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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANNIE BOWSER, et al.
Plaintiffs,
v.
NEW JERSEY HOUSING AND
MORTGAGE FINANCE AGENCY
Defendant.

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Civ. No. 03-2690 (GEB)

MEMORANDUM OPINION

BROWN, District Judge
This matter comes before the Court upon Defendant’s motion for summary judgment and
Plaintiffs’ appeal of Magistrate Judge Hughes’ June 22, 2004 Discovery Order. Oral argument was
heard on October 4, 2004. For the reasons set forth below, Defendant’s motion for summary
judgment is denied and the ruling of the Magistrate Judge is affirmed.

I.

BACKGROUND
Plaintiffs Annie Bowser (“Bowser”), Vincent DaSilva (“DaSilva”), Joseph Petrino

(“Petrino”), Audrey Savas (“Savas”), Cheryl Ali (“Ali”), and Herbert Korte (“Korte”) (collectively
referred to as “Plaintiffs”) commenced this action against Defendant New Jersey Housing and
Mortgage Finance Agency’s (“NJHMFA” or “the Agency”) on June 5, 2003. NJHMFA is an entity
“affiliated with, but not part of, the New Jersey Department of Community Affairs.” Am. Compl.
¶ 1. NJHMFA is involved with the creation and implementation of housing programs in the State

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of New Jersey.
Plaintiffs are former at-will employees of NJHMFA. Def.’s Statement of Undisputed Facts
¶ 1 (“Def.’s Statement”). These six Plaintiffs were among twenty-six employees of the NJHMFA
that were terminated in May and July of 2002.1 Am. Compl. ¶¶ 7,8; Def.’s Statement ¶ 2.
Defendant asserts that their terminations were the result of an Agency-wide reorganization. Def.’s
Statement ¶ 2.

Plaintiffs allege that they were wrongfully discharged based on their actual or

perceived affiliation with the Republican Party. Plaintiffs claim that such termination violated their
constitutional right to free speech and political association as guaranteed by the First and Fourteenth
Amendments of the United States Constitution.2
In January of 2002, James E. McGreevey assumed office as the Governor of New Jersey.
Shortly thereafter, Susan Bass Levin (“Levin”) was appointed by McGreevey as Commissioner of
the Department of Community Affairs (“DCA”). Both McGreevey and Levin belong to the
Democratic Party. Pls.’ Counter Statement of Facts ¶¶ 1, 2 (“Pls.’ Statement”). In her capacity as
Commissioner, Levin also assumed the position of Chairperson on the NJHMFA’s Board. As
Chairperson, Levin has the responsibility of ensuring “that the Agency produces as much affordable

1

The exact number of terminations resulting from the reorganization appears to be
disputed. Defendant identifies twenty-eight terminated employees. Calao Cert., Ex. DD, Def.’s
Answer to Interrog. 7. Plaintiffs respond that one employee, Charles Bussey, was actually hired
rather than fired. Pls.’ Statement, n.1. Further, Plaintiffs state that another employee, Tony
Tozzi, retired from his position. Id. For purposes of this motion, we will refer to the number of
terminated employees as twenty-six.
2

Plaintiffs filed an Amended Complaint on January 8, 2004 which added a second claim
against NJHMFA alleging that their actions violated the New Jersey Veterans’ Tenure Act. N.J.
STAT . ANN . 38:16-1, et seq. On March 8, 2004, this Court dismissed the claim based on Federal
Rule of Civil Procedure 12(b)(6). The only remaining claim is Count I of the Amended
Complaint which alleges constitutional violations pursuant to 42 U.S.C. § 1983.
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housing as possible for New Jersey families and seniors.” Certification of Calao in Supp. of Mot.
for Summ. J., Ex. C at 10 (“Calao Cert.”). Notably, Levin also has the final say with regard to hiring
decisions at NJHMFA. Sweetser Cert., Ex. P at 12-13.
Upon assuming the role of Commissioner, Levin asserts that she set an immediate goal of
fulfilling the mission of NJHMFA – to provide affordable housing to the citizens of New Jersey.
Calao Cert., Ex. C at 15. Levin engaged in an information gathering process to determine ways in
which the Agency could run more efficiently. Id. at 21. She spoke with members of the housing
industry, including developers and contractors, as well as former executives of the NJHMFA to
evaluate the Agency’s strengths and weaknesses. Levin also attended Board meetings and was
briefed by staff members. Id. Levin consulted Former Executive Director for the NJHMFA,
Deborah DeSantis, about “the overall functioning of the agency as it pertained to the structure.”
Calao Cert., Ex. D at 28.

