United States District Court, E.D. Pennsylvania
Mar 1 2004
DAVID LLOYD, Plaintiff
CITY OF BETHLEHEM and DANA B. GRUBB, Defendants
The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
This matter is before the court on Defendants, City of Bethlehem
and Dana B. Grubb's Motion for Summary Judgment filed August 15, 2003.
Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for
Summary Judgment was filed September 18, 2003. For the reasons expressed
below, we grant in part and deny in part defendants' motion for summary
On February 19, 2002 plaintiff David Lloyd filed a Complaint. On
April 29, 2002 defendants City of Bethlehem ("City") and Dana Grubb
("Grubb") filed a motion to dismiss. Subsequently, on May 24, 2002
plaintiff filed an Amended Complaint asserting five causes of
Count I of plaintiff's Amended Complaint asserts a federal cause
of action pursuant to the Age Discrimination in Employment Act of 1967
("ADEA").*fn1 Count II asserts a pendent state law cause of action
pursuant to the Pennsylvania Whistleblower Law.*fn2 Count III asserts a
state law cause of action for breach of implied contract. Count IV
asserts a federal cause of action for retaliation pursuant to 42 U.S.C.
___ 1983 by virtue of an alleged violation of the First Amendment to the
United States Constitution as the underlying basis of a Section 1983
claim. Finally, in Count V plaintiff brings a cause of action based upon
Sections 955 and 962 of the Pennsylvania Human Relations Act.*fn3
On June 7, 2002 defendants filed a motion to dismiss plaintiff's
Amended Complaint. By Memorandum and Order dated October 16, 2002 our
colleague Senior United States District Judge Herbert J. Hutton*fn4
denied defendants' motion to dismiss.*fn5
Based upon the pleadings, record papers, depositions, affidavits
and exhibits, the pertinent facts are as follows.
Plaintiff David B. Lloyd began working for the City of Bethlehem
in 1972 as an ambulance driver. Subsequently, he worked his way up
through the ranks. At the time of his forced resignation on August 22,
2001 plaintiff worked as the Director of Emergency Medical Services
("EMS") for the City. Plaintiff was replaced as EMS Director by Gordon
Smith, a man nearly two years, nine months younger than plaintiff.
In September 2000 plaintiff attended a meeting with City
administrators including defendant Grubb, Deputy Director
of Community Development; Tony Hanna, Director of Community
Development; and Jean Zweifel, Director of Human Resources, concerning
personnel complaints in the EMS about plaintiff. What took place at this
meeting is in dispute.
Plaintiff contends that the meeting was informal and that he was
told to be less intense with his personnel, but he was not given any
specific direction or given any specific task. Defendants contend that
the meeting was the first step in a policy of a progressive discipline
utilized by the City.
In December 2000 plaintiff met again with the same administrators.
Defendants contend that a number of additional complaints were brought to
plaintiff's attention at this meeting. Plaintiff contends that it was
another informal meeting and that he was not specifically disciplined or
advised what was required of him to improve relations with his
subordinates. Plaintiff characterized the two meetings as "strange and
In October, 1999 plaintiff was interviewed for a newspaper article
under the headline "Bethlehem EMS has a medical emergency". The article
was published on October 19, 1999 in the Bethlehem edition of the Express
Times. In that article, plaintiff was quoted as stating that Bethlehem's
EMS was inadequately equipped and understaffed. Moreover,
plaintiff reportedly said that he was only able to handle 90%
of the calls and EMS was missing 500 calls a year. In the article,
plaintiff questioned how a police or fire commissioner would feel if he
could not respond to that many calls.
In July 2001 plaintiff was again interviewed by the press. In an
article under the headline "Ambulance corps hanging on for dear life",
published July 14, 2001 in The Morning Call, an Allentown newspaper.
Plaintiff was quoted as stating that the EMS division was approaching a
crisis because it was losing people as a result of low pay and high work
demands. Plaintiff also reportedly said that it may get much worse before
it gets better.
