                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 11-2224
                                    _____________

                                   GABRIEL BUSA,
                                               Appellant

                                            v.

            TOWNSHIP OF GLOUCESTER; MAYOR AND COUNCIL
            OF THE TOWNSHIP OF GLOUCESTER; DAVID MAYER,
                           _______________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                               (D.C. No. 10-cv-01396)
                        District Judge: Hon. Joseph E. Irenas
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 13, 2012

       Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.

                                (Filed: January 23, 2012)
                                    _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Gabriel Busa appeals the order of the United States District Court for the District

of New Jersey, granting summary judgment to the Township of Gloucester (the

“Township”), the Mayor and Council of the Township, and David Mayer (collectively,
“Appellees”) on Busa’s 42 U.S.C. § 1983 claim. For the following reasons, we will

affirm.

I.        Background 1

          A.    Factual History

          Busa was appointed the Director of Public Works for the Township in 1992, when

it was controlled by the Democratic Party. 2 Prior to 2006, Busa was an active member of

the Democratic Party. In 2006, Cindy Rau-Hatton, a Republican, was elected Mayor of

the Township and asked Busa to continue his service as the Director of Public Works.

          While serving under Rau-Hatton, Busa did not attend political functions or put

political signs on his lawn for either party. Consequently, members of the Township’s

Democratic Party were displeased with Busa’s lack of participation and cooperation in

Democratic events. In 2009, David Mayer, a Democrat, was elected to replace Rau-




          1
        Because we are reviewing a grant of summary judgment in Appellees’ favor, we
recount the facts in the light most favorable to the non-movant, Busa.
          2
         The Township has chosen to follow New Jersey’s Faulkner Act, which provides
for a Mayor-Council form of government under the Optional Municipal Charters Law.
See N.J. Stat. Ann. § 40:69A-1, et seq. Under that form of government, the mayor
appoints each department head, including the director of public works, with the advice
and consent of the township council. Id. § 40:69A-43(b). Pursuant to the Faulkner Act,
the Township’s Organizational Ordinance provides that “[t]he head of the Department of
Public Works shall be the Director of Public Works. He shall be appointed by the Mayor
with the advice and consent of [the township] Council until appointment and qualification
of a successor.” (App. at 5.)
                                               2
Hatton as Mayor of the Township. 3 On December 21, 2009, Busa was informed that he

would not be re-appointed as the Director of Public Works. 4

       B.       Procedural History

       On February 17, 2010, Busa filed a six count complaint in the District Court

alleging, in part, a violation of his First and Fourteenth Amendment rights under the U.S.

Constitution as a result of political discrimination. He claims that his termination was the

result of his refusal to participate in Democratic Party activities and of the Appellees’

perception of him as a member of either the Republican Party or a different faction of the

Democratic Party. Following discovery, Appellees moved for summary judgment on all

counts. The District Court granted Appellees’ motion. With respect to the political

discrimination count, the District Court determined that Busa’s claim failed as a matter of

law because he was employed in a position that required political affiliation and, as a

result, he could be terminated based on his political affiliation.




       3
            Mayer’s term was set to begin on January 1, 2010.
       4
            Mayer appointed Len Moffa, an active member of the Democratic Party, to that
position.

                                              3
II.    Discussion 5

       The sole issue on appeal is whether, as Busa contends, his constitutional rights

were violated because he was terminated on the basis that he did not politically support

the faction of the Democratic Party in power. In order to make a prima facie case of

political discrimination in violation of the First Amendment, Busa must show that (1) he

“was employed at a public agency in a position that does not require political affiliation,”

(2) he “was engaged in constitutionally protected conduct,” and (3) “this conduct was a

substantial or motivating factor in the government’s employment decision.” Galli v. N.J.

Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007).

       While the dismissal of public employees for political reasons may constitute an

impermissible infringement upon constitutional rights, an exception is often made for

employees holding policy-making positions, as such employees may properly be required

to support the policy initiatives of elected officials. See id. at 270-71 (“[T]he First

Amendment protects public employees … from politically motivated discharge … unless

the government can demonstrate that party affiliation is a proper requirement for the

position.”). The key factor in determining whether a position appropriately requires

political affiliation is whether the employee has “meaningful input into decisionmaking

concerning the nature and scope of a major [ ] program.” Id. at 271 (internal quotation

       5
         The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331
and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order
granting summary judgment is plenary. Curley v. Klem, 298 F.3d 271, 276 (3d Cir.
2002). “A grant of summary judgment is appropriate where the moving party has
established that there is no genuine dispute of material fact and ‘the moving party is
entitled to judgment as a matter of law.’” Hugh v. Butler Cnty. Family YMCA, 418 F.3d
265, 266 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
                                              4
marks and citation omitted). Other factors include whether the employee has non-

discretionary duties, participates in discussions and meetings, prepares budgets, has a

high salary, retains power over others, and can speak for policy makers. Id. According

to Busa, the District Court erred in granting summary judgment in favor of the Appellees

because there are disputed issues of material fact relating to whether he was employed in

a position that required political affiliation for the effective performance in his public

office.

