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June 4, 2001


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 part.


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 trial.*fn3

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?

A: Yes.

Q: Let me ask you specifically this, though, are you aware of any instance where there was an escape of a prisoner?

A: Yes.

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 Vassallo again.


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 padlocks.

Q: And so, I'm sorry, as a result of that, what did you do?

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 with padlocks.
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. WZOREK: Objection.

THE COURT: Sustained.

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)).

On cross-motions for summary judgment, the court must determine separately on each party's motion whether judgment may be entered in accordance with the summary judgment standard. See Sobczak v. JC Penny Life Ins. Co., No. 96-3924, 1997 U.S. Dist. LEXIS 1801, at *3 (E.D.Pa.) (citing 10A Charles Alan Wright, et al., Federal Practice and Procedure § 2720, at 23-25 (2d ed. 1983)), aff'd, 129 F.3d 1256 (3d Cir. 1997).

First Amendment Analysis

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).

1. Protected Interest

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 outweigh 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.

a. Public Concern

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 Cir. 1989)).

b. Weight of Dooley's Expressive Interest

How substantial was Dooley's interest in testifying at Vassallo's trial?

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 ...

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