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Hoffman v. Dougher

January 14, 2008


(Judge Conner)


This is a § 1983 civil rights action filed by Erick Hoffman ("Hoffman"), a former employee of the Pennsylvania Department of General Services ("Department"). Hoffman alleges that nine Department employees*fn1 retaliated against him for exercising his First Amendment right to speak out on matters of public concern. Presently before the court is defendants' motion for summary judgment (Doc. 29), in which defendants contend that Hoffman has failed to proffer sufficient evidence to support his retaliation claim and that defendants' actions are shielded by qualified immunity. For the reasons that follow, the motion will be granted.

I. Statement of Facts*fn2

Hoffman is a former employee of the Pennsylvania Capitol Police ("Capitol Police"), a division of the Department's Bureau of Police and Safety. (Doc. 1 ¶ 26; Doc. 24 ¶ 26.) Hoffman, who began his employment with the Capital Police in July 2002, alleges that a number of Department employees subjected him to a pattern of retaliatory conduct beginning as early as August 2002. (Doc. 30 ¶ 2; Doc. 34 ¶ 2.)

Hoffman's allegations can be divided into seven distinct incidents, the first of which occurred in August 2002, when Shipp shoved Hoffman and informed him that he did not belong in the administrative area of the Capitol Police building.*fn3 (Doc. 34, Ex. 1 at 37-39.) Hoffman originally alleged that he reported this incident to Marzullo, who told Hoffman to "mind his own business." (See Doc. 1 ¶ 29.) However, Hoffman now admits that he cannot recall whether he ever mentioned the incident to Marzullo. (Doc. 34, Ex. 1 at 39.)

The second incident occurred in March 2003. Hoffman participated in a union investigation regarding whether Dougher had been verbally abusive to another union member. (Doc. 30 ¶ 14; Doc. 34 ¶ 14.) Hoffman's duties during the investigation were to take witness statements and prepare an investigatory report. He was not required to make any conclusions about the punishment that should be imposed upon Dougher. (Doc. 34, Ex. 1 at 40-43.) After the investigation, Dougher allegedly made the following statements to Hoffman: (1) "[Y]ou got [sic] to be careful with what you do around here; you know, if you stir things up, you could have problems down the road," and (2) "We know things about you and I can use them against you." (Id. at 43-44; see also Doc. 30 ¶ 15; Doc. 34 ¶ 15.)*fn4

The third incident occurred in June 2003 after Hoffman complained to Marzullo and Papodopolos about the practice of officers smoking in the lunch room. As a result of the complaints, the Department agreed to make the lunch room a non-smoking area. (Doc. 30 ¶ 20; Doc. 34 ¶ 20.) Thereafter, Marzullo allegedly told Hoffman: "You made a lot of trouble with the smoking because we [have] a lot of smokers here, so you['d] better be careful working here." (Doc. 34, Ex. 1 at 70.)

Hoffman began to receive written threats and cheese in his mailbox around the same time. (Doc. 30 ¶ 21; Doc. 34 ¶ 21.) Hoffman admits that he has no evidence to suggest who placed these items in his mailbox. (Doc. 34, Ex. 1 at 69, 71-72.)

The fourth incident occurred after Hoffman attended an officer survival training seminar conducted by a fellow Capitol Police officer on September 1, 2003. (Doc. 30 ¶ 24; Doc. 34 ¶ 24.) As part of the training seminar, participants were shown a video depicting an image of a woman with her breast exposed. (Doc. 30 ¶ 25; Doc. 34 ¶ 25.) The video had been previewed by Papodopolos, who was the shift supervisor. (Doc. 34, Ex. 1 at 73.) A participant reported the video's inappropriate content to the Department's Equal Employment Opportunity ("EEO") office. (Doc. 30 ¶ 25; Doc. 34 ¶ 25.) As a component of the EEO investigation, Hoffman was interviewed on September 9, 2003. (Doc. 30 ¶ 26;

