Valerie Montone v. City of Jersey City

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 11-2990 and 11-3516

____________

VALERIE MONTONE,

Appellant in No. 11-2990

v.

CITY OF JERSEY CITY;

JERSEY CITY POLICE DEPARTMENT;

MAYOR JERRAMIAH HEALY,

in his individual and official capacities;

POLICE CHIEF ROBERT TROY,

in his individual and official capacities

____________

JOHN ASTRIAB; CLYDE BANKS;

JAMES BUCKLEY; WILLIAM CULLINANE;

RICHARD DESTEFANO; DAVID LABRUNO;

EZIO SCERBO; JOHN WHALEN,

Appellants in No. 11-3516

v.

CITY OF JERSEY CITY;

JERSEY CITY POLICE DEPARTMENT;

MAYOR JEREMIAH HEALY, in his individual and official

capacities;

POLICE CHIEF ROBERT TROY, in his individual and

official capacities;

BUSINESS ADMINISTRAT BRIAN O'REILLY, in his

individual and official capacities

___________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-06-cv-00280 and 2-06-cv-03790)

District Judge: Honorable Stanley R. Chesler

___________

Argued September 25, 2012

Before: McKEE, Chief Judge, JORDAN and VANASKIE,

Circuit Judges.

(Filed: March 8, 2013)

Lisa Manshel, Esq. ARGUED

Francis & Manshel

150 Essex Street, Suite 205

Millburn, NJ 07041

Counsel for Appellant Valerie Montone

Patricia Breuninger, Esq.

Kathleen P. Ramalho, Esq. ARGUED

Breuninger & Fellman

1829 Front Street

Scotch Plains, NJ 07076

2

Counsel for Appellants John Astriab, Clyde Banks, James

Buckley, William Cullinane, Richard DeStefano, David

LaBruno, Ezio Scerbo, and John Whalen

Richard A. Gantner, Esq. ARGUED

Nee, Beacham & Gantner

722 Courtyard Drive

Hillsborough, NJ 08844

Counsel for Appellees City of Jersey City, Jersey City Police

Department, and Jerramiah Healy

Domenick Carmagnola, Esq. ARGUED

Carmagnola & Ritardi, LLC

60 Washington Street, Third Floor

Morristown, NJ 07960

Counsel for Appellee Robert Troy

___________

OPINION OF THE COURT

___________

VANASKIE, Circuit Judge.

This consolidated appeal consists of two cases in

which current and former sergeants in the Jersey City Police

Department accuse defendants Jersey City, the Jersey City

Police Department, Jersey City Mayor Jerramiah Healy

(collectively, “Jersey City”), and former Jersey City Police

Chief Robert Troy of retaliation for exercise of First

Amendment rights and discrimination, in violation of 42

U.S.C. § 1983 and New Jersey state law. The District Court

granted the defendants‟ motions for summary judgment. For

3

the reasons that follow, we will vacate the judgments of the

District Court.

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Plaintiff Valerie Montone was a police officer with the

Jersey City Police Department (“JCPD”) from January, 1981

until April, 2010, when she retired as a sergeant. Plaintiffs

John Astriab, Clyde Banks, James Buckley, William

Cullinane, Richard DeStefano, David LaBruno, Ezio Scerbo,

and John Whalen (the “Astriab plaintiffs”) are present or

former sergeants in the JCPD. The plaintiffs‟ claims arise out

of their failure to be promoted from the rank of sergeant to

lieutenant during Healy and Troy‟s tenure as mayor and

police chief, respectively.

In 2004, Healy ran for mayor in a special election to

complete the previous mayor‟s unexpired term. Montone

supported opposing mayoral candidate Lou Manzo, and used

saved vacation time to work in a leadership capacity on

Manzo‟s campaign.

The campaign became particularly heated and

personal, including allegedly threatening statements. Healy

ultimately won the election, and appointed Troy as police

chief in November, 2004. Troy served in this capacity until

his retirement in July, 2006.

As police chief, Troy had the authority to make

promotions within the JCPD. Promotions from sergeant to

lieutenant in the JCPD are made from the “Eligible/Fail

4

Roster,” informally known as “the promotion list.” (Montone

Appendix 450-52 [“M.A”].) Officers are ranked on the list

based on their performance on a civil service examination.

Promotions to lieutenant are generally made starting at the top

of the list with the most highly-ranked candidate and working

down the list in numerical order.1

Plaintiffs claim that all promotions from sergeant to

lieutenant were halted by Healy and Troy during Troy‟s

tenure as police chief to penalize Montone for her support of

Mayor Healy‟s opponent. Each of the plaintiffs had passed

the civil service examination required to be promoted to the

rank of lieutenant and were ranked accordingly on the 2003-

2006 promotion list. From November 2004, when Healy and

Troy took office, to January 15, 2006, when the promotion

list expired,2 Montone was ranked fifth out of thirty-nine

eligible officers. The other plaintiffs were ranked as follows.

Scerbo was first; LaBruno, second; Whalen, third; Buckley,

seventh; Cullinane, eighth; Banks, ninth; Astriab, tenth; and

DeStefano, eleventh.

1

Troy points out that, pursuant to the “Rule of Three,”

as provided for in §§ 4A:4-4.8 and 11A:4-8 of the New Jersey

Administrative Code, he could have promoted any “one of the

top three interested eligibles” on the promotion list. N.J.

Admin. Code §§ 4A:4-4.8(a)(3) (2012).

2

The promotion list expired on January 15, 2006. A

new list issued following the administration of a subsequent

civil service examination (the “2006-2009 promotion list”).

5

During Troy‟s tenure as police chief, the number of

officers in the rank of lieutenant decreased from fifty-six to

thirty, even though an agreement between Jersey City and the

State of New Jersey Division of Local Government

authorized sixty-six lieutenants. In November, 2004,

February, 2005, and March, 2005, JCPD Operations Division

Commander Inspector Mark Russ issued memoranda to Troy

recommending that between five and eleven officers be

promoted to lieutenant.

Nonetheless, during Troy‟s term as police chief, not a

single police officer was promoted to lieutenant. Promotions

were made to other ranks within the JCPD, including to the

ranks of deputy chief, inspector, captain, sergeant, and

detective. On December 16, 2006, Healy, then-police chief

Thomas Comey, and the recently-retired Troy held a meeting

during which they decided not to promote any of the plaintiffs

to lieutenant, despite Business Manager Brian O‟Reilly‟s

urging to do so. Two days later, on December 18, 2006,

twelve officers were promoted to lieutenant from the 2006-

2009 promotion list. Only plaintiff Scerbo was promoted to

lieutenant from the 2006-2009 promotion list.3

A number of witnesses gave deposition testimony in

support of plaintiffs‟ theory that all promotions from sergeant

to lieutenant were halted to retaliate against Montone.

3

According to Jersey City, plaintiffs Astriab, Banks,

and Whalen did not take the civil service examination

required to qualify for the 2006-2009 promotion list, and

LaBruno did not pass the exam and thus was not eligible for a

promotion after the 2003-2006 list expired. Plaintiff Whalen

retired from the JCPD in March 2006.

