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Cotner v. Yoxheimer

July 2, 2008


The opinion of the court was delivered by: Chief Judge Kane


Before the Court are Defendants' motion to dismiss (Doc. No. 8) Plaintiff Seth M. Cotner's complaint, Defendants' brief in support thereof (Doc. No. 9), Plaintiff's brief in opposition (Doc. No. 13), and Defendants' brief in reply (Doc. No. 16). For the reasons that follow, the Court will grant Defendants' motion to dismiss the complaint in its entirety.


On or about March 30, 1993, Defendant Point Township hired Plaintiff Seth M. Cotner as a full-time patrol officer. (Compl. ¶ 12.) At the time of Plaintiff's hiring, the chief of police was Gary Steffen, a popular public figure who "had a history of standing up to the [Point Township Board of] Supervisors in matters related to the Police Department and its personnel." (Id. ¶¶ 13, 22, 90; see id. ¶¶ 91, 92.) Steffen's independence "displeased the Supervisors who desired to have more of a 'yes man' in the position of Police Chief." (Id. ¶ 23.)

After several years of exemplary performance and upon Steffen's recommendation, the Defendant Point Township Board of Supervisors ("Supervisors") promoted Plaintiff to the position of Sergeant. (Id. ¶ 14.) As sergeant, Plaintiff's responsibilities included supervising three patrol officers, reviewing and approving reports, implementing and maintaining the duty schedule, and serving as officer-in-charge when Steffen was absent. (Id. ¶ 15.) In addition, Plaintiff served as both the field supervisor for the Northumberland Montour Drug Task Force and the D.A.R.E. instructor for the Shikellany Area School District. (Id. ¶¶ 16-17.) Steffen, for his part, held Plaintiff in such high regard that he began to "groom" Plaintiff as his eventual replacement. (Id. ¶¶ 18, 24; see id. ¶ 93.)

On or about June 2005, Steffen gave Point Township notice of his intention to retire. (Id. ¶ 19.) Steffen worked for seven additional days in order that his accrued sick, vacation and holiday time could carry him to twenty-eight years of service. (Id.) As was its custom, Point Township "paid salary and benefits to [Steffen] on regular paydays up to his payroll retirement date." (Id. ¶ 20.) Steffen recommended that, upon his departure, Plaintiff be named acting chief of police. (Id. ¶ 21.) The Supervisors declined, however, and instead named Plaintiff to the lesser position of officer-in-charge. (Id.) According to Plaintiff, the Supervisors were motivated by the knowledge "that [Plaintiff] had been groomed by [Steffen] . . . and that Steffen associated with [Plaintiff] outside of work." (Id. ¶ 24; see id. ¶¶ 93, 94.)

Following Steffen's retirement, Defendants Randall Yoxheimer and Montie Peters held a series of "secret meetings" with Defendant Curt Brown, then a patrolman, "to insure that Brown would become the next chief of police." (Id. ¶ 27; see id. ¶ 119.) In furtherance of their goal, the aforementioned defendants "agreed that it would be necessary to discredit [Plaintiff] or force him to resign because [Plaintiff] was clearly more qualified for the position of Police Chief than Patrolman Brown . . . ." (Id. ¶ 28; see id. ¶¶ 98, 119.)

Point Township ran advertisements for Steffen's replacement in two newspapers and received approximately seven applications. (Id. ¶ 29.) However, none of the applicants were granted interviews. (Id. ¶ 30.) The Supervisors interviewed Plaintiff on November 11, 2005, telling him that his was "the most impressive application they had ever received." (Id. ¶ 33.) At no time during the interview did the Supervisors question Plaintiff's ability or fitness to serve as chief of police. (Id.) Nevertheless, "[p]rivate negotiations between Defendants Yoxheimer, Peters, and Brown continued until the [f]all of 2005, when, after the Township supervisors had completed interviews of members of the Police Department, Defendant [sic] Yoxheimer and Peters informed the remaining supervisors that Curt Brown would be the new Chief of Police because it was already a done deal and Seth Cotner was to be forced to leave the department." (Id. ¶ 122; see also ¶¶ 31, 120.) Rather than put a stop to these meetings, the other Supervisors simply "acquiesced in the malicious plans of Defendant [sic] Yoxheimer and Peters." (Id. ¶ 121.)

