position, stating that he had insufficient
availability to work an increased number of hours. Id. at ¶ 14.
Although he refused to resign, Plaintiff was removed from the work
schedule and, on May 22, 2000, he received a letter, dated April 5,
2000, stating he would no longer be scheduled as a township police
officer. (Doc. 1, ¶ 17). The instant action ensued. As mentioned
previously, Plaintiff contends that his dismissal was improper because the
memo was an exercise of his right to free speech and is protected by the
First and Fourteenth Amendments as it involved an area of legitimate
In ruling on a motion for summary judgment under Federal. Rule of Civil
Procedure 56(c), "[t]he judgment sought shall be rendered forthwith 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 facts and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue of fact is
"genuine" if there is sufficient evidence to enable a reasonable jury to
find for the non-moving party, and a fact is "material" if it might
affect the outcome of the suit under governing law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the
responsibility of identifying the bases for its motion and those parts of
the record which support its conclusion that no genuine issue of material
fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In
ruling on the motion, the Court must consider all facts in the light most
favorable to the opposing party. See Betz Laboratories, Inc. v. Hines,
647 F.2d 402, 404 (3d Cir. 1981).
Plaintiff's Brief in Opposition to the motion does not dispute his
status as an "at-will" employee and specifically states that the case is
about retaliation for exercising First Amendment constitutional rights as
well as wrongful termination in violation of public policy under
Count I First Amendment
Public employees have a constitutionally protected right to speak on
matters of public concern without fear of retaliation. Rankin v.
McPherson, 483 U.S. 378, 383-84, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987);
Baldassare v. New Jersey, 250 F.3d 188, 194 (3d. Cir. 2001); Feldman v.
Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994). In evaluating a
public employee's retaliation claim for engaging in protected activity, a
three-step process is employed. Baldassare, 250 F.3d at 194; Green v.
Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997). A plaintiff must
first demonstrate that the activity in question was protected.
Baldassare, supra at 195. The speech must involve an area of legitimate
public concern in order to fall under the shield of the First Amendment.
Id. The plaintiff must also show that "his interest in the speech
outweighs the state's countervailing interest as an employer in promoting
the efficiency of the public services it provides through its employees."
Id.; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). These
determinations are questions of law for the court. Id. (citing Waters v.
Churchill, 511 U.S. 661, 668 (1994)).
Once this has been demonstrated, plaintiff must then show the protected
activity was a substantial or motivating factor in the alleged
retaliatory action. Id. If he can satisfy these criteria, the public
employer can rebut the claim by demonstrating that "it would have reached
same decision . . . even in the absence of the protected conduct."
Id. (citing Mt. Health City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)). These latter inquiries present questions of fact to be
determined by the fact-finder. Id.
Initially, therefore, a determination must be made as to whether the
March 18, 2000 memorandum constitutes a matter of legitimate public
concern so as to afford it constitutional protection. This requires the
court to analyze the "content, form, and context of a given statement, as
revealed by the whole record" before it can conclude whether the speech
will be afforded First Amendment protection. Connick v. Myers,
461 U.S. 138, 147-48 (1983).
The content of the speech may involve a matter of public concern if it
attempts "to bring to light actual or potential wrongdoing or breach of
public trust on the part of government officials." Baldassare, supra, at
195 (quoting Holder, 987 F.2d at 195); Swineford v. Snyder Cty.,
Pennsylvania, 15 F.3d 1258, 1271 (3d. Cir. 1994). Based upon "the nature
of their employment, speech by public employees is deemed to be speech
about public concern when it relates to their employment so long as it is
not speech `upon matters of only personal interest'" Swineford, 15 F.3d
at 1271 (quoting Connick, supra, at 147). However, government officials
should enjoy wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amendment when
employee expression cannot be fairly considered as relating to any matter
of political, social, or other concern to the community. Connick, supra,
at 146. Moreover, speech that presents "a situation in which a public
employee has filed a complaint about an isolated incident of what he or
she perceived to be inappropriate conduct on the part of a
non-supervisory co-worker" does not share the level of importance as
other circumstances where courts have found the speech to regard matters
of public concern. Azzaro, supra, at 978-79 n. 4. Cf. Baldassare, supra
(investigator's speech in connection with investigation of fellow police
corruption wrongdoing involved area of legitimate public concern);
Feldman v. Phila. Hous. Auth., 43 F.3d 823 (3d Cir. 1995) (compilation
and distribution of public auditor's report of improprieties by director
of county agency involved area of legitimate public concern).
In the present matter, the March 18, 2000 memo is not a discussion of a
practice or policy of the Wilkes-Barre Township police department; it is a
complaint regarding plaintiff's evaluation of Szczupski's performance.
