The opinion of the court was delivered by: Nora Barry Fischer United States District Judge
Judge Nora Barry Fischer U.S. District Judge
Pending before the Court is a Motion for Reconsideration filed by Plaintiff James E. Baranowski ("Baranowski") pursuant to Federal Rule of Civil Procedure 59(e). Doc. No. 63. Baranowski asks the Court to reconsider its decision of March 18, 2008, granting summary judgment in favor of the Defendants, Captain Roger N. Waters ("Waters") and Lieutenant Charles L. Depp ("Depp"). Baranowski v. Waters, 2008 WL 728366, 2008 U.S. Dist. LEXIS 21301 (W.D.Pa. March 18, 2008). For the reasons that follow, Baranowski's Motion for Reconsideration will be GRANTED IN PART and DENIED IN PART. The Court remains convinced that Waters and Depp are entitled to summary judgment, but only on the basis of one of the two alternative grounds relied upon by the Court in the memorandum opinion of March 18, 2008.
On August 11, 1986, Baranowski commenced his employment with the Pennsylvania State Police ("PSP"). Doc. Nos. 45, ¶ 2, 49, ¶ 2. Between that time and February 2003, he had never been subject to discipline for serious misconduct related to his employment as a police officer. Id., ¶ 4. He had a "satisfactory" job performance rating in 2002. Id., ¶ 6.
On December 24, 2002, Michael Ellerbe ("Ellerbe"), a 12-year old black male, was shot in the back by a member of the PSP. Id., ¶ 11. According to police officers Samuel Nassan ("Nassan") and Juan Curry ("Curry"), Ellerbe was believed to have stolen a vehicle. Id., ¶ 12. The shooting allegedly occurred while Ellerbe was fleeing from Nassan and Curry. Id., ¶ 13. Ellerbe died as a result of his injuries.
At the time of the shooting, Baranowski was at the Uniontown State Police Barracks ("Uniontown Barracks"). Id., ¶ 14. After learning of the incident, he arrived at the scene. Id., ¶ 15. As the highest ranking officer present in the aftermath of the shooting, Baranowski was considered to be the "incident commander." Id., ¶ 14. He obtained knowledge about the shooting through both his observations at the scene and his discussions with Nassan and Curry. Id., ¶ 16.
Baranowski completed a Homicide Investigation Action Report on December 27, 2002. Doc. No. 26-10, pp. 12-17. In the report, he described his arrival at the scene and attributed the following statements to Nassan:
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 told Baranowski that his weapon had also discharged. According to the Report, Curry 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 recollection of a black juvenile male lying "face up on the sidewalk" who 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., p. 13. The individual had been lying in a "pool of blood" with no vital signs. Id. Two bullet casings were recovered from the scene. Id., p. 16. One such casing was found on each side of the fence referenced in Curry's statement. Id.
Baranowski later 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, he was questioned about the incident by a Federal Bureau of Investigation ("FBI") agent at the Uniontown Barracks. Id., ¶ 20. At that time, Depp was the "Troop B" Uniontown Barracks Station Commander. Doc. Nos. 45, ¶ 21, 49, ¶ 21. Baranowski contends that he was summoned to Depp's office after being questioned by the FBI agent. Doc. No. 45, ¶ 20. According to Baranowski, Depp starting talking to him about the Ellerbe shooting, at which point he informed Depp of his view that the shooting had not occurred in the manner described by Nassan and Curry. Id., ¶ 28. As the conversation continued, Baranowski allegedly insinuated that a "cover up" was occurring. Id., ¶ 29. Baranowski further contends that Depp abruptly told him to "mind [his] own business," and that he was not a part of the investigation into the Ellerbe shooting. Doc. No. 26-9, p. 21. In a deposition, Depp testified that he had not spoken with Baranowski about the matter. Doc. No. 35-4, pp. 11-12.
Waters was the Commander of "Troop B," which maintained its headquarters in Washington, Pennsylvania. Doc. Nos. 45, ¶ 32, 49, ¶ 32. One week after his alleged conversation with Depp, Baranowski relayed his reservations about the investigation into the Ellerbe shooting to Waters. Id., ¶ 38. According to Baranowski, Waters showed no reaction to his concerns. Doc. No. 45, ¶ 38.
Baranowski asserts that he was later summoned back to Depp's office, where Depp warned him not to perform private investigative work on behalf of Ellerbe's family. Id., ¶ 39. Depp allegedly told Baranowski that he would face serious consequences if he were found to be assisting Ellerbe's family in such a way. Id.
