Latessa v. New Jersey Racing Commission

bankruptcy point last is that C-TC’s C-TC’s LATESSA; the nature of

court misunderstood P. Donato Victor against Latessa, Norton and others. C-TC Appellants, claims R. many significant argues that it holds unse- tax, including environmental cured claims— COMMISSION; NEW JERSEY RACING building code-related Norton and claims. Lalomia, Individually Santo and Offi showing by these contentions

has rebuffed cially Jersey Member as a of the New body governmental agreed no Racing Commission; Kovacs, Oliver R. dam- C-TC’s assessment environmental Officially Individually and as a Member age, tending many of in effect to show that Jersey Racing Commission; of the New alleged these debts be nonexistent. Goldsmith, Individually Stuart O. and event, they adequately any secured Officially aas Member of the Jer New $4,000,000 bond. Thus we find sey Racing Commission; E. William bankruptcy court’s election to the bad decide Individually Officially McGlynn, and as evidentiary faith issue without a formal hear- Jersey Racing of the Member New discretion; ing record was within its Commission; Dr., Monaco, Daniel A. In provided ample court evidence on which the dividually Officially and as a Member such a decision. could make Jersey Commission; Racing the New Orechio, Individually Frank and Offi IV. Conclusion cially Jersey a Member of as the New Commission; Racing Savino J. Russo C-TC and Norton entered into a sale and Individually Officially niello, Jr., and as arrangement. ultimately lease-back C-TC Jersey Racing Member New payments failed to make Commission; Cannella, Samuel M. Indi purchase years of price. This failure led to vidually Officially as a Member bankruptcy litigation. state court court Jersey Racing Commission; the New Pe- C-TC, find that Because we dissolved Cofrancesco, Jr., Individually ter J. partnership, “person” pur- is not a York Officially a Member as of the New Jer- Chapter poses 11 and cannot therefore sey Racing Commission; Francesco pursue filing Chapter, under that we affirm Individually Zanzuccki, and as Director the dismissal below. We likewise affirm the Jersey Commission; Racing of the New ground dismissal on the alternative C- Vukcevich, Individually Michael and as Chapter petition TC filed its faith. bad Deputy Jersey Director of the New State judgment of the district court is AF- Commission, Racing Appellees. FIRMED. No. 96-5316. Appeals, Court of

United States Third Circuit.

Argued Feb. 1997. 9,May Decided forum, ineligible reorganization, argument just this the state court is the better forum Nevertheless, correct, moot. if C-TC were two-party disputes. resolving most appropriate state would still be the more MANSMANN,

Before STAPLETON RESTANI, Judges, Circuit Judge, Court of International Trade.* RESTANI, Judge.

(“Commission”) employees. and various Appellant challenges non-reappointment his racing judge following his criticism of Commission executives’ actions in connection penalty adjudication with and his testi- mony alleges about the He same. violation process Fourteenth Amendment due rights, his First free rights, Jersey and the New Conscientious Act, Employee Protection N.J. Stat. Ann. 1996).1 (West § seq. 34:19-1 et We review summary judgment light record in the appellant, most favorable to the the non- moving party. affirm We will as to the action, Fourteenth Amendment causes of but will reverse and for fact-finding remand as to the First Amendment claim and the related state law claim.

FACTS Jersey Racing

Defendant New Commission body by § ais created N.J.StatAnn. 5:5-22 (West 1996) jurisdiction, powers with overseeing racing duties horse conducted in Jersey. the State of New Defendant Fran- cesco Zanzuccki is the Executive Director of Commission, Jersey Racing Deputy defendant Michael Vukeevich is the Jersey Racing Director of the New Commis- sion.

In by Mr. was Latessa licensed Trotting United States Association as an As- Judge powers sociate to officiate as a judge at harness horse meets. the latter August Rowek, R. (argued) Soltis lulo & working part began he at various Passaic, NJ, Appellants. Jersey race tracks New as either a Patrol Verniero, Attorney Peter Judge Judge. General of New or an Associate Mr. Latessa Yannotti, Jersey, Joseph appointed L. Assistant by Attor- was first the Commission as General, counsel, ney Milstein, Presiding Judge Jed M. at State Park in Garden General, Deputy Attorney appointed Pamela B. Fatten 1988 and was also (“The (argued), Attorney General, Deputy Senior at the Meadowlands Race Track Mead- owlands”) Trenton, NJ, Appellees. in 1992.

* Restani, Judge, pursue The Honorable Jane A. United that claim remand because he Trade, sitting by- States Court of International failed to raise it the district court before in the designation. first instance. pursues 1. To the extent Latessa a common law wrongful appeal, discharge claim on Latessa appoint- judges. It with one of Jersey, racing judges are connection

