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Ober v. Miller

December 18, 2007


The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)


This is § 1983 civil rights action filed by Darrell Ober ("Ober"), a former captain with the Pennsylvania State Police ("State Police"), against nine State Police employees.*fn1 Ober's principal allegation is that these nine employees retaliated against him for exercising his First Amendment rights to petition the court for redress of grievances and to speak out on matters of public concern.

Presently before the court are the parties' cross-motions for summary judgment (Docs. 43, 49). The motions have been briefed and are ripe for disposition. The court would be remiss if it did not describe the difficulties presented by the summary judgment record. For purposes of illustration, the statements of material facts and responses thereto contain more than 3,200 paragraphs and are nearly 400 pages in length. These voluminous fact statements are accompanied by 375 exhibits and nearly 200 pages of legal briefs. Suffice it to say that considerable judicial resources have been expended to resolve the myriad of issues set forth therein. Contra L.R. 56.1 (requiring parties to file a "short and concise statement of the material facts"). For the reasons that follow, defendants' motion (Doc. 43) will be granted in part and denied in part, and plaintiff's motion (Doc. 49) will be denied.

I. Statement of Facts*fn2

Ober enlisted as a cadet with the State Police on July 20, 1981. Over the next twenty-four years, he was promoted to the ranks of trooper, corporal, sergeant, lieutenant, and captain before retiring on July 1, 2005. (Doc. 46 ¶ 1; Doc. 61 ¶ 1; Doc. 48, Ex. 1.) During his tenure at the State Police, Ober filed four lawsuits in which he claimed that he was retaliated against by members of the State Police. This is the third in that series of four lawsuits. The court will summarize the facts and procedural history of Ober's other three lawsuits before delving into the specific facts underlying the instant case.

A. Ober I*fn3

Ober I centered around Ober's decision to withhold information from the individuals in his direct chain of command and ultimately from then-Commissioner Paul J. Evanko ("Evanko"). In the fall of 1998, Ober learned from an FBI agent that State Police officials were suspected of taking bribes from police academy applicants. Believing that the FBI's investigation should be kept confidential, Ober did not report the information to his direct superiors. (See No. 01-0084, Doc. 102 at 5.) Instead, Ober sought guidance from Lieutenant Colonel Robert Hickes ("Hickes"), who was not in Ober's direct chain of command. Hickes advised Ober not to discuss the matter with anyone else. (Id. at 5-6.) On May 12, 1999, Ober learned that the FBI's investigation had concluded and informed Evanko about it. (Id. at 6.) Ober alleged that a series of retaliatory acts followed, including an administrative investigation into his alleged failure to follow the chain of command, the denial of educational and overtime opportunities, an inquiry into his personal affairs, an attempted transfer, and the denial of his promotion to major. (Id. at 7-10.)

Accordingly, Ober I was filed on January 16, 2001, alleging inter alia violations of Ober's First Amendment rights. (No. 01-0084, Doc. 1.) By memorandum and order dated August 27, 2002, Judge William Caldwell denied defendants' motion for summary judgment with respect to Ober's First Amendment claim. (No. 01-0084, Doc. 102 at 11-16.) Defendants filed an interlocutory appeal contesting the denial of their motion for summary judgment. On November 25, 2003, the United States Court of Appeals for the Third Circuit reversed, holding that Ober's speech was not protected because he had violated State Police regulations when he made the decision to bypass the chain of command. See Ober v. Evanko, 80 F. App'x 196, 200-02 (3d Cir. 2003).

B. Ober II*fn4

On November 29, 2002, Ober II was filed against several State Police attorneys and an investigator who had been involved in Ober I. (No. 02-2186, Doc. 1.) Ober II alleged that the defendants had filed fallacious briefs in an attempt to mislead the court, suborned perjury, plotted unlawful schemes to discredit at least two of Ober's key witnesses, and acquired irrelevant personal information in an attempt to intimidate Ober. (No. 02-2186, Doc. 38 at 3-4.) Ober styled these allegations as claims of First Amendment retaliation for exercising his right to file Ober I. (No. 02-2186, Doc. 1 ¶¶ 6-7.) On September 3, 2003, this court granted defendants' motion for judgment on the pleadings, holding that a First Amendment retaliation claim was not a proper remedy for trial counsel's alleged misconduct. (No. 02-2186, Doc. 38 at 5-6.) On July 14, 2004, the Third Circuit affirmed. See Ober v. Brown, 105 F. App'x 345, 347 (3d Cir. 2004).

