2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-8-2013

Valerie Montone v. City of Jersey City

Precedential or Non-Precedential: Precedential

Docket No. 11-2990

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 11-2990 and 11-3516

____________ 

 

VALERIE MONTONE,

 Appellant in No. 11-2990

v.

CITY OF JERSEY CITY;

JERSEY CITY POLICE DEPARTMENT; 

MAYOR JERRAMIAH HEALY, 

in his individual and official capacities; 

POLICE CHIEF ROBERT TROY,

in his individual and official capacities

____________ 

JOHN ASTRIAB; CLYDE BANKS; 

JAMES BUCKLEY; WILLIAM CULLINANE; 

RICHARD DESTEFANO; DAVID LABRUNO; 

EZIO SCERBO; JOHN WHALEN,

 Appellants in No. 11-3516

v.

CITY OF JERSEY CITY;

JERSEY CITY POLICE DEPARTMENT; 
2

MAYOR JEREMIAH HEALY, in his individual and official 

capacities;

POLICE CHIEF ROBERT TROY, in his individual and 

official capacities; 

BUSINESS ADMINISTRAT BRIAN O'REILLY, in his 

individual and official capacities

___________ 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-06-cv-00280 and 2-06-cv-03790)

District Judge: Honorable Stanley R. Chesler

___________ 

Argued September 25, 2012

Before: McKEE, Chief Judge, JORDAN and VANASKIE, 

Circuit Judges.

(Filed: March 8, 2013)

Lisa Manshel, Esq. ARGUED

Francis & Manshel

150 Essex Street, Suite 205

Millburn, NJ 07041

Counsel for Appellant Valerie Montone

Patricia Breuninger, Esq.

Kathleen P. Ramalho, Esq. ARGUED

Breuninger & Fellman

1829 Front Street

Scotch Plains, NJ 07076
3

Counsel for Appellants John Astriab, Clyde Banks, James 

Buckley, William Cullinane, Richard DeStefano, David 

LaBruno, Ezio Scerbo, and John Whalen

Richard A. Gantner, Esq. ARGUED

Nee, Beacham & Gantner

722 Courtyard Drive

Hillsborough, NJ 08844

Counsel for Appellees City of Jersey City, Jersey City Police 

Department, and Jerramiah Healy

Domenick Carmagnola, Esq. ARGUED

Carmagnola & Ritardi, LLC

60 Washington Street, Third Floor

Morristown, NJ 07960

Counsel for Appellee Robert Troy

___________ 

OPINION OF THE COURT 

___________

VANASKIE, Circuit Judge.

This consolidated appeal consists of two cases in 

which current and former sergeants in the Jersey City Police 

Department accuse defendants Jersey City, the Jersey City 

Police Department, Jersey City Mayor Jerramiah Healy 

(collectively, “Jersey City”), and former Jersey City Police 

Chief Robert Troy of retaliation for exercise of First 

Amendment rights and discrimination, in violation of 42 

U.S.C. § 1983 and New Jersey state law. The District Court 

granted the defendants‟ motions for summary judgment. For 
4

the reasons that follow, we will vacate the judgments of the 

District Court. 

I. FACTUAL AND PROCEDURAL HISTORY

A. Factual History

Plaintiff Valerie Montone was a police officer with the 

Jersey City Police Department (“JCPD”) from January, 1981 

until April, 2010, when she retired as a sergeant. Plaintiffs 

John Astriab, Clyde Banks, James Buckley, William 

Cullinane, Richard DeStefano, David LaBruno, Ezio Scerbo, 

and John Whalen (the “Astriab plaintiffs”) are present or 

former sergeants in the JCPD. The plaintiffs‟ claims arise out 

of their failure to be promoted from the rank of sergeant to 

lieutenant during Healy and Troy‟s tenure as mayor and 

police chief, respectively. 

In 2004, Healy ran for mayor in a special election to 

complete the previous mayor‟s unexpired term. Montone 

supported opposing mayoral candidate Lou Manzo, and used 

saved vacation time to work in a leadership capacity on 

Manzo‟s campaign.

The campaign became particularly heated and 

personal, including allegedly threatening statements. Healy 

ultimately won the election, and appointed Troy as police 

chief in November, 2004. Troy served in this capacity until 

his retirement in July, 2006. 

As police chief, Troy had the authority to make 

promotions within the JCPD. Promotions from sergeant to 

lieutenant in the JCPD are made from the “Eligible/Fail 
5

Roster,” informally known as “the promotion list.” (Montone

Appendix 450-52 [“M.A”].) Officers are ranked on the list 

based on their performance on a civil service examination. 

Promotions to lieutenant are generally made starting at the top 

of the list with the most highly-ranked candidate and working 

down the list in numerical order.

1

 

Plaintiffs claim that all promotions from sergeant to 

lieutenant were halted by Healy and Troy during Troy‟s 

tenure as police chief to penalize Montone for her support of 

Mayor Healy‟s opponent. Each of the plaintiffs had passed 

the civil service examination required to be promoted to the

rank of lieutenant and were ranked accordingly on the 2003-

2006 promotion list. From November 2004, when Healy and 

Troy took office, to January 15, 2006, when the promotion 

list expired,2 Montone was ranked fifth out of thirty-nine 

eligible officers. The other plaintiffs were ranked as follows. 

Scerbo was first; LaBruno, second; Whalen, third; Buckley, 

seventh; Cullinane, eighth; Banks, ninth; Astriab, tenth; and 

DeStefano, eleventh. 

 

1

 Troy points out that, pursuant to the “Rule of Three,” 

as provided for in §§ 4A:4-4.8 and 11A:4-8 of the New Jersey 

Administrative Code, he could have promoted any “one of the 

top three interested eligibles” on the promotion list. N.J. 

Admin. Code §§ 4A:4-4.8(a)(3) (2012). 

2

 The promotion list expired on January 15, 2006. A 

new list issued following the administration of a subsequent 

civil service examination (the “2006-2009 promotion list”). 
6

During Troy‟s tenure as police chief, the number of 

officers in the rank of lieutenant decreased from fifty-six to 

thirty, even though an agreement between Jersey City and the 

State of New Jersey Division of Local Government 

authorized sixty-six lieutenants. In November, 2004, 

February, 2005, and March, 2005, JCPD Operations Division 

Commander Inspector Mark Russ issued memoranda to Troy 

recommending that between five and eleven officers be 

promoted to lieutenant. 

Nonetheless, during Troy‟s term as police chief, not a 

single police officer was promoted to lieutenant. Promotions 

were made to other ranks within the JCPD, including to the 

ranks of deputy chief, inspector, captain, sergeant, and 

detective. On December 16, 2006, Healy, then-police chief 

Thomas Comey, and the recently-retired Troy held a meeting 

during which they decided not to promote any of the plaintiffs 

to lieutenant, despite Business Manager Brian O‟Reilly‟s

urging to do so. Two days later, on December 18, 2006, 

twelve officers were promoted to lieutenant from the 2006-

2009 promotion list. Only plaintiff Scerbo was promoted to 

lieutenant from the 2006-2009 promotion list.3

A number of witnesses gave deposition testimony in 

support of plaintiffs‟ theory that all promotions from sergeant 

to lieutenant were halted to retaliate against Montone. 