In New gave these cases that Mr. Latessa later testi- meet-by-meet N.J.Stat.Ann. basis. ed on a mony 1996). before the Office Administrative 5:5-37(a) (West They paid on a § early Mr. Zan- Law about the intervention of fringe weekly do not receive bene- basis and proceedings. zuccki in the They pleasure serve at the fits. See id. 5:5-37(a). § N.J.Stat.Ann. the Commission. Mr. At the end of the summer reappointed Presiding Judge as the Penalty are made in the first decisions racing upcoming harness meet Garden by employed officials certain instance During early Lates- Park. fall Mr. State judges. Commission, including panels of sa, Vukcevich, Mr. contin- Zanzuccki 71-1.20(b)(1990). tit. N.JAdmin.Code disagree ued to about the manner which may modify penalty itself The Commission Milici In the first matter was handled. Thereafter, appeal § 71-1.23. decision. November, during racing meet in week of Commission, but may with the the be filed California, Lalomia, Santo Chairman reject modify or on its own Commission Commission, Jersey Racing interviewed penalty imposed or decision. Id. motion Corley Presiding the of Michael 1993, early § Sometime in 71-3.3 16, 1993, Judge. Mr. Zan- On November began and Mr. Zanzuccki Vukcevich Mr. meeting requested a zuccki with Mr. Latessa in making penalty “recommendations” horse 30, November 1993. On No- scheduled for drugging prior to formal action of eases the vember Mr. sent Mr. Vukcevich judge panel to take the three authorized noting a “inconsis- Latessa memorandum the matters. initial action such deliberations, tent” accounts of the Milici as July told Mr. Zanzuccki Mr. of points disagreement. well as other of On 120-day penalty should be Latessa that November Mr. Latessa testified Milici, a horse trainer imposed on Thomas before the of Law Office Administrative and administering illegal drug, by an of accused day one Mr. Zanzuccki a memo- later sent judges panel which included Mr. indicating the of randum to Lalomia he had de- Mr. demur, Latessa did not but Latessa. Mr. cided not to Mr. Latessa. The panel Judge the of Mr. Zanzuceki’s Administrative Law credited Mr. rather advised judges opinion Latessa’s and an disagreed, issued statement. The other be- November critical the actions of of lieving penalty would be inconsistent the deputy. Mr. and his The adminis- Zanzuccki imposed in penalties like circumstances part: judge trative law said imposed 90-day previously and sentence. impartiality register contrary agency The head —the Mr. Latessa did vote. compromised be the Exec- NJRC —will if not pleased Mr. Zanzuccki was Deputy utive Director Director and/or of Milici matter and demanded outcome participate any advisory capacity con- judges reports from the three as to what had cerning penalty The issue. Executive judges two did not occurred. The other dis- Deputy Director al- and Director have procedurally, occurred but cuss what had ready judges impose instructed the reasoning. of their reported on the substance two-year suspension. Deputy Di- reasoning, Latessa described similar but Mr. rector and Executive have Director that while he had indicated advocated also past penalty discussed with the NJRC af- preferred penalty, he had Mr. Zanzuccki’s decision, thereby ter an ALJ issued Follow-up questioning of been outvoted. making proceedings the OAL before judges to Mr. Zanzuccki that other indicated superfluous. primary seem rather “The “advocacy” go beyond Mr. did not establishing reason for [OAL] ‘to reporting Zanzuccki’s statement bring impartiality objectivity agen- registered dissenting Mr. Latessa no formal cy hearings ultimately to achieve vote. higher levels of fairness in administrative ” During summer of Mr. Zanzuccki adjudications.’ In re Adminis- Uniform Rules, continued to either recommend or direct trative Procedure 90 N.J. (citation (1982) drug prior comple- omitted); penalties violation to the 151] A.2d [447 proceedings racing panel tion before the agency an administrative at the 1994 Meadowlands Harness reject authority adopt, Meeting.

ultimate or modi Race fy findings an of fact ALJ’s recommended law, agency and conclusions of “the head Discussion solely

must base the final decision on the hearing.” record established at the Mat the NJRC. troubling, tions that seems to plainly acknowledged that he did not feel ^[230] portunity from the Executive Director and posed mitted, admitting NJRC, Director, the NJRC ter opposing party the OAL importance, at 238 Opinion would undermine as the final judges is the new evidence penalty proceeding. considers [526 consider. Such very but Presiding Judge nor this ALJ had the could do apparent blending No. A.2d 692 significant, in this be individuals who 583, supra, authority, “other” common On a anything (1987)]. Thus, case, actions, very purpose and equally neither the lesser scale information practice would be then the 107 N.J. Latessa of func but fol Deputy per pro op at if jurisdiction Progressive Fed.R.Civ.P.15 the district court abused its discretion in claims. grant R.Civ.P. 56 denying 1235 court had §§ decision of the claims, As this matter comes to us following a Pursuant plaintiff brought 1981, 1983, 1985 (3d Cir.1992). (3d Cir.1995). review is leave to amend the Douglas jurisdiction summary judgment to decide this to 28 Cos. Ins. (a) favor of defendants on all district plenary. v. and 1988.2 alsoWe U.S.C. to add new state law claims under under 28 U.S.C. Owens, Co., court. appeal Jefferson § address whether complaint 50 F.3d under Fed. The district from a final we have Bank v. U.S.C. under 1226, penalty proposed. low the From his testi alleges Mr. Latessa three causes of action licensee, Rubin, mony, a question like must § 42 deprivation under U.S.C. 1983 based on and, impartial hearing how is such a even rights. First, federal of constitutional he assuming nothing wrong that there is with alleges violation of his Fourteenth Amend- practice, this which seems to be at odds process rights stemming ment due from his notions, process basic due there is an liberty remaining interest in free to work as appearance impropriety. least an [sic] Second, racing judge. alleges a he violation practices place high Such individuals of process of his Fourteenth due Amendment integrity, Gallagher, like Latessa and who rights stemming property his from interest essentially pleasure serve at the of the Presiding Judge in his for the NJRC, possibly compro in a difficult and Third, Jersey Racing New Commission. he mising position. potential for The abuse is alleges speech rights violation of his free extreme, present logical and carried to its under the First We Amendment. will ad- could result the dismissal of a conscien these in the dress issues order set forth. judge tious or steward. II original). at App. (emphasis 195-96 3, 1993, Corley alleges On December Mr. Mr. violation of his replacement process recommended as for rights Mr. Fourteenth due appellants’ The 2. district court’s dismissal of teenth barred Amendment are not the Elev 1985(2) § claim under 42 U.S.C. is not the sub- abrogate enth Amendment if the intent state ject appeal. The district court indicated clear, immunities is see Seminole Tribe Florida , § that no claim 42 existed under U.S.C. 1981 — -, 15, v. U.S. -n. 116 S.Ct. Florida plaintiff presented arguments appeal no 1114, (1996), here, 1131 252 n. 134 L.Ed.2d Thus, indicating he has such a claim. we affirm parties agreed that the Commission is a state dismissal of the action as to that section. The agency "person" purposes and not a of 42 parties district court also indicated that the were Michigan Dep't § U.S.C. v. See Will agreement that the Eleventh Amendment re- 58, 71, Police, State 491 U.S. 109 S.Ct. quires dismissal of causes the federal of action (1989). 105 L.Ed.2d 45 Waiver of immu against agency the state defendant. While implementing nity claims based on statutes Four- for the state law claims was not addressed. 1318 Roth, 564, 576, Colleges liberty in remain- State 408 U.S. his interest stemming from (1972). 2701, 2708-09, racing judge. 33 L.Ed.2d 548 as a The S.Ct.

