Kenobi Ramirez v. Hector Lora

• Court: Court of Appeals for the Third Circuit
• Decided: November 6, 2024
• Docket: 23-2569
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________

No. 23-2569 ________________

KENOBI RAMIREZ, Appellant

v.

HECTOR LORA, individually and in his official capacity; LUIS GUZMAN, individually and in his official capacity; CITY OF PASSAIC _____________

On Appeal from the United States District Court for the District of New Jersey District Judge: Honorable Kevin McNulty ________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 5, 2024

Before: JORDAN, HARDIMAN, and PORTER, Circuit Judges.

(Filed: November 6, 2024)

________________

OPINION * ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PORTER, Circuit Judge.

Kenobi Ramirez appeals the summary judgment rejecting his § 1983 political

retaliation claims against the City of Passaic (“City”) and Mayor Hector Lora. Ramirez

argues that the District Court made credibility judgments and factual findings that should

have been left to a jury. We disagree and will affirm the District Court’s order.

I

Ramirez has served the City as a police officer since 2003. In 2014, Ramirez sat

for a civil service examination, a process that results in a ranked list of officers based on

test score, seniority, and disciplinary record. As opportunities arise, the City may promote

officers starting from the top of the list and working down. Following the 2014 exam,

Ramirez was ranked nineteenth for promotion to sergeant. By August 2017, the eighteen

officers ranked above Ramirez had all been promoted, placing him next in line. But the

City made no new promotions from that time until September 2018. By that point, a new

examination had taken place, and Ramirez was ranked forty-eighth on the new ranking

list.

Earlier in 2017, Ramirez’s name neared the top of the sergeant’s promotion list

during the municipal election season. Ramirez’s sister Jeanny was a member of a ticket

challenging the incumbent Mayor Lora. Ramirez believes that Mayor Lora and the City

deliberately stopped offering promotions while he was next in line for sergeant in

retaliation for Ramirez’s political support for his sister. Accordingly, he sued Mayor Lora

and the City, asserting claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights

2 Act. 1

Ramirez’s only direct evidence suggestive of retaliation was his deposition

testimony about a conversation he had with Deputy Chief Louis Gentile in the summer of

2017. Ramirez says Gentile told him that he “did not see why [Ramirez] would not get

promoted to sergeant if someone retired.” App. 442. Beyond this conversation,

Ramirez’s evidence focused largely on countering other, allegedly pretextual reasons for

the non-promotion by claiming, for example, that the department was operating below the

limit on sergeants, or that there were no budgetary concerns preventing promotion.

Mayor Lora and the City moved for summary judgment. Ramirez filed a response

not merely contesting the arguments, but also introducing new facts. In a signed

certification attached to his response, Ramirez now recalled a second conversation with

Gentile in the fall of 2017. Ramirez alleged that in that discussion, Gentile told him that

he was not being promoted because of his political support for Mayor Lora’s opponent.

The District Court heard oral argument on the summary judgment motion. Mayor

Lora and the City argued that the District Court should disregard Ramirez’s eleventh-

hour revelation as a sham affidavit—an improper attempt to invent a factual dispute

where none existed. While the District Court was suspicious of Ramirez’s serendipitous

recollection, it found no direct contradiction between the new affidavit and his prior

sworn testimony.

1 Ramirez’s complaint also included claims under 42 U.S.C. § 1985 and New Jersey’s Conscientious Employee Protection Act, N.J. Stat. Ann. §§ 34:19-1–19-14, as well as claims against Defendant Luis Guzman. The District Court granted summary judgment to defendants on those claims, and Ramirez does not challenge those rulings on appeal.

3 Viewing the alleged statement in the light most favorable to Ramirez, the District

Court concluded that it could not grant summary judgment on the political retaliation

claim. But the Court was also unwilling to go to trial because of a single statement that

had not been tested in discovery. Accordingly, the Court gave Mayor Lora and the City

the option to reopen discovery on the narrow issue of the alleged second statement made

by Gentile. The Court noted that for Gentile’s purported statement to be material to the

issue, “that admission would have to be accompanied by some evidence that Gentile, if

he made the statement, was not merely, e.g., repeating rumors, but was speaking from

knowledge about the Mayor’s decision.” App. 699.

