2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-23-2012

Gabriel Busa v. Township of Gloucester

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2224

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Recommended Citation

"Gabriel Busa v. Township of Gloucester" (2012). 2012 Decisions. Paper 1553.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2224

_____________

GABRIEL BUSA,

 Appellant

v.

TOWNSHIP OF GLOUCESTER; MAYOR AND COUNCIL 

OF THE TOWNSHIP OF GLOUCESTER; DAVID MAYER,

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 10-cv-01396)

District Judge: Hon. Joseph E. Irenas 

_______________

Submitted Under Third Circuit LAR 34.1(a)

January 13, 2012

Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.

(Filed: January 23, 2012)

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Gabriel Busa appeals the order of the United States District Court for the District 

of New Jersey, granting summary judgment to the Township of Gloucester (the 

“Township”), the Mayor and Council of the Township, and David Mayer (collectively, 
2

“Appellees”) on Busa’s 42 U.S.C. § 1983 claim. For the following reasons, we will 

affirm.

I. Background1

A. Factual History

Busa was appointed the Director of Public Works for the Township in 1992, when 

it was controlled by the Democratic Party.2

While serving under Rau-Hatton, Busa did not attend political functions or put 

political signs on his lawn for either party. Consequently, members of the Township’s 

Democratic Party were displeased with Busa’s lack of participation and cooperation in 

Democratic events. In 2009, David Mayer, a Democrat, was elected to replace Rau-

 Prior to 2006, Busa was an active member of 

the Democratic Party. In 2006, Cindy Rau-Hatton, a Republican, was elected Mayor of 

the Township and asked Busa to continue his service as the Director of Public Works. 

 1 Because we are reviewing a grant of summary judgment in Appellees’ favor, we 

recount the facts in the light most favorable to the non-movant, Busa.

2 The Township has chosen to follow New Jersey’s Faulkner Act, which provides 

for a Mayor-Council form of government under the Optional Municipal Charters Law. 

See N.J. Stat. Ann. § 40:69A-1, et seq. Under that form of government, the mayor 

appoints each department head, including the director of public works, with the advice 

and consent of the township council. Id. § 40:69A-43(b). Pursuant to the Faulkner Act, 

the Township’s Organizational Ordinance provides that “[t]he head of the Department of 

Public Works shall be the Director of Public Works. He shall be appointed by the Mayor 

with the advice and consent of [the township] Council until appointment and qualification 

of a successor.” (App. at 5.) 
3

Hatton as Mayor of the Township.3

 On December 21, 2009, Busa was informed that he 

would not be re-appointed as the Director of Public Works.4

B. Procedural History

 

On February 17, 2010, Busa filed a six count complaint in the District Court 

alleging, in part, a violation of his First and Fourteenth Amendment rights under the U.S. 

Constitution as a result of political discrimination. He claims that his termination was the 

result of his refusal to participate in Democratic Party activities and of the Appellees’ 

perception of him as a member of either the Republican Party or a different faction of the 

Democratic Party. Following discovery, Appellees moved for summary judgment on all 

counts. The District Court granted Appellees’ motion. With respect to the political 

discrimination count, the District Court determined that Busa’s claim failed as a matter of 

law because he was employed in a position that required political affiliation and, as a 

result, he could be terminated based on his political affiliation. 

 3

 Mayer’s term was set to begin on January 1, 2010. 

4

 Mayer appointed Len Moffa, an active member of the Democratic Party, to that 

position. 
4

II. Discussion5

The sole issue on appeal is whether, as Busa contends, his constitutional rights 

were violated because he was terminated on the basis that he did not politically support 

the faction of the Democratic Party in power. In order to make a prima facie case of 

political discrimination in violation of the First Amendment, Busa must show that (1) he 

“was employed at a public agency in a position that does not require political affiliation,” 

(2) he “was engaged in constitutionally protected conduct,” and (3) “this conduct was a 

substantial or motivating factor in the government’s employment decision.” Galli v. N.J.

Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007). 

While the dismissal of public employees for political reasons may constitute an 

impermissible infringement upon constitutional rights, an exception is often made for 

employees holding policy-making positions, as such employees may properly be required 

to support the policy initiatives of elected officials. See id. at 270-71 (“[T]he First 

Amendment protects public employees ... from politically motivated discharge ... unless 

the government can demonstrate that party affiliation is a proper requirement for the 

position.”). The key factor in determining whether a position appropriately requires 

political affiliation is whether the employee has “meaningful input into decisionmaking 

concerning the nature and scope of a major [ ] program.” Id. at 271 (internal quotation 

 5 The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 

and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order 

granting summary judgment is plenary. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 

2002). “A grant of summary judgment is appropriate where the moving party has

established that there is no genuine dispute of material fact and ‘the moving party is 

entitled to judgment as a matter of law.’” Hugh v. Butler Cnty. Family YMCA, 418 F.3d 

265, 266 (3d Cir. 2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
5

marks and citation omitted). Other factors include whether the employee has nondiscretionary duties, participates in discussions and meetings, prepares budgets, has a 

high salary, retains power over others, and can speak for policy makers. Id. According 

to Busa, the District Court erred in granting summary judgment in favor of the Appellees 

because there are disputed issues of material fact relating to whether he was employed in 

a position that required political affiliation for the effective performance in his public 

office. 

