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Smith v. Borough of Dunmore

March 7, 2007


The opinion of the court was delivered by: A. Richard Caputo United States District Judge


Presently before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). (Doc. 31.) For the reasons set forth below, Defendants' motion for summary judgment will be granted in part and denied in part.

Since a federal question is before the Court pursuant to 42 U.S.C. § 1983, the Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. The Court also has supplemental jurisdiction over Plaintiff's tort claims pursuant to 28 U.S.C. § 1367(a).


Plaintiff Edward G. Smith was employed, at all times relative to this case, as a Captain with the Borough of Dunmore Fire Department. The Borough of Dunmore and Local Union No. 860 of the International Association of Fire Fighters, AFL-CIO (of which Plaintiff is a member), are subject to a Collective Bargaining Agreement ("CBA"). Smith has been a full-time firefighter with the Borough since January 1, 1988. (No. 05-1343, Doc. 33-2.)

Via letter of May 20, 2005, the Borough of Dunmore Council ("Borough Council") requested from the Borough Fire Chief, Vince Arnone, a memo outlining the necessary qualifications and certifications for full-time work in the Fire Department. This letter also requested that Chief Arnone provide documentation that each full-time (and active reserve) firefighter had met these qualifications and certifications. (No. 05-1343, Doc. 33-3.) In response, Chief Arnone provided to the Borough Council (at the attention of the Borough Manager, Joseph Loftus), via letter of May 23, 2005, a list of five certifications required of all full-time firefighters. These certifications included "Essentials of Firefighting (Pa. State Fire Academy or equivalent)" and "Emergency Medical Technician (after May 1st, 1988 hire)". (No. 05-1343, Doc. 33-4.) Along with this list of requisite certifications, Chief Arnone provided the Borough Council with copies of all of the full-time firefighters' personnel files. (Id.) On June 28, 2005, the Borough Council, by Mr. Loftus, sent a letter to Chief Arnone stating that after reviewing the training and qualification statements that Chief Arnone had provided, it was revealed that the Plaintiff had "not completed two weeks of training at the Fire Academy", and stated that Mr. Smith would be "suspended from the schedule, with pay" pending a Borough Council hearing scheduled for July 6, 2005, eight days later. (No. 05-1343, Doc. 25.)

On June 30, 2005, the Scranton Times-Tribune ran a story with the headline "Firefighters suspended for not completing required training." (No. 05-1342, Doc. 32-14.) The author of the article had secured a copy of the letter from Mr. Loftus to Chief Arnone, but how the writer obtained the letter is in dispute. On July 5, 2005, Plaintiff filed the present action. The following day, the Borough Council met and determined that Plaintiff did satisfy the certification requirements under the CBA because he was 'grand-fathered in' due to his hire date, and therefore reinstated him to the work schedule. Plaintiff's suspension lasted from June 28 to July 6, 2005, and did not result in any loss of pay or seniority. On July 7, 2005, the Scranton-Times ran another article under the heading "Dunmore firefighters reinstated". (No. 05-1342, Doc. 32-15.)

In his Complaint, Plaintiff alleges that after the filing of the initial action, he was speaking with Councilman-Defendant Talutto about his pending motion for early retirement, and Talutto told him that he would not vote in favor of him because Smith was suing him. (No. 05-1343, Doc. 23-1, Plaintiff's Amended Compl. ¶ 40.) It is of note, however, that in his deposition, Smith describes this exchange as having occurred with Councilman-Defendant Verrastro, not with Talutto. (Smith Dep. 42:9-11.)

On September 1, 2006, Plaintiff filed an amended complaint (hereinafter "Complaint"). (No. 05-1343, Doc. 23-1.) Defendants filed an answer on September 5, 2006. (No. 05-1343, Doc. 24.) On September 20, 2006, Defendants filed the present motion for summary judgment. (No. 05-1343, Doc. 31.)

This motion is fully briefed and ripe for disposition.


Summary judgment is appropriate 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 a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Liberty Lobby, 477 U.S. at 256-57.

The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249.


