The opinion of the court was delivered by: Muir, District Judge
Complaint Filed 12/15/2003
On December 15, 2003, Plaintiff Thomas C. Skrutski, a Corporal with the Pennsylvania State Police, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against four other individuals employed by the Pennsylvania State Police. On April 15, 2005, Skrutski filed an amended complaint. Named as defendants in the amended complaint are the following individuals: (1) Joseph Marut, who at the time of the filing of the amended complaint was a Captain with the Pennsylvania State Police;*fn1 (2) Michael L. Brice, who was the station commander at the Gibson State Police barracks; (3) Rebecca S. Warner, a criminal investigator with the Pennsylvania State Police; and (4) Wanda Gilbert, who was a Lieutenant with the Pennsylvania State Police.*fn2
Skrutski claims that the Defendants individually violated his rights under the First and Fourteenth Amendments to the United States Constitution and that they conspired to do so. The First Amendment claims are premised on allegations that the Defendants retaliated against Skrutski for speaking out on matters of public concern. Skrutski also contends that the Defendants violated his First Amendment right to petition the government (the filing of the original civil complaint in federal court) by engaging in certain acts of retaliation. Skrutski also raised a First Amendment access to the courts claim. The Fourteenth Amendment claim is based on a contention that Skrutski was denied substantive and procedural due process and equal protection of the law as a result of being subjected to arbitrary and capricious conduct by the Defendants relating to employee discipline and being subjected to a standard different from that which was applied to other Pennsylvania State Police officers.
On July 5, 2005, Defendants filed a motion for summary judgment. Defendants' motion for summary judgment only addressed part of Skrutski's First Amendment retaliation claim and his conspiracy claim. It did not address Skrutski's due process and equal protection claims and at least two aspects of his First Amendment claim. The two aspects of the First Amendment claim not addressed in the motion for summary judgment were Skrutski's contention that (1) he was retaliated against when Defendants allegedly intimidated or interfered with witnesses and (2) he was denied access to the courts. This case was reassigned to us on March 20, 2006. On March 29, 2006, we issued an order denying the motion and the case was placed on the July, 2006, trial list,
On June 14, 2006, Defendants filed a motion in limine relating, inter alia, to "any testimony of 'wrongdoing' involving the official job responsibilities, i.e., Skrutski's allegations of unfavorable scheduling, unfair investigation, and unfair evaluations." The motion in limine primarily relied on the then recent United States Supreme Court case of Garcetti v. Ceballos, ____U.S.___, 126 S.Ct. 1951 (May 30, 2006). In that case the Supreme 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.
A First Amendment retaliation claim requires a plaintiff to prove the following three elements: (1) that the plaintiff engaged in protected First Amendment activity; (2) the government responded with retaliation; and (3) the protected activity was the cause of the government's retaliation. Anderson v. Davila, 125 F.3d 148, 161 (3d Cir. 1997). For purposes of the summary judgment motion, Defendants conceded that Skrutski engaged in activity protected by the First Amendment. The motion in limine related to evidence which allegedly would establish that Skrutski engaged in First Amendment protected activity, i.e,, the first element of a First Amendment retaliation claim which Skrutski was required to prove. By order of June 16, 2006, we converted the motion in limine to a second motion for summary judgment and required supplemental briefing. The trial scheduled for July, 2006, was continued sine die.
The second motion for summary judgment revisited certain aspects of Skrutski's First Amendment claim and his due process claim. However, Defendants failed to address adequately or overlooked several potential claims. With respect to the First Amendment claim Defendants focused on (1) Skrutski's speech or expression in light of Garcetti with respect to the conduct of Brice, Langan*fn3 and Warner, (2) Skrutski's First Amendment access to the courts claim, and (3) Skrutski's procedural due process claim. The Defendants in their supporting brief did not address the equal protection claim or the First Amendment claim set forth in the amended complaint relating to alleged retaliation after the original complaint was filed on December 15, 2003. Defendants further did not address the substantive due process claim.
In their analysis of Garcetti Defendants overlooked some critical language. The Supreme Court stated as follows:
Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate. We reject, however the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions. The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.
Garcetti, 126 S.Ct. at 1961-62 (emphasis added). Relying on Garcetti and State Police regulations and job descriptions, Defendants contended that Skrutski's First Amendment claims were not viable because all of Skrutski's speech was made pursuant to his official duties. This argument was not dispositive of the issue.
First, it was clear that the filing of the original complaint was not pursuant to Skrutski's official duties. Also, in Garcetti the speech or expression in question was a memorandum drafted by Richard Ceballos, a deputy district attorney for Los Angeles County. In the memorandum the deputy district attorney recommended to his supervisor that a criminal case be dismissed. Furthermore, the deputy district attorney did not dispute that he prepared the memorandum pursuant to his duties as a deputy district attorney. In contrast, in the present case Skrutski disputed the claim that his speech or expression was made pursuant to his official duties. From affidavits submitted by the Defendants and Skrutski it was clear there were disputed issues of fact regarding the scope of Skrutski's official duties.
The second motion for summary judgment became ripe for disposition on September 5, 2006. On September 15, 2006, we issued an order granting summary judgment to Defendants on Plaintiff's First Amendment access to the courts claim and denied the motion in all other respects.
The case was placed on the November, 2006, trial list and a jury was selected on November 2, 2006. The evidentiary phase of the trial commenced on November 6, 2006, and concluded on November 20, 2006, The jury was charged, closing arguments given and the jury commenced deliberations on November 21, 2006.
