The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge
Before the Court is Defendants Sat P. Bahl, Richard Bielat, and Christina Iacano's Motion for Judgment as a Matter of Law or, in the alternative, for a New Trial. (Dkt. Entry 164-1.) Plaintiff Michael DeLuzio filed a complaint alleging that Defendants violated his civil rights in connection with his employment, and termination thereof, at Monroe County Children and Youth Services ("C & Y"). Following a trial, the jury returned a verdict in favor of Mr. DeLuzio and against Defendant Bahl on Mr. DeLuzio's claim that Defendant Bahl recommended his discharge in retaliation for First Amendment protected activities.*fn1 The jury awarded Mr. DeLuzio back pay of $88,900, and also assessed punitive damages of $25,000. The jury also found that Defendants, individually and in conspiracy with each other, deprived Mr. DeLuzio of a meaningful opportunity to be heard prior to his termination in violation of his Fourteenth Amendment procedural due process rights. The jury assessed punitive damages against Defendant Bahl in the amount of $40,000; against Defendant Bielat in the amount of $10,000; and against Defendant Iacano in the amount of $25,000. Defendants challenge the verdicts with the instant post-trial motions. For the reasons that follow, Defendants' motion will be granted as to the claim that Defendants denied Mr. DeLuzio due process with respect to the pre-termination hearing he was afforded, and will be denied as to the claim that Mr. Bahl recommended that DeLuzio be fired in retaliation for Mr. DeLuzio's exercise of First Amendment-protected speech.
Mr. DeLuzio started working for C & Y in October 1992, and at the time of his termination he was a Caseworker II in the Family Preservation Unit, working with an assigned caseload of children and families at risk. Mr. DeLuzio worked at C & Y until February 18, 1999, when he was suspended without pay pending a disciplinary investigation. The investigation ultimately led to his termination.
Defendant Bahl has been employed by C & Y since 1975 and became Administrator of C & Y on July 15, 1996, a position he has held ever since. Defendant Iacano started working at C & Y in 1997 as a caseworker and became Mr. DeLuzio's supervisor on November 28, 1998. Defendant Bielat is the personnel director for Monroe County.
The evidence at trial showed that Mr. DeLuzio was not reluctant to challenge his supervisors on matters affecting the delivery of services to children and families in Monroe County. First, in November 1996, within months of the time that Defendant Bahl became the Administrator of C & Y, Mr. DeLuzio was present at a staff meeting when Defendant Bahl asked the employees to voice any concerns the staff had regarding C & Y. Mr. DeLuzio responded by stating that, "I believe your across-the-board budget cuts are placing kids at risk," or words to that effect. Second, in March 1997, Mr. DeLuzio spoke with Paul J. Seybold and sent two memoranda to Defendant Bahl raising concerns about the treatment strategy employed by Mr. Seybold with respect to a 14 year old girl who was allowed to see a 17 year old boy with whom she had a sexual relationship. (See Plaintiff's Exhibits ("PX") 15 & 16.) Mr. DeLuzio was concerned that the strategy would encourage the sexual relationship, thereby placing the girl at further risk. Finally, in May 1998, Mr. DeLuzio learned that a teenage boy identified as MP had been involved in an inappropriate sexual relationship with his drug and alcohol counselor. Mr. DeLuzio was the teen's caseworker at C & Y. In a memorandum dated May 14, 1998, Mr. DeLuzio requested that the drug and alcohol counselor be reported to the Pennsylvania Chemical Abuse Certification Board so that the counselor would not be in a position to continue her drug and alcohol counseling and putting other young people at risk. (See PX- 27.)
Mr. DeLuzio presented evidence that supported a rational inference that Defendant Bahl had been hostile towards him since Mr. DeLuzio's comments in November 1996 about the budget cuts. Eventually, this hostility culminated in two allegedly retaliatory actions. First, in October 1998, Mr. DeLuzio applied for a promotion from Caseworker II to Caseworker Manager. Mr. DeLuzio was denied the promotion in favor of Defendant Iacano, who had been at C & Y for a much shorter period of time than Mr. DeLuzio. Ms. Iacano then became Mr. DeLuzio's supervisor.
The second instance of alleged retaliation was Mr. DeLuzio's termination. In February of 1999, Defendant Iacano was reviewing employee case files, including Mr. DeLuzio's, when she was unable to locate certain required documentation. Mr. DeLuzio was suspended without pay on February 18, 1999, pending the outcome of a disciplinary investigation.
The investigation, conducted by Defendant Iacano, led to various charges of misconduct against Mr. DeLuzio, detailed in a seven-page letter dated March 26, 1999. (PX- 67.) In addition to having incomplete files, Mr. DeLuzio was alleged to have failed to return a date planner and laptop computer that were C & Y property until February 26, 1999; confronted a family who made an anonymous complaint against Mr. DeLuzio, thereby defeating the family's expectation of confidentiality; failed to respond to a page while on duty; failed to make regular home visits; bombarded C & Y and county officials with memoranda demanding action to the point of insubordination; accused Defendant Bahl of conspiring to get rid of him; and made derogatory sexist comments to female co-workers. (See PX- 67.)