Plaintiff's Complaint (No. 05-1343, Doc. 23-1) brings suit under 42 U.S.C. § 1983 for alleged violations of his civil rights pursuant to the First, Fifth*fn1 and Fourteenth Amendments to the United States Constitution. Plaintiff's Count I alleges a violation of his constitutional rights due to his suspension from employment without being first provided with notice and an opportunity to be heard, thereby depriving him of a property interest without due process in violation of the Fourteenth Amendment. This Count also alleges a violation of Plaintiff's right to be free from injury to his reputation. Count V alleges a violation of Plaintiff's First Amendment right to free speech, and Count VI alleges a First Amendment violation in that some of the named Defendants allegedly retaliated against Plaintiff for filing the present lawsuit. The remainder of Plaintiff's counts are tort claims under state law. Count II alleges that Defendants invaded his privacy by intentionally making statements which placed Plaintiff before the public in a false light.

Count III alleges defamation against Defendants for publishing in a Council meeting publication, causing a story to later be published in a local newspaper, that Plaintiff had failed to complete required training and was therefore suspended from employment. Count IV alleges that Defendants' acts invaded his privacy by giving publicity to the private life of Plaintiff.

A. Plaintiff's Federal Claims under 42 U.S.C. § 1983

Plaintiff's Count I alleges that Defendants deprived him of a property interest without due process in violation of the Fifth Amendment, which is made applicable to the States by the Fourteenth Amendment. This Count also alleges a violation of Plaintiff's right to be free from injury to his reputation. Count V alleges that Defendants retaliated against Plaintiff for exercising his First Amendment right to petition the courts for a redress of grievances. This Count also alleges that Defendants chose to suspend Plaintiff for exercising his First Amendment free speech rights.

i. Due Process Claims

In order to state a claim for a violation of procedural due process, a plaintiff must show: (1) a constitutionally protected interest in life, liberty, or property; (2) governmental deprivation of that interest; and (3) the constitutional inadequacy of procedures accompanying the deprivation. Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972). If Plaintiff fails to establish any one of these elements, his claim may not survive. Defendants have moved for summary judgment, claiming that Plaintiff cannot show that he was deprived of a constitutionally protected interest in his property or liberty as a result of Defendants' acts.

Reputation alone is not an interest protected by the due process clause. Versarge v. Twp. of Clinton, N.J., 984 F.2d 1359, 1371 (3d Cir. 1993) (citing Paul v. Davis, 424 U.S. 693, 701-12 (1976)).*fn2 In Kutztown, the Third Circuit Court of Appeals opined that in order "to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." 455 F.3d 225, 236 (2006) (emphasis in original) (citations omitted). This is referred to as the "stigma-plus" test.

In the public employment context, the "stigma-plus" test has been applied to mean that when an employer "creates and disseminates a false and defamatory impression about the employee in connection with his termination," it deprives the employee of a protected liberty interest. Codd v. Velger, 429 U.S. 624, 628 (1977). The creation and dissemination of a false and defamatory impression is the "stigma," and the termination is the "plus." Kutztown, 455 F.3d at 236.

In the present case, we need not consider whether Defendants' actions satisfy the "stigma" prong, since Plaintiff was never terminated, and therefore cannot satisfy the "plus" prong. The Third Circuit Court of Appeals has, in several cases, held that the deprivation a plaintiff suffered along with stigma to his reputation was not sufficiently weighty to satisfy the "plus" requirement, because the plaintiff in each case did not lose his job, and instead complained about some adverse employment action less drastic than discharge. See Edwards v. Cal. Univ. of Pa., 156 F.3d 488, 492 (1998) (plaintiff was suspended with pay, but was not fired); Kelly v. Borough of Sayreville, N.J., 107 F.3d 1073,1077-78 (1997) (plaintiff was reprimanded and disciplined, but was never suspended, removed, fined or reduced in rank); Clark v. Twp. of Falls, 890 F.2d 611, 617-20 (1989) (plaintiff's duties were changed, but he did not lose his job, and neither his grade nor his pay was lowered); Robb v. City of Phila., 733 F.2d 286, 294 (1984) (plaintiff was transferred and denied a promotion, but remained employed by the City of Philadelphia at the same classification level and pay scale that he had previously had). See also Versarge, 984 F.2d at 1370-71 (plaintiff lost job as firefighter, but job was only a volunteer position to begin with). Kutztown, 455 F.3d at 238.

Plaintiff's allegations--that his suspension with pay for a period of approximately eight days while the Borough examined his qualifications as a firefighter both deprived him of a property interest in reporting to work, and resulted in him being stigmatized in connection with this suspension (an alleged deprivation of a liberty interest)--are insufficient to state a ยง 1983 claim against Defendants for a violation of due process. Under this factual scenario, neither the alleged property or liberty interest rises ...

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