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SCHMIDT v. BOROUGH OF STROUDSBURG

June 3, 1993

CHARLES A. SCHMIDT and RICHARD H. GREENE, Plaintiffs
v.
BOROUGH of STROUDSBURG, CHESTER GROSS, JOHN PANSY, and THE CIVIL SERVICE COMMISSION of THE BOROUGH of STROUDSBURG, Defendants



The opinion of the court was delivered by: WILLIAM J. NEALON, JR.

 In this 42 U.S.C. § 1983 civil rights complaint, the plaintiffs, Charles A. Schmidt and Robert H. Greene, have alleged violations of the Fifth and Fourteenth Amendments, specifically, the deprivation of a property interest in being denied eligibility for, and the actual position of, police officer for the Borough of Stroudsburg, Pennsylvania. In essence, the plaintiffs contend that the defendants conspired to "fix" the qualifying examinations in order to appoint Kenneth Nevil to the position of patrolman, thereby denying the opportunity for employment to them. Currently before the court is the defendants' motion for summary judgment. For reasons which follow, the motion will be granted.

 BACKGROUND

 Due to the nature of the plaintiffs' complaint, wherein it is alleged a conspiracy took place among the defendants to deprive them of their constitutional rights, a recitation of the events which gave rise to this action is in order. *fn1" In January of 1987, the Borough of Stroudsburg, through its Borough Manager, in compliance with its Civil Service Commission Regulations, announced that it was to offer a test to responding candidates for the purpose of updating the borough's "certified" list of eligible candidates for the position of police patrolman. This announcement was made by means of public notice and the testing procedure consisted of a written and oral section, both of which were required by the borough's civil service regulations as well. The commission interpreted its regulations to allocate 70% to the written test and 30% to the oral interview in computing a final score.

 On January 10, 1987, the written portion of the exam was administered at which time thirteen (13) candidates sat for the test. Among this group were the plaintiffs. As a prerequisite to becoming eligible for the oral part of the certification process, the borough's civil service regulations required candidates to achieve a score of at least seventy percent (70%) on the written exam. Of the candidates, ten (10) achieved grades which allowed them to proceed to the oral portion of the exam. Again, among this group were the plaintiffs.

 Those ten candidates were then invited to participate in the oral examinations conducted by three members of the Borough's Civil Service Commission. These oral examinations were held on two separate evenings in January, 1987, specifically, Tuesday the 13th and Thursday the 15th. Interviewed on the first date, the 13th, were the following candidates: Beaver, Nevil, Miller, Brooks, and Miscik. The remaining five candidates, Thomas, Hoff and Kimmins, as well as the plaintiffs, Schimdt and Greene, were interviewed on Thursday, January 15, 1987.

 As with the written portion of the test/certification process, the civil service commission also required the candidates to achieve a score of seventy (70%) percent on the oral portion of the test in order to be "certified" by the commission. *fn2" The oral portion of the test consisted of a question and answer type interview conducted by three civil service commissioners. There were a total of 30 points available on the oral section of the exam. The interviewers rated the candidates on a scale of one (1) through five (5) in the following five categories: Appearance, Manner, Speech, Adaptability and General Impression. The candidate can earn 25 points from the interview process and an additional one (1) to five (5) points for his/her written statement explaining why she/he wanted to become a police officer.

 The first set of interviews, which took place on January 13, 1987, were conducted by three civil service commissioners, Miles Kirkhuff, Mary Jean Knapik and Stuart Woody. Also in attendance for the interviews were Borough Manager Carl Rodgers and Police Chief John Pansy. *fn3" On the date of the second round of interviews, January 15, 1987, Stewart Woody *fn4" was not present and, therefore, did not participate in the interviewing process that evening. Commissioners Kirkhuff and Knapik were present on the 15th, as were Rodgers and Pansy. All those present at the interviews, on both occasions, graded the prospective candidates. The usual procedure was to use only the scores of the three commissioners in calculating the candidates' performance. These three marks would then be added together and divided by three. This result, known as the weighted score, was the figure used to determine whether the candidate had achieved at least a seventy percent (70%) (or 21 points out of the possible 30) as required by the commission, based on their interpretation of the rules, to be eligible for placement on the "certified list." Due to the fact that Mr. Woody was absent on January 15th, the commissioners decided not to use his evaluations of the candidates prepared on January 13, 1987. Instead, a decision was made by the two remaining commissioners to use the evaluations prepared by Chief Pansy, assisting as the third examiner, for both sets of interviews. Borough Manager Carl Rodgers tabulated the results after the Commission members graded the oral examinations.

