                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2007

Muzslay v. Ocean City
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1335




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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT

                  ___________

              Nos. 05-1335, 05-1429
                   ___________

              OLIVER MUZSLAY,

             Appellant at No. 05-1335

                        v.

 CITY OF OCEAN CITY; HENRY KNIGHT, Mayor;
     DOMINIC LONGO, Public Safety Director

                   __________

               OLIVER MUZSLAY

                        v.

CITY OF OCEAN CITY; HENRY D. KNIGHT, Mayor;
     DOMINIC LONGO, Public Safety Director,

              Appellants at No. 05-1429

                     ___________
  On Appeal from the United States District Court
             for the District of New Jersey
             (D.C. Civil No. 01-cv-04838)
  District Judge: The Honorable Freda L. Wolfson

                  ___________

    Submitted Under Third Circuit LAR 34.1(a)
               November 6, 2006
          Before: SLOVITER, CHAGARES, and NYGAARD, Circuit Judges.


                                  (Filed March 29, 2007)

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       Oliver Muzslay claims that Ocean City, Mayor Henry Knight and Public Safety

Director Dominick Longo terminated him because he engaged in protected speech and

because of his age. The District Court granted summary judgment in favor of the

defendants on all but Muzslay’s age discrimination claim under the New Jersey Law

Against Discrimination (NJLAD), and dismissed the action for lack of federal subject

matter jurisdiction. We will reverse in part, and affirm the remainder.

                                             I.

       Oliver Muzslay served the Ocean City Beach Patrol for over 44 years, including 17

as Captain. Beginning in 1998, however, a series of disagreements arose between

Muzslay and the City Director of Public Safety, Dominick Longo. First, Longo ordered

Muzslay to express Longo’s strong displeasure with Assistant Captain Edwin Yust’s vote

to deny a pension waiver to Patrol medic Kathy Borbeau. Longo later eliminated Yust’s

position and demoted him. When Muzslay protested Longo’s treatment of Yust, Longo

removed Muzslay’s authority over the hiring and promotion of Patrol lifeguards and

                                             2
excluded him from negotiations with the lifeguard union. Second, Muzslay requested

extended lifeguard hours or a shift change to deal with several after-hours drownings, but

Longo and other officials denied his requests.1 Third, Longo ordered Muzslay to vacate

his office at the Patrol boat shop, where Patrol vehicles and safety equipment were kept,

to make way for a new carpenter named Harvey Jones. Longo later ordered Muzslay to

stay away from the boat shop between the hours of 9AM and 5PM, because of Jones’

personal animosity toward him. In a memorandum addressed to Longo and Mayor

Knight, Muzslay expressed disbelief at the order, complained that Longo left him

“powerless,” and demanded a meeting with Knight.

       A few months later, Longo recommended that Muzslay’s position be eliminated.

The local newspaper published an article on Muzslay’s termination. In the article,

Muzslay speculated that he was being terminated because of his objections to Longo’s

decisions regarding Yust and the drownings. Mayor Henry Knight explained that the City

sought “some younger people” to take command of the Patrol. Shortly thereafter, the City




1.     A 13 year-old girl drowned on July 3, 1999, while lifeguards were off-duty.
Longo agreed to extend hours for July 4, but refused to extend them beyond that date.
Another drowning occurred at the same location on July 5. City officials held an
emergency meeting and decided to post new warning signs at the beach. Muzslay claims
Longo told him to “shut up” at the meeting.

        Another drowning occurred in September while lifeguards were off-duty. On
May 11, 2000, the City extended lifeguard hours based upon a plan submitted by
Assistant Captain Bud McKinley. Muzslay did not participate in preparing McKinley’s
plan.

                                            3
offered Muzslay an unconditional reinstatement as Captain for the 2000 season pursuant

to The Civil Rights Act of 1964, 42 U.S.C. §2000e (2006) et. seq., and Ford Motor Co. v.

EEOC, 458 U.S. 219, 232 (1982).2 Muzslay accepted, and remained Captain.

       Following his reinstatement, Muzslay claims, Longo staged a summer-long

campaign to harass him and weaken his influence over Patrol operations. First, Longo

assigned police detective Max Hurst to act as an intermediary between him and Muzslay.

Hurst told Muzslay that he could not begin work until he completed a physical exam and

qualifying run and swim, told other lifeguards not to give Muzslay access to the Patrol

payroll system, and denied Muzslay a key to the boat shop. When Hurst and Longo

refused to meet with him, Muzslay filed a Tort Claims Notice alleging that Knight and

Longo terminated him because of his age and because of his objections to Longo’s

decisions. Afterwards, Muzslay alleges, Longo prevented him from managing employee

grievances and assignments, removed his traditional authority over media releases, denied

him access to the computer and equipment in the boat shop, ordered him to conduct

phony research assignments, and repeatedly refused to meet with him. Muzslay expressed

his frustrations in several letters to Knight and Longo. Muzslay’s seasonal position was

terminated on September 4, 2000, and four months later he was informed his position was




2.      In Ford Motor Co. v. EEOC, the United States Supreme Court held that an
employer accused of Title VII discrimination may toll the accrual of back pay liability by
offering unconditional reinstatement of the employee. Ford Motor Co., 458 U.S. at 232.