Mr. DeLuzio received the written notice of the charges on March 26, 1999; met with Defendants on March 31, 1999; and was informed of his termination on April 7, 1999, although the termination was retroactive to the date of his suspension. Mr. DeLuzio eschewed a challenge to his termination via post-termination processes available to him under Pennsylvania law.
On July 7, 2000, Mr. DeLuzio commenced this action against Monroe County; C & Y; Paul J. Seybold; Robert Gress; and Defendants Bahl, Bielat, and Iacano. (See Dkt. Entry 1.) An amended complaint was filed on November 9, 2000. (See Dkt. Entry 12.) Mr. DeLuzio asserted various claims, including infringement of First, Fifth, and Fourteenth Amendment rights; conspiracy; violation of whistle-blowing laws; wrongful discharge; intentional interference with contractual and potential contractual relationships; sex discrimination; and discrimination on the basis of military background.*fn2 (Id.) As a result of various pretrial rulings, the claims presented at trial were limited to retaliation, procedural due process, and civil conspiracy.
As noted above, the jury returned a verdict in favor of Mr. DeLuzio and against Defendant Bahl on the claim that Defendant recommended his termination in retaliation for First Amendment protected activities, but against Mr. DeLuzio on the failure to promote retaliation claim. The jury awarded Mr. DeLuzio $88,900 in back pay and $25,000 in punitive damages. The jury also returned a verdict in favor of Mr. DeLuzio against all three Defendants on the procedural due process and civil conspiracy claims. The jury did not award compensatory damages on those claims, but did award Mr. DeLuzio punitive damages against Defendant Bahl in the amount of $40,000; against Defendant Bielat in the amount of $10,000; and against Defendant Iacano in the amount of $25,000.
Defendants timely moved for judgment as a matter of law or, in the alternative, for a new trial. The motion has been briefed and is ripe for disposition.
A. Motion for Judgment as a Matter of Law
A district court may grant a motion for judgment as a matter of law if, and only if, "viewing the evidence in the light most favorable to [the nonmoving party] and giving [it] the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury could reasonably find liability." Wittekamp v. Gulf & Western, Inc., 991 F.2d 1137, 1141 (3d Cir.), cert. denied, 510 U.S. 917 (1993). The court may not weigh the evidence or otherwise adjudge the credibility of the witnesses. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000); McDaniels v. Flick, 59 F.3d 446, 453 (3d Cir. 1995). Moreover, "although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe." Reeves, 530 U.S. at 151. "If the record contains even the 'minimum quantum of evidence upon which a jury might reasonably afford relief,' the verdict must be sustained." Shesko v. City of Coatesville, 324 F. Supp. 2d 643, 647 (E.D. Pa. 2004) (quoting Keith v. Truck Stops Corp. Of America, 909 F.2d 743, 745 (3d Cir. 1990)).
1. First Amendment Retaliation Claim
Defendant Bahl argues that he is entitled to judgment as a matter of law on Mr. DeLuzio's First Amendment retaliation claim on three grounds. First, Defendant Bahl contends that Mr. DeLuzio's statements did not constitute protected activity under the First Amendment because the statements did not relate to matters of public concern. (See Defendants' Motion for Judgment as a Matter of Law and/or a New Trial ("Defendants' Motion"), Dkt. Entry 164-1, ¶¶ 1-3; Memorandum of Law in Support of Defendants' Motion for Judgment as a Matter of Law and/or a New Trial ("Defendants' Memorandum"), Dkt. Entry 174-1, at 7-10.) Second, Defendant argues that his recommendation to terminate Mr. DeLuzio was not the product of a retaliatory motive. (Defendants' Motion, ¶¶ 4-5; Defendants' Memorandum, at 10-13.) Finally, Defendant argues Mr. DeLuzio would have been terminated regardless of his protected activity. (Defendants' Motion, ¶¶ 5-6; Defendants' Memorandum, at 14-17.)
The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech . . . ." U.S. CONST. amend. I. The First Amendment applies to the states, their political subdivisions, and agents thereof through the Fourteen Amendment. See Virginia v. Black, 538 U.S. 343, 358 (2003); Brown v. Armenti, 247 F.3d 69, 73 n.3 (3d Cir. 2001). The Supreme Court has repeatedly held that public employees do not forego First Amendment protections due to their public employment and, in certain instances, the First Amendment protects their right to speak as a citizen on matters of public concern. See, e.g., United States v. National Treasury Employees Union, 513 U.S. 454, 466 (1995); Rankin v. McPherson, 483 U.S. 378, 383-84 (1987); Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 568 (1968).
