The opinion of the court was delivered by: Yvette Kane United States District Judge
Before the Court is Defendants' Motion For Summary Judgment. (Doc. No. 30.) The motion has been fully briefed and is ripe for disposition. For the reasons discussed below, the motion will be granted.
Plaintiff Thomas Day brings this action under 42 U.S.C. § 1983 alleging that the Borough of Carlisle ("Carlisle") terminated his employment from the Carlisle Police Department ("Police Department") because of his participation in union activities, in violation of his right to free speech and freedom of association under the First Amendment, and his right to procedural and substantive due process under the Fourteenth Amendment. (Doc. No. 1.) Plaintiff also asserts a pendent state law claim for defamation. (Doc. Nos. 1, 6.) Plaintiff brings these claims against the Borough of Carlisle, Carlisle Mayor Kirk Wilson, Carlisle Borough Manager Fred Bean, Chief of Police Stephen Margeson, Lt. Barry Walters, and Sgt. Douglas Pfahl, in both their official and individual capacities. (Id.)
In late 2002, Plaintiff, a Corporal in the Police Department, was elected as a union steward for the Carlisle Police Association ("the Union"), and appointed Union Treasurer in January 2003. In connection with his duties as a Union Seward, Plaintiff participated in contract negotiations with Carlisle and met with Carlisle Borough Manager Fred Bean. Plaintiff alleges that he was terminated because he spoke out about misconduct by fellow Carlisle officers that was not properly investigated by the Borough. In August 2002, Lt. Walters's son, Matt Walters, was stopped for a traffic violation by Officer Brewbaker. Upon recognizing the name, the trooper radioed Sgt. Dzenzinski for further instructions. Sergeant Dzenzinski telephoned Lt. Walters and asked if Matt Walters should be issued a citation. Plaintiff alleges that Lt. Walters directed Officer Brewbaker to forego a citation and to send Matt home. (Pl. Ex. B.) Sergeant Dzenzinski advised Officer Brewbaker to give Matt a warning, but later, deleted Matt Walter's name from the traffic stop entry. (Id.)
Plaintiff alleges that in a separate incident occurring in December 2002, Sgt. Guido drove his motor vehicle through several individuals' yards following a private party. Plaintiff asserts that Sgt. Guido appeared drunk in public and authorized the use of police equipment at the party. Plaintiff further alleges that on an unspecified date, Det. Smith trapped a woman in her apartment and threatened her with his firearm. Plaintiff alleges that Det. Smith failed to report to a scene of a burglary and then falsified police records to indicate that he was on the scene. In each case, Plaintiff claims that he reported the incidents to his superiors, but the Police Department failed to properly investigate. (Doc. No. 36 at 17.) Defendants contend that each incident has been fully investigated and, if found true, has been addressed. (Doc. No. 32, ¶¶ 81-85.)
In early February of 2003, Plaintiff had an argument with Sgt. Guido in the communications room of the Police Department. (Doc. No. 36 at 10.) As characterized by Plaintiff, the argument began when Plaintiff told Sgt. Guido that "making the detectives accountable would be difficult because of the close friendship between Lt. Barry Walters and some of the detectives." (Id.) Sergeant Guido responded that detectives who refused to obey orders given to them by either Plaintiff or himself could face discipline. (Id.) Plaintiff "became frustrated" by this statement and responded in a loud voice, "Who the hell are you trying to kid, I tell you that [Det. Smith] put a gun to Jill's head and no one is doing a thing about it and you expect us to keep the other detectives in line. . . . [Y]ou know the things I reported to you about [Det. Smith], the gun ordeal, his padding his hours and money missing from the evidence locker." (Id.) Officer John Haggerty and a civilian dispatcher were present during the argument.*fn2
Sergeant Guido immediately stopped the conversation and called Plaintiff into his office. Sergeant Guido admonished Plaintiff to refrain from making allegations of misconduct in the presence of subordinate officers. Sergeant Guido advised that he would discuss Plaintiff's concerns with the Chief Margeson, and thereafter, Sgt. Guido met with Chief Margeson to address the allegations. Subsequently, Plaintiff was instructed to submit a report outlining the allegations that he raised in the communications room. In response to Plaintiff's report, Chief Margeson directed Lt. Pfahl to investigate the allegations against Det. Smith. (Doc. No. 32, ¶ 28.) Lieutenant Pfahl determined that the allegations that Det. Smith pointed a gun at the head of a woman were false. (Def. Ex. G; Pl. Ex. A at 211-212.) Further, Lt. Walters reported that the allegations raised regarding Det. Smith stealing from the evidence locker had previously been investigated and found to be false. (Def. Ex. I.)
On March 28, 2003, Chief Margeson advised Plaintiff that he was under investigation for possible misconduct resulting from the allegations he made in the police communications room. By letter dated April 24, 2003, Chief Margeson advised Plaintiff that the investigation found that Plaintiff had engaged in misconduct. Specifically, Chief Margeson determined that Plaintiff had violated the chain of command by making criminal and misconduct allegations against Det. Smith, and accusing the Chief of Police and Lt. Walters of complicity in Det. Smith's actions, to subordinate officers. (Def. Ex. J.) Chief Margeson recommended to Mayor Wilson that Plaintiff be demoted and receive a three day suspension without pay. (Id.) Chief Margeson further advised Plaintiff that repetition of this behavior would result in dismissal. (Id.)
