1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-10-1994

Ferraro v. City of Long Branch, et al

Precedential or Non-Precedential:

Docket 93-5576

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Recommended Citation

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1 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

No. 93-5576 

 

JOHN A. FERRARO; 

DOROTHY FERRARO 

 Appellants

v. 

CITY OF LONG BRANCH; 

ADAM SCHNEIDER; 

ANTHONY CRITELLI; 

MICHAEL PELUGHI; 

MICHAEL DESTAFANO; 

JOHN PALLONE; 

STEVEN SCHWARTZ; 

ROBERT LEHMANN 

 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil No. 93-01096) 

 

Submitted under Third Circuit LAR 34.1(a) 

 May 2, 1994 

BEFORE: GREENBERG and GARTH, Circuit Judges, 

and ROBRENO, District Judge* 

(Filed: May 10, 1994) 

 

 Robert E. McLeod 

 Gasiorowski & McLeod 

 1020 Highway 35 

 Middletown, NJ 07748 

 Attorney for Appellants

 
2 

* Honorable Eduardo C. Robreno, United States District Judge for 

the Eastern District of Pennsylvania, sitting by designation. 

 Mark S. Tabenkin 

 Kenney, Gross & McDonough 

 130 Maple Avenue 

 P.O. Box 8610 

 Red Bank, NJ 07701 

 Attorney for Appellees

 

OPINION OF THE COURT 

 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

 Appellants John A. Ferraro and Dorothy Ferraro, who are 

husband and wife, appeal from an order dated August 23, 1993, and 

entered on August 31, 1993, dismissing under Fed. R. Civ. P. 

12(b)(6) their claims against the appellees, the City of Long 

Branch, New Jersey, and certain of its officials, brought 

pursuant to 42 U.S.C. § 1983, and remanding the balance of the 

case to the Superior Court of New Jersey, Law Division, Monmouth 

County. As a matter of convenience we refer to John A. Ferraro 

as the appellant inasmuch as Dorothy Ferraro is a party only 

because she claims a loss of consortium. 

 Insofar as material to the section 1983 count, Ferraro 

in his Superior Court complaint alleged that since November 20, 

1979, he has been a career civil service employee of the City of 

Long Branch with the classified job title of Superintendent of 

Parks and Public Property. He further alleged that the duties of 

that position are essentially of a managerial, supervisory, and 
3 

planning nature, but that the appellees nevertheless directed him 

"to perform such jobs as garbage pick up, shoveling beach sand, 

and other physical labor under the supervision of [his] former 

subordinates . . . ." Ferraro claimed that the appellees' action 

deprived him of his rights, privileges, and immunities under New 

Jersey laws and regulations and "subjected [him] to the 

deprivation of a legally protected property right in his 

employment secured by the Constitution and laws of the United 

States and the State of New Jersey without due process of law in 

violation of those Constitutions and the statutes in such cases 

made and provided." 

 The complaint alleged that the appellees engaged in the 

foregoing wrongful conduct on and before December 28, 1990. While 

the complaint does not indicate precisely what happened on 

December 28, 1990, in his brief Ferraro indicates that he 

"collapsed [with a heart attack] on the job while shoveling snow 

on the steps of City Hall," and is still under treatment and has 

"never returned to work." Brief at 5. In deciding this case we 

will assume that Ferraro can prove these allegations and present 

evidence that his work assignment contributed to his collapse and 

illness. The complaint also included three state law counts for 

what Ferraro called "tortious interference with pursuit of lawful 

employment" and for violations of the New Jersey Administrative 

Code. Notably, however, Ferraro's complaint did not assert that 

the appellees' conduct constructively discharged him, and thus he 

did not allege, and even in his brief on this appeal, does not 

claim that he is no longer a Long Branch employee. In fact, he 
4 

acknowledges that he still is the Superintendent of Parks and 

Public Property. 

 The appellees removed the matter to the district court 

under 28 U.S.C. § 1441 on the ground that it had original 

jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). They then 

served a motion to dismiss under Rule 12(b)(6) "for failure to 

state a claim upon which relief can be granted, on the grounds of 

qualified immunity." 

 The district court granted the appellees' motion in an 

oral opinion on August 23, 1993. The court recited that it could 

grant the motion only if, after accepting the well-pleaded 

allegations in the complaint and viewing them in the light most 

favorable to Ferraro, he could prove no set of facts entitling 

him to relief. The court then observed that it was "well 

established that government officials performing discretionary 

functions enjoy qualified immunity from civil damages when their 

conduct does not violate clearly established statutory or 

constitutional rights of which a reasonable person would have 

known." The court next indicated that if a plaintiff's 

allegations "fail to state a constitutional violation at all, the 

court cannot find that the constitutional rights asserted . . . 

were clearly established at the time the defendants acted." 

 The district court went on to indicate that a showing 

that a defendant has violated a state statute does not in itself 

establish liability. It also said that a federal court is "'not 

the appropriate forum in which to review the multitude of 

personnel decisions that are made daily by public agencies,'" 
5 

quoting Bishop v. Wood, 426 U.S. 341, 349, 96 S.Ct. 2074, 2080 

(1976), and that "'[d]isputes over overtime, over work 

assignments, over lunch and coffee breaks do not implicate the 

great objectives of the 14th Amendment,'" quoting Brown v. 

