The opinion of the court was delivered by: Judge Nora Barry Fischer
This is an action involving a police officer who claims that he was constructively discharged in retaliation for speech protected by the First and Fourteenth Amendments to the United States Constitution. Plaintiff James E. Baranowski ("Baranowski") seeks compensatory damages, punitive damages, reinstatement, back pay, equitable relief, attorney's fees, costs, and any other relief deemed by the Court to be appropriate. Doc. No. 1, p. 3. He brings this action against Captain Roger N. Waters ("Waters") and Lieutenant Charles L. Depp ("Depp"), who were his superiors during the course of his employment with the Pennsylvania State Police. Id., p. 2, ¶¶ 4-5. Presently before the Court is a Motion for Summary Judgment filed by the Defendants. Doc. No. 23. For the reasons that follow, the Court will GRANT this Motion for Summary Judgment.
Baranowski is a veteran of the United States Army. Doc. Nos. 45, ¶ 2, 49, ¶ 2. Having served on active duty from 1980-1983, he was honorably discharged at the rank of Spc-4. Id. His military occupational specialty was military police work. Id. He also served as a member of the United States Army Reserve, receiving an honorable discharge in 1992 at the rank of sergeant. Id.
Baranowski commenced his employment with the Pennsylvania State Police on August 11, 1986. Id., ¶ 1. As of July 2003, he had held the rank of sergeant for approximately eight years. Id. Between August 1986 and February 2003, he had never been subject to discipline for serious misconduct in connection with his employment as a police officer. Id., ¶ 4. He received numerous commendations related to the performance of his duties. Id., ¶ 5. His performance in 2002 was considered to be "satisfactory." Id., ¶ 6.
On December 24, 2002, Michael Ellerbe ("Ellerbe"), a 12-year old black male, was fatally shot in the back by a member of the Pennsylvania State Police. Id., ¶ 11. According to police officers Samuel Nassan ("Nassan") and Juan Curry ("Curry"), Ellerbe was suspected of having stolen a vehicle. Id., ¶ 12. The shooting occurred while Ellerbe allegedly attempted to flee from Nassan and Curry after exiting the vehicle believed to have been stolen. Id., ¶ 13.
Baranowski was on duty at the Uniontown barracks at the time of the shooting. Id., ¶ 14. Shortly after the shooting, Baranowski arrived at the scene. Id., ¶ 15. Because he was the highest ranking officer at the scene, he was considered to be the "incident commander." Id., ¶ 14. He gleaned knowledge about the shooting by observing the scene and discussing the incident with Nassan and Curry. Id., ¶ 16. Baranowski's initial observations did not cause him to question the accuracy of the information given to him by Nassan and Curry. Id., ¶ 17.
On December 27, 2002, Baranowski completed a Homicide Investigation Action Report. Doc. No. 26-10, pp. 12-17. He reported that, upon his arrival at the scene, Nassan approached him and stated: "I shot him, he['s] just a kid. I thought he had shot Curry and I ordered him to stop and take his hands out of his pocket. He refused and I shot him once." Id., p. 12. Curry indicated that he had also discharged his weapon. Curry allegedly stated: "I slipped on the fence and my weapon went off. I fell to the ground and when I heard a second shot, I jumped up and saw the actor was down. When I jumped up, Nassan asked me if I had been shot and I stated ['No']." Id. Baranowski recorded his observation of a black juvenile male lying "face up on the sidewalk[.]" Id., p. 13. He indicated that the juvenile had "a large gaping exit wound located in the center front of the chest and a small entry wound in the center back of the chest." Id. The juvenile had no vital signs, and he was lying in a "pool of blood[.]" Id. Two bullet casings were reportedly recovered from the scene. Id., p. 16. One was found on the east side of the fence, while the other was located on the west side of the fence. Id.