To successfully pursue a First Amendment retaliation claim, the plaintiff must prove that he engaged in an activity protected by the First Amendment and "that the protected activity was a substantial factor in the alleged retaliatory action." Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citing Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)). If the plaintiff establishes these two elements, the public employer may defeat liability by demonstrating it would have taken the same adverse employment action in the absence of the protected activity. Id. at 241 n.23 (citing Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977)). As Defendant Bahl challenges all three elements in his post-trial motion, each will be addressed in turn.
As a threshold matter, the statements of a plaintiff must be protected by the First Amendment. Whether a statement constitutes a protected activity is a question of law reserved for the Court. Hill, 455 F.3d at 241 (citing Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004)). A public employee's statement is protected when:
(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have "an adequate justification for treating the employee differently from any other member of the general public" as a result of the statement he made.
Hill, 455 F.3d at 241-42. Defendant Bahl complains only as to the second criterion -- whether the three instances of speech by Mr. DeLuzio, determined by the Court to be protected activity, involved matters of public concern. (See Defendants' Motion, Dkt. Entry 164-1, ¶¶ 1-3; Defendants' Memorandum, Dkt. Entry 174-1, at 7-10.)
Before resolving that issue, however, the Court must evaluate Mr. DeLuzio's speech in light of the Supreme Court's recent decision in Garcetti v. Ceballos,126 S.Ct. 1951 (2006). In Garcetti, the Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960. There, Ceballos was a "calendar" deputy district attorney who was contacted by a defense attorney regarding inaccuracies in an affidavit employed to obtain a search warrant. Id. at 1955. Ceballos investigated the affidavit and concluded the affidavit contained "serious misrepresentations." Id. He then confronted the affiant and, after failing to elicit a satisfactory explanation, reported his findings to his supervisors and prepared a memorandum in which he recommended the case be dismissed. Id. at 1955-56. Following a tense meeting among Ceballos, his supervisors, the affiant, and other law enforcement personnel, the district attorney's office decided to move forward with the prosecution. Id. at 1956. The defense attorney filed a motion challenging the warrant, and Ceballos was called to testify by the defense. Id. The trial court rejected the challenge. Id. Subsequent to these events, Ceballos alleged his employer retaliated against him for his memorandum by reassigning him to a trial deputy position, transferring him to another courthouse, and denying him a promotion. Id.
In concluding that Ceballos was not speaking as a citizen when he prepared and presented his memorandum to his supervisors, the Court found dispositive that Ceballos expressed his views pursuant to his official duties. Id. at 1959-60. "That consideration -- the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case -- distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline." Id. at 1960. The Court reasoned that limiting an employee's speech that arises only because of his employment responsibilities does not encroach freedoms he may enjoy as a citizen; such limitation merely "reflects the exercise of employer control over what the employer itself has commissioned or created." Id. Employers have an important interest in maintaining the accuracy and sound judgment of official communications, as well as ensuring that official speech advances the employer's objectives. Id. Certainly, speech outside of one's official duties may enjoy a measure of First Amendment protection because it is comparable to speech of citizens not affiliated with government employment. Id. at 1961; see also Pickering, 391 U.S. at 566 (letter from teacher to newspaper regarding funding of school district); McGreevy v. Stroup, 413 F.3d 359, 361-62 (3d Cir. 2005) (public school nurse advocating on behalf of two disabled children and speaking out against employing unlicensed professionals to spray pesticides on school grounds). "When a public employee speaks pursuant to employment responsibilities, however, these is no relevant analogue to speech by citizens who are not government employees." Garcetti, 126 S.Ct. at 1961. As such, because Ceballos wrote the memorandum in the course of his duties -- indeed, he was performing the work he was paid to perform -- the First Amendment did not protect him from managerial discipline in relation thereto.
The Court in Garcetti declined to formulate an analytical framework to be utilized in defining the scope of an employee's duties because the parties there did not dispute that Ceballos wrote the memorandum pursuant to his official duties. Id. However, lower federal courts have confronted this issue and those decisions are instructive. In Freitag v. Ayers, 463 F.3d 838, 842 (9th Cir. 2006), a former female correctional officer alleged she suffered retaliation in response to her speech after she reported and spoke out against a sexually hostile environment perpetrated by male prisoners. The former officer had reported the inmates' sexually hostile behavior to her supervisors using the prison's internal forms. Id. at 842-44. She also wrote two letters to a state senator and was interviewed by the Office of the Inspector General ("OIG"), who investigated the allegations in her letters. Id. at 844. The court concluded that plaintiff's letters to the state senator and her statements to the OIG were not pursuant to her official duties, reasoning that her official tasks did not include complaining to a state senator or OIG about the prison's failure to eliminate the sexually hostile environment. Id. at 854. She was fulfilling her responsibility as a citizen by exposing the wrongdoing.*fn3 Id.; see also Hailey v. City of Camden, Civ. No. 01-3967, 2006 WL 1875402, at *16 (D. N.J. July 5, 2006) (deputy fire chiefs were acting as citizens when they spoke out against safety concerns, overtime, and hiring decisions by attending city council meetings and talking with newspapers; no evidence that such conduct was part of their official duties).
