William J. Brennan v. William Norton, individually

PRECEDENTIAL
Filed December 5, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-1648, 01-1740, 01-1898
WILLIAM J. BRENNAN
v.
WILLIAM NORTON, individually and as Chief of the
Teaneck Fire Department; JOHN BAUER, individually and
as Deputy Chief of the Teaneck Fire Department; JOSEPH
PALAZZOLA, individually and as Deputy Chief of the
Teaneck Fire Department; ROBERT O’NEILL, individually
and as Captain of the Teaneck Fire Department; GARY
SAAGE, individually and as Town Manager of the
Township of Teaneck; TOWNSHIP OF TEANECK, a
Municipal Corporation
Gary Saage; Township of Teaneck,
Appellants in 01-1648 & 01-1898
William J. Brennan,
Appellant in 01-1740
On Appeal from the United States District Court
for District of New Jersey
(D.C. Civil No. 96-cv-04061)
District Judge: Hon. Dickinson R. Debevoise

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Argued: April 11, 2002
Before: McKEE and FUENTES, Circuit Judges,
and POGUE, International Trade Judge*
(Filed: December 5, 2003)
David Lew, Esq. (Argued)
Jeffrey M. Daitz, Esq.
Peckar & Abramson, P.C.
70 Grand Avenue
River Edge, NJ 07661
Attorneys for Appellants/Cross-
Appellees Gary Saage & Township of
Teaneck
Jonathan I. Nirenberg, Esq.
Elizabeth Watson Gramigna, Esq.
(Argued)
Neil H. Deutsch, Esq.
Deutsch Resnick & Green
One University Plaza — Suite 305
Hackensack, NJ 07601
Attorneys for Appellee/Cross-
Appellant William J. Brennan
OPINION OF THE COURT
McKEE, Circuit Judge.
William J. Brennan, a firefighter employed by the
Township of Teaneck, New Jersey Fire Department, filed
this § 1983 action alleging that the Township of Teaneck,
the Township Manager, and various supervisory members
of the Teaneck Fire Department engaged in a campaign of
* Hon. Donald C. Pogue, Judge of the United States Court of
International Trade, sitting by designation.
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harassment and retaliation against him in violation of his
First Amendment right of expression after he spoke out on
certain matters of public concern. Brennan’s complaint also
asserted a number of state law claims including a
retaliation claim under New Jersey’s Conscientious
Employee Protection Act (“CEPA”), N.J. Stat. Ann. § 34:19-
2. Cross-motions for summary judgment were filed, and the
district court granted summary judgment to the defendants
on all of the state law claims, but Brennan’s § 1983 claim
proceeded to trial.
The jury returned a verdict in Brennan’s favor on the
§ 1983 claim and awarded him compensatory damages
against all of the defendants, and punitive damages against
the individual defendants. Brennan’s victory was short
lived, however, because the district court subsequently
granted judgment as a matter of law to all of the individual
defendants except the Township Manager. The court
granted the Township Manager’s motion for judgment as a
matter of law only as to the award of punitive damages.
This appeal and cross-appeal followed after the district
court denied additional post verdict motions. For the
reasons that follow, we will affirm in part and reverse in part.1
I. FACTUAL BACKGROUND
Brennan began working as a firefighter for the Teaneck
Fire Department on April 19, 1993, and soon became active
in Local 42 of the Firemen’s Mutual Benevolent Association
(“FMBA”), the firefighters’ union. He was elected Secretary
of the FMBA in November of 1993, and in 1994 he was
elected to a one-year term as the FMBA’s President. He was
not reelected in 1995.
1. We will affirm the district court’s grant of judgment as a matter of law
to all of the individual defendants except the Township Manager. With
regard to the Township Manager, we will affirm the denial of judgment
as a matter of law as to liability, but will affirm the grant of judgment as
a matter of law on the punitive damages award. We will reverse the
district court’s denial of judgment as a matter of law to the Township,
and the district court’s dismissal of Brennan’s state law claim under New
Jersey’s Conscientious Employee Protection Act. Finally, we will affirm
the district court’s denial of the Township’s and its Manager’s motions
for a new trial, but will reverse the denial of the remittitur.
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Gary Saage was Teaneck’s Township Manager during the
period relevant to this suit. As Township Manager, Saage’s
responsibilities included making promotions within the Fire
Department and appointing the Fire Chief.
William Norton was a Captain in the Fire Department in
the summer of 1994, but Saage promoted Norton to Fire
Chief after Norton served only a brief tenure as Deputy
Chief. As Chief, Norton was responsible for the efficient
operation of the Department and generally in charge of
extinguishing and preventing fires. He also had general
responsibility for hazardous materials in the Township.
Norton was also responsible for insuring the Fire
Department’s enforcement of laws and ordinances
pertaining to extinguishing and preventing fires.
Brennan claims that he was an advocate for firefighters
and fire safety. In July 1994, he openly opposed the
Township’s decision to close two of four fire stations
because he believed that the closures would endanger the
public. Brennan claimed that Teaneck’s Township Council
decided to close the stations pursuant to Saage’s
recommendation. Brennan’s opposition included erecting
signs, arranging for public announcements, distributing
leaflets and expressing opposition in an interview he gave to
a local reporter. Although there is some dispute about the
relative roles Brennan and other firefighters played in
opposing the closings, it is undisputed that Chief Norton,
Deputy Fire Chief Joseph Palazzola and Captain Robert
O’Neill, also openly opposed the fire station closings along
with many rank-and-file firefighters. However, Brennan
claims that his was the most vocal and prominent
opposition and that his superiors, including Saage and
Norton, were aware of it. Although both stations were
closed despite opposition, they both reopened in July 1994,
apparently in response to significant public pressure.
On July 26, 1994, Brennan reported that he had
sustained an on-the-job shoulder injury. Under the FMBA’s
collective bargaining agreement with the Township,
Brennan had an absolute right to Injury on Duty (“IOD”)
leave with pay for thirty calendar days. That agreement also
provided that the thirty day leave period could be extended
up to a maximum of one year at the discretion of the
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Township. Brennan began intermittently using his thirty
days of paid IOD leave on July 27 and had exhausted it by
December 26, 1994.
Brennan claimed that in October 1994, he publicized
that the Township was circumventing directives from the
“Fire Sub-Code Official.” That official is responsible for
assuring compliance with fire codes applicable to building
construction. According to Brennan, Saage attempted to
ignore the Sub-Code Official’s directives regarding fire
sprinklers in the police station; Brennan openly opposed
Saage’s attempts to circumvent those directives.
That same month, Saage proposed replacing the Fire
Sub-Code Official with a civilian instead of a firefighter.
According to Brennan, the Fire Sub-Code Official had
always been a uniformed member of Teaneck’s Fire
Department, and Saage’s plan to change that was also
opposed by the then FMBA President and Chief Norton.
Brennan claimed that he openly challenged Saage’s
proposal and that the entire Fire Department opposed it.
Brennan’s opposition included placing an advertisement
in a local newspaper as well as appearing at a televised
Township Council meeting to explain why a civilian should
not have been selected for the job. On November 9, 1994,
local newspapers interviewed Brennan, and he was
thereafter featured in an article opposing Saage’s proposal.
Brennan claimed that sometime in November, Deputy
Chief John Bauer told Brennan that he was being
transferred from Headquarters to Station 2 because Bauer
was tired of hearing about employment issues and unfair
labor practices. Station 2 allegedly had an older fire truck
with a manual transmission. Brennan claimed that he was
ordered to drive that truck and this aggravated a prior
shoulder injury. He underwent surgery to correct the
problem but claims that the surgery necessitated asking
the Township Council to extend his IOD leave beyond the
initial thirty day period. On January 3, 1995, the Township
Council denied the request, and on January 17, after
Brennan addressed the Township Council, the Council
voted 4-2 against granting Brennan’s request.
Consequently, Brennan was automatically placed on
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workers’ compensation. Brennan claims that this was the
first time that a request for an IOD extension had ever been
rejected.
In January of 1995, Brennan informed the Fire
Department that it was legally required to supply
firefighters with station work uniforms and bunker pants.
According to Brennan, Deputy Chief Palazzola later told Lt.
Schroeder, Brennan’s then superior officer, that if Brennan
didn’t “knock it off ” he was “going to transfer [Brennan]
back to headquarters and make [Brennan’s] life miserable.”
Brennan thereafter formally filed a complaint in response to
this incident with the New Jersey Department of Labor. He
claims that a subsequent compliance audit of the Fire
Department cited the department with 200 regulatory
violations.
On February 7, 1995, Brennan informed the Township
Council of his job-related injury and that he had not been
paid for five weeks. However, later that month, Brennan
elected to return to work on light duty, even though he
claimed that he was not required to do so.
On February 14, 1995, Brennan organized a public rally
challenging the policy of removing firefighters from the
payroll while on IOD leave, and he subsequently filed an
unfair labor practice charge with the New Jersey Public
Employment Relations Commission (“NJPERC”) attacking
that policy.
Brennan claimed that the harassment and retaliation
intensified in February of 1995 and included an improper
assignment to housewatch duty despite his light-duty
employment status. According to Brennan, this violated
applicable department regulations. Brennan was also listed
as being Absent Without Leave (“AWOL”) because he was
unable to attend an evaluation with a worker’s
compensation doctor. Brennan claimed he was not afforded
the opportunity to reschedule the evaluation and that
Saage had Brennan’s personal doctor disqualified as a
treating physician, even though Chief Norton had referred
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Brennan to him. Brennan claimed that this caused him to
lose his workers’ compensation benefits.2
On May 30, 1995, Brennan filed an unfair labor practice
charge with the NJPERC in which he alleged that the
Township Council denied his request for extended IOD
leave to retaliate for the unfair labor practice charge he had
filed with the NJPERC regarding “outstationed” firefighters
attending meetings at headquarters.
Brennan was denied holiday leave for Thanksgiving,
1995, and he claimed that Deputy Chief Bauer arbitrarily
chose who would have Thanksgiving Day off. When
Brennan appeared for duty on Thanksgiving Day, a
firefighter who had been given the day off was at work. That
firefighter told Brennan that he had changed his mind
about working that day.
In February of 1996, Brennan was ordered to clean
Station 2’s basement so that it could be used as a union
hall and office. Brennan claims that when he objected
because of the presence of asbestos, Deputy Chief Palazzola
threatened, “you know what’s going to happen if you make
this a safety issue.” Palazzola then stopped the clean up
operation, but Brennan subsequently formally complained
about the asbestos to the New Jersey Department of Labor
and Health. Brennan claimed that his complaint resulted in
an inspection by a consulting company that recommended
remedial action. As a result of his complaint, Brennan
claimed that Palazzola punished him by giving him the
menial, but labor-intensive, assignment of pump-training.
In addition, Brennan contended that he was involuntarily
transferred from Station 2 to Station 3 the day after the
consulting firm discovered asbestos, but that firefighters
with less seniority were not transferred.