ing free to work job property job in a or right “pur- To have a interest issue is the liberty interest benefit, legitimate employee an must have a right occupation, and not calling or sue a entitlement, just not a unilateral claim of job.” Piecknick v. Common- specific to a expectation. Id. at 92 S.Ct. at 2709. F.3d Pennsylvania, 36 wealth of (3d Cir.1994) legitimate claim of enti- City Mr. Latessa lacked (quoting Wroblewski v. (7th Cir.1992)). parties do not Washburn, position. tlement to his F.2d Jersey racing judges are dispute that New grant court’s of sum- affirm the district We basis, meet-by-meet appointed paid on a on a against Mr. Latessa as mary judgment basis, weekly fringe and receive no benefits. for trial unless there “there is no issue Moreover, they pleasure at the serve favoring nonmoving evidence sufficient Jersey Racing See Commission. jury a verdict for that party to return 5:5-37(a). Thus, only N.J.Stat.Ann. Inc., Lobby, Liberty party.” Anderson v. issue, conclude that statute were at we would U.S. employee an without Latessa was at-will failed to Mr. Latessa L.Ed.2d 202 property employment in his as a interest contention that present any support for his racing judge.4 non-reappointment he was effec- due to his occupation tively work banned from all Property employment interests response the motion racing judge. as a arise, however, “‘mutually from also summary judgment he offered neither explicit understandings’ govern between of unsuccessful at- nor evidence affidavits employer employee.” Stana v. ment employment following tempts to secure such Pittsburgh, City Dist. School at The Meadowlands.3 non-reappointment (3d Cir.1985). 122, 126 Mr. Latessa asserts at tracks other than The Mr. Latessa worked there is a triable issue of fact as to the attempt to es- Meadowlands and he did property existence of a interest based on employment at other venues was tablish that understandings. points depo to such He Moreover, reasonably to him. available Lalomia, a defendant and sition of Santo propo- no for the Mr. Latessa offers Jersey Racing Chairman of the New Com unreasonably in restricted sition that he was support. deposition, in In mission his Mr. occupation. ability pursue his chosen his to turn Lalomia indicated that there was little Thus, grant- appropriately the district court racing judge appointments, over in the summary judgment on Mr. ed defendants’ “generally speaking” “keeps if one his nose liberty of a deprivation Latessa’s claim of up expectations, employ clean” and lives to process of law viola- interest without due generalized This ment would continue. tion of the Fourteenth Amendment. position statement is insufficient to create a just

