Latessa v. NJ Racing Comm ( 1997 )

  •                                                                                                                            Opinions of the United
    1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                                  for the Third Circuit
    Latessa v. NJ Racing Comm
    Precedential or Non-Precedential:
    Docket 96-5316
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    Recommended Citation
    "Latessa v. NJ Racing Comm" (1997). 1997 Decisions. Paper 100.
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    Filed May 9, 1997
    No. 96-5316
    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
    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
    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.
    ("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.
    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.
    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.
    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
    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
    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.
    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
    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.
    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.
    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
    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
    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.
    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.
    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-
    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.
    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
    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.
    It is unclear from the presentation of this case as to
    whether Mr. Latessa alleges his "vote" in the Milici matter
    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.
    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
    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
    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
    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.
    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.
    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.
    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
    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
    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.
    I agree with the majority that the district court properly
    dismissed Latessa's Fourteenth Amendment liberty claim.
    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
    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
    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.
    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.
    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.
    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
    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.,
    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
    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
    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.")
    contradictions in the employer's proffered legitimate
    reasons for its action that a reasonable factfinder could
    rationally find them `unworthy of credence.' " Fuentes v.
    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
    Accordingly, I respectfully dissent in part.
    A True Copy:
    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.

Document Info

DocketNumber: 96-5316

Filed Date: 5/9/1997

Precedential Status: Precedential

Modified Date: 10/13/2015

Authorities (29)

West Virginia Bd. of Ed. v. Barnette , 319 U.S. 624 ( 1943 )

Pickering v. Board of Ed. of Township High School Dist. 205,... , 391 U.S. 563 ( 1968 )

Board of Regents of State Colleges v. Roth , 408 U.S. 564 ( 1972 )

Perry v. Sindermann , 408 U.S. 593 ( 1972 )

Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 ( 1977 )

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

Anderson v. Liberty Lobby , 477 U.S. 242 ( 1986 )

Will v. Michigan Dept. of State Police , 491 U.S. 58 ( 1989 )

Seminole Tribe of Fla. v. Florida , 517 U.S. 44 ( 1996 )

Loretta E. Stana v. School District of the City of ... , 775 F.2d 122 ( 1985 )

Ricardo Jalil v. Avdel Corporation , 873 F.2d 701 ( 1989 )

Alvaro Quiroga v. Hasbro, Inc. And Playskool Baby, Inc , 934 F.2d 497 ( 1991 )

John F. Wroblewski v. City of Washburn , 965 F.2d 452 ( 1992 )

Jefferson Bank v. Progressive Casualty Insurance Company , 965 F.2d 1274 ( 1992 )

Nancy O'Mara Ezold, at No. 91-1780 v. Wolf, Block, Schorr ... , 983 F.2d 509 ( 1993 )

Warren C. Carter v. City of Philadelphia Willie L. Williams ... , 989 F.2d 117 ( 1993 )

Luis A. Fuentes v. Steven P. Perskie, Chairman of the New ... , 32 F.3d 759 ( 1994 )

fred-piecknick-dorothy-piecknick-and-dan-piecknick-trading-and-doing , 36 F.3d 1250 ( 1994 )

andre-douglas-v-david-s-owens-robert-m-freeman-richard-c-smith-lt , 50 F.3d 1226 ( 1995 )

richard-c-watters-v-city-of-philadelphia-w-wilson-goode-honorable , 55 F.3d 886 ( 1995 )

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