The matter was submitted to the jury by way of 36 special verdict questions. The jury was instructed to answer the special verdict questions based upon a preponderance of the evidence. Rule 49(a) of the Federal Rules of Civil Procedure states in toto as follows:
The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such a demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.
(Emphasis added.) No objections were raised to the substance or form of the special verdict questions submitted to the jury and neither the Plaintiff nor Defendants requested that the court submit additional questions to the jury.
The jury was charged in detail as to what constitutes a conspiracy and with respect to the 1st and 14th Amendment claims as follows:
We will now more specifically outline the elements of Plaintiff's 1st Amendment claim. In order to establish such a claim Plaintiff must prove the following elements:
(1) he engaged in protected First Amendment activity;
(2) the defendants individually or jointly responded with retaliation; and
(3) the First Amendment protected activity was the cause of or motivation for the retaliation. Plaintiff alleges that the First Amendment protected activity that he engaged in was the following:
(1) his reports of Defendant Brice's attempts to falsify investigations;
(2) his reports of Trooper Langan's suspicious activity relating to possible vandalism of another officer's vehicle;
(3) his criticism and reprimand of Defendant Rebecca S. Warner for allegedly not properly conducting an investigation; and
(4) his filing of the original complaint on December 15, 2003, in this court.
The actions of the governmental body or official need not be unlawful for you to conclude that they were retaliatory. An otherwise legitimate and constitutional act can become unconstitutional when a Plaintiff demonstrates that it was undertaken in retaliation for his or her exercise of First Amendment speech. The motives of governmental officials are indeed relevant when an individual's exercise of speech precedes government action affecting the individual.
When a public employee, such as Plaintiff, makes statements pursuant to his official duties, the employee is not speaking as a citizen for First Amendment purposes, and the Constitution does not insulate his communications from employer discipline. If Plaintiff's statements relating to (1) Brice's alleged attempts to falsify investigations, (2) Trooper Langan's alleged suspicious activity and (3) Defendant Warner's allegedly improper investigation were made as part of Plaintiff's official duties, those reports or statements are not protected First Amendment activity. However, an employer can not restrict an employee's rights by creating excessively broad job descriptions. The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.
So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
Plaintiff is not required to prove that his protected activity was the sole motivation or even the primary motivation for a defendant's decision or conduct. Plaintiff need only prove that his protected activity played a motivating part in defendant's decision or conduct even though other factors may also have motivated a defendant.
There is no violation of a plaintiff's 1st Amendment rights by a defendant, if that defendant would have reached the same decision to take action against the plaintiff even in the absence of the plaintiff's 1st Amendment activity.
We will now address Plaintiff's due process and equal protections claims.
The due process claim has two parts. First, Plaintiff claims that Defendants individually violated his substantive due process rights and that they conspired to do so. In order to establish that a Defendant violated Plaintiff's right to substantive due process, Plaintiff must establish that the government official deliberately and arbitrarily abused his or her power. Evidence that the government official's actions were motivated by bias, bad faith, or improper motive such as partisan political reasons or personal reasons may support a finding of a substantive due process violation. A government official's actions may violate substantive due process if the plaintiff can show a fundamental procedural irregularity. However, in order to conclude that there has been such a violation the conduct that the governmental official engaged in must shock the conscience.
In determining whether substantive due process rights have been violated we look to such factors as the need for the governmental action in question, the relationship between the need and the action, the extent of the harm inflicted, and whether the action was taken in good faith or for the purpose of causing harm. Malicious, irrational, and plainly arbitrary actions are not within the legitimate purview of the official's power.
In summary, to establish a violation of the Substantive Due Process Clause, Plaintiff must show that
(1) Defendants' actions constituted an arbitrary use of official power;
(2) Defendants' conduct was motivated by personal interest or ill-will;
(3) Defendants' actions served no legitimate governmental purpose; and
(4) Defendants' actions were outrageous and shocking to the conscience.
Evidence of an improper motive on the part of the Defendants is not enough to conclude that Plaintiff's substantive due process rights were violated. For you to conclude that Defendants violated the due process rights of Plaintiff, the Defendants' conduct must be outrageous and must shock the conscience.
Second, Plaintiff claims that Defendants individually violated his procedural due process rights and that they conspired to do so. Generally, where a procedural due process claim is raised against a public official or employer, and grievance and arbitration procedures are in place, those procedures satisfy the procedural due process requirements of the 14th Amendment. However, the procedures employed must be adequate to address the employment dispute and the existence of grievance and arbitration procedures is not dispositive of the issue. A Plaintiff may establish a procedural due process violation if the grievance and arbitration procedures were tainted by a biased and corrupt internal investigation into the alleged employee misconduct or a biased and corrupt disciplinary hearing.
The final claim you must address is Plaintiff's equal protection claim. Plaintiff claims that the Defendants violated his equal protection rights by treating him differently than similarly situated state troopers. To establish a violation of the Equal Protection Clause, Plaintiff must show that
(1) that he was intentionally treated differently than other similarly situated state troopers; and
(2) that there was no rational basis for the difference in treatment.
Doc. 124, Charge to the Jury, pages 15-20 (Emphasis added)(a copy of the charge was provided to each juror).
On November 27, 2006, the jury returned with answers to the special verdict questions. Those special verdict questions along with the answers are as follows:
1. Did Plaintiff engage in First Amendment protected activity when he reported Defendant Brice's alleged attempts to falsify investigations?
2. Did Plaintiff engage in First Amendment protected activity when he reported his alleged observations of Trooper Langan relating to the possible vandalism of another Trooper's vehicle?
3. Did Plaintiff engage in First Amendment protected activity when he criticized and reprimanded Defendant Rebecca S. Warner for allegedly not ...