2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-16-2014

Todd Houston v. Township of Randolph

Precedential or Non-Precedential: Non-Precedential

Docket 13-2101

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"Todd Houston v. Township of Randolph" (2014). 2014 Decisions. Paper 291.

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 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-2101

____________

TODD M. HOUSTON,

Appellant

v.

TOWNSHIP OF RANDOLPH; 

TOWNSHIP OF RANDOLPH FIRE DEPARTMENT;

JOHN MCANDREW; JOHN DOES 1-5

On Appeal from the United States District Court

for the District of New Jersey

(D. C. No. 2-11-cv-04810)

District Judge: Honorable Kevin McNulty

Submitted under Third Circuit LAR 34.1(a)

on January 17, 2014

Before: RENDELL, ROTH and BARRY, Circuit Judges

(Opinion filed: March 17, 2014)

O P I N I O N 

ROTH, Circuit Judge:

Todd M. Houston appeals the District Court’s order granting summary judgment 

to the defendants, the Township of Randolph, the Township of Randolph Volunteer Fire 
2

Department (RVFD), and RVFD’s Chief, John McAndrew. For the reasons set forth 

below, we will affirm.

I. Background

The material facts in this case are not in dispute. The Township of Randolph is 

located within Morris County, New Jersey. Beginning in approximately 2001, Houston 

served as a volunteer firefighter with RVFD. In addition, Houston was a full-time 

firefighter for the North Hudson Fire & Rescue Company until 2009, when he retired 

with a permanent disability after suffering an injury on the job. After this injury, 

Houston remained involved with RVFD as the Captain of the Department’s Rapid 

Intervention Team (RIT). Houston later resigned as RIT Captain, but continued to 

participate in and direct training for the RIT.

The RIT is a firefighting unit that deploys to neighboring jurisdictions in Morris 

County, New Jersey, to support the fighting of fires by the local jurisdiction. In essence, 

crews of the RIT rapidly deploy to a fire to stand ready to rescue firemen who might get 

caught in the blaze, but RIT crews do not actually fight the fire themselves. The genesis 

of this dispute stems from Houston’s disagreement with Chief McAndrew about the 

application of RIT policies in the field. In particular, Houston is of the opinion that a RIT

crew should not be dispatched to support firefighting efforts unless it can field a 
3

minimum of five members. Houston regularly complained to Chief McAndrew any time 

a RIT crew was dispatched with fewer than five members.

1

 

Morris County has adopted a set of RIT “Best Practice Guidelines,” which were 

also adopted by RVFD in February 2011. The Guidelines state that a RIT “will have”

one “Group Supervisor,” one “Leader,” and three additional “members at all times.” The 

Guidelines also indicate that “[a]nyone using this document should rely on his or her own 

independent judgment.” Further, the Guidelines expressly state that the committee that 

created the document makes “no guarantee or warranty as to the accuracy or 

completeness of any information” published in the Guidelines. Standards promulgated 

by the National Fire Protection Association, on which the RVFD Best Practice 

Guidelines are based, indicate that a RIT “team shall consist of a minimum of two 

personnel . . ., but four personnel are preferred and shall be used when possible.” 

On three occasions in 2010 and 2011,2 RVFD dispatched a RIT crew with fewer 

than five members. Chief McAndrew explained that during those incidents, fewer than 

five of RVFD’s RIT crew members were immediately available. Thus, RVFD decided to 

promptly dispatch a partial team to the incident, rather than delaying the dispatch until a 

full complement became available or being unable to assist the neighboring jurisdiction at 

 1 The record also reflects that Houston had disagreements with Chief McAndrew 

regarding the training of RIT members, including at least one incident in which Houston 

was defiant and openly criticized Chief McAndrew’s training plan.

2 We note that, even drawing all reasonable conclusions in favor of Houston, only one of 

these dispatches occurred after RVFD adopted the Morris County Guidelines that 

Houston relies on as the basis of his state-law claim.
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all. Houston complained to Chief McAndrew after the first two incidents, arguing that no 

RIT crew should be dispatched unless and until five RIT members are available. 

After the third incident in July 2011, Houston sent Chief McAndrew a letter 

stating that he could “no longer function as the training officer” of the RIT because of the 

RVFD’s purported “repeated disregard of the numerous rules, regulations and guidelines 

pertaining to” the RIT. In a response letter, Chief McAndrew “accept[ed]” Houston’s 

“resignation” and further instructed Houston “not to proctor, lecture, instruct, or 

participate in any training at all with the” RIT or RVFD. Chief McAndrew further 

suggested that Houston “take a break and re-evaluate if [Houston could] be cooperative 

and participate with” RVFD.