Baranowski contends that, after reflecting on the matter and hearing more about the Ellerbe shooting, he began to suspect that the shooting had not occurred in the manner described by Nassan and Curry. Doc. No. 45, ¶ 18. On February 12, 2003, an FBI agent questioned Baranowski about the shooting at the Uniontown State Police Barracks. Id., ¶ 20. Depp was the "Troop B" Uniontown Barracks Station Commander at that time. Doc. Nos. 45, ¶ 21, 49, ¶ 21. Baranowski asserts that, after he was questioned by the FBI agent, Depp summoned him to his office. Doc. No. 45, ¶ 20. Baranowski further contends that Depp asked him about the Ellerbe shooting, and that he informed Depp of his view that the shooting did not occur as Nassan and Curry had described. Id., ¶ 28. During the course of this conversation, Baranowski allegedly insinuated that he suspected a "cover up." Id., ¶ 29. According to Baranowski, Depp abruptly warned him to "mind [his] own business," since he was not a part of the investigation. Doc. No. 26-9, p. 21. In his deposition, Depp testified that this conversation never took place. Doc. No. 35-4, pp. 11-12.
Waters is the Commander of "Troop B," which is headquartered in Washington, Pennsylvania. Doc. Nos. 45, ¶ 32, 49, ¶ 32. He apparently selected Depp to be Troop B's Uniontown Station Commander, in part, because of the Ellerbe shooting. Id., ¶ 34. Approximately one week after Baranowski allegedly relayed his concerns about the Ellerbe shooting to Depp, he expressed similar concerns to Waters. Id., ¶ 38. According to Baranowski, Waters did not respond to his comments. Doc. No. 45, ¶ 38.
Baranowski asserts that Depp subsequently summoned him to his office for the purpose of warning him not to perform private investigative work on behalf of Ellerbe's family. Id., ¶ 39. Depp allegedly told Baranowski that any attempt on his part to assist Ellerbe's family would lead to serious consequences. Id. Between March 3, 2003, and March 11, 2003, Depp initiated six separate "Use of Force or Complaint Reception and Processing Worksheets" against Baranowski, none of which were based on conduct related to the investigation concerning the Ellerbe shooting. Doc. Nos. 45, ¶ 40, 49, ¶ 40. All of the complaints against Baranowski were ultimately sustained by Waters between June 2003 and October 2003. Id., ¶ 42.
A "Pre-Disciplinary Conference" was apparently held on June 30, 2003. Doc. No. 45, ¶ 47. On that day, Waters sustained four of the complaints which had been filed against Baranowski. Doc. No. 26-10, pp. 122-125. Baranowski alleges that Waters informed him that his job was in jeopardy. Doc. No. 45, ¶ 47. If the Pennsylvania State Police had terminated Baranowski's employment because of the disciplinary complaints which had been lodged against him, he would have lost retirement and medical benefits to which he was otherwise entitled. Doc. Nos. 45, ¶ 49, 49, ¶ 49. Fearing that he would be terminated, Baranowski gave the Pennsylvania State Police his "notice of retirement" on July 7, 2003. Id., ¶ 50. A few days later, he was relieved of his duties as a sergeant and placed on desk duty. Id., ¶ 51. His weapon was confiscated. Id. Baranowski was unable to obtain an Honorable Discharge Certificate from the Pennsylvania State Police. Doc. No. 38-7, p. 2.
On May 23, 2005, Baranowski filed a praecipe for a writ of summons against Waters and Depp in the Court of Common Pleas of Fayette County, Pennsylvania. Doc. No. 38-9, pp. 2-3. This was apparently done for the purpose of tolling Pennsylvania's two-year statute of limitations. 42 Pa.C.S.A. § 5524. Baranowski proceeded to file a complaint against Waters and Depp in this Court on September 30, 2005, alleging that they had constructively discharged him from the Pennsylvania State Police in retaliation for his comments about the Ellerbe shooting. Doc. No. 1, ¶¶ 10-12. His claim, which is based on the First and Fourteenth Amendments to the United States Constitution, is brought pursuant to 42 U.S.C. § 1983. Id., ¶ 14. Waters and Depp filed a Motion for Summary Judgment on August 23, 2007. Doc. No. 23. As of February 8, 2008, said motion is fully briefed. Doc. No. 57. It is this motion which is currently pending before the Court and, hence, is the subject of this memorandum opinion. The Court has jurisdiction in this case pursuant to 28 U.S.C. § 1331. Venue is proper under 28 U.S.C. § 1391(b).
