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DOOLEY v. PHILADELPHIA
June 4, 2001
JEANETTE DOOLEY, PLAINTIFF,
CITY OF PHILADELPHIA, POLICE DEPARTMENT OF THE CITY OF PHILADELPHIA, JOHN F. TIMONEY, RICHARD ZAPPILE, ROBERT SMALL, JOHN NORRIS, DEFENDANTS.
The opinion of the court was delivered by: Reed, S.J.
Plaintiff Jeanette Dooley, a captain in the Philadelphia Police
Department, claims that she was suspended, transferred, and effectively
demoted because her testimony at a criminal trial irked her superiors.
She brings this action under 42 U.S.C. § 1983, 1985, and 1986,
alleging that the actions taken against her by the police department and
its officials violated her constitutional right to freedom of expression
secured by the First and Fourteenth Amendments to the United States
Constitution. She also asserts a number of state-law claims. Dooley now
moves for partial summary judgment on liability, and the defendants
— the City of Philadelphia and individual officials within the
Philadelphia Police Department*fn1 — move for summary judgment on
all counts. This Court
has jurisdiction over the case under
28 U.S.C. § 1331, as it includes allegations of violations of federal
laws and the Constitution of the United States.
For the reasons explained in this memorandum, I conclude that Dooley
was disciplined for engaging in speech protected by the First Amendment,
and that she is entitled to summary judgment on liability as to a
five-day suspension that, on its face, targeted her speech. There remain
genuine issues of material fact as to other adverse actions taken against
her by defendants, and those will be sorted out at trial. I also conclude
that there is sufficient evidence to suggest that there was a conspiracy
to deprive her of her First Amendment rights. And finally, I conclude
that a reasonable jury could not find in her favor on her state-law
claims. Therefore, the motion of plaintiff for partial summary judgment
on liability will be granted in part and denied in part, and the motion
of defendants for summary judgment will be granted in part and denied in
At the center of this action is a former police officer named Michael
Vassallo. By all accounts, Vassallo was no saint; he was kicked off the
police force twice, arrested twice and convicted once for shoplifting, and
implicated in a number of violent episodes ranging from physical assault
to rape. Jeanette Dooley had supervised Vassallo from June 1991 to
February 1996, when she served as captain of the 14th District, located
in the Chestnut Hill, Mt. Airy, and Germantown sections of Philadelphia.
Vassallo headed up the "Five Squad," an elite unit charged with
responding to "priority one" emergencies such as murder, rape, robbery,
and aggravated assault. He reported directly to Dooley.
Vassallo was arrested in 1996 for shoplifting.*fn2 After the arrest,
the police department launched an investigation into Vassallo's conduct,
and its investigation turned up evidence — including the testimony
of two other police officers, John McGrath and Cynthia O'Leary —
that Vassallo had severely beaten a criminal suspect in 1993. The
investigation was turned over to the Federal Bureau of Investigation, and
eventually, criminal charges were brought against Vassallo in federal
court for violating the civil rights of the suspect. Dooley appeared and
testified as a defense witness in Vassallo's 1998 federal criminal
Dooley was questioned at that trial by counsel for Vassallo, as well as
counsel for another defendant, and the Assistant United States Attorney.
First, she provided background on herself and the 14th District. She
testified that Vassallo "established his reputation as being credibly
responsive to the community," as a sergeant in the Five Squad. (Testimony
of Jeanette Dooley in United States v. Vassallo, Crim. No. 97-577-1-3,
Feb. 20, 1998, at 20-25) ("Dooley Trial Testimony"). She testified that
she had personal knowledge of bad blood between Vassallo and another
member of the Five Squad, John McGrath, who
was a key witness for the
prosecution. (Id. at 34.) McGrath had been upset with Vassallo, Dooley
testified, because Vassallo had sided against McGrath when a civil rights
complaint was filed against McGrath. (Id. at 36.) In the context of being
questioned by defense counsel about the tension between Vassallo and
McGrath, Dooley had the following exchange with counsel, which is the
molten core of this heated dispute:
Q: Were there any other instances of animosity
demonstrated between the two of them?