requiring prerequisite cause as a Ill involuntary termination. suggests

In on a claim of Mr. Latessa the mutual under- order succeed standing by deprivation process deposi- under the Four described Mr. Lalomia’s of due respect testimony teenth to termi tion is similar to the understand- Sindermann, position, ing Perry specific employment nation of a a documented v. 593, 601, 2694, 2699-2700, plaintiff property a inter U.S. 92 S.Ct. must first establish (1972).5 however, Regents Perry, employment. est in the Board L.Ed.2d 570 is dis- of Supreme Perry Following non-reappointment, did did he work 5.The Court in not hold that time, legitimate racing judge Maryland plaintiff as a for a short had a claim of entitlement unacceptable geographical job but he tenure. Id. at 92 S.Ct. at 2700. found it Instead, plaintiff alleged it that the had reasons. found understandings "may existence of rules argument justify legitimate 4. We that the claim of entitlement to con- assume for sake legislature employment has not barred the Commission from tinued absent 'sufficient cause’ "and granting employment rights type remanded to the district court to make such a claimed 602-03, here. determination. Id. at 92 S.Ct. at 2700. case, plaintiff alleged Jersey tinguishable. In that a New Office of Administrative Law college program profes- tenure which indicated that Mr. de Latessa did not feel facto by ‘existing disagree penalty rules or under- free to sors “secured recommen- ” Roth, standings.’ (citing Id. 408 U.S. at dations of Zanzuceki. Mr. The court deter- 2709). plaintiff alleged The mined that 92 S.Ct. the decision not to Mr. understanding prior mutual of continued Latessa occurred to November employment employ- testimony was documented in the and thus the could not have faculty guide er’s official which stated a fac- been a alleged factor retal- ulty permanent long iatory non-reappointment. “has tenure as member satisfactory teaching as his services are denying prior defendants’ mo ....” Id. at 92 S.Ct. at 2699. More- dismiss, tion to the district court had found over, plaintiff upon promul- relied Guidelines that Mr. potentially Latessa raised issues gated by Coordinating Board of the Tex- satisfying prong the first of the test. For University System College as which speech by government employee pro to be years, employed stated if for seven the em- tected, regarding concern, public must be job ployee has some form of tenure. opposed employment as matters unrelated Latessa, however, pointed to no evi- Myers, to such concerns. See Connick understandings such rules or as to dence of U.S. racing judges. very generalized testi- (1983); County L.Ed.2d 708 Azzaro v. mony specific cited does not reflect bilater- (3d Cir.1997). Allegheny, 110 F.3d 968 Fur understanding particular al cause must thermore, public we held Green that a non-reappointment may be shown before oc- employee’s testimony gov truthful before a Thus, correctly grant- cur. the district adjudicating fact-finding body, ernment or summary judgment ed to defendants pursuant not,is subpoena whether to a or of no triable of fact as to basis issues public matter of interest. 105 F.3d at 887. property plaintiff’s existence of a interest in Thus, Mr. Latessa’s before the racing judge. Office Administrative Law is a matter of public concern. IV A balancing test exists deter Unlike Fourteenth Amendment due speech by mine if such concern process rights, appellant’s First Amendment government employee protected. is See right to be free from retaliation for Pickering Township v. Board Educ. property not defeated the lack of a or 205, Illinois, High County, Sch. Dist. Will liberty employment. interest his Id. at 563, 568, 1731, 1734-35, 391 U.S. 88 20 S.Ct. 599, public employ 92 at 2698-99. A S.Ct. public L.Ed.2d 811 interest fa protected ee’s claim of retaliation for a activi voring expression outweighed “must not be ty, analyzed speech, steps. here in three is by any injury speech the could cause to the Auth., Philadelphia Green v. Hous. employer pro interest of the state as an (3d Cir.1997); Donatucci, Pro v. 81 efficiency moting public the services (3d Cir.1996); F.3d Watters v. Watters, performs through employees.” (3d City Philadelphia, 55 F.3d test, govern 55 F.3d at 892. Under the the Cir.1995). First, plaintiff the must demon public ment must show that the concern val Green, speech protected. strate that his was likely speech outweighed ue of the was to be Second, plaintiff 105 F.3d at 885. the must by disruption. (applying the Id. at 896 new show was factor Churchill, 661, 673, test of Waters v. U.S. Third, alleged retaliatory in action. Id. 1878, 1886-87, 128 L.Ed.2d 686 S.Ct. may plaintiffs the defendants defeat (1994)). by establishing claim action adverse would have been taken even the absence of Appellees’ position Mr. Lates protected speech. “lying” in sa was fired for conversation and The district court focused on Mr. Latessa’s memoranda between Mr. Latessa and Mr. testimony Zanzuceki, of November Mr. 1993 before the not because Latessa’s testi- not to in the record of a decision procedures cation administrative

mony critical might Thus, a fact finder pur- reappoint, and because disruptive. for likely to be was expla- reasonably reject pretext the “lie” as public concern appeal, this poses of non-reappointment, a fact finder for by testimony is treat- nation speech represented reasonably that the testi- conclude might also speech and the issue protected ed as straw, and hence a moti- mony was the final reappointed not Mr. Latessa whether reappoint. for the failure to testimony vating ad- factor must be his for retaliation following find reasons we dressed. For rec- summary, as we view the current a matter of be resolved as cannot this issue ord, substantial Mr. Latessa marshaled law. proposition tending evidence testimony, than lack of that his rather First, previously Latessa had although Mr. the Mil- personal integrity in connection with internally believed about what he complained First, matter, his non-renewal. ici caused and Mr. Zanzuccki’s was Mr. Vukcevich’s many years as a for stages of Mr. Latessa had served in the initial interference unlawful integrity. challenge testimony judge to his without proceedings, his penalty Second, July letters of 13 and Mr. Latessa’s day Zanzuccki’s one before Mr. occurred July appellee which are said have indicating Mr. Latessa would memorandum personal Latessa’s lack of reappointment. demonstrated Mr. not be recommended matter, are at best integrity in the Milici Second, though Mr. eventual even by a reason- ambiguous and could be found Corley, was interviewed be- replacement, entirely of fact to be consistent no indication that able trier testimony, there is fore the judge. being qualified to serve as a made with his appoint him had been decision Third, reappointed as the testimony.6 Mr. Latessa was before the August Presiding Judge the fall meet on Moreover, reasonably might a fact-finder than a month after he is said more “lying” pre- as mere view the accusation personal lack of to have demonstrated this Churchill, 511 U.S. Waters text. See Fourth, integrity. prior to his be- may (employer at 1888-89 Judge No- Administrative Law fore the to what rely conclusion as on unreasonable 22, 1993, there is no documentation vember firing pretext because of as was said by anyone having of a decision been made Here, was Mr. protected speech). the “lie” Fifth, Mr. Lates- not to renew Mr. Latessa. representing presen- Latessa’s statement testimony before the Administrative Law sa’s Zanzuccki’s “recommendation” tation of Mr. Judge regarded by a trier of fact as could be judges in matter the Milici panel to the Zanzuceki, very embarrassing to Vukcevich have “advocacy.” The “lie” also includ- And, finally, Commission. on No- action in the characterization of his ed his day potential- this vember after vote, a lack of a vote matter as either Miliei embarrassing testimony given, Zan- ly vote. While a trier of or the Commission’s to the zuccki wrote a letter Chairman Mr. Latessa was fired might fact conclude advising him that he intended to Commission reasonably perceived to be because he was notify on November 30 that he on the evidence a trier of fact lying, based signifi- would not be renewed. This letter is might conclude otherwise. Given the also only first documen- cant not because is the deliberations,there may panel fluidity of the renew, by anyone not to tation of decision knowing- in the of a have been no “lie” sense but also because it reveals that Zanzuceki statement, might fact ly and a trier of false support lobbying for the was then perceived just Mr. Zanzuceki conclude that regard Chairman and did not the non-renew- protected Mr. Latessa for the that and fired accompli. al decision to be a fait speech the Office of Administrative before Accordingly, to the district Latessa’s we will remand In view of the content of Mr. Law. prong of the three- temporal the first indi- court because the second speech, its relation to purpose meeting prior scheduling meeting does not reveal what the 6. of a between Mr. The scheduling. for November Zanzuceki and Mr. Latessa at the time of determinative, because the record 1993 is not