During this process, Levin received information relating to the

performance of various employees at NJHMFA. Levin generally did not record the information she
gathered, but kept it “in [her] head.” Calao Cert., Ex. C at 24.
Based on the information Commissioner Levin acquired from her discussions with various
individuals, Levin created a list of NJHMFA employees whom she intended to terminate. Def.’s
Statement ¶ 11. Levin consulted former Executive Director C. Sean Closkey (“Closkey”), Chief of
Programs Tracee Battis (“Battis”), and Chief Financial Officer Eileen Hawes (“Hawes”) before
terminating any employees. Def.’s Statement ¶ 12. Based on recommendations from Battis, Levin
removed three employees from the list that Battis believed were excellent performers. Ultimately,
twenty-six employees were terminated, and nineteen additional employees were invited to participate
in NJHMFA’s “early retirement pension program” by July of 2002. Def.’s Statement ¶ 14.
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Defendant alleges that in addition to the general restructuring of the NJHMFA, performance, conduct
and attitude were also taken into consideration when deciding these terminations. Certification of
Sweetser, Ex. A, at 9 (“Sweetser Cert.”). Further, a total of at least fourteen positions were
eliminated from the Agency in 2002. Id. at 10.
Plaintiffs were among those terminated from NJHFMA. Bowser and Savas were employed
in the Human Resources (“HR”) Department. Bowser was employed at the Agency for thirty-four
years. Pls.’ Statement ¶ 8. She held the title of HR Manager, but was temporarily assigned the
position of HR Information Systems (“HRIS”) Project Manager at the time of the termination. Calao
Cert., Ex. H, 59-61. Savas was employed at the Agency for six years and held the position of
Director of HR at the time of termination. Pls.’ Statement ¶ 12. HR was designated as one of the
departments to be restructured as part of the reorganization. Defendant asserts that Levin conducted
an extensive analysis of the department and concluded that HR was disproportionately overstaffed.
Def.’s Statement ¶ 29. After the reorganization, the HR department decreased in size by half.
Bowser and Savas’ positions were eliminated as a result of the reorganization. Sweetser Cert, Ex.
A at 8-9.
Similarly, the Multi-Family Programs Department was designated as a unit that required
restructuring. Korte and DaSilva were members of this department. Korte was employed at the
Agency for seven years and held the position of Loan Coordinator. Pls.’ Statement ¶ 10. DaSilva
worked at NJHMFA for eight years and held the position of Administrator of Regional Contribution
Agreements. Id. ¶ 9. Prior to the terminations, Levin and Closkey received information that the
Multi-Family Program Department was “completely ineffective and problematic.” Def.’s Statement
¶ 24. Defendant maintains that Korte and DaSilva’s positions were eliminated to better the
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efficiency of that department.
Petrino served as the Chief Information Officer of NJHMFA. He was employed at the
Agency for eighteen months. Pls.’ Statement ¶ 11. The Information Technology Department was
likewise designated as a unit that needed restructuring. Petrino’s position of Chief Information
Officer was eliminated. Ali was a member of the Government Affairs and Community Outreach
Department. Ali was employed at the Agency for nine years and held the position of Outreach
Coordinator III. Id. ¶ 7. This position was eliminated as part of the reorganization. Sweetser Cert,
Ex. A at 9.
Prior to the terminations in February or March of 2002, Plaintiffs assert that a list was
created at the request of the Commissioner. Pls.’ Statement ¶ 27. Defendants dispute the existence
of such list. Def.’s Reply at 9. Bowser and Savas testified at their depositions that they were
instructed to prepare a list of all employees at the Agency at Level 15 and above – essentially,
managers earning over $50,000. Pls.’ Statement ¶ 27. Both allege that the Chief Operating Officer
at the time, Denise Coyle, instructed them to create the list at the request of Commissioner Levin.
Id. They contend that they were told to include specific information including, among other things,
the employee’s political affiliation. More specifically, Plaintiffs allege that Coyle instructed them
to designate whether the employees were “Ds” or “Rs,” referring to Democrats or Republicans
respectively. Sweetser Cert., Ex. L at 233. Coyle’s testimony contradicts this assertion. Supp.
Certification of Calao, Ex. 11 (“Calao Supp. Cert.”). Further, Levin and the executives with whom
she discussed terminations deny having seen this list. Def.’s Reply at 9.
Plaintiffs allege a second list was created which likewise contributed to the terminations.
Plaintiffs assert that Coyle was instructed by Levin to compile a list of employees that were hired
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between 1994 to 2002. Sweetser Cert., Ex. V at 70-71. Plaintiffs note that Republican Governors
held office during this time period, namely Christine Todd Whitman and Donald DiFrancesco. Pls.’
Statement ¶ 31. Of the twenty-six terminated employees, twenty-two were hired between 1994 and
2002. Sweetser Cert., Ex. DD. Plaintiffs further assert that this list, as well as the list of Level 15
Employees, were requested by the Governor’s Office – namely by Michael Henneberg, employee
of the Governor’s Office. Pls.’ Statement ¶ 35; Sweetser Cert., Ex. V at 77-80.
Ultimately, twenty-six employees were terminated and at least fourteen positions were
eliminated as part of the alleged reorganization. Defendant, however, identifies ten new positions
were created as a result of the reorganization. Sweetser Cert., Ex. A at 10-11. Plaintiffs further
identify five additional positions that were created as well – one “Confidential Aide” position and
four “Aide to Commissioner” positions. Pls.’ Statement ¶ 41.
Between January 2002 and March 2003, forty new employees were hired at NJHMFA –
thirty-eight being full-time employees. Pls.’ Statement ¶ 50. Plaintiffs assert that twenty-five of the
thirty-eight full-time employees are either affiliated with the Democratic Party or were referred by
the Governor’s Office. Id. ¶¶ 52-54. Specifically, they allege that thirteen are registered Democrats
and seven were referred by members of the Democratic Party. Plaintiffs contend that at least four
of the remaining new hires were referred by Democratic politicians. Id. ¶¶ 58-64.
NJHMFA now moves for summary judgment seeking dismissal of Count I of Plaintiffs’
Amended Complaint which alleges Plaintiffs’ terminations were impermissibly based on political
affiliation.

