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Stephens v. Kerrigan

August 12, 1997




(D.C. CIVIL NO. 95-CV-00615)




(D.C. CIVIL NO. 95-CV-08093)


On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. No. 95-cv-00615)

Before: SLOVITER, Chief Judge, SCIRICA and SEITZ, Circuit Judges

SLOVITER, Chief Judge.

Filed August 12, 1997

Argued January 16, 1997


Appellants, five police officers for the City of Allentown, filed this action asserting that they were denied promotions because they openly opposed or failed to support the candidacy of William Heydt for mayor of Allentown and/or supported his rival, John Pressman. The officers charged that the City, Mayor Heydt, and Officer Glenn Kerrigan, president of the Fraternal Order of Police, who was a Heydt supporter, deprived them of their First Amendment rights in violation of 42 U.S.C. Section(s) 1983 and 42 U.S.C.Section(s) 1985(3). They also alleged that Kerrigan individually breached his duty of fair representation and that Mayor Heydt violated their First Amendment rights to petition for redress of grievances by denying them access to the courts.

As in most cases involving a contested employment action in which the district court granted summary judgment for the defendants, we must focus on whether the plaintiffs adduced sufficient evidence to permit the fact finder to draw the inference that the employment action was motivated by an impermissible consideration. If so, plaintiffs have established the genuine issue of material fact that precludes summary judgment unless the evidence shows the challenged action would have been taken in any event. To make that decision, we must review the facts adduced in detail.


The candidates for mayor of the City of Allentown in the 1993 election were Democrat John Pressman and Republican William Heydt. Chief of Police Wayne Stephens was a Pressman supporter, as were a number of high-ranking police officials. Glenn Kerrigan, who had been president of the Fraternal Order of Police (the"FOP") since 1992, was a Heydt supporter, as were a number of other police officers, including Richard Suppan, Gerald Dieter and James Bowser who were all union officers or members of the union negotiating committee. The FOP is the recognized bargaining agent for the police, albeit not for certain high ranking officials. There is some evidence that the relationship between the FOP leadership and the Chief of Police and his immediate advisors was somewhat rancorous: the FOP officers believed that Chief Stephens was antagonistic towards them on account of their union activities and the police administration did not approve of the union's attempts to "run" the Department.

FOP Endorsement

The Preamble of the FOP's Constitution and Bylaws states that the FOP is "strictly non-political." App. at 269. The parties differ as to whether that precludes the FOP from endorsing a candidate. Much of the evidence centers on the endorsement, later rescinded, of candidate Heydt and the part that issue played in Heydt's decision not to promote the plaintiffs.

During the primary election, candidate Heydt visited Chief Stephens in an effort, according to Stephens, to gain the Department's endorsement. Stephens declined, testifying later that he did not believe the Department should make endorsements. He also testified that he was a vocal Pressman supporter in the Department and among neighbors and friends. Subsequently, Heydt criticized the management of the Police Department on a number of grounds and his remarks were reported in an Allentown newspaper. Plaintiffs allege that FOP leaders, including Kerrigan, were providing Heydt with information concerning the administration of the Police Department.

On September 7, 1993, candidates Pressman and Heydt made brief statements at the FOP's regular monthly meeting. James Bowser moved to endorse Heydt's candidacy, but the vote resulted in a 16-16 tie. Kerrigan, who was presiding, declined to cast the tie-breaking vote. A motion was passed that no endorsements be made until after the candidates' forum, which could be attended by all members of the FOP. This forum was held on September 28, 1993. Officer Fulmer, also a Heydt supporter, had circulated a petition requesting a special meeting of the FOP to be called the next day, September 29, in order to endorse a candidate.

The manner in which the September 29 meeting was called and publicized is another matter of dispute. Kerrigan contends that he was mandated by the Bylaws to call a special meeting upon receipt of a request signed by ten members. Plaintiffs allege that it was unusual for a special meeting to be called the day after the candidates' forum, particularly because there was a regular monthly meeting scheduled for the next week. A number of officers later complained that the September 29 meeting was not adequately publicized to the FOP membership.