Brennan also calls our attention to May 14, 1996. That
2. He also claims that at a subsequent examination on March 29, 1995,
he was found unable to return to work, which, in his view, confirmed
that he had been injured at the time he was declared AWOL.
Brennan also alleged that Captain O’Neill told firefighters that Brennan
was on a “medication that causes psychotic behavior.”
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was an election day, and Brennan’s car was parked in the
fire station parking lot which was being used as a polling
place. Brennan had posted election materials on his car.
Saage sent Captain O’Neill and another officer to investigate
possible electioneering violations and then notified the
Police Department. The incident culminated in a criminal
complaint against Brennan, and Saage imposed a 21-day
suspension. Brennan’s conviction for violating election laws
was reversed on appeal, but Saage refused to reverse the
21-day suspension.
On May 24, 1996 Brennan was suspended for 2 days for
wearing a noncompliant uniform after being recalled to
duty during an emergency. He claimed that he was
subsequently charged with conduct unbecoming a
firefighter for reporting to work out of uniform, even though
other firefighters, including Deputy Chief Palazzola, had
reported to work in noncompliant uniforms without being
disciplined. According to Brennan, no other firefighter has
been disciplined for a uniform infraction.3
Later on May 24, Deputy Chief Bauer ordered Brennan to
present a doctor’s note before returning to duty after
Brennan called in sick. Brennan provided a note but he
was accused of forging it. Brennan alleged that Captain
O’Neill called his doctor, told him that Brennan was a
trouble maker, and suggested that the doctor not get
involved with Brennan. Brennan claimed that even though
his doctor verified the note, Saage nonetheless found
Brennan guilty of forging it.
On June 5, 1996, Brennan requested a “leave with
substitute,” as he was entitled to under the terms of the
collective bargaining agreement.4 According to Brennan, a
message was left on his home phone denying the request
and requiring him to return to work on June 6, even
though he was on vacation. Nevertheless, Brennan did
3. In addition, Brennan claimed that he did not receive any overtime pay
for that day.
4. This is a procedure whereby a firefighter arranges that another
firefighter work in his/her place. To obtain leave with substitute, a
firefighter must fill out a form, specifying the reasons for the request,
and submit the form to his/her deputy chief.
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work on June 6, because he fortuitously ended his vacation
a day early and found the message.
Brennan left work early on August 9, 1996, purportedly
because of the cumulative effect of a pattern of harassment
and retaliation, and the emotional distress he claims it
caused. Before leaving, he discussed his condition with
Deputy Chief Palazzola. Brennan claimed that he thought
the discussion was confidential, but that Palazzola made an
entry in the company journal disclosing the reason for the
early departure and making it a matter of public record.
That, according to Brennan, was highly unusual.
Palazzola called Brennan on August 11, 1996, while
Brennan was home on what he terms stress-induced sick
leave. Palazzola informed Brennan that Brennan was being
charged with conduct unbecoming a public employee
because he had used a mattress in a department dormitory
as a punching bag. Palazzola also told Brennan that he
could not return to work without a doctor’s note.5
Brennan alleged that he was told that he would be given
an additional year of seniority for the time he served on the
Rochester, New Hampshire Fire Department shortly after he
was hired as a Teaneck firefighter. He claimed that the
additional year of seniority was taken away without his
knowledge.
On August 23, 1996, Brennan filed the instant suit in the
United States District Court for the District of New Jersey.
His complaint contained numerous state law claims as well
as a § 1983 claim for violation of his civil rights. He alleged
that Saage, Norton, Bauer, Palazzola, O’Neill and the
Township had harassed him in retaliation for his
expression of opinion in violation of the First Amendment.
Brennan also claimed that, within a few weeks of filing the
complaint, the defendants intensified their harassment in
an attempt to either force him to resign or establish
grounds for firing him.
5. Subsequently, Brennan took 2 sick days, Palazzola’s charge was
upheld and Brennan was suspended for 5 days. On administrative
appeal, the Personnel Department affirmed the charge, but reduced the
suspension to 2 days.
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On September 13, 1996, approximately three weeks after
he filed suit, Brennan was served with a Preliminary Notice
of Disciplinary Action, charging him with conduct
unbecoming a public employee and informing him that he
would be subject to termination based upon allegedly
forging a doctor’s note, abusing sick leave and interfering
with the submission of a bid to a New Jersey state contract
vendor.
Brennan explained that the “unbecoming conduct”
charge stemmed from allegations that he abused sick leave
by using it for vacation. The Township charged him with
interfering with bids in connection with bids for firefighter
uniforms. Brennan claimed that Saage upheld that charge
although there was no evidence to support it. Saage
conducted a disciplinary hearing on that charge and
imposed a 63-day suspension without pay. On appeal, the
suspension was reduced to ten days.
One day after the hearing on his suspension, Brennan
arrived at work and found several dozen whistles hanging
from a tree outside the firestation. Brennan interpreted this
as an intended reference to a newspaper article that had
referred to him as a “whistleblower.” The whistles stayed
there for several months. Brennan claimed that Chief
Norton failed to investigate although he (Brennan)
complained.
According to Brennan, someone named “McIntosh”
purportedly wrote a commendation letter in October of
1996 recognizing Brennan’s exemplary job performance.
Brennan claimed that this was the only such letter
McIntosh had ever written in 36 years with the Fire
Department.6 Brennan insisted that Chief Norton denied
receiving the letter even though McIntosh purportedly
placed the commendation in Norton’s in-box.
Brennan also cited examples of firefighters who received
“disparate treatment and harassment” because they
associated with him despite supervisory warnings not to do
so. For example, he said one of his friends, Fire Lt.
6. Brennan does not identify who “McIntosh” is or the position McIntosh
held.
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DePompeo, was demoted from Lt. Firefighter to Firefighter,
and that this demotion was unprecedented. According to
Brennan, DePompeo was involuntarily transferred after he
spoke out in support of Brennan’s reports of asbestos.
Brennan also cited the denial of a friend’s leave request in
violation of the collective bargaining agreement. In fact,
Brennan said that the term “FOB” became a derogatory
acronym for “Friend of Brennan.”
According to Brennan, the atmosphere at work
deteriorated to the point that Captain O’Neill’s sole function
became following Brennan around and reporting on
everything that he did. O’Neill stopped addressing him as
“Firefighter Brennan” and simply referred to him as
“Brennan,” which, according to Brennan, was more
harassment and a violation of the Department’s rules and
regulations.
Brennan cited still other examples of harassment and
retaliation which are too numerous to mention, and which
need not be reiterated in detail. Rather, we briefly note that
he claimed that he was unfairly singled out because he had
a cell phone on his belt on February 21, 1998; that he was
reprimanded for using too many towels to wash a fire truck;
and that someone placed a sticker on his helmet that read
“Department Asshole” over the word “Firefighter.” The same
month a message on the firestation television was
reprogrammed with an obscenity referring to him as a
homosexual. Brennan also alleged that Chief Norton asked
the FMBA President to have the union write a letter saying
that Brennan was not fit for duty so that Teaneck could
terminate him.
Brennan claimed that there was never any meaningful
investigation of any of these incidents. Deputy Chief Bauer
told him that he investigated the TV and helmet incidents,
but could not determine who was responsible. Brennan
said that Bauer told him that this conduct did not
constitute harassment and refused to conduct a follow-up
investigation.
Finally, we note that Brennan alleged that in June 1998,
his treating psychiatrist, Daniel Kuhn, M.D., diagnosed
Brennan as having stress allegedly resulting from the
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harassment and retaliation and he was unable to work as
a result.
II. DISTRICT COURT PROCEEDINGS
As noted above, on August 23, 1996, Brennan sued
Norton, Bauer, Palazzola, O’Neill, and Saage in their
individual and official capacities, as well as the Township of
Teaneck. His complaint sought injunctive relief as well as
compensatory and punitive damages, and he asserted: (1) a
civil rights claim under 42 U.S.C. § 1983 based upon the
purported illegal retaliation for protected speech; (2) state
law claims for intentional and negligent infliction of
emotional distress; (3) a retaliation claim under New
Jersey’s Conscientious Employee Protection Act (“CEPA”),
N.J. Stat. Ann. § 34:19-2; and (4) defamation.
The defendants filed an answer denying Brennan’s
allegations and asserting affirmative defenses and state
law counterclaims alleging, inter alia, fraudulent
misrepresentation and defamation. Brennan thereafter
amended his complaint by adding a common law claim for
retaliation against all defendants. Following additional
pleadings and discovery, the parties filed cross-motions for
summary judgment.
On March 14, 2000, the district court entered an order:
(1) denying defendants’ summary judgment motion as to
Brennan’s § 1983 First Amendment claim; (2) dismissing
Brennan’s state law claims; (3) denying Brennan’s cross-
motions on his claims; and (4) dismissing defendants’
counterclaims. Thus, the only remaining claim was
Brennan’s § 1983 claim for illegal retaliation for the exercise
of protected expression. That claim proceeded to trial before
a jury.
At the conclusion of the ensuing trial, after the court had
denied defense motions for judgment as a matter of law, the
jury returned a verdict for Brennan awarding damages as
follows: (1) $382,500 in compensatory damages against all
defendants; (2) $150,000 in punitive damages against
Saage; (3) $90,000 in punitive damages against Norton; (4)
$90,000 against Bauer; (5) $80,000 in punitive damages
against Palazzola; and (6) $80,000 against O’Neill.
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The district court thereafter granted the defendants’
motions for judgment as a matter of law with respect to
Norton, Bauer, Palazzola and O’Neill, and also Saage’s
motion for judgment as a matter of law with respect to
punitive damages. However, it denied motions for judgment
as a matter of law with respect to compensatory damages
against the Township and Saage. Judgment was then
entered in favor of Brennan and against the Township and
Saage in the amount of $382,500. After the court denied
additional post-verdict motions by both sides, the parties
filed the instant appeal and cross-appeals.7
III. DISCUSSION
On appeal, Brennan argues that the district court erred
by: (1) holding that certain speech was not protected under
the First Amendment; (2) dismissing his claim under New
Jersey’s Conscientious Employee Protection Act (“CEPA”);
(3) granting judgment as a matter of law to Norton, Bauer,
Palazzola and O’Neill; and (4) granting judgment as a
matter of law with respect to punitive damages against
Saage.8 The Township and Saage argue that the district
court erred by: (1) denying their motion for judgment as a
matter of law; and (2) denying their motion for a new trial,
7. On May 7, 2001, Brennan’s former counsel filed a motion for
attorney’s fees, which the district court has stayed pending appeal.
Brennan was originally represented by counsel. The district court, by
order dated May 10, 1999, permitted counsel to withdraw. Thereafter,
Brennan proceeded pro se in the district court. However, he is
represented by counsel in his appeal.
