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


2-14-2007

Mosca v. Cole
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4350




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                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 05-4350


                MICHAEL R. MOSCA,

                                     Appellant

                         v.

AVIS COLE; BILLIE MOORE; LORENZO LANGFORD;
 BENJAMIN R. FITZGERALD; CITY OF ATLANTIC
         CITY; JOHN DOES 1-10, Jointly,
           Severally and in the Alternative



     On Appeal from the United States District Court
              for the District of New Jersey
             District Court No. 03-cv-00168
       District Judge: Honorable Joseph E. Irenas


       Submitted under Third Circuit LAR 34.1 (a)
                  September 26, 2006


Before: RENDELL, CHAGARES, and ROTH, Circuit Judges

               (Filed: February 14, 2007)




                     OPINION
ROTH, Circuit Judge:

       Michael Mosca sued his former employer, the City of Atlantic City, its Mayor, and

other individuals for racial discrimination and other violations of federal and state law. The

District Court granted partial judgment against Mosca on his federal claims and declined to

exercise supplemental jurisdiction on the state claims. For the reasons set forth below, we

will affirm the judgment of the District Court.

I. Background and Procedural History

       Because the parties are familiar with the facts and procedural posture, we will provide

only a brief synopsis of the events leading up to this appeal.

       From 1992 to February 2002, Mosca, a Caucasian attorney, was employed under a

series of term contracts by the Municipal Prosecutor’s Office of the City of Atlantic City.

       In 1999-2000, while working as a prosecutor for the City, Mosca was involved in the

prosecution of the Reverend Al Sharpton for acts of civil disobedience. The prosecution

resulted in a ten-day sentence, of which Sharpton served only a few hours. Mosca claims

that two African-American Atlantic City councilmen, defendant Lorenzo Langford and non-

party Ernest Coursey, attempted to pressure him into dropping the case and apologizing for

the prosecution, but Mosca refused to do so.

       In November 2001, Langford was elected Mayor of Atlantic City and immediately

began to plan the replacement of certain at-will municipal employees with individuals of his

choice. In mid-December, he notified all four attorneys of the Municipal Prosecutor’s

Office, including Mosca, that they would be terminated on December 31, 2001 (the day

                                               2
before Langford’s swearing-in). Later, Mosca was told instead that his contract would not

be renewed when it expired in February 2002.

       Mosca spread the word that he wanted to continue working for the city, but nothing

materialized until April of 2002, when a long-time social acquaintance, Stephen Smoger,

took the position of City Solicitor. Smoger was short-staffed and believed Mosca’s

experience at the Municipal Prosecutor’s office made him a good candidate for a part-time

position as police liaison in the Solicitor’s office. He approached Langford at a social event

and proposed Mosca’s appointment. Langford agreed but made clear that the decision could

be reevaluated. Langford claims he considered Mosca’s appointment a temporary measure

and that he expected to hire a candidate of his choice later; Smoger recalls being told that he

should stress to Mosca that he served at Langford’s pleasure and would be reevaluated within

the year.

       According to Smoger, he then contacted Mosca and spoke to him about what he

considered a significant obstacle to his hiring, namely the rapidly spreading rumor that

Mosca had made a derogatory and possibly racist remark about Langford – reportedly that

Langford was a “bow-tie-wearing, bean-pie-eating Muslim.” Smoger recalls that Mosca

denied he had made the remark, pointing out that he was married to a minority.

       On May 13, 2002, Mosca, Smoger, and now-Deputy Mayor Coursey met in Smoger’s

office for Mosca’s interview. According to Smoger and Coursey, Coursey raised the issue

of the derogatory comment and Mosca denied making it. Mosca, in contrast, remembers

being asked only about his political ties to the previous city administration. Eventually,

                                              3
Coursey left the room, then returned and told Smoger he could hire Mosca. It is not clear

whether Coursey consulted Langford during his absence or whether Langford knew of the

rumor at this point.

       Mosca started part-time employment in the Solicitor’s Office two days later. His

termination and new hiring were processed as a transfer so he could keep his benefits. Mosca

was listed as an “Unclassified Employee” with no civil service protection; he understood that

he served at the pleasure of the mayor and was subject to termination without cause.

