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United States District Court, Eastern District of Pennsylvania

December 20, 1999


The opinion of the court was delivered by: Eduardo C. Robreno, District Judge.


Pro se*fn1 plaintiff Terrance O'Connell, former Warden of the Northampton County Prison, brought this action claiming that certain of the named defendants violated his civil rights pursuant to 42 U.S.C. § 1983 and that all defendants defamed him in violation of Pennsylvania state law.*fn2 The named defendants include Northampton County, A.L. Brackbill Jr. — County Executive, Frank Billota — County Administrator, Correction Officer Jose Garcia, Correction Officer Donald Wenner (collectively the "County defendants"), and Michael Buffer, a reporter for The Express Times. Plaintiff's claims are based on the events surrounding his resignation from employment as Warden of the Northampton County Prison in March of 1997.

Presently before the court are the County defendants' and defendant Buffer's motions for summary judgment and plaintiff's responses/cross-motions.*fn3 The court will grant the County defendants' motion for summary judgment and deny plaintiff's cross-motion against the County defendants for the following reasons: (1) plaintiff has no claim that any property interest protected by the Due Process Clause was violated by the County defendants because plaintiff's resignation was voluntary and not the result of coercion or duress; (2) plaintiff has no claim that any liberty interest protected by the Due Process Clause was violated by these defendants because plaintiff failed to request a "name-clearing" hearing; and (3) plaintiff has failed to produce any evidence that the named County defendants actually made any allegedly defamatory statements. In addition, the court will grant defendant Buffer's motion for summary judgment and deny plaintiff's cross-motion against defendant Buffer because defendant Buffer's articles are protected by the fair report privilege.


The following material facts are uncontested and all reasonable inferences have been drawn in plaintiff's favor. Plaintiff was hired as Warden of the Northampton County Prison in February of 1996. See Ex. A to Def. Buffer's Mot. for Summ. J. at 43 (Transcript of Plaintiff's Deposition) [hereinafter "Pl.'s Dep."].*fn4 In March of 1997, plaintiff met with defendants Brackbill and Billota to discuss allegations that had been made by a female correction officer against plaintiff. See Pl.'s Dep. at 45-49. Specifically, Brackbill and Billota informed plaintiff that a correction officer had claimed that plaintiff had sexually harassed her by making unsolicited phone calls to her residence. Id. at 47-49. Plaintiff strenuously denied sexually harassing the correction officer and claimed that he had no recollection of ever phoning her residence. Id. at 49-52. Despite plaintiff's denials, Brackbill and Billota asked plaintiff to resign as Warden — an action plaintiff refused to take. Id. at 61. Plaintiff then left the meeting. Id. At no time during or after that meeting did defendants Brackbill or Billota ever threaten plaintiff with discharge if he failed to resign. Id. 70, 72, 88-90, 127.

A few days following the meeting, plaintiff submitted a letter of resignation, which set the effective date of his resignation as the last Friday in March. Id. at 43, 62, 72, 126. Almost nine months after plaintiff resigned, various articles written by defendant Buffer appeared in a local newspaper, The Express Times, chronicling the happenings at the prison, including references to plaintiff's resignation and several other allegedly improper acts committed during plaintiff's prison administration.*fn5 Id. at 71, 77-80, 94, 99-100.

Plaintiff instituted this suit, claiming that by accusing him of improper conduct and by effectively forcing him to resign without holding a hearing, the County defendants violated his due process rights under the Fourteenth Amendment and that they, along with defendant Buffer, defamed him.


Summary judgment is appropriate if the moving party can "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). When ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In addition, the court must accept the non-movant's version of the facts as true and resolve conflicts in the non-movant's favor. See Big Apple BMW, Inc. v. BMW of N. America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

The moving party bears the initial burden of demonstrating the absence of genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has done so, however, the non-moving party cannot rest on its pleadings. See Fed.R.Civ.P. 56(e). Rather, the non-movant must then "make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by depositions and admissions on file." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact. To defeat "a properly supported summary judgment motion, the party opposing it must present sufficient evidence for a reasonable jury to find in its favor." Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).


A. Plaintiff's Federal Claims.

To establish a claim under 42 U.S.C. § 1983, a plaintiff must show that a person acting under color of state law deprived him of a right secured by the Constitution or the laws of the United States.*fn6 See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). The essence of plaintiff's poorly articulated § 1983 claim appears to be that by confronting plaintiff with the allegations of the female correction officer and asking for his resignation without offering to hold a hearing, the County defendants constructively discharged him in violation of his Fourteenth Amendment due process property interest.*fn7 See Pl.'s Am. Compl. at ¶ 10; see also Pl.'s Resp. to County Defs.' Mot. for Summ. J. at 1-3. In addition, plaintiff appears to be arguing that his due process liberty interest was also violated by statements made to the press and others by the County defendants concerning his resignation and the accusations of the female correction officer that plaintiff had sexually harassed her. See Pl.'s Dep. at 132.

