                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 11-1306
                                     ____________

                              CARMELO F. VATICANO,

                                                          Appellant

                                            v.

                               TOWNSHIP OF EDISON;
                                MAYOR JUN H. CHOI;
                                 BRIAN COLLIER;
                                 THOMAS BRYAN
                                   ____________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 09-cv-01751)
                     District Judge: Honorable Susan D. Wigenton
                                      ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  February 11, 2013

                 Before: HARDIMAN, and ALDISERT, Circuit Judges
                            and STARK*, District Judge

                                (Filed: February 20, 2013)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

   *
      The Honorable Leonard P. Stark, District Judge for the United States District Court
for the District of Delaware, sitting by designation.
HARDIMAN, Circuit Judge.

       Carmelo Vaticano appeals the District Court’s summary judgment dismissing his

civil rights claims against Appellees Township of Edison, Jun Choi, and other municipal

officials. We will affirm.

                                             I

       In 2006, when Vaticano was a Deputy Police Chief, Jun Choi became the Mayor

of Edison Township, New Jersey. Vaticano had supported Choi’s opponent in the

primary election of 2005. The gravamen of Vaticano’s case is that from 2005 to 2009,

Mayor Choi devised and implemented a scheme to elevate an unqualified supporter to

Chief of Police while denying Vaticano his rightful promotion to Chief. Vaticano also

alleges that Choi and his supporters punished him for his lack of political support for the

Mayor by assigning Vaticano to “demeaning” tasks that were below his rank and

experience and by paying him less than comparable officers.

       In April 2009, Vaticano filed a complaint in the United States District Court for

the District of New Jersey pursuant to 42 U.S.C. § 1983. On November 5, 2010, the

District Court granted the Appellees’ motion for partial summary judgment, dismissing

Vaticano’s § 1983 claims. Vaticano timely appealed.




                                             2
                                             II1

       Vaticano alleges, inter alia, that Appellees’ decisions to deny him several

promotions, assign him “demeaning” work, and limit his pay were in retaliation for his

support of Choi’s primary opponent and a certification Vaticano provided in March 2008,

in the case of Wheeler v. Edison, Civ. No. 06-cv-5207. Our review of a district court’s

summary judgment is plenary. Galli v. N.J. Meadowlands Comm’n, 490 F.3d 265, 270

(3d Cir. 2007). Summary judgment is proper “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). We agree with the District Court that Vaticano has failed

to marshal facts sufficient for a reasonable jury to find that he was discriminated against

based on his political beliefs or punished for exercising his First Amendment rights.

                                             A

       Vaticano points to three events that he claims are direct evidence of Choi’s

political animus against him: a 2005 pre-election exchange between Choi and Vaticano

about Choi’s qualifications for mayor; a 2005 post-election meeting between Mayor-elect

Choi and Vaticano; and a 2007 conversation between the two after Vaticano sent officers

to break up lawful campaigning outside a community event.

       Vaticano alleges that prior to the election, he “confronted Choi questioning his


       1
       The District Court exercised jurisdiction under 28 U.S.C. §§ 1331 and 1367. We
have appellate jurisdiction under 28 U.S.C. § 1291.
                                             3
ability to be Mayor . . . resulting in a testy exchange.” According to his own deposition,

however, Vaticano simply asked Choi why he was running for mayor despite his lack of

municipal experience and Choi answered: “[B]ecause he wanted to do it.” Vaticano

conceded that the exchange was “not hostile.” Vaticano next alleges: “Choi himself

[said] that he would have difficulty backing officers that did not support him during the

mayoral campaign.” Vaticano repeatedly cites page 108 of the Appendix to support this

claim, but he mischaracterizes the record.2 Even in Vaticano’s deposition testimony, at


       2
        Page 108 of the Appendix contains four pages of Vaticano’s deposition
describing a conversation between the two about a rumor that Vaticano had been saying
disparaging things about Choi. The transcript reads:
       [Choi] kept saying, “You know what you said?” After going back and forth
       many times, [Choi] looked at me, he said, “You really don’t know what I’m
       talking about?” I says, “Jun, I haven’t got a clue what you’re talking about.”

       And that’s when I looked at [Choi], I said, “Look, you’re surrounding yourself
       with officers that I feel that are not giving you the appropriate information.” I
       said, “What you need to do is sit back a little bit and look at the entire police
       department.”

       I says you—you know, “Back your officers.” I says, “These guys will do
       cartwheels for you. If they know that you’re in their corner, you’re going to
       support them.”

       At that point [Choi] just said, just had a hard time with it saying that they
       didn’t support him, they didn’t support him as mayor.

       Support you? Who were you back then? You were this John Q Citizen that
       came out of nowhere that won against The Machine and guess what, you won.
        Now you’re not that person. You’re the boss now.

