Ferraro v. City of Long Branch , 23 F.3d 803 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
5-10-1994
Ferraro v. City of Long Branch, et al
Precedential or Non-Precedential:
Docket 93-5576
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Recommended Citation
"Ferraro v. City of Long Branch, et al" (1994). 1994 Decisions. Paper 11.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-5576
JOHN A. FERRARO;
DOROTHY FERRARO
Appellants
v.
CITY OF LONG BRANCH;
ADAM SCHNEIDER;
ANTHONY CRITELLI;
MICHAEL PELUGHI;
MICHAEL DESTAFANO;
JOHN PALLONE;
STEVEN SCHWARTZ;
ROBERT LEHMANN
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 93-01096)
Submitted under Third Circuit LAR 34.1(a)
May 2, 1994
BEFORE: GREENBERG and GARTH, Circuit Judges,
and ROBRENO, District Judge*
(Filed: May 10, 1994)
Robert E. McLeod
Gasiorowski & McLeod
1020 Highway 35
Middletown, NJ 07748
Attorney for Appellants
1
* Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Mark S. Tabenkin
Kenney, Gross & McDonough
130 Maple Avenue
P.O. Box 8610
Red Bank, NJ 07701
Attorney for Appellees
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
Appellants John A. Ferraro and Dorothy Ferraro, who are
husband and wife, appeal from an order dated August 23, 1993, and
entered on August 31, 1993, dismissing under Fed. R. Civ. P.
12(b)(6) their claims against the appellees, the City of Long
Branch, New Jersey, and certain of its officials, brought
pursuant to 42 U.S.C. § 1983, and remanding the balance of the
case to the Superior Court of New Jersey, Law Division, Monmouth
County. As a matter of convenience we refer to John A. Ferraro
as the appellant inasmuch as Dorothy Ferraro is a party only
because she claims a loss of consortium.
Insofar as material to the section 1983 count, Ferraro
in his Superior Court complaint alleged that since November 20,
1979, he has been a career civil service employee of the City of
Long Branch with the classified job title of Superintendent of
Parks and Public Property. He further alleged that the duties of
that position are essentially of a managerial, supervisory, and
2
planning nature, but that the appellees nevertheless directed him
"to perform such jobs as garbage pick up, shoveling beach sand,
and other physical labor under the supervision of [his] former
subordinates . . . ." Ferraro claimed that the appellees' action
deprived him of his rights, privileges, and immunities under New
Jersey laws and regulations and "subjected [him] to the
deprivation of a legally protected property right in his
employment secured by the Constitution and laws of the United
States and the State of New Jersey without due process of law in
violation of those Constitutions and the statutes in such cases
made and provided."
The complaint alleged that the appellees engaged in the
foregoing wrongful conduct on and before December 28, 1990. While
the complaint does not indicate precisely what happened on
December 28, 1990, in his brief Ferraro indicates that he
"collapsed [with a heart attack] on the job while shoveling snow
on the steps of City Hall," and is still under treatment and has
"never returned to work." Brief at 5. In deciding this case we
will assume that Ferraro can prove these allegations and present
evidence that his work assignment contributed to his collapse and
illness. The complaint also included three state law counts for
what Ferraro called "tortious interference with pursuit of lawful
employment" and for violations of the New Jersey Administrative
Code. Notably, however, Ferraro's complaint did not assert that
the appellees' conduct constructively discharged him, and thus he
did not allege, and even in his brief on this appeal, does not
claim that he is no longer a Long Branch employee. In fact, he
3
acknowledges that he still is the Superintendent of Parks and
Public Property.
The appellees removed the matter to the district court
under 28 U.S.C. § 1441 on the ground that it had original
jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). They then
served a motion to dismiss under Rule 12(b)(6) "for failure to
state a claim upon which relief can be granted, on the grounds of
qualified immunity."
The district court granted the appellees' motion in an
oral opinion on August 23, 1993. The court recited that it could
grant the motion only if, after accepting the well-pleaded
allegations in the complaint and viewing them in the light most
favorable to Ferraro, he could prove no set of facts entitling
him to relief. The court then observed that it was "well
established that government officials performing discretionary
functions enjoy qualified immunity from civil damages when their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." The court next indicated that if a plaintiff's
allegations "fail to state a constitutional violation at all, the
court cannot find that the constitutional rights asserted . . .
were clearly established at the time the defendants acted."
The district court went on to indicate that a showing
that a defendant has violated a state statute does not in itself
establish liability. It also said that a federal court is "'not
the appropriate forum in which to review the multitude of
personnel decisions that are made daily by public agencies,'"
4
quoting Bishop v. Wood, 426 U.S. 341, 349, 96 S. Ct. 2074, 2080
(1976), and that "'[d]isputes over overtime, over work
assignments, over lunch and coffee breaks do not implicate the
great objectives of the 14th Amendment,'" quoting Brown v.