Doc. 34 ¶ 26 & Ex. 1 at 116.) He provided a written statement in which he denied observing any "inappropriate or offensive scenes" in the video, but recalled having heard Papodopolos say, "that's a nice set," while preparing the video equipment. (Doc. 30, Ex. K ¶¶ 5, 10.) Ultimately, Papodopolos was demoted as a result of the incident. (Doc. 30 ¶ 30; Doc. 34 ¶ 30.) Hoffman later testified that Papodopolos had threatened him both before and after his interview. Before the interview, Papodopolos allegedly told Hoffman: "[D]o not make any statements that will get me in trouble or there will be problems." (Doc. 34, Ex. 1 at 75, 77.) Hoffman also heard via another officer that Papodopolos had threatened to blow up the homes of all individuals who chose to make statements against his interests. (Id. at 89, 102.)

After the interview, Papodopolos allegedly told Hoffman: "I know what you said . . . and life is going to get harder for you from now on."*fn5 (Id. at 78.)

The fifth incident occurred around February of 2004, when Shaffer allegedly denied Hoffman a position on an emergency response team. (Doc. 30 ¶ 62; Doc. 34 ¶ 62 & Ex. 1 at 111.) Hoffman was under consideration for the team until Shaffer decided not to form it because of budgetary constraints. (Doc. 30, Ex. U ¶ 11.)

The sixth incident centers around Hoffman's participation in two non-profit organizations that provide financial assistance to law enforcement officers and their families. Hoffman founded the Reserve Police Officers Association ("RPOA") in 1998 and co-founded the American Police Officers Association ("APOA") in 2000. (Doc. 30 ¶¶ 11-12; Doc. 34 ¶¶ 11-12 & Ex. 1 at 15.) At various times, Hoffman has served as president of these associations, and he has received remuneration from them. (Doc. 30 ¶ 12; Doc. 34 ¶ 12; Doc. 34, Ex. 1 at 16-17.) On July 9, 2003, Officer Paul Bernier ("Bernier") from a Massachusetts Police Department contacted the Capitol Police regarding Hoffman's familiarity with APOA's fundraising practices. Dougher spoke with Bernier, which Hoffman alleges violated a Capitol Police policy that all calls should be forwarded to the specific officer for which they were intended. (See Doc. 34 ¶ 18; see also Doc. 34, Ex. 3 ¶ 1.) Thereafter, Dougher asked Hoffman to contact Bernier and to submit a written response explaining the issues about which Bernier had queried. (Doc. 30 ¶ 18; Doc. 34 ¶ 18.) Hoffman complied with Dougher's instructions and explained that someone had "hijacked" APOA's name to conduct an "unapproved fundraising campaign" in Massachusetts, but that neither he nor APOA "has ever been criminally charged for any fraud or misrepresentation." (Doc. 34, Ex. 3 ¶ 4.)

Around the same time, Hoffman visited the Department of State's Bureau of Charitable Organizations to determine whether that agency had been investigating APOA's fundraising practices. (Doc. 30 ¶ 31 & Ex. M at 1; Doc. 34 ¶ 31.) When Hoffman arrived, he was not in uniform, but was displaying his Capitol Police badge. He apparently informed a staff person that he was with the Capitol Police but was not conducting official police business and asked to speak to an investigator. (Doc. 34, Ex. 1 at 49.) Ultimately, Hoffman spoke with an investigator named Drew Koser ("Koser"), who informed him that the agency was not investigating APOA. (Doc. 30 ¶ 32; Doc. 34 ¶ 32.) During the discussion, Hoffman allegedly confirmed that he was the president of APOA and provided a business card that identified him as the association's president. According to Koser, Hoffman also asked that all calls about APOA be forwarded to him as "a professional courtesy." (Doc. 30, Ex. M at 1.) After the meeting, Koser filed a complaint with the Office of Inspector General ("OIG"), averring that Hoffman had attempted to use his position as a Capitol Police officer to influence him inappropriately. (Doc. 30 ¶¶ 33, 36; Doc. 34 ¶ 33; see also Doc. 30, Ex. M.)