On April 27, 2003, Plaintiff attended a union meeting wherein he requested financial support from the members to defend against the pending demotion. After the meeting, several union members approached Plaintiff and indicated that they could not support him unless he told them why he was facing disciplinary action. (Pl. Ex. H at 57-61.) Plaintiff told the officers about Det. Smith's alleged altering of police logs, Sgt. Guido's alleged public drunkenness, and the deletion of Matthew Walters's name from police records. (Doc. No. 36 at 16.) Plaintiff further stated that he reported each of these incidents to his superiors but the allegations had not been properly investigated and/or were covered up by his superiors. (Def. Ex. K at 141, 144; Doc. No. 36 at 17.)
One of the officers who talked with Plaintiff after the union meeting reported Plaintiff's second allegations to Lt. Walters, who in turn reported the statements to Chief Margeson. (Def. Ex. K at 145-146.) On March 5, 2003, Chief Margeson advised Plaintiff that he was being investigated for further possible misconduct based on the allegations made after the union meeting. By letter dated May 6, 2003, Chief Margeson notified Plaintiff that the investigations had determined that Plaintiff engaged in Conduct Unbecoming an Officer and Disobedience of Orders by ignoring orders and repeating allegations of misconduct to junior officers. (Def. Ex. L.) As a result of these findings, Chief Margeson recommended to Mayor Wilson that Plaintiff be dismissed from the Police Department. (Id.) The Police Chief and the Mayor met with the Borough Council regarding Plaintiff's alleged conduct and on May 9, 2003, the Carlisle Borough Council officially terminated Plaintiff's employment. (Def. Ex. M.)
Subsequently, Plaintiff timely appealed his termination to the Civil Service Commission ("Commission"). (Def. Ex. N.) Joseph Rudolf, Esq., was hired to advise the Commission on procedure. The Commission heard testimony and accepted evidence into the record during six-days of hearings. Despite Plaintiff's objections, the Commission conducted the hearing during executive sessions, which are closed to the public. On March 1, 2004, the Commission issued an order upholding Plaintiff's termination. (Def. Ex. P.)
On March 29, 2004, Plaintiff appealed the Commission's ruling to the Court of Common Pleas of Cumberland County, Pennsylvania. (Def. Ex. T.) In his appeal, Plaintiff alleged that his termination violated his constitutional right to due process, freedom of speech, and freedom of association. (Id.) By Order dated February 11, 2005, the Court of Common Pleas found that the Commission did not violate Plaintiff's constitutional rights and that his termination was supported by substantial evidence. (Def. Ex. U.) On March 14, 2005, Plaintiff filed an appeal to the Commonwealth Court of Pennsylvania. (Def. Ex. X.) Plaintiff's appeal remains pending.
Plaintiff filed a complaint in this Court on May 4, 2004. (Doc. No. 1.) On August 9, 2004, Defendants moved to dismiss the Amended Complaint. (Doc. No. 10.) By Order dated December 16, 2004, the Court granted the motion regarding the defamation claim against the Borough of Carlisle, but denied the motion in all other respects. (Doc. No. 24.) Subsequently, Defendants filed the instant Motion for Summary Judgment. (Doc. No. 30.) Defendants also filed a Motion to Strike Plaintiff's Concise Statement of Facts for failure to comply with Local Rule 56.1 (Doc. No. 42) and three motions in limine (Doc. Nos. 46, 48 and 50).
In connection with Plaintiff's claim of defamation, on September 23, 2003, The Patriot-News reported on Plaintiff's allegations of misconduct by Carlisle officers. (Def. Ex. R.) The article quoting Mayor Wilson as stating that Plaintiff's allegations were "groundless". (Id.) On May 19, 2004, The Sentinel newspaper reported on Plaintiff's civil action in this Court and quoted Mayor Wilson as stating that Plaintiff was a "disgruntled former employee". (Def. Ex. Q.) Plaintiff claims that these statements and letters written by Chief Margeson "contained known false statements calculated to place [Plaintiff] in a false light and to encourage others to take actions against [Plaintiff]." (Doc. No. 1 ¶ 163.)
II. Summary Judgment Standard
Summary judgment is proper where "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 fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56; White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). A factual dispute is material if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 249. The evidence presented must be viewed in the light most favorable to the non-moving party. Id. "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Id. This standard does not change by virtue of cross-motions being presented. United States v. Hall, 730 F. Supp. 646, 648 (M.D. Pa. 1990).
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, the non-moving party may not simply sit back and rest on the allegations in the complaint. Instead, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The evidence must be viewed in the light most favorable to the non-movant. See Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322.
With respect to the sufficiency of the evidence that the nonmoving party must provide, a court should grant summary judgment where the non-movant's evidence is merely colorable, conclusory or speculative. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). There must be more than a scintilla of evidence supporting the nonmoving part and more than some metaphysical doubt as to the material facts. Id. at 252; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Plaintiff alleges that he was unlawfully terminated from employment due to statements he made about police misconduct and due to his union participation, in violation of the First Amendment's protection of expression and association, respectively. Plaintiff also asserts violations of his procedural and substantive due ...