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Novak v. City of Pittsburgh

November 27, 2006


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Pending before the Court for consideration and disposition are Defendant's MOTION FOR SUMMARY JUDGMENT (Document No. 34) and Plaintiffs' MOTION FOR PARTIAL SUMMARY JUDGMENT (Document No. 36). After a thorough review of the parties' briefs, the appendices attached thereto, the record evidence and relevant legal authorities, the Court concludes that the Defendant's Motion for Summary Judgment will be GRANTED and the Plaintiffs' Motion for Partial Summary Judgment will be DENIED.


The Plaintiffs are Daniel Novak, a police officer employed by the City of Pittsburgh, and L&N Security, Inc. ("L&N"), a corporation which Novak formed to engage in the business of scheduling police officers' secondary employment. Specifically, L&N focuses on staffing, scheduling and administering off-duty officers who work traffic obstruction details. Other police officers have developed similar side businesses which focus on scheduling secondary employment of off-duty officers at sporting events, concerts, nightclubs, and other events. L&N received a ten percent commission on such work.

Pittsburgh police officers are authorized to supplement their income by engaging in secondary employment. For many years, such secondary employment was regulated by Police Bureau Order No. 29-1. On April 6, 2004, then Chief of Police Robert W. McNeilly, Jr. issued a new policy governing secondary employment through Chief's Order No. 05-004 (the "Order"). The new regulation states, in relevant part:

Effective immediately, permit requests coming to the Chief's Office for approval must be sent to the Special Events and Permits Office located at Police Headquarters in room 154. Personnel assigned to that office will review the request and insure compliance prior to approval. The permit requests included, but are not limited to: Special Event Permits, Traffic Obstruction Permits, Block Party Permits. Any special requirements listed in the permit will be addressed and handled by the Special Events and Permits Office, such as: Hiring off-duty police officers, Invoicing for officers hired, Providing "No Parking" signs.

The Order "prohibits officers from working [traffic obstruction jobs] unless they go through the Office of Special Events." The City receives a ten percent fee on such work and received approximately $65,000 from roughly May through November 2005. McNeilly Deposition at 91.


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.


Plaintiffs allege that Chief's Order No. 05-004 is unconstitutional in that it violates their right to Equal Protection and their right to Due Process. Specifically, Plaintiffs contend that the City has established an irrational system of regulation under which certain officers have retained their "side businesses" of arranging secondary employment, while Plaintiffs' business has been effectively usurped by the City. Plaintiffs acknowledge that "the City may regulate secondary employment in an even-handed manner or ban it entirely." Plaintiffs' Brief in Support of Partial Summary Judgment at 1. Plaintiffs have not produced any evidence of improper motive or discriminatory animus on the part of the Defendant, but rather, argue the disparate impact of the Order.*fn1

Equal Protection Claim

The Equal Protection Clause of the Fourteenth Amendment of the United States Constitution provides: "No State shall AAA deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV, § 1. The Equal Protection Clause announces the "fundamental principle" that "the State must govern impartially," New York City Transit Auth. v. Beazer, 440 U.S. 568, 587 (1979), and "is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Alleged violations of the Equal Protection Clause are subjected to strict scrutiny if such violations involve a fundamental right or are based on a suspect classification. Otherwise, the decision at issue is accorded a "rational basis review," in which the Plaintiffs must undertake the heavy burden to establish that the action was not rationally related to any legitimate government purpose. Leheny v. City of Pittsburgh, 183 F.3d 220, 226 (3d Cir. 1999). As no fundamental right or suspect class is involved in the instant case, the Court will apply a "rational basis" review.*fn2

In essence, Plaintiffs complain that the City's policy has usurped their business while leaving the side businesses of similarly situated officers in place and unaffected. For example, Chief's Order No. 05-004 does not affect the scheduling or administration of secondary employment at Steelers or Pirates games. The elements of a "selective enforcement" equal protection claim are: (1) the person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of a constitutional right, or by a malicious intent to injure. Homan v. City of ...

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