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II.

DISCUSSION

A.

Defendant’s Motion for Summary Judgment
1.

Summary Judgment Standard

A party seeking summary judgment must “show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” FED . R. CIV .
P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Orson, Inc. v. Miramax Film
Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219,
n.3 (3d Cir. 1988), cert. denied, 490 U.S. 1098 (1989); Hersh v. Allen Prod. Co., 789 F.2d 230, 232
(3d Cir. 1986). The threshold inquiry is whether there are “any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (noting that no issue for trial
exists unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
in its favor). In deciding whether triable issues of fact exist, the court must view the underlying facts
and draw all reasonable inferences in favor of the non-moving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236
(3d Cir. 1995); Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987).
Rule 56(e) of the Federal Rules of Civil Procedure provides, in relevant part:
When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon
the mere allegations or denials of the adverse party’s
pleading, but the adverse party’s response, by affidavits or as
otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if appropriate,
shall be entered against the adverse party.

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FED . R. CIV . P. 56(e). The rule does not increase or decrease a party’s ultimate burden of proof on
a claim. Rather, “the determination of whether a given factual dispute requires submission to a jury
must be guided by the substantive evidentiary standards that apply to the case.” Anderson, 477 U.S.
at 255-56.
Under the rule, a movant must be awarded summary judgment on all properly supported
issues identified in its motion, except those for which the nonmoving party has provided evidence
to show that a question of material fact remains. See Celotex, 477 U.S. at 324. Put another way,
once the moving party has properly supported its showing of no triable issue of fact and of an
entitlement to judgment as a matter of law, for example, with affidavits, which may be
“supplemented . . . by depositions, answers to interrogatories, or further affidavits,” id. at 322, “its
opponent must do more than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita, 475 U.S. at 586; see also Anderson, 477 U.S. at 247-48 (“By its very terms, this
standard provides that the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion . . . the requirement is that there be no genuine
issue of material fact.”) (emphasis in original).
What the non-moving party must do is “go beyond the pleadings and by [its] own affidavits,
or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324; see also Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 888 (1990) (“The object of [Rule 56(e)] is not to replace conclusory
allegations of the complaint . . . with conclusory allegations of an affidavit.”); Anderson, 477 U.S.
at 249; Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (“To raise
a genuine issue of material fact . . . the [non- moving party] need not match, item for item, each piece
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of evidence proffered by the movant” but rather must exceed the ‘mere scintilla’ threshold.), cert.
denied, 507 U.S. 912 (1993).

2.

Political Discrimination Claims

The First Amendment of the United States Constitution protects the right to political
association and political expression. Buckley v. Valeo, 424 U.S. 1, 15 (1976). The Supreme Court
recognized in Elrod v. Burns, 427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980), that
such right prohibits government officials from discharging or terminating employees based on the
employee’s political affiliation.

Patronage dismissals severely restrict political belief and

association, which “constitute the core of those activities protected by the First Amendment.” Elrod,
427 U.S. at 356. Such protection extends to promotions, transfers, recalls, and other hiring decisions
concerning public employees. Rutan v. Republican Party of Ill., 497 U.S. 62 (1990). The Court
reasoned that the rights guaranteed by the First Amendment outweighs the government’s interest
in maintaining political patronage within a system. Additionally, the Court noted that “the free
functioning of the electoral process also suffers” as a result of political patronage by preventing
support of competing political interests. Elrod, 427 U.S. at 356.
The Court recognized, however, that patronage dismissals may be appropriate with regard
to policymaking positions in order to ensure that policies sanctioned by the electorate are
implemented. Elrod, 427 U.S. at 367-68. Recognizing that no clear line exists between a
policymaking position and a non-policymaking position, the Court stated that one must consider
whether the employee “acts as an adviser or formulates plans for the implementation of broad goals.”
Id. at 368. The Court articulated in Branti that the ultimate “question is whether the hiring authority
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can demonstrate that party affiliation is an appropriate requirement for the effective performance of
the public office involved.” 445 U.S. at 518. Although non-policymaking positions often have less
or limited responsibilities associated with them, that is not to say that a position associated with a
greater number of responsibilities is necessarily a policymaking position.