Plaintiff was interviewed for The Morning Call article after he
reported the same information during a meeting of the Bethlehem Board of
Health. Plaintiff contends that defendants retaliated against him after
the second article in violation of his First Amendment rights by forcing
Plaintiff asserts that comments made by former Mayor Donald
Cunningham evidence a bias against older people. At a speaking engagement
at a Jaycee's convention, Mayor Cunningham (a man in his 30's) allegedly
commented on how good it was to
be interacting with people his own age. (Plaintiff is a man in
his late 40's.) Plaintiff, who attended the Jaycee's convention as a
presenter, further alleges that Mayor Cunningham commented on the
benefits of having a younger workforce.
Plaintiff contends that prior to his termination, he inquired
about a local newspaper article which indicated that the City was
considering offering an early retirement package to its employees.
Specifically, plaintiff asserts that one of the proposed options was that
eligible employees who by the combination of years of service plus their
age attained 75 (Rule of 75) were going to be offered early retirement
packages similar to those offered to former workers at the Bethlehem
Plaintiff asserts that his 29 years of service plus his age,
qualified him for early retirement under the proposed plan. He contends
that he spoke to Tony Hanna about the early retirement option. Plaintiff
avers that Mr. Hanna told him, "Dave, no one under 50 will be offered any
retirement package", or words to that effect. Plaintiff further asserts
that in October 2001, after his termination, the City offered a Rule of
75 package to its employees, including those under 50 years of age.
Plaintiff maintains that this is evidence of
age bias against him.
Finally, plaintiff asserts that the City has a Personnel Manual
which includes a progressive discipline policy. Plaintiff contends that
he was not provided with progressive discipline. He argues that the
Personnel Manual is an implied contract between the City and its
employees, notwithstanding the doctrine of at-will-employment in
Pennsylvania. Defendant contends its Personnel Manual is only advisory
and is not an implied contract which supplanted plaintiff's status as an
Standard of Review
In considering a motion for summary judgment, the court must
determine whether "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Federal Home Loan
Mortgage Corporation v. Scottsdale Insurance Company,
316 F.3d 431, 433 (3d Cir. 2003). Only facts that may affect the outcome of a case
"material". Moreover, all reasonable inferences from the
record are drawn in favor of the non-movant. Anderson,
Although the movant has the initial burden of demonstrating the
absence of genuine issues of material fact, the non-movant must then
establish the existence of each element on which it bears the burden of
proof. See Watson v. Eastman Kodak Company,
235 F.3d 851, 857-858 (3d Cir. 2000). A plaintiff cannot avert
summary judgment with speculation or by resting on the allegations in his
pleadings, but rather must present competent evidence from which a jury
could reasonably find in his favor. Ridgewood Board of
Education v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir.
1999); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D.
Age Discrimination Claim
An ADEA case is traditionally analyzed under the 3-step, burden
shifting test established by the United States Supreme Court in
McDonnell Douglas Corporation v. Green, 411 U.S. 792,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Fakete v. Aetna, Inc.,
308 F.3d 335 (3d Cir. 2002). Under McDonnell Douglas
and its progeny a plaintiff must initially establish a prima facie
case of discrimination. Upon a prima facie showing, the burden shifts to
the employer to produce a legitimate, non-discriminatory reason for the
adverse employment action. After defendant has met its burden of
production, the burden shifts back to plaintiff to demonstrate that
defendant's articulated reason was not the actual reason, but rather a
pretext for discrimination. Simpson v. Kay Jewelers,
142 F.3d 639, 644 (3d Cir. 1998).
To establish a prima facie case in an ADEA matter a plaintiff must
show that he: (1) is a member of the protected class (i.e. he is at least
40 years of age); (2) is qualified for the position; (3) suffered an
adverse employment decision; and (4) in the case of demotion or
discharge, was replaced by a sufficiently younger person to create an
inference of age discrimination. Simpson,
Plaintiff claims, in the alternative, that he may maintain a claim
of discrimination under the ADEA if he demonstrates by a preponderance of
the evidence that age was considered and impacted upon the employer's
decision making. This type of claim requires a "mixed-motives
On June 9, 2003, by unanimous decision in Desert
Palace, Inc. v. Costa, 539 U.S. ___, 123 S.Ct. 2148,
156 L.Ed.2d 84 (2003), the United States Supreme Court eliminated the
requirement of direct evidence of discrimination in order for a plaintiff
to proceed on a mixed-motives theory. Prior to Desert
Palace a plaintiff could only proceed under a mixed-motives
analysis if he provided direct evidence of discrimination.
