KEITH STOUCH; ROSEMARY STOUCH, his wife v. the Township of Irvington

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3264
KEITH STOUCH; ROSEMARY STOUCH, his wife,
Appellants
v.
THE TOWNSHIP OF IRVINGTON; IRVINGTON POLICE
DEPARTMENT; CHIEF MICHAEL CHASE; JOHN DOES
1-10, all jointly, severally and individually;
MICHAEL DAMIANO, Director
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 03-cv-06048)
District Judge: Honorable Joseph A. Greenaway
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2009
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Opinion Filed: November 24, 2009)
OPINION
BARRY, Circuit Judge
Keith Stouch appeals from the order of the District Court granting defendants’

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motions for summary judgment. We will affirm.
I.
Stouch became a member of the Irvington, New Jersey Police Department in
August 1994, and was terminated on December 31, 2003 after he was found to be
psychologically unfit for duty. In essence, Stouch believes that he was retaliated against
because of his speech criticizing the police department, and discriminated against because
of a disability, in violation of the Americans with Disabilities Act (“ADA”) and the New
Jersey Law Against Discrimination (“NJLAD”).
It is apparent that Stouch repeatedly complained about various policies, conditions,
and incidents in the police department over the years, but for the most part, he has failed
to set forth with any specificity the dates, content, and context of what he said, and to
whom. We cite but a few of those numerous complaints. He complained, for example,
that he was asked to falsify reports on at least two occasions, and although he believed it
was “commonplace” for other officers to falsify their reports, he could not identify any
specific instances. (App. at 60.) He also complained that officers and supervisors
falsified their time sheets and slept in their cars or watched television at the police station
rather than patrolling, and that there was a practice of not properly responding to 911
calls. He complained, as well, that officers abused the sick leave policy by blatantly
ignoring it and suffering no repercussions, although he admitted that he did not have
access to other officers’ medical records or personnel files. He was outspoken about the
conditions of the communications room, where he worked periodically, complaining that

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Stouch filed a complaint about the room’s conditions with the Occupational Safety1
and Health Administration (OSHA) in June or July 2003.
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it was moldy, uncomfortably warm, and infested with cockroaches and mice. In March1
2003, he met with an FBI agent to report that he believed that Chief Michael Chase had
been involved in illegal activity concerning stolen goods sometime between 1980 and
1985.
Stouch believed that he was retaliated against, primarily by enforcement of the sick
leave policy, because he spoke out about what he perceived to be improprieties in the
police department. The sick leave policy provides for “sick checks” whereby officers
appear unannounced at the sick officer’s home to ensure that he is actually at home
recuperating. Stouch testified that officers appeared at his house at night to conduct sick
checks. He did not claim that these visits violated the sick leave policy, but rather that
they violated his constitutional rights, and that the policy was enforced only against him.
He also believed that the grooming policy, which he purposefully violated, was
disparately enforced against him. In a report regarding Stouch’s grooming policy
violation, a police captain stated:
Officer Stouch is constantly defiant of lawful authority in matters involving
his actions within the agency. He makes a point of his defiance by
threatening legal action and claiming to be acting on advice of counsel. On
other occasions he has made even written demands of supervisors to report
to him in writing their reasons for actions taken by them and gets upon his
“soapbox” in gatherings of officers expressing his prowess. I believe he is
generally a good and extremely competent police officer however he takes
pride in his open insubordination to every act he does not personally agree
with and looks to make “a point” whenever possible.