6

DeStefano, for example, stated in his deposition that Troy

told him that he would not be promoted because he was

behind Montone on the promotion list and “[t]he Mayor will

not promote her.” (M.A. 1792.) In this same conversation,

Troy noted that DeStefano was “okay with us” because he

“didn‟t try to hurt us.” (M.A. 1792.) DeStefano understood

this to mean that because he had not “come out against

[Healy] in the election,” he had not been blacklisted. (M.A.

1792.) Whalen testified to having a substantially similar

conversation with Troy, who stated that Whalen “didn‟t hurt

us,” and that Troy was “not making promotions” and “not

promoting her.” (M.A. 2265.) When Whalen protested that

this was “not fair,” Troy responded by asking Whalen, “Well,

how would you feel if your best friend‟s wife is sitting at the

kitchen table crying over threats made by [Montone] against

her son and nephew?” (M.A. 2265.) Scerbo, meanwhile,

testified that Troy had told him that he “should have no

problem” getting a promotion because he “was before

Valerie” on the promotion list. (M.A. 2094.)

Montone also points to evidence of Healy and Troy

promoting their political supporters, and of Jersey City‟s

history of political patronage. Healy testified, for example,

that he had spoken to Troy about both Kevin Guy and Patricia

Cassidy, whose relatives were political supporters of Healy

and both of whom were ultimately promoted to sergeant.

Jersey City argues that no lieutenant promotions were

made “due to budgetary concerns at the Police Department

and a desire to improve the department‟s organizational

structure to permit more supervisory police officers on

7

patrol.” (Jersey City‟s M. Br. 6.)4 Jersey City emphasizes

that “[t]here was no plan to stop promotions in order to avoid

promoting [Montone].” (Jersey City‟s M. Br. at 7.) Troy

further contends that “there was not a shortage of

Lieutenants,” (Troy‟s M. Br. 4), and that political opponents

of Healy, such as Edwin Gillan and Roberto Atkinson, were

promoted to sergeant despite being “vocal supporters of Louis

Manzo in the 2004 Election.” (Troy‟s M. Br. 7.)

Montone contends that in addition to suffering

retaliation for her political activities, she also incurred

retaliation because of her involvement in numerous sexual

harassment investigations and complaints against the JCPD,

dating back to 1993 and continuing until her retirement in

2010. Most notably, Montone reported to Captain Anthony

D‟Aiuto in 2002 that another officer, Marisa Johnston, was

being sexually harassed by then-lieutenant Troy.

In addition to not being promoted, Montone alleges

that the retaliation against her included other conduct, such as

Troy spreading rumors that Montone was the individual

responsible for distributing embarrassing photographs of the

mayor at his daughter‟s wedding, and that Montone “had

threatened the mayor‟s son.” (M.A. 467.) Montone also

claims that political retaliation was the motive behind an

internal JCPD investigation into whether she was sleeping on

the job, and her subsequent reassignment to the less desirable

evening tour. Captain Kevin Oras testified in support of

Montone‟s theory, stating that Troy told him that “[a]s long as

4

The defendants filed separate briefs in the Montone

and Astriab matters; the briefs are designated by “M” and

“A,” respectively.

8

I'm Chief, that cow c**t will never get promoted to

lieutenant” and “will never go on the day tour.” (M.A. 460.)

B. Procedural History

On December 13, 2005, Montone filed suit against

Jersey City and Troy in the Superior Court of New Jersey,

asserting ten causes of action: (1) gender discrimination in

employment, in violation of the New Jersey Law Against

Discrimination (“NJLAD”); (2) employment retaliation, also

in violation of the NJLAD; (3) retaliation for protected

conduct, in violation of the New Jersey Conscientious

Employee Protection Act; (4) retaliation for protected First

Amendment speech, in violation of 42 U.S.C. § 1983; (5)

retaliation for political affiliation protected by the First

Amendment, also in violation of § 1983; (6) disparate

treatment in violation of the Equal Protection Clause and §

1983; (7) retaliation for speech protected by the New Jersey

Constitution and the New Jersey Civil Rights Act; (8)

retaliation for political affiliation protected by the New Jersey

Constitution and the New Jersey Civil Rights Act; (9) sexual

harassment, in violation of the NJLAD; and (10) intentional

infliction of emotional distress. See Montone v. City of Jersey

City, No. 06-280 (SRC)(MAS), 2011 WL 2559514, at *1

(D.N.J. June 27, 2011). In August, 2005, DeStefano,

Cullinane, Whalen, Scerbo, Astriab, and Banks gave

Certifications in support of Montone‟s claims against the

defendants. The defendants removed the action to federal

court in January, 2006. In August, 2006, the Astriab

plaintiffs filed suit in the United States District Court for the

District of New Jersey, asserting claims for (1) gender

discrimination and (2) retaliation in violation of the NJLAD,

as well as claims pursuant to § 1983 for (3) retaliation related

9

to Montone‟s political affiliation in violation of the First

Amendment and (4) disparate treatment in violation of the

Fourteenth Amendment. See Astriab v. City of Jersey City,

No. 06-3790 (SRC)(MAS), 2011 WL 5080353, at *1 (D.N.J.

Oct. 25, 2011).

On June 27, 2011, the District Court granted summary

judgment for Jersey City and Troy on Montone‟s free speech

and political affiliation claims. As to the political retaliation

claim, the District Court found that Montone had failed to

muster sufficient evidence of a causal relationship between

Montone‟s support of Healy‟s opponent and the failure to be

promoted to lieutenant. See Montone, 2011 WL 2559514, at

*11. The District Court reached this same conclusion with

regard to Montone‟s other political retaliation claims, such as

her claim that she was reassigned to the evening tour because

of her support of Manzo. See id. at *6. As to Montone‟s

claim that she suffered retaliation for complaining about

gender discrimination in the operation of the JCPD, the

District Court determined that Montone‟s complaints were

not entitled to protection under the First Amendment. Having

granted summary judgment to the defendants on the First

Amendment claims in Counts Four and Five, and Montone

having voluntarily withdrawn her Fourteenth Amendment

equal protection claim, id. at *10 n.7, the District Court

“exercise[d] its discretion not to retain supplemental

jurisdiction over the remaining state law claims,” and

remanded the case to the Superior Court of New Jersey. Id. at

*10-11.

On August 16, 2011, the District Court similarly

granted summary judgment in favor of Jersey City and Troy

on the Astriab plaintiffs‟ claims brought under § 1983 for

10

retaliation and denial of equal protection in violation of the

First and Fourteenth Amendments (Counts Three and Four).

See Astriab, 2011 WL 5080353, at *1. With regard to the

political retaliation claim, the District Court declined to

address the question of whether the Astriab plaintiffs have

standing to bring a cause of action for First Amendment

retaliation based upon Montone‟s allegedly protected

conduct, reasoning that it was unnecessary to do so because

“Plaintiff[s] ha[ve] otherwise failed to defeat” the defendants‟

summary judgment motions. Id. at *2. Specifically, the

District Court found that “Plaintiffs have failed to point to

evidence from which a reasonable trier of fact could decide in

their favor on the question of whether Montone‟s political

conduct was a motivating factor in the decision not to

promote her or them.”5 Id. at *4. Declining to exercise

supplemental jurisdiction over the remaining state law claims,

the District Court dismissed them, without prejudice. Id. at

*6.