See Price Waterhouse v. Hopkins, 490 U.S. 228,
109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring). As a
result of the change in the law enunciated in Desert
Palace, district courts around the country have wrestled with
how to apply the decision within the existing framework of
The burden-shifting analysis articulated in McDonnell
Douglas provided courts with a systematic way to analyze the
entire spectrum of discrimination claims (gender, race, age, disability,
and so forth). To the contrary, prior to Desert Palace
the analysis of a mixed-motive claim was far
more ambiguous. For example, courts have found that the
mixed-motive standard is overall more generous to plaintiff than the
pretext analysis. However, there is a heightened evidentiary burden at
the onset of a mixed-motive case, as compared with the
McDonnell Douglas prima-facie analysis.
See Overall v. Dunham, No. Civ.A. 02-1628,
2003 U.S. Dist. LEXIS 23892 at *17 (E.D. Pa. Dec.19, 2003);
Campetti v. Career Education Corporation, No. Civ.A.
02-1349, 2003 U.S. Dist. LEXIS 12202 at *7 (E.D. Pa. June 25, 2003).
Specifically, employees were previously required to offer stronger
evidence in a mixed-motive theory than that which was needed to establish
the first prong of a McDonnell Douglas
analysis. See Weston-Smith v. Cooley Dickinson
Hospital, Inc., 282 F.3d 60, 64 (1st Cir. 2002). In the past,
to warrant a mixed-motive analysis at the summary judgment stage, a
plaintiff was required to "to produce a `smoking gun' or at least a
`thick cloud of smoke' to support his allegations of discriminatory
treatment." Raskin v. The Wyatt Company,
125 F.3d 55, 60-61 (2d Cir. 1997). Thus, the pre- Desert Palace
mixed-motive analysis at the summary judgment stage was an inexact
Since the Supreme Court's decision in Desert
Palace, two lines of decision have emerged. In
Dare v. Wal-Mart Stores, Inc.,
Stores, Inc., 267 F. Supp.2d 987 (D. Minn. 2003), United
States District Court Judge Paul A. Magnuson predicted the demise of
the McDonnell Douglas burden-shifting analysis and
advocated a "same decision test" in place of McDonnell
Douglas. The same decision test requires plaintiff to
demonstrate that an impermissible consideration was a motivating factor
in the employer's adverse employment decision. Thereafter, defendant must
assert as an affirmative defense that it would have taken the adverse
employment action absent the impermissible consideration.
Alternatively, in Dunbar v. Pepsi-Cola General Bottlers
of Iowa, 285 F. Supp.2d 1180 (N.D. Iowa 2003), Chief United
States District Court Judge Mark W. Bennett advocates modifying
McDonnell Douglas in light of Desert
Palace. In Dunbar the court split the
third element of the burden-shifting analysis to accommodate both pretext
and mixed-motive cases. In a pretext case, step three requires plaintiff
to prove by a preponderance of the evidence that defendant's articulated
reason is not true but is instead a pretext for discrimination. In a
mixed-motive case, step three requires that defendant's reason for the
adverse employment action, while true, is only one of the reasons for its
conduct, and that another motivating factor is plaintiff's protected
characteristic. 285 F. Supp.2d at 1198.
If plaintiff prevails in a mixed-motive analysis, but defendant is
able to prove that it would have taken the same action in the absence of
the of the2 impermissible motivating factor, then plaintiff's remedies
are limited to injunctive relief, attorneys' fees and costs. Otherwise,
plaintiff will be able to receive monetary damages as well.
Id. For the following reasons, we adopt the test set
forth in Dunbar.
On December 2, 2003 the United States Supreme Court issued its
unanimous*fn6 decision in Raytheon Company v. Hernandez,
___ U.S. ___, 124 S.Ct 513, 157 L.Ed.2d 357 (2003). In that case
the Supreme Court applied the McDonnell Douglas
framework to a post- Desert Palace case, and
indeed, did not mention Desert Palace in its
Opinion. Thus, contrary to the district court's determination in
Dare, we conclude that McDonnell Douglas
is still valid precedent. Moreover, we find persuasive the
comprehensive analysis and reasoning of the district court in
Dunbar. Thus, we apply the modified McDonnell
Douglas test enunciated in Dunbar to the
facts of the within matter.
