explanation is
worthy of belief.
I agree with the district court that Latessa failed to offer
any evidence that would permit a trier of fact to disbelieve
the Commission's explanation for its reappointment
decision. I would therefore affirm the judgment of the
district court dismissing Latessa's First Amendment claim.3
_________________________________________________________________
3. I would affirm the district court's grant of the Commission's motion for
summary judgment on Latessa's claim for retaliation brought under the
New Jersey "Conscientious Employee Protection Act," N.J. Stat. Ann.
§ 34:19-1 et seq., for the same reason I would affirm the judgment of the
district court in dismissing Latessa's First Amendment claim. CEPA was
designed to prohibit retaliatory activity by an employer against an
employee who discloses or threatens to disclose certain illegal or
unethical workplace activity. Young v. Schering Corp., 645 A.2d 1238,
1244 (N.J. Super. Ct. 1994) (citations omitted), aff'd, 660 A.2d 1153
(N.J. 1995). To succeed on his CEPA claim, Latessa must show that he
was not reappointed due to his testimony before the OAL. As discussed,
I believe that nothing in the record would support such a finding.
I would also affirm the district court's refusal to permit Latessa to
amend his complaint to include claims under the "Discipline" Operating
Procedures of the New Jersey Department of Law and Public Safety as
well as the whistleblower provisions of N.J. Admin. Code tit. 4A, § 2-
5.1(a). The district court may decline to exercise supplemental
24
Accordingly, I respectfully dissent in part.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
jurisdiction over a claim if the district court has dismissed all claims
over which it has original jurisdiction. 28 U.S.C.§ 1367(c)(3);
Pennsylvania Nurses Assoc. v. Pennsylvania State Educ. Assoc., 90 F.3d
797, 801 (3d Cir. 1996). After properly dismissing every count of
Latessa's complaint, the district court was under no obligation to accept
jurisdiction over two new state-law claims. Given the majority's
reinstatement of some of Latessa's federal law claims, however, I concur
that the district court should now revisit these state law claims.
Finally, I agree with the majority that Latessa's failure to pursue a
common law wrongful discharge claim before the district court precludes
him from pursuing such a claim on remand. Maj. Op., at 3 n.1.
25