Depp initiated six separate "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. None of these complaints was based on the investigation into the Ellerbe shooting. Id. Waters ultimately sustained all of the complaints against Baranowski between June 2003 and October 2003. Id., ¶ 42.
A "Pre-Disciplinary Conference" was conducted on June 30, 2003. Doc. No. 45, ¶ 47. On that day, Waters sustained four of the complaints which had been lodged against Baranowski. Doc. No. 26-10, pp. 122-125. According to Baranowski, Waters informed him that his job was in jeopardy. Doc. No. 45, ¶ 47. As a member of the PSP, Baranowski was entitled to retirement and medical benefits. Doc. Nos. 45, ¶ 49, 49, ¶ 49. Nevertheless, he would have lost such benefits had he been terminated by the PSP for disciplinary reasons. Id. Allegedly fearing termination, Baranowski gave the PSP his "notice of retirement" on July 7, 2003. Id., ¶ 50. He was subsequently relieved of his duties as a sergeant and placed on desk duty. Id., ¶ 51. His weapon was confiscated. Id. Upon his departure, Baranowski was unable to obtain an Honorable Discharge Certificate. 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. He filed a complaint against Waters and Depp in this Court on September 30, 2005, alleging that they had constructively discharged him in retaliation for his comments about the investigation into the Ellerbe shooting. Doc. No. 1, ¶¶ 10-12. His claims, which were based on the First and Fourteenth Amendments to the United States Constitution, were 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. In a memorandum opinion dated March 18, 2008, the Court granted summary judgment in favor of Waters and Depp. Baranowski v. Waters, 2008 WL 728366, 2008 U.S. Dist. LEXIS 21301 (W.D.Pa. March 18, 2008). Baranowski filed a Motion for Reconsideration on March 27, 2008. Doc. No. 63. An oral argument was conducted before the Court on April 17, 2008. The parties later filed supplemental briefs concerning Baranowski's Motion for Reconsideration. Doc. Nos. 64, 67-68, 70. This motion is currently pending before the Court and, hence, is the subject of this memorandum opinion.
It is worth noting that Michael Hickenbottom ("Hickenbottom"), the father of Ellerbe and the personal representative of his estate, successfully sued Nassan and Curry for shooting and killing Ellerbe in Hickenbottom v. Nassan, CV-03-223. On March 11, 2008, just one week before this Court granted the Motion for Summary Judgment filed by Waters and Depp, a jury determined that both Nassan and Curry had violated Ellerbe's rights under the Fourth and Fourteenth Amendments to the United States Constitution. CV-03-223, Doc. No. 219. Hickenbottom was awarded compensatory damages in the amount of $4,004,058.00. CV-03-223, Doc. No. 223. He was also awarded a total of $24,000,000.00 in punitive damages, which was evenly split between Nassan and Curry. Id.
Baranowski's Motion for Reconsideration is based on two separate issues.*fn1 First, Baranowski argues that the Court erred in determining that Waters and Depp had not intelligently waived one aspect of their statute of limitations defense (i.e., the argument that the filing of the praecipe in a Pennsylvania state court did not toll the running of the statute of limitations for purposes of this action). Doc. No. 63 at ¶¶ 3-23. Second, he contends that the Court erred in concluding that the "speech" for which he was constructively discharged was made pursuant to his "official duties" and, hence, was not protected by the First and Fourteenth Amendments for purposes of employer discipline.*fn2 Id. at ¶¶ 24-34. These issues will be addressed seriatim.
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). The United States Court of Appeals for the Third Circuit has held that a prior judgment may be altered or amended if the party asking for reconsideration of that judgment can establish:
(1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the judgment in question was entered; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Cafe v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Baranowski appears to base his Motion for Reconsideration on the need to correct a clear error of law or fact with respect to the statute of limitations issue and on the availability of new evidence (i.e., testimonial evidence from the Hickenbottom trial) with respect to the First Amendment issue.
A. The Application of the Statute of Limitations The Effect of the Praecipe on the Instant Action
The dispute concerning the application of the statute of limitations in this case can only be understood by reference to the procedural history of the present controversy. 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 these complaints were sustained by Waters on June 30, 2003, which was the date on which Waters allegedly told Baranowski that his job was in jeopardy. Doc. No. 26-10, pp. 122-125. In order to avoid being discharged, Baranowski gave the PSP his "notice of retirement" on July 7, 2003. Doc. Nos. 45, ¶ 49, 49, ¶ 49. Waters apparently sustained the other two complaints at some point during the following three to four months. Id., ¶ 42.
