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July 12, 1979

Fred PROCHASKA, Plaintiff,
John E. FEDIACZKO, John A. Meehan, Frank Vitril, Thomas A. Shumaker, Lawrence County Child Welfare Services, Defendants

The opinion of the court was delivered by: COHILL



 We now have a Motion for Summary Judgment, submitted by defendant Frank Vitril on the ground that he was not personally involved in the suspension of the plaintiff, and therefore cannot be held liable for depriving plaintiff of his constitutional rights.

 On February 24, 1977, plaintiff received a letter from the Commissioners, informing him of their approval of administrator Fediaczko's request for plaintiff's suspension for five days for insubordination. Defendants Meehan and Shumaker had met with plaintiff and Fediaczko on February 24, 1977, to discuss the matter, and only they had signed the letter.

 Plaintiff claims that the actual reason for his suspension is contrary to the reasons set forth in the letter of suspension. He alleges that his suspension was authorized in retribution for his exercise of his First Amendment free speech rights and for his expressing his opinion as to the proper disposition of the case of Debra W.

 Defendant Vitril assets that there are no material facts in dispute concerning his personal involvement in plaintiff's suspension. Vitril's list of uncontroverted facts in support of his motion includes:

1. Vitril was hospitalized from February 20, 1977 to February 24, 1977, and did not return to his office until February 28, 1977, the first day of plaintiff's five-day suspension.
2. The decision to suspend plaintiff was made at the February 24, 1977 meeting, at which plaintiff was present along with Commissioners Meehan and Shumaker only; since Vitril was not present, he did not vote nor participate in this decision.
3. Vitril had no contact with the other defendants at the time that the decision to suspend plaintiff occurred and did not consult with the other defendants about the decision to suspend plaintiff.

 In light of these facts he argues that it is therefore uncontroverted that he was not in any way personally involved in the decision to suspend the plaintiff and, thus, he is entitled to a summary judgment as a matter of law.

 Plaintiff concedes that defendant Vitril was absent from the February 24, 1977 meeting and that Vitril's signature does not appear on the Commissioners' letter of suspension addressed to plaintiff. Nevertheless, plaintiff argues that the question of Vitril's personal involvement in the suspension remains a disputable fact, arguing that Vitril mistakenly assumes that the decision to suspend actually and unquestionably occurred at the meeting of February 24, 1977, during the time of Vitril's hospitalization. Plaintiff avers that the decision to suspend him might have occurred and in all probability did occur prior to the defendant's hospitalization. Assuming Arguendo that this is what happened, then the February 24 meeting may have been nothing more than a mere formality.

 In his affidavit opposing the present motion, plaintiff claims that between February 15 and February 20, 1977, defendant Fediaczko approached plaintiff on at least two occasions and informed him that the decision to suspend him had already been made with the only issue remaining being the length of the suspension. Plaintiff further alleges that defendant Fediaczko informed him that some punishment would certainly be forthcoming due to the displeasure of the County Commissioners, including defendant Vitril, with the adverse publicity generated by plaintiff. Moreover, plaintiff alleges that defendant Vitril "was clearly a part of this determination and sentiment as it had been expressed" to him on these two occasions which preceded Vitril's hospitalization. Plaintiff argues that Vitril's attitude was hostile at a meeting attended by plaintiff on January 24, 1977, in Vitril's office, where both defendants Meehan and Fediaczko were also present.

 In his deposition, plaintiff recalled that Vitril had been emphatic that plaintiff should not question Judge Henderson's order concerning the Debra W. case. Plaintiff alleges that Vitril during this discussion "threatened me repeatedly with termination or suspension if I did not cease and desist from speaking out against the agency position." Plaintiff has claimed that at the January 24 meeting Vitril assumed the ...

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