Candidate Heydt was endorsed by the FOP membership at the special meeting held on September 29 by a vote of 36 to 2 with 4 abstentions. Most of Officer Fulmer's platoon attended the meeting; many of the FOP members who had attended the September 7 meeting did not.

The regularly scheduled FOP meeting on October 5 was contentious, with some members, including a Heydt friend and presumably supporter, expressing reservations concerning the FOP's endorsement policy. By a vote of 44 to 12, the endorsement of candidate Heydt was rescinded. What was said and by whom at this meeting is one of the bases for the plaintiffs' claim that their failure to support Heydt led to their non-promotion. Heydt was elected Mayor of Allentown on November 2, 1993, and took office on January 3, 1994.

Promotion Lists

In 1992, before the events at issue here, when Joseph Daddona was Mayor of Allentown, the FOP, headed by Kerrigan, and the Allentown Police Department, with Wayne Stephens as the Chief of Police, negotiated a new promotion procedure for the positions of patrol sergeant, investigative sergeant, patrol lieutenant and investigative lieutenant. This was codified as General Order 309 of the Allentown Police Department. This new promotion procedure was followed in 1993 to produce promotion lists for the above positions. The agreed-upon procedure does not entail objective tests but provides that promotion lists are compiled following an evaluation by a five-person committee including the Chief of Police, the Assistant Chief of Police, the Deputy Assistant Chief of Police, one Captain, and the candidate-officer's primary supervisor. A candidate's placement on the list is based upon these "oral interview/ evaluation" scores, which account for eighty percent of the total score, and seniority, which accounts for twenty percent. Promotions could be made from the top three names on the list, with the Chief of Police able to pass over any particular candidate only twice. If three positions opened, the top three candidates had to be chosen. However, if only one position was to be filled, the first two candidates could be skipped twice. After that, any subsequent open positions would have to be filled by the skipped candidates.

The lists were officially publicized on November 1, 1993, just prior to the mayoral elections held that week. The five plaintiffs ranked highly. James Stephens rankedfirst for investigative lieutenant and first for patrol lieutenant; Hanna ranked third for investigative lieutenant and fourth for patrol lieutenant; Vitalos ranked first for investigative sergeant and second for patrol sergeant; Longo ranked third for patrol sergeant and fourth for investigative sergeant; Moyer ranked third for investigative sergeant.

In contrast, the policemen who were in the FOP leadership scored near the bottom of the sergeants lists. Kerrigan ranked twenty-eighth on both the investigative and patrol sergeants lists; Suppan ranked thirty-first for investigative sergeant and thirtieth for patrol sergeant, Dieter ranked thirty-third on both lists, and Bowser ranked thirty-fourth on both lists. None were ranked on the lieutenants lists. We were advised by counsel at argument that there were sufficient openings so that each of the top three candidates would have been promoted.

Police Chief Interviews

Immediately following his election, Mayor Heydt met with Chief Stephens and informed him that he would not rehire Stephens as Police Chief. According to Stephens, Heydt also accused him of manipulating the promotion lists to arrange for Angel Santos, an Hispanic officer, to placefirst on the patrol sergeants list and second on the investigative sergeants list in order to accommodate candidate Pressman's promises to promote more Hispanics within the Police Department. Stephens also alleges that Heydt accused him of nepotism in regards to his brother James Stephens' position on the lists and that Heydt harangued him on the operation of the department in general, specifically criticizing a number of the Captains.

In December 1993, Heydt interviewed Assistant Chief Monahan, Captains Mitchell, Berndt, Manescu and Bennis, and John Stefanik, a retired former Captain in the department, for the Chief of Police position. Ultimately, Heydt selected John Stefanik as the new Chief of Police. Stefanik had been a Heydt supporter and had worked at a polling place for Mayor Heydt during the election.

