Persico v. City of Jersey

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit

4-29-2003

Persico v. Jersey City
Precedential or Non-Precedential: Non-Precedential

Docket 02-3061

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 02-3061
___________

DENNIS PERSICO,

Appellant

v.

CITY OF JERSEY CITY, JERSEY CITY POLICE DEPARTMENT,
WILLIAM THYNE, CHIEF, MICHAEL MORIARTY, POLICE DIRECTOR,
EDGAR M ARTINEZ, SERGEANT, KENNETH FRENCH, CAPTAIN,
THOMAS KANE, DEPUTY CHIEF, MICHAEL WHALEN, LIEUTENANT,
PETER NALBACH, CAPTAIN, PAUL WOLLEON, CAPTAIN, EDW IN REIMON,
JAMES LAUBER, CHERYL ALLEN-MUNLEY, individually and in their official
capacities, CONCRETE CONCEPTS, INC., JOHN DOES 1-5

___________

On Appeal from the United States District Court
for the District of New Jersey
District Court Judge: The Honorable Dennis M. Cavanaugh
(D.C. Civil No. 98-cv-05229)
___________

Submitted Under Third Circuit L.A.R. 34.1(a)
April 7, 2003

Before: ALITO, FUENTES, Circuit Judges, and GREENBERG, Senior Circuit Judge.

(Opinion Filed: April 29, 2003)
________________________

OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:

This case involves an appeal by Dennis Persico, a retired Jersey City, New Jersey

Police Sergeant, who claims that the defendants violated his First Amendment and Due

Process rights, and that he was constructively discharged as a result of retaliatory conduct.

The District Court granted judgment to the defendants on each of Persico’s claims. On

appeal, Persico argues that the District Court misapplied the Pickering balancing test to his

First Amendment claim; erroneously dismissed his Due Process claim; erroneously found

that the individual defendants were shielded by qualified immunity; and failed to submit the

claims of constructive discharge and the claims against the municipality of Jersey City to the

jury. Persico’s arguments are not persuasive. Because we agree with the District Court’s

decision, we will affirm.

I. Factual Background1

Persico served as a police officer with the Jersey City Police Department from 1968

until he retired in 1999. In 1997, he was assigned as a sergeant to the South District.

Persico’s immediate supervisor was Lieutenant Michael Whalen, who in turn was supervised

by Captain Kenneth French. The Chief of Police at that time was William Thynne.

This lawsuit arose from incidents which occurred between May and November of

1
Because we are reviewing a grant of summary judgment, we review the facts in
the light most favorable to the nonmoving party. See Baldassare v. New Jersey, 250 F.3d
188, 191 n. 1, 3 (3d Cir. 2001). For this reason, our factual summary presents Persico’s
version of the events at issue.

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1997. Jersey City had hired Concrete Concepts to pave Ocean Avenue, which ran through

the South District. Beginning in May, Persico investigated the Ocean Avenue paving project.

He found that the project contractor often created dangerous conditions, and suspected that

it was involved in illegal activities, violations of a contract, misuse of public funds,

malfeasance, and other wrongdoing. Specifically, Persico learned that the contract between

Jersey City and Concrete Concepts required the contractor to hire uniformed police officers

to control traffic at a rate of $33.50 per hour, but that the contractor was only paying the off-

duty officers $25.00 per hour. Persico found that the contractor often created dangerous

conditions by hiring an insufficient number of off-duty officers to control traffic when streets

were closed and using overweight trucks to deliver asphalt.

Persico took several actions with respect to the Ocean Avenue paving project. On a

few occasions, he stopped work due to unsafe conditions. He arrested one of the contractors

on October 21, 1997. And on numerous occasions, Persico reported his findings and

suspicions to his superiors. As a result, rumors circulated in the Police Department that

Persico was interfering with the Ocean Avenue paving project in an effort to “shake down”

or extort money from the contractor. In response to that allegation, the Internal Affairs Unit

launched an investigation into Persico’s actions. The allegation was also referred to the

Hudson County prosecutor’s office. No disciplinary or criminal charges were ever asserted

as a result of this allegation. But, upon Chief Thynne’s instruction, Lieutenant Whalen

ordered Persico to take no further action with respect to the Ocean Avenue paving project,

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but to document his allegations and send them through the chain of command.