Under the test set forth in Galli, Busa “must first show that []he works in a 

position that does not require political affiliation. This burden of proof [then] shifts to the 

government ... [to demonstrate that] political affiliation is central to the job itself.”6

Busa advances several arguments in support of his position that the Director of 

Public Works does not require political affiliation. He argues that the State of New 

Jersey has enacted legislation professionalizing the position of Director of Public Works 

by requiring certain training and experience. See N.J. Stat. Ann. § 40A:9-154.5, et seq. 

Those requirements include the maintenance of a valid license, as well as continuing 

 Id.

at 271. Viewing the record in the light most favorable to Busa, there is no genuine 

dispute of material fact. It is clear that Busa was in a policy-making position for which 

political affiliation is an appropriate requirement.

 6 While the usual allocation of the burden of proof in employment discrimination 

cases would place the burden solely on the plaintiff, with only the burden of production 

shifting, Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000), in cases such as this 

the allocation of burdens is modified to require the defendant to demonstrate an 

overriding interest in encroaching on a constitutional right, Armour v. Cnty. of Beaver, 

271 F.3d 417, 420 (3d Cir. 2001).
6

education. Busa points out that the State has required the Director of Public Works to 

obtain certification by having experience in public works management, completing a 

course of study, and passing an examination. See id. § 40A:9-154.6b(b); id. § 40A:9-

154.6a(g); id. § 40A:9-154.6a(f). Busa also argues that the State has specifically created 

a path by which Township Councils can make the Director of Public Works a tenured 

position in order to “give recognition to the increasing demands for professional expertise 

that these positions require and to remove the opportunity for capricious appointments 

where the superintendent of public works has developed that expertise.” (App. at 77

(internal quotation marks omitted).) 

To meet their burden under Galli, Appellees argue that the position of Director of 

Public Works is a policymaking position that wields a great deal of influence over the 

Township’s public works decisionmaking. They point to the New Jersey Civil Service 

Commission’s Job Specifications, which state that the Director of Public Works “plans, 

organizes, and directs the programs and activities of a comprehensive public works 

department.” (App. at 92.) The Director in the Township of Gloucester also “[d]evelops, 

administers, and implements a variety of public works programs” (id.), supervises 

approximately 85,000 employees (Busa Dep. Tr. 48:10-11, App. at 123), is responsible 

for the divisions of streets, sanitation, and parks and playgrounds, and submits budget 

requests to the Mayor, see N.J. Stat. Ann. § 40:69A-45. Moreover, the Director of Public 

Works reports directly to the Mayor and acts as an advisor to the Mayor on issues of 

policy with respect to the Township’s public works. Finally, Appellees note that the 

Director of Public Works is not a tenured position in the Township. 
7

Busa’s arguments notwithstanding, the Appellees have demonstrated that the 

Director of Public Works is a policy-making position where political affiliation is an 

appropriate requirement because it involves discretion and decisionmaking with respect 

to policy issues. Indeed, “the Director of Public Works plays a meaningful role in 

decisionmaking for what is a major Township program. The Director has discretionary 

duties and acts as an advisor to the mayor on public works policy.” (App. at 17.) That 

the State has enacted legislation to professionalize the position of Director of Public 

Works does not change the analysis. Busa downplays the importance of the duties he 

undertook while Director of Public Works, but it is clear that the position is one which, as 

the District Court correctly noted, involves a great deal of discretion regarding matters of 

public policy. 7

 7 While Busa is correct that some townships have opted to make the director of 

public works a tenured position, that has not happened in the Township of Gloucester. 

Busa’s reliance on McKeever v. Township of Washington, 236 F. Supp. 2d 400 (D.N.J. 

2002), where a former director of public works was able to demonstrate that the position 

did not require political affiliation in his township, is misplaced because the Township of 

Washington chose to pass a tenure ordinance for their director of public works. 

McKeever rightly emphasized that “[e]ach decision is fact specific, based on the 

individual case” when examining a claim of political discrimination. Id. at 410.

 We thus agree with the District Court that the record does not reveal a 

genuine issue of material fact that would preclude summary judgment. See Fed. R. Civ. 

P. 56(a). 

Busa also places a great deal of emphasis on Zold v. Township of Mantua, 935 

F.2d 633 (3d Cir. 1991), where we held that the deputy municipal clerk position in the 

Township of Mantua did not appropriately require political affiliation. While the deputy 

municipal clerk position in Zold was not tenured, the role of the deputy municipal clerk 

was to fill in for the municipal clerk, a tenured position in the township. Id. at 639. The 

instant case is quite different, as the Director of Public Works heads a large department, 

has a great deal of budgetary responsibility and discretion, engages in decisionmaking 

affecting public policy, and does not fill in for tenured officeholders in their absence. 
8

III. Conclusion

For the foregoing reasons, we will affirm the judgment of the District Court.