 

3

 According to Jersey City, plaintiffs Astriab, Banks, 

and Whalen did not take the civil service examination 

required to qualify for the 2006-2009 promotion list, and 

LaBruno did not pass the exam and thus was not eligible for a 

promotion after the 2003-2006 list expired. Plaintiff Whalen 

retired from the JCPD in March 2006. 
7

DeStefano, for example, stated in his deposition that Troy 

told him that he would not be promoted because he was 

behind Montone on the promotion list and “[t]he Mayor will 

not promote her.” (M.A. 1792.) In this same conversation, 

Troy noted that DeStefano was “okay with us” because he

“didn‟t try to hurt us.” (M.A. 1792.) DeStefano understood 

this to mean that because he had not “come out against 

[Healy] in the election,” he had not been blacklisted. (M.A. 

1792.) Whalen testified to having a substantially similar 

conversation with Troy, who stated that Whalen “didn‟t hurt 

us,” and that Troy was “not making promotions” and “not 

promoting her.” (M.A. 2265.) When Whalen protested that 

this was “not fair,” Troy responded by asking Whalen, “Well, 

how would you feel if your best friend‟s wife is sitting at the 

kitchen table crying over threats made by [Montone] against 

her son and nephew?” (M.A. 2265.) Scerbo, meanwhile, 

testified that Troy had told him that he “should have no 

problem” getting a promotion because he “was before 

Valerie” on the promotion list. (M.A. 2094.) 

Montone also points to evidence of Healy and Troy 

promoting their political supporters, and of Jersey City‟s 

history of political patronage. Healy testified, for example, 

that he had spoken to Troy about both Kevin Guy and Patricia 

Cassidy, whose relatives were political supporters of Healy 

and both of whom were ultimately promoted to sergeant.

Jersey City argues that no lieutenant promotions were 

made “due to budgetary concerns at the Police Department 

and a desire to improve the department‟s organizational 

structure to permit more supervisory police officers on 
8

patrol.” (Jersey City‟s M. Br. 6.)

4

Jersey City emphasizes

that “[t]here was no plan to stop promotions in order to avoid 

promoting [Montone].” (Jersey City‟s M. Br. at 7.) Troy 

further contends that “there was not a shortage of 

Lieutenants,” (Troy‟s M. Br. 4), and that political opponents 

of Healy, such as Edwin Gillan and Roberto Atkinson, were 

promoted to sergeant despite being “vocal supporters of Louis 

Manzo in the 2004 Election.” (Troy‟s M. Br. 7.) 

Montone contends that in addition to suffering 

retaliation for her political activities, she also incurred 

retaliation because of her involvement in numerous sexual 

harassment investigations and complaints against the JCPD, 

dating back to 1993 and continuing until her retirement in 

2010. Most notably, Montone reported to Captain Anthony 

D‟Aiuto in 2002 that another officer, Marisa Johnston, was 

being sexually harassed by then-lieutenant Troy. 

In addition to not being promoted, Montone alleges

that the retaliation against her included other conduct, such as 

Troy spreading rumors that Montone was the individual 

responsible for distributing embarrassing photographs of the 

mayor at his daughter‟s wedding, and that Montone “had 

threatened the mayor‟s son.” (M.A. 467.) Montone also 

claims that political retaliation was the motive behind an 

internal JCPD investigation into whether she was sleeping on 

the job, and her subsequent reassignment to the less desirable 

evening tour. Captain Kevin Oras testified in support of 

Montone‟s theory, stating that Troy told him that “[a]s long as 

 

4

 The defendants filed separate briefs in the Montone 

and Astriab matters; the briefs are designated by “M” and 

“A,” respectively. 
9

I'm Chief, that cow c**t will never get promoted to 

lieutenant” and “will never go on the day tour.” (M.A. 460.) 

B. Procedural History

On December 13, 2005, Montone filed suit against 

Jersey City and Troy in the Superior Court of New Jersey, 

asserting ten causes of action: (1) gender discrimination in 

employment, in violation of the New Jersey Law Against 

Discrimination (“NJLAD”); (2) employment retaliation, also 

in violation of the NJLAD; (3) retaliation for protected 

conduct, in violation of the New Jersey Conscientious 

Employee Protection Act; (4) retaliation for protected First 

Amendment speech, in violation of 42 U.S.C. § 1983; (5) 

retaliation for political affiliation protected by the First 

Amendment, also in violation of § 1983; (6) disparate 

treatment in violation of the Equal Protection Clause and § 

1983; (7) retaliation for speech protected by the New Jersey 

Constitution and the New Jersey Civil Rights Act; (8) 

retaliation for political affiliation protected by the New Jersey 

Constitution and the New Jersey Civil Rights Act; (9) sexual 

harassment, in violation of the NJLAD; and (10) intentional 

infliction of emotional distress. See Montone v. City of Jersey 

City, No. 06-280 (SRC)(MAS), 2011 WL 2559514, at *1 

(D.N.J. June 27, 2011). In August, 2005, DeStefano, 

Cullinane, Whalen, Scerbo, Astriab, and Banks gave 

Certifications in support of Montone‟s claims against the 

defendants. The defendants removed the action to federal 

court in January, 2006. In August, 2006, the Astriab

plaintiffs filed suit in the United States District Court for the 

District of New Jersey, asserting claims for (1) gender 

discrimination and (2) retaliation in violation of the NJLAD, 

as well as claims pursuant to § 1983 for (3) retaliation related 
10

to Montone‟s political affiliation in violation of the First

Amendment and (4) disparate treatment in violation of the

Fourteenth Amendment. See Astriab v. City of Jersey City, 

No. 06-3790 (SRC)(MAS), 2011 WL 5080353, at *1 (D.N.J. 

Oct. 25, 2011).

On June 27, 2011, the District Court granted summary 

judgment for Jersey City and Troy on Montone‟s free speech 

and political affiliation claims. As to the political retaliation 

claim, the District Court found that Montone had failed to 

muster sufficient evidence of a causal relationship between 

Montone‟s support of Healy‟s opponent and the failure to be 

promoted to lieutenant. See Montone, 2011 WL 2559514, at 

*11. The District Court reached this same conclusion with 

regard to Montone‟s other political retaliation claims, such as 

her claim that she was reassigned to the evening tour because 

of her support of Manzo. See id. at *6. As to Montone‟s 

claim that she suffered retaliation for complaining about 

gender discrimination in the operation of the JCPD, the 

District Court determined that Montone‟s complaints were 

not entitled to protection under the First Amendment. Having 

granted summary judgment to the defendants on the First 

Amendment claims in Counts Four and Five, and Montone 

having voluntarily withdrawn her Fourteenth Amendment 

equal protection claim, id. at *10 n.7, the District Court 

“exercise[d] its discretion not to retain supplemental 

jurisdiction over the remaining state law claims,” and 

remanded the case to the Superior Court of New Jersey. Id. at 

*10-11.

On August 16, 2011, the District Court similarly

granted summary judgment in favor of Jersey City and Troy

on the Astriab plaintiffs‟ claims brought under § 1983 for 
11

retaliation and denial of equal protection in violation of the 

First and Fourteenth Amendments (Counts Three and Four).

See Astriab, 2011 WL 5080353, at *1. With regard to the 

political retaliation claim, the District Court declined to 

address the question of whether the Astriab plaintiffs have 

standing to bring a cause of action for First Amendment 

retaliation based upon Montone‟s allegedly protected 

conduct, reasoning that it was unnecessary to do so because 

“Plaintiff[s] ha[ve] otherwise failed to defeat” the defendants‟

summary judgment motions. Id. at *2. Specifically, the 

District Court found that “Plaintiffs have failed to point to 

evidence from which a reasonable trier of fact could decide in 

their favor on the question of whether Montone‟s political 

conduct was a motivating factor in the decision not to 

promote her or them.”