       I says, “I’m telling you, these guys will follow you anywhere. Just be in their
                                              4
no point did the Mayor’s words indicate what Vaticano asks us read into them, i.e., that

Choi would have difficulty promoting police officers who did not support him politically

during the 2005 primary. Finally, in 2007, Vaticano and Choi clashed after Vaticano sent

officers to break up lawful campaigning outside a community event. At that time, Choi

allegedly told Vaticano, “I know what your political views are and I’m tired of you

politicizing the police department,” and threatened to “write [him] up” if he did not recall

the officers.

       Contrary to Vaticano’s framing of these three encounters, they do not provide

strong direct evidence that Choi harbored political animosity toward Vaticano. At most,

these exchanges indicate: (1) that Choi was aware Vaticano had supported his rival during

the 2005 primary and (2) that Choi believed Vaticano’s decision to break up lawful

campaigning may have been influenced by Vaticano’s political views. Though this is

weak support for Vaticano’s contention that Choi disfavored him because of his political

views, we are mindful that when reviewing a district court’s summary judgment, we

“should view the facts in the light most favorable to the non-moving party and make all

reasonable inferences in that party’s favor.” Galli, 490 F.3d at 270 (citing Hugh v. Butler

Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). Thus, for purposes of our

analysis, we assume that Choi harbored animosity toward Vaticano because of his

political beliefs.


       corner and support them.” Just had a difficult time with that.
                                             5
                                              B

       Even accepting that the source of Choi’s alleged hostility toward Vaticano was

political, Vaticano must still marshal facts to demonstrate causation, i.e., that political

animus “was a substantial or motivating factor in the government’s employment

decision[s].” Galli, 490 F.3d at 271. Vaticano alleges that Choi’s political bias “directly

resulted” in several different forms of “adverse action,” which we will address in turn.

       First, Vaticano claims that in late 2007, he was passed over for the position of

Acting Police Chief for political reasons when Deputy Chief Ron Gerba was named to the

post. He claims that the political nature of the decision was “glaring” because Gerba had

been on medical leave for some time and that “[b]y Ordinance, practice and merit,

[Vaticano] should have been named acting Chief.” As the District Court correctly

pointed out, however, no ordinance mandated that Vaticano, rather than his fellow Deputy

Chief Gerba, be appointed Acting Police Chief. Furthermore, at the time of Gerba’s

assignment, he had worked at the Police Department for nine more years than Vaticano.

       Second, Vaticano argues that the rise of Thomas Bryan from Lieutenant to Police

Chief in less than a year was motivated by Choi’s political favoritism for Bryan and bias

against Vaticano. In early 2008, the Township Council, with Choi’s support, had made

changes to the police department’s governing ordinance. Prior to amendment, the

ordinance required “[a]ny individual, officer or candidate to be promoted to the position

of chief of police or deputy chief [to] have served in the position of captain of the police

                                               6
department for a term of no less than two years.” Edison Twp. Ord. § 2.96.460 (2006).

The amendment permitted the promotion of a lieutenant to deputy chief or chief,

eliminating the previous requirement that a candidate for those positions first serve as a

captain for two years. Edison Twp. Ord. § 2.96.460 (2008).

       On April 1, 2008, Choi, with the support of the Township Council, appointed

Brian Collier to serve in the newly created position of Police Director, the civilian head of

the Edison Police Department. Collier, who had a background in federal law

enforcement, was hired after a national search and there is no evidence he even knew

Choi, much less that he supported him politically. That same month, Thomas Bryan,

Commander of the Department’s Internal Affairs Unit and a twenty-four-year veteran of

the Department, was promoted to Deputy Chief. After then-acting Police Chief Ron

Gerba retired, Collier gave Bryan, instead of the more tenured Deputy Chief Vaticano,

operational control over the Department. On January 13, 2009, Collier promoted Bryan

to Police Chief, while Vaticano remained as Deputy Chief.

       Vaticano argues that Choi’s plan to amend the ordinance, hire Collier, and promote

Bryan was intended “[t]o bypass [Vaticano], the obvious choice for [Police Chief].”

According to Vaticano, Choi accomplished this by manipulating the legislative process to

place Bryan, whom Vaticano asserts was a political supporter of Choi,3 into the position.


       3
         Contrary to a finding of the District Court, the parties continue to dispute whether
Bryan supported Choi during the 2005 campaign. During his deposition, Bryan asserted
that he supported Choi’s rival, George Spadoro, claiming that he attended Spadoro
                                             7
Even if we assume that Choi himself favored Bryan and disfavored Vaticano, however,

the record is devoid of evidence to show that politics were a “substantial or motivating

factor” in any decision to give Bryan operational authority over the Department or to

promote him to Police Chief.