In Price v. Macleish, Civ. A. Nos. 04-956(GMS) & 04-1207(GMS), 2006 WL 2346430, at *1 & 3 (D. Del. Aug.14, 2006), the plaintiffs were employed as Delaware State Troopers and assigned to an indoor shooting range used by the troopers. The troopers, concerned about the health risks posed by the ventilation system and the bullet trap, reported their concerns up the chain of command. Id. at *3. After the shooting range was formally closed, the plaintiffs provided statements to the state auditor in connection with an investigation. Id. at *4. The plaintiffs alleged the defendants retaliated against them following these events. Id. The court concluded that plaintiffs had acted pursuant to their official duties, rather than as citizens, and therefore were not entitled to First Amendment protection. "'The proper inquiry is a practical one,' and the court must look 'to the duties an employee actually is expected to perform.'" Id. at *6 (quoting Garcetti, 126 S.Ct. at 1961-62). Drawing upon Third Circuit political patronage cases involving the issue of whether an employee is a "policymaker," the court recognized the scope of an employee's official duties can be discerned by evaluating the expectations of the employer and supervisors, prior employees in the same position, and the employee himself. Id. (quoting Wetzel v. Tucker, 139 F.3d 380, 383-84 (3d Cir. 1998)). The evidence demonstrated that reporting the concerns regarding the indoor shooting range up the chain of command was within the scope of the plaintiffs' duties because the plaintiffs' supervisors praised the reporting in employment evaluations; former employees in the same positions spoke to their supervisors about the health concerns; and the plaintiffs themselves believed they had a responsibility to report the hazardous conditions up the chain of command. Id. at *6-8; see also Hill, 455 F.3d at 242 (affirming dismissal of plaintiff's First Amendment claim insofar as it was premised upon his reporting of employees' complaints to the borough council; plaintiff asserted he passed along the complaints to fulfill his responsibilities as borough manager). The statements to the state auditor were within the plaintiffs' duties as well because the plaintiffs were ordered to cooperate with the investigation. Price, 2006 WL 2346430, at *8. Since none of the plaintiffs' speech was protected by the First Amendment under Garcetti, judgment was entered for the defendants.
In reviewing the statements by Mr. DeLuzio against the backdrop of the post-Garcetti decisional law, it is evident he was speaking in his capacity as a citizen, rather than pursuant to his official duties as a caseworker for C & Y. In 1996, Defendant Bahl became administrator at C & Y. Mr. DeLuzio was concerned that Defendant Bahl's proposed budgetary cuts would harm the children who relied upon C & Y's services. At a meeting shortly after Defendant Bahl assumed his new role, Mr. Deluzio expressed his concerns to Defendant Bahl about the risks associated with the funding cutbacks. There was no evidence offered that Mr. DeLuzio spoke pursuant to his duties as a caseworker, or that he was hired to analyze the agency's budget. Instead, Mr. DeLuzio was fulfilling his responsibility as a citizen in exposing the risks to children created by funding reductions. See Freitag, 463 F.3d at 854. Furthermore, Mr. Deluzio's statements are analogous to a city resident's comments during a city council meeting. Accordingly, Mr. DeLuzio's communication was entitled to First Amendment protection.
Mr. DeLuzio expressed concerns in 1997 to Defendant Bahl about Paul Seybold's instructions to then-caseworker Defendant Iacano to coordinate a meeting between a fourteen year old female in C & Y custody and a seventeen year old male with whom she was having a sexual relationship. (See PX-s 15 & 16.) Mr. DeLuzio was concerned that this treatment strategy would expose the child to additional risks. Once again, there is no evidence that Mr. DeLuzio made these statements pursuant to his duties as a caseworker. Unlike the plaintiffs in Price, there is no indication that Mr. DeLuzio or his supervisors expected Mr. DeLuzio to report his concerns regarding other caseworkers or to monitor their cases. See also Wilcoxon v. Red Clay Consolidated School District Board of Education, 437 F. Supp. 2d 235, 243 (D. Del. 2006) ("Plaintiff's journal containing the absences of a fellow teacher was not written pursuant to his official duties as a teacher. He was not employed to monitor the absences of fellow teachers"). Mr. DeLuzio was responsible for his assigned cases, and he was not compensated to draft the memoranda he presented to Defendant Bahl. Compare Garcetti, 126 S.Ct. at 1960 (writing a memorandum recommending dismissal of a case ...