5

Id. at *4. Declining to exercise 

supplemental jurisdiction over the remaining state law claims, 

the District Court dismissed them, without prejudice. Id. at

*6. 

II. DISCUSSION

The District Court had jurisdiction under 28 U.S.C. §§ 

1331, 1343, and 1443, and we have appellate jurisdiction 

under 28 U.S.C. § 1291. We employ a de novo standard of 

review to grants of summary judgment, “applying the same 

standard as the District Court.” Pa. Coal Ass’n v. Babbitt, 63 

F.3d 231, 236 (3d Cir. 1995). “This requires that we view the 

 

5

 The Astriab plaintiffs appeal only the District 

Court‟s grant of summary judgment on Count Three, and thus 

we need not address the District Court‟s decision on their 

equal protection claim. 
12

underlying facts and all reasonable inferences therefrom in 

the light most favorable to the party opposing the motion.” 

Id. Summary judgment shall be granted where no genuine 

dispute exists as to any material fact, and the moving party is 

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 

We will address the District Court‟s decisions on Montone‟s 

claims and the derivative claims asserted by the Astriab 

plaintiffs separately.

A. Montone‟s Claims 

Montone appeals the District Court‟s grant of 

summary judgment on her claims under § 1983 for retaliation 

for political affiliation and speech, in violation of the First 

Amendment. We will address each issue in turn. 

1. 

Our jurisprudence governing political association

retaliation claims under the First Amendment has its origins 

in the Supreme Court‟s “trilogy” of “political patronage 

cases.” Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 663 (3d 

Cir. 2002) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti 

v. Finkel, 445 U.S. 507 (1980); Rutan v. Republican Party of 

Ill., 497 U.S. 62 (1990)). From these cases and their progeny,

“we have derived a three-part test to establish a claim of 

discrimination based on political patronage in violation of the 

First Amendment.” Galli v. N.J. Meadowlands Comm’n, 490 

F.3d 265, 271 (3d Cir. 2007). First, the plaintiff must 

establish that “she was employed at a public agency in a 

position that does not require political affiliation.” Id. 

Second, the plaintiff must show that she engaged in conduct 

protected by the First Amendment. Id. And finally, the 
13

plaintiff must prove that the constitutionally-protected 

conduct was a substantial or motivating factor for the adverse 

employment action. Id. 

The first two prongs of the test for political affiliation 

retaliation are not in dispute here. Montone was employed as 

an officer with the JCPD, a position where political affiliation 

is not “an appropriate requirement for the effective 

performance of the public office involved.” Branti, 445 U.S. 

at 518; see also Elrod, 427 U.S. at 367 (“Limiting patronage 

dismissals to policymaking positions is sufficient to achieve 

this governmental end. Nonpolicymaking individuals usually 

have only limited responsibility and are therefore not in a 

position to thwart the goals of the in-party.”). Similarly, 

Montone‟s political support of Manzo was constitutionally 

protected conduct. See Branti, 445 U.S. at 519 (“[I]t is 

manifest that . . . continued employment . . . cannot properly 

be conditioned upon . . . allegiance to the political party in 

control . . . .”); Galli, 490 F.3d at 272 (“[A] plaintiff can meet 

the second prong of a prima facie political discrimination 

claim if she suffers because of active support for a losing 

candidate . . . .”).

Accordingly, the matter in dispute here concerns the 

third prong of the test: whether Montone‟s political support of 

Manzo “was a substantial or motivating factor” in the 

decision to not promote her from sergeant to lieutenant. 

Galli, 490 F.3d at 271. The District Court focused 

specifically on this prong of the test, ultimately finding that 

Montone “offered no evidence from which a reasonable trier 

of fact could conclude that [her] political affiliation or other 

protected conduct was a substantial motivating factor in the 

decision not to promote [her].” Montone, 2011 WL 2559514, 
14

at *6. We find that in so holding the District Court 

misapplied the summary judgment standard.

The District Court first erred by drawing unfavorable 

inferences against Montone, the non-movant. The District 

Court concluded, for example, that when Troy told DeStefano 

that he was “okay” because DeStefano “didn‟t try to hurt us,”

(M.A. 1792), “[n]o reasonable trier of fact could infer from 

the DeStefano testimony that Troy was speaking about 

political affiliation or protected conduct.”6 Montone, 2011 

WL 2559514, at *5. The District Court, relying on Whalen‟s 

testimony, determined that “hurt” in this context referred to 

Montone “making threats against someone‟s son and nephew, 

which upset that person‟s wife.” Id. Accordingly, the 

District Court found that “the decision not to promote 

Plaintiff was based on personal animus, not retaliation for 

political affiliation or activities or other protected conduct,”

and that “the „you didn‟t hurt us‟ evidence does not raise any 

 

6

 Troy and Jersey City argued before the District 

Court that such statements were inadmissible hearsay. The 

District Court did not rule on the issue because it concluded 

that this evidence, “even if admitted, fails to raise factual 

disputes sufficient to defeat the motions for summary 

judgment . . . .” Montone, 2011 WL 2559514, at *4 n.3. We 

hold that these statements made by Troy are not hearsay 

under Federal Rule of Evidence 801(d)(2), and thus the 

District Court properly considered the statements in resolving 

the summary judgment motions. See Fed. R. Evid. 

801(d)(2)(A) (defining as “not hearsay” a statement that is 

“offered against an opposing party and . . . was made by the 

party in an individual or representative capacity . . . .”). 
15

factual dispute about the motivating factor element.” Id. 

This conclusion, however, directly contradicts DeStefano‟s 

own understanding of the conversation. According to his

deposition testimony, DeStefano understood Troy to mean 

that he, DeStefano, was “okay” precisely because he had not 

“come out against [Healy] in the election.” (M.A. 1792.)

DeStefano‟s understanding is consistent with Montone‟s 

claim that Troy set out to block her promotion to lieutenant 

because she had sought to prevent Healy‟s election.

Troy attacks DeStefano‟s credibility by noting that his 

statement was not contained in DeStefano‟s original 

Certification obtained by Montone‟s counsel in August, 2005, 

and that DeStefano is a plaintiff in the Astriab litigation, a 

case “whose success . . . is entirely dependent on Montone‟s 

success herein . . . .” (Troy‟s M. Br. 25.) Furthermore, Troy 

notes that DeStefano‟s testimony could be interpreted 

differently – at one point, DeStefano testified to rumors 

concerning Montone stepping on the foot and spitting in the 

face of Healy‟s spouse, for example. (See M.S.A. 383.) Troy 

suggests that he could have been referring to this incident

when he discussed how Montone had “hurt us.” (M.A. 1792.) 

While Troy may ultimately prevail on this point, “[i]n 

considering a motion for summary judgment, a district court 

may not make credibility determinations or engage in any 

weighing of the evidence; instead, the non-moving party‟s 

evidence „is to be believed[,] and all justifiable inferences are 

to be drawn in his favor.‟” Marino v. Indus. Crafting Co., 

358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). On this issue,

the District Court appears to have made credibility 

determinations, weighed the evidence against Montone, and 

failed to draw all justifiable inferences in her favor. Stated 
16

otherwise, it would not be unreasonable to construe Troy‟s 

“you didn‟t hurt us” statement as referring to Montone‟s 

opposition to Healy.