Congress did not establish a statute of limitations for actions brought pursuant to § 1983. Therefore, the Court must resort to 42 U.S.C. § 1988(a), which the United States Supreme Court has construed to require the application of the relevant state's statute of limitations for personal injury actions in actions brought under § 1983. Wilson v. Garcia, 471 U.S. 261, 276-280 (1985). In Pennsylvania, the applicable limitations period is two years. 42 Pa.C.S. § 5524(2), (7).
The first action taken by Baranowski against Waters and Depp occurred on May 23, 2005. On that date, 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. Under Pennsylvania law, this action was sufficient to commence a civil action against Waters and Depp in the Court of Common Pleas. Pa. R. Civ. P. 1007. Although the praecipe was filed less than two years after Waters sustained the complaints which had been lodged against Baranowski, it was filed more than two years after Depp initiated those complaints.
On September 30, 2005, Baranowski commenced this action against Waters and Depp, alleging violations of the First and Fourteenth Amendments. Doc. No. 1. The case was originally assigned to Judge Thomas Hardiman, who was a member of this Court. A status conference was held before Judge Hardiman on November 3, 2006. Doc. No. 11. The record indicates that no court reporter was present for this status conference. Id.
A status conference was held before the undersigned Judge on April 27, 2007.*fn3 A court reporter was present for this status conference. Baranowski has presented a transcript of this status conference in support of his Motion for Reconsideration. Doc. No. 63-2. A close examination of this discussion reveals that the parties had ascertained that it would be a waste of judicial resources for Baranowski to file a complaint in the Court of Common Pleas, only to have the Defendants remove the case to this Court at some later point. On that occasion, counsel for Baranowski stated that if the filing of the praecipe had not tolled the statute of limitations applicable to this action, the action in the Court of Common Pleas could still be pursued. Id. at 4. Counsel for the Defendants observed that, since he would remove the original case to this Court in any event, it would be "silly" for him to raise the timeliness argument in this case. Id. He also stated that his clients would not raise an "error of technicality" that did not have an impact on their substantive rights. Id.
Four months later, on August 23, 2007, Waters and Depp filed a Motion for Summary Judgment. Doc. No. 23. In support of their Motion for Summary Judgment, the Defendants relied on Pennsylvania's two-year statute of limitations. They pointed out that this action had clearly been commenced beyond the expiration of the statute of limitations, and that it could be deemed to have been timely commenced only if the filing of the praecipe were viewed as having "constructively" commenced this action. Doc. No. 24, p. 3. As the Defendants put it, this action could be rendered timely only if the "antecedent state court action" constituted a "proper substitute" for the timely commencement of the action in this Court. Id. The Defendants went on to state that the tardy filing of the action in this Court posed a potential hurdle to this Court's subject matter jurisdiction, thereby placing the onus on the Court to examine the issue further. Id. at 3-4. In addition to this argument, the Defendants raised two additional arguments concerning the statute of limitations. First, they argued that any claims against Depp were time-barred regardless of whether the entire action was time-barred, since his initiation of the disciplinary complaints against Baranowski had occurred more than two years prior to the filing of the praecipe. Id. at 4-5. Second, they contended that Baranowski had not complied with Pennsylvania Rule of Civil Procedure 422, which required him to serve the Pennsylvania Office of the Attorney General as well as the Defendants personally. Doc. No. 48 at 14, ¶ 7.
In his responsive brief, Baranowski refuted each of the arguments raised by the Defendants. With respect to the question of whether the entire action was barred by the statute of limitations, he argued that, under Pennsylvania law, the filing of the praecipe had been sufficient to commence an action against Waters and Depp. Doc. No. 43 at 12-13. He went on to argue that Rule 422 was inapplicable to this action, since Waters and Depp were being sued in their individual capacities rather than in their official capacities. Id. at 13. Finally, he asserted that the claims against Depp had been timely filed, given that his constructive discharge had not occurred until July 2003. Id. at 13-14. Neither Baranowski nor the Defendants made any reference in their filings to the existence of an understanding whereby the Defendants had agreed to waive their timeliness argument concerning the relationship between the timely filing of the praecipe and the untimely commencement of this action in order to avoid the need for further proceedings in the Court of Common Pleas.
In a memorandum opinion dated March 18, 2008, this Court granted the Defendants' Motion for Summary Judgment on two alternative grounds. First, the Court concluded that the entire action was barred by the statute of limitations. Baranowski, 2008 WL 728366, at *4-12. Second, the Court determined that Baranowski's "speech," though constitutionally protected from sovereign governmental actions, did not enjoy constitutional protection from employer discipline under the Supreme Court's decision in Garcetti v. ...