The Court used the

position of an employee supervisor as an example. Although this position often entails a greater
number of responsibilities, these responsibilities “may have only limited and well-defined
objectives.” Elrod, 427 U.S. at 368. Such a position would not be a policymaking position.
Conversely, policymaking positions come with responsibilities that are generally broader in scope,
and not as well-defined. Id. Moreover, the relevant inquiry focuses on “the function of the public
office in question and not the actual past duties of the particular employee involved.” Brown v.
Trench, 787 F.2d 167-68 (3d Cir. 1986). The burden rests on the hiring authority to prove “that
party affiliation is 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 368.
The Third Circuit discussed the legal framework employed in political discrimination cases
in Stephens v. Kerrigan, 122 F.3d 171 (3d Cir. 1997). A burden shifting mechanism is used. Such
mechanism is similar, though not identical, to the one used in other employment discrimination
cases, such as Title VII cases. Id. at 176. In order to make a prima facie case, plaintiffs must show
“that they worked for a public agency in a position that does not require a political affiliation, that
they were engaged in constitutionally protected conduct, and that the conduct was a substantial or
motivating factor in the government’s employment decision.” Id. at 176; see also Robertson v.
Fiore, 62 F.3d 596, 599 (3d Cir. 1995); Laskaris v. Thornburgh, 733 F.2d 260, 264-65 (3d Cir.
1984), cert. denied, 469 U.S. 886 (1984). After an employee makes this demonstration, the burden
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shifts to the employer to prove by a preponderance of the evidence that the same employment
decision would have been made “even in the absence of the protected activity.” Stephens, 122 F.3d
at 176.

a.

Substantial or Motivating Factor in the Government’s
Employment Decision

Defendant argues that Plaintiffs failed to satisfy this prong of the inquiry because they failed
to adduce any evidence demonstrating that Commissioner Levin had any knowledge of Plaintiffs’
political affiliation. The Third Circuit has stated that an implicit requirement in proving that political
affiliation was a substantial or motivating factor is to show that the employer had knowledge of
plaintiff’s political affiliation. Laskaris, 733 F.2d at 265. Defendant cites two cases from this
circuit, Stephens v. Kerrigan, 122 F.3d 171 (3d Cir. 1997), and Laskaris v. Thornburgh, 733 F.2d
260 (3d Cir. 1984), in support of its proposition that knowledge is a requirement in political
discrimination cases. Both cases will be discussed in turn as they provide helpful guidance in
analyzing this particular issue.
In Stephens, the Third Circuit reversed the district court’s grant of summary judgment in
favor of the government official – in this case the mayor of the City of Allentown, Mayor Heydt.
122 F.3d 171. Relying on statements made by Heydt in his sworn affidavit and deposition testimony,
the district court found that plaintiffs did not produce sufficient evidence to establish knowledge of
the plaintiffs’ political affiliation. Plaintiffs argued that a reasonable inference could be made
because their political affiliations were well-known among their co-workers, including those who
supported Heydt. The district court refrained from drawing any inferences in favor of the plaintiffs

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based on its reading of Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578 (3d Cir. 1996) – which the
court said stood for the proposition that a jury may not infer such knowledge. Stephens, 122 F.3d
at 177. The Third Circuit disagreed with this reasoning.
The circuit court found that inferences may be made. Sufficient evidence was set forth by
plaintiffs to show that Heydt had the requisite knowledge. This included circumstantial evidence
that showed that “there was an information ‘pipeline’ between Heydt and his . . . supporters.”
Stephens, 122 F.3d at 178. The circuit court found that Heydt had continuing contact with members
of the department regarding personnel and management issues. Similar to the present case, there was
evidence supporting the allegation that Heydt requested a “master” reorganization plan be created
by the department leadership after his election. Accordingly, the circuit court concluded that the
grant of summary judgment could not be sustained.
In the case of Laskaris, however, the Third Circuit upheld a judgment following a bench trial
in favor of the government official, the Pennsylvania Department of Transportation (“DOT”). In that
case, the circuit court agreed with the district court’s finding that the two plaintiffs failed to prove
that the DOT had any knowledge they were Democrats. In support of their claims, Plaintiffs
submitted a letter from a state representative suggesting that the “incompetent political hacks” be
terminated. Laskaris, 733 F.2d at 265. Plaintiffs did not produce any evidence, however, showing
that any managers responded to the letter by firing plaintiffs. Nor did plaintiffs show that their
particular positions, out of a total of 15,000 positions in the agency, were specifically targeted.
Plaintiffs also failed to prove that the discharge decision was politically motivated. In upholding the
judgment, the Third Circuit stated that “while the evidence has about it a vague aura of politically
motivated patronage firings . . . it is far too insubstantial to show that the individual plaintiffs here
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were discharged because of their political affiliation.” Id. at 266.
In the case at bar, Plaintiffs contend that Levin undoubtedly knew Plaintiffs’ political
affiliation based on a list that she allegedly requested shortly before the terminations began. Savas
and Bowser testified in their depositions that they were asked by the Chief Operating Officer, Denise
Coyle, to assist her in preparing a list of the executive staff for the Commissioner. The list allegedly
included various personnel information, as well as the political affiliations of the listed employees.3
Sweetser Cert., Ex. O at 133. According to Savas and Bowser, political party information was
specifically requested and both were instructed to indicate whether the employee was a “D” or an
“R.” These determinations were made based on personal knowledge and by referring to the
employee’s date of hire and referral lists.
Plaintiffs further assert that the Commissioner had knowledge of political affiliations based
on a second list that was requested. Plaintiffs state that Coyle was requested to prepare a list of
employees who were hired between the years of 1994 to 2002 – a time during which Republican
Governors were in office. Coyle submits that the information was requested by the Executive
Director DeSantis on behalf of the Commissioner and directly by the Authorities Unit’s liaison to
the NJHMFA, Michael Henneberg. Sweetser Cert., Ex. V. at 70-71, 77-80.
Defendant counters this argument with Levin’s sworn statement and deposition testimony
that she was not aware of any of Plaintiffs’ political affiliations. Defendant asserts that Levin denies
asking for the list to be prepared. Calao Cert. Ex. C, at 85. NJHMFA also argues that Coyle denies
ever having discussed political affiliations of Agency employees with Savas and Bowser. Calao
3