On November 14, 2005, the Supervisors and Point Township's solicitor summoned Plaintiff to a "closed-door" meeting. (Id. ¶ 35.) During this meeting, the "Supervisors made numerous false and baseless allegations against [Plaintiff], including accusing him of alcoholism and threats of violence against his ex-wife," and "threatened to terminate [Plaintiff's] employment based on charges unbecoming an officer unless he agreed, at that very moment, to take an administrative leave effective immediately." (Id. ¶¶ 36-37; see id. ¶ 125.) Yoxheimer assured Plaintiff that "after the administrative leave expired if he simply left the Point Township Police Department nothing would be placed in his personnel file." (Id. ¶ 41.) When Plaintiff asked if he could consult with an attorney and respond to their request the following day, the "Supervisors told him that if he did not take the administrative leave at that meeting, charges would be prepared and they would begin the process of terminating his employment." (Id. ¶ 38.) "Feeling he had no other choice and desiring only to clear his name," Plaintiff agreed to take administrative leave. (Id. ¶ 39.) The solicitor promptly produced the necessary paperwork, which Plaintiff proceeded to sign. (Id. at 40.) As the meeting drew to a close, the Supervisors advised Plaintiff to "give consideration to finding other employment because he would likely feel uncomfortable working under the new Chief of Police because they were preparing to announce the appointment of Patrolmen Curt Brown to the position of Chief of Police that very evening." (Id. ¶ 40.)

No sooner had the Plaintiff taken leave than "Point Township confiscated all Police Department property in his possession and even requested his MOPEC card."*fn1 (Id. ¶ 42.) According to Plaintiff, Point Township was unusually thorough in this regard "because the [Supervisors] had no intention of allowing [Plaintiff] to return to duty." (Id. ¶ 43.) Although Plaintiff "made every effort" to comply with Point Township's request that he undergo a psychiatric evaluation, the latter repeatedly extended Plaintiff's leave by "refusing to accept evaluations obtained by him." (Id. ¶ 45.) Ultimately, however, Dr. Anthony Butto evaluated Plaintiff over the course of three days in February 2006, and declared Plaintiff "fit for duty." (Id. ¶ 46-47.) In his report to the Supervisors, Butto stated that Plaintiff "was a social drinker who clearly had no problem with alcohol, and that psychological testing revealed that Sergeant Cotner was not prone to violent behavior." (Id. ¶ 47; see id. ¶¶ 126, 127.) "Notably," Plaintiff adds, "the Defendants were perfectly capable, at any time, of contacting [Plaintiff]'s ex-wife regarding their allegations of threatening conduct . . ., but did not do so because they knew the allegations to be false." (Id. ¶ 48.)

In light of Butto's report, the Supervisors had "no choice" but to allow Plaintiff to return to work, and, on March 14, 2006-approximately four months after taking leave-Plaintiff resumed his duties as sergeant. (Id. ¶ 49.) This was preceded, however, by another closed-door meeting with the Supervisors, during which Plaintiff was "admonished not to come to the Supervisors about problems with the Police Department despite the fact that he had never done [so] in the past." (Id. ¶ 50.) The Supervisors also informed Plaintiff "that his every other weekend schedule would be opposite to what it was prior to his leave," knowing full well that this new schedule would interfere with Plaintiff's existing child custody arrangements. (Id. ¶¶ 50-51.) The "Supervisors and Chief Brown refused to consider changing the schedule despite the fact that [Plaintiff] provided several easy solutions to the problem." (Id. ¶ 51.)

Without naming those responsible, Plaintiff expansively avers that, upon returning from leave, "all of [his] duties and responsibilities were stripped." (Id. ¶ 52.) More particularly, Plaintiff alleges that he was "required to work far more night shifts than any other officer in the department," (id. ¶ 64), and, "[w]hile other officers were permitted to take a police vehicle home on off days, [he] was not permitted to do so," (id. ¶ 61). Plaintiff further alleges that Brown took administration of the D.A.R.E. Program away from [him] by falsely and baselessly accusing [him] of attending school functions smelling of alcohol, . . . took all scheduling responsibilities away from [him,] . . . removed [his] name from the "approved" section of reports and replaced it with his own name, . . . removed all responsibilities for the evidence room from [him,] . . . took [his] computer and, as a result, [he] had no operable computer at his desk [and,] . . . [w]ould not permit [him] to attend any classes, seminars or continuing education. (Id. ¶¶ 53, 56-61.) Additionally, Brown "made it clear to [Plaintiff] that he would not tolerate any attempt [by Plaintiff] to exercise, supervisory or authority [sic] over subordinates, to that end, [sic] when [Plaintiff] provided [Brown] with evidence that a patrol officer had falsely submitted and [sic] overtime slip, [Brown] chastised and reprimanded [Plaintiff], instead of conducting a good faith investigation of the charges." (Id. ¶ 63.) Lastly, when the mayor of nearby Sunbury, Pennsylvania, requested Plaintiff's assistance in selecting a "K9 officer" for the city's police department, Brown and the Supervisors denied Plaintiff permission to do so. (Id. ¶ 62.)

