2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-2012

Jessennia Rodas Montalvo v. City of Newark

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2818

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2818

_____________

JESSENNIA RODAS MONTALVO; JOSE MONTALVO

v.

CITY OF NEWARK; VINCENT GAGLIANO; VINCENT DEMAIO; LILLIAN 

MEJIAS; ANTHONY AMBROSE, III; IRVING BRADLEY; JOHN AND JANE DOES 

10

CITY OF NEWARK,

 Appellant

_____________

No. 11-3899

_____________

JESSENNIA RODAS MONTALVO; JOSE MONTALVO

JOSE MONTALVO,

 Appellant

v.

CITY OF NEWARK; VINCENT GAGLIANO; LILLIAN MEJIAS; 

ANTHONY AMBROSE, III; IRVING BRADLEY; SAMUEL DEMAIO; 

JOHN AND JANE DOES 10

_____________

On Appeal from the United States District Court

for the District of New Jersey

(No. 2:06-cv-01505)

District Judge: Hon. Susan D. Wigenton
2

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 15, 2012

Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

(Filed: December 21, 2012)

____________

OPINION

____________

CHAGARES, Circuit Judge.

In the District Court for the District of New Jersey, a jury found that the City of 

Newark wrongfully terminated Jose Montalvo for retaliatory reasons, in violation of the 

New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. § 10:5-1 et seq., and 

awarded him a judgment of $700,000. The City of Newark (“Newark”) appeals the 

District Court‟s denial of its renewed motion for judgment as a matter of law or, in the 

alternative, motion for a new trial. Montalvo cross-appeals, seeking review of the 

District Court‟s denial of his request for reinstatement to the Newark Police Department.

For the reasons expressed below, we will affirm as to the District Court‟s denial of 

Newark‟s renewed motion for judgment as a matter of law and motion for a new trial. 

We will also affirm as to the District Court‟s denial of Montalvo‟s request for 

reinstatement.
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I.

Because we write solely for the parties‟ benefit, we recite only the facts essential 

to our disposition. Montalvo was a police officer in the Newark Police Department 

(“NPD”) from 1990 until 2006, when his employment was terminated. Following his

termination, Montalvo brought suit in District Court, alleging, among other things, that he 

was fired in retaliation for an affirmative action complaint he filed on April 22, 2005. 

That complaint alleged harassment and unfair treatment commencing in 2000, the year in 

which Montalvo fired his weapon at a Newark citizen, injuring the victim‟s spleen.1 

Montalvo argued before the jury that, after filing the affirmative action complaint, he 

experienced a pattern of antagonism leading to his discharge in 2006.

The jury also heard evidence in support of Montalvo‟s claim against Newark for 

wrongful race-based termination, but the jury found in favor of Newark on that claim. 

However, the jury did find that Newark retaliated against Montalvo for the filing of an 

affirmative action complaint, and awarded Montalvo damages in the amount of $700,000. 

Newark renewed its motion for judgment as a matter of law and moved, in the 

alternative, for a new trial. The District Court denied those motions, and Newark now 

 

1 After the shooting, the Federal Bureau of Investigation began investigating Montalvo 

for civil rights violations, and took custody of Montalvo‟s duty weapon. Having been 

relieved of his weapon, Montalvo was reassigned to different divisions that did not 

require carrying a weapon. In particular, Montalvo was assigned to cell block duty for a 

period of time longer than any other officer had previously received, trial witnesses 

testified. As an officer of the NPD stated at trial, “[c]ell block is traditionally for 

individuals that they want to punish. It‟s like becoming a political prisoner . . . .” 

Montalvo Appendix (“M. App.”) 134. Montalvo testified before the jury that he had 

requested the return of his weapon or issuance of a replacement weapon, transfer to 

another department, and replacement of a firearms identification card he had lost, but that

he received no response to his requests.
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appeals their denial. Montalvo filed a motion for reinstatement to the Newark Police 

Department which the District Court denied, and which Montalvo cross-appeals here.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have 

jurisdiction pursuant to 28 U.S.C. § 1291. In a challenge to the District Court‟s denial of 

judgment as a matter of law, we exercise plenary review, applying the same standard as 

the trial court. Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 492 (3d Cir. 2002). A 

motion for judgment as a matter of law “should be granted only if, viewing the evidence 

in the light most favorable to the nonmovant and giving it the advantage of every fair and 

reasonable inference, there is insufficient evidence from which a jury reasonably could 

find liability.” Id. We review the denial of Newark‟s motion for a new trial for abuse of 

discretion. Roebuck v. Drexel Univ., 852 F.2d 715, 735 (3d Cir. 1988).

As for Montalvo‟s appeal of the District Court‟s decision to deny him 

reinstatement, we review that for abuse of discretion as well. Feldman v. Phila. Hous.

Auth., 43 F.3d 823, 832 (3d Cir. 1994).

III.

In order to establish a prima facie case of retaliation under the NJLAD, Montalvo 

was required to show that he engaged in an activity protected by the statute and that the 

activity was known to his employer, that an adverse employment action was taken against 

him by his employer either at the same time or after the protected activity took place, and 

that his “participation in the protected activity caused the retaliation.” Craig v. Suburban 

Cablevision, 660 A.2d 505, 508 (N.J. 1995). Newark argues that the jury verdict could 
5

not have been properly reached because Montalvo failed to offer evidence creating a 

causal link between his engagement in a protected activity (the 2005 filing of the 

affirmative action complaint) and the adverse employment action (his termination). 

