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MYERS v. WILKES-BARRE TWP.

February 25, 2002

PHILLIP J. MYERS, PLAINTIFF, VS. WILKES-BARRE TWP., CHIEF ROBERT BROZOWSKI, CARL KUREN, AND RONALD SMITH DEFENDANTS.


The opinion of the court was delivered by: William Nealon, United States District Judge.

  MEMORANDUM AND ORDER

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.

Background

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 public concern.

Discussion

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 Pennsylvania law.

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 the 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, ...


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