Houston filed this action on August 19, 2011, alleging various federal and statelaw claims. The District Court granted summary judgment for the defendants on each 

claim. Houston appeals.

II. Discussion3

We employ “a de novo standard of review to grants of summary judgment, 

‘applying the same standard as the District Court.’” Montone v. City of Jersey City, 709 

F.3d 181, 189 (3d Cir. 2013) (quoting Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d 

Cir. 1995)). Under this standard, a court must “view the underlying facts and all

reasonable inferences therefrom in the light most favorable to the party opposing the 

motion.” Id. (internal quotation marks omitted). A court “shall grant summary judgment 

 3 The District Court had subject-matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 

1367, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. 
5

if the movant shows that there is no genuine dispute as to any material fact and the 

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

Although Houston asserted several federal and state-law claims related to the 

termination of his role with RVFD, he presses only two on appeal: a First Amendment 

retaliation claim and a state-law claim pursuant to the New Jersey Conscientious 

Employee Protection Act (CEPA). 

The District Court correctly granted summary judgment to the defendants on 

Houston’s First Amendment claim. Houston’s role as a volunteer firefighter is sufficient 

to trigger First Amendment scrutiny. See Versarge v. Twp. of Clinton N.J., 984 F.2d 

1359, 1364 (3d Cir. 1993). Nevertheless, it is apparent that Houston’s statements 

regarding RIT staffing levels and training procedures were made pursuant to his duties 

with the RVFD and therefore receive no First Amendment protection. Garcetti v. 

Ceballos, 547 U.S. 410, 421 (2006). As he stated in a letter to Chief McAndrew, 

Houston’s role as “the person responsible for training” the RIT included the “duty to 

correct errors and deviations in [RIT] procedures.” Thus, Houston’s complaints 

regarding RVFD’s training and dispatch protocols for its RIT were made “pursuant to 

[his] official duties” and receive no First Amendment protection. Garcetti, 547 U.S. at 

421; see also Hill v. Borough of Kutztown, 455 F.3d 225, 242 (3d Cir. 2006).

The District Court was also correct to grant summary judgment to the defendants 

on Houston’s CEPA claim. Among other things, CEPA provides that an “employer shall 

not take any retaliatory action against an employee because the employee . . . [o]bjects to, 

or refuses to participate in any activity, policy or practice which the employee reasonable 
6

believes . . . is incompatible with a clear mandate of public policy concerning the public 

health, safety or welfare.” N.J. Stat. Ann. § 34:19-3c(3). The “threshold determination” 

that the court must make is to identify a “clear mandate of public policy” with “a 

substantial nexus” to the complained-of conduct. Dzwonar v. McDevitt, 828 A.2d 893, 

901 (N.J. 2003). A “clear mandate of public policy suggests an analog to a constitutional 

provision, statute, and rule or regulation promulgated pursuant to law such that . . . there 

should be a high degree of public certitude in respect of acceptable versus unacceptable 

conduct.” Maw v. Advanced Clinical Commc’ns, Inc., 846 A.2d 604, 607 (N.J. 2004) 

(internal quotation marks omitted). 

Houston’s reliance on the Morris County Best Practices Guidelines does not meet 

this standard. The Guidelines are expressly not an inflexible mandate on the RVFD, as 

they indicate that “[a]nyone using [the] document should rely on his or her own 

independent judgment.” Further, any potential mandate imposed by the Guidelines is not 

“clear,” because the Guidelines were designed to be “consistent” with “NFPA standards,” 

which indicate that fewer than five RIT members may be dispatched. Moreover, 

Defendants submitted evidence to the trial court indicating that the practice throughout 

Morris County was to defer to the judgment of the commander at the scene of the fire 

with regard to RIT deployments, even if that deference resulted in the deployment of 

fewer than five RIT members from a single jurisdiction. In light of this evidence, the 

Guidelines are more properly characterized as an aspirational best practices document, 

and not a clear mandate of public policy.
7

We recognize that the New Jersey Supreme Court has previously determined that 

an industry safety guideline can, in some circumstances, be a source of public policy on 

which a CEPA claim may be based. See Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 

1014–15 (N.J. 1998). The key factor in Mehlman, however, was that “the practical effect 

of the guideline was essentially equivalent to the effect of governmental regulatory 

action.” Id. at 1015. The Guidelines at issue in this case are expressly subject to the 

discretion of the RVFD and therefore may not serve as the basis for a clear mandate of 

public policy for a CEPA claim.

III. Conclusion

For the foregoing reasons, we will affirm the District Court’s order granting 

summary judgment to the defendants.