II. DISCUSSION

The District Court had jurisdiction under 28 U.S.C. §§

1331, 1343, and 1443, and we have appellate jurisdiction

under 28 U.S.C. § 1291. We employ a de novo standard of

review to grants of summary judgment, “applying the same

standard as the District Court.” Pa. Coal Ass’n v. Babbitt, 63

F.3d 231, 236 (3d Cir. 1995). “This requires that we view the

5

The Astriab plaintiffs appeal only the District

Court‟s grant of summary judgment on Count Three, and thus

we need not address the District Court‟s decision on their

equal protection claim.

11

underlying facts and all reasonable inferences therefrom in

the light most favorable to the party opposing the motion.”

Id. Summary judgment shall be granted where no genuine

dispute exists as to any material fact, and the moving party is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

We will address the District Court‟s decisions on Montone‟s

claims and the derivative claims asserted by the Astriab

plaintiffs separately.

A. Montone‟s Claims

Montone appeals the District Court‟s grant of

summary judgment on her claims under § 1983 for retaliation

for political affiliation and speech, in violation of the First

Amendment. We will address each issue in turn.

1.

Our jurisprudence governing political association

retaliation claims under the First Amendment has its origins

in the Supreme Court‟s “trilogy” of “political patronage

cases.” Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 663 (3d

Cir. 2002) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti

v. Finkel, 445 U.S. 507 (1980); Rutan v. Republican Party of

Ill., 497 U.S. 62 (1990)). From these cases and their progeny,

“we have derived a three-part test to establish a claim of

discrimination based on political patronage in violation of the

First Amendment.” Galli v. N.J. Meadowlands Comm’n, 490

F.3d 265, 271 (3d Cir. 2007). First, the plaintiff must

establish that “she was employed at a public agency in a

position that does not require political affiliation.” Id.

Second, the plaintiff must show that she engaged in conduct

protected by the First Amendment. Id. And finally, the

12

plaintiff must prove that the constitutionally-protected

conduct was a substantial or motivating factor for the adverse

employment action. Id.

The first two prongs of the test for political affiliation

retaliation are not in dispute here. Montone was employed as

an officer with the JCPD, a position where political affiliation

is not “an appropriate requirement for the effective

performance of the public office involved.” Branti, 445 U.S.

at 518; see also Elrod, 427 U.S. at 367 (“Limiting patronage

dismissals to policymaking positions is sufficient to achieve

this governmental end. Nonpolicymaking individuals usually

have only limited responsibility and are therefore not in a

position to thwart the goals of the in-party.”). Similarly,

Montone‟s political support of Manzo was constitutionally

protected conduct. See Branti, 445 U.S. at 519 (“[I]t is

manifest that . . . continued employment . . . cannot properly

be conditioned upon . . . allegiance to the political party in

control . . . .”); Galli, 490 F.3d at 272 (“[A] plaintiff can meet

the second prong of a prima facie political discrimination

claim if she suffers because of active support for a losing

candidate . . . .”).

Accordingly, the matter in dispute here concerns the

third prong of the test: whether Montone‟s political support of

Manzo “was a substantial or motivating factor” in the

decision to not promote her from sergeant to lieutenant.

Galli, 490 F.3d at 271. The District Court focused

specifically on this prong of the test, ultimately finding that

Montone “offered no evidence from which a reasonable trier

of fact could conclude that [her] political affiliation or other

protected conduct was a substantial motivating factor in the

decision not to promote [her].” Montone, 2011 WL 2559514,

13

at *6. We find that in so holding the District Court

misapplied the summary judgment standard.

The District Court first erred by drawing unfavorable

inferences against Montone, the non-movant. The District

Court concluded, for example, that when Troy told DeStefano

that he was “okay” because DeStefano “didn‟t try to hurt us,”

(M.A. 1792), “[n]o reasonable trier of fact could infer from

the DeStefano testimony that Troy was speaking about

political affiliation or protected conduct.”6 Montone, 2011

WL 2559514, at *5. The District Court, relying on Whalen‟s

testimony, determined that “hurt” in this context referred to

Montone “making threats against someone‟s son and nephew,

which upset that person‟s wife.” Id. Accordingly, the

District Court found that “the decision not to promote

Plaintiff was based on personal animus, not retaliation for

political affiliation or activities or other protected conduct,”

and that “the „you didn‟t hurt us‟ evidence does not raise any

6

Troy and Jersey City argued before the District

Court that such statements were inadmissible hearsay. The

District Court did not rule on the issue because it concluded

that this evidence, “even if admitted, fails to raise factual

disputes sufficient to defeat the motions for summary

judgment . . . .” Montone, 2011 WL 2559514, at *4 n.3. We

hold that these statements made by Troy are not hearsay

under Federal Rule of Evidence 801(d)(2), and thus the

District Court properly considered the statements in resolving

the summary judgment motions. See Fed. R. Evid.

801(d)(2)(A) (defining as “not hearsay” a statement that is

“offered against an opposing party and . . . was made by the

party in an individual or representative capacity . . . .”).

14

factual dispute about the motivating factor element.” Id.

This conclusion, however, directly contradicts DeStefano‟s

own understanding of the conversation. According to his

deposition testimony, DeStefano understood Troy to mean

that he, DeStefano, was “okay” precisely because he had not

“come out against [Healy] in the election.” (M.A. 1792.)

DeStefano‟s understanding is consistent with Montone‟s

claim that Troy set out to block her promotion to lieutenant

because she had sought to prevent Healy‟s election.

Troy attacks DeStefano‟s credibility by noting that his

statement was not contained in DeStefano‟s original

Certification obtained by Montone‟s counsel in August, 2005,

and that DeStefano is a plaintiff in the Astriab litigation, a

case “whose success . . . is entirely dependent on Montone‟s

success herein . . . .” (Troy‟s M. Br. 25.) Furthermore, Troy

notes that DeStefano‟s testimony could be interpreted

differently – at one point, DeStefano testified to rumors

concerning Montone stepping on the foot and spitting in the

face of Healy‟s spouse, for example. (See M.S.A. 383.) Troy

suggests that he could have been referring to this incident

when he discussed how Montone had “hurt us.” (M.A. 1792.)

While Troy may ultimately prevail on this point, “[i]n

considering a motion for summary judgment, a district court

may not make credibility determinations or engage in any

weighing of the evidence; instead, the non-moving party‟s

evidence „is to be believed[,] and all justifiable inferences are

to be drawn in his favor.‟” Marino v. Indus. Crafting Co.,

358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). On this issue,

the District Court appears to have made credibility

determinations, weighed the evidence against Montone, and

failed to draw all justifiable inferences in her favor. Stated

15

otherwise, it would not be unreasonable to construe Troy‟s

“you didn‟t hurt us” statement as referring to Montone‟s

opposition to Healy.