Furthermore, the District Court, despite appearing to 

have accepted Montone‟s argument that Jersey City and 

Troy‟s justifications for not promoting any lieutenants were

pretextual, erred in concluding that a jury could not draw 

from that fact an inference that the non-promotion of 

Montone was intended to retaliate for her political activity. 

Troy contended that promotions to lieutenant were suspended 

for legitimate budgetary and operational reasons. But the 

District Court observed: 

Examining Plaintiff's evidence as 

a whole, and making every 

reasonable inference in favor of 

Plaintiff, as the nonmovant, a 

reasonable trier of fact, hearing 

Plaintiff's evidence, could easily 

find that Chief Troy bore ill will 

toward Plaintiff and was 

determined not to promote her to 

Lieutenant. Moreover, there is 

evidence which, if credited by the 

trier of fact, supports the inference 

that he bore such ill will toward 

Plaintiff that he stopped all 

promotions to Lieutenant during 

his tenure as Chief, even though 

this decision may have been a 

poor one from the perspective of 
17

the organizational needs of the 

Police Department. 

Montone, 2011 WL 2559514, at *6. The District Court 

determined, however, that “[a]t best, this constitutes evidence 

of retaliation. None of this . . . is probative of the motive for 

the retaliation.” Id. 

It is by now axiomatic that a plaintiff in an 

employment retaliation case may avoid summary judgment 

by offering evidence that discredits the reasons articulated by 

the defense for the adverse employment action. See, e.g., 

Stephens v. Kerrigan, 122 F.3d 171, 181 (3d Cir. 1997). By 

presenting evidence that casts doubt on Troy‟s articulated 

rationale for suspending all promotions to the lieutenant 

position, Montone is entitled to have the trier-of-fact decide 

whether it was a general dislike of her that motivated Troy, or 

whether it was personal animosity that sprung from 

Montone‟s vocal opposition to the candidacy of Troy‟s 

patron. Indeed, in Stephens, we held that summary judgment 

was not appropriate where plaintiffs “made a sufficient 

showing to discredit [defendant‟s] proffered reasons for not 

promoting from the lieutenants lists and thus [were] entitled 

to have a fact finder determine whether their political 

affiliation or non-support was a substantial or motivating 

cause of the failure to promote.” 122 F.3d at 183. The 

District Court here similarly agreed with Montone that Jersey 

City and Troy‟s proffered reasons were pretextual, but then 

granted summary judgment to the defendants rather than

allowing a fact finder to determine whether Montone‟s 

political activities during the election were the real reason 

behind her non-promotion. 
18

The District Court‟s dismissal of evidence of a pattern 

of political patronage in Jersey City was also improper. See 

Montone, 2011 WL 2559514, at *3 (“Evidence that, during 

Mayor Healy‟s administration, other people have gotten jobs 

or promotions in Jersey City for political reasons may have 

some minimal probative value as background, but it is clearly 

insufficient by itself to support an inference that Plaintiff was 

retaliated against.”) As we held in Goodman, “a history of 

improper promotion practices using sponsorship as a factor” 

may, when presented with other facts, prove to be “sufficient 

circumstantial evidence to permit a reasonable jury to find 

that political affiliation was a substantial factor in the decision 

not to promote . . . .” Id. at 674. In this case, there are other 

facts that, when combined with evidence of political 

patronage, suffice to defeat summary judgment. In particular, 

there is the evidence of recommendations that the number of 

lieutenants on the police force be increased as well as 

evidence that there were promotions to every other rank but 

lieutenant during Troy‟s tenure as Police Chief that, when 

considered in combination with a history of political 

patronage, supports a reasonable inference that Montone was 

not promoted in retaliation for her political activity.

The District Court also erred in giving substantial 

weight to evidence that Troy promoted at least one of 

candidate Manzo‟s supporters, Edwin Gillan. Montone, 2011 

WL 2559514, at *6 n.6. While this may be relevant evidence 

for the fact finder to consider when ultimately determining if 

Montone was in fact retaliated against based on her political 

activity, it does not preclude a jury from finding that 

Montone‟s support for Manzo was the motivating factor in 

not receiving a promotion. At the summary judgment stage, 

Montone need only “„make a showing sufficient to establish 
19

the existence of [the] element[s] essential to [her] case . . . .‟” 

Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir. 

1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). Her showing in this case is not overcome by the fact 

that one supporter of Healy‟s opponent was promoted, 

especially given the evidence of how active Montone was in 

supporting Manzo. The three-prong test for retaliation for 

political affiliation does not require that Montone prove that

every other supporter of Healy‟s opponent also suffered 

retaliation. 

In summary, the District Court misapplied the 

summary judgment standard by weighing evidence and 

drawing inferences against Montone, the non-movant, even 

after acknowledging that she presented sufficient evidence to 

show that the reasons proffered by Jersey City and Troy for 

her non-promotion may have been pretextual. The District 

Court also improperly dismissed evidence of a culture of 

political patronage in Jersey City, and erred in granting

summary judgment based upon evidence of the promotion of 

another Manzo supporter. Montone, 2011 WL 2559514, at *6

n.6. Accordingly, we vacate the District Court‟s grant of 

summary judgment for the defendants on the political 

affiliation claim. 

2.

We now turn to Count Four: whether Montone was 

retaliated against for speech protected under the First 

Amendment. We analyze Montone‟s claim, arising as it does

in the public employment context, under a three-part test: (1) 

was the plaintiff speaking as a citizen rather than as a public 

employee discharging her employment duties; (2) did the 
20

plaintiff‟s statements address a matter of public concern as 

opposed to a personal interest; and (3) did the plaintiff‟s 

employer have “„an adequate justification for treating the 

employee differently from any other member of the general 

public‟ as a result of the statement [the employee] made.” 

Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009), 

(quoting Garretti v. Ceballos, 547 U.S. 410, 418 (2006)). 

The District Court held that Montone‟s free speech 

claim failed the second part of the test – that the speech at 

issue involve a matter of public concern, observing that she 

“neither precisely identifies the speech that she contends was 

on matters of public concern, nor makes any case at all that 

such speech was on matters of public concern.” Id. Quoting 

Connick v. Myers, 461 U.S. 138 (1983), the District Court 

then granted summary judgment to Jersey City and Troy on 

this claim because

“when a public employee speaks 

not as a citizen upon matters of 

public concern, but instead as an 

employee upon matters of only 

personal interest, absent the most 

unusual circumstances, a federal 

court is not the appropriate forum 

in which to review the wisdom of 

a personnel decision taken by a 

public agency allegedly in 

reaction to the employee‟s 

behavior.”

Id. (quoting Connick, 461 U.S. at 147). 
21

Montone‟s allegedly protected speech concerns in 

large measure her complaints of gender inequality in the 

workplace dating back to the 1990s, when she successfully 

brought a sexual harassment lawsuit. Montone continued to 

complain of sexual harassment even after that lawsuit was 

concluded. In 2003, she informed a captain in the JCPD that 

Troy, who was then a lieutenant, was sexually harassing 

Officer Marisa Johnston. 

