                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-23-2008

Walsifer v. Belmar
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4752




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                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                        No. 06-4752
                       ____________

                    MARK WALSIFER,

                                        Appellant,


                              v.

                 BOROUGH OF BELMAR;
     BOROUGH OF BELMAR POLICE DEPARTMENT;
         RICHARD LYNCH, individually and in his
           official capacity as Chief of Police and
      Borough Administrator for the Borough of Belmar,


                       ____________

         On Appeal from United States District Court
                 for the District of New Jersey
                 District Court No.: 04-cv-5393
      District Judge: Honorable Dickinson R. Debevoise
                          ____________

         Submitted Under Third Circuit LAR 34.1(a)
                     January 10, 2008

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

                 (Filed: January 23, 2008)




                       ____________
                                OPINION OF THE COURT
                                     ____________


HARDIMAN, Circuit Judge.

       Plaintiff Mark Walsifer appeals from the District Court’s grant of summary

judgment on all claims related to the Borough of Belmar’s breach of a prior settlement

agreement and failure to promote him to police sergeant.

                                              I.

       Because we write for the parties, we repeat only the facts essential to our decision.

A patrol officer in the Belmar Police Department, Walsifer was also active in government

and politics, serving as a member of Belmar’s Board of Education and as an officer of

several Republican organizations. Belmar is heavily Democratic, and the Mayor,

members of the Borough Council, and Chief of Police were registered Democrats at all

times relevant hereto.

       In 2002 Walsifer filed suit against the Mayor, the Borough, the Police Department,

and former Chief of Police Richard Lynch, alleging discrimination and retaliation for his

Republican political activities. That litigation concluded with a stipulation of settlement

which provided that Walsifer’s past disciplinary record would be expunged and required

that the parties would submit any future disciplinary actions to a neutral arbitrator.

Despite the stipulation, Lynch failed to expunge Walsifer’s disciplinary record.

Moreover, Lynch’s successor as Chief of Police, Jack Hill, admitted that he had

considered Walsifer’s pre-stipulation disciplinary record when disciplining him.

                                              2
       In addition to these apparent breaches of the settlement agreement, Hill pursued a

number of adverse actions that Walsifer alleges were motivated by his Republican

affiliation and activities. For example, Hill accused Walsifer of encouraging a fellow

officer, Thomas Cox, to register to vote while on duty in the fall of 2002. Walsifer also

allegedly approached a convenience store clerk regarding voter registration. These

incidents prompted Hill to issue Walsifer a citation for politicking on duty and to suspend

him for ten days, although an arbitrator later reduced the punishment to counseling and a

written reprimand. In addition, Hill requested an opinion from the county prosecutor as

to whether a police officer who served on Belmar’s Board of Education had a conflict of

interest. Although Hill asserted that such dual service was “detrimental to the good order

and conduct of the Police Department and therefore should be restricted,” he did not

disclose that he was President of the local Democratic Club.

       In early 2003 it became known that a sergeant’s position soon would be available

in the Belmar Police Department. New Jersey’s civil service statute permitted the

Department to promote from the top three ranked candidates. Pursuant to a written

examination given the previous fall, Walsifer was ranked second, Walsifer’s brother was

third and Cox was fourth on the list.

       In July 2003, Cox played golf with Lynch, Hill, and a retired police captain.

According to Walsifer, the New Jersey Department of Personnel regraded the sergeant’s

examination several days after the round of golf, which resulted in Cox being tied for

third with Walsifer’s brother. Also on the same day as the round of golf, Hill allegedly

                                             3
observed juveniles committing minor violations during Walsifer’s shift and was

displeased with the lack of police units on the scene. Hill sent Walsifer a letter

suggesting that he was not properly supervising his shift, and followed with a second

letter criticizing Walsifer for being unavailable to oversee a domestic disturbance call. At

least one of these letters was placed in Walsifer’s personnel file, but no formal

investigation was initiated. Hill was aware of Walsifer’s second-place ranking when he

wrote these letters.

       In the fall of 2003, Hill and two Borough councilmen, both Democrats,

interviewed the four officers eligible for promotion to sergeant. Hill drafted a list of

questions prior to the interviews, which were asked of all candidates. Hill also informed

the councilmen of the disciplinary record of each candidate. Both councilmen testified

that Walsifer interviewed poorly and that Cox — who had a college degree — was

clearly the superior candidate. According to Hill, Walsifer’s disciplinary record, which

included pre-stipulation actions, was also a weakness. Upon Hill’s recommendation to

the Mayor and Borough Council, Cox was promoted to sergeant in November 2003.

       In April 2004 a sergeant’s position opened up in Walsifer’s squad. Hill ordered

Walsifer to serve as the squad’s Officer in Charge (OIC) but did not move to fill the

sergeant vacancy, which would have been filled from the list on which Walsifer still

ranked second.

                                             II.