Application to the Facts
The ADEA makes it unlawful for an employer to discharge, or
otherwise discriminate against, an individual with regard to compensation
and other terms and conditions of employment on the basis of age.
29 U.S.C. ___ 623(a)(1). The ADEA protects persons forty years or older.
29 U.S.C. ___ 631.
As noted above, initially plaintiff must establish a prima facie
case of discrimination by showing that he; (1) is a member of the
protected class (i.e. is at least 40 years of age); (2) is qualified for
the position; (3) suffered an adverse employment decision; and (4) in the
case of demotion or discharge, was replaced by a sufficiently younger
person to create an inference of age discrimination.
Plaintiff was 47 years old at the time of his termination. Thus,
he satisfies the first factor. Moreover, defendant does not dispute that
plaintiff's qualifications. Hence, he satisfies the second factor. Next,
plaintiff suffered an adverse employment action because he was forced to
resign. Therefore, plaintiff satisfies the third factor. However, for the
following reasons, we conclude plaintiff fails to satisfy the fourth
prong of the prima facie test.
Plaintiff concedes that he was replaced by Gordon Smith, a
44-year-old man who was approximately two years and
nine months younger than plaintiff. Plaintiff contends that
this age gap is enough to satisfy his burden of showing that he was
replaced by a sufficiently younger person to create an inference of age
discrimination. In support of his contention, plaintiff relies on the
decision in Nembhard v. Memorial Sloan-Kettering Cancer
Center, 918 F. Supp. 784 (S.D.N.Y. 1996), aff'd
104 F.3d 353 (2d Cir. 1996).
On the other hand, defendants contend that it is generally
accepted as a matter of law that a six or seven year difference is not
significant at any position or age. Bernard v. Beth Energy
Mines, Inc., 837 F. Supp. 714, 717 (W.D. Pa. 1993),
aff'd 31 F.3d 1170 (3d Cir. 1994). For the following
reasons we agree with defendants.
The caselaw in this Circuit consistently holds that an age gap of
less than five years is, as a matter of law, insufficient to establish
fourth element of the prima facie test. Reap v. Continental
Casualty Company, No. Civ.A. 99-1239, 2002 U.S. Dist LEXIS
13845 (D. N.J. June 28, 2002); Martin v. Healthcare Business
Resources, No. Civ.A. 00-3244, 2002 U.S. Dist. LEXIS 5117 (E.D.
Pa. Mar.26, 2002); Gutkrecht v. SmithKline Beecham Clinical
Labs, 950 F. Supp. 667, 672 (E.D. Pa. 1996);
Based upon the caselaw on point in this district and
Circuit, we conclude, as a matter of law, that two years and
nine months is not a sufficient age difference for plaintiff to satisfy
his burden of demonstrating that he was replaced by a sufficiently
younger person to create an inference of age discrimination.
Accordingly, because we conclude that plaintiff fails to establish
a prima facie case under McDonnell Douglas, we grant
defendant's motion for summary judgment on Count I of plaintiff's Amended
Violation of the Pennsylvania Whistleblower Law
In Count II of plaintiff's Amended Complaint he seeks recovery
under the Pennsylvania Whistleblower Law.*fn7 Specifically, plaintiff
contends that the request for his resignation on August 22, 2001 was in
retaliation for his good faith report of the improper administration of
the City's EMS services. More specifically, plaintiff asserts that he was
asked to resign because of the two instances in which he spoke
to the press. In one of the instances (the July 14, 2001
article) plaintiff contends he spoke to the press after making a good
faith report to the Board of Health about the EMS department's failure to
comply with the Health Bureau's written standards, in particular, those
which require certain levels of rapid response to all emergency
Defendants contend that plaintiff does not qualify under the
Whistleblower Law because plaintiff is not an employee as defined under
the law. Moreover, defendants contend that because plaintiff did not
produce any evidence of either waste or wrongdoing, he cannot prove his
cause of action. For the following reasons, we agree with defendant in
part, disagree in part and grant defendants' motion for summary judgment
on Count II of plaintiff's Amended Complaint.