According to Savas, the information that was collected included: name, range, title, date
of hire, underlying status in Civil Service if applicable, and political affiliation. Sweetser Cert.,
Ex. O, at 133.
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Supp. Cert., Ex. 11 at 87.
Based on the evidence contained in the record, this Court concludes that a genuine issue of
material fact exists as to whether Commissioner Levin had knowledge of the Plaintiffs’ party
affiliation.
With regard to whether political affiliation was a substantial or motivating factor in the
dismissals, the burden of proof rests on the Plaintiffs. The crux of Plaintiffs argument is that the
reorganization was merely a pretext for the new Administration to make room for its political patrons
in the Agency. To support this argument, Plaintiffs make several points. As a result of the
reorganization, twenty-six employees were terminated and at least fourteen position were eliminated.
Plaintiffs contend that of the twenty-six employees who were terminated, twenty-three were either
identified as Republicans or hired during the previous Republican administrations. Pls.’ Opp’n at
8, 24. Additionally, they assert that when Commissioner Levin was asked why Plaintiffs were not
offered to transfer to other positions rather than be terminated, despite the fact that NJHFMA retains
a policy of promoting from within the Agency, Levin answered that the goal was not to fill vacancies
but “to reduce the number of positions.” Sweetser Cert, Ex. W, P at 63.
However, Plaintiffs argue that the facts suggest otherwise. As a result of the reorganization,
the record indicates that at least fifteen new positions were created. Sweetser Cert., Ex. A at 10-11;
Pls.’ Opp’n at 9. In some instances, they argue that an eliminated position bears striking
resemblance to a newly created position. For example, six months after Petrino’s position of Chief
Information Officer was eliminated, the position of Director of Information Technology was created.
Furthermore, thirty-eight full-time employees were hired during the reorganization,
specifically between March 2002 and March 2003. Plaintiffs contend that these facts do not comport
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with Defendant’s assertions that the main goal of the reorganization was to “cut costs and streamline
operations.” Def.’s Reply at 14. The Human Resources Coordinator, Dolores Guinan, stated that
she was instructed to screen a group of approximately seventy-five resumes that came from
NJHMFA’s executive area shortly after the terminations. Sweetser Cert., Ex. Y. She was told to
call the applicants and determine their interest in any positions at NJHMFA. Plaintiffs argue that
the temporal proximity between when the terminations and this event occurred, as well as the
instructions themselves, belie Levin’s purported claims that the objective of the reorganization was
to cut costs and reduce the number of positions. Plaintiffs also offer evidence that of the thirty-eight
new employees, twenty-five were either affiliated with the Democratic Party or were directly referred
by Democrats, including but not limited to members of the Governor’s Office.
Defendant responds by asserting that the terminations were the result of an Agency-wide
reorganization. Commissioner Levin explained that upon assuming position of Commissioner, one
of her immediate goals was to restructure the functioning of NJHMFA so that it could run more
efficiently. In doing so, more affordable housing could be made available in New Jersey. Over the
course of a few months in early 2002, Levin participated in a fact-gathering process. She spoke
with numerous individuals and organizations to determine areas of the Agency that needed
improvement. Levin, the final decision-maker with regard to terminations, compiled a list of
employees that she intended to fire. She later consulted with members of the Executive Board to
determine which names should be removed.
Defendant asserts that the evidence is undisputed that the terminations were the result of the
reorganization. However, the only evidence supporting these assertions is deposition testimony from
Commissioner Levin and other individuals who may have been involved in discussions with her,
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including Battis, Closkey, and Hawes. The Court has not been presented with any documentation
describing the need for reorganization, or the process by which decisions were made.4 Rather, the
record indicates complete discretion on the part of Commissioner Levin with respect to the people
she chose to hire and the positions that were to be eliminated, and an issue of material fact as to
whether she asked for and reviewed information on political affiliation.
In summary, this Court concludes that Plaintiffs have set forth sufficient evidence to raise
a dispute of material fact whether political affiliation was a substantial or motivating factor. This
Court further concludes that there is also a dispute of material fact whether the same employment
decision would have been made even in the absence of the constitutionally protected activity.
Mindful that all facts and inferences must be construed in a light most favorable to the Plaintiffs, the
Court finds that a genuine issue of material fact exists as to whether political affiliation was a
substantial or motivating factor in the government’s decision to discharge the employees.

b.