Brienen, 722 F.2d 360, 365 (7th Cir. 1983) (emphasis added). The 

court recognized that Ferraro asserted the defendants acted with 

malice in forcing him to shovel snow and sand, and thus caused 

him to suffer a heart attack, but it held, citing Harlow v. 

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982), that 

these "bare allegations of malice" did not overcome the 

appellees' claim of immunity. Ultimately, the court dismissed 

the claims against the individual appellees "for failure to state 

a claim upon which relief can be granted pursuant to Rule 

12(b)(6) on the grounds of qualified immunity" and the claims 

against Long Branch itself because Ferraro had not asserted a 

claim on which relief could be granted. The court then remanded 

the balance of the case to the Superior Court. 

 Ferraro has filed a timely appeal. We have 

jurisdiction under 28 U.S.C. § 1291, and the district court had 

removal federal question jurisdiction. We exercise plenary 

review. 

II. DISCUSSION 

 Ferraro defines the rather limited scope of his claim 

by acknowledging that he "was neither deprived of his job nor his 
6 

salary and benefits" and accordingly conceding that he was not 

discharged, directly or constructively. Brief at 16. Rather, he 

contends that "he was deprived of the rights, duties and 

privileges of [his] job," brief at 16, because the "case does not 

involve mere work assignments, hours or other personnel 

decisions. It involves the duties which are the essence of [his] 

job title." Brief at 19. The district court rejected Ferraro's 

claim inasmuch as it found that he had not demonstrated that he 

had a right which the federal courts should protect and which the 

appellees had violated. See Siegert v. Gilley, 111 S.Ct. 1789, 

1793 (1991). 

 We agree with the district court. We recognize that we 

look to state law to determine if Ferraro in this section 1983 

action has alleged the existence of a property right. Board of 

Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972); 

Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 

679 (3d Cir. 1991), cert. denied, 112 S.Ct. 1668 (1992). 

Furthermore, we will assume that the appellees could be 

determined in a state proceeding to have violated the New Jersey 

Administrative Code by assigning Ferraro "to perform duties other 

than those properly pertaining to the assigned title which the 

employee holds." N.J. Admin. Code tit. 4A, § 3-3.4 (1993). 

Indeed, we even will assume that the appellees, as Ferraro 

pleads, are liable to him under New Jersey common law. Yet we 

decline Ferraro's invitation to hold that the change in his work 

assignment, which he admits did not rise to a level of wrongdoing 

constituting a constructive discharge, nevertheless was a 
7 

deprivation of his property interests actionable under section 

1983. While Ferraro asserts that the appellees were trying to 

harass him into resigning and thus were malicious in their 

conduct toward him, if we considered that a mere change in work 

assignment deprived an employee of a property interest, as a 

practical matter we would be federalizing routine employment 

decisions.1 Additionally, under the guise of protecting 

employees' rights, we would be erecting a barrier to ordinary 

management determinations regarding the assignment and duties of 

employees. 

 We recognize that Ferraro claims that prior to the 

appellees' acts in changing his duties his responsibilities were 

"largely managerial and administrative," though not "directorial 

or policymaking," brief at 27, and that after the changes he 

supervised fewer people and did more manual labor. But, as he 

concedes, the appellees did not change his job title or modify 

his salary and benefits. Furthermore, his modified duties 

clearly related to the functioning of the department of the 

municipal government in which he is employed, parks and public 

property. In these circumstances, Ferraro simply did not plead 

facts justifying a section 1983 action. Congress did not pass 

 

1In Winn v. Lynn, 941 F.2d 236, 239-40 (3d Cir. 1991), we 

rejected a contention that evidence of malice would strip the 

defendants of a defense of qualified immunity which they 

otherwise would enjoy under Harlow v. Fitzgerald, 457 U.S. 800, 

102 S.Ct. 2727 (1982), as qualified immunity is predicated on 

objective standards. While Winn v. Lynn well could be 

controlling here, we are deciding this case on the basis of our 

determination that the appellees did not deprive Ferraro of a 

property interest. 
8 

the civil rights law to constitute the district courts as grand 

arbiters of all public employer-employee disputes. We think that 

the language of the Court of Appeals for the Ninth Circuit in San 

Bernardino Physicians' Serv. Medical Group v. County of San 

Bernardino, 825 F.2d 1404, 1408 (9th Cir. 1987) (emphasis in 

original), though written in a different context, is useful in 

this case in its recognition that while the deprivation of 

contractual rights may create a section 1983 claim, there is "an 

equally compelling necessity to recognize that not every

interference with contractual expectations does so." 

 We find Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 

1988), useful in our analysis. There a public employee brought a 

section 1983 action making claims similar to those Ferraro 

advances. In Rode the plaintiff alleged that she was transferred 

to another position at her preexisting salary and benefit level. 