Section 1423(a) of the Pennsylvania Whistleblower Law*fn8
No employer may discharge, threaten or
otherwise discriminate or retaliate against an
employee regarding the employee's compensation,
terms, conditions, location or privileges of
employment because the employee or a person acting
on behalf of the employee makes a good faith
report or is about to report, verbally or in
writing, to the employer or appropriate authority
instance of wrongdoing or waste.
43 P.S. ___ 1423(a). The definitions of "employee", "waste"
and "wrongdoing" contained in Section 1422*fn9 are pertinent to this
Employee is defined as: "A person who performs a service for wages
or other renumeration under a contract of hire, written or oral, express
or implied, for a public body." 43 P.S. ___ 1422.
Waste is defined as: "An employer's conduct or omissions which
result in substantial abuse, misuse, destruction or loss of funds or
resources belonging to or derived from Commonwealth or political
subdivision sources." 43 P.S. ___ 1422.
Wrongdoing is defined as: "A violation which is not of a merely
technical or minimal nature of a Federal or State statute or regulation,
of a political subdivision ordinance or regulation or of a code of
conduct or ethics designed to protect the interest of the public or the
employer. 43 P.S. ___ 1422.
Initially, defendants contend that under the definition of
employee stated above, plaintiff does not come under the definition
because he has no contract with the City of Bethlehem. For the following
reasons, we disagree.
It is firmly established that Pennsylvania is an at-will
employment jurisdiction. McLaughlin v. Gastrointestinal
Specialists, Inc., 561 Pa. 307, 750 A.2d 283 (2000). Defendant
contends that plaintiff does not fall under the definition of an
employee. However, defendant's position belies the employer/employee
relationship in the at-will employment context; specifically, that there
is an implied employment contract upon the terms that the employer may
discharge the employee at any time with or without cause, and the
employee may leave his employment at any time.
Thus, there is an implied contract between the parties in this
case. To hold otherwise would abrogate the language of Pennsylvania
Whistleblower Law as it relates to almost any employee of any state,
county, city, township or subdivision of an agency in this Commonwealth.
Accordingly, we conclude that plaintiff is an employee for purposes of
the Whistleblower Law.
In his Amended Complaint, plaintiff contends that he was
terminated for making a good faith report to the Board of
Health. However, in his response to defendants' motion for
summary judgment, plaintiff fails to cite any specific provision of a
"Federal or State statute or regulation, of a political subdivision
ordinance or regulation or of a code of conduct or ethics designed to
protect the interest of the public or the employer" 43 P.S. ___ 1422,
about which he allegedly reported in good faith. Moreover, plaintiff has
not identified any "employer's conduct or omissions which result in
substantial abuse, misuse, destruction or loss of funds or resources
belonging to or derived from Commonwealth or political subdivision
sources", 43 P.S. ___ 1422, about which he reported.
In applying the standard of review for summary judgment to the
record facts of this case, plaintiff cannot avert summary judgment with
speculation or by resting on the allegations in his pleadings, but rather
must present competent evidence from which a jury could reasonably find
in his favor. Ridgewood, supra. By
failing to present any competent evidence, (i.e. a specific Board of
Health regulation he asserts was violated or any argument in his brief on
the issue of waste) plaintiff merely rests on the allegations of the
pleadings, which is impermissible.
Accordingly, because plaintiff failed to produce
evidence to support his claims of alleged waste and
wrongdoing, we grant defendants' motion for summary judgment on Count II
of plaintiff's Amended Complaint.
Plaintiff's Claim of Breach of an Implied
Count III of plaintiff's Amended Complaint asserts a state law
cause of action for breach of an implied contract. Specifically,
plaintiff contends that the City issued a Personnel Manual which creates
an implied contract that abrogates the at-will employment doctrine in
Pennsylvania. Plaintiff asserts that the Personnel Manual provides for
progressive discipline which he was not afforded in this matter.
