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 action.
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
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 his resignation.
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
to those offered to former workers at the Bethlehem Steel plant.
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 at-will
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 are
"material". Moreover, all reasonable inferences from the record are drawn
in favor of the non-movant. Anderson, supra.
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. Pa. 1995).
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
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, supra.
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 analysis".
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 McDonnell Douglas.
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
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 Corporationm,
No. Civ.A. 02-1349, 2003 U.S. Dist. LEXIS 12202 at *7 (E.D. Pa. June 25,
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.,
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 the 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
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
create an inference of age discrimination. Simpson,
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); Bernard,
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 Complaint.
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 calls.
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 provides:
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 an 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
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
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
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 him.
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
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 at 281.
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
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 Mutton'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 following
reasons, 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,
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
In Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891,
97 L.Ed.2d 315 (1987) the United States Supreme Court stated:
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
"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 Amendment
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
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
NOW, this 1st day of March, 2004, upon consideration of Defendants,
City of Bethlehem and Dana B. Grubb's Motion for Summary Judgment filed
August 15, 2003; upon consideration of Plaintiff's Memorandum of Law in
Opposition to Defendants' Motion for Summary Judgment filed September 18,
2003; upon consideration of the briefs of the parties; upon consideration
of the pleadings, exhibits, depositions and record papers; and for the
reasons expressed in the accompanying Opinion,
IT IS ORDERED that defendant's motion for summary judgment is
granted in part and denied in part.
IT IS FURTHER ORDERED that defendants' motion for summary
judgment is granted concerning Counts I, II and III of plaintiff's
IT IS FURTHER ORDERED that Counts I, II and III are dismissed
from plaintiff's Amended Complaint filed May 24, 2002.
IT IS FURTHER ORDERED that in all other respects defendants'
motion for summary judgment is denied.