                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2006

O'Connor v. Newark
Precedential or Non-Precedential: Precedential

Docket No. 05-2237




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                                       PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                  No. 05-2237


            JAMES D. O'CONNOR;
          JEANNETTE C. O'CONNOR,

                        Appellants

                         v.

            CITY OF NEWARK;
  CITY OF NEWARK POLICE DEPARTMENT


 On Appeal from the United States District Court
            for the District of New Jersey
               (D.C. No. 02-cv-04318)
District Judge: Honorable Joseph A. Greenaway, Jr.


   Submitted Under Third Circuit LAR 34.1(a)
              February 13, 2006

     Before: SCIRICA, Chief Judge, BARRY
          and FISHER, Circuit Judges.

             (Filed: March 13, 2006)
Charles J. Sciarra
17 Academy Street, Suite 701
Newark, NJ 07102
      Attorney for Appellants

Susan S. Singer
920 Broad Street, Suite 316
Newark, NJ 07102
      Attorney for Appellee, City of Newark



                 OPINION OF THE COURT


FISHER, Circuit Judge.

        In this case we are asked to review the District Court’s
grant of summary judgment to Newark, New Jersey, and its
police department, on several claims arising from alleged
retaliation against a police officer based on his assistance with
a federal corruption probe. We will affirm.

                                I.

       James O’Connor was a lieutenant in the Newark Police
Department. He provided information to investigators in a
federal corruption probe targeting the former Newark police
director William Celester.      Celester was convicted of
embezzlement, and O’Connor alleges that, because of his



                                2
assistance in the investigation, he was subjected to retaliation on
the job.1

       O’Connor brought suit against the city and the
department under 42 U.S.C. § 1983, charging that they had
infringed his rights to substantive and procedural due process
(Count I) and to free expression (Count II). He also alleged that
the defendants violated his state-law whistleblower rights under
N.J.S.A. 34:19-1 (Count III), engaged in a conspiracy in
violation of 42 U.S.C. § 1985 (Count IV), failed to prevent that
conspiracy in violation of 42 U.S.C. § 1986 (Count V), libeled
and defamed him (Count VI),2 and violated a settlement
agreement stemming from an earlier lawsuit (Count VIII).



       1
        Specifically, O’Connor alleges that the department
denied him a promotion, failed to expunge his disciplinary
record, transferred him to a position under the command of a
superior officer who was hostile to him, provided him with
inadequate staff and resources, assigned him excessive work,
changed his work schedule, filed unwarranted disciplinary
complaints against him, failed to credit him with overtime,
awarded him a medal but failed to invite his family to the
ceremony, and failed to give sufficient commendations to his
unit. O’Connor also alleges that he was subjected to threats and
assaults by other officers.
       2
       The District Court’s order notes that the defamation
count, Count VI, was dismissed orally pursuant to Newark’s
motion for summary judgment. O’Connor does not raise that
count on appeal, so we do not address it here.

                                3
Finally, along with his wife, O’Connor brought a claim for loss
of consortium (Count VII).

        The District Court determined that O’Connor had failed
to present evidence supporting a causal connection between his
participation in the investigation and the alleged retaliatory acts,
and granted Newark’s motion for summary judgment on all
counts. We have jurisdiction over this appeal under 28 U.S.C.
§ 1291. Our review of an order granting summary judgment is
plenary. Bieregu v. Reno, 59 F.3d 1445, 1449 (3d Cir. 1995).
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c).

                                II.

       Actions brought under 42 U.S.C. § 1983 are governed by
the personal injury statute of limitations of the state in which the
cause of action accrued. Cito v. Bridgewater Twp. Police Dep’t,
892 F.2d 23, 25 (3d Cir. 1989). For section 1983 actions in New
Jersey, “that statute is N.J.S.A. 2A:14-2, which provides that an
action for injury to the person caused by wrongful act, neglect,
or default, must be convened within two years of accrual of the
cause of action.” Brown v. Foley, 810 F.2d 55, 56 (3d Cir.
1987). The limitations period for O’Connor’s claims is
therefore two years.