8. Brennan does not argue that the district court’s dismissal of his state
law claims, other than his CEPA claim, was error. The district court
found that a provision of CEPA, more particularly N.J. Stat. Ann.
§ 34:19-8, which provides that “institution of an action in accordance
with this act shall be deemed a waiver of the rights and remedies
available under any contract, collective bargaining agreement, State law,
rule or regulation or under the common law,” barred his state law
retaliation claim. The district court also found that a Notice of Claim
provision in New Jersey’s Tort Claims Act, N.J. Stat. Ann. § 59:8-1 et
seq., with which Brennan failed to comply barred his CEPA claim and
his state law defamation and intentional and negligent infliction of
emotional distress claims.
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or, in the alternative, for remittitur. Inasmuch as these
arguments substantially overlap, we will organize our
discussion according to the issues raised by the competing
claims.
A. Brennan’s First Amendment Retaliation Claim.
(I). General Legal Principles.
1. Public Concern
“A public employee has a constitutional right to speak on
matters of public concern without fear of retaliation.”
Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir.
2001) (citations omitted). “While the government’s role as
employer . . . gives it a freer hand in regulating the speech
of its employees than it has in regulating the speech of the
public at large,9 this hand cannot act with impunity.” Id.
(citation and internal quotations omitted). Therefore,
“[p]ublic employers cannot silence their employees simply
because they disapprove of the content of such speech.” Id.
(citations omitted).
However, a public employee’s right of expression is not
absolute vis-a-vis his/her employer’s right to exercise some
control over its work force. Azzaro v. County of Allegheny,
110 F.3d 968, 976 (3d Cir. 1997). Courts employ a three
step analysis when balancing the First Amendment rights
of public employees against competing interests of their
employers. Baldassare, 250 F.3d at 194. “First, plaintiff
must establish that the activity in question was protected.”
9. In Azzaro v. County of Allegheny, 110 F.3d 968, 976 (3d Cir. 1997), we
noted that “the expressive rights of public employees are not as
expansive as those of citizens outside the public work force.” Therefore,
“[o]nly a subset of speech that is protected for citizens is also protected
for public employees: i.e., public concern speech.” Id. However, even
though the government may discharge a public employee for speech “not
touching upon a matter of public concern . . . the government as
sovereign may not sanction the [public employee] when she engages in
such speech as a citizen, outside the employment context.” Id. at 976
n.3.
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Id. at 195 (citation omitted). If the speech in question is
purely personal, it does not fall under the protective
umbrella of the First Amendment and public employers are
therefore not limited by that guarantee in responding to
disruption caused by the expression. See Connick v. Myers,
461 U.S. 138 (1983). Accordingly, the speech in question
“must involve a matter of public concern,” id. at 147, to
qualify as “protected speech.”
“A public employee’s speech involves a matter of public
concern if it can be fairly considered as relating to any
matter of political, social or other concern to the
community.” Baldassare, 250 F.3d at 195 (citation and
internal quotations omitted). Accordingly, “speech may
involve a matter of public concern if it attempts to bring to
light actual or potential wrongdoing or breach of public
trust on the part of government officials.” Connick, 461 U.S.
at 148. This means that public speech cannot “constitute[ ]
merely personal grievances.” Feldman v. Philadelphia
Housing Authority, 43 F.3d 823, 829 (3d Cir. 1994) (citation
omitted). This does not, however, suggest that speech
which is motivated by private concern can never qualify as
protected speech. It clearly can if it addresses a matter that
concerns the public as well as the speaker. See Rankin v.
McPherson, 483 U.S. 378, 387 n.11 (1987) (“The private
nature of the statement does not . . . vitiate the status of
the statement as addressing a matter of public concern.”).
Accordingly, “the speaker’s motive, while often a relevant
part of the context of the speech, is not dispositive in
determining whether a particular statement relates to a
matter of public concern.” Azzaro, 110 F.3d at 978. We
have “declined to distinguish between a public employee’s
expression as a public employee and a public employee’s
expression as a citizen.” Baldassare, 250 F.3d at 197.
“Instead, we concentrate on the value of the speech itself.”
Id. Common sense suggests that public employees, no less
than other employees, will be more likely to speak out when
they are disgruntled or personally dissatisfied with some
aspect of their employment or employer. Nevertheless, the
harm that results from silencing or chilling public speech is
neither negated nor mitigated merely because the speaker
may have harbored motivations that were less than
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altruistic. A public employee’s motivations may be relevant
to determining the impact of his/her speech upon the
public. However, those motivations will rarely, by
themselves, justify silencing speech that otherwise
addresses matters concerning the public. “Silencing a
public employee seeking to speak on a matter of public
concern deprives a self-governing society of information
that may be vital to informed decision-making.” Azzaro, 110
F.3d at 977 (citation omitted). “This can be a particularly
serious loss because public employees, by virtue of their
constant interactions with a public officer, are often in the
best position to know what ails that office.” Id. Thus, we
must focus on “the content, form, and context of the
activity in question.” Baldassare, 250 F.3d at 195 (citation
omitted). Determining whether a public employee’s speech
is a matter of public concern is a question of law for the
court. Id. (citation omitted).
2. The Balance of Harm
If the plaintiff can establish that his/her speech is a
matter of public concern, the court proceeds to the second
step of the process. The plaintiff must then “demonstrate
his[/her] interest in the speech outweighs the state’s
countervailing interest as an employer in promoting the
efficiency of the public services it provides through its
employees.” Baldassare, 250 F.3d at 195 (citation omitted).
This inquiry is purely legal and is therefore decided by the
court as a question of law. Id. (citation omitted). Courts
must balance the speaker’s First Amendment interest
against any injury the public employer may suffer as a
result of that expression. Baldassare, 250 F.3d at 197
(citations omitted). “On the one side, we weigh the public
employee’s interest in speaking about a matter of public
concern and the value to the community of [him/]her being
free to speak on such matters.” Azzaro, 110 F.3d at 980
(citations omitted). “Balanced against these interests is the
government’s interest as an employer in promoting the
efficiency of the services it performs through its employees.”
Id. (citation omitted). “Only if the value of the speech, as
measured by the employee’s and the public’s interests, is
outweighed by the government’s interest in effective and
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efficient provision of services, will [a court] hold that the
speech is protected.” Id.
Accordingly, we must consider the nature of the
relationship between the employee and the employer as well
as any disruption the employee’s speech may cause,
including the impact of the speech on the employer’s ability
to maintain discipline and relationships in the work place.
Baldassare, 250 F.3d at 198. “In calibrating the
significance of the disruption, the relationship between the
employer and the employee is particularly important.” Id.
(citation omitted). Of course, the right of expression would
mean little if an employee could be silenced whenever
his/her voice caused any degree of disruption or discomfort
for a public employer. Therefore, the balancing cannot be
“controlled by a finding that disruption did or could occur.”
Id. at 200 (citation omitted). A public employee’s speech “no
doubt may disrupt and demoralize much” of the public
workplace. Id. (citation omitted). However, the First
Amendment stands as a barrier to punishing a public
employee simply because his/her speech disrupts the
workplace. Id. (citation omitted). Rather, any disruption is
“only [a] weight[ ] on the [balancing] scale.” Id. (citation
omitted).
3. Causation
If a public employee’s speech concerns a matter of public
concern, and the balance of harm weighs in favor of the
employee’s expression, “plaintiff must then show that the
protected activity was a substantial or motivating factor in
the alleged retaliatory action.” Baldassare, 250 F.3d at 195
(citation omitted). However, a plaintiff will not necessarily
prevail even if he/she is able to clear this last hurdle. “[T]he
public employer can [still] rebut the claim by demonstrating
it would have reached the same decision . . . even in the
absence of the protected conduct.” Id. (citation omitted).
This latter causation raises an issue of fact that must be
resolved by the fact finder. Id.
Our analysis of Brennan’s alleged First Amendment
violation therefore begins with determining whether his
expression was protected, and if so, whether the record
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supports a finding that the expression caused any of the
defendants to retaliate against him for that expression. The
outcome of our analysis is not determined by the source of
the speech or the merit of its content. “Rather, 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.” Azzaro, 110 F.3d at 977.
(II). Analysis
1. Brennan’s Speech Concerning Matters of Public
Concern.
The essence of Brennan’s constitutional claim is that
Saage led a campaign to punish him for speaking out on
matters of public concern and that Norton, Bauer,
Palazzola, O’Neill and the Township willingly assisted in
that campaign. According to Brennan, the defendants
retaliated against him for: (1) protesting the closing of two
fire stations; (2) informing Township residents that the fire
sprinklers at Teaneck’s Police Station violated the directives
of the Fire Sub-Code Official; (3) opposing the proposal to
replace the position of Fire Sub-Code Official with a civilian;
(4) filing a complaint with the New Jersey Department of
Labor over the proposal to implement uniforms and
protective gear that were not fire-resistant as required by
state law; and (5) informing the New Jersey Department of
Labor and Health about the presence of asbestos in
Teaneck’s fire stations.
The district court initially held that only the first three
claims involved matters of public concern. However, in its
subsequent opinion granting judgment to defendants as a
matter of law, the court concluded that there was
insufficient evidence to prove that Brennan had actually
engaged in speech about fire sprinklers in the police
station. Accordingly, the court granted judgment to
defendants on Brennan’s First Amendment claim pertaining
to that alleged expression. On appeal, Brennan broadly
argues that his speech regarding fire sprinklers was
protected. However, he makes no effort to refute the district
court’s finding that he had not produced sufficient evidence
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to establish that he engaged in such expression in the first
place. For their part, neither the Township nor Saage
dispute the district court’s finding that Brennan’s
opposition to the closings and the proposal to hire a civilian
as Fire Sub-Code Official were protected speech.
The real dispute centers on Brennan’s speech regarding
asbestos in the fire stations and his complaints about
uniforms and protective gear. The district court found that
these were not matters of public concern. Rather, the court
concluded that these were “matters of personal interest
which, while perhaps important to firefighters and their
union, are not issues which affect the public interest.”10
Dist. Ct. Summary Judgment Op. at 15. The Township and
Saage argue that Brennan’s asbestos related expression
does not concern the public because it only affects
Brennan’s work place and is, at most, only relevant to him,
and perhaps other firefighters who worked there. They rely
on the fact that firestations are not generally open to the
public. According to them, any asbestos inside of a
firestation could not, ipso facto, be a matter of public
concern.
Brennan, on the other hand, insists that the public’s
concern is obvious because the presence of asbestos
violates New Jersey’s Public Employee Occupational Safety
and Health Act (“PE-OSHA”), N.J. Stat. Ann. § 34:6A-25 et
seq. Brennan insists that the public has an interest in
whether or not its public safety laws are being violated. We
agree.
The dangers of asbestos are well established and require
no reaffirmation or additional proof here.11 Given the well
10. “This court must make an independent constitutional judgment of
the facts of the case as to whether the speech involved is constitutionally
protected.” Baldassare, 250 F.3d at 192 n.1 (citation and internal
quotations omitted).