       Some time later, Langford apparently became interested in learning more about

Mosca’s alleged derogatory statement. Langford summoned Smoger, told him he had

completed his investigation of the Mosca matter, and instructed him to terminate Mosca’s

employment. Smoger did so on June 10, 2002. Subsequently, an African-American attorney,

Jackie Abdur Razzaq, was appointed to a full-time position in the Solicitor’s Office, with

duties different from the ones Mosca performed. Langford claims he had decided to

terminate Mosca mainly to open up a position for a Caucasian campaign worker who,

however, declined the appointment; he acknowledges that the rumor of the alleged statement

was also a factor in his decision.

       Mosca filed an action in state court against the City of Atlantic City, Langford,

Fitzgerald (Langford’s chief of staff), Avis Cole, Billie Moore, and ten “John Does.” The

action was removed to federal court, and Mosca filed an amended complaint alleging

violation of equal protection, under 42 U.S.C. §1983; violation of procedural due process,

under 42 U.S.C. § 1983; conspiracy, under 42 U.S.C. § 1983 and § 1985; racial

                                             4
discrimination, under 42 U.S.C. § 1981; violation of Mosca’s First Amendment rights; and

“refusing or neglecting to prevent” (i.e., failure to train) under 42 U.S.C. § 1983, and a

number of state law claims.

       Upon the defendants’ motion, the District Court granted summary judgment against

Mosca on all the federal law claims and declined to exercise supplemental jurisdiction over

the state claims. Mosca appealed.1

II. Jurisdiction and Standard of Review

       The District Court had jurisdiction over this case under 28 U.S.C. §1331, with

supplemental jurisdiction over Mosca’s claims based on state law. We have jurisdiction to

review the District Court’s grant of partial summary judgment under 28 U.S.C. § 1291.

       Our review of a grant of summary judgment is plenary. Gottshall v. Consol. Rail

Corp., 56 F.3d 530, 533 (3d Cir.1995). Summary judgment is only appropriate if there are

no genuine issues of material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c). In reviewing the District Court's grant of summary judgment, we view

the facts in a light most favorable to the non-moving party. Gottshall, 56 F.3d at 533.

However, to survive summary judgment, the non-moving party must present more than a

mere scintilla of evidence supporting its claims. See Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251 (1986).



   1
     Mosca presents no argument about the dismissal of the conspiracy count (Count XI);
thus, this opinion discusses only the claims of racial discrimination, procedural due
process, equal protection, and failure to train.

                                             5
III. Analysis

        On appeal, Mosca argues the District Court erred in finding he had not presented

sufficient evidence to survive summary judgment on (1) a prima facie case of employment

discrimination on the basis of race, (2) a violation of his First Amendment rights, (3) a prima

facie case of denial of equal protection, and (4) failure to train in violation of 42 U.S.C. §

1983.

        A. Employment Discrimination

        We apply a modified version of the familiar McDonnell Douglas burden-shifting

analysis to claims of reverse discrimination in employment. Iadimarco v. Runyon, 190 F.3d

151, 158 (3d Cir. 1999); see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Under this analysis, the plaintiff must first establish a prima facie case of discrimination by

presenting “sufficient evidence to allow a fact finder to conclude that the employer is treating

some people less favorably than others based on a trait that is protected under Title VII.”

Iadimarco, 190 F.3d at 161. Once the plaintiff makes this showing, the burden shifts to the

employer to articulate some legitimate, non-discriminatory reason for its adverse action. See

id. at 157. If the employer meets its burden of production by offering some evidence of a

legitimate, non-discriminatory reason, the plaintiff can survive summary judgment by

showing that the stated reason was a pretext. In order to show pretext, the plaintiff must

point to “some evidence, direct or circumstantial, from which a fact finder could reasonably

either (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or determinative cause of the

                                               6
employer’s action.” Id. at 166 (emphasis in original; internal citation and quotation marks

omitted).

       Mosca contends that he has made out a prima facie case of reverse racial

discrimination because he was qualified for his position in the City Solicitor’s Office, he

suffered an adverse employment action by being terminated, and there was evidence from

which a factfinder could believe that Mosca was treated differently because of his race,

namely, an African American attorney (Razzaq) was hired to replace him even though she

was less qualified and Mosca was terminated without a formal investigation.

       Although there is very little evidence in the record that Razzaq interviewed for

Mosca’s position or in fact replaced Mosca, the District Court assumed for purposes of

deciding the motion for summary judgment that she did. We will do the same.

