By Mitchel Wilson
The Federal Third Circuit Court of Appeals in Montone v. City of Jersey City, reversed the District Court and allowed Officer Valerie Montone and male co-plaintiffs to bring political retaliation/first amendment claims to trial when the City froze all promotions to lieutenant despite a lieutenant shortage. The court concluded that a group of male co-plaintiffs eligible for promotion also had valid claims, even though they weren’t the direct target of the alleged misconduct.
The bulk of the complaint arises out of alleged discrimination against Montone because of her political affiliations and her complaints about sexual inequality in the work place. Incidents of discrimination include failing to promote Montone, harassment, and spreading rumors. In 2004, Montone took paid vacation to aid in the mayoral campaign of a candidate who lost. The winning candidate, Healy, installed a new police chief and soon thereafter the department stopped promoting all sergeants, such as Montone, to lieutenant.
The defendant argued it didn’t discriminate because another supporter of the other candidate was promoted. Drawing inferences in favor of Montone, as is the legal requirement in a request for summary judgment, reduces the strength of this evidence. The court found that there was testimony in the deposition that corroborated Montone’s theory of political retaliation and that a jury could conclude there was discrimination against Montone, even if it was inconsistent.
Another officer, for example, stated in his deposition that the Chief told him he would not be promoted because he was behind Montone on the promotion list and “the Mayor will not promote her.” In this same conversation, the Chief noted that the officer was “okay with us” because he “didn’t try to hurt us.” The officer understood this to mean that because he had not “come out against [Healy] in the election,” he had not been blacklisted.
Montone’s arguments that she was retaliated against in part for her speech on sexual harassment and inequality appear weak because they concern activity well in the past, before the mayor’s election. However, the court found there are enough facts for her to bring this claim to trial as there is just enough for a jury to conclude her speech was a public concern, and therefore protected behavior.
The court concluded the male co-plaintiffs could also assert their claim even though the adverse actions only indirectly injured them; once it was Montone’s turn for a promotion, the chief didn’t promote anyone during a lieutenant shortage. The only person promoted on the list was an officer ahead of Montone in seniority.
… the plaintiffs aver that they have satisfied the causation requirement by alleging specific facts concerning how Montone’s political activities during the 2004 mayoral campaign resulted in the defendants refusing to promote Montone, and any other eligible sergeant, during Troy’s tenure as police chief.