On November 21, 1997, however, Persico was summoned to Ocean Avenue by Police

Officer Jensen, who reported dangerously overweight asphalt delivery trucks at the site.

Persico then called another unit to the site to investigate the delivery trucks. Lieutenant

Whalen ordered Persico to report back to the South District. When Persico arrived,

Lieutenant Whalen informed him that Sergeant Martinez had called from Chief Thynne’s

office to report that complaints had been received about Persico’s actions that day. Persico

called Sergeant Martinez to get more information about the source and nature of the

complaints. Sergeant Martinez was out of the office when Persico called. Several hours

later, Sergeant Martinez returned Persico’s call and answered his questions about the

complaints. Persico complained to Sergeant Martinez that the contractor was being permitted

to act with impunity and seemed to have a “direct line to the chief’s office.” This

conversation occurred on a recorded line.

Persico maintains that after talking to Sergeant Martinez, he asked Lieutenant Whalen

if he could call Chief Thynne directly, his request was denied, and he never called the Chief.

The defendants contend, however, that Persico called the Chief’s office after receiving an

order from Lieutenant Whalen not to make such a call. Under the chain of command rules,

Persico was required to get permission from a superior officer in order to call the Chief’s

office.

Following Persico’s call to the Chief’s office, a disciplinary charge was brought

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against him. The charge was violating a direct order not to call the chief of police and

breaking the chain of command. Persico requested a formal hearing on this charge, and his

request was granted. The hearing was later converted into an informal hearing. Captain

French was the hearing officer. Captain French found Persico guilty and imposed a

punishment of the loss of two days compensation time, which amounted to $650.04. This

finding was affirmed by Director Moriarity. Persico did not file any appeals, but chose

instead to file this federal civil rights action.

II. Procedural Background

Persico filed the Complaint in this case on November 18, 1998, and then an Amended

Complaint on June 22, 1999. He brought the action pursuant to 42 U.S.C. § 1983, alleging

First Amendment and procedural Due Process violations, and pursuant to state law, alleging

constructive discharge. On June 27, 2002, the District Court heard oral arguments on the

parties’ cross motions for summary judgment and the defendants’ motion to dismiss. At the

conclusion of oral argument, the District Court denied Persico’s motion for partial summary

judgment, granted the motion by the individual police defendants and defendant Moriarty to

dismiss, and granted the motion by defendant Munley and Jersey City for summary judgment.

On June 28, 2002, the District Court entered a judgment closing the case.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction over the federal claims under 28 U.S.C. § 1331 and

42 U.S.C. § 1983, and supplemental jurisdiction over the state law claims under 28 U.S.C.

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§ 1367. We have jurisdiction under 28 U.S.C. § 1291 because the District Court’s final order

disposed of all of Persico’s claims.

We exercise plenary review over the District Court’s grant of summary judgment. 2

Latessa v. N.J. Racing Comm’n, 113 F.3d 1313, 1317 (3d Cir. 1997). “In conducting our

review, we view the record in the light more favorable to the party opposing the motion and

draw all reasonable inferences in his favor.” Baldassare v. New Jersey, 250 F.3d 188, 191

n. 1 (3d Cir. 2001) (citing Fogarty v. Boles, 121 F.3d 886, 887 (3d Cir. 1997); Azzaro v.

County of Allegheny, 110 F.3d 968, 970 (3d Cir. 1997) (en banc)). In addition, we must

make an “‘independent constitutional judgment on the facts of the case’” as to whether the

speech involved is constitutionally protected. Connick v. Myers, 461 U.S. 138, 150 n. 10

(1983) (quoting Jacobellis v. Ohio, 378 U.S. 184, 190 (1964)); see also Watters v. City of

Philadelphia, 55 F.3d 886, 891 (3d Cir. 1995).

