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RODE v. DELLARCIPRETE

October 21, 1986

VIVIAN M. RODE, and JAY C. HILEMAN, Plaintiffs
v.
NICHOLAS G. DELLARCIPRETE, JOHN HARHIGH, JOSEPHINE FURE, RUTH BROWN, ROBERT KINCH, JAY COCHRAN, JR., PENNSYLVANIA STATE POLICE, and COMMONWEALTH OF PENNSYLVANIA, Defendants


William W. Caldwell, United States District Judge.


The opinion of the court was delivered by: CALDWELL

Introduction

 Plaintiffs, Vivian M. Rode and Jay C. Hileman, commenced this action pursuant to 42 U.S.C. §§ 1983 and 1985 asserting that defendants violated their constitutional rights. *fn1" More specifically, plaintiff Hileman alleges that defendants, individually and as members of a conspiracy, subjected him to a course of harassment in retaliation for his testimony against the Pennsylvania State Police ("PSP"). Plaintiff Rode claims that she has also been harassed by defendants because she is the sister-in-law of Hileman. Maintaining that there is no genuine issue as to any material facts, defendants have moved for summary judgment. For the reasons set forth below, defendants' motion will be granted in part.

 Background

 Based upon the pleadings, depositions and affidavits, the following is the background of this litigation. Vivian Rode was employed by the PSP as an administrative assistant in the Personnel Bureau from 1971 until 1982. Rode alleges that in August, 1982, defendants, Dellarciprete, Harhigh, Fure, Brown and Kinch began harassing her by (1) transferring her to new positions without providing proper training; (2) refusing to provide work assignments; (3) making derogatory statements about her to fellow employees; (4) taking away her office and filing cabinet; and (5) assigning her demeaning tasks, including bulk photocopying. In addition to these actions, Rode received a two day suspension for violating administrative regulation 4-6 which prohibits employees of the PSP from publicizing information concerning the PSP without prior approval.

 Rode's claims comprise the first three counts of the complaint. In Count I, Rode asserts that defendants' conduct violated her First Amendment rights to freedom of speech and association and deprived her of a property right in her employment protected by the Fourteenth Amendment. Relying on the factual allegations of Count I, Count II states a claim for conspiracy. In Count III, Rode challenges the constitutionality of administrative regulation 4-6 on the grounds of vagueness and over breadth.

 Jay Hileman, on the other hand, served as the Director of the Personnel Bureau from 1969 until 1980. In September, 1980, he was reassigned to the Area V Command Post. In August, 1982, Hileman was subpoenaed by and appeared on behalf of one Russell Clanagan, another PSP employee, in a Title VII action against the PSP. At the trial, Hileman testified that the PSP had a history of engaging in racially discriminatory employment practices. He claims that in retaliation for his unfavorable testimony, he was subjected to a course of harassment, including (1) a transfer to a PSP station more than 200 miles from his home; (2) repeated denials of requests for hardship transfers; (3) rejections of applications for positions for which he was qualified and for duty related training; (4) unjustified denials of requests for administrative leave, overtime pay and business related expenses; and (5) the initiation of unfounded disciplinary proceedings against him.

 Hileman's claims are contained in Counts IV through VII. In Count IV, he alleges that the actions of defendants, Cochran, Dellarciprete, and Harhigh, caused him to suffer deprivations of his First Amendment right to freedom of speech and his right to property under the Fourteenth Amendment. Count V reiterates those allegations as the basis for a conspiracy claim. Count VI alleges that defendants, Cochran and the PSP violated the terms of the consent decree entered into in Bolden v. Pennsylvania State Police, 371 F. Supp. 1096 (E.D. Pa. 1974) by retaliating against him for his testimony in the Clanagan case. Finally in Count VII, Hileman claims that the retaliatory actions taken by defendants against him constituted unlawful employment practices prohibited by 42 U.S.C. § 2000e-3.

 Discussion

 Defendants' motion will be evaluated under the following, well established standard: *fn2"

 
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, Adickes v. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) and must resolve all reasonable doubts as to the existence of a genuine issue of material fact against the movant.

 Hersh v. Allen Products Co., Inc., 789 F.2d 230, 232 (3d Cir. 1986).

 Defendants initially argue that summary judgment should be granted in their favor on the entire complaint because plaintiffs have failed to establish an essential element of their cause of action. In this regard, defendants assert that plaintiffs have not demonstrated that the alleged retaliation was motivated by racial prejudice. In support of this argument, defendants rely upon plaintiffs' admissions that the individual defendants are not racially prejudiced and have not been known to be racially prejudiced. Plaintiffs contend that their opinions concerning defendants' general attitudes are not relevant to the issue of defendants' subjective motivation.

 We conclude that defendants' argument is without merit. Assuming that plaintiffs must demonstrate that defendants intentionally discriminated against them, the relevant inquiry here is whether defendants were, in fact, motivated by racial prejudice or animus. Contrary to defendants' assertion, plaintiffs' admissions concerning the individual defendants would not preclude a jury from finding defendants were motivated by racial prejudice in a particular situation. Plaintiffs' admissions are certainly relevant evidence which the jury may consider in determining whether defendants acted with the requisite state of mind, but are not determinative of the issue. Whether or not defendants were motivated by racial prejudice is an issue to be resolved by the jury after hearing all of the evidence. Having reached this conclusion we will now address plaintiffs' claims individually. *fn3"

 I. Civil Rights Claims of Plaintiff Rode

 A. Property Interest

 In Counts I and II plaintiff Rode alleges that defendants, individually and as members of a conspiracy, engaged in a course of discriminatory conduct designed to prevent her from associating with plaintiff Hileman and to deter him from testifying in the future. She further alleges that her First and Fourteenth Amendment rights were violated by defendants' conduct. More specifically, Rode maintains that defendants deprived her of a property right in her employment by (1) transferring her from the Personnel Bureau; (2) assigning her demeaning tasks; (3) failing to provide training and work assignments; (4) making derogatory statements about her to fellow employees; *fn4" and (5) taking away her office and filing cabinet.

 "The Fourteenth Amendment places procedural constraints on the actions of government that work a deprivation of interests enjoying the stature of 'property' within the meaning of the due process clause." Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1, 9, 56 L. Ed. 2d 30, 39, 98 S. Ct. 1554, 1560 (1978). In determining whether a plaintiff has been deprived of an interest protected by the Fourteenth Amendment it must be kept in mind that the Fourteenth Amendment was not intended as a substitute for state law. Consistent with principle, we conclude that personnel decisions short of termination do not constitute deprivations of a property interest under the Fourteenth Amendment. See Wargat v. Long, 590 F. Supp. 1213 (D. Conn. 1984); Warfield v. Adams, 582 F. Supp. 111 (S.D. Ind. 1984). As the Seventh Circuit in Brown v. Brienen, 722 F.2d 360, 365 (7th Cir. 1983) explained:

 
The Constitution must not be trivialized by being dragged into every personnel dispute in state and local government. Disputes over overtime, over work assignments, over lunch and coffee breaks do not ...

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