11. “Asbestos is the generic name for naturally occurring minerals which
separate into fiber.” John P. Kincade, Issues in School Asbestos Hazard
Abatement Litigation, 16 St. Mary’s L.J. 951, 953 (1985). It is a “toxic
material,” whose “fibers break down into microscopic, friable particles
that can be easily inhaled. Friable particles remaining in the lung often
produce asbestos related diseases such as asbestosis, lung cancer, and
mesothelioma.” Arthur A. Schulcz, Recovering Asbestos Abatement Costs,
10 Geo. Mason U. L. Rev. 451, 452-453 (1988).
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documented danger of asbestos in the workplace, we are
not impressed by the “limitation” that “only” firefighters
may be harmed by the presence of asbestos in the
firestation where Brennan worked. Those firefighters were,
after all, public employees committed to protecting the
citizens of the Township from the danger of fires. Residents
of the Township clearly had an interest in knowing that
their tax dollars were being spent on an asbestos
contaminated firestation that endangered the health and
lives of its firefighters. This is such a basic proposition that
we need not belabor the point. Quite simply, the statements
regarding exposure of public employees to hazards such as
asbestos can be “fairly considered as relating to [a] matter
of . . . concern to the community,” Baldassare, 250 F.3d at
195 (citation omitted). Therefore, the district court erred by
finding that Brennan’s complaints about asbestos to the
State Department of Labor and Health were not protected
speech about a matter of public concern.12
This conclusion does not, however, end our inquiry.
Nonconstitutional error in a civil suit “may be deemed
harmless if it is highly probable that the error did not affect
the outcome of the case.” West v. Philadelphia Electric Co.,
45 F.3d 744, 752 (3d Cir. 1995) (citation and internal
quotations omitted); see also Betterbox Communications Ltd.
v. BB Technologies, Inc., 300 F.3d 325, 329 (3d Cir. 2002)
(“In a civil case, a[ ] [nonconstitutional] error is harmless if
it is highly probable that it did not affect the party’s
substantial rights.”) (citation omitted). Therefore, we must
consider the impact, if any, this error may have had on
Brennan’s claim.
12. The Township and Saage also argue that Brennan never claimed in
the district court that his complaints about asbestos violated the PE-
OSHA. Consequently, they contend that he has waived this particular
argument and cannot make it here. See The Medical Protective Co. v.
Watkins, 198 F.3d 100, 105 n.3 (3d Cir. 1999). However, we do not
believe that Brennan’s alleged failure to argue in the district court that
the presence of asbestos in the firestation violated state law or
regulations constitutes a waiver. Brennan complained to the state
authorities about the asbestos in the firestation and, as we have
explained, that speech was protected public concern speech. Therefore,
it is of no consequence to our analysis that he failed to argue in the
district court that asbestos in the firestation violated state law.
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The district court’s erroneous conclusion that the
presence of asbestos in the Township firestation did not
concern the public prevented the jury from knowing that
Brennan’s asbestos related complaints were protected
under the First Amendment. However, the jury was
informed that Brennan’s speech in opposition to the closing
of the two fire stations and the replacement of the Fire Sub-
Code Official with a civilian was protected by the First
Amendment. The jury found in Brennan’s favor and against
all of the defendants on his First Amendment retaliation
claim. Inasmuch as Brennan prevailed on the First
Amendment retaliation claim despite the district court’s
erroneous view of the public importance of Brennan’s
asbestos complaints, we conclude that the error did not
affect the outcome of Brennan’s case. It may, however, have
had an effect on the amount of damages the jury awarded
if Brennan is entitled to an award of damages on his
retaliation claim. However, for reasons we explain below, we
do not believe that Brennan proved compensatory damages
or that the district court abused its discretion in granting
judgment as a matter of law on the jury’s award of punitive
damages. Therefore, we conclude that the error was
harmless.
2. Complaints about Protective Gear and Uniforms.
Brennan also argues that his complaint to the New
Jersey Department of Labor regarding the lack of adequate
protective uniforms relates to a matter of public concern
because both federal law and the New Jersey
Administrative Code mandate protective fire gear for
firefighters. Although this argument has superficial appeal,
the Township and Saage point out that Brennan’s speech
did not address any safety issues regarding uniforms and
protective gear. They argue that instead, Brennan voiced
concern that the Teaneck Fire Department was not
receiving the uniforms and protective clothing quickly
enough. Brennan does not now claim otherwise nor does he
dispute that the Township ultimately bought protective
uniforms made from a fire-resistant material called
“Nomex.” Those uniforms were even safer than the 100%
cotton uniforms that he had been urging the Township to
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buy. Accordingly, given the context of Brennan’s complaint
that protective uniforms were not being purchased quickly
enough, we agree that it did not implicate the public
concern necessary for First Amendment protection.13
3. Brennan’s First Amendment Petition Clause
Activities.
Brennan also argues that the Petition Clause of the First
Amendment protects each of the following activities: (1) his
complaints about the asbestos and the uniforms; (2) filing
this lawsuit; and (3) filing an unfair labor practice charge
with the NJPERC regarding the payroll status of firefighters
on IOD leave.14 He argues that each of these activities and
related expressions is protected by his First Amendment
right to petition the government. According to Brennan, the
district court therefore erred by requiring him to establish
that these activities related to matters of public concern, as
that is not a condition precedent to protection from
retaliation under the Petition Clause.
It is undisputed that filing lawsuits and grievances under
a collective bargaining agreement implicate the Petition
Clause of the First Amendment. San Filippo v. Bongiovanni,
30 F.3d 424, 434-35 (3d Cir. 1994). Although a plaintiff
alleging retaliation for protected speech under § 1983 must
ordinarily establish that his/her speech was a matter of
public concern to qualify for the protections of the First
Amendment’s guarantee of free expression, the same is not
true where the speech itself constitutes the plaintiff ’s
13. We do not, however, suggest that complaints about how quickly a
public entity is purchasing protective equipment can never rise to the
level of public concern. We merely hold that such a concern is not
established on this record, especially because the Township purchased
uniforms that were superior to the uniforms Brennan was urging it to
buy.
14. The First Amendment states in relevant part:
Congress shall make no law . . . abridging the freedom of speech, or
of the press, or of the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
U.S. Constitution, Amend. I.
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lawsuit. Id. at 434-43. On the contrary, a plaintiff need only
show that his/her lawsuit was not frivolous in order to
make out a prima facie claim for retaliation under the
Petition Clause. Id.; see also id. at 443 (“The mere act of
filing a non-sham petition is not a constitutionally
permissible ground for discharge of a public employee.”).
We reject Brennan’s Petition Clause argument not
because the district court required a showing of a “public
concern” analysis, but because Brennan never made a
Petition Clause argument in the district court in the first
place. His only First Amendment claim there was based on
the Speech and Association Clauses. His complaint alleged:
“[t]he defendants’ acts and conduct described herein
deprived plaintiff of his rights to free speech and free
association under the First Amendment, including but not
limited to the right to speak on matters of public concern,
in violation of the First Amendment to the United States
Constitution and 42 U.S.C. § 1983.” Amended Compl. ¶ 45
(emphasis added). There was no reference to the Petition
Clause.
Brennan nevertheless insists that he did raise his
Petition Clause argument in the district court. He supports
this by citing to his Brief in Opposition to Defendants’
Motion for Summary Judgment at page 24. There, he cited
San Filippo “for the proposition that a lawsuit, grievance or
administrative proceeding is protected speech even if it
‘only touches on matters of private concern,’ based on ‘the
First Amendment right to petition the government for a
redress of grievances.’ ” Brennan’s Reply Br. as Cross-
Appellant, at 1-2. In his view, “[t]his argument, and all of
the subsequent references to it, more than adequately
raised this issue in the District Court, and therefore
preserve it for appeal.” Id. at 2. We disagree.
The issue is not whether a sufficiently clairvoyant jurist
would have known that a particular argument was
emanating from the ethers of briefs filed in the district
court. “[T]he crucial question regarding waiver is whether
[Brennan] presented the argument with sufficient specificity
to alert the district court.” Keenan v. City of Philadelphia,
983 F.2d 459, 471 (3d Cir. 1993). His fleeting reference to
San Filippo in a brief in opposition to his opposing parties’
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summary judgment motion is clearly not sufficient to
inform the district court that Brennan was claiming a right
to affirmative relief under the Petition Clause, separate and
apart from his free speech and association claim.
Accordingly, we conclude that Brennan has waived any
argument he may have had to base his § 1983 claim on a
violation of the Petition Clause.
4. Alleged Retaliatory Acts.
Brennan claims that each of the following retaliatory acts
entitle him to relief in addition to the relief he claims
results from his various job suspensions:
1. Norton refused to recommend that the Township
Council extend Brennan’s IOD leave;
2. Bauer transferred Brennan out of Headquarters to
Station 2;
3. Palazzola told Lt. Schroeder that he (Palazzola) would
transfer Brennan and make his life miserable after Brennan
objected to closing firehouses and replacing the Fire Sub-
Code Official;
4. Brennan was transferred to Station 2 after returning
from disability leave in February 1995, and Bauer assigned
him to ten hour watch duties;15
5. O’Neill told Smith and others that Brennan was on
medication that caused psychotic behavior;
6. O’Neill stopped using Brennan’s title and refused to
capitalize his name in memoranda O’Neill wrote;
7. Immediately after his first report about asbestos,
Palazzola required Brennan to “pull hose,” which Brennan
says is a menial labor-intensive task;
8. Palazzola cited Brennan for “conduct unbecoming”
charges after Brennan was involved in punching a
mattress;
15. Brennan claims that ten hour watch duties violate department rules
and regulations which limit non-disciplinary housewatch to four hours.
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9. Brennan was served with a Preliminary Notice of
Disciplinary Action, signed by Saage, recommending
Brennan’s discharge from the Fire Department after Saage
was served with the complaint he filed in the district court;
10. Brennan was subjected to daily hostilities after he
filed the complaint. These included being the only
firefighter without a locker; a sticker reading “Department
Asshole” was placed on his helmet; the TV was
reprogrammed with homophobic remarks referring to him;
his personal belongings were stolen; and Norton reportedly
laughed at Brennan when Brennan reported certain
incidents to him; and
11. After a local newspaper referred to Brennan as a
“whistleblower,” dozens of whistles were hung in a tree
outside his firehouse. There was no investigation, and
supervisors allowed the whistles to remain there for
months.
The Township and Saage argue in part that these actions
were too petty to constitute an actionable constitutional
violation. We agree that some of the alleged wrongs do not
rise to the level of actionable conduct by a public employee
given the record before us.16 “Determining whether a
plaintiff ’s First Amendment rights were adversely affected
by retaliatory conduct is a fact intensive inquiry focusing
on the status of the speaker, the status of the retaliator,
the relationship between the speaker and the retaliator,
and the nature of the retaliatory acts.” Suarez Corp.