IV. Analysis

Persico alleges that he was subjected to discipline in retaliation for his efforts to report

what he believed to be illegal activity with respect to the Ocean Avenue paving project. He

2
In its June 28, 2002 order, the District Court granted Jersey City’s motion for
summary judgment and the individual police officers’ motion to dismiss. Because the
District Court addressed these motions simultaneously and clearly considered evidence
outside the pleadings, we will assume that it treated both as motions for summary
judgment. See Federal Rule of Civil Procedure 12(b) (“If, on a motion asserting the
defense numbered (6) to dismiss for failure of the pleading to state a claim upon which
relief can be granted, matters outside the pleading are presented to and not excluded by
the court, the motion shall be treated as one for summary judgment and disposed of as
provided in Rule 56 . . .”).

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claims that the discipline chilled the exercise of his First Amendment rights and penalized

him for having exercised those rights. He claims that he was denied due process of the law

during the disciplinary proceedings because the authorities denied his discovery requests and

prejudged his case. Persico asserts that as a result of the false rumors that harmed his

reputation and working environment, he was forced into retirement. He maintains that the

actions taken against him were undertaken by the named defendant city employees as part

of a plan to retaliate against him for speaking out, to discourage him from further exercise

of his free speech rights, and to deprive him of his job without due process of law.

The District Court granted judgment to the defendants on each of Persico’s claims.

The District Court found no Due Process violation because Persico “was afforded [an

explanation of the charges and the evidence against him] and did have an opportunity to

respond as well as proper procedures for appellate review thereafter.” (A9, lines 12-17)

Moreover, the District Court found that Persico’s allegation of bias on the part of the

decision-maker did not give rise to a due process cause of action because “he had ample

opportunity after the adverse evaluation to remedy the situation, but chose not to . . .” (A10,

lines 6-7) The District Court found Persico’s First Amendment claim to be somewhat

unclear, but nonetheless ruled that there were no facts to support Persico’s First Amendment

claim. (A11, lines 6-8) Similarly, the District Court found no evidentiary support for

Persico’s constructive discharge and municipality liability claims. (A11, lines 15-24; A12,

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lines 8-14)3 Persico takes issue with the District Court’s conclusions with respect to each of

his claims, and we will address each in turn.

A. First Amendment Claim

“A public employee has a constitutional right to speak on matters of public concern

without fear of retaliation.” Baldassare, 250 F.3d at 194; see also Rankin v. McPherson, 483

U.S. 378, 383-84 (1987). The Supreme Court established a framework for addressing such

cases in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), instructing courts to

strike a balance between the interests of the public employee, as a citizen, in commenting

upon matters of public concern, and the interest of the state, as an employer, in promoting

the efficiency of the public services it performs through its employees. See also Mt. Healthy

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Baldassare, 250 F.3d at 194-95.

The District Court noted in its oral ruling that Persico had not clearly articulated his

First Amendment claim. On appeal, Persico asserts that the District Court erred “by narrowly

construing the . . . claim to the request to call the chief to see who was complaining about

Persico and by concluding that the substance of the call was not relevant.” (Opening Brief,

p. 28) Persico asserts that his claim is that his efforts to speak out about illegal activity with

the Ocean Avenue paving project were thwarted in violation of the First Amendment.

3
The District Court also stated that although he did not have to reach the individual
defendants’ claims of qualified immunity, he would have granted judgment to the
defendants on that basis if he had not already decided to grant judgment on other grounds.
Because we affirm the District Court’s decision on those other grounds, we will not
discuss the issue of qualified immunity.