1. Plaintiff's due process property interest.

An employee's resignation from public employment is presumed to be voluntary. Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d Cir. 1999). The Third Circuit in Leheny explained:

  This presumption remains intact until the employee
  presents evidence to establish that the resignation .
  . . was involuntarily procured. If an employee
  retires [or resigns] of his own free will, even
  though prompted to do so by some action of his
  employer, he is deemed to have relinquished his
  property interest in his continued employment for the
  government, and cannot contend that he was deprived
  of his due process rights.

Id. (emphasis added) (internal citations omitted). An employee's resignation will be considered involuntary if: (1) the employer forces the resignation by using coercion or duress, or (2) the employee resigned because the employer deceived or misrepresented a material fact to the employee. Id. (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995)). To determine whether the resignation is involuntary, the court must look at all the circumstances surrounding plaintiff's resignation.

Here, plaintiff has made no recognizable allegation and has introduced no evidence that the County defendants deceived or misrepresented a material fact to him. Rather, plaintiff claims that the conduct of defendants Brackbill and Billota at the meeting where they requested his resignation amounted to coercion or duress.

In determining whether a resignation was involuntary due to coercion or duress, the court may consider the following factors: (1) whether the employee was presented with an alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee had a reasonable time to choose; (4) whether the employee was permitted to select the effective date of resignation; and (5) whether the employee had the advice of counsel. Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995). Plaintiff's own deposition testimony conclusively shows that none of these factors, when considered, weighs in his favor.

In the instant case, plaintiff — a lawyer both then and at the present time — was not put to a choice to either resign or face discharge. In fact, when asked to resign by defendants Brackbill and Billota at the meeting, plaintiff refused and only resigned some time later, and then for a variety of reasons beyond the accusations of sexual harassment lodged by the correction officer. Further, plaintiff selected his own date of resignation.

Indeed, a review of plaintiff's own deposition testimony leaves no doubt that plaintiff resigned on his own and not because he was asked to do so by defendants Brackbill and Billota. See Pl.'s Dep. at 42, 61, 69, 72. At his deposition, plaintiff stated that his mindset when he left that office after the meeting was that "if they want to get rid of me, let them fire me." See Pl.'s Dep. at 133. Further, plaintiff acknowledged during his deposition that when he left the meeting with defendants Brackbill and Billota, (1) he did not believe that the defendants had given him an ultimatum — in other words, that he would be fired if he did not resign, (2) he did not recall that they told him they were awaiting a different decision, and (3) they did not again ask for his resignation. See id. at 70, 72, 88-90, 127. In addition, plaintiff admitted that he submitted a resignation letter several days after the meeting with defendants Billota and Brackbill, after he had some time to think about it.*fn8 See id. at 62, 72, 126.

More importantly, plaintiff's articulated reasons for changing his mind and resigning from his position as Warden simply do not support his claim that he was coerced or forced to do so under duress. For example, plaintiff was questioned numerous times throughout the course of his deposition as to the reasons surrounding his resignation:

  Q. Why did you resign from the position as Warden for
    Northampton County Prison?

  A. Well, the relationship between myself and Mr.
    Billota and Mr. Brackbill had gotten a little bit
    hostile because of some accusations they made which
    were completely untrue, and number two I was having
    trouble with my son at home, and my being away from
    home really didn't help his situation. . . .

Pl.'s Dep. at 41-42.

  A. And Mr. Brackbill had asked me to resign because
    of some accusations that were made and I refused.
    That was either a Thursday or a Friday. And I
    finally decided, because of all — . You know, I was
    having problems at home and, you know, I wanted to
    get home to face these problems a little bit more
    directly, and I couldn't do it by staying in

Id. at 42-43.

  A. And another reason I resigned, I wasn't having — .
    I wanted to move down here into the County, but I
    was having absolutely no success selling my house.

Id. at 43.

Q. What changed your mind?

  A. Well, it had gotten into the Press and there was,
    you know, a lot of talk in the Press, and it was
    roaming around the prison. Of course, the
    Northampton County Jail, as most jails, there's no
    way you can keep a secret, and I just, you know, in
    view of some of the problems we were having at home
    and the fact that my wife wanted me to — at this
    point she changed her mind about selling the house,
    because we had been so unsuccessful, and she wanted
    me home and so I figured, you know, in view of all
    the nonsense, if you want to call it that, going
    on, I figured I might as well go because I really
    felt that my effectiveness as a Warden there was
    going to be tremendously compromised by this
    situation [involving the female correction officer]
    whether it was true or not.

Id. at 71-72.

  A. . . . The only thing that seems that you have a
    question in your mind is whether I resigned under
    pressure. Well, I can't say it wasn't under
    pressure, because I was given pressure, but not
    pressure directly from Brackbill. There were other
    things that were pressuring me at the time. That's
    why I said . . . the hell with them, why should I
    bother with these people anymore?

  Q. So you really didn't resign in response to
    Brackbill and Billota's request but rather you
    resigned from an accumulation of circumstances — .

A. Yes.

  Q. — that caused you in your own mind to form your
    own decision of your own volition.

A. Yes.

Id. at 137-138.