       Just as “the race of the selecting officials is not a sufficient circumstance to establish

a prima facie case of discrimination by itself,” Iadimarco, 190 F.3d at 156, the fact that a

plaintiff’s replacement is of a different race, without more, is not enough. Although Smoger,

Mosca’s Caucasian superior and long-time social acquaintance, believed Mosca to be a

stronger addition to the office than Razzaq, the record contains no evidence that Razzaq was

objectively less qualified than Mosca for a position in the Solicitor’s Office, particularly in

a situation where one of the required qualifications was enjoying the Mayor’s trust. Mosca’s

own theory is that “Razzaq was not a mere African-American who happened upon a job in

. . . Atlantic City, but rather, was an African-American with unquestionable [social] ties to

Defendant Moore, who was alleged to have defamed Mosca.” Under Mosca’s own scenario,

                                               7
Billie Moore and Avis Cole, two African-American attorneys, started a false rumor about

Mosca to favor a friend.       However, even if this were true, Mosca’s employment

discrimination claim would still fail.

       Mosca also fails in his contention that the absence of a formal investigation into the

alleged rumor shows his employer’s tendency to treat Caucasians less well than others.

Mosca grounds his allegation of discriminatory treatment on the fact that three city

employees, two Caucasians and one African-American, had earlier been afforded more

formal investigations. In the case of the two Caucasians, they were accused of harassment

of their subordinate administrative staff; the African-American employee had been accused

of calling a co-worker an “old lady.” However, Mosca’s alleged comment – a remark

disrespectful to a superior, made outside the workplace to witnesses who were not, at the

time, employed by the City – is not equivalent to the allegations of sexual harassment and

other discrimination that he claims underwent formal investigations.

       Even if Mosca could establish a prima facie case, the City has proffered legitimate,

non-discriminatory reasons for his discharge, Langford’s desire to create a position for a

Caucasian campaign worker and Mosca’s alleged derogatory comment. To defeat summary

judgment, Mosca would have to point to some evidence from which a fact finder could

reasonably either disbelieve the employer’s articulated legitimate reasons, or believe that an

invidious discriminatory reason was more likely than not a motivating or determinative cause

of the employer’s action. Iadimarco, 190 F.3d at 165-66.

       Mosca attempts to prove pretext by arguing that he did not make the alleged remark,

                                              8
but this is immaterial. The question is whether the Mayor believed Mosca had made it.

Mosca can point to nothing in the record that suggests otherwise. See Abramson v. William

Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001) (“it is not enough for a plaintiff to

show that the employer's decision was wrong or mistaken, because the issue is whether the

employer acted with discriminatory animus”). Mosca also does not attempt to rebut the

City’s contention that Langford intended to open a position for a campaign worker, who

eventually declined the offer. There is no evidence that Mosca’s replacement was motivated

by anything other than Langford’s desire to surround himself with people he trusted.

        B. Constitutional Violations Under 42 U.S.C. § 1983

        “To establish a claim under 42 U.S.C. § 1983, [a plaintiff] must demonstrate a

violation of a right secured by the Constitution and the laws of the United States [and] that

the alleged deprivation was committed by a person acting under color of state law.” Mark v.

Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). For purposes of the motion for

summary judgment, Langford and Fitzgerald do not dispute that they are persons acting

under color of state law. The issue, then, is whether Mosca can establish that there is a

genuine issue of fact as to whether they violated his constitutional rights. He cannot.

           1. Procedural Due Process

        Mosca contends that the City deprived him of a liberty interest without due process

of law in violation of the Fourteenth Amendment of the Constitution of the United States.2



   2
       Mosca no longer argues that he had a property interest in his at-will employment.

                                              9
He relies on our opinion in Anderson v. City of Philadelphia, 845 F.2d 1216, (3d Cir. 1988).

In Anderson, we wrote that

       an employment action implicates a fourteenth amendment liberty interest only if it (1)
       is based on a charge against the individual that might seriously damage his standing
       and associations in the community[,] for example, by implying that he had been guilty
       of dishonesty, or immorality, or (2) imposes on him a stigma of other disability that
       forecloses his freedom to take advantage of other employment opportunities. We
       have also held that to state a valid claim of a protected liberty interest, a plaintiff must
       plead that the allegedly stigmatizing information was ‘published’ or otherwise
       disseminated by his government employer to the public.

Id. at 1221-22 (citations, quotation marks, and alterations omitted). See also Bishop v. Wood,

426 U.S. 341, 348 (1976) (the discharge of a public employee whose position is terminable

at the will of the employer does not violate the employee’s liberty interests when there is no

public disclosure of the reasons for the discharge).