     With minor exceptions, all of the events described in
O’Connor’s complaint occurred more than two years before

                                 4
filing. O’Connor argues, however, that the statute of limitations
should be deemed equitably tolled because his complaint states
a hostile workplace environment claim involving a “continuing
violation.” O’Connor’s argument hinges on his hostile
workplace environment theory, and requires aggregation of acts
occurring outside the limitations period with those occurring
inside the period. He does not contend that there are any acts
occurring inside the period which, considered in themselves, are
sufficient to support liability. Nor has our independent
examination of the record revealed any such acts. Because the
events that occurred within two years of filing are not, on their
own, sufficient to support liability, the dispositive issue before
us is whether claims of the sort raised by O’Connor may survive
time-barring by inclusion in a continuing violations complaint.

        This issue was resolved by the Supreme Court in
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002). Morgan established a bright-line distinction between
discrete acts, which are individually actionable, and acts which
are not individually actionable but may be aggregated to make
out a hostile work environment claim. The former must be
raised within the applicable limitations period or they will not
support a lawsuit. Id. at 113 (“[D]iscrete discriminatory acts are
not actionable if time barred, even when they are related to acts
alleged in timely filed charges. Each discriminatory act starts a
new clock for filing charges alleging that act.”). The latter can
occur at any time so long as they are linked in a pattern of
actions which continues into the applicable limitations period.
Id. at 105 (“[C]onsideration of the entire scope of a hostile work
environment claim, including behavior alleged outside the
statutory time period, is permissible for purposes of assessing

                                5
liability, so long as any act contributing to that hostile
environment takes place within the statutory time period.”).

        Morgan provides fairly precise guidance as to what sorts
of acts are “discrete.” The Court first observes that “[d]iscrete
acts such as termination, failure to promote, denial of transfer,
or refusal to hire are easy to identify,” id. at 114, then lists the
discrete acts in the case before it: “Morgan contends that he was
wrongfully suspended . . . charged with a violation of [a
workplace rule], denied training, and falsely accused of
threatening a manager.” Id. (emphasis added).

       We can thus take from Morgan the following non-
exhaustive list of discrete acts for which the limitations period
runs from the act: termination, failure to promote, denial of
transfer, refusal to hire, wrongful suspension, wrongful
discipline, denial of training, wrongful accusation.

        Applying the Morgan distinction to O’Connor’s
allegations listed above, supra note 1, it is apparent that nearly
all of them fall into the category of discrete acts. Accordingly,
under Morgan, they cannot be aggregated under a continuing
violations theory.

        Furthermore, the Morgan rule that individually actionable
allegations cannot be aggregated is of particular import in the
context of First Amendment retaliation claims.               First
Amendment retaliation claims are always individually
actionable, even when relatively minor. Even “an act of
retaliation as trivial as failing to hold a birthday party for a
public employee,” if “intended to punish her for exercising her

                                 6
free speech rights,” may be actionable if under the
circumstances it would be sufficient to “deter a person of
ordinary firmness” from exercising his or her First Amendment
rights. Suppan v. Dadonna, 203 F.3d 228, 234-35 (3d Cir.
2000) (citing Rutan v. Republican Party, 497 U.S. 62, 76 n.8
(1990)). A First Amendment retaliation claim will lie for any
individual act which meets this “deterrence threshold,” and that
threshold is very low: as we said in Suppan, a cause of action
is supplied by all but truly de minimis violations. Id.

       In sum, if Morgan applies to this case, then O’Connor’s
claims are time-barred.3 O’Connor argues that because Morgan
was a Title VII case, it should not be read to govern claims
arising under other provisions of federal law. We must therefore
decide whether to join several of our sister circuits in applying
Morgan to section 1983 cases not brought under Title VII.4

                              III.

       3
       If Morgan does not apply, then some or all of
O’Connor’s claims might still be time-barred, but we would not
have recourse to Morgan’s bright-line categorical distinction in
making that determination.
       4
        It does not appear that we have yet stated expressly in a
published opinion that the Morgan distinction applies in non-
Title VII suits involving adverse employment actions.
However, we have applied it, in unpublished decisions, to ADA
actions. See Zdziech v. DaimlerChrysler Corp., 114 Fed. Appx.
469, 471 (3d Cir. 2004); Shenkan v. Potter, 71 Fed. Appx. 893,
895 (3d Cir. 2003).

