Herman Perez ; Diana Perez v. New Jersey Transit Corporation

Honorable Maurice Cohill, Jr., Senior District Judge for the United States District*
Court for the Western District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________
No. 07-3839
_____________
HERMAN PEREZ ; DIANA PEREZ,
Appellants
v.
NEW JERSEY TRANSIT CORPORATION; NEW JERSEY TRANSIT POLICE
DEPARTMENT; JOSEPH C. BOBER; JOHN RICCIARDI;
RICHARD GOLDSTEIN,
Appellees
On Appeal from the United States District Court
for the District of New Jersey
(No. 04-452)
District Judge: Honorable Garrett E. Brown, Jr., Chief Judge
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2008
Before: BARRY and CHAGARES, Circuit Judges, and COHILL, District*
Judge
(Opinion Filed: August 11, 2009 )

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Plaintiff Dianna Perez’s only claim is for loss of consortium, a claim entirely**
derivative of her husband's claims. Therefore, in discussing the operative facts, our
references to plaintiff, in the singular, are to Herman Perez.
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OPINION OF THE COURT
_____________
COHILL, Senior District Judge.
Herman Perez and his wife, Dianna Perez, appeal from the District
Court’s order granting the defendants’ motion for summary judgment and
dismissing all of the plaintiffs’ claims against the defendants with
prejudice. For the reasons that follow, we will affirm the grant of summary**
judgment on the violation of freedom of speech, negligent infliction of
emotional distress, and loss of consortium claims and will reverse the grant
of summary judgment on the discrimination based on national origin and
freedom of association claims. We will remand to the District Court for
further proceedings.
I.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332; this
Court has jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing an
order granting summary judgment, “[w]e exercise plenary review . . . and we

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apply the same standard that the lower court should have applied.” Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). 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.” Fed. R. Civ. P. 56(c)(2). In making this determination, we “view the
facts in the light most favorable to the nonmoving party and draw all
inferences in that party’s favor.” Farrell, 206 F.3d at 278 (citation omitted).
“There must, however, be sufficient evidence for a jury to return a verdict in
favor of the nonmoving party; if the evidence is merely colorable or not
significantly probative, summary judgment should be granted.” Armbruster
v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
Where the non-moving party will bear the burden of proof at trial, the
moving party’s burden can be “discharged by ‘showing’ . . . that there is an
absence of evidence to support the nonmoving party’s case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986). If the moving party has carried this
burden, the burden shifts to the non-moving party to point to sufficient
cognizable evidence to create material issues of fact “such that a reasonable
jury could find in its favor.” McCabe v. Ernst & Young, LLP, 494 F.3d 418,
424 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)); see Celotex, 477 U.S. at

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332. “[C]onclusory, self-serving affidavits are insufficient to withstand a
motion for summary judgment. Instead, the affiant must set forth specific
facts that reveal a genuine issue of material fact.” Kirleis v. Dickie,
McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir. 2009) (citing Blair
v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002); Maldonado v.
Ramirez, 757 F.2d 48, 51 (3d Cir. 1985)).
II.
Plaintiff Herman Perez (“Perez”), who is Hispanic, was hired as a
police officer by Defendant New Jersey Transit Police Department
(“NJTPD”) on January 7, 2002 for a one-year probationary period. (App.
187, 263) Defendant New Jersey Transit Corporation is the parent
corporation of Defendant NJTPD. Prior to being employed with the NJTPD
Perez had been employed as a Sheriff’s officer for the Hudson County, New
Jersey Sheriff’s Office (“HCSO”) for four years. (App. 101)
The plaintiffs’ complaint contained twelve (12) claims against each of
the defendants. The plaintiffs appeal the District Court’s grant of summary
judgment in favor of the defendants on all of their claims with the exception
of the court’s grant of summary judgment in favor of the defendants on
Count Three of the complaint which contained a 42 U.S.C. § 1983 claim
based upon due process violations during the investigation and termination

