                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-12-2006

Tunis v. Newark
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2467




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"Tunis v. Newark" (2006). 2006 Decisions. Paper 920.
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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 ___________

                                 No. 05-2467
                                 ___________

                      JAMES TUNIS; JOHN C. WITSCH


                                       v.

                              CITY OF NEWARK

                                            John C. Witsch, Appellant

                                 ___________


                 On Appeal from the United States District Court
                          for the District of New Jersey
                          (D.C. Civil No. 01-cv-00517)
                 District Judge: The Honorable Jose L. Linares

                                 ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                                 June 8, 2006

          Before: AMBRO, FUENTES, and NYGAARD, Circuit Judges.

                            (Filed : June 12, 2006)

                                 ___________

                          OPINION OF THE COURT
                               ___________


NYGAARD, Circuit Judge.
                                             I.

       Appellant, John Witsch, a former Captain in the Newark Police Department

(“NPD”), announced his decision to retire from the force in 1999 at age 49 and after 27

years of service. Precipitating this decision was a disciplinary charge. At the disciplinary

hearing, Chief Ambrose, the hearing officer, offered to dismiss the charge, but Witsch

refused, opting to go through with the hearing. Witsch was found not guilty but retired

allegedly because he felt threatened by remarks made two years earlier by Joseph

Santiago, the NPD’s Director, who was known for his frequent reorganizations of the

force as well as his aggressive use of the disciplinary process which impacted all ranks

and age groups. Santiago admitted that his approach was high-pressure and resulted in

stress throughout the NPD. Preceding his retirement, Witsch had been regularly

promoted both horizontally and laterally to positions of increasing responsibility. At the

time of his retirement, he, along with several other Captains, was in charge of all of the

operations of Newark’s Command Operation Center when the Chief of Police was off

duty. Witsch undeniably held a position of considerable stress in the already high-

pressure NPD atmosphere that existed under Santiago. Upon retirement, Witsch began

collecting a $62,000 yearly pension, available regardless of any alternative employment,

and lifetime medical benefits.

       Witsch filed a complaint alleging that he was constructively discharged on the

basis of his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination (“LAD”), N.J.S.A.

                                             2
10:5-1 et seq. He complained, inter alia, that his forced retirement resulted in his missing

the opportunity to become Deputy Chief, but he did not allege that the position had been

filled by a younger officer having a lower score on the civil service tests.1 Finding no

disputed material facts, the District Court granted summary judgment in favor of Newark.

The District Court found that while Witsch may have retired due to stressful conditions in

the NPD, he failed to proffer any evidence of differential treatment based on his age. The

District Court subsequently denied Witsch’s three motions for reconsideration. This

appeal followed. Because we conclude that Witsch has failed to overcome the

shortcomings in his case on appeal, we will affirm the judgment of the District Court.

                                             II.

       We conclude that there is no evidence that age discrimination resulted in Witsch’s

constructive discharge. Instead, the undisputed facts show only his dissatisfaction with

conditions that impacted the entire NPD during the Santiago administration. Proof of age

discrimination under both the ADEA and the LAD require Witsch to show that he was

discriminated against and therefore injured based upon his age, a protected characteristic.

Proof of constructive discharge under both the ADEA and the LAD requires him to show

that the age discrimination made his working conditions so intolerable that he reasonably

felt compelled to resign his position in the NPD. See Konstantopoulos v. Westvaco Corp.,




1.       Promotions in the NPD turn on an officer’s rank on a civil service test. That rank
is the product of state-created merit based selection criteria.

                                             3
112 F.3d 710, 718 (3d Cir. 1997), cert. denied, 522 U.S. 1128 (1998). Witsch can show

neither.

       First, the only factual dispute he identifies is whether Santiago’s administration

and management of the NPD was effective and whether crime reduction statistics during

his tenure were accurate. This dispute is wholly irrelevant to his age discrimination and

constructive discharge case. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d

639, 647 (3d Cir. 1998) (observing that discrimination laws are not to be employed to

challenge the soundness of employers’ business decisions).

       Second, the record shows no evidence that Witsch suffered any adverse

employment actions based on his age. In fact, the record reflects that Santiago promoted

Witsch to a series of powerful positions with increasing amounts of responsibility

throughout his tenure with the NPD. Instead of discriminating against Witsch, Santiago

attempted to make Witsch’s working conditions more palatable. For example, when

Witsch was appointed to oversee all of the NPD’s investigative operations, and eventually

complained of the substantial stress associated with this position, Santiago transferred

him to the Command Operations Center. At the Command Operations Center, Witsch

was admittedly in a position of significant authority and power but could enjoy a less

stressful working environment.