Q: Let me ask you specifically this, though, are you
aware of any instance where there was an escape of a
Q: Tell us what they are?
A: Sergeant Vassallo had complained that Officers
McGrath and O'Leary did not properly secure prisoners
on a number of occasions.
MR. WZOREK: I'll object to her testifying for Sergeant
Q: Tell us about the escaped prisoners?
A: At the end of '93 or the beginning of 1994, I have
to tell you how it came to my attention because I
wasn't present. Do you want — I become aware
that Officers McGrath and O'Leary had been
transporting a prisoner who escaped from the back of
the police wagon.
The prisoner was caught within a short period of
time, an hour, maybe a little more than an hour. And
when I became aware that that had happened, I wanted
to know what the circumstances were and I learned that
some of the wagons were not properly equipped with
Q: And so, I'm sorry, as a result of that, what did
A: I contacted the inspector of north police
division. I also learned that it wasn't just the 14th
District, that there were a number of wagons
throughout the city that were not properly equipped
Now, of course, the wagons have bolts, you know,
which the officers are supposed to secure and most of
the officers would then use their handcuffs to go
through the lock in place of the missing padlock.
Q: I'm sorry, any other instances of escape?
A: Well, there was one instance where they had stopped
a fellow who was wanted for homicide and they, when
you stop a car we . . . [Objection colloquy.]
Q: As a result of the fact that homicide suspect was
stopped, did the suspect get away?
A: Yeah, the suspect punched Officer McGrath and took
off and was caught down the block.
Q: Let me ask you this, specifically as a result of
that what, if anything did Sergeant Vassallo say about
those two incidents?
MR: COGAN: I have no further questions, thank you.
(Dooley Trial Testimony, at 36-38.)*fn4
The day after Dooley testified, the jury acquitted Vassallo.
Dooley claims that after she testified at Vassallo's federal trial, the
defendants took a number of adverse employment actions against her,
including an eventual transfer to the "Siberia" of the department, the
Command Inspections Bureau or "Night Command," and a 15-day suspension
without pay.*fn5 She alleges in her § 1983 claim that these steps
were taken in retaliation against her testimony, which was an exercise of
her right to freedom of expression under the First Amendment, and claims
that defendants' conduct was part of a conspiracy to violate that right
under §§ 1985 and 1986. She also alleges that the defendants' conduct
denied her rights protected by the Pennsylvania Constitution, violated a
Pennsylvania criminal statute intended to punish retaliation against
witnesses (18 Pa. C.S. § 4953), and constituted intentional
infliction of emotional distress.
Summary Judgment Standard
Plaintiff has moved for summary judgment only as to liability against
all defendants, while defendants have moved for summary judgment on all
of plaintiff's claims. Under Rule 56(c) of the Federal Rules of Civil
Procedure, "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," then a motion for
summary judgment must be granted. The proper inquiry on a motion for
summary judgment is "whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law." Anderson v.
Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505 (1986). Furthermore,
"summary judgment will not lie if the dispute about a material fact is
`genuine,' that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Id. at 248.
The moving party "bears the initial responsibility of informing the
district court of the basis for its motion and identifying those portions
of `the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). The
nonmoving party must then "go beyond the pleadings and by her own
affidavits, or by the `depositions, answers to interrogatories, and
admissions on file' designate `specific facts showing that there is a
genuine issue for trial.'" Id. at 324. On a motion for summary judgment,
the facts should be reviewed in the light most favorable to the
non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993 (1962)).
Plaintiff's central claim is that the defendants retaliated against her
for the exercise of her First Amendment right of expression. She seeks
recourse under 42 U.S.C. § 1983, which authorizes suits against state
and local government actors for constitutional violations.*fn6
My inquiry into this claim begins with the well-established principle
that public employees possess a constitutional right to express
themselves on matters of public concern, free from the fear of
retaliation. See, e.g., Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct.
1684 (1983) ("For at least 15 years, it has been settled that a State
cannot condition public employment on a basis that infringes the
employee's constitutional protected interest in freedom of expression.")