                                            4
eliminated. The City hired Charles Bowman, a younger individual, to manage Beach

Patrol and other public safety operations year-round.

                                             B.

       Muzslay filed a complaint against Mayor Knight, Longo and Ocean City, alleging

that the defendants (1) unlawfully retaliated against him for engaging in activity protected

by the First Amendment, NJLAD and the New Jersey Conscientious Employee Protection

Act (CEPA); and (2) violated the NJLAD by discriminating against him based upon his

age.3 The District Court granted summary judgment in favor of the defendants on all but

Muzslay’s NJLAD age discrimination claim. Exercising its discretion under 28 U.S.C.

§1367(c)(3), the District Court dismissed his NJLAD age discrimination claim for lack of

subject matter jurisdiction. Each party filed a timely appeal.




                                             II.




3.       Muzslay also asserted a §1985 claim, substantive and procedural due process
claims, and claimed Longo and Knight were individually liable under the NJLAD. He did
not raise these claims in his initial appellate brief, and we consider them waived. United
States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005); see F ED. R. A PP. P. 28(a) (2006). We
also consider his Title VII claim waived because he never raised it before the District
Court. Brennan v. Norton, 350 F.3d 399, 418 (3d Cir. 2003).

                                              5
                                              A.

                                    1. §1983 Retaliation

       The First Amendment protects a public employee’s right to speak as a private

citizen on matters of public concern without fear of retaliation. A state cannot lawfully

terminate an employee for reasons that infringe upon his freedom of speech. Baldassare

v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001). The First Amendment protects a public

employee’s statement when (1) the employee spoke as a citizen; (2) the statement

involved a matter of public concern; and (3) his employer did not have “an adequate

justification for treating him differently from any other member of the general public” as

a result of his statement. Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.

2006). A public employee’s statement involves a matter of public concern if it can be

fairly considered as relating to any matter of political, social or other concern to the

community. Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003)(internal citations

omitted).

       Muzslay alleges that Longo and Knight “set him up” to be terminated, and

ultimately fired him, because he (1) objected to Longo’s interference in the pension board

matter; (2) objected to Longo’s demotion of Yust; (3) requested extension of lifeguard

hours; (4) objected to limitations on his authority; and (5) filed a Tort Claims Notice

against Longo, Knight and the City.




                                               6
       The District Court correctly concluded that some of Muzslay’s objections were not

protected by the First Amendment. He was neither a formal witness, nor the aggrieved

party in Yust’s grievance proceeding. To the extent he advised Longo not to eliminate

Yust’s administrative position, he spoke pursuant to his duties as Patrol Captain, not as a

private citizen. Garcetti v. Ceballos, 126 S.Ct. 1951, 1960 (2006). Similarly, he advised

the City to extend lifeguard hours pursuant to his official duties. Id. Finally, his objections

to the abrogation of his authority involved only his own personal employment situation.

       The District Court, however, erred with respect to two of Muzslay’s claims. First,

the District Court concluded that Muzslay failed to adduce any evidence that he actually

protested Longo’s interference in the pension board matter. Both Muzslay and Yust

submitted statements, which, in combination with Longo’s letter to Muzslay, see

Appendix at 1228, support a reasonable inference that Muzslay in fact objected to

Longo’s orders. Other evidence may suggest Muzslay did not think that outside pressure

upon the board’s members was illegal, but it is the fact-finder’s duty to weigh this

evidence. Phyllis Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005).

       Second, the District Court acknowledged that Muzslay’s Tort Claims Notice was

protected by the First Amendment, but concluded Longo’s alleged retaliatory actions

were de minimis. However, the City’s decision not to rehire Muzslay following the 2000

summer season cannot be considered de minimis. The record contains evidence of on-

going antagonism, and the City chose to eliminate Muzslay’s position within months of



                                              7
his filing of the Tort Claims Notice. See Brennan, 350 F.3d at 420 (citing Abramson v.

William Paterson College, 260 F.3d 265, 288 (3d Cir. 2001)). A reasonable jury could

find Muzslay’s objections to Longo’s pressure upon Yust and his Tort Claims filing were

substantial factors in the City’s treatment of him. We will therefore reverse the District

Court’s judgment with respect to these claims under §1983.

                                   2. NJLAD Retaliation

       Next, to establish a prima facie retaliation claim under the NJLAD, Muzslay must

show: (1) he engaged in protected employee activity; (2) the employer took adverse action

against him after, or contemporaneous with, his activity; and (3) a causal link exists

between his activity and the employer’s action against him. Abramson v. William

Paterson College, 260 F.3d 265, 286 (3d Cir. 2001). As we earlier concluded, a

reasonable jury could find a causal connection between the City’s decision not to re-hire

him and his objections to Longo’s pressure on Yust and his Tort Claims filing.