Industries v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)
(emphasis added). Consequently, “[t]o properly balance
these interests, courts have required that the nature of the
retaliatory acts committed by a public employer be more
than de minimis or trivial.” Id. A public employer “adversely
affects an employee’s First Amendment rights when it
refuses to rehire an employee because of the exercise of
16. We do not suggest, however, that some of these same wrongs can
never support a cause of action under § 1983. Moreover, we think it
important to note that a plaintiff may be able to establish liability under
§ 1983 based upon a continuing course of conduct even though some or
all of the conduct complained of would be de minimis by itself or if
viewed in isolation.
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those rights or when it makes decisions, which relate to
promotion, transfer, recall and hiring, based on the exercise
of an employee’s First Amendment rights.” Id. (citations and
internal quotations omitted). “On the other hand, courts
have declined to find that an employer’s actions have
adversely affected an employee’s exercise of his First
Amendment rights where the employer’s alleged retaliatory
acts were criticism, false accusations, or verbal
reprimands.” Id. (citations omitted).
A number of Brennan’s allegations do not rise to the level
of substantive constitutional violations — e.g., Brennan’s
attempt to forge constitutional violations from allegations
that O’Neill stopped using Brennan’s title and did not
capitalize his name — because, even if true, they are de
minimis. Nevertheless, other allegations of retaliation clearly
do rise to the level of a violation of Brennan’s First
Amendment rights viewed in context with the course of
conduct alleged, or taken individually. For example,
Brennan’s allegation that he was taken off the payroll in
December 1994 and given 2-day, 21-day and 63-day
suspensions would obviously support a cause of action for
illegal retaliation under § 1983.
However, even though some of the allegations of
retaliation could rise to the level of a First Amendment
violation, it is hard from this record to determine which
defendant or defendants were responsible for actionable
retaliation with sufficient precision to assess liability
against any particular defendant or defendants. For
example, there is no way of knowing if any of the named
defendants were responsible for placing the whistles in the
trees, or placing the objectionable sticker on Brennan’s
helmet. Moreover, even where responsibility can be
established, Brennan’s claim for relief still fails because he
cannot establish the necessary nexus between protected
conduct and alleged retaliation.
5. Causal Connection Between Alleged Retaliatory
Conduct and Brennan’s Protected Speech.
As noted above, once a public employee demonstrates
that his/her speech pertains to a matter of public concern
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of sufficient gravity to outweigh the state’s interest as
employer, the employee must “then show that the protected
activity was a substantial or motivating factor in the alleged
retaliatory action.” Baldassare, 250 F.3d at 195. Brennan’s
allegations reflect a myopic interpretation of events wherein
retaliatory motives permeated the defendants’ every move.
So viewed, such seemingly innocuous occurrences as not
capitalizing Brennan’s name in various written memos
become a basis to seek money damages in federal court.
Not unexpectedly, the defendants argue that Brennan failed
to produce direct or circumstantial evidence to support a
reasonable inference that the alleged retaliatory conduct
was the result of Brennan’s protected speech. In order to
resolve this, we must examine the allegations of retaliatory
conduct by each of the defendants.
(a). Fire Chief Norton.
Brennan asserted four retaliation claims against Norton.
First, Brennan claimed that on July 12, 1995, Norton
retaliated against him for his protected speech by denying
Brennan’s request to have outstationed firefighters attend
union meetings at headquarters. Brennan challenged this
action in an unfair labor practice charge he filed with the
NJPERC. However, there was a significant time lag between
Brennan’s protected expression and Norton’s alleged
retaliation. Brennan protested closing the fire stations in
July 1994 and he protested the Fire Sub-Code Official
proposal in October 1994. Norton’s alleged retaliation
occurred in July 1995.
The causation required to establish a claim under § 1983
is identical to that required under Title VII. Accordingly,
cases addressing a private employer’s alleged retaliation for
protected activity under Title VII is helpful to our analysis
here. In Abramson v. William Patterson College, 260 F.3d
265, 288 (3d Cir. 2001), we focused on the timing of the
retaliation and evidence of continuing animosity. We
concluded that a significant delay between the expressive
activity and the retaliation would not preclude finding the
required nexus where there is evidence of continuing
hostility to connect events that would not otherwise appear
to be related to each other. Id. Although the nine month
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gap here between expression and alleged retaliation is not,
by itself, sufficient to preclude an inference of causation,
there is nothing other than Brennan’s claim of causation to
connect the two.
Moreover, we are at a loss to understand how Norton’s
refusal to allow a class of firefighters to attend meetings
harmed Brennan, as he was not even a member of the
affected class. Any possible harm was inflicted upon the
outstationed firefighters or the union, not Brennan, and he
has not produced evidence to show how that refusal could
reasonably be equated with retaliation against him.
More importantly, however, it appears that Norton’s
action was not motivated by animus against Brennan at all.
The record establishes that Brennan eventually withdrew
his unfair labor practice charge after entering into a
settlement agreement requiring outstationed firefighters to
first arrange for other firefighters to cover their shifts before
leaving duty stations to attend union meetings. In that
settlement agreement, Brennan did not dispute that the
need for replacements justified Norton’s denial of Brennan’s
request. We believe this fatally undermines Brennan’s
attempt to brand Norton’s action as retaliation. The only
logical inference arising from the agreement that Brennan
himself freely entered into is that Norton’s refusal to allow
outstationed firefighters to leave duty stations was
motivated by a concern for maintaining proper coverage in
those stations, not by Norton’s animosity toward Brennan.
Brennan also alleged that in or about December 1994,
Norton refused to allow him to use a photocopier for union
purposes. However, Brennan does not dispute the
Township’s and Saage’s claim that he never even asked
Norton to use the photocopier for union purposes.
Accordingly, that allegation is frivolous.
Brennan’s third allegation against Norton is that Norton
issued Brennan an unsigned ID card in May 1995. Norton
denies this, but that is irrelevant because Brennan does
not bother to explain the significance of an unsigned ID
card. Moreover, even if Norton had issued Brennan an
unsigned ID card in retaliation for Brennan’s protected
activities, nothing on this record would allow us to
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conclude that the “injury” was sufficient to support
recovery under § 1983. See Suarez, 202 F.3d at 685-86.
Brennan’s final claim against Norton arises from Brennan
reporting for work out of uniform on May 24, 1996. Norton
charged Brennan with conduct unbecoming a firefighter
and suspended him for 2 days However, without more, this
incident merely shows that Norton was enforcing the rules
of the workplace. The Personnel Department subsequently
upheld the suspension and concluded that it was justified.
Absent evidence that other firefighters had similarly
violated the dress requirements without being disciplined,
the required nexus between Brennan’s dismissal and his
expression is obviously missing. Moreover, this charge and
the resulting dismissal came nearly a year and a half after
Brennan’s expression. This record does not support
Brennan’s apparent belief that everything that happened to
him in the intervening year and a half was motivated by an
intent to retaliate for his protected speech.
Accordingly, we agree with the district court’s conclusion
that Brennan failed to prove any claim against Norton.
(b). Deputy Chief Bauer.
When Brennan called in sick on May 25, 1996, Bauer
asked that Brennan provide him with a doctor’s note to
justify the absence. This is the only retaliatory action
Brennan presents against Bauer. However, Brennan has
not shown how something so basic as requesting a doctor’s
note from an employee who used sick leave establishes
improper retaliatory conduct under § 1983. We realize, of
course, that this kind of conduct could be retaliatory if a
supervisor makes such routine requests of some employees
and not others, but there is no evidence of such disparate
treatment in response to protected expression here. An
employer can certainly require an employee to document a
claimed absence due to illness. Moreover, once again, this
occurred nearly a year and a half after Brennan’s protected
expression. Given that gap, we conclude that the allegation
against Bauer is not substantive.
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(c). Captain O’Neill.
Brennan asserted two retaliation claims against O’Neill.
First, he claimed that O’Neill told Lt. Montgomery and
others that Brennan was taking medication that caused
psychotic behavior. O’Neill does not dispute that in March
of 1995 he told Montgomery that Brennan was taking
medication that had possible side effects of euphoria,
insomnia, and possible psychotic behavior. However,
Brennan was actually taking such medication, and we do
not see how O’Neill’s disclosure of that information to
supervisors responsible for firefighters’ safety establishes
retaliation. Moreover, even if this disclosure was motivated
by anger at Brennan’s expression, Brennan has not
demonstrated any compensable injury under § 1983. See
Suarez, 202 F.3d at 685 (“1983 retaliation plaintiff must
demonstrate that the defendant’s actions had some adverse
impact on the exercise of the plaintiff ’s constitutional
rights.”).
Second, Brennan claimed that O’Neill revoked the extra
year of seniority that Brennan had earned as a result of his
prior employment with another fire department. O’Neill
denies he ever did this. However, even if we assume
arguendo that the seniority was revoked, Brennan’s cause
is still not advanced because Brennan has not established
the date of the alleged revocation. Absent this chronology or
similar circumstances to allow a reasonable fact finder to
tie the revocation to Brennan’s First Amendment activities,
the nexus necessary to establish a retaliatory motive is
simply lacking.
(d). Deputy Chief Palazzola.
Brennan charged Deputy Chief Palazzola with four acts of
retaliation. First, he alleged that in April or May of 1995,
Palazzola issued used gloves to him while other firefighters
received new ones. However, Brennan admitted that he did
not know whether better gloves were available and he did
not claim that he suffered even the slightest harm by
wearing used gloves as opposed to new ones. Moreover, this
conduct is so trivial that even if Palazzola’s motives were
colored by retaliatory animus, we would be hard pressed to
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conclude that this act is of sufficient gravity to support
liability under § 1983. See Suarez, 202 F.3d at 685-86.17
Second, in November 1995, Brennan complained that the
Township had not provided him with suspenders for his
bunker pants. Brennan claims that Palazzola responded to
Brennan’s complaints about suspenders by telling someone
that Brennan would be transferred back to Headquarters if
he did not stop complaining and that Palazzola would make
life miserable for him. However, Brennan admits that
Palazzola did not say anything in his presence or within the
range of his hearing. In addition, Brennan is unable to
identify the person to whom Palazzola allegedly made the
statements. Accordingly, his proof as to this allegation
amounts to nothing more than his unsupported allegation.
Moreover, even if Brennan could establish that Palazzola
threatened to transfer him after he complained about
suspenders, we would once again have to evaluate this
claim in light of the teachings of Suarez. Given that
standard, Brennan would be hard-pressed to establish that
Palazzola was motivated by Brennan’s protected speech and
was not simply responding to complaints about suspenders
and used gloves.