       Once Choi relinquished his position as Director of Public Safety and turned control

of the Department over to the Police Director, Collier had authority to choose which

Deputy Chief would assume operational authority when Gerba vacated the office of

Police Chief. Collier indicated numerous performance-based reasons why he chose Bryan

over Vaticano, including: Vaticano had been part of a leadership regime that had allowed

the Edison Police Department to consistently underperform;4 the Department’s offices



fundraisers and “may have had signs up for him at one point” at Bryan’s local business.
Former Police Chief George Mieczkowski testified that Bryan was a Choi supporter,
although his belief was based solely on a “newspaper picture.” Because courts reviewing
a motion for summary judgment are required to view the facts in the light most favorable
to the non-movant, the District Court erred when it found that Bryan was not a Choi
supporter. However, a fact is material only if it will affect the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The District Court’s error
does not affect the outcome of the case because the record does not indicate that Bryan’s
political affiliation was a “substantial or motivating factor” behind Collier’s decision to
promote him to Deputy Chief in charge of operations and subsequently to Police Chief.
See Galli, 490 F.3d at 271.
       4
           Collier testified:
       I believed that [Vaticano] was in a commanding position where he could have
       made a difference and no difference had been made and I’m trying to get
       things done and I probably made my decision . . . based on hey, I’ve got to go
       with somebody new, somebody different who can help me move this police
       department forward because I hadn’t seen anything to reflect the fact that the
                                             8
were in physical disarray while Vaticano’s office was “very luxurious[],” a sign that

Vaticano had failed “to take care of the troops”; and Bryan, a Lieutenant prior to his

promotion, was a better choice to “help [Collier] move the department forward” because,

unlike Vaticano, he had not been part of the prior regime’s history of neglect.5

Furthermore, Collier testified that Choi did not tell him to appoint Bryan Deputy Chief in

charge of operations. Vaticano offers no evidence to rebut this assertion.

       The comparative performance of the two individuals after Bryan’s first few

months as Deputy Chief presented Collier with other non-political reasons to promote

Bryan to Police Chief instead of Vaticano. Collier’s August 2008 evaluation of Vaticano

indicated several concrete examples of deficient work and noted he was

“underperforming,” while Bryan’s evaluation indicated that he had “done [his] best and


       police department was moving forward under the current leadership that was in
       place upon my arrival.
Supp. App. 4.
       5
           Collier averred that he gave operational authority to Bryan because:
       Based upon all of my research which included a number of people with
       knowledge of Edison and its police department as well as other police
       departments and other law enforcement agencies and based upon some of my
       anecdotal observations . . . as well as what I considered based upon my
       research an integrity deficit within the department it was my opinion that the
       staff and leaders who had been there were not going to move the police
       department forward . . . and based upon the fact that I needed to have one
       person in charge and I needed to make that decision I chose then Deputy Chief
       Thomas Bryan . . . .
App. 581.
                                               9
accomplished most of what [he had] set out to do.” There is no evidence that Choi told

Collier to punish Vaticano or that Choi otherwise influenced Collier’s decision.

       Vaticano cites nothing in the record to contradict any of Collier’s assertions about

the quality of either Vaticano’s or Bryan’s work. In fact, he admits that by the end of July

2008, he and Collier “just did not have a working relationship.” Rather, in support of his

contention that politics were a “substantial or motivating factor” behind Collier’s

preference for Bryan, Vaticano cites an outside consultant’s conclusion that he was more

qualified than Bryan to be the Deputy Chief in charge of operations and later Police

Chief. Yet, the consultant’s report fails to call into question or even address the

legitimacy of Collier’s qualitative concerns with Vaticano’s job performance.6 What

remains is Vaticano’s conclusory assertion that a “jury would be able to conclude that Mr.

Collier, as an appointee of the Mayor, was beholden to” Choi, who favored Bryan and

disliked Vaticano. This is insufficient, however, because Vaticano “may not rest upon

mere allegations, general denials or vague statements” in order to survive summary

judgment. Trap Rock Indus. v. Local 825, Int’l Union of Operating Eng’rs, AFL-CIO,


       6
         The consultant’s report indicates that he concluded that Vaticano was more
qualified based solely on quantitative metrics such as: years spent as a police officer,
years spent in an executive or supervisory role, total letters of commendation, and
duration of residency in Edison. These are all factors that would, all else being equal,
favor a more tenured police officer, such as Vaticano. But Vaticano concedes that the
report neither addressed Collier’s concerns with the quality of Vaticano’s work and his
leadership capabilities nor considered Bryan’s demonstrated ability to perform despite his
relative lack of tenure.
                                             10
982 F.2d 884, 890 (3d Cir. 1992) (internal quotation marks, alterations, and citation

omitted). Simply stated, Vaticano has failed to cite competent evidence to support his

contention that Bryan’s promotions were substantially motivated by politics.