Under New Jersey law, “causal connection may be demonstrated by evidence of 

circumstances that justify an inference of retaliatory motive.” Romano v. Brown & 

Williamson Tobacco Corp., 665 A.2d 1139, 1142 (N.J. Super. Ct. App. Div. 1995).

In the instant case, Montalvo argues that evidence of circumstances justifying an 

inference of retaliatory motive was proven at trial — namely, that “immediately after he 

filed his complaint he was beset by a series of petty harassments on his job and that 

attempts were made to bring him up on charges many times,” as well as having “a 

harassing epithet by a superior officer” aimed at him. Montalvo Br. 19. Montalvo 

testified at trial that, after his submission of the affirmative action complaint on April 22, 

2005, he served a twenty-day suspension for the shooting that had taken place in 2000. 

M. App. 152-53. Moreover, he testified that, also in 2005, he “started getting brought up 

on charges for stuff like spilling coffee on [his] shirt,” that “they tried to bring [him] up 

on charges numerous times,” and that Montalvo was referred to as “a Puerto Rican” in an 

incident that “should have been reported through the rules and regulations,” but was not. 

Id. at 164-65. Although Newark may argue that this evidence was not credible, this 

testimony nevertheless presents circumstances sufficient to support an inference of 

retaliatory motive and, therefore, sufficient to support the jury‟s verdict.

Newark further argues that it offered evidence that it had a legitimate 

nondiscriminatory reason for terminating Montalvo — specifically, that Montalvo had 
6

made false sworn statements during an internal investigation, and that he had disclosed 

confidential information about that investigation. Joint Appendix (“J. App.” 326-41). 

However, a reasonable jury may nevertheless have found that this proffered reason was 

pretextual, in light of the evidence of a pattern of antagonism against Montalvo after he 

filed his affirmative action complaint, and in light of testimony that “many [officers] 

were charged with false statements that weren‟t terminated.” M. App. 102.

Newark also contends that Anthony Campos, the Chief of the NPD in 2006, who

ultimately terminated Montalvo‟s employment, did not know that Montalvo had filed the 

2005 affirmative action complaint. Therefore, Newark argues, Montalvo‟s termination 

could not have been retaliatory, since retaliation under the NJLAD requires a showing 

that the plaintiff‟s employer knew of the plaintiff‟s engagement in protected activity. 

Craig, 660 A.2d at 508. Montalvo responds that the jury may have chosen not to believe 

Campos‟s testimony that he had no knowledge of the affirmative action complaint. 

Furthermore, the New Jersey Supreme Court has held that, where the individual directly 

responsible for a plaintiff‟s termination relies upon an evaluation prepared by others, 

“jurors may infer a causal connection based on the surrounding circumstances,” and a 

jury may “reasonably conclude[]” that the individual responsible for the termination 

decision “relied on a „tainted‟ evaluation prepared by” another employee. See Estate of 

Roach v. TRW, Inc., 754 A.2d 544, 551-52 (N.J. 2000) (discussing retaliation claims 

under the Conscientious Employee Protection Act (“CEPA”)); see also Abbamont v. 

Piscataway Twp. Bd. Of Educ., 650 A.2d 958, 964 (N.J. 1994) (explaining that, because 

the NJLAD and CEPA share common public policy goals, the standard to be applied in 
7

an action under each statute is the same). Because Campos terminated Montalvo after 

having read the recommendation of a trial board, M. App. 215, a jury that found 

circumstances justifying an inference of retaliatory motive against Montalvo could 

reasonably have concluded that such antagonism motivated the trial board‟s 

recommendation. Accordingly, we will affirm the District Court‟s denial of Newark‟s 

renewed motion for judgment as a matter of law and motion for a new trial.

IV.

We turn next to Montalvo‟s request for reinstatement. In the age discrimination 

context, this Court has held that “[b]ack pay coupled with reinstatement is the preferred 

remedy to avoid future damages.” Blum v. Witco Chem. Corp., 829 F.2d 367, 373 (3d 

Cir. 1987). However, we have also held that “reinstatement is not the exclusive remedy, 

because it is not always feasible, such as when there exists irreparable animosity between 

the parties.” Feldman, 43 F.3d at 831 (quotation marks omitted). 

The District Court acknowledged its duty “to take into consideration all of the 

factors, the circumstances, the history that exists, and the particular circumstance that‟s 

before the Court in this case.” M. App. 22. In particular, the District Court considered 

the question of whether there was too much animosity between Montalvo and the Newark 

Police Department for Montalvo to resume his work there. Id. at 228. The District Court 

highlighted the attention paid in discovery and at trial to the allegations that the Director 

of the Newark Police Department had an affair with Montalvo‟s ex-wife. The District 

Court reasoned that “it would be extremely difficult . . . for the Court to say to Mr. 

Montalvo, „go back into that scenario and go back into that situation and pick up where 
8

you left off,‟ when obviously there‟s extreme animosity” between Montalvo and the 

Director, as well as between Montalvo and other members of the Department. Id. 

Moreover, as the District Court pointed out, “the request is essentially for a short-lived 

reinstatement,” which the District Court found did not manifest “a real interest . . . to 

return to that position . . . .” Id. at 228-29. Given this reasoning, we conclude that the 

District Court did not abuse its discretion in denying Montalvo reinstatement.

V.

For the foregoing reasons, we will affirm the District Court‟s denial of Newark‟s 

motion for a new trial and renewed motion for judgment as a matter of law, and we will 

also affirm the District Court‟s decision not to order Montalvo‟s reinstatement.