Brennan’s third allegation against Palazzola appears, at
first glance, to be more substantive. Brennan claims that in
February of 1996, Palazzola responded to Brennan’s
complaints about asbestos in the firestation by saying that
Brennan knew what would happen to him if he made that
a safety issue. According to Brennan, three days later he
was transferred to Station 3 in violation of his seniority. On
March 12, 1996, Brennan complained to the Personnel
Department he believed that Palazzola’s statement and his
subsequent transfer were in retaliation for his union
activities and safety hazard complaints, which included
complaints about asbestos in the firestation.
17. We reiterate, however, that we are not suggesting that repeated
incidents of what might otherwise be trivial “harassment” can never be
actionable. The cumulative impact of retaliatory acts may become
actionable even though the actions would be de minimis if considered in
isolation.
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Earlier, we held that the district court erred by finding
that Brennan’s complaints about asbestos in the firestation
were not protected speech about a matter of public
concern. Therefore, if Palazzola had transferred Brennan
from Station 2 to Station 3 in violation of his seniority
because of his complaints about asbestos, that could
establish retaliation for engaging in protected public
concern speech.18 However, Brennan has produced no
credible evidence that Palazzola was responsible for the
transfer. He claims that the defendants transferred him and
that claim is based on the belief of Brennan’s then
superior, Lt. Schroeder, that the defendants transferred
Brennan because of his complaints about asbestos. Yet,
based on this evidence, we are unable to determine if
Palazzola was the fire department official who retaliated
against Brennan because of his complaints about asbestos.19
Brennan’s fourth, and last, claim against Palazzola
involved the mattress punching incident. As noted above,
on Sunday, August 11, 1996, Palazzola called Brennan
while Brennan was home on sick leave. Palazzola informed
Brennan that he was being charged with conduct
unbecoming a public employee because Brennan had used
a dormitory mattress as a punching bag. Palazzola also
18. We assume for argument’s sake that a transfer that violates a public
employee’s seniority is an adverse employment action.
19. Brennan also claims that Palazzola retaliatorily transferred him
because of his union activities, but he does not bother to specify the
nature of those activities. As a broad proposition, some union activity
“presumably comes within the [First Amendment’s] right to associate for
expressive purposes.” Hotel and Restaurant Employees and Bartenders
Int’l Union, Local 54 v. Read, 832 F.2d 263, 265 (3d Cir. 1987) (citing
Roberts v. United States Jaycees, 468 U.S. 609, 602 (1984) (“[I]mplicit in
the right to engage in activities protected by the First Amendment [is] a
corresponding right to associate with others in pursuit of a wide variety
of political, social [and] economic . . . ends.”)). If we take this broad
proposition and then assume for argument’s sake that Brennan’s
unspecified union activities constitute protected public concern speech,
Brennan’s claim that Palazzola transferred him in retaliation for those
activities would fail for the same reason that his claim that he was
transferred for complaining about asbestos fails, i.e., he has no credible
proof that Palazzola was the fire department official responsible for his
transfer.
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allegedly told Brennan that he could not return to work
without a doctor’s note. Brennan claimed that he used the
mattress as a punching bag to relieve stress after he
learned that the FMBA had dropped his grievance regarding
overtime. Moreover, Brennan alleged that other firefighters
who used a mattress as a punching bag were not
disciplined.
Brennan’s claim is, of course, that Palazzola charged him
with conduct unbecoming a public employee in retaliation
for engaging in protected activities. However, he produced
no credible evidence to support that claim. While he does
allege that other firefighters who used a mattress as a
punching bag were not disciplined, he does not give the
details of those incidents. Thus, we do not know if those
other instances were similar to Brennan’s or not. In our
view, this alleged instance of retaliation is nothing more
than a straightforward disciplinary proceeding. Brennan
does not dispute the defendants’ recitation that on August
9, 1996, Brennan was engaged in a heated public argument
with another firefighter; that he was punching a mattress
and screaming “they had sold me out;” that when Palazzola
spoke to him, Brennan appeared distraught; and that
Palazzola, as a result of the incident, charged Brennan with
conduct unbecoming a firefighter. Subsequently, Brennan
took 2 sick days, Palazzola’s charge was upheld and
Brennan was suspended for 5 days. On administrative
appeal, the Personnel Department affirmed the charge, but
reduced the suspension to 2 days.
Although the subsequent action of the Personnel
Department affirming Palazzola’s action does not negate
Brennan’s federal claim, it does corroborate the defendants’
contention that the personnel action was warranted and
not retaliatory. Moreover, the twenty-one month time lapse
between Brennan’s protected activities and Palazzola’s
charge is too remote to support an inference of retaliation.
(e). Unspecified Defendants.
Brennan also alleged improper retaliatory acts by
unspecified defendants: including being listed AWOL in
March 1995 for failure to attend a workers’ compensation
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doctor’s evaluation; denial of his request for leave with
substitute in June 1996; his assignment in August 1996 by
Lt. Montgomery (who is not named as a defendant) to watch
a training video about a firefighter who killed his superiors;
his assignments to 10 hour housewatches; a denial of his
request for either a Thanksgiving 1994 or Christmas 1995
holiday; the “Department Asshole” sticker; and the whistles
in the tree incident.
As noted above, the difficulty with each of these
allegations is that Brennan does not assign responsibility
for them. He merely makes a blanket claim that the
“defendants” took various actions against him with no
further attempt to fix responsibility, and the record does
not contain sufficient information to allow a trier of fact to
attach liability for a given act of alleged retaliation. Thus,
Brennan’s failure to identify the defendant or defendants
responsible for these alleged incidents dooms these claims
of retaliation, even assuming that they would otherwise be
actionable.
As noted, the jury found that Norton, Bauer, Palazzola
and O’Neill retaliated against Brennan for engaging in
protected speech. However, the district court granted each
of those defendants judgment as a matter of law in post-
trial proceedings.20 The court reasoned that there was “no
20. The standard of review on the district court’s grant of a motion for
judgment as a matter of law is as follows:
We exercise plenary review of an order granting or denying a motion
for judgment as a matter of law and apply the same standard as the
district court. Such a motion should be granted only if, viewing the
evidence in the light most favorable to the nonmovant and giving it
the advantage of every fair and reasonable inference, there is
insufficient evidence from which a jury reasonably could find
liability. In determining whether the evidence is sufficient to sustain
liability, the court may not weigh the evidence, determine the
credibility of witnesses, or substitute its version of the facts for the
jury’s version. Although judgment as a matter of law should be
granted sparingly, a scintilla of evidence is not enough to sustain a
verdict of liability. The question is not whether there is literally no
evidence supporting the party against whom the motion is directed
but whether there is evidence upon which the jury could properly
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evidence that plaintiff ’s exercise of his free speech rights
was a substantial or motivating factor in any action they
took with respect to plaintiff.” BA-43. We agree. We earlier
commented on the extent to which Brennan’s myopic view
defined everything that happened to him after he spoke out
about the closing of the fire stations and the Fire Sub-Code
Official to be a direct result of his protected expression.
This includes actions that might fairly be categorized as
retaliatory and harmful as well as such trivial matters as
his name not being capitalized in memos. However, to the
extent that actions of Norton, Bauer, Palazzola or O’Neill
could actually rise to the level of a First Amendment
violation, Brennan has not produced sufficient evidence to
allow a reasonable jury to conclude that those defendants’
actions were retaliatory. That nexus arises only from
Brennan’s allegations, rather than proof that he produced.
(f). Township Manager Saage.
Brennan asserted two retaliation claims against Saage.
The first centered on Saage’s charging Brennan with
conduct unbecoming a public employee for electioneering
on June 5, 1996, and then imposing a 21-day suspension
as a sanction on September 4, 1996. On administrative
appeal, the Personnel Department dismissed that charge.
The second centered on a September 13, 1996 charge
Saage brought against Brennan for conduct unbecoming a
public employee. This resulted from Brennan presenting a
forged doctor’s note, abusing sick leave, and interfering
with the public bidding process. Saage suspended Brennan
on those charges on November 8, 1996 for 63 days. The
Personnel Department reduced the suspension for forgery
find a verdict for that party. Thus, although the court draws all
reasonable and logical inferences in the nonmovant’s favor, we must
affirm an order granting judgment as a matter of law if, upon review
of the record, it is apparent that the verdict is not supported by
legally sufficient evidence.
Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.
1993)(citations and internal quotations omitted).
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to 10 days and dismissed the other charges on
administrative appeal.
The jury agreed that Saage retaliated for Brennan’s
exercise of his First Amendment rights, and the district
court denied Saage’s motion for judgment as a matter of
law. Saage now contends that the district court erred by
not granting him judgment as a matter of law on that claim
because Brennan failed to show any causal connection
between protected speech in July and November of 1994
and Saage’s disciplinary actions almost 2 years later.
Saage argues that there was overwhelming evidence that
a majority of the firefighters and the Township residents
opposed his recommendations to close the two fire stations
and replace the Fire Sub-Code official. In fact, Saage points
out that the opposition even included all of the other
individual defendants. According to Saage, the evidence
shows that Brennan failed to distinguish himself from all of
the other critics of that proposal and it is therefore
unreasonable to conclude that Saage was somehow able to
single out Brennan and punish him for his expression.
Saage concedes, in its order denying Saage’s motion for
judgment as a matter of law, that the district court credited
Brennan’s argument that he was an outspoken leader of
the opposition to Saage’s recommendation. However,
according to Saage, that finding is not enough to conclude
that Saage singled Brennan out, and there was no evidence
that Saage or the Township were aware of Brennan’s
protected expression as distinguished from everyone else’s.
Saage points to his testimony that he never even knew that
Brennan posted signs protesting Saage’s recommendations
or that Brennan was even involved in a leafleting campaign.
Moreover, Saage claims that there was no evidence that the
Council was either aware of Brennan’s signs or that
Brennan was responsible for a public service
announcement advocating reopening the two fire stations
Saage had closed. Saage contends Brennan therefore failed
to produce evidence that his protected activities were a
substantial or motivating factor in Saage’s disciplinary
charges against Brennan.
The district court concluded that this was a close call.
However, the court found that the evidence was sufficient
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to sustain the jury’s verdict. The court wrote: “[T]here is
enough evidence (barely enough) for the jury to have
concluded that certain of . . . Saage’s actions with respect
to [Brennan] were motivated in part by [his] disapproval of
[Brennan’s] actions in opposition to closing two fire stations
and replacing the Fire Sub-Code Official.” Dist. Ct. Opn. on
Motions for Judgment as a Matter of Law, at 14.
Closing the two fire stations and replacing the Fire Sub-
Code Official with someone other than a professional
firefighter were both Saage’s ideas. Both proposals had to
be approved by the Township Council and both proposals
generated considerable opposition by the Fire Department
as well as the Township residents. Although Saage claims
that he was unaware of Brennan’s role in that opposition,
a reasonable jury could have found that Brennan was
indeed a leader and that his opposition was so extensive
that Saage must have known of Brennan’s role.21 Thus, the
fact that the district court found only “barely enough”
evidence to support Brennan’s claim against Saage is still
sufficient to support the jury’s verdict. “Barely enough”
evidence is still “enough.”