C. Ober IV*fn5

Ober IV, filed on March 1, 2007, alleged that State Police employees "secretly met and engineered a plan to deter Ober from speaking publicly or filing a lawsuit regarding purported corruption involving" Miller. (No. 07-401, Doc. 17 at 3.) Ober alleged that, at this secret meeting, Miller granted Guido and Brown permission to file a criminal complaint against Ober, alleging that Ober had perjured himself in Ober I. (Id. at 4.) Ultimately, Guido and Brown compiled an investigative report and delivered it to the United States Attorney's Office, which declined to pursue charges against Ober. (Id.) However, Ober conceded that he first learned of this allegedly retaliatory conduct after he retired from the State Police. (Id. at 4-5.) Holding that a person of ordinary firmness would not be deterred from speaking by a retaliatory act of which he or she was unaware, Judge William Caldwell granted defendants' motion to dismiss Ober IV. (Id. at 8; see also No. 07-401, Doc. 27 at 3.)*fn6

D. The Instant Case

Ober filed the instant action on July 28, 2004. (See Doc. 1.) An amended complaint was filed on December 20, 2004. (See Doc. 10.) Ober's amended complaint alleges that defendants: (1) retaliated against him for exercising his First Amendment rights to petition the court for redress of grievances and to speak out on matters of public concern, (2) violated his Fourth Amendment right to be free of unlawful searches and seizures, (3) violated his First, Sixth, and Fourteenth Amendment rights to confer with counsel, (4) denied him equal protection of the laws in contravention of the Fourteenth Amendment, and (5) defamed him and subjected him to false light misrepresentation in violation of state law.*fn7 The facts underlying these claims are set forth below.

1. Memorandum and Subsequent Investigation

On July 25, 2003, Ober composed a memorandum that detailed what he believed to be acts of public corruption committed by Miller and Periandi. Specifically, the memorandum alleged that Miller and Periandi had used their power and influence as State Police officials to aid a state senator in attacks against a political enemy. (See Doc. 48, Ex. 25.) Before distributing the memorandum, Ober sought the advice of Don Bailey, Esquire regarding whether the contents of the memorandum met the legal definition of public corruption and, if so, how best to distribute the information. (Doc. 50 ¶ 336; Doc. 58 ¶ 336.) On advice of counsel, Ober submitted the memorandum to his immediate supervisor, McDonald, on July 31, 2003. The memorandum contained the statement "CC: Don Bailey." (Doc. 50 ¶ 324; Doc. 58 ¶ 324.) McDonald attempted to persuade Ober not to distribute the memorandum and refused to formally accept it, although he retained a copy.

Approximately two months after receiving Ober's memorandum, McDonald began to suspect a link between the memorandum and the inquiries of a reporter from the Philadelphia Daily News. McDonald informed Ober about the inquiries and questioned him about his distribution of the memorandum and about his interactions with Attorney Bailey. (Doc. 50 ¶¶ 403, 409, 551; Doc. 58 ¶¶ 403, 409, 551; Doc. 52, Ex. 61.) Ober informed McDonald that he had decided not to submit the memorandum because "he wanted to go under the radar." (Doc. 52, Ex. 61.) McDonald also informed Skurkis, Periandi, and John Brown about the contents of the memorandum. (Doc. 50 ¶¶ 295, 398, 431, 452; Doc. 58 ¶¶ 295, 398, 431, 452.)

On October 17, 2003, John Brown acquired and analyzed Ober's workplace telephone records. (Doc. 50 ¶¶ 579, 581, 584; Doc. 58 ¶¶ 579, 581, 584.) Ultimately, the telephone records revealed no evidence that Ober had contacted the media. (Doc. 52, Ex. 61; Doc. 50 ¶ 617; Doc. 58 ¶ 617.) On November 3, 2003, John Brown confiscated the hard drive from Ober's government-issued computer but again found no information indicating that Ober had contacted the media. (Doc. 48, Ex. 62; Doc. 50 ¶¶ 583, 621; Doc. 58 ¶¶ 583, 621.)