        Third, Vaticano argues that Appellees punished him for his political views by

assigning him to “demeaning” tasks that were below his rank and experience.

Specifically, Vaticano complains he was assigned to research the Newark Police

Department’s COMPSTAT program and objects to having been assigned to the

Department’s midnight shift, the Township’s car impound lot, and the Communications

Bureau. Vaticano received no reduction in rank or pay while on these assignments.

Furthermore, the record indicates that there were legitimate, nondiscriminatory reasons

for Vaticano’s placement. In fact, Vaticano embraced several of the assignments at the

time.

        Supervisors of the midnight shift had permitted inappropriate behavior and Collier

believed that a command presence was necessary to ensure better performance. Vaticano

conceded that it would be appropriate for a member of the command staff to work the

midnight shift, although “not a Deputy Chief of Police.” The Communications Bureau

also required the presence of a high-ranking officer because it had committed a number of

errors, including sending radio cars to incorrect addresses. When Bryan had first

discussed the assignment with Vaticano, he responded that it was “not a problem” and

that he would “crack the whip down there.” Vaticano only protested when he realized it

                                            11
would necessitate moving his office closer to the Communications Bureau, which was

located in the basement. Vaticano was sent to gather information about the Newark

Police Department’s COMPSTAT program because Newark’s point person was, like

Vaticano, a Deputy Chief. He indicated the contacts he made in Newark were “very

precious” and that the assignment “was a positive experience.” Finally, the Township’s

impound lot was another area that had been neglected for some time and required

significant improvements. The record is devoid of evidence to suggest that politics was a

“substantial or motivating factor” in any of these assignments.

       Finally, Vaticano contends that Appellants retaliated against him by denying him

pay increases and other benefits that caused him to receive less pay than officers of

comparable rank. The difference in salary between Vaticano and Bryan was not

specifically addressed by the District Court. Our review of the record indicates that when

Bryan became Deputy Chief, he was paid $160,000 while Vaticano’s annual salary, which

had been set in 2005 upon his appointment as Deputy Chief, remained $148,000. In

September 2008, the Township’s business administrator sent Vaticano a letter inviting

him to discuss his contract because it had “not been updated recently.” Upon advice of

counsel, Vaticano declined the offer. Because Vaticano abstained from a negotiation that

could have raised his salary to a level comparable with Bryan’s salary, we cannot hold

that the discrepancy is indicative of political discrimination.

       In political retaliation cases where we have found sufficient evidence to withstand

                                              12
a motion for summary judgment, there has been a much clearer causal link between

political affiliation and the complained of action than is present in this case. For example,

in Stephens v. Kerrigan, 122 F.3d 171 (3d Cir. 1997), we found summary judgment

improper where a lieutenant who had supported the mayor’s political opponent was listed

at the top of a police department promotions list, yet was denied promotion based on the

mayor’s “inconsisten[t]” and arguably “pretextual” justifications. Id. at 182. Essential to

our determination was the fact that “[the mayor] has never claimed that the individuals at

the top of any of the lists are unqualified for the positions, nor is there any evidence in the

record that would indicate that the officers who were top ranked on the lists were

undeserving.” Id. at 183; see also Galli, 490 F.3d at 269 (after plaintiff’s termination,

official told her the office was “letting Republicans go”). That stands in stark contrast to

this case, which includes a multitude of unrefuted, performance-based justifications

Appellees have offered for why Bryan was chosen over Vaticano.

       In sum, because Vaticano has failed to demonstrate that his political support for

Choi’s rival was a “substantial or motivating factor” behind the alleged retaliatory

actions, summary judgment was proper.

                                              C

       Vaticano also alleges that he was retaliated against for providing a certification in

support of a separate court action against Choi and the Township. Similar to a claim

based on political discrimination, to establish a First Amendment retaliation claim, a

                                              13
plaintiff must establish the necessary causal link by proving “either (1) an unusually

suggestive temporal proximity between the protected activity and the allegedly retaliatory

action, or (2) a pattern of antagonism coupled with timing to establish a causal link.”

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). In the

absence of these elements, we have held that evidence of causation may be “gleaned from

the record as a whole.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir.

2000). As the District Court rightly noted, however, Vaticano failed even to provide

evidence indicating that Appellees were aware that he filed a certification in the Wheeler

action in the first place. Given this failure, he cannot show the necessary causal link

between his certification and the allegedly retaliatory conduct. Thus, summary judgment

was proper.

                                             III

       For the foregoing reasons, we will affirm the District Court’s summary judgment.




                                             14