As a result of Koser's complaint, the OIG launched an investigation into Hoffman's affiliation with APOA and RPOA. In November 2003, the OIG interviewed Hoffman and took a written statement from him. (Doc. 30 ¶¶ 34-35; Doc. 34 ¶¶ 34-35; Doc. 34, Ex. 1 at 50, 55-56.) On February 24, 2004, the OIG issued a report that recommended that Hoffman be disciplined by the Department for his inappropriate behavior. (Doc. 30 ¶¶ 36-37; Doc. 34 ¶¶ 36-37; see also Doc. 30, Ex. E ¶ 3, Ex. F ¶ 4, & Ex. N.) Specifically, the OIG made the following findings:

Based on its investigation, the OIG finds that Hoffman

* served as the President of and received compensation from the Reserve Police Officers Association (RPOA) while employed as a Capitol Police Officer;

* served as the American Police Officers Association (APOA) President while employed as a Capitol Police Officer;

* failed to file a supplementary employment request form;

* conducted APOA business wearing plainclothes, his Pennsylvania state identification and his Capitol Police badge;

* used his Commonwealth e-mail to conduct RPOA and APOA business; and

* provided misleading and inaccurate information to the OIG. (Doc. 30, Ex. N at 2.) After its initial review of the OIG report, the Department elected to conduct pre-disciplinary conferences ("conferences") before deciding whether to discipline Hoffman. (Doc. 30 ¶ 39.) Hodge, the Department's labor relations coordinator, was assigned to conduct these pre-disciplinary conferences. (Doc. 30, Ex. H at 10, 49-50.)

Meanwhile, on March 1, 2004, Hoffman and three other officers sent a memorandum to Speaks and several other Department officials.*fn6 The memorandum contained various complaints about harassment, violence, and retaliation in the Capitol Police. It named Hodge, Shaffer, Dougher, Marzullo, and Papodopolos among the alleged wrongdoers. (Doc. 30 ¶ 48 & Ex. T; Doc. 34 ¶ 48.) Two days after sending the memorandum, Hoffman received written notice that the first conference about the OIG report would be held on March 16, 2004. (Doc. 30, Ex. O; see also Doc. 1 ¶ 42; Doc. 24 ¶ 42.) The notice was signed by Human Resources Director Green, and it summarized the charges against Hoffman. (Doc. 30 ¶ 39; Doc. 34 ¶ 39.) During the first conference, Hoffman attempted to invoke his rights under federal and state whistleblower laws, believing that the conference was simply retaliation for his March 1, 2004 memorandum. (Id.; Doc. 1 ¶ 43; Doc. 24 ¶ 43.) Hodge allegedly replied that whistleblower laws were inapplicable to Hoffman's situation. (Doc. 34 ¶ 39.) Hoffman vaguely memorialized his attempt to invoke the protection of whistleblower laws in an email to his supervisor the following day. (Doc. 34, Ex. 1 at 95, 146 & Ex. 10.)

Three additional conferences were held on March 29, 2004, April 29, 2004, and August 9, 2004. (Doc. 30 ¶¶ 40, 43 & Ex. R; Doc. 34 ¶¶ 40, 43.) Hoffman claims that at some point during the conferences Hodge observed: "[Y]ou're on the list and you're going to get out of here one way or the other."*fn7 (Doc. 34, Ex. 1 at 107.) Immediately following the March 29, 2004 conference, Hoffman filed a grievance contesting the conference procedures. (Id. at 123-25.) On July 21, 2004, Hoffman drafted a letter to Senator James J. Rhoades expressing his complaints regarding the Capitol Police. (Doc. 34, Ex. 6.) Senator Rhoades forwarded the letter to Cunningham, who responded by stating that an investigation against Hoffman was pending. (Doc. 34, Ex. 1 at 94.) On the same day, Hoffman expressed his complaints at a Pennsylvania Black Caucus meeting that was ...

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