(citations omitted); Pickering v. Board of Educ. of Township High
School, 391 U.S. 563, 574, 88 S.Ct. 1731 (1968) ("statements by public
officials on matters of public concern must be accorded First Amendment
protection") (citation omitted). That right, however, is not absolute, and
must be balanced against the interest of the state in "promoting the
efficiency of the public services it performs through its employees."
See Connick, 461 U.S. at 142 (quoting Pickering, 391 U.S. at 568).
The balance between the First Amendment and the government's efficiency
interest is discovered through a tripartite analysis. First, plaintiff
must show that the activity or expression in question was protected.*fn7
Second, plaintiff must demonstrate that the protected activity was a
substantial or motivating factor in the alleged retaliatory action.*fn8
Third, an employer may establish that it would have taken the adverse
employment action regardless of whether the employee had engaged in the
protected conduct.*fn9 See Green v. Philadelphia Hous. Auth., 105 F.3d 882,
885 (3d Cir.), cert. denied, 622 U.S. 816, 118 S.Ct. 64 (1997); Pro v.
Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996); Watters v. City of
Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995); Swineford v. Snyder
County, 15 F.3d 1258, 1270 (3d Cir. 1994); Holder v. City of Allentown,
987 F.2d 188, 194 (3d Cir. 1993).
Whether the activity engaged in by an employee was protected by the
First Amendment depends on the outcome of the balancing inquiry
established by the Supreme Court in Pickering v. Board of Education of
Township High School. First, the expression must be on a matter of public
concern, and second, the public interest favoring the expression must
the interest of the state in promoting the efficiency of its
public services. See Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct.
1878 (1994) (plurality); Green, 105 F.3d at 885; Pro, 71 F.3d at 1288;
Watters, 55 F.3d at 892. Thus, I must assess the interest of each party,
and then determine which interest is more substantial.
The curious aspect of the protected interest analysis is that "[t]he
inquiry into the protected status of speech is one of law, not fact."
Connick, 461 U.S. at 148 n. 7. Thus, while the inquiry involves
consideration of facts and evidence, it "does not concern the sufficiency
of the evidence presented to the jury." See Cochran v. City of Los
Angeles, 222 F.3d 1195, 1200 (9th Cir. 2000). Therefore, in order to
assess whether the speech here warrants First Amendment protection, I
must do that which is normally taboo on a motion summary judgment and
engage in some weighing of the evidence presented by the parties.
There is no dispute that the testimony of Dooley at the federal
criminal trial of a former police officer accused of violating a
suspect's civil rights was a matter of public concern. The Court of
Appeals for the Third Circuit has held on two separate occasions that a
public employee's appearance in court as a witness is a matter of public
concern. See Green, 105 F.3d at 887; Pro, 81 F.3d at 1290 (quoting
Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1578 (5th
b. Weight of Dooley's Expressive Interest
How substantial was Dooley's interest in testifying at Vassallo's
Where court appearances are concerned, the level of importance and
public concern depends on largely on whether or not the testimony was
given pursuant to a subpoena. See Green, 105 F.3d at 888 (citing Pro, 81
F.3d at 1291). This is the lesson of the decisions of the Court of
Appeals for the Third Circuit in Green and Pro. Pro involved an employee
of the clerk of the Orphans' Court of Philadelphia County who was
subpoenaed by the wife of one of her supervisors to testify in a divorce
proceeding. See Pro, 81 F.3d at 1285. The plaintiff appeared at the
hearing but was never called to testify. See id. A few months after
plaintiff's appearance, her position was eliminated, and the plaintiff
sued for retaliation on First Amendment grounds. See id. In assessing
whether plaintiff's court appearance was subject to First Amendment
protection, the court of appeals gave great weight to the fact that the
plaintiff appeared pursuant to a subpoena, quoting approvingly from the
lower court's decision:
"In the context of the workplace, a public employee
can normally choose to speak or not to speak, on
issues that may incur the wrath of his superiors. A
subpoenaed witness has no choice but to appear at
trial, unless he is willing to risk a finding of
contempt. Nor does the subpoenaed witness normally
have a say in whether he will be called to testify.
Retaliation in these circumstances inflicts a
punishment on a public employee for performing an act
that he could not choose to avoid." . . . We . . .
believe that the public employee's interest in