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(App. at 236.) Finally, Stouch believed that his assignment to the communications room
was in retaliation for having “complained about that room constantly.” (Id. at 90.)
Stouch went on sick leave in July 2003 after an incident with another officer,
during which Patrolman Brian Rice allegedly threatened him. Stouch’s physician, Dr.
Lawrence Eisenstein, sent a letter to Chief Chase which stated that Stouch had been
diagnosed with post-traumatic stress disorder (“PTSD”), which he believed had been
triggered by the incident with Patrolman Rice. Dr. Eisenstein stated that Stouch was fit to
carry his weapon and return to work as of September 30, 2003. He requested that Stouch
be exempted from the sick leave policy requirements and be permitted to leave his house
while recuperating.
Stouch was ordered to submit to a fitness for duty exam. Alvin Krass, Ph.D.
evaluated Stouch and found that he did not have any of the “fears, concerns or responses
that are noted with individuals who are suffering from Post-Traumatic Stress.” (App. at
207.) Dr. Krass found that some of Stouch’s responses to the psychological testing
indicated a “sense of resistance toward authority.” (Id.) Dr. Krass concluded that Stouch
“is not fit to return for work as a police officer” because his test results “support the
impression that he is a significantly, if not profoundly, emotionally maladjusted and
disturbed person in need of continuing professional care.” (Id. at 209.) Stouch was also
evaluated by John Motley, M.D., who rejected the PTSD diagnosis and diagnosed him
with a personality disorder with paranoid and narcissistic traits which “interfere[s] [with]
his ability to work cooperatively within the rules of his department.” (Id. at 205.) Dr.

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Motley opined that Stouch “will continue to be a constant irritant to his superiors and
fellow officers.” (Id.)
Stouch was served with a Preliminary Notice of Disciplinary Action which alerted
him that he had been charged with inability to perform his duties and faced removal from
his position. A hearing was held on December 16, 2003, but he did not attend. The
hearing officer found that he had been adequately notified and concluded that the
department had appropriately dismissed him because he was psychologically unfit to
serve as a police officer. Stouch was formally terminated as of December 31, 2003. He
appealed his dismissal, and the dismissal was upheld by an administrative law judge
(“ALJ”) after four days of hearings. The ALJ found that “Stouch’s history of
employment in the Department demonstrates a longstanding and consistent pattern of
unwillingness or inability to conform his conduct to that required of a municipal police
officer.” (App. at 223.) Stouch appealed to the Merit System Board, which affirmed on
February 1, 2007.
Meanwhile, on December 19, 2003, Stouch, joined by his wife, filed a complaint
in the U.S. District Court against Irvington Township, the Irvington Police Department,
and Police Chief Michael Chase, a complaint later amended to also name Police Director
Michael Damiano as a defendant. The amended complaint stated claims of, inter alia,
First Amendment retaliation, violation of Stouch’s due process rights, violations of the
ADA and NJLAD, and loss of consortium. On June 30, 2008, the District Court granted
defendants’ motions for summary judgment. This timely appeal followed.

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II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and
1367(a), and we have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order
granting summary judgment is plenary, and we apply the same standard as the District
Court to determine whether summary judgment was proper. Acumed LLC v. Advanced
Surgical Servs., Inc., 561 F.3d 199, 211 (3d Cir. 2009); see Fed. R. Civ. P. 56(c)
(summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law”). While we view the
facts in the light most favorable to Stouch as the non-moving party, he “must introduce
more than a scintilla of evidence showing that there is a genuine issue for trial; [he] must
introduce evidence from which a rational finder of fact could find in [his] favor.”
Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (citation and internal
quotations omitted).
III.
A. First Amendment Retaliation
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006). In order to succeed on his First Amendment
retaliation claim, Stouch must demonstrate “that his activity is protected by the First
Amendment, and that the protected activity was a substantial factor in the alleged