1321 step analysis requires self-governing society’s ability a factual determination vant to a Azzaro, self-govern. Mr. Latessa’s November as to whether See 110 F.3d at 977-78. motivating complaints was a factor the Mr. Latessa’s proce- 1993 involved the Presiding him employed not to as a dure and it expression decision is his about Judge. procedure such public is of concern. Furthermore, appears to the district court Of more substance is Mr. Latessa’s alternatively pro have ruled even argument discharged that he was because of conduct was a factor in tected going objections his internal to Mr. Zan reappointment, independent Latessa’s and Mr. Vukcevich’s zuccki’s interference reappointed. reasons he would not have been penalty decision-making. initial Internal ex Healthy City Mt. See School Dist. Bd. (“Pri pression may protected. also be 274, 285, Doyle, Educ. U.S. S.Ct. vate dissemination of information and ideas (1977). 568, 575, 50 L.Ed.2d 471 If viewed important can self-gover be as to effective light plaintiff, most favorable the facts .to public speeches.”). nance as Such claims previously summary permit discussed do not analyzed must Myers, be under Connick v. judgment ground. for defendant on this 461 U.S. 103 S.Ct. 75 L.Ed.2d 708 In that ease an assistant district V attorney protesting who was transfer circu questionnaire lated an relating office to inter presentation It is unclear from the public nal office not matters concern and alleg as to whether Mr. this case Latessa relating tangentially also to a pub matter of protect es his “vote” in the Milici matter was concern, specifically, pressure lic to work in part speech ed and was of the motivation for political campaigns. question once more non-reappointment. Mr. Latessa does degree is to what the internal touches allege right freely that his to vote in other upon public matters of concern and to what by eases was chilled Mr. Zanzuceki’s actions degree functioning govern effective following the Milici matter. Numerous em likely disrupted by mental office is to be ployment by employer actions directed an speech. See id. at at S.Ct. speech. involve the medium of All such ac justifying The Commission’s burden in protected simply tions do not become be depending action “varies on the nature of the expression cause some is involved. See Con employee’s expression.” See id. For the 138, 143, Myers, nick v. 461 U.S. 103 S.Ct. reasons, following we remand this issue to (“Government 1684, 1688, 75 L.Ed.2d 708 apply step the district court the three every employ offices could not function if procedure Pickering set forth in and Con ment decision became a constitutional mat nick, as modified Waters. ter.”). public state First, procedures affecting voting appellees directly ments about the have asserted public protecta any likely disruption governmental be of concern and hence func- ble, generalized allegation they allege only that he could tions as continue to that Mr. Connick, lying. not vote as he wished does not fired for Latessa was See claim based on the First Amendment. The at U.S. S.Ct. 1691-92. Sec- ond, any particular improper complaints vote case was not the balance in the internal compelled expression political nonpublic on a or ideo between concerns See, logical e.g., Virginia matter. West State unclear. Mr. Vukcevich’s memorandum of Barnette, 624, 642, Bd. Educ. v. 319 U.S. November does reveal that Mr. complaining 87 L.Ed. was understood to be (1943)(compulsion flag penalty to salute and recite about the in initial deci- intervention pledge allegiance sion-making, invalid as “no official as well as other matters of both Third, prescribe public ... can what personal shall be orthodox and concern. the dis- nationalism, politics, religion, or other mat trict court did not address whether the opinion portion speech, ters of or force citizens to confess concern of this internal rath- therein”). testimony only, motivating word or act faith their Nor was er than the was a any particular penalty non-reappointment. Finally, rele- factor in al- vote otherwise the year. “meeting” per early facility operates one that court concluded