We addressed the question of whether a public 

employee‟s speech regarding sexual harassment can 

constitute protected speech in Azzaro v. Cnty. of Allegheny, 

110 F.3d 968 (3d Cir. 1997) (en banc), where the plaintiff, a 

former Allegheny County employee, was fired after reporting 

that she was sexually harassed by an assistant to the County 

Commissioner. Id. at 970. The plaintiff subsequently sued 

the County and two County employees, alleging, inter alia, 

retaliation for speech protected by the First Amendment, in 

violation of § 1983. Id. at 975. Applying the analytical 

framework laid out by the Supreme Court in Connick, we

noted that the key to the “public concern” inquiry is “whether 

expression of the kind at issue is of value to the process of 

self-governance.” Id. at 977. We further explained that “the 

issue is whether it is important to the process of selfgovernance that communications on this topic, in this form 

and in this context, take place.” Id. We observed that 

“[r]acial discrimination in the assignment of school personnel 

. . . was characterized by the Connick Court as „a matter 

inherently of public concern.‟” Id. (quoting Connick, 461 

U.S. at 148 n.8). Extending this reasoning, we noted that

gender discrimination, “when practiced by those exercising 

authority in the name of a public official, is as much a matter 

of public concern as racial discrimination practiced under 
22

similar circumstances.” Id. at 978. We also noted, however, 

that not “all public employee complaints about sexual 

harassment are matters of public concern,” and that 

examination of “all of the surrounding circumstances” is 

required when making such a determination. Id. at 980. 

A circumstance that weighed in favor of finding that 

the communication in Azzaro involved a matter of public 

concern was that the alleged harassment “brought to light 

actual wrongdoing on the part of one exercising public 

authority that would be relevant to the electorate‟s evaluation 

of the performance of the office of an elected official.” Id. at 

978. While Montone‟s allegations of gender discrimination 

and harassment do not directly concern an elected official, as 

even Johnston‟s sexual harassment complaint against Troy 

occurred prior to Healy‟s election and appointment of Troy as 

chief, the fact that Montone‟s speech would not directly help 

the public evaluate an elected official‟s performance is not 

dispositive. 

For example, in Campbell v. Galloway, 483 F.3d 258 

(4th Cir. 2007), the plaintiff, a former police officer, sued the 

Town of Southern Pines, the police department, and several 

town employees, alleging, inter alia, First Amendment 

retaliation when she was fired after filing several complaints 

of sexual harassment with the police chief, as well as a gender

discrimination and retaliation charge with the Equal 

Employment Opportunity Commission. Id. at 262-64. In 

reviewing the District Court‟s grant of summary judgment for

the defendants, the Fourth Circuit noted that, while “not every 

statement about sexual discrimination involves a matter of 

public concern, our cases have provided little concrete 

guidance on the question of when such a complaint amounts 
23

to an issue of public concern.” Id. at 269. The Campbell 

Court explained that this was perfectly acceptable: 

We see no reason to try to 

articulate any sort of bright-line 

rule in this case, nor are we 

certain that a bright-line rule 

would be consistent with the 

Supreme Court's directive that we 

engage in a case-and fact-specific 

inquiry to determine “[w]hether 

an employee's speech addresses a 

matter of public concern,” by 

considering “the content, form, 

and context of a given statement, 

as revealed by the whole record.” 

Id. (quoting Connick, 461 U.S. at 147-48). The Fourth 

Circuit noted that “[t]o conclude, as the defendants would 

have us do, that a personal complaint about discrimination 

affecting only the complaining employee can never amount to 

an issue of public concern could improperly limit the range of 

speech that is protected by the First Amendment.” Id.

(emphasis in original).

Shifting to the facts in that matter, the Campbell Court 

noted that the plaintiff “complained about multiple instances 

of inappropriate conduct directed towards her,” and wrote a 

letter to the police chief where she “also included complaints 

about inappropriate conduct directed towards other females.” 

Id. As that case also concerned a grant of summary judgment 

to defendants, the Fourth Circuit “view[ed] the complaints in

the light most favorable to [the plaintiff],” and concluded that 
24

her “complaints about sexual discrimination do amount to 

matters of public concern.” Id.

We find Campbell’s reasoning persuasive. There are 

at least three separate instances of alleged sexual harassment 

here,7and the inappropriate conduct was not directed solely at 

Montone. Although no elected figure is involved, these facts 

otherwise present a stronger argument that Montone‟s speech 

was related to a matter of public concern than was presented 

in Azzaro, which referred only to a single incident. See 110 

F.3d at 980 (“We do believe, however, that under all of the 

surrounding circumstances, Azzaro's reports address a matter 

of public concern even though they referred to a single 

incident.”). Accordingly, we hold that Montone was engaged 

in protected activity as her speech involved a matter of public 

concern.

Once the public concern “threshold” is met, “we must 

balance between the interest of the [employee], as a citizen, in 

commenting upon matters of public concern and the interest 

of the [public employer], in promoting efficiency of the 

public services it performs through its employee.‟” Miller v. 

Clinton County, 544 F.3d 542, 548 (3d Cir. 2008) (quoting 

Pickering v. Bd. Of Educ., 391 U.S. 563, 568 (1968). We 

find, as we did in Azzaro, that “[s]triking the appropriate 

balance in this case is not difficult,” as “those governmental 

 

7

 The three instances are the sexual harassment 

lawsuit from the 1990s, Montone‟s complaint against Carter 

from 2002-2003, and Montone‟s escalation of Johnston‟s 

sexual harassment claim against Troy from 2002. See 

Montone, 2011 WL 2559514, at *9. 
25

interests are negligible here.” 110 F.3d at 980. As in Azzaro, 

“[w]e fail to see how” Montone‟s speech “could have posed 

any threats to the government‟s interest in efficiency or 

effectiveness,” especially in those instances when she used 

internal mechanisms to voice her grievances. Id. (finding that 

defendant‟s affirmative recognition that “complaints about 

sexual harassment were important to its ability to serve the 

public . . . [constituted] an acknowledgement . . . that 

communications in the manner and place of [plaintiff‟s] do 

not pose an undue threat of disruption”). Accordingly, we 

hold that Montone has demonstrated that her interest in the

speech at issue outweighs Jersey City‟s interest in efficiency.

While not every one of Montone‟s statements 

addressed a matter of public concern,

8

and while Montone

will still have to demonstrate at trial that she was acting as a 

citizen and not as a police officer when she engaged in what 

she claims to be protected conduct, and that her speech was a 

substantial or motivating factor in her non-promotion, the 

District Court erroneously granted summary judgment for the 

defendants on Montone‟s free speech claim by concluding 

that her gender discrimination complaints did not involve 

matters of public concern. Accordingly, we vacate the grant 

of summary judgment on the free speech claim.

B. The Astriab Plaintiffs‟ Claims 

 

8

 For example, Montone‟s refusal to pay Troy money 

from the settlement of her first lawsuit does not appear to be a 

matter of public concern. See Montone, 2011 WL 2559514, 

at *9. 
26

The Astriab plaintiffs appeal only the District Court‟s 

grant of summary judgment on their claim pursuant to § 1983 

for retaliation for Montone‟s political affiliation in violation 

of the First Amendment (Count Three). Before addressing 

whether the District Court erred in granting summary 

judgment, we must first consider whether the Astriab

plaintiffs have standing to bring an action for retaliation for 

political affiliation based on the defendants‟ alleged 

deprivation of Montone’s First Amendment rights.9See

AT&T Commc’ns of N.J., Inc. v. Verizon N.J., Inc., 270 F.3d 

162, 168 (3d Cir. 2001). 

1.

