                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2004

Muti v. Schmidt
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1206




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"Muti v. Schmidt" (2004). 2004 Decisions. Paper 30.
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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 03-1206
                                   ___________

                                RICHARD S. MUTI,

                                          Appellant

                                         v.

                    WILLIAM H. SCHMIDT, Individually and in
                    his Official Capacity as BERGEN COUNTY
               PROSECUTOR; COUNTY OF BERGEN; WILLIAM P.
                     SCHUBER, Individually and in his Official
                Capacity as BERGEN COUNTY EXECUTIVE; JOHN
                    AND JANE DOES 1-10, Individually and in
                               their Official Capacities


                   On Appeal from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 01-cv-03865)
                   District Judge: The Honorable W illiam H. Walls

                                   ___________

                           ARGUED DECEMBER 14, 2004

            Before: NYGAARD, ROSENN, and BECKER, Circuit Judges.

                             (Filed December 29, 2004)

Richard S. Muti (Argued)
66 Church Street
Ramsey, NJ 07446

      Pro Se Appellant
Michael S. Stein, Esq. (Argued)
Pashman Stein
21 Main Street
Court Plaza South
Hackensack, NJ 07601-7054

       Counsel for Appellees
                                      ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       Richard Muti appeals from a final order of the District Court dismissing his

complaint for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291

and will affirm.

                                             I.

       On July 10, 1995, Acting Bergen County Prosecutor Charles Buckley hired Muti

as an Assistant Prosecutor with the Bergen County Prosecutor’s Office (“BCPO”).

William Schmidt became Prosecutor on March 10, 1997. At some point in June of that

year, Schmidt promoted Muti to be one of three Deputy First Assistant Prosecutors.

Despite this promotion, the two men apparently had a strained relationship, due at least in

part to a series of disagreements concerning Schmidt’s management of the BCPO.

Nonetheless, in his capacity as Deputy First Assistant, Muti: served as Chief Financial

Officer of the BCPO; had responsibility over preparation and management of the BCPO’s

budget; had authority over the disbursement of federal forfeiture funds; made regular

                                             2
staffing level recommendations to Schmidt; provided Schmidt with legal opinions and

memoranda regarding personnel decisions; and acted as the BCPO chief negotiator for

leases and the renewal of police union contracts.

       In August 2000, Schmidt proposed that the county use bonds and federal forfeiture

funds to purchase a new BCPO building. In response to Schmidt’s proposal, on August

14, 2000, Muti sent a letter on BCPO letterhead to the Bergen County Executive, the

Board of Chosen Freeholders, the County Administrator, County Counsel, the County

Treasurer, and to Schmidt himself. In the letter, Muti questioned the prudence of

Schmidt’s decision to purchase the building, calling it “a significant waste of public

resources.” (App. at 69). He explained, “I have no doubt that Prosecutor Schmidt is

sincere in his belief that the BCPO needs the building, but I am convinced that we do

not.” (Id.). Muti also expressed his opinion that there existed “a palpable sense of fear

among senior staff members to voice even the slightest disagreement with our boss.”

(Id.). Schmidt received his copy of the letter that day, and promptly fired Muti.

       Muti brought suit, claiming his termination violated a variety of federal and state

laws. Presently on appeal is his claim under 42 U.S.C. § 1983 and the First and

Fourteenth Amendments, in which he asserts that he was fired in retaliation for his

exercise of the right to free speech. Pursuant to motion, the District Court dismissed that

claim on January 3, 2003.

                                             II.



                                             3
       Although we evaluate a public employee’s claim of retaliatory termination for

engaging in protected speech under a three-step test, Baldassare v. New Jersey, 250 F.3d

188, 194 (3d Cir. 2001), the first is dispositive here. Under this step, Muti must establish

as a threshold that his speech regarded a matter of public concern. Id. at 195. Schmidt

concedes this threshold has been met, and indeed it has. As part of this step, we must

next balance Muti’s interest in the speech against “the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its

employees.” Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citation omitted). In

making this determination, no single factor is dispositive; each must be weighed.