                                    3. CEPA Retaliation

       Muzslay also contends City officials violated the CEPA by retaliating against him

because of his objections to Longo’s treatment of Yust, the City’s refusal to extend

lifeguard hours and abrogation of his duties.4 To establish a prima facie CEPA claim,

Muzslay must show (1) he reasonably believed his employer’s conduct was unlawful; (2)




4.       Muzslay does not contend City officials violated CEPA by retaliating against him
for his Tort Claims Notice filing.

                                              8
he “blew the whistle” on the employer’s conduct; (3) his employer took adverse action

against him; and (4) a causal connection exists between his whistle-blowing activity and

his employer’s action. Blackburn v. United Parcel Service, Inc., 179 F.3d 81, 92 (3d Cir.

1999). If the defendants offer some legitimate reason for their actions, the plaintiff must

then convince the fact-finder both that the defendants’ proffered reason is false, and that

retaliation was their real motivation. Id.

       There is no evidence that Muzslay “blew the whistle” on the City’s refusal to

extend lifeguard hours. He only recommended they extend lifeguard hours, and he only

made that recommendation according to his official duties, not as a private citizen. See

Garcetti, 126 S.Ct. at 1960. Further, although he objected to Longo’s demotion of Yust,

there is no evidence he thought this decision was unlawful. Similarly, he protested

removal of some of his responsibilities, but there was no “clear mandate of public policy”

that prevented Longo from reassigning his duties to others. N.J. S TAT. A NN. 34:19 –

3(c)(3) (2006).5

       There is evidence, however, that would permit a reasonable jury to conclude that

Muzslay “blew the whistle” on Longo’s interference in the pension board matter, and that

Muzslay reasonably believed Longo’s actions were unlawful. The City took adverse

employment action against Muzslay by deciding not to re-hire him for the 2001 season.



5.     The District Court correctly pointed out that Muzslay’s authority was subject to
Longo’s authority to “assign and .... modify the functions and duties of subordinates.”
Ordinance 90-20, Article 4, 2-1.22 (c)(3). See Appendix at 1112.

                                              9
Again, given the on-going antagonism between Muzslay and Longo, a reasonable jury

could find a causal connection existed between these events. Accordingly, we will reverse

the District Court’s judgment with respect to this latter claim under the CEPA.

                             B. NJLAD Age Discrimination

       Next, Muzslay alleges the defendants discriminated against him because of his age.

To prevail on an age discrimination claim under either federal law or NJLAD, Muzslay

must show his age “actually motivated” and “had a determinative influence on” his

employer’s decision to fire him. Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300

(3d Cir. 2004).

       We agree with the District Court that Muzslay’s age discrimination claim survives

summary judgment. Mayor Knight’s statement to the Sentinel that the City sought “some

younger people” to take over Beach Patrol operations provided direct evidence that his

employer placed substantial negative reliance on his age in deciding to fire him. This was

not a vague statement, “random office banter” or “an innocuous conversational jab in a

social setting.” Fakete v. Aetna, Inc., 308 F.3d 335, 339-40 (3d Cir. 2002). We further

agree with the District Court that the City’s explanation lacked consistency. The record

presents sufficient facts from which a reasonable jury could disbelieve the City’s

explanation. We will affirm the District Court’s denial of summary judgment on

Muzslay’s NJLAD age discrimination claim.




                                            10
                                   C. Punitive Damages

       To be awarded punitive damages under New Jersey law,6 Muzslay must establish

that (1) upper-management actively participated in, or was willfully indifferent to,

discrimination against him, and (2) the offending conduct was “intentional, malicious,

and evil-minded.” Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 124 (3d Cir. 1999)

(internal citations omitted). We agree with the District Court that Muzslay failed to

proffer evidence that City officials engaged in “evil-minded” conduct.

                                     D. Attorneys’ Fees

       Finally, we reject Muzslay’s claim for $26,962.50 in attorney’s fees incurred when

he successfully opposed the appellees’ request for permission to file an over-length brief.

It was Muzslay’s own failure to comply with the Federal Rules of Appellate Procedure

that prompted the appellees to seek permission to file an over-length brief. In his initial

brief, Muzslay failed to include a proper statement of the facts, F ED. R. A PP. P. 28(a)

(2006), and improperly added an extensive statement of the facts in his reply. See F ED. R.

A PP. P. 28(c) (2006).

                                             III.

       In summary, we will affirm the District Court’s denial of summary judgment

regarding Muzslay’s NJLAD age discrimination claim. However, we will reverse the

District Court’s judgment regarding Muzslay’s claims under §1983, the NJLAD and



6.      Muzslay does not claim he is entitled to seek punitive damages under §1983.

                                             11
CEPA, vacate the District Court’s dismissal of his NJLAD age-discrimination claim, and

remand the cause for further proceedings.




                                            13