“A party invoking federal jurisdiction must establish 

that he has standing to sue within the meaning of Article III, 

section two of the Constitution, which limits the courts to 

hearing actual cases or controversies.” Anjelino v. New York 

Times, 200 F.3d 73, 88 (3d Cir. 1999). “[T]he irreducible 

constitutional minimum” of standing requires a party to set 

forth specific facts indicating the existence of an actual or 

imminent injury that is causally connected to the defendant‟s 

challenged action and is “„likely‟” to be “„redressed by a 

favorable decision.‟” Lujan v. Defenders of Wildlife, 504 

 

9

 The Supreme Court has instructed courts of appeals 

to answer the jurisdictional question of standing before 

“proceeding to an easily-resolved merits question despite 

jurisdictional objections,” in consideration of the “importance 

of the standing doctrine” to preserving separation of powers. 

Storino v. Borough of Point Pleasant Beach, 322 F.3d 293, 

300 (3d Cir. 2003) (citing Steel Co. v. Citizens for a Better 

Env’t, 523 U.S. 83, 101-02 (1998)).
27

U.S. 555, 560-61 (1992) (quoting Simon v. En. Ky. Welfare 

Rights Org., 426 U.S. 26, 38 (1976)). “Courts assess whether 

a party has established injury-in-fact, causation, and 

redressability by considering whether the alleged injury falls 

within the „zone of interests‟ that the statute or constitutional 

provision at issue was designed to protect; whether the 

complaint raises concrete questions, rather than abstract ones 

that are better suited to resolution by the legislative and 

executive branches; and whether the plaintiff is asserting his 

own legal rights and interests, as opposed to those of third 

parties.” Anjelino, 200 F.3d at 88. 

The Supreme Court has recognized that “when the 

plaintiff is not himself the object of the government action or 

inaction he challenges, standing is not precluded, but it is 

ordinarily substantially more difficult to establish.” Lujan, 

504 U.S. at 562 (citations omitted) (internal quotation marks 

omitted). The Astriab plaintiffs‟ suit presents one such 

difficult case. No other court of appeals has, to our 

knowledge, addressed the question presented by this case: 

whether a plaintiff has standing to bring an action for First 

Amendment political affiliation retaliation pursuant to § 1983 

based on the defendant‟s alleged deprivation of another‟s

First Amendment rights. 

The defendants argue that the Astriab plaintiffs do not 

have standing because they failed to allege an actual injury

and cannot satisfy their burden with respect to the causation 

requirement of Article III standing. According to Jersey City, 

“[t]he plaintiffs have not produced evidence of an inherent 

right to a promotion,” or shown that absent the illegal conduct 

against Montone “any of them was certain or even likely to 

have been promoted.” (Jersey City‟s A. Br. 48.) Jersey City
28

further argues that the plaintiffs have not established the 

alleged injury‟s nexus to the defendants‟ purported violation 

of Montone‟s First Amendment rights, reasoning that

“[a]llegations of discrimination concerning Montone, even if 

true, could have no bearing upon employment decisions made 

in regard to [the] plaintiffs.” (Jersey City‟s A. Br. 48.) Troy, 

for his part, distinguishes between the plaintiffs ranked above 

and below Montone, concluding that the plaintiffs ranked 

above Montone “could have been promoted regardless of any 

. . . discrimination” against her, while those ranked below did 

not suffer an actual injury “because there is no guarantee 

promotions would have continued beyond [Montone‟s 

promotion] and that they would have ever been promoted.” 

(Troy‟s A. Br. 47, 51.) 

The Astriab plaintiffs argue to the contrary that they 

have sufficiently alleged an actual injury, namely, their nonpromotion. Furthermore, 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. 

The Astriab plaintiffs assert that their position is 

supported by our decision in Anjelino. We agree. In 

Anjelino, male and female employees of the New York Times

Company (the “Times”) mailroom sued the Times and other 

defendants for sex discrimination in violation of Title VII of 

the Civil Rights Act of 1964. 200 F.3d at 78. The female 

employees alleged that they were not promoted from the 

“priority list,” which determined whether and how often an 

employee would receive mailroom shifts, due to their gender. 
29

Id. at 80. The male employees similarly brought claims under 

Title VII, alleging, inter alia, that “they suffered pecuniary 

injury because they were on the priority list among women, 

who were not hired due to sex discrimination because hiring 

stopped when the women‟s names were reached.” Id. at 89.

The district court dismissed the male employees‟ claims, 

finding that they lacked standing to sue under Title VII. Id. at 

85.

We reversed, holding that “„indirect‟ victims of sexbased discrimination have standing to sue under Title VII if 

they allege colorable claims of injury-in-fact that are fairly 

traceable to acts or omissions by defendants that are unlawful 

under the statute,” and therefore the male employees had 

standing even though the defendants‟ discriminatory actions 

were directed at the female employees. Id. at 92. In so 

holding, we emphasized: “That the injury at issue is 

characterized as indirect is immaterial, as long as it is 

traceable to the defendant‟s unlawful acts or omissions.” Id. 

We then concluded that the male employees satisfied Article 

III‟s injury-in-fact requirement because “allegations that sex 

discrimination adversely affected [plaintiffs] being hired as 

extras, as well as their seniority on the priority list, 

demonstrate actual injury,” and, furthermore, the male 

employees pled sufficient “specific facts” to make the 

requisite showing of causation. Id. 

More recently, the Supreme Court similarly held that 

an individual has standing to sue for employment retaliation 

pursuant to Title VII, relying on the protected conduct of 

another individual. In Thompson v. N. Am. Stainless, LP, 131 

S.Ct. 863 (2011), plaintiff Thompson, an employee of North 

American Stainless (NAS), sued NAS for unlawful retaliation 
30

under Title VII when he was fired after his fiancée, also an

NAS employee, filed a sex discrimination charge against 

NAS with the Equal Employment Opportunity Commission. 

Id. at 867. In addressing the question of whether Thompson 

had standing to sue, the Court found that “Thompson‟s claim 

undoubtedly meets [the] requirements” of Article III standing. 

Id. at 869.

While Anjelino and Thompson involved questions of 

standing in the context of claims under Title VII, we find the 

reasoning in those cases persuasive. Indeed, we have 

similarly relied upon Title VII jurisprudence in resolving 

questions of first impression related to § 1983 claims because 

of the “consonance” of the “policy considerations” underlying 

each statute. Squires v. Bonser, 54 F.3d 168, 172 (3d Cir. 

1995). Accordingly, we adopt the reasoning of Anjelino and 

Thompson in holding that a party has standing to bring an 

action for First Amendment political affiliation retaliation 

pursuant to § 1983, even where, as here, the alleged 

retaliation was directed towards another individual, provided 

the party can satisfy “[t]he irreducible constitutional 

minimum” of Article III standing. Lujan, 504 U.S. at 560.

The three requirements of Article III standing are 

satisfied here. The plaintiffs allege that each passed the civil 

service examination as required to be promoted to the rank of 

lieutenant, were ranked on the promotion list, and nonetheless 

were not promoted to lieutenant during Troy‟s tenure. The 

plaintiffs also allege that during Troy‟s term as police chief

promotions were made in all other ranks in the JCPD except 

lieutenant, even though lieutenant promotions were 

authorized and necessary. Furthermore, the plaintiffs allege 

that the defendants consciously chose not to promote 
31

Montone or any other sergeant due to Montone‟s involvement 

in the 2004 mayoral election, to the effect that the Astriab 

plaintiffs were not promoted or, at the very least, were 

prevented from moving up in numerical rank on the 

promotion list. Thus, as in Anjelino, the Astriab plaintiffs‟ 

allegations that the defendants‟ illegal political retaliation 

“adversely affected [plaintiffs] being [promoted], as well as 

their seniority on the priority list, demonstrate actual injury.”