See Connor v. Clinton Cty. Prison, 963 F. Supp. 442, 449 (M.D.Pa. 2001,
McClure, J.) In the introductory paragraph, Plaintiff asserts "[m]y
concern however, is with the involvement and lack of cooperation that I
have received from Lieutenant Stan Szczupski." (Doc. 21, Exh. D, p. 1)
(emphasis added). After supplying the particulars about Szczupski's
conduct in the Colleran case, Plaintiff concludes his comments, as
follows: "I find it confusing that a supervisor, the one that I am
suppose [sic] to learn from, the one that I am suppose [sic] to take
orders from and above all the one that I am suppose [sic] to respect felt
that getting lockers in Philadelphia is more important in testifying in a
case that I worked LONG and HARD on." Id. at p. 2 (emphasis added). It is
obvious that Plaintiff is complaining about the lack of cooperation he
had received on-a-singular case. It does not appear that Plaintiff was
speaking "as a citizen upon matters of public concern" but more so on his
personal dissatisfaction with the conduct of a superior. Connick, supra,
at 147. He did not
seek "to inform the public" that Szczupski or the
police department were not discharging their duties in the prosecution of
a criminal case. Id. at 148. The facts of this case are remarkably
similar to the facts in Connick, including the surname of the Plaintiff.
Connick concluded that complaints concerning the lack of confidence and
trust that plaintiff and other employees had in their superiors did not
fall under the rubric of "public concern." Id. As here, the plaintiff in
Connick did not seek to bring to public light actual or potential
wrongdoing or breach a public trust on the part of her superiors. Id.
Neither Szczupski's ability to obtain fingerprints,*fn3 his initial
faulty recollection of the Colleran case, nor his absence at the trial,
especially when he notified others he would be away, show anything more
than Plaintiff's perceived deficiencies in the detective's lax approach
to his position. These complaints do not concern a dissatisfaction with
the department or its policies, and, moreover, do not raise genuine
questions as to the state of public trust or welfare. A single assertion
that the detective failed to appear in accordance with a subpoena and
thereby placed a criminal prosecution in jeopardy, without more, is
insufficient to warrant First Amendment protection. Such shortcomings
fail to rise to the level of matters of interest to the community upon
which it is essential that public employees be able to speak out freely
without fear of retaliatory dismissal. Connor, supra, at 449 (citing
Connick at 149). A complaint regarding, at most, an undermotivated
employee, even a police detective, does not implicate such political,
social or community interests so as to justify judicial review of the
propriety of the termination.
Szczupski's decision to delay his response to a subpoena in order to go
to Philadelphia to "get lockers" can hardly be described as a action
against the public good that clearly tends to injure public confidence in
the purity of the administration of the law. In conclusion, the court
finds that Plaintiff's March 18, 2000 memo does not involve matters of
legitimate public concern that warrants First Amendment protection.
Count II Wrongful Termination
To establish a state law claim under Count II, Plaintiff must establish
a public policy exception to the at-will employee doctrine. This
exception must find its source in the state constitution, in
legislation, in administrative regulations or in judicial decision.
Jacques v. Akzo Int'l Salt, Inc., 619 A.2d 748, 422 Pa. Super 419
(1993). It is applied only in extremely limited circumstances where there
is a violation of a clear mandate of public policy which has been defined
as a "principle of law which abhors actions against the public good [and]
clearly tends to injure the public confidence in the purity of the
administration of the law." In re Funds in the Possession of Conemaugh
Twp. Supervisors, 724 A.2d 990 (Pa.Cmwlth. 1999).
By way of example, "an employer (1) cannot require an employee to
commit a crime, (2) cannot prevent an employee from complying with a
statutorily imposed duty, and (3) cannot discharge an employee when
specially prohibited from doing so by statute." Donahue v. Federal Express
Corp., 753 A.2d 238, 244 (Pa. Super. 2000) (citing Spierling v. First
Am. Home Health Servs., Inc., 737 A.2d 1250, 1252
(Pa. Super. 1999); and
Hennessy v. Santiago, 708 A.2d 1269, 1273 (Pa. Super. 1998)).
Additionally, courts may, in an appropriate case, "announce that a
particular practice violates public policy, even in the absence of a
legislative pronouncement to that effect. Id. (citing Shick v. Shirey,
716 A.2d 1231, 1237 (Pa. 1998) (recognizing a cause of action under
Pennsylvania law for wrongful discharge of an employee who files a claim
for workers' compensation benefits)). The court's power to announce
public policy, however, is limited, and "is to be ascertained by reference
to the laws and legal precedents and not from general considerations of
supposed public interest." Id.
Plaintiff's dismissal because he complained about Szczupski's
performance does not implicate a clear violation of public policy.
Consequently, Count II will be dismissed.*fn4 An appropriate order
AND NOW, THIS 25th DAY OF FEBRUARY, 2002, IT IS HEREBY ORDERED
1. Defendants' Motion for Summary Judgment (Doc. 21) is GRANTED;
2. The Clerk of Court is directed to close this case.