       Third, Witsch’s allegation that his compelled retirement caused him to forgo a

Deputy Chief appointment focuses on the promotion of an officer older than himself,

Captain John Esposito, to Acting Deputy Chief. Witsch concedes that no younger officer

                                             4
who scored lower than he did on the civil service exams was ever promoted over him to

this rank. However, he alleges that, despite several openings, Santiago had permanently

promoted only one Captain prior to Witsch’s retirement and, shortly after his retirement,

appointed Esposito to Acting Deputy Chief despite Esposito’s lower position on the

active civil service promotional list. Age discrimination is not implicated simply because

the NPD promoted the older Esposito over the younger Witsch, especially since Witsch

had already retired. See Keller v. Orix Cred. Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.

1997) (en banc) (holding that to create an inference of age discrimination, plaintiff must

show differential treatment of a sufficiently younger employee) (emphasis added).

Discrimination laws are not to be used to attack the wisdom of managerial decisions. See

Simpson, 142 F.3d at 647.

       Fourth, Witsch’s complaint that disciplinary charges were unfairly lodged against

him does not allege that he suffered more disciplinary charges than any other officer

solely because of his age, nor does it show that the charges were based on manufactured

evidence or that he was ever unfairly convicted of any charge. Instead, the record reflects

that Santiago’s administration, much to the consternation of the rank-and-file, was rife

with the aggressive use of the disciplinary system against officers of every rank and age

for those who committed even minor infractions and for those with tenuous relationships

to minor and major investigations. The disciplinary process was used zealously against

the entire force, not just against Witsch, and when officers were involved in the process,



                                             5
they had notice of the charges against them, a full and fair hearing and union

representation.

       Witsch also alleges that Santiago made discriminatory comments but failed to hear

any ageist comments for the two years preceding his retirement and does not allege that

any of the comments were directed toward him. These comments do not meet the

considerably high burden required to prove constructive discharge. See Shepherd v.

Hunterdon Dev. Ctr., 803 A.2d 611 (2002) (observing that in applying the LAD, hostile

work environment claim requires abusive, severe, pervasive and hostile conduct that

objectively affects plaintiff’s work environment, but a constructive discharge claim

requires conduct so egregious and intolerable that plaintiff would feel forced to resign).

Even under the less onerous burden required to prove hostile environment claims, courts

have consistently recognized that offensive comments not directed at the plaintiff, even

when they refer to protected characteristics, are insufficient to establish a claim.

       Lastly, Witsch alleges that any reasonable officer in his position would have felt

compelled to resign because of the disciplinary charge levied against him that precipitated

his retirement. To bring a successful constructive discharge claim, Witsch must show that

he reasonably believed he had no other option but to resign. See Connors v. Chrysler

Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998) (citing Gray v. York Newspapers, Inc.,

957 F.2d 1070, 1083 (3d Cir. 1992) (observing that a stress-free employment environment

is not ensured and “discrimination laws ‘cannot be transformed into a palliative for every

workplace grievance, real or imagined, by the simple expedient of quitting’”). While the

                                              6
law protects employees from concerted, calculated efforts to expel them or the imposition

of unduly harsh conditions not visited upon their co-worker in order to force them to quit,

it does not guarantee that they will not suffer frustrations, challenges, disappointments

and discipline. See Gray, 957 F.3d at 1083. The record fails to show that Witsch was

ever verbally threatened with dismissal, that evidence on which disciplinary charges were

based was fabricated and that he was specifically targeted for discipline. His argument

that he believed that the disciplinary charge was used to “get” him and he therefore feared

termination in the future is unpersuasive. The law of constructive discharge is not

concerned with subjective fears of possible future dismissal. See Gray, 957 F.2d 1082-

83.

       The record shows that instead of being forced to leave his position because of

disciplinary charges, the officer presiding over Witsch’s disciplinary hearing freely

offered to dismiss them. Instead, Witsch insisted on proceeding with the hearing. At the

close of the hearing, before which he was given notice and during which he was afforded

due process and vigorous representation by union counsel, Witsch was absolved of guilt.

As opposed to an environment where he was given no other choice but resignation, the

record shows one in which Witsch and other officers accused of disciplinary infractions

were awarded notice, a full and fair hearing and substantial union support2.


2.      The police unions gave effective and substantial representation to NPD members
during the Santiago administration, during which the disciplinary system was used
aggressively. Union representation was provided at disciplinary hearings and when
                                                                            (continued...)

                                             7
       Based on this record, no reasonable person in Witsch’s position would feel that he

had no other choice but to leave the NPD. To the contrary, after his hearing, and a long

tenure in a high-ranking, high-pressure job in the stressful atmosphere of a big city police

department, Witsch freely chose to end his law enforcement career.

                                            III.

       Because the record reflects no evidence of either age discrimination or

constructive discharge, the Order of the District Court granting summary judgment to

Newark will be affirmed.




2.      (...continued)
challenging disciplinary actions in state courts and in front of the Public Employee
Relations Commission.
