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.
II. STANDARD OF REVIEW
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
1. Plaintiff's due process property interest.
An employee's resignation from public employment is presumed to
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
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
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.