NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-3836
_____________
CHRISTINE PERNA,
Appellant
v.
TOWNSHIP OF MONTCLAIR; TOWNSHIP OF MONTCLAIR COUNCIL;
ED REMSEN, Individually and under color of State law as Mayor for the
Township of M ontclair; TED M ATTOX, Individually and under color
of State law as a member of the council for the Township of Montclair;
JOYCE R. MICHAELSON, Individually and under color of State law as a
member of the council for the Township of Montclair; GERALD C.
TOBIN, Individually and under color of State law as a member of the council
for the Township of Montclair; ROBIN SCHLAGER, Individually and under
color of State law as a member of the council for the Township of Montclair;
JEROLD FREIER, Individually and under color of State law as a member
of the council for the Township of Montclair; SANDRA LANG, Individually
and under color of State law as a member of the council for the Township
of Montclair; JOSEPH M. HARNETT, Individually and under color of State
law as Tow nship M anager for the Tow nship of M ontclair;
XYZ CORP/ENTITIES (1-10);
JOHN AND JANE DOES (1-100)
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-05-cv-04464
District Judge: The Honorable Jose L. Linares
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 27, 2011
Before: McKEE, Chief Judge, and SMITH, Circuit Judges,
and STEARNS, District Judge *
(Filed: February 2, 2011)
OPINION
STEARNS, District Judge.
Christine Perna brought claims of First Amendment retaliation and municipal liability
under the Federal Civil Rights Act, 42 U.S.C. §1983, against the Township of Montclair, the
members of the Township Council, and Joseph M. Harnett, the Township Manager, based
on their decision to terminate her twenty-one years of employment with the Township.1 On
August 26, 2009, the District Court granted defendants’ motion for summary judgment and
dismissed Perna’s remaining claims against Harnett and the Township.2 On September 25,
2009, Perna filed a timely notice of appeal. We have jurisdiction over her appeal pursuant
to 28 U.S.C. § 1291. We review de novo the allowance of a motion for summary judgment.
Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597, 603 (3d Cir.
2009), citing Pichler v. UNITE, 542 F.3d 380, 385 (3d Cir. 2008). For essentially the reasons
stated in the District Court’s careful and comprehensive opinion, we will affirm the grant of
*
The Honorable Richard G. Stearns, United States District Judge for the United
States District Court of Massachusetts, sitting by designation.
1
Perna was hired by the Township as a clerk in 1984. At the time of her
termination, she was working in the Township’s Law Department as a legal secretary.
2
On September 27, 2006, Judge Linares granted a motion to dismiss Perna’s
claims for failure to train and for violations of the New Jersey Law Against
Discrimination. Perna does not appeal this earlier dismissal.
2
summary judgment.
Perna alleges that her employment in the Township’s Law Department was terminated
because of her union-related activities. In 2003, after the Township decided against giving
annual salary increases to nonunion Township employees earning in excess of $60,000 per
year, Perna and other affected employees sought to join Local 1040 of the Communications
Workers of America (Union). Perna states that she was indirectly encouraged by Harnett,
who had been recently hired as the Township Manager, to forgo Union membership in order
to be eligible for a promotion or other elevation of job status. Perna claims that when she
complied, she was terminated. (The “encouragement” is alleged to have been conveyed
through a Union representative who was negotiating the job classifications that would be
covered by any bargaining agreement with the Township). The Township, for its part,
maintains that Perna’s position was eliminated as part of a cost-saving plan implemented by
Harnett in 2004 that led to a net reduction of eight Township employee positions. Among
the jobs eliminated was Perna’s position in the Law Department.3
The decision to abolish Perna’s position had its origins in a proposed restructuring of
the Law Department crafted by Alan Trembulak, the eventually successful candidate for the
position of (part-time) Township Attorney. Trembulak recommended reorganizing the Law
Department by adding a part-time Assistant Township Attorney. Perna’s $64,995 salary was
to be apportioned between the new Assistant Attorney and a part-time, lower-paid secretary.
3
The Township also argues that Perna’s “confidential” position as a legal
secretary made her ineligible for Union membership in any event.
3
Trembulak, when he made the proposal, did not know that Perna had been an active
supporter of the Union.
Under Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 493 (3rd Cir. 2002), we apply
a three-part test to analyze whether a public employee who alleges retaliation for her exercise
of First Amendment rights has set out a prima facie case. A plaintiff must show that she
engaged in a protected activity, and that the activity was a substantial or motivating cause of
her termination. The burden then shifts to the employer to demonstrate that the adverse
employment action would have taken place despite the protected conduct. Id. While awards
of summary judgment are as rare as hen’s teeth in First Amendment retaliation cases, we will
affirm such an award where a plaintiff does not produce sufficient evidence to shift the
burden of persuasion to defendants.
That an employee’s right to pursue affiliation with a Union is protected by the First
Amendment is beyond cavil. See Pickering v. Bd. of Educ., 391 U.S. 563, 574-575 (1968);
Shelton v. Tucker, 364 U.S. 479, 485-486 (1960). Although the Township disagrees, the
District Court found sufficient evidence creating a material dispute of fact as to Harnett’s
knowledge of Perna’s Union activity (imputable to the Township), a determination with
which we have no reason to quarrel.
Perna’s evidence that her termination came in retaliation for her Union activities
consists principally of the testimony of Ted Mattox, a Township Council member. Mattox
stated in his deposition that he did not see any financial benefit in the elimination of Perna’s
position, and that the Council had discussed the fact that “it would be easy to get rid of Perna
4
because she wasn’t in the Union.” Appellant Br. at 4. Perna contends that this statement
“clearly shows that defendants were motivated by [her] Union involvement when they made
the decision to eliminate her position.” Id. at 5. She also claims that Harnett endorsed the
view that “when someone is a member of the Union and you want to terminate that position,
there may be bumping and seniority procedures.” Id. at 23.
The District Court, however, determined that Harnett’s alleged knowledge of Perna’s
Union involvement, even when coupled with Mattox’s testimony, did not bridge the
causation prong of the Ambrose test. Almost two years separated the last of Perna’s Union
activities from her termination, acutely undermining her argument of a causal link between
the two. “[A]lthough ‘mere passage of time is not legally conclusive proof against
retaliation,’ we have indicated that the passage of an extended period of time between
protected activity and an alleged retaliatory action weighs against a finding of a causal link
where there is no evidence of retaliatory animus during the intervening period.” Shaner v.
Synthes, 204 F.3d 494, 505 (3d Cir. 2000), (quoting Krouse v. Am. Sterilizer Co., 126 F.3d
494, 503-504 (3d Cir. 1997)). Here, the two-year hiatus, combined with the fact that the
proposal to eliminate Perna’s position originated with Trembulak, who was unaware of
Perna’s Union activities, leads us to conclude that the District Court’s finding on the
causation prong of Ambrose was correct.4
4
We need not address defendants’ alternative argument that they have satisfied
their burden under Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977), in showing that “the same adverse action would have taken place in the
absence of the protected conduct.” Hill v. City of Scranton, 411 F.3d 118, 125 (3d
Cir. 2005).
5
For this reason, the District Court’s decision to award summary judgment will be
affirmed.
6