The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
This case arises out of a dispute over whether Defendants' decision to rescind Plaintiff's appointment to the Pennsylvania State Police Academy ("the Academy") violated Plaintiff's First, Fourth, and Fourteenth Amendment rights.
Plaintiff contends that Defendants' automatic disqualification policy, with respect to conduct qualifying as criminal violated Plaintiff's privacy rights by forcing him to reveal personal information as a condition of employment. Plaintiff also maintains that Defendants' decision to rescind Plaintiff's appointment, based on his admission of such conduct, constituted unlawful retaliation against protected expression, and deprived Plaintiff of his procedural due process rights because Defendants failed to provide notice or a hearing. Defendants assert that summary judgment against Plaintiff is proper because: 1) Plaintiff's privacy interests are outweighed by the state's legitimate interests in selecting candidates qualified to serve as state troopers; 2) the relevant conduct fails to constitute protected expressive association; 3) the Fourth Amendment is inapplicable to the instant dispute; and 4) Plaintiff fails to establish a sufficient property or liberty interest to support a due process claim. In addition, Defendants assert that they are entitled to qualified immunity.*fn1
The issues before the court are whether there are any genuine issues of material fact and if not, whether judgment for Defendants is proper as a matter of law. Defendants' summary judgment motion (Doc. 63) is unopposed so there are no issues of material fact; in addition, the state's interests associated with identifying suitable candidates for employment outweigh Plaintiff's privacy interest here, and Plaintiff fails to establish expressive association protected by the First Amendment, a protected property or liberty interest protected by the Fourteenth Amendment, or a basis for a Fourth Amendment violation. Therefore, the court will grant Defendants' motion for summary judgment.
Plaintiff Charles Dyche is a former applicant to the Academy. Defendants are Jeffery Miller, Commissioner of the Pennsylvania State Police ("PSP"), Barbara Christie, Chief Counsel for the PSP, and Linda Bonney, the PSP's Director of Human Resources. Defendants filed a summary judgment motion on September 6, 2006. On September 22, 2006, Plaintiff filed a Rule 56(f) motion (Doc. 69) for an enlargement of time to respond to the summary judgment motion in order to conduct additional discovery, which the court granted (see Doc. 70). The court granted thirty additional days for discovery, until October 25, 2006. The court also ordered Plaintiff to file his response to Defendants' summary judgment motion within fifteen days after that extended discovery deadline, which made November 9, 2006, the deadline for Plaintiff's response. Plaintiff failed to file a brief in response to Defendants' summary judgment motion. Accordingly, the court deems the summary judgment motion unopposed pursuant to Local Rule 7.6.
Although Defendants' summary judgment motion is unopposed, the court will conduct a merits analysis. See Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991). However, the court will accept Defendants' statement of material facts (Doc. 65) as undisputed. See Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (reasoning that "in the context of a motion for summary judgment, a [local rule comparable to Local Rule 7.6] can and should be construed as effecting a waiver of the opponent's right to controvert the facts asserted by the moving party in the motion for summary judgment or the supporting material accompanying it."). Thus, the undisputed facts are as follows.
Plaintiff applied to become a PSP trooper on May 21, 2003, when he was thirty-one years old. In the criminal activity section of the application, Plaintiff stated that when he was nineteen years old, he had engaged in oral sexual relations with a fifteen-year-old girl. Prior to participating in a pre-employment polygraph, Plaintiff again noted the sexual encounter in the polygraph screening booklet. In the booklet, Plaintiff checked the box next to "Yes" in response to the statement "Any sexual contact with a person less than 16 years of age when you were four plus years older than the person" and stated that when he was nineteen, a fifteen-year-old girl performed oral sex on him. Plaintiff also submitted an application addendum, again noting the sexual encounter and providing essentially the same description.
On the Admissions page of Plaintiff's Applicant Polygraph Screening Report, Trooper Martin Knezovich, Plaintiff's polygraph examiner, noted that Plaintiff had admitted to having sexual relations with a fifteen-year-old when he was nineteen, and flagged the conduct as an "automatic disqualifier." A Polygraph Review Panel reviewed Plaintiff's polygraph results. Although the proper procedure would have been to disqualify Plaintiff because of his admission to committing Felony-1 level criminal conduct, the Polygraph Review Panel instead referred Plaintiff for a background investigation, noting that the exact age differential needed to be determined by the background investigator, because Plaintiff had only stated ages, but had not provided years of birth in his descriptions of the sexual encounter.
Trooper Brackney, who conducted the background investigation, noted the sexual encounter, the birth date of the girl involved, and Plaintiff's age, but not his date of birth. Plaintiff's Background Investigation Report and other application materials, including the polygraph documents, were then sent to a Background Review Panel. For some unknown reason, the Background Review Panel failed to note the automatic disqualifier and approved Plaintiff as a cadet. Defendants acknowledge that this was a mistake in light of established PSP policy.
At the time Plaintiff applied to the PSP, the hiring standard in place with respect to criminal behavior provided for automatic disqualification of any cadet applicant who had been convicted of, or admitted to behavior that would constitute, a Misdemeanor-2 or higher graded offense. Although Plaintiff was not charged or convicted, under Pennsylvania law, the sexual experience admitted to by Plaintiff was conduct that would constitute a Felony-1 offense. See 18 Pa. Const. Stat. Ann. § 3123(a)(7) (The definition of the offense of involuntary deviate sexual intercourse states that "[a] person commits a felony of the first degree when a person engages in deviate sexual intercourse with a complainant . . . who is less than sixteen years of age and the person is four or more years older than complainant and the complainant and person are not married to each other."). In a letter dated March 1, 2004, sent to Ms. Bonney after the PSP rescinded Plaintiff's appointment, Plaintiff admitted that he knew about the policy when he applied to the PSP; he stated that he had been aware that the sexual encounter constituted Felony-1 conduct, and that it was a ground for automatic disqualification.
Plaintiff began his training as a PSP cadet on November 2, 2003. Several weeks later, Ms. Bonney received an anonymous letter regarding Plaintiff that referenced "charges brought against him years ago for indecent assault involving a juvenile." Ms. Bonney subsequently reviewed Plaintiff's application documents and realized that his appointment had been in error and contrary to PSP policy. Ms. Bonney then notified her supervisor, Lieutenant Colonel Cynthia Transue. Ms. Bonney subsequently attended a meeting in January 2004 where she, Lt. Col. Transue, Ms. Christie, and others, discussed Plaintiff's situation. No individual who had admitted to behavior that constitutes an automatic disqualifier had ever been accepted into the Academy. Therefore, Ms. Bonney recommended that the PSP rescind Plaintiff's appointment. She recommended rescinding the appointment, rather than dismissing Plaintiff, because a dismissal could imply that Plaintiff had lied during the application process, which was not the case.
Following the meeting, Lt. Col. Transue met with Commissioner Miller and recommended that the PSP rescind Plaintiff's appointment. Commissioner Miller, who was the ultimate authority with respect to dismissals of PSP employees, then decided to rescind Plaintiff's appointment. Lt. Col. Transue subsequently directed Ms. Bonney to draft the letter to Plaintiff rescinding his appointment. Ms. Bonney complied with ...