Engaged in Constitutionally Protected Conduct

One of Defendant’s main arguments in support of its summary judgment motion is that four
of the six Plaintiffs did not engage in constitutionally protected activity during the course of their
employment at NJHMFA. In particular, Defendant asserts that Ali, Savas, Korte and Petrino
testified that they did not actively participate in partisan political activities. They did not “attend

4

The record contains one document from Commissioner Levin to the Chief of
Management of the Governor’s Office, Jim Davy. Sweetser Cert., Ex. C, JJ. The memorandum
dated April 19, 2002 states Levin’s intention to request letters of resignation from twenty-six
employees. Levin indicated that the department was to be restructured in order to streamline the
operations, with a “plan to follow.” Id. Some names were designated as immediate
terminations. But no explanation was given as to how or why these employees were selected.
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political fundraisers, work on campaigns, make campaign contributions, attend political rallies, or
have political memorabilia in their office or vehicles.” Def.’s Br. at 16. Defendant notes that Savas
is not registered to vote with any political party. Defendant further asserts that Ali admitted that she
does not affiliate with either political party although she is currently registered as a Democrat, and
that she was ineligible to vote in New Jersey because she is a Pennsylvania resident.
At oral argument, Defendant asserted that Plaintiffs are required to show some degree of
political activity in order to sustain a political discrimination claim. However, the Third Circuit has
clearly articulated that “[a] citizen’s right not to support a candidate is every bit as protected as his
right to support one.” Bennis v. Gable, 823 F.2d 723, 731 (3d Cir. 1987). Thus, Defendant’s
argument that Plaintiffs did not engage in constitutionally protected activity because they were not
politically active must fail.
NJHMFA could be found liable if it took adverse employment actions in order to make room
for its political supporters. Id. at 732; see also Conjour v. Whitehall Township, 850 F. Supp. 309,
317 (E.D. Pa. 1994) (noting the fact that an employee was not politically active is not dispositive of
his First Amendment claim). The Third Circuit further clarified that the constitutional right to
political affiliation protects employees whether they belong to the same political party as their
employer or not. Robertson, 62 F.3d at 600-01.

c.