Furthermore, the District Court, despite appearing to

have accepted Montone‟s argument that Jersey City and

Troy‟s justifications for not promoting any lieutenants were

pretextual, erred in concluding that a jury could not draw

from that fact an inference that the non-promotion of

Montone was intended to retaliate for her political activity.

Troy contended that promotions to lieutenant were suspended

for legitimate budgetary and operational reasons. But the

District Court observed:

Examining Plaintiff's evidence as

a whole, and making every

reasonable inference in favor of

Plaintiff, as the nonmovant, a

reasonable trier of fact, hearing

Plaintiff's evidence, could easily

find that Chief Troy bore ill will

toward Plaintiff and was

determined not to promote her to

Lieutenant. Moreover, there is

evidence which, if credited by the

trier of fact, supports the inference

that he bore such ill will toward

Plaintiff that he stopped all

promotions to Lieutenant during

his tenure as Chief, even though

this decision may have been a

poor one from the perspective of

16

the organizational needs of the

Police Department.

Montone, 2011 WL 2559514, at *6. The District Court

determined, however, that “[a]t best, this constitutes evidence

of retaliation. None of this . . . is probative of the motive for

the retaliation.” Id.

It is by now axiomatic that a plaintiff in an

employment retaliation case may avoid summary judgment

by offering evidence that discredits the reasons articulated by

the defense for the adverse employment action. See, e.g.,

Stephens v. Kerrigan, 122 F.3d 171, 181 (3d Cir. 1997). By

presenting evidence that casts doubt on Troy‟s articulated

rationale for suspending all promotions to the lieutenant

position, Montone is entitled to have the trier-of-fact decide

whether it was a general dislike of her that motivated Troy, or

whether it was personal animosity that sprung from

Montone‟s vocal opposition to the candidacy of Troy‟s

patron. Indeed, in Stephens, we held that summary judgment

was not appropriate where plaintiffs “made a sufficient

showing to discredit [defendant‟s] proffered reasons for not

promoting from the lieutenants lists and thus [were] entitled

to have a fact finder determine whether their political

affiliation or non-support was a substantial or motivating

cause of the failure to promote.” 122 F.3d at 183. The

District Court here similarly agreed with Montone that Jersey

City and Troy‟s proffered reasons were pretextual, but then

granted summary judgment to the defendants rather than

allowing a fact finder to determine whether Montone‟s

political activities during the election were the real reason

behind her non-promotion.

17

The District Court‟s dismissal of evidence of a pattern

of political patronage in Jersey City was also improper. See

Montone, 2011 WL 2559514, at *3 (“Evidence that, during

Mayor Healy‟s administration, other people have gotten jobs

or promotions in Jersey City for political reasons may have

some minimal probative value as background, but it is clearly

insufficient by itself to support an inference that Plaintiff was

retaliated against.”) As we held in Goodman, “a history of

improper promotion practices using sponsorship as a factor”

may, when presented with other facts, prove to be “sufficient

circumstantial evidence to permit a reasonable jury to find

that political affiliation was a substantial factor in the decision

not to promote . . . .” Id. at 674. In this case, there are other

facts that, when combined with evidence of political

patronage, suffice to defeat summary judgment. In particular,

there is the evidence of recommendations that the number of

lieutenants on the police force be increased as well as

evidence that there were promotions to every other rank but

lieutenant during Troy‟s tenure as Police Chief that, when

considered in combination with a history of political

patronage, supports a reasonable inference that Montone was

not promoted in retaliation for her political activity.

The District Court also erred in giving substantial

weight to evidence that Troy promoted at least one of

candidate Manzo‟s supporters, Edwin Gillan. Montone, 2011

WL 2559514, at *6 n.6. While this may be relevant evidence

for the fact finder to consider when ultimately determining if

Montone was in fact retaliated against based on her political

activity, it does not preclude a jury from finding that

Montone‟s support for Manzo was the motivating factor in

not receiving a promotion. At the summary judgment stage,

Montone need only “„make a showing sufficient to establish

18

the existence of [the] element[s] essential to [her] case . . . .‟”

Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir.

1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). Her showing in this case is not overcome by the fact

that one supporter of Healy‟s opponent was promoted,

especially given the evidence of how active Montone was in

supporting Manzo. The three-prong test for retaliation for

political affiliation does not require that Montone prove that

every other supporter of Healy‟s opponent also suffered

retaliation.

In summary, the District Court misapplied the

summary judgment standard by weighing evidence and

drawing inferences against Montone, the non-movant, even

after acknowledging that she presented sufficient evidence to

show that the reasons proffered by Jersey City and Troy for

her non-promotion may have been pretextual. The District

Court also improperly dismissed evidence of a culture of

political patronage in Jersey City, and erred in granting

summary judgment based upon evidence of the promotion of

another Manzo supporter. Montone, 2011 WL 2559514, at *6

n.6. Accordingly, we vacate the District Court‟s grant of

summary judgment for the defendants on the political

affiliation claim.

2.

We now turn to Count Four: whether Montone was

retaliated against for speech protected under the First

Amendment. We analyze Montone‟s claim, arising as it does

in the public employment context, under a three-part test: (1)

was the plaintiff speaking as a citizen rather than as a public

employee discharging her employment duties; (2) did the

19

plaintiff‟s statements address a matter of public concern as

opposed to a personal interest; and (3) did the plaintiff‟s

employer have “„an adequate justification for treating the

employee differently from any other member of the general

public‟ as a result of the statement [the employee] made.”

Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009),

(quoting Garretti v. Ceballos, 547 U.S. 410, 418 (2006)).

The District Court held that Montone‟s free speech

claim failed the second part of the test – that the speech at

issue involve a matter of public concern, observing that she

“neither precisely identifies the speech that she contends was

on matters of public concern, nor makes any case at all that

such speech was on matters of public concern.” Id. Quoting

Connick v. Myers, 461 U.S. 138 (1983), the District Court

then granted summary judgment to Jersey City and Troy on

this claim because

“when a public employee speaks

not as a citizen upon matters of

public concern, but instead as an

employee upon matters of only

personal interest, absent the most

unusual circumstances, a federal

court is not the appropriate forum

in which to review the wisdom of

a personnel decision taken by a

public agency allegedly in

reaction to the employee‟s

behavior.”

Id. (quoting Connick, 461 U.S. at 147).

20

Montone‟s allegedly protected speech concerns in

large measure her complaints of gender inequality in the

workplace dating back to the 1990s, when she successfully

brought a sexual harassment lawsuit. Montone continued to

complain of sexual harassment even after that lawsuit was

concluded. In 2003, she informed a captain in the JCPD that

Troy, who was then a lieutenant, was sexually harassing

Officer Marisa Johnston.