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 Assuming that Persico’s claim, broadly construed, involves speech about a matter of

public concern, the fact remains that the Police Department’s substantial interest in

maintaining its rules and regulations outweighs Persico’s interest in the speech. The Police

Department actions classified by Persico as “retaliatory” include the Internal Affairs Unit

investigations, the referral of this matter to the prosecutor’s office, the order to stop

investigating, and the disciplinary hearing. These are all actions aimed at maintaining order

and discipline within the Police Department. See Kelley v. Johnson, 425 U.S. 238, 246

(1976) (recognizing the need to accord police departments wide latitude in decisions that

impact “discipline, esprit de corps, and uniformity”); Oladeinde v. City of Birmingham, 230

F.3d 1275, 1293 (11th Cir. 2000) (citing the “heightened need for order, loyalty, morale, and

harmony, which affords a police department more latitude in responding to the speech of its

officers than other government employers”); Moore v. Wynnewood, 57 F.3d 924, 934 (10th

Cir. 1995) (finding “heightened interest” in maintaining discipline and harmony in context

of law enforcement).

The actions taken by the Police Department were aimed only at controlling Persico’s

activities within the Police Department. This factor, too, weighs in favor of the Police

Department’s interest. See O’Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998)

(“[B]ecause of the special degree of trust and discipline required in a police force there may

be a stronger governmental interest in regulating the speech of police officers than in

regulating the speech of other governmental employees.”); Campbell v. Towse, 99 F.3d 820,

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829-30 (7 th Cir. 1996) (“It surely cannot be doubted that individuals who work in the highest

echelons of the command of a police department must be assured of the loyalty of their

immediate subordinates, as these subordinates are entrusted with carrying out their orders .

. .”), cert. denied, 520 U.S. 1120 (1997).

In any event, we fail to understand how Persico’s speech was curtailed as a result of

any action taken by the Police Department. Persico began reporting his suspicions about

illegality in the Ocean Avenue paving project in May of 1997. Even after being ordered to

stop investigating this matter, Persico filed numerous reports and discussed the matter with

several superior officers. Even after Persico became aware of the Internal Affairs and

criminal investigations into his actions with respect to the paving project, he continued to

investigate and report on this matter. The record reveals that up until the date of the

disciplinary hearing, Persico was continuing to investigate and report his suspicions up the

chain of command. The record is silent as to whether his efforts continued during the period

of time after the disciplinary hearing and before the filing of this lawsuit. Therefore, it

cannot be said that the Police Department’s actions in any way curtailed Persico’s speech.

Because the Police Department’s interest in restraining Persico’s investigation

outweighed Persico’s interest in speaking out about his suspicions, and because Persico’s

speech does not appear to have been much limited, we agree with the District Court’s

conclusion that there is no merit to Persico’s First Amendment claim.

B. Procedural Due Process Claim

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 “In order to state a claim for failure to provide due process, a plaintiff must have taken

advantage of the processes that are available to him or her, unless those processes are

unavailable or patently inadequate.” Alvin v. Suzuki, 227 F.3d 107, 117 (3d Cir. 2000). “If

there is a process on the books that appears to provide due process, the plaintiff cannot skip

that process and use the federal courts as a means to get back what he wants.” Id.; see also

McDaniels v. Flick, 59 F.3d 446, 460 (3d Cir. 1995), cert. denied, 516 U.S. 1146 (1996).

This is true even when the plaintiff contends that one part of the process afforded him was

biased, so long as there were avenues of review available to him. See Alvin, 227 F.3d at 119

(“[A]n allegation that initial stages of a process had been biased does not mean that the later

processes will be biased as well.”); McDaniels, 59 F.3d at 460 (“Thus, a discharged

employee cannot claim in federal court that he has been denied due process because his

pretermination hearing was held by a biased individual where he has not taken advantage of

his right to a post-deprivation hearing before an impartial tribunal that can rectify any

possible wrong committed by the initial decisionmaker.”)