Brienen, 722 F.2d 360, 365 (7th Cir. 1983) (emphasis added). The
court recognized that Ferraro asserted the defendants acted with
malice in forcing him to shovel snow and sand, and thus caused
him to suffer a heart attack, but it held, citing Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982), that
these "bare allegations of malice" did not overcome the
appellees' claim of immunity. Ultimately, the court dismissed
the claims against the individual appellees "for failure to state
a claim upon which relief can be granted pursuant to Rule
12(b)(6) on the grounds of qualified immunity" and the claims
against Long Branch itself because Ferraro had not asserted a
claim on which relief could be granted. The court then remanded
the balance of the case to the Superior Court.
Ferraro has filed a timely appeal. We have
jurisdiction under 28 U.S.C. § 1291, and the district court had
removal federal question jurisdiction. We exercise plenary
review.
II. DISCUSSION
Ferraro defines the rather limited scope of his claim
by acknowledging that he "was neither deprived of his job nor his
5
salary and benefits" and accordingly conceding that he was not
discharged, directly or constructively. Brief at 16. Rather, he
contends that "he was deprived of the rights, duties and
privileges of [his] job," brief at 16, because the "case does not
involve mere work assignments, hours or other personnel
decisions. It involves the duties which are the essence of [his]
job title." Brief at 19. The district court rejected Ferraro's
claim inasmuch as it found that he had not demonstrated that he
had a right which the federal courts should protect and which the
appellees had violated. See Siegert v. Gilley, 111 S. Ct. 1789,
1793 (1991).
We agree with the district court. We recognize that we
look to state law to determine if Ferraro in this section 1983
action has alleged the existence of a property right. Board of
Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972);
Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667,
679 (3d Cir. 1991), cert. denied, 112 S. Ct. 1668 (1992).
Furthermore, we will assume that the appellees could be
determined in a state proceeding to have violated the New Jersey
Administrative Code by assigning Ferraro "to perform duties other
than those properly pertaining to the assigned title which the
employee holds." N.J. Admin. Code tit. 4A, § 3-3.4 (1993).
Indeed, we even will assume that the appellees, as Ferraro
pleads, are liable to him under New Jersey common law. Yet we
decline Ferraro's invitation to hold that the change in his work
assignment, which he admits did not rise to a level of wrongdoing
constituting a constructive discharge, nevertheless was a
6
deprivation of his property interests actionable under section
1983. While Ferraro asserts that the appellees were trying to
harass him into resigning and thus were malicious in their
conduct toward him, if we considered that a mere change in work
assignment deprived an employee of a property interest, as a
practical matter we would be federalizing routine employment
decisions.1 Additionally, under the guise of protecting
employees' rights, we would be erecting a barrier to ordinary
management determinations regarding the assignment and duties of
employees.
We recognize that Ferraro claims that prior to the
appellees' acts in changing his duties his responsibilities were
"largely managerial and administrative," though not "directorial
or policymaking," brief at 27, and that after the changes he
supervised fewer people and did more manual labor. But, as he
concedes, the appellees did not change his job title or modify
his salary and benefits. Furthermore, his modified duties
clearly related to the functioning of the department of the
municipal government in which he is employed, parks and public
property. In these circumstances, Ferraro simply did not plead
facts justifying a section 1983 action. Congress did not pass
1
In Winn v. Lynn, 941 F.2d 236, 239-40 (3d Cir. 1991), we
rejected a contention that evidence of malice would strip the
defendants of a defense of qualified immunity which they
otherwise would enjoy under Harlow v. Fitzgerald, 457 U.S. 800,
102 S. Ct. 2727 (1982), as qualified immunity is predicated on
objective standards. While Winn v. Lynn well could be
controlling here, we are deciding this case on the basis of our
determination that the appellees did not deprive Ferraro of a
property interest.
7
the civil rights law to constitute the district courts as grand
arbiters of all public employer-employee disputes. We think that
the language of the Court of Appeals for the Ninth Circuit in San
Bernardino Physicians' Serv. Medical Group v. County of San
Bernardino, 825 F.2d 1404, 1408 (9th Cir. 1987) (emphasis in
original), though written in a different context, is useful in
this case in its recognition that while the deprivation of
contractual rights may create a section 1983 claim, there is "an
equally compelling necessity to recognize that not every
interference with contractual expectations does so."
We find Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.
1988), useful in our analysis. There a public employee brought a
section 1983 action making claims similar to those Ferraro
advances. In Rode the plaintiff alleged that she was transferred
to another position at her preexisting salary and benefit level.