We addressed the question of whether a public

employee‟s speech regarding sexual harassment can

constitute protected speech in Azzaro v. Cnty. of Allegheny,

110 F.3d 968 (3d Cir. 1997) (en banc), where the plaintiff, a

former Allegheny County employee, was fired after reporting

that she was sexually harassed by an assistant to the County

Commissioner. Id. at 970. The plaintiff subsequently sued

the County and two County employees, alleging, inter alia,

retaliation for speech protected by the First Amendment, in

violation of § 1983. Id. at 975. Applying the analytical

framework laid out by the Supreme Court in Connick, we

noted that the key to the “public concern” inquiry is “whether

expression of the kind at issue is of value to the process of

self-governance.” Id. at 977. We further explained that “the

issue is whether it is important to the process of self-

governance that communications on this topic, in this form

and in this context, take place.” Id. We observed that

“[r]acial discrimination in the assignment of school personnel

. . . was characterized by the Connick Court as „a matter

inherently of public concern.‟” Id. (quoting Connick, 461

U.S. at 148 n.8). Extending this reasoning, we noted that

gender discrimination, “when practiced by those exercising

authority in the name of a public official, is as much a matter

of public concern as racial discrimination practiced under

21

similar circumstances.” Id. at 978. We also noted, however,

that not “all public employee complaints about sexual

harassment are matters of public concern,” and that

examination of “all of the surrounding circumstances” is

required when making such a determination. Id. at 980.

A circumstance that weighed in favor of finding that

the communication in Azzaro involved a matter of public

concern was that the alleged harassment “brought to light

actual wrongdoing on the part of one exercising public

authority that would be relevant to the electorate‟s evaluation

of the performance of the office of an elected official.” Id. at

978. While Montone‟s allegations of gender discrimination

and harassment do not directly concern an elected official, as

even Johnston‟s sexual harassment complaint against Troy

occurred prior to Healy‟s election and appointment of Troy as

chief, the fact that Montone‟s speech would not directly help

the public evaluate an elected official‟s performance is not

dispositive.

For example, in Campbell v. Galloway, 483 F.3d 258

(4th Cir. 2007), the plaintiff, a former police officer, sued the

Town of Southern Pines, the police department, and several

town employees, alleging, inter alia, First Amendment

retaliation when she was fired after filing several complaints

of sexual harassment with the police chief, as well as a gender

discrimination and retaliation charge with the Equal

Employment Opportunity Commission. Id. at 262-64. In

reviewing the District Court‟s grant of summary judgment for

the defendants, the Fourth Circuit noted that, while “not every

statement about sexual discrimination involves a matter of

public concern, our cases have provided little concrete

guidance on the question of when such a complaint amounts

22

to an issue of public concern.” Id. at 269. The Campbell

Court explained that this was perfectly acceptable:

We see no reason to try to

articulate any sort of bright-line

rule in this case, nor are we

certain that a bright-line rule

would be consistent with the

Supreme Court's directive that we

engage in a case-and fact-specific

inquiry to determine “[w]hether

an employee's speech addresses a

matter of public concern,” by

considering “the content, form,

and context of a given statement,

as revealed by the whole record.”

Id. (quoting Connick, 461 U.S. at 147-48). The Fourth

Circuit noted that “[t]o conclude, as the defendants would

have us do, that a personal complaint about discrimination

affecting only the complaining employee can never amount to

an issue of public concern could improperly limit the range of

speech that is protected by the First Amendment.” Id.

(emphasis in original).

Shifting to the facts in that matter, the Campbell Court

noted that the plaintiff “complained about multiple instances

of inappropriate conduct directed towards her,” and wrote a

letter to the police chief where she “also included complaints

about inappropriate conduct directed towards other females.”

Id. As that case also concerned a grant of summary judgment

to defendants, the Fourth Circuit “view[ed] the complaints in

the light most favorable to [the plaintiff],” and concluded that

23

her “complaints about sexual discrimination do amount to

matters of public concern.” Id.

We find Campbell’s reasoning persuasive. There are

at least three separate instances of alleged sexual harassment

here,7 and the inappropriate conduct was not directed solely at

Montone. Although no elected figure is involved, these facts

otherwise present a stronger argument that Montone‟s speech

was related to a matter of public concern than was presented

in Azzaro, which referred only to a single incident. See 110

F.3d at 980 (“We do believe, however, that under all of the

surrounding circumstances, Azzaro's reports address a matter

of public concern even though they referred to a single

incident.”). Accordingly, we hold that Montone was engaged

in protected activity as her speech involved a matter of public

concern.

Once the public concern “threshold” is met, “we must

balance between the interest of the [employee], as a citizen, in

commenting upon matters of public concern and the interest

of the [public employer], in promoting efficiency of the

public services it performs through its employee.‟” Miller v.

Clinton County, 544 F.3d 542, 548 (3d Cir. 2008) (quoting

Pickering v. Bd. Of Educ., 391 U.S. 563, 568 (1968). We

find, as we did in Azzaro, that “[s]triking the appropriate

balance in this case is not difficult,” as “those governmental

7

The three instances are the sexual harassment

lawsuit from the 1990s, Montone‟s complaint against Carter

from 2002-2003, and Montone‟s escalation of Johnston‟s

sexual harassment claim against Troy from 2002. See

Montone, 2011 WL 2559514, at *9.

24

interests are negligible here.” 110 F.3d at 980. As in Azzaro,

“[w]e fail to see how” Montone‟s speech “could have posed

any threats to the government‟s interest in efficiency or

effectiveness,” especially in those instances when she used

internal mechanisms to voice her grievances. Id. (finding that

defendant‟s affirmative recognition that “complaints about

sexual harassment were important to its ability to serve the

public . . . [constituted] an acknowledgement . . . that

communications in the manner and place of [plaintiff‟s] do

not pose an undue threat of disruption”). Accordingly, we

hold that Montone has demonstrated that her interest in the

speech at issue outweighs Jersey City‟s interest in efficiency.

While not every one of Montone‟s statements

addressed a matter of public concern,8 and while Montone

will still have to demonstrate at trial that she was acting as a

citizen and not as a police officer when she engaged in what

she claims to be protected conduct, and that her speech was a

substantial or motivating factor in her non-promotion, the

District Court erroneously granted summary judgment for the

defendants on Montone‟s free speech claim by concluding

that her gender discrimination complaints did not involve

matters of public concern. Accordingly, we vacate the grant

of summary judgment on the free speech claim.

B. The Astriab Plaintiffs‟ Claims

8

For example, Montone‟s refusal to pay Troy money

from the settlement of her first lawsuit does not appear to be a

matter of public concern. See Montone, 2011 WL 2559514,

at *9.

25

The Astriab plaintiffs appeal only the District Court‟s

grant of summary judgment on their claim pursuant to § 1983

for retaliation for Montone‟s political affiliation in violation

of the First Amendment (Count Three). Before addressing

whether the District Court erred in granting summary

judgment, we must first consider whether the Astriab

plaintiffs have standing to bring an action for retaliation for

political affiliation based on the defendants‟ alleged

deprivation of Montone’s First Amendment rights.9 See

AT&T Commc’ns of N.J., Inc. v. Verizon N.J., Inc., 270 F.3d

162, 168 (3d Cir. 2001).

1.