The reopened discovery resulted in affidavits from Gentile and Chief of Police

Luis Guzman. Gentile denied any recollection of the fall 2017 meeting. Both Gentile and

Guzman also claimed that, in any event, Gentile would not have been privy to any

official discussions regarding promotions at that time. Ramirez sat for another deposition,

where he was asked (1) if Gentile had ever disclosed the source of his information; and

(2) if Ramirez had any evidence to establish that Gentile was stating facts rather than

passing on rumor or opinion. Ramirez answered “no” to both questions. App. 737, 739.

Ramirez did volunteer his belief that Gentile and Mayor Lora are friends because he saw

the two together years later at a food drive. He also described a conversation with a

colleague, who recounted hearing a statement by Gentile similar to the alleged fall 2017

statement around that same time period.

Mayor Lora and the City again moved for summary judgment on the political

retaliation claim, and this time they succeeded. The District Court found that Ramirez

4 had failed to produce any evidence on the narrow issue of establishing a foundation for

the alleged fall 2017 statement. Whether Mayor Lora and Gentile were friends in 2020

was not probative of Gentile’s knowledge of promotion policy in 2017, nor was an

alleged second-hand account essentially repeating the same fall 2017 statement. By

contrast, the evidence adduced by Mayor Lora and the City cut against the possibility that

Gentile’s fall 2017 statement, assuming it happened, could have been based on actual

knowledge of retaliatory animus. The District Court concluded that, viewing the evidence

as a whole, and construing it in Ramirez’s favor, no reasonable jury could find that

political retaliation was a motivating factor in Ramirez’s non-promotion. The Court

granted the motion for summary judgment.

Ramirez appeals.

II 2

“We review a district court’s grant or denial of summary judgment de novo.”

Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 751 (3d Cir. 2019). Summary judgment

is appropriate only where “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). A dispute is

“genuine” if “a reasonable jury could return a verdict for the nonmoving party,” and a

fact is “material” where “its existence or nonexistence might impact the outcome of the

suit under the applicable substantive law.” Baloga, 927 F.3d at 752 (quoting Santini v.

Fuentes, 795 F.3d 410, 416 (3d Cir. 2015)). “At the summary judgment stage, our role is

2 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

5 ‘not . . . to weigh the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial,’ and like the District Court, we must review the

facts in the light most favorable to the nonmoving party.” Id. (alteration in original).

A

Ramirez argues on appeal that the District Court improperly weighed the evidence

by making credibility determinations about Gentile’s and Guzman’s affidavits that should

have been left to a jury. Not so.

To state a political retaliation claim under § 1983, a plaintiff must first make out a

prima facie case, in part by showing that his constitutionally protected political conduct

“was a substantial or motivating factor in the government’s employment decision.” Galli

v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 271 (3d Cir. 2007). If the plaintiff

successfully demonstrates a prima facie case, the burden shifts to the employer to prove

by a preponderance of the evidence that “the same employment action would have been

taken even in the absence of the protected activity.” 3 Id. (quoting Stephens v. Kerrigan,

122 F.3d 171, 176 (3d Cir. 1997)). As the District Court noted in its order denying

summary judgment and reopening discovery, Gentile’s alleged fall 2017 statement,

assuming it occurred, could be material to demonstrating a prima facie case if there was

reason to believe that Gentile “knew what he was talking about.” App. 695. At that point,

the only evidence for the statement was Ramirez’s self-serving and inexplicably tardy

3 Ramirez’s claim under the New Jersey Civil Rights Act is considered under the same framework. See Hedges v. Musco, 204 F.3d 109, 120 n.12 (3d Cir. 2000); Tumpson v. Farina, 95 A.3d 210, 223 (N.J. 2014).

6 affidavit—a thin reed on which to hang a genuine dispute. The District Court therefore

gave all parties a chance to supplement the record to prove or disprove the fact of the fall

2017 statement or, failing that, to prove or disprove that Gentile would have the basis to

make such a statement knowledgably. 4

Mayor Lora and the City took up the District Court’s invitation; Ramirez did not.

Mayor Lora and the City not only secured affidavits from Gentile and Guzman, they also

re-deposed Ramirez, eliciting his straightforward admission that he did not know whether

Gentile had a basis to speak about promotions. Meanwhile, the District Court had to

divine Ramirez’s most on-point new facts—Gentile and Mayor Lora’s alleged 2020

friendship and the second-hand account by another colleague—from Ramirez’s

deposition transcript, as Ramirez’s response in opposition simply realleged the fall 2017

statement.