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If Stouch satisfied both factors, the burden would shift to the defendants to show2
that “the same action would occur if the speech had not occurred.” Gorum, 561 F.3d at
184.
Because neither the District Court nor the parties addressed whether Stouch’s3
“speech” was made as a citizen or in the course of his duties as a police officer, for ease
of analysis, we will also assume that Stouch spoke as a citizen. To the extent that Stouch
has adequately identified the speech to which he is referring, police misconduct is indeed
a matter of public concern. See Baldassare, 250 F.3d at 195 (noting that attempts “to
bring to light actual or potential wrongdoing or breach of public trust” can constitute a
matter of public concern) (internal quotations and citation omitted); Feldman v. Phila.
Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994) (“Disclosing corruption, fraud, and illegality
in a government agency is a matter of significant public concern.”).
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retaliatory action.” Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009). “A public2
employee’s statement is protected activity when (1) in making it, the employee spoke as a
citizen, (2) the statement involved a matter of public concern, and (3) the government
employer did not have ‘an adequate justification for treating the employee differently
from any other member of the general public’ as a result of the statement he made.” Hill
v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quoting Garcetti, 547 U.S.
at 418).
Stouch’s primary argument before us is that he was terminated in retaliation for his
speech regarding: (1) falsification of time sheets; (2) falsification of reports; (3) improper
responses to 911 calls; and (4) racial discrimination and sexual harassment in the
department. It is difficult to identify the exact speech to which Stouch refers, much less
when and in what context it took place. See Baldassare v. New Jersey, 250 F.3d 188, 195
(3d Cir. 2001) (noting the importance of the “content, form, and context of the activity in
question”). Even assuming arguendo that Stouch’s “speech” was protected by the First
Amendment, there is no evidence that this speech was in any way related to, let alone a3

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substantial factor in his termination. While Stouch is correct that this is a factual
question, Gorum, 561 F.3d at 184, in order to survive a motion for summary judgment, he
was required to set forth sufficient evidence that would permit a reasonable jury to reach
the conclusion he would have them reach. Hill v. City of Scranton, 411 F.3d 118, 127 (3d
Cir. 2005). Stouch simply did not do so.
Accordingly, to the extent that Stouch engaged in activities protected by the First
Amendment, the District Court correctly found that no reasonable jury could conclude
that his speech was a “substantial factor” in his termination.
B. Discrimination on the Basis of Disability
The ADA provides that “[n]o covered entity shall discriminate against a qualified
individual on the basis of disability in regard to . . . [the] discharge of employees . . . and
other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To
establish a prima facie case under the ADA, a plaintiff must show that he (1) has a
disability; (2) is a qualified individual; and (3) has suffered an adverse employment action
because of that disability. Turner v. Hershey Chocolate USA, 440 F.3d 604, 611 (3d Cir.
2006). Once a plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for the adverse employment action. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). The plaintiff then
bears the burden of establishing that this proffered reason is a pretext for discrimination.
The District Court found that Stouch did not make out a prima facie case because

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he did not demonstrate that he had a disability. Stouch argues before us that he is
disabled because his neck and back surgeries, necessitated by his work injuries,
“precluded [him] from doing work that involved lifting and carrying.” (Appellant’s Br. at
61.) He also mentions, without elaboration, his diagnosis of PTSD. He argues that he
was otherwise qualified to be a police officer in light of his physician’s opinion that
“there would be no problem with [Stouch] carrying out his daily duties as a police
officer.” (App. at 131.)
But assuming arguendo that Stouch has made out a prima facie case, defendants
have set forth legitimate, non-discriminatory reasons for his termination. The consulting
psychologist found that Stouch was psychologically unfit for duty, and the consulting
psychiatrist diagnosed him with a personality disorder that interfered with his ability to
work cooperatively as a police officer. His termination was affirmed by the ALJ after a
hearing and by the Merit System Board.
There is no evidence that the stated reasons for Stouch’s termination were a pretext
for the defendants to discriminate against him on the basis of a disability. As we have
explained:
In order to prove the employer’s explanation is pretextual, the plaintiff must
“cast [ ] sufficient doubt upon each of the legitimate reasons proffered by
the defendant so that a factfinder could reasonably conclude that each
reason was a fabrication . . . or . . . allow[ ] the factfinder to infer that
discrimination was more likely than not a motivating or determinative cause
of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 762
(3d Cir. 1994). A plaintiff who has made out a prima facie case may defeat
a motion for summary judgment by either “(i) discrediting the employer’s