Summary judgment may only be granted "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). Pursuant to Federal Rule of Civil Procedure 56(c), the Court must enter summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the non-moving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the non-moving party's burden of proof. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories in order to show that there is a genuine issue of material fact for trial. Id. at 324. The non-moving party cannot defeat a well supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
A. Application of the Statute of Limitations
In support of their Motion for Summary Judgment, the Defendants appear to be raising three distinct statute of limitations issues. First, they intimate that this entire action is barred by Pennsylvania's two-year statute of limitations. Doc. No. 24, pp. 2-4. Second, they argue that the claims against Depp are time-barred even if the claims against Waters can proceed. Id., pp. 4-5. Third, they contend that service was improper because of Baranowski's failure to comply with Pennsylvania Rule of Civil Procedure 422. Doc. No. 48, p. 14. Since the Court is convinced that this action is barred by the statute of limitations, the Defendants' third argument need not be addressed. The first two will be addressed together, since they are interrelated with each other.
At the outset, the Court does not agree with the Defendants' characterization of the statute of limitations issue as jurisdictional. Doc. No. 24, pp. 3-4. Federal Rule of Civil Procedure 8(c) clearly classifies the statute of limitations as an affirmative defense. Fed. R. Civ. P. 8(c). The Court acknowledges that the United States Court of Appeals for the Third Circuit permits a defendant to seek the dismissal of a claim on statute of limitations grounds pursuant to Federal Rule of Civil Procedure 12(b)(6) before a responsive pleading is filed. Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). The statute of limitations, however, remains an affirmative defense rather than a jurisdictional requirement. Id. at 135-136. Congress, of course, has the authority to make a particular statute of limitations jurisdictional. John R. Sand & Gravel Company v. United States, 128 S.Ct. 750, 753-755 (2008); Arbaugh v. Y&H Corporation, 546 U.S. 500, 514-515 (2006). Since this case does not arise under a statute containing a jurisdictional statute of limitations, the statute of limitations at issue is subject to waiver, and this Court is not free to disregard an intelligent waiver of the issue. Day v. McDonough, 126 S.Ct. 1675, 1684 n. 11 (2006). Defendants' belief to the contrary is in error. Doc. No. 24, pp. 3-4.*fn1
In this case, the Defendants have not waived the statute of limitations issue. Instead, they appear to raise it from several different angles. Before addressing these arguments, the Court notes that the facts relevant to the statute of limitations issue are generally not disputed by the parties. Baranowski gave the Pennsylvania State Police his "notice of retirement" on July 7, 2003. Doc. Nos. 45, ¶ 50, 49, ¶ 50. He realized that his job was in jeopardy by June 30, 2003. Doc. No. 45, ¶ 47. This action was not commenced until September 30, 2005. Doc. No. 1. Baranowski believes that his filing of a praecipe for a writ of summons against Waters and Depp in the Court of Common Pleas of Fayette County tolled Pennsylvania's two-year statute of limitations on May 23, 2005. Doc. Nos. 38-9, pp. 2-3, 53, p. 5. The Defendants appear to question Baranowski's assumption, albeit in accordance with their incorrect characterization of this issue as a jurisdictional matter. Doc. No. 24, pp. 3-4. They also argue that the claims against Depp are barred regardless of whether this action as a whole is barred, since more than two years elapsed between his alleged retaliatory actions against Baranowski and the filing of the praecipe. Id., pp. 4-5.