       Mosca contends Langford, Fitzgerald, and the City deprived him of the liberty interest

described in Anderson by disseminating the information that he was terminated for making

a version of the alleged comment that included the word “nigger.” However, there is no

evidence that Langford or Fitzgerald told anyone that Mosca was terminated for making the

comment in any form, let alone one that apparently had not reached their ears at all. In fact,

Mosca himself told a number of people about the alleged comment and stated to potential

employers and eventually a newspaper that he believed it was the reason for his termination.

Because there is no issue of fact as to whether Langford, Fitzgerald, or the City “published”

the alleged remark, summary judgment was appropriate as to Mosca’s due process claim.




                                               10
           2. Equal Protection

       Mosca contends he was denied the benefit of the equal protection of the laws when

he was “singled out for selective treatment” by being denied a formal investigation into the

allegation that he had made a derogatory remark about the incoming Mayor.

       “The Equal Protection Clause of the Fourteenth Amendment commands that no State

shall ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is

essentially a direction that all persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Ctr, 473 U.S. 432, 439 (1985). Mosca’s theory appears to be

that regulations requiring the investigation of allegations of harassment or discrimination

were selectively not applied to him.3 He does not allege he is a member of a suspect class,

but rather invokes the“class of one” theory announced in Village of Willowbrook v. Olech,

528 U.S. 562 (2000) (per curiam).4 Under that theory, a plaintiff states a claim for violation

of the Equal Protection clause when he “alleges that he has been intentionally treated

differently from others similarly situated and that there is no rational basis for the difference

in treatment.” Id. at 564. As this Court has recently noted, “at the very least, to state a claim

under that theory, a plaintiff must allege 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 difference in treatment.” Hill v. Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

   3
     This is essentially a restatement in equal protection terms of Mosca’s claim of denial
of procedural due process.
   4
    Mosca’s own references are to Levenstein v. Salafsky, 164 F.3d 345, 352 (7th Cir.
1998).

                                               11
       Mosca’s claim fails because he cannot identify a similarly situated individual who was

treated differently. He points most forcefully to one Caucasian attorney who “was City

Solicitor after Langford was elected and . . . received a thorough and complete investigation

into allegations of sexual harassment made against him.” Mosca was not accused of sexual

harassment by a coworker; he was alleged to have made a derogatory comment about the

incoming Mayor, outside the workplace, to individuals who were not at the time employed

by the City. As the District Court correctly noted, “this hardly translates into [a] charge of

workplace discrimination requiring some kind of fact-finding investigation.” Mosca v. Cole,

384 F. Supp. 2d 757, 769 (D.N.J. 2005).5

          3. First Amendment Right to Free Speech

       Mosca argues the City, Langford and Fitzgerald retaliated against him for his 1999-

2000 prosecution of Sharpton, which they opposed.

       In order to establish that an employer retaliated against him for exercising his First

Amendment right to free speech, a plaintiff must prove (1) that his speech was protected, (2)

that he suffered an adverse employment action, and (3) that his protected speech was a

substantial or motivating factor for the adverse employment action. Swineford v. Snyder

County Pennsylvania, 15 F.3d 1258, 1270 (3d Cir. 1994). If the plaintiff meets this burden,

the employer can still defeat the claim by establishing that it would have taken the same

action even absent the plaintiff’s exercise of free speech. Id.


   5
    Langford, at whose pleasure Mosca served when he was terminated, appears to have
taken whatever steps he believed sufficient to satisfy himself of the truth of the rumor.

                                             12
       Mosca can establish the first two elements of this claim but cannot produce sufficient

evidence that his exercise of free speech was a cause of his termination. First of all, the

prosecution of Sharpton occurred before he was hired into the Solicitor’s office; he fails to

explain why those who wanted to punish him for prosecuting Sharpton would not simply

have refused to hire him to begin with. Second, there is no evidence that his involvement

with the Sharpton prosecution played any role in his termination. Summary judgment was

properly granted on this claim.

          4. Failure To Train

       Mosca argues the District Court erred in granting summary judgment on his Monell

claim against the City based on its alleged failure to train Langford and Fitzgerald with

regard to its anti-discrimination policies, thus allowing the alleged constitutional violations.

See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) (holding that there is no respondeat

superior liability under § 1983, but municipalities can be held liable if officials act pursuant

to policy or custom); Berg v. County of Allegheny, 219 F.3d 361 (3d Cir. 2000) (recognizing

that a municipality’s failure to train that results in a constitutional violation can establish a

Monell claim).

       Since Mosca has not established any constitutional violations, his Monell claim fails

as a matter of course. The District Court committed no error.

IV. Conclusion

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                               13
