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Diana v. Oliphant

November 13, 2007


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendants' Motion for Partial Summary Judgment on the Plaintiff's First and Fourth Amendment claims. (Doc. 28.) For reasons set forth below, the Court will deny Defendants' motion as to the First Amendment retaliation claim and Defendants' motion as to the Fourth Amendment claim. As a federal question is before the Court pursuant to 42 U.S.C. § 1983, the Court has jurisdiction pursuant to 28 U.S.C. § 1331.


Plaintiff in this case is Mario Diana, who at the time relevant to the Complaint, was a Trooper in the Pennsylvania State Police stationed at Tunkhannock Barracks. (Defs.' Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. ¶ 1, Doc. 29.) Defendants are Carmen Altavilla, who at the relevant time was a Captain in the State Police and commander of Troop P, and Willard Oliphant, who was then the staff lieutenant of Troop P. (Id. ¶¶ 2-4.)

In 2003, Plaintiff Diana was on leave for a work related injury. (Id. ¶ 5.) He was receiving Workers' Compensation and Heart and Lung Benefits during his leave. (Id. ¶ 5; Pls.' Counterstatement of Undisputed Material Facts ¶ 6, Doc. 34.) Workers' Compensation claims are generally handled between the injured member and the department headquarters. (Doc. 29 ¶ 7.) Department headquarters gives Troop Commanders directives to have correspondence delivered to the injured member, or to have the injured member go for an independent medical examination, but that is generally the extent of the Troop Commander's involvement. (Id. ¶ 9.) State Police regulations require that someone visits a member on sick leave or leave for a work related injury, but that obligation does not include the obligation or authority to investigate the person on leave. (Id. ¶¶ 10, 11.)

Sometime after Plaintiff Diana was put on leave, Defendant Altavilla received correspondence from Deputy Commissioner Transue. (Id. ¶ 12.) There is a dispute as to whether Defendant Altavilla determined the date that Plaintiff was to return to work, or if that date was determined by Deputy Commissioner Transue. (Id. ¶ 13; Doc. 34 ¶ 13.) In any case, Defendant Altavilla was directed to have the correspondence regarding Plaintiff's return to work personally served on the Plaintiff. (Doc. 29 ¶ 14.) The correspondence was in the form of a letter, dated November 14, 2003, ordering Plaintiff Diana to return to work on Saturday, November 22, 2003. (Id. ¶ 16.) The letter further noted that "Should you fail to return to work, CompServices, Inc. will petition to the Bureau of Workers' Compensation to seek suspension of you workers compensation benefits and the Department will schedule an administrative hearing to seek cessation of the Heart and Lung Benefits." (November 14, 2003 Letter from Captain Altavilla to Trooper Diana, Doc. 34 Ex. 2.) Around the time the letter was served, Plaintiff Diana and Defendant Altavilla spoke on the telephone. (Doc. 29 ¶ 17.) Defendant Altavilla told the Plaintiff that he was not aware of what was occurring with the Workers' Compensation claim, but Plaintiff did have an order to return to work and would be considered AWOL if he failed to return. (Id. ¶ 18.) Plaintiff Diana responded that his lawyer told him he did not have to return to work, and that the matter had to go through Workers' Compensation to fix the problem. (Id. ¶ 19; Doc. 34 ¶ 19.) Plaintiff alleges that he told Altavilla that he had doctor's orders that a return could result in injury requiring knee replacement surgery. (Doc. 34 ¶ 18.) Defendant Altavilla reiterated that he did not know what was going on with the Plaintiff's Workers' Compensation claim. (Doc. 29 ¶ 20.) Defendant Altavilla then asked Plaintiff to have his doctor contact the State Police doctor, and to contact the Human Resources office. (Id. ¶ 21.) During this phone call, Defendant Altavilla was polite and did not raise his voice. (Id. ¶ 23.)

At the conclusion of the phone call, Plaintiff understood that Defendant Altavilla would be in touch by Friday regarding the return to work order. (Id. ¶ 24; Doc. 34 ¶ 24.) On November 19, 2003, Plaintiff Diana called the Troop Administrative Manager ("TAM"), Cheryl Burton, as he had not heard back from Defendant Altavilla. (Doc. 29 ¶ 25.) Plaintiff told Burton that there were problems with his Workers' Compensation claim, and that he had conflicting statements as to whether he had to return to work. (Id. ¶ 26.) Diana then told Burton he needed to know what was going on, and that he expected to hear from Altavilla. (Id. ¶ 27.) Burton told him that she would take a message and have Altavilla get back to him. (Id. ¶ 28.)