She predicated her complaint on the contention that the new 

position did not have the stature of her old position as it did 

not come with a private office and involved menial assignments 

and demeaning tasks. We indicated that "[e]mployment decisions 

such as those at issue here, which do not terminate or abridge 

[the employee's] employment contract, and which could be 

litigated in state tribunals, do not constitute deprivations of 

property interests under the fourteenth amendment." Id. at 1205. 

We then cited Brown v. Brienen, 722 F.2d 360 (7th Cir. 1983), for 

the proposition that even employment decisions which do violate 

employment contracts do not form the bases for section 1983 
9 

actions and that the Constitution should not be "trivialized by 

being dragged into every dispute in state and local government."2

 Other precedents support our result. The Supreme Court 

set out the approach we should follow in Bishop v. Wood, 426 U.S. 

at 349, 96 S.Ct. at 2080, when it indicated that the federal 

courts are "not the appropriate forum in which to review the 

multitude of personnel decisions that are made daily by public 

agencies." In Brown v. Brienen the Court of Appeals for the 

Seventh Circuit, in language particularly pertinent here, 

indicated that disputes "over work assignments . . . do not 

implicate the great objects of the Fourteenth Amendment." 722 

F.2d at 365. The court indicated, however, that "[a] public 

employer who drove an employee having a contract of employment to 

resign by making life unbearable for him, through excessive 

demands for overtime or other breaches of the employment 

contract, might be violating the Fourteenth Amendment and section 

1983 [through a] constructive discharge." Id. Brown v. Brienen

is particularly significant because it distinguishes between 

actions constituting a constructive discharge and lesser 

allegedly wrongful conduct for section 1983 purposes. In this 

 

2Id. (citing Brown v. Brienen, 722 F.2d at 365). In Rode, we 

indicated that a pattern of harassment not implicating an 

employee's property rights may constitute a Fourteenth Amendment 

violation if "motivated by the employee's exercise of protected 

constitutional rights or by [the employer's] invidious 

discriminatory intent." This principle, even if still viable, is 

inapplicable in this case, as Ferraro did not plead that the 

appellees acted in revenge for his engaging in constitutionally 

protected conduct, e.g., making a statement protected by the 

First Amendment, and he did not plead that the appellees 

discriminated against him by reason of a factor such as race, 

religion, or gender. 
10 

regard we emphasize that Ferraro does not claim to have been 

constructively discharged. In Wargat v. Long, 590 F. Supp. 1213, 

1215 (D. Conn. 1984), the court indicated "that personnel 

decisions short of termination do not constitute a deprivation of 

a property interest under the due process clause of the 

fourteenth amendment."3 

 Oladeinde v. City of Birmingham, 963 F.2d 1481 (11th 

Cir. 1992), cert. denied, 113 S.Ct. 1586 (1993), is also a useful 

precedent. In that case the plaintiffs, police officers, claimed 

that they were transferred in violation of their procedural due 

process rights in retaliation for whistleblowing about wrongdoing 

in the police department. The court of appeals rejected this 

argument, indicating that it would not "hold that a transfer, 

which involves no loss of pay and no loss of rank, deprives a 

plaintiff of a protected liberty or property interest." Id. at 

1486. That holding covers the situation here.4 

 

3While we hold that the appellees did not deprive Ferraro of a 

protected property interest, as we indicate below we are not 

holding that an adverse employment action short of termination 

never could deprive an employee of a property interest as we have 

no reason to consider that broad proposition on this appeal. 

Thus, we are not to be understood as adopting the full statement 

of the law which we quote from Wargat v. Long. The statement, 

however, is applicable here. 

4In his brief, Ferraro sets forth that his "complaint spoke in 

general terms of the deprivation of certain vested rights rather 

than specifically setting forth the manner in which the 

defendants acted to deprive the plaintiff of his rights and 

clearly identifying those rights. Such generality is not fatal. 

It can easily be handled by providing a more definite statement." 

Brief at 32. The difficulty with this contention is that Ferraro 

has described how the appellees' conduct impacted on him, i.e., 

he was not constructively discharged, and he has identified his 

protected property interest in his job. His case has failed 

because he has not demonstrated that the appellees deprived him 
11 

 In reaching our result, we need not and will not write 

broadly, as we are concerned only with deciding the case before 

us. Thus, we do not determine whether an adverse employment 

action not alleged to have constituted a constructive discharge 

of an employee can ever give rise to a section 1983 action. 

Rather, we hold only that Ferraro does not state a claim upon 

which relief may be granted, as he concedes that he was not 

discharged actually or constructively, his salary and benefits 

were not affected adversely by the appellees' actions, the 

appellees did not strip him of his job title, and he was not 

transferred to a different agency of the municipal government. 

 The judgment of August 31, 1993, will be affirmed. 

 

of a property interest. This shortcoming could not be cured by 

the proposed more definite statement describing appellees' 

actions and motives in more detail. 

 Ferraro further contends that the district court erred in 

indicating that his claims predicated on appellees' conduct 

before December 23, 1990, two years before he filed his Superior 

Court complaint, are barred by the statute of limitations. We 

need not consider this contention as Ferraro does not set forth 

facts indicating that the appellees' conduct before December 23, 

1990, deprived him of a property interest.