Unfair Labor Practices Challenge

On December 20, 1993, the FOP filed an Unfair Labor Practice ("ULP") charge with the Pennsylvania Labor Relations Board (the "PLRB"), claiming that the sergeants promotion lists were invalid because anti-union animus on part of the evaluators resulted in artificially depressed scores for Kerrigan, Kulp, Suppan, Bowser, and Dieter, five officers who held union positions or were members of the union's collective bargaining committee.

Seven officers including Angel Santos and four of the five plaintiffs here attempted to intervene in the PLRB complaint on the ground that the action was not supported by the general membership of the FOP and was detrimental to them. Their request to intervene was denied.

While the PLRB complaint was pending, no promotions were made, either from the sergeants lists which were at issue in the Unfair Labor Practice charge or from the lieutenants lists even though those lists had not been challenged. Mayor Heydt stated in his deposition that he did not want to make sergeant promotions in light of the PLRB complaint. He also stated that he did not want to make lieutenant promotions because he thought that James Stephens' name was at the top of the lists because of nepotism, and because of an unrelated state court action brought by captains and lieutenants against the City of Allentown charging that the City had failed to comply with Pennsylvania's Wage Payment and Collection Act ("Act 204") regarding wages for managerial-level police officers. The Act 204 suit was filed in state court in October 1994, and Mayor Heydt has testified that he did not want to promote anyone to lieutenant in order to avoid increasing the number of plaintiffs joining in the suit.

On September 21, 1995, a little less than two years after the ULP complaint was filed, the PLRB hearing examiner issued a proposed order invalidating the 1994-95 promotion lists for investigative sergeants and patrol sergeants, and ordered the City to refrain from making promotions until a new list was developed. The hearing examiner found that Chief Stephens and his immediate deputies gave some scores of lower than 4 in violation of the applicable procedure. The examiner also found that the scores given by Chief Stephens and his immediate deputies to Kerrigan, Dieter and Suppan were tainted by anti-union animus, though not those of Kulp or Bowser. The PLRB adopted the hearing examiner's findings and conclusions, except as to Dieter, and issued a Final Order dated October 8, 1996, directing the City to void the 1994-95 promotion lists and to refrain from making promotions to sergeant until a new list was developed. The City and the FOP cross-appealed in the Commonwealth Court of Pennsylvania and, in a memorandum opinion, the court dismissed the appeals as moot because the promotion lists had expired by operation of law at the end of 1995. See City of Allentown v. Pennsylvania Labor Relations Bd., No. 3027 C.D. 1996, slip op. at 5-6 (Pa. Commw. Ct. May 23, 1997).

Following the invalidation of the sergeants promotion lists, the City has not promoted to the ranks of either lieutenant or sergeant as of the time of oral argument before us.

The Instant Action

The first complaint in this consolidated action was filed by James Stephens, Anthony Longo and David Moyer in January 1995. They sued Mayor Heydt, the City of Allentown, and Glenn Kerrigan, and alleged a conspiracy in violation of 42 U.S.C. Section(s) 1983 and 1985(3) to deny them promotion because of their political affiliation. They also asserted pendent state law claims against Kerrigan. In December 1995, Joseph Hanna and Mark Vitalos filed a complaint raising the same claims, but they added a count for Mayor Heydt's "illegal attempt to deny access to the courts to other[s] eligible to be promoted to lieutenant." App. at 134. They based this claim on Heydt's testimony that he did not want to promote more officers who could become plaintiffs in the Act 204 lawsuit against him and the City. Stephens, Longo and Moyer sought leave to amend their complaint to add this count.

Following discovery, the district court granted the defendants' motions for summary judgment on theSection(s) 1983 and 1985(3) claims in favor of all three defendants, dismissed plaintiffs' breach of fair representation and state constitutional claims, and denied the motion of Stephens, Longo, and Moyer to amend their complaints after determining that the access to the court's claim failed to state a cause of action. Plaintiffs do not contest the district court's dismissal of the breach of fair representation and state constitutional claims, but argue on appeal that the district court improperly granted summary judgment to the defendants on their Section(s) 1983 and 1985(3) claims. Hanna and ...

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