Defendant Altavilla asked Defendant Oliphant to return Plaintiff's call. (Id. ¶ 30.) He requested that Oliphant call Diana on the taped line at the station to make sure that if Diana was not coming back to work as ordered, that he had made some arrangement with his lawyer and the personnel office. (Id. ¶ 30.) Oliphant then proceeded to call Diana on the taped line. (Id. ¶ 31.) Oliphant told Diana that he was calling for Captain Altavilla. (Id. ¶ 32.) He told Diana that he received an e-mail indicating that the order to return to work stood. (Id. ¶¶ 32-33.) Diana then told Oliphant that he was advised by his lawyer, and that his lawyer told him to listen to his doctor and the union. (Id. ¶ 34.) Diana also told Oliphant that he loved his job and would be there if he physically could. (Id. ¶ 35.) Oliphant then advised Diana that the only way he would be permitted to not show up to work was if there would be physical harm or if it were against the law. (Id. ¶ 36.) Diana then told Oliphant that he had seen his doctor, who told him that he could not return to work. (Id. ¶ 37.) Oliphant stated that he did not know what to tell him, but that the order still stood. (Id. ¶ 38.) Diana then thanked him and said he would pass the information to his lawyers. (Id. ¶ 39.)

There is a dispute as to whether there are taped lines at every desk. (Id. ¶ 41; Doc. 34 ¶ 41.) These taped lines sound beeps the conversations. (Doc. 29 ¶ 42.) Diana did not hear beeps on the line during his conversation with Oliphant. (Id. ¶ 43.) Diana did not discover that the phone call between himself and Oliphant had been recorded until later in the same day, when a union officer called him and informed him that the call had been taped. (Id. ¶ 44.)

After Oliphant and Diana finished their telephone conversation, Oliphant asked the Troop Communications Specialist ("TCS") to make a tape of the conversation. (Id. ¶ 45.) Oliphant then gave the tape to Altavilla upon his return to work. (Id. ¶ 46.) Altavilla did not listen to the tape or have a transcript made of it. (Id. ¶ 48.) However, Plaintiff alleges that Gerry Williams, Vice President of the Fraternal Order of the Police Lodge, heard the recording. (Doc. 34 ¶ 47.)Sometime later, a local union official approached Altavilla and told him that one of the union lawyers wanted a copy of the tape. (Doc. 29 ¶ 49.) Altavilla then sent the lawyer the tape. (Id. ¶ 50.)

Altavilla called the station on the day when Diana had been ordered to return to work. (Id. ¶ 51.) When Altavilla learned that Diana had not reported to work, he assumed that Diana had worked out the issue with the personnel office. (Id. ¶ 52.) Altavilla returned to work the following Monday. (Id. ¶ 53.) Upon Altavilla's arrival, the TAM informed him that Diana had not reported for work as ordered, but that Altavilla was not required to do anything about it. (Id. ¶ 54.) The TAM further told Altavilla that the matter would be handled through a Workers' Compensation hearing. (Id. ¶ 55.) As far as Diana knows, the tape of the telephone conversation was never used in his Workers' Compensation proceeding. (Id. ¶ 56.) Diana received his Workers' Compensation benefits before the taped telephone call, and continued to receive those benefits after the conversation occurred. (Id. ¶ 57.) Diana continued to receive those benefits until he was released by a doctor to return to work on limited duty. (Id. ¶ 58.) However, Plaintiff counters that he was discriminated against in other ways. (Doc. 29 ¶ 58.) These discriminatory practices included a reassignment to a different station, assignments to the busiest zones in the county, and questioning regarding his work. (Id. ¶ 58.)

On November 11, 2005, Plaintiff filed a Complaint alleging civil rights violations of his First, Fourth, and Fourteenth Amendment rights, and claims under the Federal Communications Act and under the Pennsylvania's Wiretap Act. (Doc. 1.) On January 6, 2006, Defendants Oliphant and Altavilla filed a motion to dismiss the Plaintiff's First and Fourteenth Amendment claims, as well as his claims under the Federal Communications Act, 47 U.S.C. § 151 et seq. (Doc. 5.) On August 21, 2006, the Court granted Defendants' motion with respect to the Fourteenth Amendment claim, and denied the motion with respect to the First Amendment claim and the statutory wiretap claim. (Doc. 19.) Defendants filed the present Motion for Partial Summary Judgment on the First Amendment and Fourth Amendment claims on May 29, 2007. (Doc. 28.) 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 alleges that Defendants violated 42 U.S.C. ยง ...

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