Baldassare, 250 F.3d at 198. On the employee’s side, the public has an “especially

powerful” interest in exposing potential wrongdoing by public officials. Id. As for the

public employer, we must consider “whether the [expression] impairs discipline by

superiors or . . . has a detrimental effect on close working relationships for which

personal loyalty and confidence are necessary, or . . . interferes with the regular operation

of the enterprise.” Rankin, 483 U.S. at 388 (emphasis added). In weighing the extent of

the detrimental impact on a close working relationship, the proximity within the

organizational hierarchy between the employer and the employee is particularly

important. Baldassare, 250 F.3d at 198 (citations omitted). The burden of justifying the

discharge ultimately lies with the State. Rankin, 483 U.S. at 388.




                                              4
       In the August 14th letter, Muti publicly expressed disagreement with Schmidt’s

decision to seek purchase of a new building. Muti noted that while he believed Schmidt’s

choice to be a sincere one, he questioned its prudence, characterizing it as “a significant

waste of public resources.” Furthermore, and significantly, Muti questioned Schmidt’s

receptiveness to dissenting opinions. Although Muti, as a public employee, does have an

especially powerful interest in exposing potential wrongdoing, the August 14th letter does

not particularly further that interest. Instead, the letter essentially concerns a difference of

opinion as to a policy choice: whether the BCPO should purchase a new building. Had

the letter alleged corruption or serious misconduct, Muti’s interests would weigh more

heavily; but as the letter merely expresses disagreement with a policy choice by

Schmidt— a choice he characterizes as “sincere”—it equates to little more than a public

airing of grievances and an act of insubordination.

       By contrast, the detrimental impact on the working relationship between Muti and

Schmidt was somewhat significant. Although Muti portrays his role in the BCPO as that

of an outsider, serving a largely ministerial function, it appears he had a good deal of

responsibility over budgetary and staffing matters, much of which required him to report

to Schmidt. Thus, although the two were undoubtedly not close in the sense of

amicability, they were close in the sense that Schmidt had to depend on Muti’s loyalty and

confidence. At the very least, Muti’s role as an advisor to Schmidt on personnel

decisions, and as a contract negotiator for the BCPO, required Schmidt to trust and rely



                                               5
on M uti. Cf. Baldassare, 250 F.3d at 198 (“In calibrating the significance of the

disruption, the relationship between the employer and the employee is particularly

important.”). By publicly criticizing Schmidt’s policy choice and the atmosphere in the

office, Muti undermined that trust. It seems unlikely that Schmidt would be unable to

rely on his advisors if he feared that every decision he made as Prosecutor would be

publicly chided by subordinates who disagree with him. On balance, therefore, M uti’s

interest in exposing what he deemed to be an improvident use of public funds, does not

outweigh Schmidt’s interest in having trusted advisors. Accordingly, his free speech

claim must fail. 1




                                            III.




1.
 Muti also argues that his termination was based, in part, on four earlier instances of
protected speech activity, consisting primarily of memos written to Schmidt regarding
personnel and budgetary issues. To succeed on this additional claim, Muti must “show
the protected activity was a substantial or motivating factor in the alleged retaliatory
action.” Mt. Healthy City Sch. Bd. v. Doyle, 429 U.S. 274, 287 (1977). If he can do so,
Schmidt, as employer, can rebut the claim by demonstrating he “‘would have reached the
same decision . . . even in the absence of the protected conduct.’” Baldassare, 250 F.3d at
195 (quoting Doyle, 429 U.S. at 287). Typically, this is a fact-based inquiry not
appropriate for resolution upon a motion to dismiss. See Baldassare, 250 F.3d at 195.
Nevertheless, we agree with the District Court that we can dismiss Muti’s claim as a
matter of law because the detailed factual allegations in the complaint demonstrate that
his previous speech activity was not a substantial or motivating factor in his termination.

                                             6
       As Muti has failed to state a claim upon which relief may be granted, we affirm the

order of the District Court dismissing his free speech claim.2




2.
 As there are no redressable federal claims remaining, the District Court appropriately
declined to exercise its supplemental jurisdiction over Muti’s state-law claims. See 28
U.S.C. § 1367.

                                             7