Anjelino, 200 F.3d at 92; see also Grizzell v. City of 

Columbus Div. of Police, 461 F.3d 711, 718 (6th Cir. 2006) 

(finding plaintiff police officers‟ “alleged injury to be

sufficiently concrete and particularized to satisfy 

constitutional requirements” where plaintiffs alleged that they 

were not promoted or incurred a delay in being promoted to 

sergeant as a result of the defendants‟ use of a 1999, rather 

than 2001, promotion list).

The Astriab plaintiffs have also satisfied their burden 

with respect to the causation element. The plaintiffs allege 

that Healy and Troy did not promote Montone following her 

involvement in the 2004 mayoral campaign, specifically 

noting that Troy informed several sergeants that he was “not 

making any lieutenants,” “not promoting [Montone]” because 

she “hurt us,” and therefore no sergeants would be promoted

to lieutenant. (Astriab Appendix 362-63, 374, 387 [“A.A.”].) 

The plaintiffs also aver that none of the Astriab plaintiffs was 

promoted to the rank of lieutenant during Troy‟s tenure as 

police chief, even though all were eligible for promotions, 

there was a shortage of lieutenants in the JCPD, Troy was 

authorized to fill vacant lieutenant positions, and promotions 

occurred in other ranks in the JCPD. 
32

The final Article III standing requirement –

redressability – is also satisfied. As we have recognized,

“§ 1983 has always provided both legal and equitable relief.” 

Squires, 54 F.3d at 172. Available forms of equitable relief 

include back pay and “retroactive seniority.” Gurmankin v. 

Costanzo, 626 F.2d 1115, 1120 (3d Cir. 1980). Additionally, 

front pay is recoverable, and, in some circumstances, 

instatement is also an appropriate remedy. Walsdorf v. Bd. of 

Comm’rs for the E. Jefferson Levee Dist., 857 F.2d 1047, 

1054 (5th Cir. 1988); see also Shore v. Fed. Express Corp., 

777 F.2d 1155, 1159-60 (6th Cir. 1985); Todaro v. Cnty. of 

Union, 920 A.2d 1243, 1248 (N.J. Super. Ct. App. Div. Apr. 

19, 2007) (holding that instatement and the “rightful place” 

remedy, by which the plaintiff is placed in the next 

comparable job opening, are both appropriate remedies

“where a public employee has been denied appointment to a 

classified civil service position solely on the basis of political 

affiliation,” in violation of § 1983). Thus, there exists an 

“appropriate remedy that we can grant” the Astriab plaintiffs, 

AT&T, 270 F.3d at 171, and the plaintiffs have made the 

requisite showing that it is “„likely, as opposed to merely 

speculative, that [their] injury will be redressed by a favorable 

decision.‟” Pitt News v. Fisher, 215 F.3d 354, 361 (3d Cir. 

2000) (citing Friends of the Earth, Inc. v. Laidlaw Env’t 

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). 

Finally, we turn to the prudential standing requirement 

that a plaintiff‟s asserted interest falls within the “zone of 

interests” that the constitutional guarantee at issue was 

designed to protect. Elk Grove Unified Sch. Dist. v. Newdow, 

542 U.S. 1, 12 (2004). The Supreme Court “ha[s] described 

the „zone of interests‟ test as denying a right of review if the 

plaintiff‟s interests are so marginally related to or inconsistent 
33

with the purposes implicit in the statute [or constitutional 

guarantee in question] that it cannot reasonably be assumed” 

suit was intended to be permitted. Thompson, 131 S.Ct. at

870 (citation omitted) (internal quotation marks omitted); see 

also Ass’n of Data Processing Serv. Orgs., Inc., v. Camp, 397 

U.S. 150, 153 (1970).

The Astriab plaintiffs assert that, as a result of the 

defendants‟ retaliation against Montone for her protected 

political conduct, they did not receive a promotion for which 

they were eligible, in contravention of the First Amendment 

and § 1983. It is axiomatic that “political belief and 

association constitute the core of those activities protected by 

the First Amendment.” Elrod, 427 U.S. at 356. In Robertson 

v. Fiore, 62 F.3d 596 (3d Cir. 1995), we acknowledged the 

First Amendment‟s protections for public employees in 

positions not requiring political affiliation, and explained the 

important policy considerations motivating this Constitutional 

guarantee: 

Without the protection afforded 

by the Constitution, employees 

might forgo the expression of 

their political beliefs or artificially 

change their political association 

to avoid displeasing their 

supervisors. Such coercion,

whether direct or indirect, is 

incongruent with a free political 

marketplace.

62 F.3d at 600 (emphasis added). 
34

That the retaliatory conduct at issue here was not 

directed at the Astriab plaintiffs is not dispositive, because the 

First Amendment concerns implicated by political affiliation 

retaliation are the same whether a plaintiff is the “direct” or 

“indirect” victim of illegal political retaliation. See 

Robertson, 62 F.3d at 600. An employee might be equally 

dissuaded from engaging in protected political activity where

it is his fellow workers who experience retaliation for that 

employee having engaged in the “core” First Amendment 

activities of free “political belief and association.” Elrod, 427 

U.S. at 357. The Astriab plaintiffs‟ interest in being 

promoted in a public agency employment position free from

the influences of political association thus falls within the 

“zone of interests” protected by the First Amendment. 

Because the Astriab plaintiffs have pled specific facts 

demonstrating the existence of all three Article III standing 

requirements, and because the plaintiffs‟ asserted interest falls 

within the “zone of interests” protected by the First 

Amendment, we hold that they have standing to pursue a 

claim pursuant to § 1983 for retaliation for political affiliation 

in violation of the First Amendment, even though the 

underlying protected conduct is that of Montone, not of the 

Astriab plaintiffs themselves. 

2.

We turn next to the question of whether the District 

Court erroneously granted summary judgment for the

defendants on the Astriab plaintiffs‟ claim. 

As discussed in Part II(A)(1) supra, a plaintiff must 

satisfy a three-part test to establish a claim for First 
35

Amendment political affiliation retaliation. See Galli, 490 

F.3d at 271. As in the Montone suit, the first two prongs of 

the test are not in dispute here. Each of the Astriab plaintiffs

was employed as an officer with the JCPD, a position where 

political affiliation is not “an appropriate requirement for the 

effective performance of the public office involved.” Branti, 

445 U.S. at 518. Furthermore, as discussed in Part II(B)(i)

supra, the Astriab plaintiffs have standing to bring suit for a 

First Amendment violation pursuant to § 1983 based on the 

defendants‟ alleged retaliation against Montone as a result of 

her political activities. See Branti, 445 U.S. at 519; Galli, 

490 F.3d at 272-73. Thus, the second prong of the test is 

satisfied. See Galli, 490 F.3d at 271. Therefore, as in the 

Montone suit, only the third prong of the test – the causation 

element – is disputed. See id. 

The District Court found that the Astriab plaintiffs 

failed to meet their burden with respect to the causation 

element because they “failed to point to evidence from which 

a reasonable trier of fact could decide in their favor on the 

question of whether Montone‟s political conduct was a 

motivating factor in the decision not to promote her or them.”