“A party invoking federal jurisdiction must establish

that he has standing to sue within the meaning of Article III,

section two of the Constitution, which limits the courts to

hearing actual cases or controversies.” Anjelino v. New York

Times, 200 F.3d 73, 88 (3d Cir. 1999). “[T]he irreducible

constitutional minimum” of standing requires a party to set

forth specific facts indicating the existence of an actual or

imminent injury that is causally connected to the defendant‟s

challenged action and is “„likely‟” to be “„redressed by a

favorable decision.‟” Lujan v. Defenders of Wildlife, 504

9

The Supreme Court has instructed courts of appeals

to answer the jurisdictional question of standing before

“proceeding to an easily-resolved merits question despite

jurisdictional objections,” in consideration of the “importance

of the standing doctrine” to preserving separation of powers.

Storino v. Borough of Point Pleasant Beach, 322 F.3d 293,

300 (3d Cir. 2003) (citing Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 101-02 (1998)).

26

U.S. 555, 560-61 (1992) (quoting Simon v. En. Ky. Welfare

Rights Org., 426 U.S. 26, 38 (1976)). “Courts assess whether

a party has established injury-in-fact, causation, and

redressability by considering whether the alleged injury falls

within the „zone of interests‟ that the statute or constitutional

provision at issue was designed to protect; whether the

complaint raises concrete questions, rather than abstract ones

that are better suited to resolution by the legislative and

executive branches; and whether the plaintiff is asserting his

own legal rights and interests, as opposed to those of third

parties.” Anjelino, 200 F.3d at 88.

The Supreme Court has recognized that “when the

plaintiff is not himself the object of the government action or

inaction he challenges, standing is not precluded, but it is

ordinarily substantially more difficult to establish.” Lujan,

504 U.S. at 562 (citations omitted) (internal quotation marks

omitted). The Astriab plaintiffs‟ suit presents one such

difficult case. No other court of appeals has, to our

knowledge, addressed the question presented by this case:

whether a plaintiff has standing to bring an action for First

Amendment political affiliation retaliation pursuant to § 1983

based on the defendant‟s alleged deprivation of another‟s

First Amendment rights.

The defendants argue that the Astriab plaintiffs do not

have standing because they failed to allege an actual injury

and cannot satisfy their burden with respect to the causation

requirement of Article III standing. According to Jersey City,

“[t]he plaintiffs have not produced evidence of an inherent

right to a promotion,” or shown that absent the illegal conduct

against Montone “any of them was certain or even likely to

have been promoted.” (Jersey City‟s A. Br. 48.) Jersey City

27

further argues that the plaintiffs have not established the

alleged injury‟s nexus to the defendants‟ purported violation

of Montone‟s First Amendment rights, reasoning that

“[a]llegations of discrimination concerning Montone, even if

true, could have no bearing upon employment decisions made

in regard to [the] plaintiffs.” (Jersey City‟s A. Br. 48.) Troy,

for his part, distinguishes between the plaintiffs ranked above

and below Montone, concluding that the plaintiffs ranked

above Montone “could have been promoted regardless of any

. . . discrimination” against her, while those ranked below did

not suffer an actual injury “because there is no guarantee

promotions would have continued beyond [Montone‟s

promotion] and that they would have ever been promoted.”

(Troy‟s A. Br. 47, 51.)

The Astriab plaintiffs argue to the contrary that they

have sufficiently alleged an actual injury, namely, their non-

promotion. Furthermore, the plaintiffs aver that they have

satisfied the causation requirement by alleging specific facts

concerning how Montone‟s political activities during the

2004 mayoral campaign resulted in the defendants refusing to

promote Montone, and any other eligible sergeant, during

Troy‟s tenure as police chief.

The Astriab plaintiffs assert that their position is

supported by our decision in Anjelino. We agree. In

Anjelino, male and female employees of the New York Times

Company (the “Times”) mailroom sued the Times and other

defendants for sex discrimination in violation of Title VII of

the Civil Rights Act of 1964. 200 F.3d at 78. The female

employees alleged that they were not promoted from the

“priority list,” which determined whether and how often an

employee would receive mailroom shifts, due to their gender.

28

Id. at 80. The male employees similarly brought claims under

Title VII, alleging, inter alia, that “they suffered pecuniary

injury because they were on the priority list among women,

who were not hired due to sex discrimination because hiring

stopped when the women‟s names were reached.” Id. at 89.

The district court dismissed the male employees‟ claims,

finding that they lacked standing to sue under Title VII. Id. at

85.

We reversed, holding that “„indirect‟ victims of sex-

based discrimination have standing to sue under Title VII if

they allege colorable claims of injury-in-fact that are fairly

traceable to acts or omissions by defendants that are unlawful

under the statute,” and therefore the male employees had

standing even though the defendants‟ discriminatory actions

were directed at the female employees. Id. at 92. In so

holding, we emphasized: “That the injury at issue is

characterized as indirect is immaterial, as long as it is

traceable to the defendant‟s unlawful acts or omissions.” Id.

We then concluded that the male employees satisfied Article

III‟s injury-in-fact requirement because “allegations that sex

discrimination adversely affected [plaintiffs] being hired as

extras, as well as their seniority on the priority list,

demonstrate actual injury,” and, furthermore, the male

employees pled sufficient “specific facts” to make the

requisite showing of causation. Id.

More recently, the Supreme Court similarly held that

an individual has standing to sue for employment retaliation

pursuant to Title VII, relying on the protected conduct of

another individual. In Thompson v. N. Am. Stainless, LP, 131

S.Ct. 863 (2011), plaintiff Thompson, an employee of North

American Stainless (NAS), sued NAS for unlawful retaliation

29

under Title VII when he was fired after his fiancée, also an

NAS employee, filed a sex discrimination charge against

NAS with the Equal Employment Opportunity Commission.

Id. at 867. In addressing the question of whether Thompson

had standing to sue, the Court found that “Thompson‟s claim

undoubtedly meets [the] requirements” of Article III standing.

Id. at 869.

While Anjelino and Thompson involved questions of

standing in the context of claims under Title VII, we find the

reasoning in those cases persuasive. Indeed, we have

similarly relied upon Title VII jurisprudence in resolving

questions of first impression related to § 1983 claims because

of the “consonance” of the “policy considerations” underlying

each statute. Squires v. Bonser, 54 F.3d 168, 172 (3d Cir.

1995). Accordingly, we adopt the reasoning of Anjelino and

Thompson in holding that a party has standing to bring an

action for First Amendment political affiliation retaliation

pursuant to § 1983, even where, as here, the alleged

retaliation was directed towards another individual, provided

the party can satisfy “[t]he irreducible constitutional

minimum” of Article III standing. Lujan, 504 U.S. at 560.

The three requirements of Article III standing are

satisfied here. The plaintiffs allege that each passed the civil

service examination as required to be promoted to the rank of

lieutenant, were ranked on the promotion list, and nonetheless

were not promoted to lieutenant during Troy‟s tenure. The

plaintiffs also allege that during Troy‟s term as police chief

promotions were made in all other ranks in the JCPD except

lieutenant, even though lieutenant promotions were

authorized and necessary. Furthermore, the plaintiffs allege

that the defendants consciously chose not to promote

30

Montone or any other sergeant due to Montone‟s involvement

in the 2004 mayoral election, to the effect that the Astriab

plaintiffs were not promoted or, at the very least, were

prevented from moving up in numerical rank on the

promotion list. Thus, as in Anjelino, the Astriab plaintiffs‟

allegations that the defendants‟ illegal political retaliation

“adversely affected [plaintiffs] being [promoted], as well as

their seniority on the priority list, demonstrate actual injury.”