Plaintiff further contends that the Personnel Manual does not
contain a disclaimer indicating that it is not to be construed as a
contract of employment. Plaintiff asserts that Pennsylvania law is clear
that the provisions of a personnel manual or employee handbook can
constitute a unilateral offer of employment which the employee accepts by
continuing to perform his duties. Plaintiff further asserts that as
Director of EMS he was required to provide progressive discipline to his
subordinates and that he assumed that the same protections applied to
In support of his contentions, plaintiff relies on
the decision of the Superior Court of Pennsylvania in
Bauer v. Pottsville Area Emergency Medical Services, Inc.,
758 A.2d 1265 (Pa. Super. 2000). In addition, plaintiff avers that
this issue was previously decided by Judge Hutton in his October 16, 2002
Memorandum and Order and is the law of the case. Moreover, plaintiff
contends that this exact Personnel Manual was reviewed by our colleague
United States District Judge Petrese Tucker in the case of
Donchez v. City of Bethlehem, No. Civ.A. 02-8460 (E.D.
Pa. May 15, 2003) and that Judge Tucker ruled that the personnel manual
could be construed as creating an implied contract of employment.
Initially, the City contends that as a political subdivision, it
is not empowered to create an implied contract that supplants the at-will
employment doctrine in Pennsylvania. In addition, if the court determines
that the City is empowered to create such an implied contract, it has not
specifically abrogated the at-will doctrine in any provision contained in
its Personnel Manual. For the following reasons, we agree with defendant
City of Bethlehem.
As a general rule, municipal employees in Pennsylvania are at-will
employees. Stumpp v. Stroudsburg Municipal Authority,
540 Pa. 391, 658 A.2d 333 (1995). Therefore, municipal employees
accept employment subject to
the possibility of summary removal by the municipal employer
for any reason or no reason at all. Ballas v. City of
Reading, No. Civ.A. 00-2943, 2001 U.S. Dist. LEXIS 657 (E.D.
Pa. Jan. 25, 2001); Scott v. Philadelphia Parking
Authority, 402 Pa. 151, 166 A.2d 278 (1961).
The City does not have the power to enter into contracts, express
or implied, written or oral, which contract away the right of summary
dismissal absent express enabling legislation. Stumpp,
supra; Scott, supra. "Tenure in
public employment, in the sense of having a claim to employment which
precludes dismissal on a summary basis is, where it exists, a matter of
legislative grace." Scott, 402 Pa. at 154, 166 A.2d
Plaintiff contends that we should follow the decision of the
Superior Court of Pennsylvania in Bauer which held
that a employee handbook could be enforceable against an employer if a
reasonable person in the employee's position would interpret the
provisions as evidence that the employer would supplant the at-will
employment doctrine. For the following reasons, we find
Bauer inapplicable to this case.
Initially, we note that Bauer did not deal
with a municipal employer. Thus, the Superior Court was not presented
with the question here: can the City as a municipal
employer abrogate the employment at-will doctrine absent
specific enabling legislation? We conclude it cannot.
If the Pennsylvania Supreme Court has not addressed a precise issue, a
prediction must be made taking into consideration "relevant state
precedents, analogous decisions, considered dicta, scholarly works, and
any other reliable data tending convincingly to show how the highest
court in the state would decide the issue at hand." Nationwide
Mutual Insurance Company v. Buffetta, 230 F.3d 634, 637 (3d. Cir.
2000) (citation omitted). "The opinions of intermediate state courts are
`not to be disregarded by a federal court unless it is convinced by other
persuasive data that the highest court in the state would decide
otherwise.'" 230 F.3d at 637 citing West v. American
Telephone and Telegraph Co., 311 U.S. 223, 61 S.Ct. 179,
85 L.Ed. 139 (1940).
In this case, neither party cites any decision authored by the Supreme
Court of Pennsylvania. The Superior Court's Bauer decision is
not directly on point with regard to the factual circumstances here (a
municipal employer versus a private employer). Therefore, we conclude
that the Bauer decision is not controlling.
The City can choose to employ its progressive discipline policy or not
with regard to at-will employees.
The Personnel Manual does not create any rights for at-will
employees, because absent enabling legislation, the City has no authority
to bind itself. Where a municipality contracts for tenured employment in
the absence of enabling legislation, the contract is invalid and
unenforceable. Scott, supra.
Based upon well-settled precedent of the Supreme Court of Pennsylvania
we determine that the City's policy of progressive discipline, as it
relates to at-will employees*fn10 is nothing more than advisory and
predict that the Supreme Court of Pennsylvania would similarly find.