That trend continues on appeal. Ramirez identifies no instances where the District

Court downplayed, ignored, or otherwise mishandled his evidence about the fall 2017

statement. Nor does he contest the District Court’s understanding of his deposition

answers forswearing any personal knowledge of Gentile’s potential basis for making the

fall 2017 statement. Instead, Ramirez’s argument rests on supposed discrepancies

between Gentile’s and Guzman’s affidavits and their prior sworn testimony, along with

4 Ramirez argues on appeal that the District Court unfairly reopened discovery only for Mayor Lora and the City. In support, he contends that re-deposing Gentile may not have been helpful, since Gentile would deny that the fall 2017 conversation took place. While reopening fact discovery was at Mayor Lora’s and the City’s option, once reopened it was confined only by the subject matter discussed in the District Court’s order. Ramirez was free to pursue relevant evidence on that topic in whatever manner he wished.

7 rhetorical musings on other questions a juror might ask about that evidence. This,

Ramirez contends, shows that the District Court improperly made credibility

determinations about Gentile and Guzman that should have been left to a jury. We

disagree.

For an issue on which the nonmoving party bears the burden of proof, a party

moving for summary judgment may demonstrate “that there is an absence of evidence to

support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

If that demonstration is made, the nonmoving party “must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party must present

sufficient evidence for a jury to return a verdict in his favor. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249–50 (1986). Evidence that is merely colorable or not significantly

probative will not foreclose summary judgment. Id.

Ramirez’s claims narrowly survived the first summary judgment motion thanks to

his last-minute affidavit alleging the existence of the fall 2017 conversation. The District

Court gave Ramirez a chance to produce some evidence, any evidence, that could firm up

or corroborate his story. Ramirez declined. The resulting situation was not one in which

the District Court was confronted by competing evidence on both sides, where the

summary judgment posture would compel a ruling for the nonmoving party. Rather, the

District Court was presented with some evidence from Mayor Lora and the City—

suggesting that the fall 2017 conversation didn’t happen, but that even if it did it would

have reflected rumor and opinion, rather than facts about Mayor Lora’s motivation—and

8 no probative evidence from Ramirez to the contrary. Ramirez’s approach on appeal,

asking rhetorical questions to raise metaphysical doubts about Mayor Lora’s and the

City’s evidence, underscores his failure to present sufficient evidence to defeat the

motion before the District Court. 5

Ramirez also argues that the District Court disregarded his assorted evidence that

could show that Mayor Lora’s and the City’s stated reasons for non-promotion were

pretextual, and that this evidence, too, should have gone to a jury. But as the District

Court explained, such evidence becomes material only if a prima facie case is made.

Ramirez directs our attention to precedent for the proposition that a showing of pretext

can support a jury’s ultimate finding of retaliation. True enough. But those cases also

make clear that there is no shortcut across our familiar burden-shifting framework, and

that a plaintiff must still clear the hurdle of making out a prima facie case. See, e.g.,

Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (holding that a reasonable

showing of pretext combined with a prima facie case may be enough to survive summary

judgment); Smith v. Borough of Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998) (holding

the same in the jury instruction context). Pursuant to its finding that Ramirez failed to

make out a prima facie case, the District Court correctly concluded that his pretext

evidence was not relevant.

We agree with the District Court that Ramirez failed to demonstrate a genuine

5 Although captured in his statement of issues, Ramirez’s opening brief does not specifically contest the District Court’s grant of summary judgment to the City on his respondeat superior claim against it. His passing reference is insufficient to raise this issue on appeal. See Geness v. Cox, 902 F.3d 344, 355 (3d Cir. 2018).

9 dispute of material fact as to his prima facie case of political retaliation. We will therefore

affirm the District Court’s summary judgment.

B

Ramirez also contests a discovery ruling made by the Magistrate Judge earlier in

the proceeding. But Ramirez never objected to or appealed that order before the District

Court. Accordingly, he has forfeited this non-dispositive issue, and we will not consider it

in the first instance. See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d

136, 147 (3d Cir. 2017).

III

For all these reasons, we will affirm the District Court’s summary judgment.