On November 19, 2003, the Philadelphia Daily News published an article addressing the same allegations of police corruption that were contained in Ober's memorandum. (Doc. 48, Ex. 29.) Four months later, on March 23, 2004, Periandi submitted an internal complaint which prompted a formal investigation into the source of the leak to the Philadelphia Daily News. Periandi's complaint did not mention Ober as a target of the investigation. (Doc. 48, Ex. 30.) Periandi's complaint was assigned to McDonough for adjudication and to Mrgich for investigation. (Doc. 50 ¶¶ 36-37, 1081; Doc. 58 ¶¶ 36-37, 1081.) Ultimately, McDonough was unable to determine who had leaked the information to the Philadelphia Daily News. (Doc. 50 ¶ 74; Doc. 58 ¶ 74.) However, at some point, Ober became the focus of the investigation. (Doc. 50 ¶ 77; Doc. 58 ¶ 77.) On July 26, 2004, Mrgich conducted an interview of Ober, during which Ober revealed that he had shared the memorandum with Attorney Bailey. (Doc. 48, Ex. 31.) During the interview, Ober was represented by a union attorney. (Doc. 50 ¶¶ 1256-57; Doc. 58 ¶¶ 1256-57.) On the same day, Periandi temporarily transferred Ober from the bureau of liquor control enforcement ("BLCE") to the bureau of emergency and special operations ("BESO") as a special projects officer. (Doc. 48, Ex. 32.) Following his transfer, Ober was prohibited from accessing BLCE records or facilities, including his former office, and was required to surrender his BLCE equipment. (Doc. 52, Ex. 294.) In addition, his police car was searched, his hard drive was imaged a second time, and his government-issued laptops were seized. (Doc. 52, Ex. 294; Doc. 50 ¶¶ 625, 697; Doc. 58 ¶¶ 625, 697.)

Two days later, on July 28, 2004, McDonough issued a summary report to Ober, which was designed to summarize the investigation and to inform Ober of his purported violations and of the evidence against him. (Doc. 48, Ex. 34; Doc. 50 ¶ 71; Doc. 58 ¶ 71.) On August 2, 2004, McDonough issued Ober's final disciplinary action report, in which McDonough sustained the allegation that Ober provided confidential information to Attorney Bailey. (Doc. 48, Exs. 35, 50.) On the same day, Ober filed a grievance contesting the conclusions of the disciplinary action report. (Doc. 48, Ex. 19.)

On September 10, 2004, Titler told Ober that he would be recommending that Ober be disciplined for his misconduct. (Doc. 52, Ex. 76.) Ober challenged this recommendation in a second grievance dated October 5, 2004. (Doc. 48, Ex. 20.) On October 15, 2004, Titler provided Miller with a suggestion for Ober's punishment. In arriving at this suggestion, Titler considered the disciplinary action report and other investigative reports, Ober's prior discipline, employee performance reviews, and official personnel files, similar cases, issues of officer safety, confidentiality of information and complainants, dangers to the community, and Ober's willingness to disseminate information to unauthorized persons. (Doc. 48, Ex. 36; Doc. 50 ¶¶ 1160, 1182, 1231; Doc. 28 ¶¶ 1160, 1182, 1231.) On October 21, 2004, Miller approved the suggested punishment. (Doc. 48, Ex. 36.) On the following day, Titler issued Ober's notification of disciplinary action with the suggested twenty day suspension, transfer to Troop H, and demotion to the rank of Sergeant. (Doc. 48, Ex. 37.) On November 8, 2004, Ober filed a third grievance contesting his punishment. (Doc. 48, Ex. 21.) That grievance was still pending when Ober retired on July 1, 2005, so Ober's recommended punishment was never implemented. (Doc. 48, Ex. 1; Doc. 46 ¶ 133.)

2. Other Alleged Retaliatory Actions

Aside from the aforementioned conduct related to Ober's memorandum and the subsequent investigation, Ober alleges that defendants engaged in a number of unrelated retaliatory actions. First, Ober alleges that he was denied reappointment to the Pennsylvania Emergency Management Agency ("PEMA")*fn8 and the Centennial Book Committee.*fn9 Ober began his involvement with PEMA as an emergency preparedness liaison officer in 1993 and voluntarily resigned from that position in 2000. (Doc. 50 ¶¶ 556-557, 568, 570; Doc. 58 ¶¶ 556-557, 568, 570.) He requested reinstatement to PEMA on January 20, 2003 and again on March 3, 2004. On both occasions, he was informed by a State Police employee that there were no vacancies for emergency preparedness liaison officers at the agency. (Doc. 52, Exs. 250, 252; Doc. 50 ¶ 560; Doc. 58 ¶ 560.) Ober was removed from the Centennial Book Committee by former-Commissioner Evanko in 1999. (Doc. 50 ¶ 953; Doc. 58 ¶ 953.) He sought permission to return to the Committee on January 20, 2003. (Doc. 52, Ex. 253.) In an email dated January 22, 2003, a State Police employee responded as follows:

I have been advised that it may be better to what [sic] until your legal issues are settled with the Department before having you rejoin the book committee.

Hopefully everything works out for you soon. (Id.)