There is also evidence that Saage disapproved of Fire
Department employees circumventing him and going
directly to the Mayor and the Township Council as Brennan
did. Chief Norton testified that Saage even reprimanded
him for writing a letter to the Mayor and Township Council
opposing Saage’s Fire Sub-Code Official proposal. In fact,
Saage even testified that he considered a firefighter named
Hillermier to have been insubordinate because Hillermier
made a presentation to the Mayor and Township Council
opposing Saage’s proposals to close the two firestations. A
jury could therefore have easily concluded that Saage took
a dim view of Brennan’s opposition to Saage’s proposals. In
fact, in December of 1994, Saage even warned Chief Norton
against writing a letter to the Township Council
recommending that Brennan’s IOD leave be continued
beyond the 30-day period.
21. Brennan’s activity included, after all, an appearance before the
Township Council.
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Given that evidence, the fact that Saage brought two
charges against Brennan and then suspended him after
concluding that those charges were meritorious, a jury
could have reasonably attributed retaliatory motives to
Saage’s actions toward Brennan. Because those actions
included a job suspension, Brennan established the
requisite harm. There was therefore sufficient evidence to
find that Brennan’s protected speech was a substantial or
motivating factor in Saage’s conduct toward Brennan, and
that that conduct was retaliatory. Accordingly, the district
court did not err in denying Saage’s motion for judgment as
a matter of law.
(g). The Township.
As recited, the jury found in favor of Brennan and
against the Township, and the district court thereafter
denied the Township’s motion for judgment as a matter of
law. However, Brennan’s theory of liability against the
Township is not readily apparent to us because he does not
articulate what the Township’s retaliatory acts were.
Rather, he leaves us to presume that the alleged retaliation
consisted of the Council’s two votes in January 1995
denying Brennan’s request for an extension of his 30-day
IOD leave. However, Saage was the only non-firefighter
Township official sued by Brennan. Brennan did not sue
Mayor Ostrow or any of the individual Township Council
members. Moreover, Brennan produced no evidence that
either the Mayor or the Council members were even aware
of his protected expression. In addition, Brennan’s initial
request for an extension of IOD leave was unanimously
denied by the Council on January 3, 1995. It is important
to note that another firefighter named “Pointer,” was also
denied extended IOD leave at the same time. The Township
explained that the denials were motivated by budgetary
concerns and the nature of both Brennan’s and Pointer’s
injuries. Brennan does not dispute that explanation.
Brennan wrote a letter to the Mayor and the Council on
January 13, 1995 because he was not happy about the
denial of his requested leave extension. However, that letter
did not include matters of public concern. It only dealt with
the circumstances of his own leave request and did not
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suggest that Saage or anyone else was involved in denying
Brennan the extension of IOD leave he requested.
Brennan also addressed the Council at a regularly
scheduled meeting on January 17, 1995 and requested that
his IOD leave be extended. The Council voted 4 to 2 with
one abstention to deny Brennan’s request. However, there
is nothing in the record of that meeting or the
circumstances surrounding it to suggest that Council
members were aware of Brennan’s protected speech.
Moreover, as we have just noted, Brennan’s claim that he
was the only firefighter whose request for extended IOD
leave was denied is belied by the fact that Pointer’s request
was also denied.
More importantly, Brennan’s allegation of retaliatory
motive is defeated by his own conduct. As we have already
noted, on May 30, 1995, Brennan filed an unfair labor
practice charge with the NJPERC. There, he alleged that the
Township Council’s denial of his request for extended IOD
leave was “pay back” for an unfair labor practice charge
that he had filed with the NJPERC regarding outstationed
firefighters attending meetings at headquarters as we have
discussed above. He now alleges that the denial was
motivated by “pay back” for his First Amendment
expression. However, his attempt to change horses at this
late date is less than convincing. Clearly, by filing this
unfair labor practice charge against the Township Council,
Brennan’s claim that the Township Council denied him
extended IOD leave in retaliation for engaging in protected
activities is severely undermined.22
Most importantly, Brennan’s position ignores the fact
that the Township cannot be held vicariously liable in a
22. Brennan does not claim that the grievance about the outstationed
firefighters is protected public concern speech. Moreover, given our
holding that Brennan did not present a Petition Clause claim in the
district court, we need not determine whether filing a grievance with the
NJPERC about the outstationed firefighters is a protected activity under
the petition clause. Thus, the unfair labor practice charge is nothing
more than a complaint about the employer-employee relationship. It is
private speech not entitled to First Amendment Protection. United States
v. National Treasury Employees Union, 513 U.S. 454, 466 (1995).
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suit under § 1983. Monell v. New York City Dept. of Social
Services, 436 U.S. 658 (1978). A municipality can be sued
directly under § 1983 if it is alleged to have caused a
constitutional tort through a policy, ordinance, regulation
or officially adopted decision that has been promulgated by
the municipality’s officers. Liability also attaches for a
municipality’s constitutional violations resulting from
governmental custom even though such custom has not
been formally approved via the official decision making
channels. Id. at 690-91. However, Brennan does not
attempt to base the Township’s liability upon a policy or
custom.
It is also true that, under Monell, municipal liability may
still exist where authorized policymakers approve a
subordinate’s decision and the basis for it. See, City of St.
Louis v. Praprotnick, 485 U.S. 112, 117 (1988); see also,
Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d
Cir. 1990). Here, however, Brennan did not establish any
basis for the conclusion that the Mayor or the Town
Council approved of the retaliatory motivation behind
Saage’s actions.
The only other possible source of liability against the
Township under § 1983 is if “an unconstitutional policy
could be inferred from a single decision taken by the
highest officials responsible for setting policy in that area of
the government’s business.” City of St. Louis v. Praprotnik,
485 U.S. at 123; see also Pembaur v. City of Cincinnati, 475
U.S. 469 (1986). In Pembaur, the Court stated:
[I]t is plain that municipal liability may be imposed for
a single decision by municipal policymakers under
appropriate circumstances. No one has ever doubted,
for instance, that a municipality may be liable under
§ 1983 for a single decision by its properly constituted
legislative body — whether or not that body had taken
similar action in the past or intended to do so in the
future — because even a single decision by such a
body unquestionably constitutes an act of official
government policy.
475 U.S. at 123 (citations omitted). Under this theory, the
jury must first determine if an individual public employee
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is a policy-maker. Id. at 123, 126. However, if a municipal
employee’s decision is subject to review, even discretionary
review, it is not final and that employee is therefore not a
policymaker for purposes of imposing municipal liability
under § 1983. Id. at 127-30.
In denying judgment as a matter of law to the Township,
the district court concluded that Saage “occupied a
sufficiently high policy-making role[ ] to create liability on
the Township’s part.” Dist. Ct. Opn. at 19. However, it is
undisputed that Saage’s allegedly retaliatory actions were
subject to review by a number of higher authorities
including the Council, the Mayor, the NJPERC or the
State Department of Personnel. See New Jersey
Charter/Administrative Code, §§ 2.2.3, 2.3.1, 2.3.2, 2.2.7
and 2:11-4 to -6; Civil Service Law, N.J. Stat. Ann.
§§ 11A:2-6, :2 11, :2-14 and :2-16; Employer-Employee
Relations Act, N.J. Stat. Ann. §§ 34:13A-5.2 and :13A-5.4.
Brennan availed himself of this very review process by
appealing Saage’s decisions to the Personnel Department
both times that Saage disciplined him. Accordingly, the
Township cannot be liable under § 1983 as a matter of law,
and the district court therefore erred in denying the
Township’s motion for judgment as a matter of law.
(h). Punitive Damages.
The jury concluded that Saage retaliated against Brennan
for the latter’s exercise of First Amendment rights and
awarded Brennan $150,000 in punitive damages in
addition to compensatory damages. The standard for
awarding punitive damages under § 1983 has been
summarized as follows:
a jury may . . . assess punitive damages . . . under
§ 1983 when the defendant’s conduct is shown to be
motivated by evil motive or intent, or when it involves
reckless or callous indifference to the federally
protected rights of others.
Smith v. Wade, 461 U.S. 30, 56 (1983) (emphasis added). In
Savarese v. Agriss, 883 F.2d 1194 (3d Cir. 1989), we noted
that this standard is disjunctive and not conjunctive. We
explained:
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[F]or a plaintiff in a section 1983 case to qualify for a
punitive award, the defendant’s conduct must be, at a
minimum, reckless or callous. Punitive damages might
also be allowed if the conduct is intentional or
motivated by evil motive, but the defendant’s action
need not necessarily meet this higher standard.
Id. at 1204.
The district court denied Saage judgment as a matter of
law as to liability, but granted him judgment as a matter of
law as to the punitive damages award against him. The
court explained:
To award punitive damages it must be found that a
defendant engaged in malicious conduct or acted in
wanton and willful disregard of another’s rights.
Malicious conduct is intentional wrongdoing in the
sense of an evil-minded act. Saage’s conduct in the
present case cannot be found to have risen to the level
of that wrongdoing.
Dist. Ct. Op. at 19. The court concluded that Saage’s
conduct, viz., advising Norton not to recommend Brennan’s
request for an IOD extension and his handling of the
charges against Brennan, “cannot be found to have risen to
that level of wrongdoing . . . deserving of punitive
damages.” Id.
Brennan argues that the district court’s ruling is
erroneous because evil-minded conduct is not a condition
precedent to recovering punitive damages under § 1983. He
claims the district court therefore subjected him to a higher
burden than required by Supreme Court precedent.
According to Brennan, all that a § 1983 plaintiff need show
to recover punitive damages is that the defendant acted
with a “reckless” or “callous indifference.”
We need not decide this precise issue because Saage’s
conduct does not even satisfy the less demanding standard
Brennan urges upon us.23 Brennan’s theory is that Saage
23. “Whether there is sufficient evidence to support a punitive damages
award is a question of law which we review de novo.” Alexander v. Riga,
208 F.3d 419, 430 (3d Cir. 2000).
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was the omnipresent, driving force behind everything
negative that happened to him after he first expressed
opposition to Saage’s policies or spoke out against those in
power in the Fire Department or their policies. Brennan
argues that “Saage orchestrated a series of unwarranted
disciplinary actions against Brennan, among a variety of
forms of harassment and retaliation, both directly and
through Norton, Bauer, Palazzola and O’Neill. In other
words, [Saage] abused his power and control, directed
others to further that unlawful purpose, and rewarded
them for their participation.” Brennan’s Br. as
Appellee/Cross-Appellant, at 51.
However, the conspiratorial picture Brennan paints is not
consistent with the record. He has produced no evidence
that Saage orchestrated a retaliatory campaign against him.
Nor is there evidence that Norton, Bauer, Palazzola and
O’Neill were Saage’s puppets or that Saage rewarded any of
them for doing his bidding and retaliating against Brennan.