                               7
        We find persuasive the reasoning of our sister circuits
that the distinction between “continuing violations” and
“discrete acts” is not an artifact of Title VII, but is rather a
generic feature of federal employment law. Thus, in whatever
statutory context the distinction may arise, Morgan will control.
So far, the Courts of Appeals for the Sixth, Seventh, and Ninth
Circuits have applied Morgan to § 1983 cases. See Sharpe v.
Cureton, 319 F.3d 259, 267 (6th Cir. 2003); Hildebrandt v. Ill.
Dep’t of Natural Res., 347 F.3d 1014, 1036 (7th Cir. 2003); RK
Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1061 (9th Cir.
2002). The Sixth Circuit explained that it could “find no
principled basis upon which to restrict Morgan to Title VII
claims.”5

        We agree. The principles at work in Morgan apply with
equal force to § 1983 claims. Morgan held simply that causes
of action that can be brought individually expire with the
applicable limitations period. By contrast, the “hostile
workplace environment” theory is designed explicitly to address
situations in which the plaintiff’s claim is based on the
cumulative effect of a thousand cuts, rather than on any

       5
        Several district courts have also recently applied Morgan
to section 1983 cases. See, e.g., Ruiz Casillas v. Camacho
Morales, No. 02-2640, 2004 U.S. Dist. LEXIS 28135, at *15
(D.P.R. 2004) (“[T]he continuing violation theory, which
originated from Title VII Civil Rights cases, has been widely
applied to Section 1983 cases within this Circuit.”); Turner v.
District of Columbia, 383 F. Supp. 2d 157, 168 (D.D.C. 2005)
(“The same analysis should be applied to discrimination claims
brought under § 1983.”).

                               8
particular action taken by the defendant. In such cases,
obviously the filing clock cannot begin running with the first
act, because at that point the plaintiff has no claim; nor can a
claim expire as to that first act, because the full course of
conduct is the actionable infringement. Morgan, 536 U.S. at
117-18. The Court did nothing more than to restate, in the
employment discrimination context, the common-sense
proposition that an applicable statute of limitations begins to run
at the time the claim accrues, and that time-barred claims cannot
be resurrected by being aggregated and labeled continuing
violations.6


       6
         We deem it worthy of note that while the Morgan Court
split 5-4 on other issues, it was unanimous on this point. See
Morgan, 536 U.S. at 123 (O’Connor, J., concurring in part and
dissenting in part, joined in relevant part by Rehnquist, C.J., and
Scalia, Kennedy and Breyer, J.J.) (“I agree that Title VII suits
based on discrete discriminatory acts are time barred when the
plaintiff fails to file . . . within the [limitations period]
designated in the statute.”). Indeed, the dissenters would have
gone even further than the majority and held that cumulative
hostile-workplace-environment suits were time-barred as well.
Id. (“I dissent from the remainder of the Court’s opinion,
however, because I believe a similar restriction applies to all
types of Title VII suits, including those based on a claim that a
plaintiff has been subjected to a hostile work environment.”).
Thus there is not a single vote on the Court for the proposition
that individually actionable discrete acts may support suit
outside the limitations period if they are aggregated and labeled
as a hostile environment claim.

                                9
        If the allegations in O’Connor’s complaint are discrete,
then each gave rise to a cause of action at the time it occurred.
That cause of action persisted for two years and then lapsed.
O’Connor claims that the department engaged in severe
retaliation against him to punish him for the exercise of his First
Amendment rights. Under Morgan, the law required him to sue
within two years of the occurrence of these incidents. He did
not sue in time, and he is now barred from doing so.
Accordingly, we will affirm the District Court’s order with
respect to Counts I, II, IV, and V.7

                               IV.

       With respect to Count VIII, the alleged violation of a
prior settlement agreement between the parties, we can find no
hint in the record of any agreement to expunge O’Connor’s
disciplinary record. The documents before us are a February 5,
1997 resolution of the Newark City Council authorizing
payment to O’Connor of $500,000 to settle a lawsuit, and a
subsequent exchange of letters between O’Connor’s attorney
and an attorney for the city. Examination of these documents
reveals no basis for O’Connor’s claim.

      The City Council resolution memorializes the agreement
between O’Connor and the city that the $500,000 payment is

       7
        Counts IV and V allege violations of 42 U.S.C. §§ 1985
and 1986. These sections cover, respectively, conspiracies to
violate federal rights, and failures to prevent such violations by
those with the relevant knowledge and power to do so. Morgan
applies to these sections just as it does to section 1983.