          Under the test set forth in Galli, Busa “must first show that []he works in a

position that does not require political affiliation. This burden of proof [then] shifts to the

government … [to demonstrate that] political affiliation is central to the job itself.” 6 Id.

at 271. Viewing the record in the light most favorable to Busa, there is no genuine

dispute of material fact. It is clear that Busa was in a policy-making position for which

political affiliation is an appropriate requirement.

          Busa advances several arguments in support of his position that the Director of

Public Works does not require political affiliation. He argues that the State of New

Jersey has enacted legislation professionalizing the position of Director of Public Works

by requiring certain training and experience. See N.J. Stat. Ann. § 40A:9-154.5, et seq.

Those requirements include the maintenance of a valid license, as well as continuing


          6
         While the usual allocation of the burden of proof in employment discrimination
cases would place the burden solely on the plaintiff, with only the burden of production
shifting, Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000), in cases such as this
the allocation of burdens is modified to require the defendant to demonstrate an
overriding interest in encroaching on a constitutional right, Armour v. Cnty. of Beaver,
271 F.3d 417, 420 (3d Cir. 2001).
                                                5
education. Busa points out that the State has required the Director of Public Works to

obtain certification by having experience in public works management, completing a

course of study, and passing an examination. See id. § 40A:9-154.6b(b); id. § 40A:9-

154.6a(g); id. § 40A:9-154.6a(f). Busa also argues that the State has specifically created

a path by which Township Councils can make the Director of Public Works a tenured

position in order to “give recognition to the increasing demands for professional expertise

that these positions require and to remove the opportunity for capricious appointments

where the superintendent of public works has developed that expertise.” (App. at 77

(internal quotation marks omitted).)

       To meet their burden under Galli, Appellees argue that the position of Director of

Public Works is a policymaking position that wields a great deal of influence over the

Township’s public works decisionmaking. They point to the New Jersey Civil Service

Commission’s Job Specifications, which state that the Director of Public Works “plans,

organizes, and directs the programs and activities of a comprehensive public works

department.” (App. at 92.) The Director in the Township of Gloucester also “[d]evelops,

administers, and implements a variety of public works programs” (id.), supervises

approximately 85,000 employees (Busa Dep. Tr. 48:10-11, App. at 123), is responsible

for the divisions of streets, sanitation, and parks and playgrounds, and submits budget

requests to the Mayor, see N.J. Stat. Ann. § 40:69A-45. Moreover, the Director of Public

Works reports directly to the Mayor and acts as an advisor to the Mayor on issues of

policy with respect to the Township’s public works. Finally, Appellees note that the

Director of Public Works is not a tenured position in the Township.

                                             6
       Busa’s arguments notwithstanding, the Appellees have demonstrated that the

Director of Public Works is a policy-making position where political affiliation is an

appropriate requirement because it involves discretion and decisionmaking with respect

to policy issues. Indeed, “the Director of Public Works plays a meaningful role in

decisionmaking for what is a major Township program. The Director has discretionary

duties and acts as an advisor to the mayor on public works policy.” (App. at 17.) That

the State has enacted legislation to professionalize the position of Director of Public

Works does not change the analysis. Busa downplays the importance of the duties he

undertook while Director of Public Works, but it is clear that the position is one which, as

the District Court correctly noted, involves a great deal of discretion regarding matters of

public policy. 7 We thus agree with the District Court that the record does not reveal a

genuine issue of material fact that would preclude summary judgment. See Fed. R. Civ.

P. 56(a).


       7
         While Busa is correct that some townships have opted to make the director of
public works a tenured position, that has not happened in the Township of Gloucester.
Busa’s reliance on McKeever v. Township of Washington, 236 F. Supp. 2d 400 (D.N.J.
2002), where a former director of public works was able to demonstrate that the position
did not require political affiliation in his township, is misplaced because the Township of
Washington chose to pass a tenure ordinance for their director of public works.
McKeever rightly emphasized that “[e]ach decision is fact specific, based on the
individual case” when examining a claim of political discrimination. Id. at 410.
       Busa also places a great deal of emphasis on Zold v. Township of Mantua, 935
F.2d 633 (3d Cir. 1991), where we held that the deputy municipal clerk position in the
Township of Mantua did not appropriately require political affiliation. While the deputy
municipal clerk position in Zold was not tenured, the role of the deputy municipal clerk
was to fill in for the municipal clerk, a tenured position in the township. Id. at 639. The
instant case is quite different, as the Director of Public Works heads a large department,
has a great deal of budgetary responsibility and discretion, engages in decisionmaking
affecting public policy, and does not fill in for tenured officeholders in their absence.
                                             7
III.   Conclusion

       For the foregoing reasons, we will affirm the judgment of the District Court.




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