though the district ap- meeting, the Commission illegal, Prior each was not the intervention .to Commission judge and two panel presiding a of one points could ambiguous. One Jersey law is New judges and monitor to officiate law associate argue, as the administrative reasonably races, par- the conduct of race horse review hearing Mr. Latessa’s tes- upon judge noted the medical status of ticipants, and review decides from if the Commission timony, that an infraction appears If it that imposed the horses. should be penalties what the outset occurred, hearing judges a adjudica- the conduct multi-layered a point to there is no innocence of the ac- case, guilt the or determine In the wisdom tory system. found, judges If an infraction is public con- cused. a matter of early intervention impose penalty. empowered to cur- are cern, prohibited not under if it is even in- impose penalties “in the first judges Mr. Lates- Jersey law. Because rent New stance,” § tit. 71- N.J. Admin. Code administrative complaints about internal sa’s 1.20(b), disregard is free to public con- the Commission upon matters of touch procedures may impose penal- judges’ decision and cern, retaliatory action for inter- the issue of § ty choosing. Id. 71-1.23. of its remanded. nal must be also law claim was Latessa’s state judges on a appoints the The Commission he did not establish basis, because they dismissed “at meet-by-meet serve factor protected speech was N.J.Stat.Ann. pleasure of the commission.” Thus, this claim will 5:5-37(a). nonreappointment. meet, At the conclusion of each plain- (but Because denial of remanded. ordinarily always) also be judges not law to add other state to amend tiffs motion reappointed next meet. In for the on the district was based apparently claims appointed Latessa as an associ- Commission claims, this all federal dismissal of years, court’s judge. several ate For the next remanded, as well.7 Latessa, be reappointed issue will regularly Commission eventually appointing presiding him as the MANSMANN, Judge, concurring Circuit judge. dissenting part. part in the result May positive for two horses tested majority that the district agree I drugs. the trainers were prohibited After mo- granted the Commission’s properly administering drugs, guilty of but found summary judgment as to Latessa’s tion for imposition penalties, Frances- prior to the I be- claims. also Amendment Fourteenth Zanzuceki, Director of the co the Executive however, lieve, the district court Commission, contacted Latessa. Zanzuceki granted the Commission’s correct when impose 120-day suspension Latessa to told to Latessa’s First motion as 90-day suspension on trainer Milici and a judg- affirm the I therefore claim. would relayed Riegle. Zanzuccki’s trainer respects; in all I district court ment of the judges on to the other two recommendations part. respectfully dissent unanimously judges voted panel, but the impose 90-day suspension on both train- I. ers. majority stems My disagreement with the suspen- Zanzuceki learned about When procedures of the Com- policies from sions, inquire contacted Latessa to about he mission, surrounding the and from the facts responded that the deliberations. Latessa testimony. incident and Latessa’s Milici 120-day suspension for Mil- he advocated the my understanding forth therefore set two to one. ici but that he outvoted length. at some undisputed facts Zanzuceki then contacted the two associate judges regulatory body judges. Those did state is a re- The Commission or voted for the 120- overseeing racing all con- Latessa had advocated sponsible for horse day suspension, but stated that Latessa Jersey. racing occurs ducted in Horse merely the recommendation. Jersey, told them about in New and each three facilities pressly. ex- 7. The district court did not state reason Zanzuecki, subsequent In a letter to suspended by Lates- trainer panel for two 1, sa stated that vote was to to make years. “[t]he When asked about penal- the severe unanimous, subsequent In a concurred.” ty, Latessa testified that the decision to im- letter, however, Latessa stated that the “2 to pose two-year penalty was made at the 1” “2 vote meant associate votes to the 1 direction of the Commission. When asked letter, commission vote.” In the second impose he felt free penalty, to a different always supported Latessa added that he had Latessa said “No.” 90-day suspension for Miliei. 23,1993, On November Zanzuecki sent La- deposition, In his Zanzuecki testified that lomia a stating confidential memorandum he believed that Latessa would advocate notify that he intended to Latessa on No- 120-day suspension favor of a for Miliei and vember 30 that he would not be offered em- that he was disturbed when he discovered ployment with the Commission in 1994. that Latessa did not do so. Zanzuecki was Zanzuecki stated that the memorandum con- also bothered the fact that Latessa stated tained several attachments demonstrate changed that he his vote to establish unanim- type problems” “the that led Zanzuecki to ity, purpose three-judge panel when the of a decide employment not to offer Latessa dissenting addition, is to allow views. upcoming year. spe- memorandum upset originally Zanzuecki was that Latessa cifically refers to “the untruthfulness 120-day stated that he for a suspen- voted [Latessa].” The memorandum does not sion, always but that he later stated that he mention Latessa’s November 22 90-day supported suspension and that the before the OAL. represented “1” in “2 1” to vote a Com- Finally, mission vote. Zanzuecki believed On November Zanzuecki advised that Latessa’s statements about the delibera- Latessa that Latessa would not be offered tions and the vote were inconsistent with employment with the Commission in 1994. each other and with the statements of the 1993, In December the Commission voted not judges. associate reappoint to presiding judge. Latessa as Zanzuecki testified that the Commission reappoint early decided not to Latessa in the II. 1993, any fall of and Latessa does not offer contrary. evidence to the On October I agree majority that the district 1993, the Commission received a letter from properly dismissed Latessa’s Four- Corley expressing Michael interest liberty teenth Amendment claim. Latessa presiding judge position. In the first week has failed to demonstrate that he was de- November, Commission Chairman Santo prived liberty of a interest sufficient to en- Corley Lalomia position. interviewed for the procedural him process able to invoke due By letter dated November Zanzuecki protection. While the Constitution rec- requested that Latessa meet Zanzuecki ognize liberty in employment, interest on November 1993. Zanzuecki testified only protects Constitution that interest from meeting that he scheduled the to inform deprive persons state actions threaten to Latessa about the Commission’s decision not right pursue occupa- their chosen him for another meet. Zan- Pa., tion. Piecknick v. Commonwealth explained zueeki meeting was not (3d Cir.1994). F.3d 1259-60 State ac- scheduled until November 30 because Lates- person particu- tions that exclude a from one serving sa presiding judge when the job brought lar actionable suits meeting was scheduled and it would have directly process under the due clause. replace been difficult to him on short notice. concept suggest “It stretches the too far to Latessa does not offer evidence to the person deprived ‘liberty1 that a when he contrary. job simply is not rehired in one remains but 22,1993, On November Latessa was called as free as before seek another.” Board of testify Roth, hearing at a Regents the Office of Admin- 408 U.S. Rubin, istrative Law the ease of Jordan 33 L.Ed.2d 548 1324 5:5-37(a). a position with While statute applied for a N.J.Stat.Ann. never

Latessa can, cases, reappoint- property in a after he was not some create interest the Commission addition, racing job, expressly precludes a worked as the statute here Latessa in a ed. subsequent being Any to not Maryland property property a in- judge in such interest. Jersey. Latessa decided arguably in New Latessa have had in his reappointed terest however, Maryland, in he longer length lasted than the position not to remain no job as well. potential offers rejected To that Latessa held other one meet. the extent Lates- deprive Thus, did not continuously reap- the Commission expectation being an occupa- to work in his chosen right sa position presiding judge, to the pointed tion; did. Latessa expectation unilateral is not that was property to for sufficient a interest liberty not assert a interest plaintiff can A process purposes. due merely by limiting his none exists where point where “occu- occupation chosen “job.” By synonymous pation” becomes III. limiting occupa- unnecessarily his “chosen alleged Latessa also that the Commission judge in Jer- racing “presiding tion” reappoint Latessa due to failed the exer- Commission,” by the Latessa sey employed rights. cise of Latessa’s free Latessa job. liberty a interest a to find asks us reappointed contends that he was not be- do so. should not