Anjelino, 200 F.3d at 92; see also Grizzell v. City of

Columbus Div. of Police, 461 F.3d 711, 718 (6th Cir. 2006)

(finding plaintiff police officers‟ “alleged injury to be

sufficiently concrete and particularized to satisfy

constitutional requirements” where plaintiffs alleged that they

were not promoted or incurred a delay in being promoted to

sergeant as a result of the defendants‟ use of a 1999, rather

than 2001, promotion list).

The Astriab plaintiffs have also satisfied their burden

with respect to the causation element. The plaintiffs allege

that Healy and Troy did not promote Montone following her

involvement in the 2004 mayoral campaign, specifically

noting that Troy informed several sergeants that he was “not

making any lieutenants,” “not promoting [Montone]” because

she “hurt us,” and therefore no sergeants would be promoted

to lieutenant. (Astriab Appendix 362-63, 374, 387 [“A.A.”].)

The plaintiffs also aver that none of the Astriab plaintiffs was

promoted to the rank of lieutenant during Troy‟s tenure as

police chief, even though all were eligible for promotions,

there was a shortage of lieutenants in the JCPD, Troy was

authorized to fill vacant lieutenant positions, and promotions

occurred in other ranks in the JCPD.

31

The final Article III standing requirement –

redressability – is also satisfied. As we have recognized,

“§ 1983 has always provided both legal and equitable relief.”

Squires, 54 F.3d at 172. Available forms of equitable relief

include back pay and “retroactive seniority.” Gurmankin v.

Costanzo, 626 F.2d 1115, 1120 (3d Cir. 1980). Additionally,

front pay is recoverable, and, in some circumstances,

instatement is also an appropriate remedy. Walsdorf v. Bd. of

Comm’rs for the E. Jefferson Levee Dist., 857 F.2d 1047,

1054 (5th Cir. 1988); see also Shore v. Fed. Express Corp.,

777 F.2d 1155, 1159-60 (6th Cir. 1985); Todaro v. Cnty. of

Union, 920 A.2d 1243, 1248 (N.J. Super. Ct. App. Div. Apr.

19, 2007) (holding that instatement and the “rightful place”

remedy, by which the plaintiff is placed in the next

comparable job opening, are both appropriate remedies

“where a public employee has been denied appointment to a

classified civil service position solely on the basis of political

affiliation,” in violation of § 1983). Thus, there exists an

“appropriate remedy that we can grant” the Astriab plaintiffs,

AT&T, 270 F.3d at 171, and the plaintiffs have made the

requisite showing that it is “„likely, as opposed to merely

speculative, that [their] injury will be redressed by a favorable

decision.‟” Pitt News v. Fisher, 215 F.3d 354, 361 (3d Cir.

2000) (citing Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).

Finally, we turn to the prudential standing requirement

that a plaintiff‟s asserted interest falls within the “zone of

interests” that the constitutional guarantee at issue was

designed to protect. Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1, 12 (2004). The Supreme Court “ha[s] described

the „zone of interests‟ test as denying a right of review if the

plaintiff‟s interests are so marginally related to or inconsistent

32

with the purposes implicit in the statute [or constitutional

guarantee in question] that it cannot reasonably be assumed”

suit was intended to be permitted. Thompson, 131 S.Ct. at

870 (citation omitted) (internal quotation marks omitted); see

also Ass’n of Data Processing Serv. Orgs., Inc., v. Camp, 397

U.S. 150, 153 (1970).

The Astriab plaintiffs assert that, as a result of the

defendants‟ retaliation against Montone for her protected

political conduct, they did not receive a promotion for which

they were eligible, in contravention of the First Amendment

and § 1983. It is axiomatic that “political belief and

association constitute the core of those activities protected by

the First Amendment.” Elrod, 427 U.S. at 356. In Robertson

v. Fiore, 62 F.3d 596 (3d Cir. 1995), we acknowledged the

First Amendment‟s protections for public employees in

positions not requiring political affiliation, and explained the

important policy considerations motivating this Constitutional

guarantee:

Without the protection afforded

by the Constitution, employees

might forgo the expression of

their political beliefs or artificially

change their political association

to avoid displeasing their

supervisors. Such coercion,

whether direct or indirect, is

incongruent with a free political

marketplace.

62 F.3d at 600 (emphasis added).

33

That the retaliatory conduct at issue here was not

directed at the Astriab plaintiffs is not dispositive, because the

First Amendment concerns implicated by political affiliation

retaliation are the same whether a plaintiff is the “direct” or

“indirect” victim of illegal political retaliation. See

Robertson, 62 F.3d at 600. An employee might be equally

dissuaded from engaging in protected political activity where

it is his fellow workers who experience retaliation for that

employee having engaged in the “core” First Amendment

activities of free “political belief and association.” Elrod, 427

U.S. at 357. The Astriab plaintiffs‟ interest in being

promoted in a public agency employment position free from

the influences of political association thus falls within the

“zone of interests” protected by the First Amendment.

Because the Astriab plaintiffs have pled specific facts

demonstrating the existence of all three Article III standing

requirements, and because the plaintiffs‟ asserted interest falls

within the “zone of interests” protected by the First

Amendment, we hold that they have standing to pursue a

claim pursuant to § 1983 for retaliation for political affiliation

in violation of the First Amendment, even though the

underlying protected conduct is that of Montone, not of the

Astriab plaintiffs themselves.

2.

We turn next to the question of whether the District

Court erroneously granted summary judgment for the

defendants on the Astriab plaintiffs‟ claim.

As discussed in Part II(A)(1) supra, a plaintiff must

satisfy a three-part test to establish a claim for First

34

Amendment political affiliation retaliation. See Galli, 490

F.3d at 271. As in the Montone suit, the first two prongs of

the test are not in dispute here. Each of the Astriab plaintiffs

was employed as an officer with the JCPD, a position where

political affiliation is not “an appropriate requirement for the

effective performance of the public office involved.” Branti,

445 U.S. at 518. Furthermore, as discussed in Part II(B)(i)

supra, the Astriab plaintiffs have standing to bring suit for a

First Amendment violation pursuant to § 1983 based on the

defendants‟ alleged retaliation against Montone as a result of

her political activities. See Branti, 445 U.S. at 519; Galli,

490 F.3d at 272-73. Thus, the second prong of the test is

satisfied. See Galli, 490 F.3d at 271. Therefore, as in the

Montone suit, only the third prong of the test – the causation

element – is disputed. See id.

The District Court found that the Astriab plaintiffs

failed to meet their burden with respect to the causation

element because they “failed to point to evidence from which

a reasonable trier of fact could decide in their favor on the

question of whether Montone‟s political conduct was a

motivating factor in the decision not to promote her or them.”