Finally, because the summary judgment stage of a proceeding is a
different stage of the proceeding than a motion to dismiss, we find
unpersuasive plaintiff's contention that Judge Hutton's October 16,
2002 Memorandum and Order is the law of the case. At summary
judgment, the court must do more than just address whether plaintiff has
set forth a set of facts consistent with the allegations from which he
could obtain relief. Rather, plaintiff must come forward with evidence
that presents material issues of fact from which a jury could conclude
that plaintiff is entitled to relief.
Because we conclude defendant is not empowered to enter into the
implied contract that plaintiff asserts exists, defendant could not have
breached that contract. We note that this issue was not specifically
addressed by Judge Hutton because defendant did not raise the issue at
the motion to dismiss stage of the proceeding. That did not preclude
defendant from raising the issue at the summary judgment stage.
Moreover, Judge Tucker's decision in Donchez was also
decided on a motion to dismiss. There is no indication that the City
raised the issue of capacity to create an implied contract in that case.
Thus, we conclude that Donchez is not instructive on the issue
presently before the court.
Accordingly, we grant summary judgment in favor of defendants on Count
III of plaintiff's Complaint.
Plaintiff's Claim of First Amendment Retaliation
In his October 16, 2002 Memorandum and Opinion Judge Hutton determined
that Count IV of plaintiff's Amended Complaint set forth a claim for
First Amendment retaliation, through the Fourteenth Amendment, pursuant
to 42 U.S.C. ___ 1983. However, at the summary judgment stage, plaintiff
must establish the existence of each element on which he bears the
burden of proof. Watson, supra. For the
we conclude that there are material issues of fact which
preclude the grant of summary judgment on Count IV.
In assessing plaintiff's claim for retaliation we must apply a
three-step, burden shifting analysis. Baldassare v. New
Jersey, 250 F.3d 188, 194 (3d Cir. 2001). Initially, plaintiff
must show that he engaged in conduct or speech which is protected by the
First Amendment. Watters v. City of Philadelphia,
55 F.3d 886, 892 (3d Cir. 1995). Next, "plaintiff must show that defendant
responded with retaliation, and that the protected activity was a
substantial or motivating factor in the alleged retalitory action."
Ballas, 2001 U.S. Dist. LEXIS 657 at *21. Finally,
defendant may defeat plaintiff's claim by demonstrating by a
preponderance of the evidence that it would have taken the same action
even in the absence of the protected conduct. Watters,
55 F.3d at 892.
Reviewing plaintiff's claim, we note that defendant's only
contention is that there is a lack of causation because plaintiff's
discussions with newspaper reporters and the subsequent request for his
resignation on August 22, 2001 are not sufficiently close in time to
suggest a causal connection between plaintiff's statements to the press
and the request for his resignation. For the following
reasons, we disagree with defendants and deny their motion for
summary judgment on Count IV of plaintiff's Amended Complaint.
Initially, we agree that the statements made by plaintiff in 1999
are too far removed. However, the comments made by plaintiff on July 14,
2001 are close enough to his resignation to warrant scrutiny.
Plaintiff contends that after the initial newspaper article in
October 1999, he was directed not to comment to the press. After the July
2001 comments he was advised that the City administration, including
Mayor Cunningham, was very upset about his comments to the press. Indeed,
defendant Grubb authored a letter to Mayor Cunningham two days after the
July 14, 2001 newspaper article explaining that the situation at EMS was
not as dire as reported in the newspaper.*fn11
A review of the Exhibits I and K attached in support of
defendants' motion indicate that soon after plaintiff spoke to the press
on each occasion, the City, through either defendant Grubb or Director of
Human Resources Jean A. Zweifel, began soliciting comments on plaintiff's
performance from the people in his department. Specifically, on November
9, 1999, Jean Zweifel sent out an evaluation form to the full-time
personnel of the EMS division seeking comment on the
policies, procedures and operations of the EMS
In addition, it appears that after the July 14, 2002 article,
defendant Grubb began soliciting comments from EMS personnel regarding
plaintiff.*fn13 The reasonable inference in favor of plaintiff
is that defendants were attempting to fabricate a reason to terminate him
as a pretext to retaliate for his comments to the press.