Both during and after Plaintiff's leave, the Supervisors and Brown "disseminated false information to members of the public to the effect that [Plaintiff] was a drunk who had threatened harm against his his [sic] ex-wife." (Id. ¶ 65; see id. ¶¶ 128, 130.) Moreover, when Plaintiff inquired with Brown as to the source of the accusation that he smelled of alcohol while attending school functions, Brown, "who had falsely created the [accusation] himself, refused to provide any information, saying it was an anonymous source." (Id. ¶ 54; see id. ¶ 129.) Plaintiff, however, took steps to "verif[y] that no teachers had made any such complaints" and, "[a]s a matter of fact, all of the school teachers who had dealt with [him] with respect to the D.A.R.E. [p]rogram had formally recommended him for the position of Chief." (Id. ¶ 55.)

On May 22, 2007, Plaintiff gave Point Township notice of his intention to "exercis[e] his right under the Collective Bargaining Agreement to accept the early vested retirement option," thereby using his accrued sick, vacation, and holiday time to carry him to an effective retirement date of April 6, 2008.*fn2 (Id. ¶ 69.) According to Plaintiff, he had intended to remain with the police department until his voluntary retirement date, "but the actions of the Defendants created working conditions which were so intolerable that he was forced to resign." (Id. ¶ 68; see id. ¶¶ 94, 98, 104.) Point Township paid Plaintiff his salary and benefits for regular paydays from May 23, 2007, through June 5, 2007. (Id. ¶ 71.) On May 31, 2007, Point Township cancelled Plaintiff's health insurance benefits (id. ¶¶ 74, 114) and, on June 21, 2007, contrary to Plaintiff's wishes, Point Township paid Plaintiff the balance of his salary and benefits in a lump sum, effectively reducing his pension and depriving him of "years of credited service" (id. ¶¶ 73, 115).


A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) is properly granted when, accepting all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the complaint must allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)," Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (citations omitted). Moreover, in order to satisfy federal pleading requirements, a plaintiff's obligation "to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotation marks omitted) (quoting Twombly, 127 S.Ct. at 1964-65).


For reasons of clarity and economy, the Court will address each of the nine counts of Plaintiff's complaint in the following non-sequential order: Count III, violation of Plaintiff's First Amendment right of association; Count V, wrongful discharge; Count VII, violations of the Pennsylvania Wage Payment and Collection Law; Count VIII, violations of the Pennsylvania Sunshine Act; Count VI, commission of an intentional tort as set forth in the Restatement (Second) of Torts § 870; Count I, violation of Plaintiff's substantive due process rights; Count II, violation of Plaintiff's procedural due process rights; Count IV, conspiracy in violation of 42 U.S.C. § 1983; and Count IX, defamation.

A. Count III: Violation of Plaintiff's First Amendment Right of Association by the Supervisors

In Count III of his complaint, Plaintiff argues that his "close association with former Chief Steffen was a motivating factor in the Defendants [sic] decision to force Plaintiff to take a leave of absence, discredit him in the community, and make his working conditions so intolerable that he was forced to resign." (Compl. ¶ 94.) The Supervisors charge that Plaintiff's failure to allege that he engaged in any constitutionally protected conduct, such as supporting a particular political party or candidate, is fatal to his claim. (Doc. No. 9, at 22-23.) In his brief in opposition, Plaintiff brings his First Amendment argument into slightly sharper focus, explaining that "it was Plaintiff's close association with former Chief Steffen, the political rival of the Supervisors on matters related to the Police Department which was a motivating factor in the Defendants' decision." (Doc. No. 13, at 15.) Quoting the Third Circuit Court of Appeal's decision in Bennis v. Gable, 823 F.2d 723 (3d Cir. 1987), Plaintiff fleetingly asserts that "[a] citizen's right not to support a candidate is every bit as protected as his right to support one," id. at 731, and that the Supervisors "were not free to force him into taking an administrative leave, "defacto demoting him from his position of Sargent [sic], and constructively discharging his employment, because of his close association with the former Chief and their preference to hire Brown." (Doc. No. 13, at 16.) Nevertheless, Plaintiff "acknowledges the right of the individual Defendants' [sic] Supervisors to choose whomever they desire to serve as Chief of the Point Township Police Department." (Id., at 15-16.)

"The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees' freedom to believe and associate, or to not believe and not associate." Rutan v. Republican Party of Illinois, 497 U.S. 62, 76 (1990). The United States Supreme Court has recognized a constitutionally protected freedom of association in two distinct contexts. In one line of decisions, the Court has concluded that the right to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the state. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984). Intimate human relationships in this context are "those that attend the creation and sustenance of a family-marriage, childbirth, the raising and education of children, and cohabitation with one's relatives." Id. at 619 (citations omitted). In another line of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment, including speech, assembly, petition for the redress of grievances, and the exercise of religion. See id. at ...

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