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of Perez. Because we write only for the parties, who are fully familiar with
the facts of this case, we move directly to the issues in dispute on appeal.
III.
The plaintiffs first argue that the District Court erred when it failed to
apply the Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), mixed-motive
analysis to the wrongful termination based on national origin discrimination
claims in light of the racist remarks uttered by the decision maker, Defendant
Joseph Bober (“Chief Bober”), prior to the adverse employment action.
Chief Bober is Caucasian and the former Chief of Police for the NJTPD.
(App. 380)
Our federal law analysis applies equally to New Jersey state law
discrimination claims. See Monaco v. Am. Gen. Assurance Co., 359 F.3d
296, 305 (3d. Cir. 2004). The standards of proof in a mixed-motive case
were set forth by Congress in the Civil Rights Act of 1991. See Desert
Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003) (quoting Landgraf v. USI Film
Prods., 511 U.S. 244, 251 (1994)) (noting that Ҥ 107 of the 1991 Act ...
‘responded’ to Price Waterhouse by ‘setting forth standards applicable in
mixed motive cases in two new statutory provisions'.”). Under the Civil
Rights Act of 1991, a mixed-motive plaintiff may establish an unlawful
employment practice by demonstrating “that race, color, religion, sex, or

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national origin was a motivating factor for any employment practice, even
though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m).
A plaintiff is not required to present “direct evidence of
discrimination in order to obtain a mixed-motive instruction under Title VII
of the Civil Rights Act of 1964, as amended by the Civil Rights Act of
1991.” Desert Palace, 539 U.S. at 92. A plaintiff who has circumstantial
evidence of discrimination may choose to proceed under either the
mixed-motive theory of Price Waterhouse or the burden shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) .
Turning to the relevant evidence of record viewed in a light most
favorable to the plaintiffs as the non-moving party, Perez was asked at his
deposition “why was Bober out to get you?” (App. 277) In response, Perez
stated:
He has a history of racism, according to his lieutenants and his
sergeants and the females on the job. He scared me one day
when I walked by. I was in Maplewood. I walked by the office,
and two officers were in there, and he was talking about
niggers and spics, how he was going to weed them out. And
how they weren’t going to get past his test, because he was
going to institute a new test now.
(App. 277) Perez also stated in an Affidavit that “defendant Bober loudly
stated in my presence that he would not allow ‘Spics and Niggers’ to run his
department within very close earshot of me. I know that Bober directed that

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comment at me and knew I was in the next room.” (App. 629)
While the District Court determined that this statement was an
“isolated incident,” we find that a reasonable jury could conclude that the
statement demonstrates that Perez’s national origin was a motivating factor
for Chief Bober’s decision to terminate him. Accordingly, the District Court
erred when it did not apply a mixed-motive analysis to the national origin
discrimination claims.
IV.
The plaintiffs also argue that the District Court erred in its application
of the McDonnell Douglas Corp. v. Green analysis to the facts of the case
because the plaintiffs presented sufficient evidence to raise triable issues of
fact that the defendants’ purported legitimate nondiscriminatory reason for
terminating Perez was a pretext to hide their true discriminatory intent. The
legitimate non-discriminatory reason proffered by the defendants for why
Chief Bober decided to terminate Perez was the filing of a complaint against
him by his neighbor Susan Rivera (“Ms. Rivera”) and his refusal to
cooperate with the NJTPD’s Office of Internal Affairs investigation of the
complaint.
In its Opinion, the District Court concluded that the plaintiffs had not
established that the defendants’ legitimate nondiscriminatory reason for

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terminating Perez was a pretext for discrimination. We disagree. To the
contrary, we find that the following evidence of record viewed in a light
most favorable to the plaintiffs, is evidence upon which a factfinder
reasonably could “believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer's action.”
Id. at 764.
First, Mary Frances Rabadeau, who immediately preceded Chief
Bober as the Chief of Police at the NJTPD, testified that her experience with
Chief Bober was that he was biased against minorities. For example, she
testified that Chief Bober improperly administered an exam for probationary
officers in a manner that disfavored female and minority officers.
Second, in or about October, 2002, Chief Bober stated to two other
NJTPD officers that he was going to weed out the “niggers and spics” from
the NJTPD, and by early January, 2003, Chief Bober had terminated Perez,
who is Hispanic.
Third, Gerard Robson, Perez’s supervisor, explained that it was
NJTPD policy that minor complaints, “discourtesy and stuff like that,”
would be referred immediately to the supervisor of an individual to be
handled at that level and sent back up the line; yet, with respect to Ms.
Rivera’s Complaint against Perez, Robson was not involved at all in the