We do agree with Brennan’s claim that this record supports
a finding that Brennan’s protected speech was a motivating
factor in Saage warning Norton against recommending an
extension of Brennan’s IOD leave and subjecting Brennan
to disciplinary charges and subsequent suspensions.
However, the record does not support a finding that Saage
acted out of either recklessness or callousness. Indeed, a
contrary conclusion would mean that any finding of
retaliatory motive would automatically support punitive
damages. Even accepting Brennan’s formulation of the
correct standard for punitive damages, it is clear under the
Court’s holding in Smith v. Wade that punitive damages
require more than the retaliatory motive itself. Although we
do not condone Saage’s conduct, we cannot conclude that
it rises to the level required for punitive damages.
Therefore, we hold that the district court properly granted
judgment as a matter of law to Saage on the punitive
damage award.24
24. We note that the district court indicated that it would adjust the
award of punitive damages if we were to reverse it. The court opined
that, in that event, it
would reduce the amount of the punitive damages award as grossly
excessive. Among the factors that a jury must consider in making a
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(i). Motion for New Trial, or, in the alternative, for
Remittitur.
The Township and Saage argue that the district court
erred by denying their motion for a new trial based on their
claim that the jury’s verdict was against the weight of the
evidence. A new trial may be granted even when judgment
n.o.v. is inappropriate. Roebuck v. Drexel University, 852
F.2d 715, 735 (3d Cir. 1988). However, a new trial should
be granted only when the verdict is contrary to the weight
of the evidence or when a miscarriage of justice would
result if the verdict were to stand. Williamson v.
Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir.
1991). We review the district court’s ruling on a motion for
a new trial for abuse of discretion. Roebuck v. Drexel
University, 852 F.2d at 735 (“The authority to grant a new
trial . . . is confided almost exclusively to the exercise of
discretion on the part of the trial court, and will be
disturbed if the district court abused that discretion.”)
punitive damages award are the offensiveness of the conduct and
the amount needed, considering defendant’s financial condition, to
prevent future repetition. In the present case, there was no evidence
of Saage’s financial condition. He has been a municipal employee for
most of his professional career, not earning a munificent salary.
There is no indication whether he has acquired a large amount of
assets or whether he owes money. Thus, there is no basis for an
award of $150,000 against him. Were punitive damages to be
awarded I would reduce the amount to $10,000 which would not be
unduly harsh for a person living on the salary of a municipal
employee and which would have a deterrent effect on one in such
circumstances.
Dist. Ct. Op. at 19 (emphasis added). Brennan argues that the italicized
portion of the district court’s statement improperly placed the burden on
him to show Saage’s ability to pay in order for him to recover punitive
damages. Consequently, the district court committed error. However,
Brennan reads far too much into this statement. The district court
vacated the award of punitive damages against Saage, and we agree that
it is not supported by the evidence. Moreover, the statement is merely an
indication of how the court would rule if we were to reverse the district
court’s order vacating the punitive damages award. Accordingly, we will
not address Brennan’s argument that the district court improperly
placed the burden of showing Saage’s ability to pay punitive damages on
him. We do not believe the district court did that.
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(citation and internal quotations omitted). In light of our
finding that the district court erred by not granting the
Township’s motion for judgment as a matter of law, the
Township’s argument that the district court erred by not
granting a new trial is moot.
Although we agree with the district court’s assessment
that Brennan’s evidence against Saage was “meager,” Dist.
Ct. Op. at 18, we nonetheless agree that there was
sufficient evidence to enable the jury to conclude that
Brennan’s protected expression was a substantial or
motivating factor in Saage’s warning Norton not to
recommend extending Brennan’s IOD leave and in Saage’s
bringing disciplinary charges against Brennan. Accordingly,
the jury’s verdict against Saage does not constitute any
miscarriage of justice.
We do, however, believe that the district court abused its
discretion in denying the requested remittitur.25 The jury
returned a verdict of $382,500 in compensatory damages
against all of the defendants, but the district court granted
judgment as a matter of law to Norton, Bauer, Palazzola
and O’Neill. Therefore, it is impossible to determine whether
the $382,500 includes damages that the jury attributed to
some or all of the defendants the district court later found
caused Brennan no harm.
B. Brennan’s Conscientious Employee Protection Act
Claim.
Brennan’s complaint included a state law claim under
New Jersey’s Conscientious Employee Protection Act, N.J.
Stat. Ann. 34:19-1 to 19-9 (“CEPA”). CEPA provides, in
relevant part:
An employer shall not take any retaliatory action
against an employee because the employee does any of
the following: a. Discloses, or threatens to disclose to a
supervisor or to a public body an activity, policy or
practice of the employer . . . that the employee
25. We review the district court’s denial of a remittitur for abuse of
discretion. Dunn v. HOVIC, 1 F.3d 1362, 1364 (3d Cir. 1993), modified
on other grounds, 13 F.3d 58 (3d Cir. 1998).
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reasonably believes is in violation of a law, or a rule or
regulation promulgated pursuant to law . . . ;
* * *
c. Objects to, or refuses to participate in any
activity, policy or practice which the employee
reasonably believes:
(1) is in violation of a law, or a rule or regulation
promulgated pursuant to law . . . ;
(2) is fraudulent or criminal; or
(3) is incompatible with a clear mandate of public
policy concerning the public health, safety or welfare or
protection of the environment.
N.J. Stat. Ann. § 34:19-3. “Retaliatory action” includes
discharge, suspension, demotion, or other adverse action
involving an employee’s terms and conditions of
employment. N.J. Stat. Ann. § 34:19-2(e). CEPA also
provides that “[u]pon a violation of any of the provisions of
this act, an aggrieved employee or former employee may,
within one year, institute a civil action in a court of
competent jurisdiction.” N.J. Stat. Ann. § 34:19-5.
Tort actions brought under New Jersey law are governed
by New Jersey’s Tort Claims Act (“TCA”) which applies to
tort actions against public entities or their employees. The
TCA has a 90-day notice requirement. N.J. Stat. Ann.
§ 59:8-3. Failure to satisfy the notice requirement of the
TCA is an absolute bar to recovery against a public entity
or its employees. Id. The district court dismissed Brennan’s
CEPA retaliation claim because he failed to comply with the
notice requirements of the TCA. Not unexpectedly, Brennan
claims that was error. We agree.
Although the New Jersey Supreme Court has yet to
decide whether the notice of claim requirement of the TCA
applies to claims under the CEPA, our examination of
relevant precedent convinces us that the TCA’s notice of
claim requirement does not apply to actions brought under
the CEPA.26, 27 Even though the CEPA has it origins in, and
26. Because the New Jersey Supreme Court has not yet decided whether
the TCA’s notice requirement applies to CEPA claims, it was the duty of
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is apparently a codification of, “the preexisting common-law
tort cause of action for . . . retaliatory discharge,” the New
Jersey Supreme Court has expressly found that the CEPA
is a “civil rights statute.” Abbamont v. Piscataway Township
Board of Education, 650 A.2d 958, 971 (N.J. 1994). CEPA
is a “whistleblower statute,” and “[i]ts purpose is to protect
and encourage employees to report illegal or unethical
workplace activities and to discourage public and private
sector employers from engaging in such conduct.” Id. CEPA
“is important to all New Jersey workers who are concerned
about working in a safe environment with honest
employers.” Id. at 964.
In Abbamont, the New Jersey Supreme Court held that
the punitive damages prohibition contained in the TCA does
not apply to CEPA claims brought against public entities
because the TCA and the CEPA “involve different subject
matter.” Id. at 970. As recited above, the New Jersey
Supreme Court noted that CEPA is a civil rights statute
designed to protect workers from unlawful intentional
conduct, while the TCA is a statute designed to compensate
tort victims from negligently inflicted injuries without
imposing excessive financial burdens on the taxpaying
public. Id. In addition, in Abbamont, the New Jersey
Supreme Court noted that the CEPA and New Jersey’s Law
Against Discrimination (“LAD”) were closely aligned in that
both served broad societal goals. Id. at 970-71.
Significantly, the New Jersey Supreme Court had already
the district court to predict how the New Jersey Supreme Court would
rule if faced with the issue. See Nationwide Mutual Ins. Co. v. Buffetta,
230 F.3d 634, 637 (3d Cir. 2000). Our review of the district court’s
prediction is plenary. Id.
27. On June 13, 2002, we entered an Petition Certifying a Question of
Law to the New Jersey Supreme Court pursuant to Rule 2:12A of the
Rules Governing Appellate Practice in the New Jersey Supreme Court
and the Appellate Division of the Superior Court. The question certified
was: “Whether the Tort Claims Act’s 90-day notice of claim requirement,
N.J. Stat. Ann. § 59:8-8, applies to a public employee’s retaliation claim
under the Conscientious Employee Protection Act, N.J. Stat. Ann.
§ 34:19-3, against a municipality and its supervisory personnel.”
However, by Order dated July 5, 2002, the New Jersey Supreme Court
denied our Petition for Certification.
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held in Fuchilla v. Layman, 537 A.2d 652 (N.J. 1988), that
the TCA’s notice provisions do not apply to the LAD.
Finally, the New Jersey Supreme Court held in Cavuoti v.
New Jersey Transit Corp., 725 A.2d 548 (N.J. 1999), that
the TCA’s bar against punitive damages does not apply to
LAD claims against public entities.
Given the decisions in Fuchilla, Abbamont and Cavuoti
that the TCA’s punitive damage prohibitions do not apply to
either LAD or CEPA claims against public entities, and that
the TCA’s notice provisions do not apply to LAD claims
against public entities, we believe that the New Jersey
Supreme Court would hold that the TCA’s notice provisions
do not apply to CEPA claims against public entities or their
employees, and we so hold.28 Accordingly, we conclude that
the district court’s dismissal of Brennan’s CEPA claim for
failure to comply with the TCA’s notice requirement was
error.
IV. CONCLUSION
For all of the above reasons, we will affirm the district
court’s grant of judgment as a matter of law to all of the
individual defendants, except the Township Manager. As to
the Township Manager, will affirm the denial of judgment
as a matter of law as to liability and will affirm judgment as
a matter of law in his favor as to the punitive damages
award. We will reverse the denial of the Township’s motion
for judgment as a matter of law, and we will reverse the
district court’s dismissal of Brennan’s state law claim
under the Conscientious Employee Protection Act. Finally,
we will affirm the district court’s denial of the Township’s
and its Manager’s motions for a new trial, but will reverse
the denial of remittitur.
28. “In predicting how the highest court of the state would resolve the
issue, we must consider relevant state precedents, analogous decisions,
considered dicta, scholarly works, and any other reliable data tending
convincingly to show how the highest court in the state would decide the
issue at hand.” Nationwide Mutual Ins. Co. v. Buffetta, 230 F.3d 634,
637 (3d Cir. 2000) (citation and internal quotations omitted).
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A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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