Based on the above-identified deposition testimony, it is clear, under the totality of the circumstances, that plaintiff's resignation was voluntary, even if prompted by some action of the County defendants, and not the result of duress or coercion imposed by the County defendants.*fn9 See Leheny, 183 F.3d at 227; cf. Angarita v. St. Louis County, 981 F.2d 1537, 1544-45 (8th Cir. 1992) (finding employee police officers involuntarily resigned where, among other factors, employer did not let them leave room before signing resignation letter, requests to speak to supervisors were denied, and threats of disclosure to family members were made); Paroczay v. Hodges, 297 F.2d 439, 440-41 (D.C.Cir. 1961) (finding employee's resignation to be involuntary where employee, who repeatedly asked to leave and consult with lawyer, was told to sign resignation letter before he left room or charges would be filed immediately). Accordingly, plaintiff's claim that his due process property interest has been violated fails as a matter of law.

2. Plaintiff's due process liberty interest.

The court next addresses what appears to be a claim by plaintiff that the County defendants deprived him of a liberty interest in having his name free of the stigma attached to the accusations of his alleged sexual harassment of a correction officer. Like his property interest claim, however, plaintiff's own voluntary resignation defeats this claim as well.

A liberty interest of a government employee "is implicated when he has been terminated and the government has made `a charge against him that might seriously damage his standing and associations in the community' or `imposed upon him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities.'" Freeman v. McKellar, 795 F. Supp. 733, 737 (E.D.Pa. 1992) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)); see also Pl.'s Resp. to County Defs.' Mot. for Summ. J. at 3. The appropriate remedy in such a case is to provide the employee with what is known as a "name-clearing" hearing.*fn10 See 795 F. Supp. at 738. The court in Freeman explained, however, that a hearing of this type is available only "when the dismissal is based on charges which stigmatize the employee. . . ." 795 F. Supp. at 738. In other words, the defaming remarks "must occur in the course of terminating the individual's employment." Id.

Here, plaintiff was requested to resign amid accusations of sexual misconduct, allegations he claims to be false. As shown above, plaintiff, however, refused to honor that request, and instead, continued his employment as Warden until he later chose to resign voluntarily. Accordingly, plaintiff was not terminated, and thus no liberty interest is implicated in the instant action.*fn11 See id. (citing cases where hearing not required when employee continues employment).

In addition, even if plaintiff had been effectively discharged, his failure to seek a "name-clearing" hearing would bar his claim. Id. at 739. "[E]ven a discharged employee must allege that he timely requested a hearing to clear his name and that the request was denied." Id.; see also Hill v. City of Chester, No. CIV.A.92-4357, 1994 WL 463405, at *4 & n. 8 (Aug. 26, 1994), aff'd, 60 F.3d 815, 1995 WL 392372 (3d Cir. 1995) (Table). In the instant case, plaintiff does not allege that he requested a hearing, and, in fact, he admitted that he did not "recall anybody ever saying to me I would have been denied a hearing. I think I cancelled anything that might have happened by finally resigning. Strictly to put it in plain English, I didn't want to be bothered with them anymore." See Pl.'s Dep. at 134. Like the plaintiff in Freeman who made no request to refute the purportedly defamatory accusation to clear his name, "plaintiff cannot successfully contend that he was denied due process." 795 F. Supp. at 739. Accordingly, summary judgment in favor of the County defendants on plaintiff's § 1983 claim is warranted.

B. Plaintiff's Claim under State Law.

Plaintiff also asserts a defamation claim against the County defendants and defendant Buffer based on the content of three articles plaintiff identified in his amended complaint. See Pl.'s Am. Compl. ¶¶ 16-18. This court's jurisdiction to hear this claim is based upon 28 U.S.C. § 1332 in that this action is between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. The parties do not dispute that Pennsylvania law applies.

Plaintiff's claim of defamation against the County defendants fails because plaintiff has directed this court to no evidence in the record establishing that the County defendants actually made any of the statements contained in the articles that he alleges to be defamatory. See 42 Pa. Con. Stat. Ann. § 8343(a) (West 1998) (to prevail on defamation claim, plaintiff must prove, among other things, publication by defendant).

With respect to defendant Buffer, a reading of the three articles and the committee's report upon which the articles were based, as well as plaintiff's deposition testimony, conclusively establishes that the articles constituted a fair report of the committee's findings and thus are protected by a qualified privilege.*fn12 In other words, the "gist" of the articles is substantially the same as the content of the committee's report. See Sciandra v. Lynett, 187 A.2d 586, 589 (Pa. 1963) (discussing fair report privilege and stating that it is not essential that official report be set forth verbatim by newspaper; rather "[a] summary of substantial accuracy is all that is required"); see also Medico v. Time, Inc., 643 F.2d 134, 137-38 (3d Cir. 1981). Further, plaintiff has failed to produce any evidence establishing that defendant Buffer abused that privilege. See Medico, 643 F.2d at 146. Accordingly, summary judgment on plaintiff's defamation claim is also appropriate.


For the reasons stated, the County defendants' and defendant Buffer's motions for summary judgment will be granted and judgment shall be entered in favor of defendants and against plaintiff on all claims.

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