                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-1-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2277




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 08-2277


                                   KEVIN ORAS,

                                               Appellant

                                          v.

  CITY OF JERSEY CITY; JERSEY CITY POLICE DEPARTMENT; JEREMIAH
   HEALY; SAMUEL JEFFERSON; JAMES CARTER; ROBERT TROY; JAMES
  BLAKE, RONALD BUONOCORE; PETER NALBACH; HUGH DONAUGHUE;
GARRY LALLO and JOHN DOES 1-10, their identities not currently known, all jointly,
                        severally and individually,

                                               Appellees




                   On Appeal from the United States District Court
                             for the District of New Jersey
                                 (D.C. No. 05-cv-4003)
                    District Judge: Honorable Susan D. Wigenton


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  March 13, 2009

                 Before: Fuentes, Chagares, Tashima,* Circuit Judges


                               (Filed: April 01, 2009)


      *
        The Honorable A. Wallace Tashima, Senior United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit, sitting by designation.
                                        OPINION


TASHIMA, Circuit Judge:

      Kevin Oras appeals the dismissal of his action against his employer, the Jersey

City Police Department (the “Department”), after the District Court granted the

defendants’ motion for summary judgment. Oras brought claims under 42 U.S.C. §§

1983 and 1985(3), and under state law, alleging wrongdoing in the Department’s

acquisition of a new police communication system (the “System”). We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we will affirm.

                                            I.

        Because we write for the parties, we recite only those facts necessary to our

analysis of the issues presented on appeal. Oras, a long-time employee of the

Department, was promoted to the rank of Captain in December 2002 and, one year later,

was assigned as the Commanding Officer of the Support Services Division (“SSD”).

      As Commanding Officer of SSD, Oras’ duties included screening purchase

vouchers that involved a substantial amount of money. While Oras headed SSD, the

Department began acquisition of the System. Vouchers related to the System came to

Oras for approval; however, he elected to investigate the acquisition before approving the

vouchers.

      After some investigation, Oras identified what he believed to be fraud, waste, and

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abuse connected to the System’s acquisition. He reported this belief to various City

officials throughout 2004. In August 2004, the Department transferred Oras out of SSD.

Oras briefed his replacement on the System, but he later relaunched his own investigation

into the acquisition because he felt that SSD did not take the matter seriously after he was

transferred. The Department assigned Oras to various positions in 2004 and 2005, and

Oras continued his investigation throughout that time.

       In February 2005, the Department reviewed Oras’ investigation of the System and

concluded that disciplinary action was appropriate. Oras was demoted and, on November

1, 2005, he retired from the Department. Oras alleges that the Department, the City of

Jersey City, and several named individuals retaliated against him for his communications

in attempting to uncover and disclose possible wrongdoing regarding the System’s

acquisition.

                                             II.

       Our review of a grant of summary judgment is plenary, and “we must grant all

reasonable inferences from the evidence to the non-moving party.” Knabe v. Boury

Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997). We will grant summary judgment if the

evidence on summary judgment “show[s] that there is no genuine issue as to any material

fact and that the moving party is entitled to judgment as a mater of law.” Fed. R. Civ. P.

56(c). The moving party carries the burden of demonstrating the absence of a genuine

issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).



                                             3
       A.     42 U.S.C. § 1983

       Oras claims that the Department, Jersey City, and various officials deprived him of

his First Amendment free speech right and his right to equal protection under the Fifth

and Fourteenth Amendments of the United States Constitution.

              1.      First Amendment retaliation claim

       “To state a First Amendment retaliation claim, a plaintiff must allege [and adduce

evidence of] two things: (1) that the activity in question is protected by the First

Amendment, and (2) that the protected activity was a substantial factor in the alleged

retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006).

Oras’ claim fails on the first factor.

       Two inquiries “guide interpretation of the constitutional protections accorded

public employee speech. The first requires determining whether the employee spoke as a

citizen on a matter of public concern. If the answer is no, the employee has no First

Amendment cause of action based on the employer’s reaction to the speech.” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006) (citation omitted). Furthermore, “when public

employees make statements pursuant to their official duties, the employees are not

speaking as citizens for First Amendment purposes, and the Constitution does not insulate

their communications from employer discipline.” Id. at 421.

       Here, the District Court correctly dismissed Oras’ First Amendment retaliation

claim because the First Amendment does not protect the speech at issue. The



                                              4
uncontroverted facts establish that Oras’ speech related to his investigation of the System

and, thus, fell under his official duties. As Commanding Officer of SSD, Oras’ duties

included screening and investigating purchases. Further, Oras admits that his

investigation into the System was made in his capacity as a police officer. This admission

is bolstered by the fact that the alleged protected speech includes only official

memoranda, department incident reports, official discussions with fellow city employees,

and witness interviews conducted at the Department during business hours. Such

communications establish that Oras spoke pursuant to his official duties; thus, that First

Amendment protection is not appropriate.

              2.     Equal Protection retaliation claim

       Oras does not state a valid claim under the Equal Protection Clause because this

cause of action merely rephrases his First Amendment retaliation claim. “‘[A] pure or

generic retaliation claim [] simply does not implicate the Equal Protection Clause.’”

Thomas v. Independence Twp., 463 F.3d 285, 298 n.6 (3d Cir. 2006) (quoting Watkins v.

Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997)) (second alteration in original).

       B.     42 U.S.C. § 1985(3)

       [I]n order to state a claim under 42 U.S.C. § 1985(3), a plaintiff must allege: (1) a
       conspiracy; (2) motivated by a racial or class based discriminatory animus
       designed to deprive, directly or indirectly, any person or class of persons to [sic.]
       the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4)
       an injury to person or property or the deprivation of any right or privilege of a
       citizen of the United States.

Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997) (citation omitted). Oras’ claim fails

                                              5
because he has not established membership in a protected class, as required by the second

factor.

          C.     Supplemental jurisdiction

          “We review the District Court’s refusal to exercise supplemental jurisdiction for

abuse of discretion.” Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d Cir. 1999).

A district court may decline to exercise supplemental jurisdiction over a claim if “the

district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C.

§ 1367(c)(3). “‘[W]here the claim over which the district court has original jurisdiction is

dismissed before trial, the district court must decline to decide the pendent state claims

unless considerations of judicial economy, convenience, and fairness to the parties

provide an affirmative justification for doing so.’” Hedges v. Musco, 204 F.3d 109, 123

(3d Cir. 2000) (quoting Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.

1995)). The District Court did not abuse its discretion in refusing to exercise

supplemental jurisdiction. We acknowledge Oras’ argument that the District Court did

not refer to these factors in its decision. However, “‘where we can readily determine that

the District Court dismissed a claimant’s remaining claims based on a consideration

enumerated in section 1367(c), it is not reversible error for the court to not state its

reasons for doing so.’” Id. (quoting Figueroa, 188 F.3d at 181).

          For the reasons set forth above, we will AFFIRM the judgment of the District

Court.



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