Depp initiated six "Use of Force or Complaint Reception and Processing Worksheets" against Baranowski between March 3, 2003, and March 11, 2003. Doc. Nos. 45, ¶ 40, 49, ¶ 40. Four of them were sustained by Waters on June 30, 2003. Doc. No. 26-10, pp. 122-125. It was on that date that Waters allegedly informed Baranowski that his job was in jeopardy. Doc. No. 45, ¶ 47. The allegations of misconduct lodged against Baranowski were not based on the Ellerbe investigation. One allegation did, however, concern Baranowski's private investigatory work.*fn2 He was accused of becoming personally involved in a police brutality investigation in Uniontown for private pecuniary gain, thereby creating a conflict of interest with his duties as a police officer. Doc. Nos. 26-10, p. 122, 37-2, p. 2. Another allegation involved Baranowski's ordering of equipment without proper authorization, and his alleged lack of candor in response to subsequent inquiries about the matter. Doc. No. 26-10, p. 123. He was also accused of misappropriating a dealer's vehicle, apparently because he retained possession of it longer than necessary for the purpose of test-driving it. Id., p. 125. The other allegation sustained by Waters on June 30, 2003, concerned Baranowski's alleged failure to report for duty in proper police attire. Id., p. 124.
If the Court were to assume arguendo that the statute of limitations was tolled on May 23, 2005, the question would be whether the relevant First Amendment violations for constructive discharge (at least with respect to Depp) occurred when Depp initiated formal complaints against Baranowski, or whether they did not occur until Waters' affirmation of those complaints compelled Baranowski's decision to terminate his employment with the Pennsylvania State Police. In National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), the United States Supreme Court construed the enforcement provisions contained in Title VII of the Civil Rights Act of 1964 to require the timely administrative exhaustion of each discrete violation of Title VII's substantive provisions. The relevant language construed by the Supreme Court provides: "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred[.]" 42 U.S.C. § 2000e-5(e)(1). Focusing on the term "unlawful employment practice," Justice Thomas, the author of the opinion, explained:
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable "unlawful employment practice." Morgan can only file a charge to cover discrete acts that "occurred" within the appropriate time period.
Morgan, 536 U.S. at 114. Justice Thomas went on to distinguish "discrete acts" of unlawful discrimination under Title VII, which are individually actionable, from "hostile work environment" claims, which are based on the cumulative effect of acts that are not necessarily actionable in and of themselves. Id. at 115. Since a "hostile work environment" is itself an "unlawful employment practice," Morgan held that "the entire time period of the hostile work environment may be considered by a court for the purposes of determining liability" even if "some of the component acts of the hostile work environment fall outside the statutory time period." Id. at 117.
In O'Connor v. City of Newark, 440 F.3d 125 (3d Cir. 2006), the United States Court of Appeals for the Third Circuit held that the distinction recognized in Morgan between "discrete acts" and so-called "continuing violations" is "a generic feature of federal employment law" rather than "an artifact of Title VII." O'Connor, 440 F.3d at 128. The Court of Appeals declared:
The principles at work in Morgan apply with equal force to § 1983 claims. Morgan held simply that causes of action that can be brought individually expire with the applicable limitations period. By contrast, the "hostile work environment" theory is designed explicitly to address situations in which the plaintiff's claim is based on the cumulative effect of a thousand cuts, rather than on any particular action taken by the defendant. In such cases, obviously the filing clock cannot begin running with the first act, because at that point the plaintiff has no claim; nor can a claim expire as to that first act, because the full course of conduct is the actionable infringement. Morgan, 536 U.S. at 117-18. The Court did nothing more than to restate, in the employment discrimination context, the common-sense proposition that an applicable statute of limitations begins to run at the time the claim accrues, and that time-barred claims cannot be resurrected by being aggregated and labeled continuing violations.
