The opinion of the court was delivered by: William Nealon, United States District Judge.
Presently before the court is a Motion for Summary Judgment by
defendants, which was filed on December 26, 2001. (Doc. 21). Plaintiff
submitted his brief in opposition on January 10, 2002. (Doc. 24), and
defendants thereafter filed a Reply on January 31, 2002. (Doc. 31) The
matter is now ripe for resolution. For the reasons stated below, the
motion will be granted.
Plaintiff, a Wilkes-Barre police officer, initiated this action by
filing a complaint pursuant to 42 U.S.C. § 1983 against the
Wilkes-Barre Township ("the Township"); its Chief of Police, Robert
Browzowski ("Browzowski"); its Mayor, Carl Kuren ("Kuren"); and the
Police Captain, Ronald Smith ("Smith") on December 7, 2000. (Doc. 1).*fn1
Plaintiff contends in Count I that he was unlawfully terminated as a
part-time township police officer in retaliation for a memorandum in which
he criticized a fellow employee. He maintains his termination abridges
his First Amendment right to free speech. Plaintiff has also added a
pendant state law claim in Count II alleging wrongful termination in
violation of Pennsylvania public policy.
The complaint reveals that the Plaintiff commenced his employment as a
part-time police officer in the Township in September, 1996. Id. at
¶ 9. In August, 1998, while Plaintiff was investigating a retail
theft, Detective Stanley Szczupski was called upon, in accordance with
police protocol, to process evidence believed to have been used in the
crime. Id. at ¶ 10. Following the investigation, a suspect named
Patrick Colleran was arrested and charged in connection with the crime.
Id. The Colleran case was tried in the Luzerne County Court of Common
Pleas on February 29, 2000. Id. at ¶ 11. Despite the fact that all
police officers involved in the matter received subpoenas to testify,
Detective Szczupski did not appear, however, the Commonwealth was
successful in obtaining a conviction. Id.
On March 18, 2000, Plaintiff sent an internal memorandum to Defendant
Brozowski expressing his dissatisfaction with the manner in which
Szczupski handled the case. Specifically, he questioned Szczupski's
inability to "pull" fingerprints at the scene and, additionally, his
failure to appear to testify, which Plaintiff asserted potentially
jeopardized a successful prosecution of the case.*fn2 Thereafter on
March 21, 2000, Smith sent a letter to Plaintiff requesting that he
resign his part-time
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
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)).
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, ...