Policymaking vs. Non-policymaking Positions

Defendant argues in the alternative that Plaintiffs Ali, Savas, and Petrino held positions that
were policymaking or advisory, and thus political affiliation could be required. This Court will
discuss each position in turn.
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Ali was employed in the Government Affairs and Community Outreach Department and held
the position of Community Outreach Coordinator. The NJHMFA Job Description for this position
is summarized as follows:
Under the supervision of the Director of Government Affairs &
Community Outreach, assist in the design and implementation of
strategies to increase participation in housing programs; market such
housing programs State-wide through trade shows and conferences;
perform related duties as required.
Calao Cert., Ex. R. Relying on Ali’s resume, testimony, and the position’s job description,
Defendant describes Ali’s position as one that involves creating and implementing NJHMFA’s
housing policies by working with government officials. Such a position, Defendant argues, is one
that can require political affiliation.
Ali states that she was largely responsible for all external affairs relating to NJHMFA’s
housing programs. Calao Cert., Ex. L. at 17. Ali admits to working regularly with “municipal
leaders, state officials and legislators . . . as a representative of [NJ]HMFA.” Id. at 20-21. However,
Ali further asserts that the true nature of her job was to assist the Agency’s Director of Government
Affairs and Community Outreach, Chris Simon, with setting up conferences or housing fairs.
Certifications of Ali (“Ali Cert.”). Ali admits to working with developers, government officials,
church groups and other organizations, but merely to explore any interest in holding a housing fair
or to discuss logistics. Id. Moreover, Ali asserts that she met with them solely as Simon’s assistant
and was not permitted to take any action on behalf NJHMFA without express permission of Simon.
Id. Ali submits that she did not provide any input to NJHMFA’s policies or budgetary matters. Ali
was also involved in marketing and promoting NJHMFA’s programs, but was not responsible for
writing speeches or press releases.
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Savas was employed in the Human Resources Department of NJHMFA as Director of
Human Resources. The NJHMFA Job Description for this position is summarized as follows:
Under supervision of the Chief Operating Officer, plan, coordinate
and direct the activities of Human Resources; formulate policies
relating to Human Resources administration; conduct programs
concerning employee recruitment, selection, training, development,
retention, promotion, benefits and compensation; ensure HMFA
compliance with applicable federal and local laws . . . direct staff in
the daily performance of job duties. Conduct and analyze research for
special projects as directed by Executive staff; perform related duties
as required.
Calao Cert., Ex. O.
Defendant cites Duriex-Gauthier v. Lopez-Nieves, 274 F.3d 4 (1st Cir. 2001) to support its
proposition that political affiliation is an appropriate requirement for the Director of Human
Resources position. In Duriex-Gauthier, the First Circuit found that the position of Personnel and
General Services Officer in the Ombudsman’s Office of Puerto Rico was a position for which
political affiliation is an appropriate requirement. The court noted that the duties of the
Ombudsman’s Office, which was created by statute in Puerto Rico, involve “investigat[ing] the
administrative acts of the agencies and conduct[ing] investigations of citizens’ claims.” Id. at 6.
Upon completing an investigation, the Ombudsman has the authority to recommend a remedy –
including recommendations to set aside or alter an administrative act, modify the law or regulation
on which the administrative act is based, or advise the agency to perform another action. Id. The
Ombudsman is appointed by the Governor, and the Personnel Director is considered to be a “trust”
employee. The term “trust” is defined within the civil service law of Puerto Rico as “those who
intervene or collaborate substantially in the formulation of the public policy, who advise directly or
render direct services to the head of the agency.” Id. at 7-8. Moreover, “trust” employees were
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subject to free removal. Id. at 6.
This Court disagrees with Defendant’s characterization of Savas’ position as one that is “no
different than the Personnel Director in Duriex-Gauthier.” Def.’s Br. at 30. As an initial matter, the
statutorily-created Office of the Ombudsman and the NJHMFA differ greatly in its mission and
goals. As an adjunct to the Puerto Rican Legislature, the employees of the Ombudsman Office had
the general responsibility of investigating and addressing citizens’ claims. Duriex-Gauthier, 274
F.3d at 6. It follows that certain employees of the Ombudsman’s Office, including the Personnel
Director, were considered “trust” employees. The Director of Human Resources at the NJHMFA,
however, is not a “trust” employee. Although both positions may share similar duties and
responsibilities, there is no inherent attribute of trust or confidence associated with Savas’ position
that would render her position subject to political removal as Defendant suggests.
Focusing on the duties of the Director Human Resources, Savas was responsible for
conducting programs related to typical Human Resource concerns, including “recruitment, selection,
training and development, retention, promotion, benefits and compensation.” Calao Cert., Ex. O.
It is clear that the position greatly involved the formulation of policies – but appears to be limited
to policies “relating to Human Resources administration and equal employment opportunities.” Id.
Further, Savas submits that the extent of her policymaking involved “drafting new or amended
human resources policies” and “massag[ing] old policies using DCA policies such as the dress code
and sexual harassment policies.” Certification of Savas at 2. Such narrow objectives are indicative
of a non-policymaking position.
Petrino held the position of Chief Information Officer as part of the Information Technology
(“IT”) Department. The NJHMFA Job Description for this position is summarized as follows:
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Under supervision of the Chief Operating Officer, the Chief
Information Officer is responsible for the overall operational
management and administration of the Information Technology (IT)
Program which defines policies, processes, requirements, and
standards governing the planning, acquisition, management, security
and utilization of the Information Technology System; strategic
planning with regard to Information Technology, and implementation
of strategies to accomplish the HMFA’s IT goals; upgrading and
integrating the existing network and systems; serve as technology
advisor to Senior Executive Staff; and perform related duties as
required.
Calao Cert., Ex. T. In support of its position that Petrino held a policymaking decision, Defendant
notes that Petrino was the “Executive Officer responsible for all Systems and Technology for a 250person quasi-public state agency,” received one of the highest salaries at NJHMFA, and reported
directly to the second highest official at the Agency. Def.’s Br. at 31.
Nonetheless, the record indicates that Petrino’s position was very technical in nature. His
main responsibility involved ensuring the smooth operation of technical data processing at the
Agency. Certification of Petrino at 1. Petrino asserts that the extent of his policymaking related to
e-mail and internet policies. Petrino did not meet with government officials to discuss the Agency’s
policies. Occasionally, however, Petrino would meet with government officials if an IT issue arose.
Petrino’s position also required him to associate with various departments of the Agency to discuss
technical, software of system matters. Such characteristics suggest that the position of Chief
Information Officer of NJHMFA had limited, well-defined responsibilities representative of a nonpolicymaking position. Although Petrino may have had numerous responsibilities relating to the
determination and implementation of the Agency’s IT goals, the position appears to be more
technical, rather than policymaking or advisory, in nature.
Viewing the facts and inferences in the light most favorable to the Plaintiffs, the non-moving
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party, this Court concludes that Defendant failed to satisfy its burden in demonstrating that Ali,
Savas, and Petrino held positions that require political party affiliation for effective performance.
Therefore, summary judgment is denied as to this issue.
In sum, this Court concludes that drawing all inferences in favor of the non-moving parties,
there is a dispute of material fact whether Plaintiffs were discharged based on their political
affiliation. Accordingly, Defendant’s motion for summary judgment dismissing the remaining claim
in Plaintiffs’ Complaint must be denied.

B.