                                10
made in consideration of O’Connor’s “agree[ment] to amicably
resolve and compromise [his] claims.” The resolution contains
no mention of O’Connor’s disciplinary record.

        O’Connor claims that the letters are evidence of an
unrecorded “verbal term of the settlement agreement” that
specified that his record would be expunged. The letters show
no such thing. The first letter is a request by O’Connor’s
attorney to have O’Connor’s record expunged, but neither that
letter nor the city’s response gives any indication that either side
connected that request to the settlement agreement. O’Connor’s
attorney wrote to the city on February 26, 1997, three weeks
after the city council resolution authorizing the settlement
payment. In the letter, he states that O’Connor is “concerned”
about his disciplinary file and suggests that “per administrative
decision of the Attorney General’s offices, officers in the [sic]
O’Connor’s positions [sic] are authorized to have their
respective files purged of all such improper charges. Obviously
such action can only be taken at the direction of the Police
Director in accordance with established procedures.”

       This letter, written by O’Connor’s attorney only three
weeks after the council resolution was passed, seeks
expungement based on an administrative decision of the
Attorney General, not the settlement agreement. The letter does
not even mention the settlement agreement; still less does it
anywhere suggest that the agreement requires purging the files.
Indeed, it states explicitly that “my clients recognize that this is
the province of the Director in conjunction with Internal Affairs
procedures.” We think it not unreasonable to expect that, if



                                11
O’Connor had an agreement with the city to have his files
purged, his attorney would have mentioned it.

       We will therefore affirm dismissal of Count VIII.

                                 V.

        O’Connor’s state-law claim in Count III arises under the
New Jersey Conscientious Employee Protection Act (“CEPA”),
and thus presents a somewhat different question from the federal
claims. The underlying facts supporting Count III are the same
as with the other claims, but the source of the right is state rather
than federal law. It is therefore not self-evident that the
distinction between discrete acts and aggregable acts, and the
limits on the availability of the continuing violations exception,
will be the same for CEPA claims as for federal claims.

       The New Jersey Supreme Court considered the
application of Morgan to state law in Shepherd v. Hunterdon
Developmental Ctr., 803 A.2d 611 (N.J. 2002). The court noted
that while in general federal and New Jersey law “mirror” one
another in the area of employment discrimination, federal law is
“merely a guide.”

       Preliminarily, we must determine whether to
       apply Morgan’s analytical framework when
       evaluating a state cause of action under the LAD
       [the “Law Against Discrimination”]. We have
       noted previously that in resolving disputes under
       our State employment-law jurisprudence, federal
       case law is merely a guide. See Alderiso v. Med.

                                 12
       Ctr. of Ocean County, Inc., 167 N.J. 191, 201,
       770 A.2d 275 (2001) (rejecting federal case law in
       determining accrual of wrongful discharge claim
       under New Jersey’s Conscientious Employee
       Protection Act). That said, we consider Morgan’s
       formulation of the continuing violation doctrine to
       be similar to the one advanced in Wilson. There
       also is a benefit in having our State jurisprudence
       mirror the approach taken in Morgan to avoid
       further confusion in an already complicated area
       of law. We thus will apply Morgan’s analytical
       framework to the present action.

Shepherd, 803 A.2d at 623. More recently, the court has noted
that “[t]he policy concerns underpinning the determination in
Shepherd in respect of LAD claims require the application of the
Morgan/Shepherd framework in CEPA actions.” Green v.
Jersey City Bd. of Educ., 828 A.2d 883, 891 (N.J. 2003).

       We read these cases as holding that while federal and
state discrimination law are not always coextensive, they
overlap with respect to “Morgan’s formulation of the continuing
violation doctrine.” Because that doctrine controls this case, it
appears to us that “application of the Morgan/Shepherd
framework” requires, as a matter of state law, that O’Connor’s
CEPA claim be dismissed. Accordingly, we will affirm the
dismissal of that claim as well.8

       8
       We will affirm the dismissal of Count VII, loss of
consortium, insofar as it was derivative of some independent
predicate claim, of which there remain none.

                               13
                              VI.

       For the foregoing reasons, the order of the District Court
will be affirmed.




                               14