She predicated her complaint on the contention that the new
position did not have the stature of her old position as it did
not come with a private office and involved menial assignments
and demeaning tasks. We indicated that "[e]mployment decisions
such as those at issue here, which do not terminate or abridge
[the employee's] employment contract, and which could be
litigated in state tribunals, do not constitute deprivations of
property interests under the fourteenth amendment." Id. at 1205.
We then cited Brown v. Brienen, 722 F.2d 360 (7th Cir. 1983), for
the proposition that even employment decisions which do violate
employment contracts do not form the bases for section 1983
8
actions and that the Constitution should not be "trivialized by
being dragged into every dispute in state and local government."2
Other precedents support our result. The Supreme Court
set out the approach we should follow in Bishop v. Wood, 426 U.S.
at 349, 96 S.Ct. at 2080, when it indicated that the federal
courts are "not the appropriate forum in which to review the
multitude of personnel decisions that are made daily by public
agencies." In Brown v. Brienen the Court of Appeals for the
Seventh Circuit, in language particularly pertinent here,
indicated that disputes "over work assignments . . . do not
implicate the great objects of the Fourteenth Amendment." 722
F.2d at 365. The court indicated, however, that "[a] public
employer who drove an employee having a contract of employment to
resign by making life unbearable for him, through excessive
demands for overtime or other breaches of the employment
contract, might be violating the Fourteenth Amendment and section
1983 [through a] constructive discharge." Id. Brown v. Brienen
is particularly significant because it distinguishes between
actions constituting a constructive discharge and lesser
allegedly wrongful conduct for section 1983 purposes. In this
2
Id. (citing Brown v. Brienen, 722 F.2d at 365). In Rode, we
indicated that a pattern of harassment not implicating an
employee's property rights may constitute a Fourteenth Amendment
violation if "motivated by the employee's exercise of protected
constitutional rights or by [the employer's] invidious
discriminatory intent." This principle, even if still viable, is
inapplicable in this case, as Ferraro did not plead that the
appellees acted in revenge for his engaging in constitutionally
protected conduct, e.g., making a statement protected by the
First Amendment, and he did not plead that the appellees
discriminated against him by reason of a factor such as race,
religion, or gender.
9
regard we emphasize that Ferraro does not claim to have been
constructively discharged. In Wargat v. Long, 590 F. Supp. 1213,
1215 (D. Conn. 1984), the court indicated "that personnel
decisions short of termination do not constitute a deprivation of
a property interest under the due process clause of the
fourteenth amendment."3
Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th
Cir. 1992), cert. denied, 113 S. Ct. 1586 (1993), is also a useful
precedent. In that case the plaintiffs, police officers, claimed
that they were transferred in violation of their procedural due
process rights in retaliation for whistleblowing about wrongdoing
in the police department. The court of appeals rejected this
argument, indicating that it would not "hold that a transfer,
which involves no loss of pay and no loss of rank, deprives a
plaintiff of a protected liberty or property interest." Id. at
1486. That holding covers the situation here.4
3
While we hold that the appellees did not deprive Ferraro of a
protected property interest, as we indicate below we are not
holding that an adverse employment action short of termination
never could deprive an employee of a property interest as we have
no reason to consider that broad proposition on this appeal.
Thus, we are not to be understood as adopting the full statement
of the law which we quote from Wargat v. Long. The statement,
however, is applicable here.
4
In his brief, Ferraro sets forth that his "complaint spoke in
general terms of the deprivation of certain vested rights rather
than specifically setting forth the manner in which the
defendants acted to deprive the plaintiff of his rights and
clearly identifying those rights. Such generality is not fatal.
It can easily be handled by providing a more definite statement."
Brief at 32. The difficulty with this contention is that Ferraro
has described how the appellees' conduct impacted on him, i.e.,
he was not constructively discharged, and he has identified his
protected property interest in his job. His case has failed
because he has not demonstrated that the appellees deprived him
10
In reaching our result, we need not and will not write
broadly, as we are concerned only with deciding the case before
us. Thus, we do not determine whether an adverse employment
action not alleged to have constituted a constructive discharge
of an employee can ever give rise to a section 1983 action.
Rather, we hold only that Ferraro does not state a claim upon
which relief may be granted, as he concedes that he was not
discharged actually or constructively, his salary and benefits
were not affected adversely by the appellees' actions, the
appellees did not strip him of his job title, and he was not
transferred to a different agency of the municipal government.
The judgment of August 31, 1993, will be affirmed.
of a property interest. This shortcoming could not be cured by
the proposed more definite statement describing appellees'
actions and motives in more detail.
Ferraro further contends that the district court erred in
indicating that his claims predicated on appellees' conduct
before December 23, 1990, two years before he filed his Superior
Court complaint, are barred by the statute of limitations. We
need not consider this contention as Ferraro does not set forth
facts indicating that the appellees' conduct before December 23,
1990, deprived him of a property interest.
11