The opinion of the court was delivered by: Cercone, D.J.
Plaintiff commenced this civil rights action pursuant to 42 U.S.C. § 1983 seeking redress for the alleged violation of his constitutional rights during the events leading to his termination from employment with defendant. Presently before the court is defendant's motion for summary judgment. For the reasons set forth below, the motion will be granted.
Federal Rule of Civil Procedure 56 (c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "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 the movant is entitled to judgment as a matter of law." Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant's initial burden may be met by demonstrating the lack of record evidence to support the opponent's claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
In meeting its burden of proof, the "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The non-moving party "must present affirmative evidence in order to defeat a properly supported motion" and cannot "simply reassert factually unsupported allegations." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent "merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs." Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party's evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to "turn a blind eye" to the weight of the evidence).
The record as read in the light most favorable to plaintiff establishes the background set forth below. Plaintiff became employed by defendant Westmoreland County on May 13, 1988, as a unionized employee. On March 25, 1994, plaintiff was promoted to the position of Assistant Chief for Park Police for Westmoreland County. As assistant chief plaintiff held an executive position and did not enjoy the benefits of civil service. Plaintiff did not have an employment contract with Westmoreland County. Plaintiff held the position of Assistant Chief for Park Police until his employment was terminated on June 28, 2001.
In the spring of 2003 Officer Mark Ford, a park police officer, accidentally discharged his weapon in a county building. Ford had been at the shooting range just prior to the incident. Sargent Paola was the firearms instructor and responsible for assuring that all officers checked their weapons before leaving the firing range. On the day in question, Ford was sitting at a picnic table in the county building with several other officers while cleaning his firearm. During the process Ford pointed his handgun at the floor and pulled the trigger. The weapon discharged. Plaintiff was on duty at the time and requested statements from everyone who was present.
After the incident a meeting was held to determine what action should be taken. Present at the meeting were Chief Genard, Chuck Dominick, and two aids for county commissioners Tom Balya and Scott Conner. Inquiry was made as to what discipline should be taken with regard to Officer Ford. All individuals at the meeting with the exception of plaintiff recommended Officer Ford be terminated. Plaintiff recommended that Officer Ford be suspended and that the firearms instructor, Sergeant Paola, also be appropriately disciplined. Rob Ritson, aid to Commissioner Balya, said to plaintiff in effect: "well, your opinion doesn't count right now." Plaintiff did not pursue the matter further. A few weeks later Officer Ford was fired.
As Assistant Chief of Park Police plaintiff did not possess the authority to hire or terminate any individual's employment with the county. The assistant chief and the Chief of Park Police can recommend that an individual/employee be hired, terminated or promoted, but the ultimate decision rests with the County Commissioners. After the meeting concerning what discipline should be meted out to Officer Ford, plaintiff was not pressured, directed or requested to take any action with regard to Officer Ford. Officer Ford grieved his discharge and ultimately was re-instated as a result of union efforts undertaken on his behalf.
On May 23, 2001, Officer Altman accused plaintiff of placing sixteen gallons of gasoline from the County's gasoline pump into his own private vehicle. On June 6, 2001, plaintiff was suspended pending further investigation into the allegations. Directly thereafter, the Greensburg Tribune-Review published an article identifying plaintiff as being suspended due to allegations that he had taken County gasoline for his own personal use. On June 15, 2003, plaintiff met with Park Police Chief Genard and Westmoreland County Director of Human Resources, Chuck Dominick, with regard to the allegations. Plaintiff completed a statement denying that he had taken any gasoline for personal use. Thereafter, a second meeting was held among the same individuals. Plaintiff was asked to take a lie detector test, which he declined to do. On July 3, 2001, plaintiff received a letter advising him that his employment had been terminated effective June 28, 2001. During the investigation additional articles appeared in the Tribune Review concerning the employment actions being taken against plaintiff.
Plaintiff has no actual information or knowledge about who from Westmoreland County provided information to the Tribune Review or any other media source regarding his employment status. Plaintiff believes, however, that the information may have been leaked by Officer Ford, because he has engaged in similar conduct in the past.
Plaintiff maintains that defendant's actions surrounding his termination violated his rights to free speech, substantiative due process, procedural due process, equal protection and privacy. Defendant contends plaintiff has failed to advance sufficient evidence to support any cause of action pled by plaintiff.
Section 1983 does not itself create substantive rights, but instead provides a vehicle for vindicating a violation of federal rights. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). In general a cause of action under 42 U.S.C. § 1983 has two elements: (1) a plaintiff must prove a violation of a right, privilege or immunity secured by the constitution and laws of the United States which was (2) committed by a person acting under color of state law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1077 (3d Cir. 1997).
Plaintiff contends that his termination was in retaliation for exercising his First Amendment rights. He argues that his recommendation regarding Officer Ford constituted protected speech and a genuine issue of material fact exists as to whether that protected speech was a determinative factor in the decision to terminate plaintiff's employment. Plaintiff further notes that defendant has never established that plaintiff actually engaged in improper conduct and posits that the assertion that he did constitutes a mere pretext for the real reason for his termination - his recommendation regarding Officer Ford.
A claim of retaliation for engaging in First Amendment activity is analyzed under a three-step process. Green v. Philadelphia Housing Authority, 105 F.3d 882, 885 (3d Cir. 1997) (collecting cases). First, the activity in question must be constitutionally protected. Second, the plaintiff must show that the protected activity was a substantial or motivating factor in retaliatory employment action. Finally, a defendant may defeat a First Amendment retaliation claim by demonstrating "that the same action would have been taken even in the absence of the protected conduct." Id. (quoting Swineford v. Snyder County PA., 15 F.3d 1258, 1270 (3d Cir. 1994)).
To qualify as protected activity, plaintiff must demonstrate that he engaged in "speech ... on a matter of public concern." Watters v. City of Philadelphia, 55 F.3d 886, 892 (3d Cir. 1995). "A public employee's speech involves a matter of public concern if it can 'be fairly considered as relating to any matter of political, social, or other concern to the community.'" Green, 105 F.3d at 885-86 (quoting Connick v. Myers, 461 U.S. 138 (1983). The determination turns on the content, form, and context of the employee's speech. Id. The ...