 As a result of the oral test, candidates Kenneth Nevil, *fn5" Brian Kimmins and plaintiff Richard Greene received grades of twenty one (21), or greater, and in doing so achieved marks above the seventy (70%) percent required by the commission's interpretation of the civil service regulations to be eligible for appointment to the position of patrolman. *fn6" Plaintiff Schmidt, although the candidate ranked fourth, did not achieve a score above the seventieth percentile and was, therefore, not eligible for inclusion on the certified list. *fn7" Ultimately, Nevil and Kimmins were chosen in 1987 by the borough council for the two positions that were available. The plaintiffs continued to pursue the position of patrolman, without complaining or accusing anyone of any wrong-doing regarding the 1987 exams, and were eventually hired in 1989.

 There were no other factual developments until 1989 or early 1990, when the Civil Service Commission was conducting a new written test for patrolman certification. At that point, Patrolman John Baujan was standing outside the room where the test was being administered, in the presence of Mayor Gross and Police Chief Pansy, when it was reported that an applicant, Heath Williams, had just failed the written portion of the examination. According to Baujan, he overheard Mayor Gross make the following remark:

 
So him and the Mayor -- John Pansy that is -- him and the Mayor got involved in a conversation about that it was a shame that he didn't pass the test. Because if you don't pass the test thats (sic) it as far as your hiring process goes at that time. And then the Mayor responded something to the effect that its too bad we couldn't do something for him, referring back to Kenny, because Kenny Nevil didn't pass either. I don't know if he exactly referred to the test, but it was that he didn't pass either.

 See document 41, p.7, line 1, of the record. *fn8" There is no indication that Pansy heard, reacted or responded to this statement. Baujan testified that he interpreted the remark to mean that a particular candidate (Kenneth Nevil) had apparently failed the written portion of the exam in 1987, and that somehow Pansy and Gross were able to assist the candidate in achieving a passing score. *fn9" It was this statement, that Baujan related to Greene in 1991 which caused the plaintiffs to conclude that a conspiracy existed in 1987 to deprive them of their place on the certified list, and ultimately employment as patrolmen.

 ANALYSIS

 I. The Conspiracy

 When considering a § 1983 action which is based on an alleged conspiracy of the defendants to deprive the plaintiffs of some constitutionally protected right, ". . . the plaintiff is required to support his broad-ranging allegations of conspiracy with more than speculation and conjecture. He must allege supporting facts showing an agreement among the numerous defendants, as well as the basis for alleging participation with respect to each defendant." Flanagan v. Shively, 783 F. Supp. 922, 933 (M.D. Pa. 1992)(emphasis supplied). The United States Court of Appeals for the Seventh Circuit in Kunik v. Racine County, Wis., 946 F.2d 1574 (7th Cir. 1991), has noted that to determine whether a complaint alleges a conspiracy:

 
There must be allegations that the defendants directed themselves toward the unconstitutional action by virtue of a mutual understanding. Even where such allegations are made, they must further be supported by some factual allegations suggesting such a "meeting of the minds."

 Id. at 1580 (citing Sparkman v. McFarlin, 601 F.2d 261, 268 (7th Cir. 1979). The plaintiffs claim that in order to achieve that goal, the defendants: 1) called for the abolition of an existing list of certified candidates and scheduled a new set of exams; 2) allowed Chief Pansy to attend the oral portion of the exam and score the candidates; 3) used those scores in the actual calculation of the candidates weighted oral scores (which, in effect, utilized Pansy as a member of the Civil Service Commission in contravention of the borough's civil service regulations); 4) changed the score of Commissioner Mary Jean Knapik for Kenneth Nevil from 17 to 19; 5) and, finally, computed a one (1) point mathematical error in favor of Kenneth Nevil on the oral evaluation of Commissioner Miles Kirkhuff. Furthermore, the plaintiffs maintain that but for the inclusion of John Pansy's illegal score, Kenneth Nevil would not have made the certified list.

 A brief outline and analysis of the events that the plaintiffs claim establish this conspiracy is appropriate at this time. Plaintiffs Greene and Schmidt took the written portion of the patrolman's exam on January 10, 1987, as did Nevil and Kimmins, the other two candidates who made the certified list. All four men received grades that placed them in the seventieth (70%) percentile, thus allowing them to proceed to the oral portion of the exam. There are no allegations, nor do the plaintiff's draw any inferences, that seventy (70%) percent was not required on the written portion of the exam.

 Accordingly, Kenneth Nevil, as well as Schmidt and Greene, among others, were invited to participate in the oral examinations. As previously stated, the decision was made to use Chief Pansy's gradings inasmuch as Commissioner Woody was absent for the January 15th interviews. The plaintiffs contend that the decision to allow the use of Pansy's scores on the oral portion of the exam demonstrates that the defendants attempted to ...


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