We conclude that, there is evidence, taken in the light most
favorable to plaintiff, a reasonable jury could conclude from Exhibits I
and K that the request for plaintiff's resignation was in retaliation for
his speaking to the press. Because it appears that defendant engaged in a
course of conduct that was quite similar in both instances, we conclude
that evidence of the October 1999 incident is relevant to the City's
conduct in the July 2001 incident, despite the passage of nearly two
years between those incidents.
Accordingly, we deny defendants' motion for summary judgment on
Count IV of plaintiffs' Amended Complaint.
Qualified Immunity of Dana Grubb
In Harlow v. Fitzgerald, 457 U.S. 800,
102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) the United States Supreme Court
observed that governmental officials performing discretionary functions
are generally shielded from liability from civil damages where their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.
The court must consider two questions as a matter of law: (1)
taken in the light most favorable to plaintiff, do the facts show that
defendant Grubb's conduct violated a known constitutional right of
plaintiff?; and (2) was the right clearly established meaning
were the contours of the right "sufficiently clear that a reasonable
official would understand that what he was doing violates that
right." Saucier v. Katz, 533 U.S. 194, 201-202,
121 S.Ct. 2151, 2156, 150 L.Ed.2d 272, 281-282 (2001).
In this case, plaintiff contends that defendant Grubb played a
significant role in the request for his resignation. Specifically, Grubb
collected the alleged evidence that was used as the basis for plaintiff's
forced resignation. In addition, Mr. Grubb was at the meeting where
plaintiff's resignation was requested. Finally, plaintiff
contends that the request for his resignation was in
retaliation for his comments to the press.
In Rankin v. McPherson, 483 U.S. 378,
107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) the United States Supreme Court
It is clearly established that a State may
not discharge an employee on a basis that
infringes that employee's constitutionally
protected interest in freedom of speech.
. . .
The determination whether a public employer
has properly discharged an employee for engaging
in speech requires "a balance between the
interests of the [employee], as a citizen, in
commenting upon matters of public concern and
interest of the State, as an employer, in
promoting the efficiency of the public services
it performs through its employees."
. . .
"Whether an employee's speech addresses a
matter of public concern must be determined by the
content, form, and context of a given statement,
as revealed by the whole record."
483 U.S. at 384-385, 107 S.Ct. at 2896-2897, 97 L.Ed.2d at
324-326. (Internal citations omitted). Thus, for the following reasons,
we conclude that plaintiff's comments to the press constitute a matter of
public concern and that the right was sufficiently clear that defendant
Grubb should have understood that retaliating against plaintiff by
requesting his resignation would violate plaintiff's First
Plaintiff's comments about the situation at EMS clearly involve
matters of public concern. The response time and ability of an EMS to be
properly staffed to respond to emergencies are the type of information
which raises awareness of potential threats to the public health and
safety of the community at large. Charvat v. Eastern Ohio
Regional Wastewater Authority, 246 F.3d 607, 617-618 (6th Cir.
2001). The citizens of the City of Bethlehem rely on the services
provided by the EMS every day. The employees of the EMS constantly deal
with life-and-death situations. Thus, we conclude plaintiff's comments to
the press raise a matter of public concern, and Dana Grubb's alleged role
in requesting plaintiff's resignation in retaliation for those comments
violated plaintiff's First Amendment constitutional rights.
In addition, the matters involved in Rankin
are not new or novel legal principles. The Supreme Court's decision
in Rankin is over 15 years old. Thus, we conclude
that this is an issue that is well-settled and sufficiently clear such
that defendant Grubb should have known, as an upper level administrator
in City government, that he was not permitted to violate plaintiff's
protected First Amendment right to speak publically about alleged
problems in the EMS department by
retaliation in the form of requesting his resignation or
terminating him for that speech. We conclude that viewing the evidence in
the light most favorable to plaintiff, a reasonable jury could conclude
that is what happened in this case.
Accordingly, defendant Dana Grubb is not entitled to qualified
immunity in this case.
For all the foregoing reasons, we grant in part and deny in part
Defendants, City of Bethlehem and Dana B. Grubb's Motion for Summary