The opinion of the court was delivered by: Judge Nora Barry Fischer
Plaintiff Anton Uhl filed the instant civil action against Defendants County of Allegheny ("County"), Allegheny County Police Department ("County Police"), Defendant Charles W. Moffat ("Moffat"), and Defendant Glenn Zilch ("Zilch") (collectively, "Defendants"), alleging a violation of his rights under the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983. Specifically, Plaintiff alleges that Defendants terminated him in retaliation for filing an internal complaint alleging ethical violations by County police officers and the County's stated reason for his termination is merely a pretext. For the following reasons, the Court will grant Defendants' Motion for Summary Judgment .
On September 1, 1992, the County hired Uhl to work as a police officer on the County Police force. (Docket No. 35, ¶1; Docket No. 40, ¶1). While working as a police officer, on or about September 2, 2003, Plaintiff filed a Complaint with the Accountability, Conduct and Ethics Commission ("ACE"), alleging various ethical violations within the County Police.
(Docket No. 35, ¶2; Docket No. 40, at ¶2). At the time Plaintiff filed the ACE Complaint, Kenneth Fulton held the position of the Superintendent of the County Police; however, on or about February 3, 2004, Defendant Moffat replaced him as Superintendent of the County Police. (Docket No. 35, at ¶4); (Docket No. 40, at ¶4). While Defendants assert that the ACE Commission did not disclose Uhl's identity until November 7, 2007 and that Moffat never knew that Uhl filed the complaint with ACE, Plaintiff contends that "circumstantial evidence indicates otherwise." (Docket No. 35, at ¶¶3, 6); (Docket No. 40, at ¶¶3, 6).
On or about July 8, 2004, Defendant Moffat learned of alleged inappropriate comments of a sexual nature made by Uhl (while on duty) towards a 16-year-old female lifeguard at one of the County's pools, Boyce Park.*fn1 Moffat asked the Allegheny County Department of Human Resources ("ACHR"), specifically manager Deborah Nerone, to investigate the allegations. (Docket No. 35, at ¶10).*fn2 During the investigation, Manager Nerone interviewed the Manager of the Boyce Park Pool, nine lifeguards (including the complainant), and another police officer. The witnesses reported that Uhl made sexual insinuations to female lifeguards, whistled at them, called them "babe" and "honey," and stared at them in an inappropriate manner. They also reported an ongoing banter of a sexual nature, which caused the female employees at the pool to feel uncomfortable.
On January 18, 2005, the Allegheny County Bureau of Police (signed by "Inspector Zilch") issued a notice to Uhl, informing him of the charges against him in violation of the "Manual of Rules, Regulations, Policies and Procedures:" "Conduct Unbecoming a Member," "Respect to be Shown," and "Law Enforcement Code of Ethics." (Docket No. 35, at ¶12) (Docket No. 40, at ¶12).*fn3 The January 18, 2005 notice also informed Uhl that a Loudermill hearing*fn4 would be held on February 2, 2005. (Docket No. 35, at ¶12) (Docket No. 40, at ¶12).
On February 2, 2005, the administrative board held a hearing, which the Plaintiff did not attend, and, on the same day, the Assistant Superintendent issued a Memorandum indicating that the board found all the charges to be valid.*fn5 (Docket No. 35 at ¶12; Docket No. 40 at ¶12). At the behest of Defendant Moffat, Deborah Nerone, the Manager of Employee Relations for the Department of Human Resources, conducted an investigation. In a Memorandum dated March 24, 2005, Manager Nerone determined that "the behavior exhibited by Uhl was inappropriate and unprofessional" and concluded that "Officer Uhl failed to meet the standards and ideals representative of an Officer in uniform and a member of the Allegheny County Police Department." (Docket No. 35 at ¶14).*fn6 On April 5, 2005, Defendant Moffat advised the Plaintiff (by way of confidential memorandum) that, having reviewed the allegations as well as the findings of Manager Nerone and the administrative board at the Loudermill hearing, he would terminated effective April 11, 2005. (Docket No. 35 at ¶15).*fn7
On April 11, 2005, Uhl filed a grievance through his labor union (the Allegheny County Police Association) requesting reinstatement under the terms of the union's collective bargaining agreement. On January 11, 2006, a labor arbitrator determined that Uhl's conduct was indeed "inappropriate and resulted in conduct unbecoming a member." However, the arbitrator reduced Uhl's termination to a 30-day suspension and awarded back pay, benefits, and reinstatement. (Docket No. 35 at ¶17; Docket No. 40 at ¶17).
On August 8, 2006, Plaintiff filed his Complaint alleging a violation of his First Amendment Rights under the United States Constitution by way of 42 U.S.C. § 1983*fn8 against Defendants County, County Police, Moffat, and Zilch. On September 29, 2006, Defendants filed a Motion to Dismiss. In lieu of a response thereto, on October 18, 2006, Plaintiff filed a Motion for Leave to Amend Complaint, which the Court granted the next day. On October 27, 2006, Plaintiff filed his First Amended Complaint, adding facts in support of his assertion that his ACE Complaint constituted speech as a private citizen and not within his official duties as an employee of the County Police. (Docket No. 12). On December 5, 2006, Defendants filed their Answer to the First Amended Complaint. (Docket No. 16).*fn9
On November 19, 2007, Defendants filed the instant motion accompanied by a Brief in Support of Motion for Summary Judgment and a Statement of Undisputed Facts. (Docket Nos. 33, 34, & 35). After the Court granted an extension of time to respond, on January 3, 2008, Plaintiff filed Plaintiff's Response to Defendants' Motion for Summary Judgment along with a Brief in Support of Plaintiff's Response to Motion for Summary Judgment and Plaintiff's Response to Defendants' Statement of Undisputed Facts. (Docket Nos. 38, 39, & 43). Hence, Defendants' motion is ripe for disposition.
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 Rule 56, the Court must enter summary judgment against the 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). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
In evaluating the evidence, the Court must interpret facts in the light most favorable to the non-moving party, and draw all reasonable inferences in their favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). Initially, the burden is on the moving party to demonstrate that the evidence in the record creates no genuine issue of material fact. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). The 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). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249. "The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment." Turner v. Leavitt, Civil Action No. 05-942, 2008 WL 828033, at *4 (W.D. Pa. March 25, 2008) (citing Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir. 1993) (citing10 WRIGHT AND MILLER, FEDERAL PRACTICE § 2721at 40 (2d ed.1983))); Pollack v. City of Newark, 147 F. Supp. 35, 39 (D.N.J. 1956), aff'd, 248 F.2d 543 (3d Cir. 1957), cert. denied, 355 U.S. 964 (1958) ("in considering a motion for summary judgment, the court is entitled to consider exhibits and other papers that have been identified by affidavit or otherwise made admissible in evidence").
While the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the admissible evidence in the record would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322-323. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. The nonmoving party "cannot simply reassert factually unsupported allegations contained in its pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
In his Complaint, Plaintiff asserts one claim against Defendants County, County Police, Moffat, and Zilch: a violation of his right to free speech, specifically to speak on matters of public concern, as protected by the First Amendment to the United States Constitution. (See generally Complaint). Because the Court's analysis differs as to the type of defendant named, i.e., individual ...