       The District Court granted summary judgment to Defendants on Walsifer’s First

                                              4
Amendment retaliation claim, finding that Walsifer had failed to produce evidence that

his prior lawsuit or Republican affiliation was a substantial factor in any purportedly

retaliatory action. The District Court also dismissed Walsifer’s equal protection claim,

pointing out that Walsifer had received the identical punishment, i.e., a written reprimand,

as another officer also charged with “politicking” while on duty. The District Court

added that Walsifer had submitted no case law to support his novel argument that a

breach of a settlement agreement could constitute a violation of 42 U.S.C. § 1983, that

there was no basis for holding the Borough or Police Department liable under Monell v.

New York City Department of Social Services, 436 U.S. 658 (1978), and that there was no

evidence that Lynch had been personally involved in any of the retaliatory conduct.

Finally, the District Court declined to exercise supplemental jurisdiction and dismissed

Walsifer’s state law claims without prejudice.

       Walsifer insists that the Borough failed to promote him in violation of his

constitutional rights to equal protection and freedom of speech. The decision to promote

someone else rather than Walsifer was made by the Borough Council, and he does not

dispute that the Council had the “final authority to establish municipal policy with respect

to” the promotion of employees of the police department. Bielevicz v. Dubinon, 915 F.2d

845, 850 (3d Cir. 1990). It necessarily follows that the Borough can be liable only for

conduct of the Council. Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir.




                                             5
1990).1 Walsifer’s sole complaint with respect to the Council, however, is that it acted on

the recommendation of Hill, a recommendation that Walsifer maintains was motivated by

discriminatory and retaliatory animus. That, without more, is an inadequate basis for the

imposition of municipal liability. Jett v. Dallas Independent School District, 798 F.2d

748, 759-60 (5th Cir. 1986). Such liability may be imposed only if the Council’s decision

was improperly motivated. Id. Accordingly, to avoid summary judgment, Walsifer had

the burden of coming forward with evidence from which a trier of fact could conclude

that the Council knew or believed that Hall’s recommendation was motivated by

discriminatory or retaliatory animus. Id.; St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988) (“If the authorized policy makers approve a subordinate’s decision and the basis

for it, their ratification would be chargeable to the municipality”) (emphasis supplied).

The summary judgment record contains no evidence from which a trier of fact could so

conclude.

       Turning to the summary judgment in favor of Defendant Lynch, it is well

established that he must have had “personal involvement in the alleged wrongdoing” in

order to be liable under § 1983 because individual liability “cannot be predicated solely

on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005). Although Lynch was Belmar Chief of Police when Hill’s alleged retaliation



   1
    “As in past cases, we treat the municipality and its police department as a single entity
for purposes of section 1983 liability.” Bonenberger v. Plymouth Twp., 132 F.3d 20, 25
n.4 (3d Cir. 1997).

                                             6
occurred and played a round of golf with Hill shortly before the July 2003 disciplinary

actions, these facts fall well short of showing that Lynch personally participated,

condoned, or even knew of Hill’s allegedly improper conduct.

        Even if Lynch had participated in or condoned Hill’s conduct, Walsifer has failed

to demonstrate that Hill’s actions were substantially motivated by Walsifer’s Republican

affiliation. Walsifer’s focus on the numerous adverse actions taken by the Defendants,

and his manifest disagreement with the merits of those decisions, misses the thrust of the

District Court’s holding: there is no evidence, other than the fact that the decisionmakers

happened to be Democrats, that Walsifer’s Republican affiliation motivated any of these

actions. He has also failed to undermine Defendants’ assertion that Cox was promoted

because he had a better interview and was more educated. Walsifer’s argument that

Defendants’ asserted justification is called into question by the purported inability of the

councilmen to “explain with specificity” how Cox interviewed better than Walsifer, or

their failure to ask specific interview questions about Cox’s educational background, is

unpersuasive.

       Similarly unavailing is Walsifer’s argument that his equal protection claim is

established by Hill’s failure to also discipline Cox for politicking, and his attempt to

suspend Walsifer where he had previously issued only a reprimand to a different officer

for the same offense. To prevail on his equal protection claim, Walsifer must

demonstrate that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for the

                                              7
difference in treatment. Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

We agree with the District Court that Walsifer and Cox were not similarly situated, as

Cox made no effort to encourage other individuals to register to vote and responded only

to Walsifer’s active solicitation. We also agree that the arbitrator’s reduction of

Walsifer’s punishment to counseling and a written reprimand, the identical punishment

received by another officer who previously engaged in politicking, is fatal to his equal

protection claim.

       Finally, we agree with the District Court that Defendants’ apparent violation of the

stipulation of settlement cannot serve as the basis of a § 1983 claim, and find that the

District Court did not abuse its discretion in declining supplemental jurisdiction under 28

U.S.C. § 1367(c)(3). Lazorko v. Penn. Hosp., 237 F.3d 242, 247 (3d Cir. 2000).

                                             IV.

       In sum, although Walsifer may have proferred facts sufficient to support a state

law claim for breach of contract, we find no error in the District Court’s grant of summary

judgment on his federal claims. Accordingly, we will affirm.




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