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Stouch also argues that he was discriminated against on the basis of a disability in4
violation of the NJLAD. N.J. Stat. Ann. § 10:5-4.1. A plaintiff’s burden to establish a
prima facie case of discrimination under the NJLAD is less onerous than under the ADA,
Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998), but the Supreme Court of
New Jersey has otherwise adopted the McDonnell Douglas burden-shifting framework.
Viscik v. Fowler Equip. Corp., 800 A.2d 826, 833-34 (N.J. 2002). Therefore, the District
Court properly granted summary judgment on this claim as well.
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proffered reasons, either circumstantially or directly, or (ii) adducing
evidence, whether circumstantial or direct, that discrimination was more
likely than not a motivating or determinative cause of the adverse
employment action.” Id. at 764.
Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007) (alterations in original). Stouch has
failed to carry this burden.4
C. Retaliation in Violation of the ADA and NJLAD
The ADA prohibits discrimination against an individual who has “opposed any act
or practice made unlawful by [the ADA]” or who has “made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing” under the ADA.
42 U.S.C. § 12203(a). To establish a prima facie case of retaliation under the ADA,
Stouch was required to show: “(1) protected employee activity; (2) adverse action by the
employer either after or contemporaneous with the employee’s protected activity; and (3)
a causal connection between the employee’s protected activity and the employer’s adverse
action.” Williams v. Phila. Hous. Auth. Police Dept., 380 F.3d 751, 759 (3d Cir. 2004)
(internal quotations and citations omitted). A plaintiff need not be “disabled” under the
ADA to prevail on a retaliation claim. Id. at 759 n.2. The McDonnell Douglas burden-
shifting framework also applies to ADA retaliation claims. Id. at 760 n.3.

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Because we employ the same test to evaluate a claim of retaliation under the5
NJLAD, Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1192 (N.J. 2008), Stouch’s
claim of retaliation in violation of the NJLAD also fails.
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Stouch has not explained why any of his activities – including his request for a
different light duty job, his complaint to OSHA, and his request for exemption from the
sick check policy – are protected under the ADA. His complaints to supervisors and
OSHA about the communications room were not related to any disability but, rather,
focused on his dissatisfaction with the conditions of the room. With respect to his
physician’s request that he be “allowed to leave his house freely without potential
retaliatory actions by the [police] department” (App. at 131), he does not explain why this
constituted a request for accommodation based on a disability. In any event, as we have
already described, defendants have asserted legitimate, non-discriminatory reasons for
Stouch’s termination and Stouch has failed to demonstrate that these reasons were a
pretext for unlawful retaliation.5
D. Hostile Work Environment
To establish a cause of action for a hostile work environment under the NJLAD, a
plaintiff must demonstrate “that the complained-of conduct (1) would not have occurred
but for the employee’s protected status, and was (2) severe or pervasive enough to make a
(3) reasonable person believe that (4) the conditions of employment have been altered and
that the working environment is hostile or abusive.” Shepherd v. Hunterdon
Developmental Ctr., 803 A.2d 611, 625 (N.J. 2002) (citing Lehmann v. Toys ‘R’ Us, Inc.,

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626 A.2d 445 (N.J. 1993)). There is simply no evidence to support Stouch’s claim that
the sick leave policy was enforced against him because of comments he made about racial
discrimination.
E. Due Process
Finally, Stouch alleges that his due process rights were violated because, although
he received a notice of the disciplinary hearing which led to his termination, he believed
that the date of the hearing had been changed and he therefore did not attend. It is clear,
however, that the procedural protections afforded him were more than adequate to satisfy
the due process requirements of notice and opportunity to be heard. See Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Stouch received notice of the December
16, 2003 hearing and the charges against him, and it is unclear why he did not attend.
The hearing was held in his absence after the hearing officer concluded that he had
received adequate notice. He appealed the hearing officer’s decision upholding his
termination to the Office of Administrative Law, and the ALJ held a four-day hearing.
Stouch then appealed this decision to the Merit System Board, which affirmed.
Accordingly, Stouch’s due process argument is without merit.
IV.
For the foregoing reasons, we will affirm the order of the District Court.

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