Persico was brought up on minor disciplinary charges. Pursuant to New Jersey’s civil

service code, minor discipline subjects a public employee to a punishment of five-days

suspension or less and can be resolved by an informal hearing before the employee’s direct

supervisor. Persico was given notice of and an opportunity to be heard at an informal hearing

before Captain French. Following the hearing, Persico was found guilty of having violated

a direct order and breaking the chain of command and was punished by the loss of two days

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compensation time.

Persico alleges in this lawsuit that his discovery requests were denied prior to the

hearing and that Captain French prejudged his case due to a personal bias. Persico had at

least five possible avenues of appeal from Captain French’s decision in which he could have

raised these same arguments. He could have appealed through the union to the union

leadership, to the division commander, to the Police Director, or to a Public Employee

Relations Commission arbitrator. See N.J.S.A. § 11A:2-16; A540 (Collective Bargaining

Agreement). All else failing, or if he believed those appellate procedures to have been

biased, he could have taken an appeal to the New Jersey Superior Court, where he would

have been afforded a de novo trial. See Romanowski v. Brick Tp., 185 N.J. Super. 197, 204,

447 A.2d 1352, 1356 (Law Div. 1982), aff’d, 192 N.J. Super. 79, 469 A.2d 85 (App. Div.

1983). The District Court correctly found that Persico “had a right to a post-deprivation

hearing and he chose not to avail himself of it.” 4 (A10, lines16-17) Persico cannot claim a

Due Process violation in federal court when he did not use all the processes afforded him by

the State.

C. Constructive Discharge Claim

4
The District Court noted that the defendants had argued that Persico was not
entitled to due process with regard to minor discipline. The District Court assumed
without deciding that Persico was entitled to due process, but found that Persico had not
availed himself of the processes available. We, too, will assume without deciding that the
Due Process Clause applied to this minor disciplinary proceeding for the purpose of
reviewing the District Court decision.

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 In order to state a claim a wrongful termination claim based on constructive discharge

under New Jersey law, a plaintiff must show that the discriminatory conduct complained of

would have the foreseeable result that working conditions would be so unpleasant or difficult

that a reasonable person in the employee’s shoes would resign. Goss v. Exxon Office

Systems, 747 F.2d 885, 887-88 (3d Cir. 1984). Here, Persico argues that he was

constructively discharged in retaliation for speaking out about the alleged illegality with the

Ocean Avenue paving project. Specifically, he argues that the working conditions he was

forced to endure leading up to and following the disciplinary hearing were so intolerable that

a reasonable person in his shoes would have resigned.

The District Court determined, however, that Persico had voluntarily resigned from

the Jersey City Police Department after thirty years of service. The District Court found that

there was no evidence tending to show that Persico’s retirement was anything but voluntary.

The District Court also determined that the disciplinary hearing was aimed at punishing

Persico’s conduct, rather than restraining his freedom of speech or making working

conditions intolerable for him. We agree that Persico did not present sufficient evidence to

rebut the presumption that his resignation with full benefits after thirty year of service was

voluntary.

D. M unicipal Liability Claim

A municipality cannot be held liable under a theory of respondeat superior under 42

U.S.C. § 1983 unless the constitutional injuries alleged were caused by a municipal policy

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or custom. See Monell v. Dep’t of Soc. Serv. of New York, 436 U.S. 659, 694 (1978).

Persico claims on appeal that his constitutional injuries were caused by the highest ranking

and policy making officials in the Police Department. Because we affirm the District Court’s

grant of judgment to the defendants with respect to Persico’s First Amendment and Due

Process claims, Persico has not successfully alleged a constitutional injury. Proof of a

constitutional injury is a threshold requirement for a Monell claim. Persico’s Monell claim

has no merit for the additional reason that he submitted no evidence other than his own

assertions of a municipal policy or custom to discriminate or intimidate him into retirement.

The plaintiff’s assertions alone are insufficient evidence to withstand a motion for summary

judgment.

V. Conclusion

The District Court properly granted judgment to the defendants on each of Persico’s

claims. We will, therefore, affirm.

TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.

/s/ Julio M. Fuentes
Circuit Judge

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