Second, Ober alleges that his requests to attend two training academies were denied. In June 2004, McDonald denied Ober approval to attend the National Liquor Law Enforcement Academy in San Diego, California. McDonald admitted that the investigation into Ober's conduct was a factor in his decision, as was a concern about Ober's availability to attend the conference if he were disciplined. (Doc. 52, Ex. 232; Doc. 50 ¶¶ 963, 965; Doc. 58 ¶¶ 963, 965.) Ober also alleges that he was never selected to attend the FBI training academy, for which he first applied in 1993. (Doc. 50 ¶ 986; Doc. 58 ¶ 986.)

Third, Ober alleges that Miller retaliated against him by failing to promote him on five separate occasions between February of 2003 and March of 2004. On each occasion, Miller selected four or fewer captains from a pool of between nineteen and forty-two for promotion to the position of major.*fn10 (Doc. 48, Exs. 43-48.) Miller testified that when selecting candidates for promotion, he chooses the candidate with the skill set that is most appropriate for the vacant position. (Doc. 48, Ex. 2 at 162.) In support of his retaliation claims, Ober alleges that Miller cancelled an objective examination for promotion from captain to major on March 3, 2003, and replaced it with a more subjective selection process in order to avoid promoting Ober. (Doc. 48, Ex. 38; see also Doc. 50 ¶ 723; Doc. 58 ¶ 723.) Miller testified that he cancelled the examination due to budgetary constraints. (Doc. 46 ¶¶ 72-73.)

Fourth, Ober alleges that McDonald intentionally withheld his employee performance review for five months as an act of retaliation. Ober's 2003-2004 review was due from McDonald in March of 2004, but was issued by McDonald on September 20, 2004. (Doc. 48, Ex. 41; Doc. 50 ¶ 1005; Doc. 58 ¶ 1005.) McDonald admits that he decided to withhold the employee performance review because of the pending investigation against Ober. (Doc. 50 ¶ 998; Doc. 58 ¶ 998.) Ultimately, Ober was given an unsatisfactory rating for the first time in his history of employment with the State Police. (Doc. 50 ¶ 992; Doc. 58 ¶ 992; see also Doc. 52, Ex. 205 at 3.) The unsatisfactory rating was given in the category of "work habits" and was accompanied by the following explanation:

The unsatisfactory rating reflects the results of an internal investigation culminating in disciplinary action for improper dissemination of confidential Department information, contrary to Department Regulations. Although Capt. Ober is efficient and organized, and adheres to attendance and safety regulations, his violation of the regulation concerning dissemination of confidential information is viewed as serious especially given his rank, and strongly affects his rating in this category. (Doc. 52, Ex. 205 at 3.)

Finally, Ober alleges that Reynolds and McDonough directed threatening and harassing statements towards him during a training session for commissioned officers on August 6, 2004. (Doc. 46 ¶ 134; Doc. 61 ¶ 134.) Specifically, Reynolds referred to Miller as the "ultimate client" in a manner that Ober viewed as retaliatory. (Doc. 46 ¶ 137; Doc. 61 ¶ 137.) Reynolds testified that her use of the phrase "ultimate client" was intended to illustrate that her ethical obligations as legal counsel for the State Police are to Miller. (Doc. 43, Ex. 10 at 52-53.) During the same training session, McDonough drew an analogy between the disciplinary systems of ancient Rome and the State Police. (Doc. 43, Ex. 33 at 183-84.) Ober admits that neither Reynolds nor McDonough referred to him by name or otherwise identified him during the training session. Nor did they refer to Ober's court filings or to the misconduct he was alleged to have committed. (Id. at 182-85.)

3. Statements by Lewis and Titler

Ober also alleges that defendants Lewis and Titler defamed him and placed him in a false light. Turning first to Lewis, Ober alleges that, on August 18, 2004, the Philadelphia Daily News published an article about Ober, to which Lewis responded. (Doc. 48, Ex. 53.) Lewis's response provides, in pertinent part, as follows:

The Aug. 18 story also fails to mention that State Police Capt. Darrell Ober initiated two federal district court lawsuits against the department alleging that improper disciplinary action was taken against him. Both of these suits were dismissed and the Third Circuit Court of Appeals subsequently upheld the dismissals. (Id., Ex. 54.) Ober also alleges that Titler defamed him when he issued the notification of disciplinary action, which states:

It was my determination that the actions of Captain Ober in this matter were in violation of the following Field Regulations: FR 1-1.05, Dissemination of Information FR 1-2.02, Performance of Duty FR 1-1.18, Interference with ...

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