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investigation but rather, Internal Affairs kept control of the investigation.
(App. 570)
Finally, despite the existence of numerous ethnic-based organizations
active at the NJTPD, when Chief Bober terminated Perez, the only ethnic
organization he referred to was a Hispanic organization. Accordingly, the
District Court erred when it granted summary judgment in favor of the
defendants on the emotional distress (count one), retaliation (counts two,
seven, eight, nine, and ten), and conspiracy (counts four and twelve) claims
based upon its determination that the plaintiffs had not established a genuine
issue of material fact that the defendants’ articulated reasons for Perez’s
termination were a pretext for discrimination.
V.
The plaintiffs next argue that the District Court erred when it granted
summary judgment in favor of the defendants on the freedom of speech
claims. There are two statements at issue. The first one was made by Perez
to Defendant John Ricciardi (“Captain Ricciardi”) and Defendant Richard
Goldstein (“Investigator Goldstein”) during the November 12, 2002 internal
affairs investigation interview concerning Ms. Rivera’s complaint against
Perez. During the relevant time period, Captain Ricciardi and Investigator
Goldstein worked in the internal affairs department of the NJTPD. (App.

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410) Ricciardi was a Lieutenant and later a Captain; Goldstein was an
Investigator. (App. 139, 474)
At the end of the interview all those present were discussing how
Perez was not to have contact with Ms. Rivera and that if she approached
him, he was to contact Captain Ricciardi immediately. (App. 131-132) A
discussion began as to what Perez was to do if Ms. Rivera approached him
and put a gun to Perez’s face or otherwise approached him. (App. 132)
During this conversation, Perez asked “I wonder what the Attorney General
would say if he knew that we’re encouraged to run away or to turn away
from crimes? I would be interested in knowing what the Attorney General
would have to say to something like that.” (App. 132)
The second statement at issue was the statement Perez made to
Sergeant Pat Clarke concerning violations of the AG Guidelines that Perez
said he observed at the NJTPD whereby officers, both Hispanic and non-
Hispanic, were denied procedural protections guaranteed to them with regard
to Internal Affairs investigations: “I voiced concerns over the method of
investigating. And how investigations, if they’re minor, discipline should go
to your immediate supervisor; and how in this department, Ricciardi and
Goldstein running Internal Affairs, were not, were not following the
guidelines. And they have their own policy and procedure.” (App. 246-247)

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“To state a First Amendment retaliation claim, a public employee
plaintiff must allege that his activity is protected by the First Amendment,
and that the protected activity was a substantial factor in the alleged
retaliatory action.” Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009).
“The first factor is a question of law; the second factor is a question of fact.”
Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006).
“A public employee's statement is protected by the First Amendment
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.’” Gorum, 561 F.3d at 185 (citations omitted). Moreover:
“Whether an employee's speech addresses a matter of public
concern must be determined by the content, form, and context
of a given statement, as revealed by the whole record.” “The
content of speech on a matter of public concern generally
addresses a social or political concern of the community,” thus
implicating significant First Amendment concerns.”
Id. at 187 (citations omitted).
Focusing on the content, form, and context of Perez’s statement made
to Captain Ricciardi and Investigator Goldstein during the November 12,
2002 internal affairs investigation interview, the District Court correctly
found that this statement does not constitute protected speech. Similarly,

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focusing on the content, form, and context of Perez’s complaint to Sergeant
Clarke, the District Court correctly concluded that such a statement does not
constitute protected speech; even viewed in a light most favorable to the
plaintiffs, Perez’s statement to Sergeant Clarke encompassed both minority
and non-minority officers being denied certain procedural protections and
did not contain any allegations that the denial was based upon the officers’
race, gender, or national origin.
Even assuming, however, that both of these statements qualified as
speech protected under the First Amendment, and that the District Court
erred in concluding otherwise, we would still affirm the District Court’s
grant of summary judgment in favor of the defendants on the plaintiffs’
freedom of speech claims due to a complete lack of evidence establishing the
causation element of the plaintiffs’ freedom of speech claim. The District
Court correctly found that there was not such an “unusually suggestive”
proximity in time between the alleged protected speech, one statement made
November 2002 and the other at an unknown time, and the adverse action of
Perez’s termination in January 2003, that this single fact raises a genuine
issue of material fact as to the requisite causal connection. See Marra v.
Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007). The District Court
also correctly concluded that causation was not established by Chief Bober’s