Plaintiffs’ Motion to Appeal Magistrate Judge Hughes’ June 22, 2004 Order
A district court may reverse a magistrate judge's determination of a non-dispositive issue only

if it is “clearly erroneous or contrary to law.”5 28 U.S.C. § 636(b)(1)(A); see also FED . R. CIV . P.
72(a); L.CIV .R. 72.1(c)(1); see also, Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir.
1986), cert. denied, 484 U.S. 976 (1987); Lithuanian Commerce Corp. v. Sara Lee Hosiery, 177
F.R.D. 205, 213-14 (D.N.J. 1997). A finding is clearly erroneous “when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Lo Bosco v. Kure Eng’g Ltd., 891 F. Supp. 1035, 1037 (D.N.J.
1995) (quoting United States v. U. S. Gypsum Co., 333 U.S. 364, 395 (1948); see also South Seas
Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D. 17, 21 (D.N.J. 1988). A district court may not
take into consideration any evidence that was not put forth before the magistrate judge when
reviewing the magistrate judge’s factual determination. Haines v. Liggett Group, Inc., 975 F.2d 81,
5

A party objecting to a magistrate judge’s order may, within ten days of service of the
order, serve and file objections with the district judge. FED . R. CIV . P. 72(a); L. Civ. R.
72.1(c)(1)(A).
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92 (3d Cir. 1992); Lithuanian Commerce, 177 F.R.D. at 213.
Under the clearly erroneous standard , the reviewing court will not reverse the magistrate
judge’s determination even if the court might have decided the matter differently. Cardona v. Gen.
Motors Corp., 942 F. Supp. 968, 971 (D.N.J. 1996) (quoting Toth v. Alice Pearl, Inc., 158 F.R.D.
47, 50 (D.N.J. 1994). The court, however, will review a magistrate judge’s legal conclusions under
de novo review. Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 183 F.R.D. 119, 127 (D.N.J. 1998)
(citations omitted).
“Where a magistrate judge is authorized to exercise his or her discretion, the decision will
be reversed only for an abuse of that discretion.” Id.; see also 12 WRIGHT , MILLER & MARCUS,
FEDERAL PRACTICE AND PROCEDURE § 3069 (2d 1997) (“many matters such as discovery scheduling
or disputes might better be characterized as suitable for an abuse-of-discretion analysis”). The
deferential standard of review is particularly appropriate in the case where the Magistrate Judge
managed the case from the outset, and thus has a thorough knowledge of the proceedings. Cooper
Hosp., 183 F.R.D. at 127 (quoting Public Interest Research Group v. Hercules, Inc., 830 F. Supp.
1525, 1547 (D.N.J. 1993), aff'd on other grounds and rev'd on other grounds, 50 F.3d 1239 (3d Cir.
1995)).
In the present case, Plaintiffs appeal Magistrate Judge Hughes’ June 22, 2004 Order denying
their motion to compel discovery of two documents. Plaintiffs sought a resume folder containing
the seventy-five resumes reviewed by Dolores Guinan, along with twenty referral notes that Plaintiffs
allege are contained in the folder. The second document is entitled “Applicant Status Report.”
Plaintiffs received a redacted copy and now seeks it in unredacted form. Plaintiffs posit that these
documents show “preferential treatment in the hiring process for political referrals of the new
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administration.” Pls.’ Appeal Br. at 10. Defendant notes, however, in its written submissions and
at oral argument that the information Plaintiffs seek relate to applicants who were neither hired nor
offered a position at NJHMFA.
Judge Hughes denied Plaintiffs’ motion to compel based on two limiting provisions of
Federal Rules of Civil Procedure, namely Rule 26(b)(2)(iii) which limits discovery if “the burden
or expense of the proposed discovery outweighs its likely benefit” and Rule 26(c) which seeks “to
protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense
. . . .”

FED . R. CIV . P. 26(b)(2)(iii), 26(c). This Court agrees with the decision of the Magistrate

Judge. Contrary to Plaintiffs’ argument, the information sought is of minimal relevance to the
Plaintiffs’ claims. First, as Defendant emphasized at oral argument, only six of the seventy-five
applicants were hired by NJHFMA. This fact alone belies the argument that the applicants were
given some degree of special treatment. Secondly, personal information concerning applicants who
were not either offered a job not hired for a position at NJHMFA bears minimal relevance to the
issue of whether the terminations were politically motivated. There is no guarantee that information
contained within the resumes themselves would reveal information regarding political affiliation.
Plaintiffs would have to ask the factfinder to draw inference upon inference whether the
nonexistence of an offer of employment for any one applicant was demonstrative of impermissible
terminations based on political affiliation. Numerous reasons can exist as to why these individuals
were not offered positions. Such a minimal degree of relevance is greatly outweighed by the
invasion of privacy that would result should this information be disclosed.

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Accordingly, this Court concludes that the magistrate judge’s decision to deny Plaintiffs’
motion to compel was not clearly erroneous or contrary to law. Judge Hughes’ Order of June 22,
2004 is therefore affirmed.

III.

CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment is denied and the

ruling of the Magistrate Judge is affirmed. An appropriate Order accompanies this Memorandum
Opinion.

s/ Garrett E. Brown, Jr.
GARRETT E. BROWN, JR., U.S.D.J.

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