Id. at 128-129. Hence, the Court must view the statute of limitations issue in this case through the prism of the Supreme Court's analysis in Morgan.
The application of Morgan in a § 1983 case such as this is problematic for three reasons. First of all, the Supreme Court's analysis was firmly embedded within the statutory language of Title VII's enforcement provision. Morgan, 536 U.S. at 109-122 (construing 42 U.S.C. § 2000e-5(e)(1)). Neither the Constitution nor § 1983 contains a relevant analogue to that statutory language. Second, it is unclear whether a "constructive discharge" (as opposed to an actual discharge) constitutes a "discrete act" for purposes of the limitations period, or whether it is more amenable to a "continuing violation" analysis akin to that employed in the "hostile work environment" context. Hazel v. Laborers' Health & Safety Fund of North America, 478 F.3d 364, 370 (D.C.Cir. 2007)(noting that it is an open question whether constructive discharge claims should be categorized as "continuing violations" claims). The question is complicated by the fact that most "constructive discharges" are caused by "hostile work environments," making it difficult to separate the two kinds of cases for purposes of the Morgan analysis. Pennsylvania State Police v. Suders, 542 U.S. 129, 143-152 (2004). The United States Court of Appeals for the Third Circuit recognizes constructive discharges as actionable in the "First Amendment retaliation" context. Hill v. Borough of Kutztown, 455 F.3d 225, 239-243 (3d Cir. 2006). Moreover, Baranowski clearly bases his claims in this case on such a constructive discharge theory. Doc. No. 1, ¶¶ 10-11. Finally, if the Court were to assume arguendo that a constructive discharge (like an actual discharge) constitutes a "discrete act" for purposes of Morgan, it is unclear when Depp (as opposed to Waters) constructively discharged Baranowski.*fn3 Morgan, 536 U.S. at 114, n. 7 ("There may be circumstances where it will be difficult to determine when the time period should begin to run. One issue that may arise in such circumstances is whether the time begins to run when the injury occurs as opposed to when the injury reasonably should have been discovered.")(emphasis added); Scott v. Lee County Youth Development Center, 232 F.Supp.2d 1289, 1295 (M.D.Ala. 2002)(concluding that the applicable limitations period in a constructive discharge case is measured from the date on which the employee gives notice of his or her intention to resign).
The parties have focused their arguments concerning the statute of limitations issue on the application of Morgan and O'Connor in this case rather than on the broader question of whether this entire action is time-barred.*fn4 Doc. Nos. 24, pp. 2-5, 43, pp. 12-14, 48, p. 15. Nevertheless, the Court need not decide how the Morgan framework should be applied to Depp's initiation of formal complaints against Baranowski outside of the limitations period, which supposedly resulted in Baranowski's constructive discharge inside of the limitations period. It is unnecessary for the Court to reach this nuanced procedural dispute, since the Court is convinced that Baranowski's filing of the praecipe did not toll the statute of limitations in any event. Therefore, for purposes of this case, the Court assumes arguendo that the relevant date of the alleged constitutional violations (with respect to both Waters and Depp) is July 7, 2003.
Relevant to this issue is 42 U.S.C. § 1988(a), which provides: § 1988. Proceedings in vindication of civil rights
(a) Applicability of statutory and common law. The jurisdiction in civil and criminal matters conferred on the district and circuit courts [district courts] by the provisions of this Title, and of Title "CIVIL RIGHTS," and of Title "CRIMES," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.
42 U.S.C. § 1988(a). The Supreme Court has construed this language to mean that, in the absence of an explicit federal statute of limitations applicable to the particular claim at issue, "the length of the limitations period, and closely related questions of tolling and application, are to be governed by state law."*fn5 Wilson v. Garcia, 471 U.S. 261, 269 (1985)(footnote omitted). In an action brought under § 1983, the applicable statute of limitations is the particular state's limitations ...