We 1993, 22, he cause on November testified proper Fourteenth in the penalty about Zanzuceki’s influence ty argument equally is without mer interest judges’ phase of deliberations. claim, Latessa must it. on this To succeed majority recognizes, As the a em interest property has a show that he engaging claim of ployee’s retaliation for a prop have a presiding judge. To activity analyzed a protected is under three- clearly job, must erty person in a “a interest Philadelphia step process. v. Hous. Green need or more than an abstract desire have (3d Auth., Cir.1997). 885 F.3d than a unilateral must have more it. He First, instead, activity must, have Latessa show that the it. He must expectation of Roth, protected. If question to it.” Id. Latessa legitimate claim of entitlement 2709; activity protected, Carter v. shows the he must S.Ct. at U.S. (3d Cir.1993) Phila., 117, 120 activity show that was a City 989 F.2d then (“One in a bene alleging property interest in the decision. Fi factor Commission’s Id. burdens, go beyond process nally, due must protected fit he meets these Com expectation of showing an unsubstantiated has an opportunity mission defeat his benefit.”). by demonstrating claim that would have taken the same action even the absence of job “property” person’s A is a interest in protected activity. process purposes if there interest for due are “mutually understandings” sup- explicit that testimony Assuming that Latessa’s consti- job. port Per- his claim of to the entitlement protected activity, agree tuted Sindermann, ry v. U.S. district court that Latessa cannot that show (1972); 2694, 2699-2700, Car- 33 L.Ed.2d 570 motivating factor was a in his ter, expectations 989 F.2d at 120. Unilateral reappointed. failure to be The evidence of plaintiff to create sufficient record demonstrates without contradiction property interest. not to reappoint that Commission decided early was a mutual- Latessa no later than

Latessa contends that there November —be- ly undisputed, explicit understanding the Com- fore Latessa It is between testified. judges just example, and the cause that interviewed mission absent the Commission replacement non-reappointment,, judges prior would al- Latessa’s to November statute, however, ways reappointed. By 1993. Zanzueeki testified without contra- be ap- prior he employee Latessa is an at-will who diction to November decided Latessa, pointed meet-by-meet on a not to but he decided basis who notify pleasure until 30 to serves at the of the Commission. to wait November (3d ongoing A of an meet. letter dated Cir.1996); because F.3d 199 n. 10 see also prior Hasbro, Inc., November confirms that to Quiroga testimony, (3d Zanzueeki á Cir.1991). scheduled meet- timing may be used to ing any with Latessa. Latessa does not offer establish causal link protected between ac- linking reappointment evidence the decision tivity subsequent action, and a employment testimony. to the November 22 (3d Corp., see Jalil v. Avdel Cir.1989), may not, more, it without establish addition, explained In the Commission has retaliatory motive. reappoint that it decided not to Latessa be- properly Latessa failed to cause communi- Second, majority the observes that there is position penalty cate to Zanzueeki his on the no evidence that the Commission decided to deliberations the Milici case. The record Corley prior hire to testimony. supports the Commission’s that observation, true, This while is not relevant. regarding Latessa’s communications the Mili- Even if we assume that the decision to hire ci incident were inconsistent. Zanzuccki’s Corley was made testimony after Latessa’s November 23 letter confirms that Zanzueeki (and the evidence in regard this is inconclu- honesty, was concerned about Latessa’s not sive), the decision Corley to interview hearing. about the November Latessa made weeks testimony. before the The tim- any does not offer evidence from which a ing of the interview demonstrates that finder of fact could determine that the Com- Commission replace desired to prior Latessa failing reappoint mission’s reasons for him testimony. to the pretextual. were Finally, majority asserts that a trier I Because believe that Latessa cannot sat- “might” of fact explanation view Zanzuccki’s isfy prong the second of our First Amend- noted, pretext. as mere As Zanzueeki testi- analysis, agree ment I with the district court fied that he was concerned about Latessa’s the Commission was entitled to sum- honesty. Given Latessa’s inconsistent state- mary judgment on Latessa’s First Amend- regarding matter, ments the Milici this con- concludes, majority ment claim. The howev- eminently cern was er, majori- reasonable. The that the issue whether Latessa was not ty reasons, however, may reappointed in “there have testimony retaliation for his been no knowingly ‘lie’ the sense of a cannot be resolved as a matter of law. The statement, false might and a trier of fact majority arguments support makes three perceived just conclude that Mr. Zanzueeki position. of its that and protected fired Latessa for the First, majority observes that Latessa speech before the Office of Administrative day testified one before Zanzueeki sent the Maj. Op., Law.” at 1320. indicating memorandum that Latessa should reappointed. not be While it is true that majority’s take issue with the Latessa not non-reap- of his notified premise that there not have been a “lie” pointment shortly until after his (the clearly record establishes that Latessa OAL, before the uncontradicted evidence made inconsistent statements about the Mili reap- demonstrates that the decision not to matter), ci I am more concerned about the point prior Latessa was made to the testimo- majority’s permit decision to a case to be addition, ny. In the memorandum at issue nothing speculation. tried on more than testimony; instead, makes no mention of the Co., Sheridan v. E.I. DuPont de Nemours & explains that Zanzueeki was concerned (3d Cir.1996) (en banc), 100 F.3d 1061 we honesty. about Latessa’s There is no indica- recognized plaintiff may that a survive sum tion that reappoint the decision not to Lates- mary judgment pretext in a case “if testimony. sa was made after the plaintiff producéis] sufficient evidence to if Even the decision to not genuine raise a issue of fact as to whether day Latessa employer’s was made the after proffered Latessa reasons were not its testified, however, “timing we have challenged held true reasons for employment alone prove retaliatory will suffice to (emphasis supplied); action.” Id. at 1067 see Cos., motive.” Delli Santi v. CNA Ins. (plaintiff 88 also id. at 1072 must introduce “evi- (3d Solis-Cohen, employer’s prof- & F.2d Cir. undermines deuce that 1993)). actions”).1 explanation The Commission’s does reasons fered not suffer from of these defects. judgment with a motion faced When law, if majority’s reasoning, must determine an em- the court Under a matter activity engages protected cast sufficient sub- plaintiff ployee who “whether employer’s proffered employment reasons suffers an ac- sequently adverse upon doubt tion, summary employer to conclude reasonable factfinder can not obtain permit a incredible____” Id. judgment employee’s on the retaliation claim reasons case, long explanation “might” has not offered be disbe- so as its In this nothing support his claim whatsoever lieved—even there any evidence explanation precedent, for its disbelief. Under our the Commission’s such the re- pretext has the to demonstrate that plaintiff decision was burden reappointment explanation explanation is employer’s for its action The Commission’s the taliation. majority remains unchal- for retaliation. The turns pretext credible and was its decision any head, majority requiring not offer on precedent does this its lenged. The prove explanation support employer its conclusion to to evidence worthy “might” view the Commission’s of belief. fact trier of pretext as a for retaliation. explanation agree I with the district court that Latessa requires permit more than a mere precedent to offer that would Our failed evidence might disbe that a trier of fact possibility of fact to disbelieve the Commission’s trier em employer’s explanation for its reappointment for its decision. I explanation lieve an decision; plain requires ployment judgment therefore affirm the would support evidence that would dismissing some court Latessa’s First tiff offer district This is ordinari fact’s disbelief.2 claim.3 trier of Amendment weaknesses, demonstrating “such ly done part. Accordingly, I respectfully dissent inconsistencies, incoherences, implausibilities, proffered employer’s or contradictions that a rea its action