Astriab, 2011 WL 5080353, at *4. We hold that when

viewed in the light most favorable to the Astriab plaintiffs,

the evidence was sufficient to establish a prima facie case of

First Amendment retaliation, and thus the District Court erred

in granting summary judgment for the defendants.

The District Court first erred by failing to consider

much of the evidence the plaintiffs adduced to satisfy their

burden of establishing a genuine issue of material fact. When

evaluating a summary judgment motion, a district court must

consider “materials in the record, including depositions,

35

documents, electronically stored information, affidavits or

declarations, stipulations[,] . . . admissions, interrogatory

answers, or other materials . . . .” Fed. R. Civ. P. 56(c). Yet,

the District Court considered only two types of evidence

presented by the Astriab plaintiffs: lieutenant Gillan‟s

deposition testimony, which the District Court dismissed as

“anonymous,” inadmissible hearsay,10 as well as Inspector

Russ‟ memoranda recommending that Troy make promotions

to lieutenant and Troy‟s testimony that he did not follow

Russ‟ recommendations. Astriab, 2011 WL 5080353, at *3.

Among the evidence not mentioned by the District

Court in its analysis of the summary judgment motions were

the Jersey City government agreements authorizing the

promotion of officers to the rank of lieutenant. The District

Court also failed to consider personnel orders signed by Troy

ordering promotions in every rank except lieutenant.

Additionally, the District Court disregarded correspondence

from O‟Reilly and Police Director Samuel Jefferson, as well

as deposition testimony from Healy, indicating that the

defendants expressly refused to promote any of the plaintiffs

to lieutenant upon expiration of the 2003-2006 promotion list,

but almost immediately after the issuance of the 2006-2009

list, promoted twelve sergeants to lieutenant, only one of

whom was an Astriab plaintiff. Furthermore, the District

Court neglected to consider Jersey City and Healy‟s answers

to interrogatories, as well as deposition testimony by several

10

A full analysis as to the admissibility of Gillan‟s

testimony is unnecessary because, as discussed below, there

was sufficient other evidence to raise a genuine issue of

material fact regarding the causation element.

36

Astriab plaintiffs, detailing conversations with Troy in which

he explained that Montone and certain Astriab plaintiffs

would not be promoted because of Montone‟s involvement in

the 2004 mayoral election.11

We acknowledge that evidence was also presented

indicating that the defendants‟ failure to promote the

plaintiffs was the result of factors other than Montone‟s

political affiliation. For example, Whalen testified that when

he protested to Troy that it was “not fair” that neither

Montone nor any other sergeant would be promoted, Troy

responded by asking, “Well, how would you feel if your best

friend‟s wife is sitting at the kitchen table crying over threats

made by [Montone] against her son and nephew?” (A.A.

401.) Scerbo testified that on another occasion Troy told him

that he “should have no problem” obtaining a promotion

because he “was in front of Valerie.”12 (A.A. 374.) Finally,

11

Although the District Court rejected as inadmissible

hearsay the deposition testimony of several of the Astriab

plaintiffs, we hold that their testimony concerning Troy‟s

statements is admissible as a party-opponent admission, and

thus should have been considered in resolving the summary

judgment motions. See Fed. R. Evid. 801(d)(2)(A).

12

Although Jersey City argues that “the unreliable

statements of Whalen, DeStefano and Scerbo must be

discounted entirely,” (Jersey City‟s A. Br. at 38), “[i]n

considering a motion for summary judgment, [the] court may

not make credibility determinations or engage in any

weighing of the evidence . . . .” Marino, 358 F.3d at 247.

Thus, Jersey City‟s argument is unavailing at this stage of the

proceedings.

37

Troy testified that there was no shortage of lieutenants, and

that the lack of promotions to lieutenant between 2004 and

2006 was due to budgetary concerns and restructuring of the

JCPD.

Rather than counseling in favor of granting summary

judgment for the defendants, however, the above-described

evidence demonstrates the existence of a genuine dispute

about material facts related to the causation element of the

plaintiffs‟ First Amendment claim, including whether there

was a shortage of lieutenants such that promotions were

necessary (or not); whether Troy was authorized to make

promotions; and the reason for the lack of promotions to

lieutenant between 2004 and 2006. The District Court thus

erred in concluding that there was no triable issue of fact

regarding the causation element of the plaintiffs‟ claim.

Finally, the District Court erroneously drew inferences

unfavorable to the Astriab plaintiffs, the non-movants, and

improperly assumed the role of fact-finder. For example, the

District Court found that Inspector Russ‟ memoranda to Troy

recommending the promotion of officers to the rank of

lieutenant, coupled with Troy‟s decision not to promote the

plaintiffs, did not “constitute[] evidence from which a

reasonable finder of fact could infer that Montone‟s political

affiliation motivated Troy‟s decision.” Astriab, 2011 WL

5080353, at *3. In so holding, the District Court reasoned

that “[t]he most that Plaintiffs have pointed to is the temporal

proximity of Troy‟s first act of not following . . . Russ‟

staffing recommendations after the November 2004 election.”

Id. The District Court thus concluded:

38

[E]ven if a trier of fact were to

contemplate the inference, based

on temporal proximity, that

Montone‟s conduct during the

election was a substantial factor in

Troy‟s decision not to promote

more Lieutenants, the Russ

memoranda constitute

independent intervening events

which tend to preclude finding

any such link. It is clear that

Troy‟s inaction on the memoranda

was most directly in response to

the memoranda themselves.

There is no evidence that the

election played any proximate

role and the timing appears to be

coincidental.

Id.

The District Court‟s conclusion that “Troy‟s inaction

on the memoranda was most directly in response to the

memoranda themselves,” Astriab, 2011 WL 5080353, at *3,

directly contradicts the undisputed fact that after receiving

Russ‟ memoranda, which called for promotions to various

ranks including lieutenant, Troy made promotions to all other

ranks except lieutenant. It also contradicts testimony by

several Astriab plaintiffs, including Whalen, who testified

that Troy stated that he was “not making any lieutenants”

because Montone was not being promoted as a result of

“hurt[ing] us” during the 2004 campaign. (A.A. 362-63,

387.) As we recognized in Stephens, a plaintiff in a First

39

Amendment retaliation action may prevail on summary

judgment “by discrediting [the defendant‟s] proffered reason

[for the employment action], either circumstantially or

directly, or by adducing evidence, whether circumstantial or

direct, that discrimination was more likely than not a

motivating or substantial cause of the adverse action.” 122

F.3d at 181.

When viewed in the light most favorable to the

plaintiffs, the evidence presented in opposition to the

summary judgment motions demonstrates that there is a

genuine issue of material fact as to whether Montone‟s

political conduct was a motivating factor in the defendants‟

decision not to promote the Astriab plaintiffs. Accordingly,

we vacate the District Court‟s grant of summary judgment to

Jersey City and Troy on the political retaliation claim asserted

in Count Three.

III.

For the foregoing reasons, we will vacate the District

Court‟s judgments.

40