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Shankle v. Bell

September 27, 2006

OMAR C. SHANKLE AND BILLIE SHANKLE, PLAINTIFFS,
v.
SUSAN U. BELL, DONALD T. CARNAHAN, ROBERT L. PODVOREC AND MANDY PODVOREC, DEFENDANTS.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

Before the Court for consideration and disposition is a MOTION FOR SUMMARY JUDGMENT BY BELL, CARNAHAN AND ROBERT PODVOREC, with brief in support (Document Nos. 36, 38), Plaintiffs' BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT (Document No. 41) and a STATEMENT OF FACTS NOT IN DISPUTE and PLAINTIFFS' COUNTER-STATEMENT OF UNDISPUTED MATERIAL FACTS NOT IN DISPUTE (Document Nos. 37, 42) and supporting exhibits. The motion will be granted in part and denied in part.

Background

Plaintiff Omar Shankle is a Trooper with the Pennsylvania State Police. His wife, Billie Shankle, is also a plaintiff. On April 3, 2004, troopers in the Kittanning Patrol Unit held a party to celebrate Shankle's transfer to the Vice Unit. The party was held in an upstairs room of a local restaurant and the entertainment consisted of two exotic dancers. One of the activities at the party was a "whipped cream race," in which Shankle and others licked whipped cream off the naked torso of one of the dancers. Various persons, including girlfriends of officers attending the party, were downstairs at the restaurant during the party. At one point between acts, Omar Shankle had invited Donna Hafer, one of the girlfriends present at the restaurant, upstairs. Hafer attempted to enter the party at least one other time. The next day, Hafer called Defendant Mandy Podvorec and described certain events at the party. Mandy Podvorec relayed this information to her husband, Defendant Robert Podvorec, who was a corporal with the Pennsylvania State Police. Robert Podvorec works in the same barracks as Omar Shankle, but did not attend the party. Robert Podvorec was told that at the party, there had been oral sex between troopers and the exotic dancers, and that money had been exchanged.*fn1 Based on the information he received, Robert Podvorec believed that a serious violation of the field regulations, and perhaps a crime, had occurred. Podvorec reported the information to his station commander, Lieutenant DeBovi, who in turn reported the information to Defendant Susan Bell, who was a captain in charge of the Kittanning Barracks of the Pennsylvania State Police. In May 2004, Shankle received a letter reassigning him to patrol duty and informing him that he would not be joining the Vice Unit.*fn2

Captain Bell explained that this decision was within her managerial discretion and was based on her conclusion that Shankle's demeanor and interpersonal interactions made him unfit for the Vice Unit.

An internal investigation was initiated. Defendant Donald T. Carnahan served as the internal affairs department investigator. Plaintiff has agreed to withdraw all claims against Carnahan and to release him from this lawsuit. Billie Shankle was deeply upset about the investigation of her husband and wrote an anonymous letter to Commissioner Jeffrey Miller of the Pennsylvania State Police, complaining about supervisors and seeking an outside investigation.*fn3 Billie Shankle does not work for the Pennsylvania State Police, did not attend the party and has no first-hand knowledge of any statements made by Robert Podvorec. During the investigation, Omar Shankle revealed that his wife had written the anonymous letter. Omar Shankle received a Disciplinary Action Report for conduct unbecoming an officer and disloyalty to the department. Employment punishment is the job of the department disciplinary officer, Captain Titler, who suspended Shankle for three days.

Standard of Review

Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, the Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Distilled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.

Discussion

For purposes of this motion, there appear to be three claims at issue.*fn4 Omar and Billie Shankle both assert a defamation claim against Robert Podvorec. Omar Shankle asserts a Section 1983 claim against Bell alleging that his First Amendment rights were violated when he was punished for attending the party. Billie Shankle asserts a distinct Section 1983 First Amendment claim, alleging retaliation for the letter she sent to Commissioner Miller. Defendants have generally raised numerous defenses, including the Eleventh Amendment, sovereign immunity, qualified immunity*fn5 and standing, in addition to contesting the substantive merit of Omar Shankle's First Amendment claim. The Court will address each claim seriatim.

1. Defamation Claim v. Robert Podvorec

To state a claim for defamation, a plaintiff must establish: (1) the defamatory character of the communication, (2) its publication by the defendant, (3) its application to the plaintiff, (4) the understanding by the recipient of its defamatory meaning, (5) the understanding by the recipient of it as intended to be applied to the plaintiff, (6) special harm resulting to the plaintiff from its publication, and (7) abuse of a conditionally privileged occasion. 42 Pa.C.S.A. § 8343(a); Moore v. Cobb-Nettleton, 889 A.2d 1262, 1267 (Pa. Super. 2005). A "conditional privilege" arises when a recognized interest of the public is involved. Id. at 1268. A communication made upon a proper occasion, from a proper motive, in a proper manner, and based on reasonable cause is privileged. Id. Defendant must demonstrate the privileged nature of a report but plaintiff must demonstrate that the privilege was abused. Id.

In Moore, the Court granted a social worker's motion for summary judgment. The social worker had authored a report to a foster home investigating charges of improper contact by the father of a retarded woman. The foster home forwarded the report to the state government, which then opened an investigation. The Court concluded that the report was privileged, noted that a recognized public interest was involved and granted summary judgment on the defamation claim.

The record in this case is similar. Robert Podvorec learned from a source that he considered to be trustworthy that fellow troopers had engaged in questionable conduct. Podvorec related this information to his superior officer. There is no evidence that Robert Podvorec contacted anyone else, including the press. There is no admissible evidence from which a reasonable fact-finder could conclude that Robert Podvorec was animated by an improper motive.*fn6 As a police officer, he became aware of allegations that Shankle and others had engaged in conduct unbecoming to officers and/or criminal behavior which he reported to his superior officer. This is the well within the boundaries of the conditional privilege. As in Moore, there is a recognized public interest in having police officers report possibly criminal behavior, particularly when that conduct involves other law ...


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