legitimate reasons for rationally find them could sonable factfinder ” Fuentes v. Per ‘unworthy of credence.’ Cir.1994) (3d skie, (emphasis 32 F.3d 765 Block, Wolf, Schorr omitted)(quoting Ezold v. dismissing court Latessa's First involved a retaliation claim district 1. Sheridan VII, pro designed determination claim. CEPA was to brought under Title activity against protected retaliatory activity by employer an whether First Amendment hibit alleged retaliatory employee ac- who factor in the an discloses or threatens dis See, pretext analysis. illegal may workplace Title follow VII certain activ tion close or unethical County Allegheny, e.g., ity. Young Schering Corp., N.J.Super. v. v. 275 Azzaro (en (3d Cir.1997) banc); Maj. Op., (citations omitted), (1994) 980-81 645 A.2d 1244 aff'd, 1319-1320. N.J. 660 A.2d To claim, succeed on his CEPA Latessa must show County Allegheny, 110 F.3d at 2. v. Azzaro reappointed Cf. was not due to his that he Cir.1997) (en banc) (3d (emphasis supplied) discussed, before the OAL. As I believe that (“Azzaro tendered evidence from which it could nothing such a record would find given by Braun be inferred that reason ing. ....”); pretextual discharge id. at her would also affirm district court's refusal I supplied)(“.B<zsed (emphasis on the evidence ... complaint permit Latessa to amend dispute conclude that there is material we also "Discipline” Operating include claims under the reports whether her were a motivat- of fact as to Jersey Department of the Procedures New decision.”) discharge ing factor in the Safety well as the whistle Law and Public as 4A, grant provisions tit. of N.J.Admin.Code I would affirm district court’s blower 2-5.1(a). summary judgment decline § The motion for district Commission’s supplemental brought jurisdiction over a claim under the exercise Latessa's claim for retaliation Jersey Employee district court has dismissed all claims over “Conscientious Protection Act,” original jurisdiction. seq., it has U.S.C. § N.J.Stat.Ann. et for the which 34:19-1 1367(c)(3); judgment Pennsylvania Nurses Assoc. v. same reason would affirm the PARKS, Individually, Edith J. Personal Representative of the Estate of Leslie E. Parks, parent and next Deceased as

friend of Kori J. Parks INC.;

ALLIEDSIGNAL, The Warner Swasey Company; & Company.

Gradall Individually, Parks, Edith J. As Personal Representative of the Estate Leslie E.

Parks, Deceased, parent next Parks, Appellant

Mend of J. Kori No. 96-3256. Appeals, Court of United States Third Circuit. Argued Feb. 1997. May Decided Assoc., Pennsylvania State Educ. trict court should now revisit state these law (3d Cir.1996). properly dismissing After ev- claims. ery complaint, Finally, agree majority count of Latessa’s the district that Latessa’s obligation jurisdic- pursue wrongful accept under no failure law common dis- charge precludes tion two over new state-law claims. Given the claim before district court majority's pursuing reinstatement of some of Latessa's fed- him from such a claim on remand. claims, however, Op., Maj. eral law I concur that the dis- n. 1.

Case Details

Case Name: Latessa v. New Jersey Racing Commission

Court Name: Court of Appeals for the Third Circuit

Date Published: May 9, 1997

Citation: 113 F.3d 1313

Docket Number: 96-5316

Court Abbreviation: 3rd Cir.