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comment about a Hispanic organization at the time of Perez’s termination,
especially since there was nothing in the record to support the conclusion
that Chief Bober was even aware of any of the statements made by Perez to
Captain RicciardI and Investigator Goldstein or to Sergeant Clarke prior to
his decision to terminate Perez. See Ambrose v. Twp. of Robinson, Pa., 303
F.3d 488, 493 (3d Cir. 2002).
Accordingly, the District Court did not err when it granted summary
judgment in favor of the defendants with respect to the freedom of speech
claims.
VI.
The plaintiffs also argue that the District Court erred when it granted
summary judgment in favor of the defendants on the freedom of association
claim. They contend that Perez’s termination was due to the lawful exercise
of his right of association, that is, Perez’s formation of and participation in
the Hispanic Law Enforcement Association (“HLEA”). It is undisputed that
this activity is protected under the First Amendment.
As with the freedom of speech claim, in order to establish that the
defendants violated Perez’s right to freedom of association, the plaintiffs
must demonstrate that Perez’s protected conduct was a “substantial or
motivating factor” in Chief Bober’s decision to terminate him. See Rode v.

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Dellarciprete, 845 F.2d 1195, 1204 (3d Cir. 1988) (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
The District Court concluded that the plaintiffs did not establish a
genuine issue of material fact that the defendants interfered with Perez’s
association with HLEA. Contrary to the District Court’s conclusion, we find
that in light of Chief Bober’s statement, made at the time of Perez’s
termination, that no “Hispanic organization” was “going to stand up to [him]
and undermine [his] authority,” a reasonable jury could conclude that
Perez’s protected association with HLEA was a substantial or motivating
factor in Chief Bober’s decision to terminate Perez. Accordingly, the
District Court erred when it granted the defendants’ motion for summary
judgment on the freedom of association claim.
VII.
Finally, the plaintiffs argue that the District Court erred when it
dismissed the plaintiffs’ emotional distress and loss of consortium claims.
With respect to the emotional distress claim, N.J.S.A. 59:9-2d
requires that a plaintiff seeking pain and suffering damages against a public
entity or public employee such as the defendants must show that he suffered:
(1) an objective permanent injury constituting at least $3,600 in medical
treatment expenses and (2) a permanent loss of a substantial bodily function.

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See Knowles v. Mantua Tp. Soccer Ass'n, 176 N.J. 324, 329, 823 A.2d 26,
29 (2003).
The only evidence submitted in support of the claim of an objective
permanent injury was a psychologist’s report that stated that Perez suffered
from mixed anxiety and depression and that some of his symptoms “may be
permanent.” (App. 548) This report does not raise a genuine issue of
material fact as to whether Perez suffered an objective permanent injury.
Therefore, the District Court properly dismissed the emotional distress
claim.
With respect to Mrs. Perez’s loss of consortium claim, the District
Court concluded that because Perez’s tort claims were subject to dismissal,
his wife’s derivative loss of consortium claim also was subject to dismissal.
We agree. Because the emotional distress claim against the defendants has
been dismissed, Mrs. Perez’s derivative claim for loss of consortium cannot
proceed and must be dismissed. The District Court correctly dismissed the
loss of consortium claim.
VIII.
For the reasons articulated above, we will affirm the grant of
summary judgment on the freedom of speech claims (counts two and five),
negligent infliction of emotional distress claim (count one), and loss of

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consortium claim (count eleven) and will reverse the grant of summary
judgment on the discrimination based upon national origin claims (counts
four, six, seven, eight, nine, ten and twelve) and freedom of association
claim (count two). We remand the matter to the District Court for further
proceedings consistent with this Opinion. Costs to be taxed against
appellants.
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