Astriab, 2011 WL 5080353, at *4. We hold that when 

viewed in the light most favorable to the Astriab plaintiffs, 

the evidence was sufficient to establish a prima facie case of 

First Amendment retaliation, and thus the District Court erred 

in granting summary judgment for the defendants. 

The District Court first erred by failing to consider 

much of the evidence the plaintiffs adduced to satisfy their 

burden of establishing a genuine issue of material fact. When

evaluating a summary judgment motion, a district court must 

consider “materials in the record, including depositions, 
36

documents, electronically stored information, affidavits or 

declarations, stipulations[,] . . . admissions, interrogatory 

answers, or other materials . . . .” Fed. R. Civ. P. 56(c). Yet,

the District Court considered only two types of evidence 

presented by the Astriab plaintiffs: lieutenant Gillan‟s 

deposition testimony, which the District Court dismissed as 

“anonymous,” inadmissible hearsay,10 as well as Inspector 

Russ‟ memoranda recommending that Troy make promotions 

to lieutenant and Troy‟s testimony that he did not follow 

Russ‟ recommendations. Astriab, 2011 WL 5080353, at *3.

Among the evidence not mentioned by the District 

Court in its analysis of the summary judgment motions were

the Jersey City government agreements authorizing the 

promotion of officers to the rank of lieutenant. The District 

Court also failed to consider personnel orders signed by Troy 

ordering promotions in every rank except lieutenant. 

Additionally, the District Court disregarded correspondence 

from O‟Reilly and Police Director Samuel Jefferson, as well 

as deposition testimony from Healy, indicating that the 

defendants expressly refused to promote any of the plaintiffs 

to lieutenant upon expiration of the 2003-2006 promotion list, 

but almost immediately after the issuance of the 2006-2009 

list, promoted twelve sergeants to lieutenant, only one of 

whom was an Astriab plaintiff. Furthermore, the District 

Court neglected to consider Jersey City and Healy‟s answers 

to interrogatories, as well as deposition testimony by several 

 

10

 A full analysis as to the admissibility of Gillan‟s 

testimony is unnecessary because, as discussed below, there 

was sufficient other evidence to raise a genuine issue of 

material fact regarding the causation element. 
37

Astriab plaintiffs, detailing conversations with Troy in which 

he explained that Montone and certain Astriab plaintiffs 

would not be promoted because of Montone‟s involvement in 

the 2004 mayoral election.

11

We acknowledge that evidence was also presented 

indicating that the defendants‟ failure to promote the

plaintiffs was the result of factors other than Montone‟s 

political affiliation. For example, Whalen testified that when 

he protested to Troy that it was “not fair” that neither 

Montone nor any other sergeant would be promoted, Troy 

responded by asking, “Well, how would you feel if your best 

friend‟s wife is sitting at the kitchen table crying over threats 

made by [Montone] against her son and nephew?” (A.A. 

401.) Scerbo testified that on another occasion Troy told him 

that he “should have no problem” obtaining a promotion 

because he “was in front of Valerie.”12 (A.A. 374.) Finally, 

 

11

 Although the District Court rejected as inadmissible 

hearsay the deposition testimony of several of the Astriab 

plaintiffs, we hold that their testimony concerning Troy‟s 

statements is admissible as a party-opponent admission, and 

thus should have been considered in resolving the summary 

judgment motions. See Fed. R. Evid. 801(d)(2)(A). 

12

 Although Jersey City argues that “the unreliable 

statements of Whalen, DeStefano and Scerbo must be 

discounted entirely,” (Jersey City‟s A. Br. at 38), “[i]n 

considering a motion for summary judgment, [the] court may 

not make credibility determinations or engage in any 

weighing of the evidence . . . .” Marino, 358 F.3d at 247. 

Thus, Jersey City‟s argument is unavailing at this stage of the 

proceedings.
38

Troy testified that there was no shortage of lieutenants, and 

that the lack of promotions to lieutenant between 2004 and 

2006 was due to budgetary concerns and restructuring of the 

JCPD. 

Rather than counseling in favor of granting summary 

judgment for the defendants, however, the above-described

evidence demonstrates the existence of a genuine dispute 

about material facts related to the causation element of the

plaintiffs‟ First Amendment claim, including whether there 

was a shortage of lieutenants such that promotions were 

necessary (or not); whether Troy was authorized to make 

promotions; and the reason for the lack of promotions to

lieutenant between 2004 and 2006. The District Court thus 

erred in concluding that there was no triable issue of fact 

regarding the causation element of the plaintiffs‟ claim. 

Finally, the District Court erroneously drew inferences 

unfavorable to the Astriab plaintiffs, the non-movants, and

improperly assumed the role of fact-finder. For example, the 

District Court found that Inspector Russ‟ memoranda to Troy 

recommending the promotion of officers to the rank of 

lieutenant, coupled with Troy‟s decision not to promote the 

plaintiffs, did not “constitute[] evidence from which a 

reasonable finder of fact could infer that Montone‟s political 

affiliation motivated Troy‟s decision.” Astriab, 2011 WL 

5080353, at *3. In so holding, the District Court reasoned 

that “[t]he most that Plaintiffs have pointed to is the temporal 

proximity of Troy‟s first act of not following . . . Russ‟

staffing recommendations after the November 2004 election.” 

Id. The District Court thus concluded: 
39

[E]ven if a trier of fact were to 

contemplate the inference, based 

on temporal proximity, that 

Montone‟s conduct during the 

election was a substantial factor in 

Troy‟s decision not to promote 

more Lieutenants, the Russ 

memoranda constitute 

independent intervening events 

which tend to preclude finding 

any such link. It is clear that 

Troy‟s inaction on the memoranda 

was most directly in response to 

the memoranda themselves.

There is no evidence that the 

election played any proximate 

role and the timing appears to be 

coincidental.

Id.

The District Court‟s conclusion that “Troy‟s inaction 

on the memoranda was most directly in response to the 

memoranda themselves,” Astriab, 2011 WL 5080353, at *3,

directly contradicts the undisputed fact that after receiving 

Russ‟ memoranda, which called for promotions to various 

ranks including lieutenant, Troy made promotions to all other 

ranks except lieutenant. It also contradicts testimony by

several Astriab plaintiffs, including Whalen, who testified 

that Troy stated that he was “not making any lieutenants” 

because Montone was not being promoted as a result of

“hurt[ing] us” during the 2004 campaign. (A.A. 362-63, 

387.) As we recognized in Stephens, a plaintiff in a First 
40

Amendment retaliation action may prevail on summary 

judgment “by discrediting [the defendant‟s] proffered reason 

[for the employment action], either circumstantially or 

directly, or by adducing evidence, whether circumstantial or 

direct, that discrimination was more likely than not a 

motivating or substantial cause of the adverse action.” 122 

F.3d at 181. 

When viewed in the light most favorable to the 

plaintiffs, the evidence presented in opposition to the 

summary judgment motions demonstrates that there is a 

genuine issue of material fact as to whether Montone‟s 

political conduct was a motivating factor in the defendants‟ 

decision not to promote the Astriab plaintiffs. Accordingly, 

we vacate the District Court‟s grant of summary judgment to 

Jersey City and Troy on the political retaliation claim asserted 

in Count Three. 

III.

For the foregoing reasons, we will vacate the District 

Court‟s judgments.