The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
In this memorandum opinion the court considers the motion for partial summary judgment (Docket No. 48) filed by plaintiff Keith Guthrie ("plaintiff" or "Guthrie"), addressing the sole issue of liability against defendant Wilkins Township ("Wilkins Township" or "Township") for allegedly maintaining and enforcing a policy violative of the First Amendment to the United States Constitution. Also pending before the court and considered in this opinion is the motion for summary judgment (Docket No. 52) filed by defendants Rebecca Bradley ("Bradley"), Paul Vargo ("Vargo"), William G. Wilson ("Wilson")(collectively "individual defendants") and Wilkins Township (together with "individual defendants", "defendants") against all claims asserted by plaintiff in his amended complaint. (Docket No. 42.) After considering the joint statements of material facts,*fn1 the other submissions of the parties, and based upon the undisputed facts of record, viewing all disputed facts in favor of the nonmoving party and drawing all reasonable inferences in favor of the nonmoving party, plaintiff's motion for partial summary judgment will be granted and defendants' motion for summary judgment will be denied with respect to the chain of command policy challenge, and granted in all other respects.
Factual and Procedural Background
Wilkins Township is a body politic organized and existing under the laws of the Commonwealth of Pennsylvania and is a first class township situated in Allegheny County. (Defs.' Facts ¶ 1; Pl.'s Facts ¶ 3.) It is governed by a board of commissioners. (Defs.' Facts ¶ 2; Pl.'s Facts ¶ 4.) Wilson is a member of the board of commissioners and for a period of time was the president of the board. (Defs.' Facts ¶ 9; Pl.'s Facts ¶ 8.) The township manager is Bradley and Vargo is the assistant township manager, as well as the public works supervisor. (Defs.' Facts ¶¶ 3, 7; Pl.'s Facts ¶¶ 5, 6.) Guthrie serves as the chief of police of Wilkins Township, a position he has held since 2000. (Defs.' Facts ¶ 11; Pl.'s Facts ¶ 2.)
Certain facts referred to by the parties do not fit neatly into an organized rendering of this case's background and are not particularly germane to the disposition of the motions before the court. These facts will be described here only in order to be as inclusive as possible. First, Bradley and Vargo enjoy a personal relationship and share a residence. (Defs.' Facts ¶ 40; Pl.'s Facts ¶ 7.) Second, prior to his election to the board of commissioners, Wilson served as the chief of police of Wilkins Township, during which time plaintiff was a sergeant on the police force. (Defs.' Facts ¶¶ 10, 12; Pl.'s Facts ¶ 8.) In January 1997, and February 1998, plaintiff reported to the township commissioners his concerns about certain aspects of Wilson's conduct as police chief. (Defs.' Facts ¶¶ 13-14.)
On February 27, 2006, a memorandum was issued by the Township detailing the "chain of command" policy in effect for Wilkins Township employees. (Defs.' Facts ¶ 23; Pl.'s Facts ¶ 18.) The language in issue was contained in one paragraph, and stressed that, other than the Township manager, no employee was permitted to address issues to the board of commissioners, or any member of the board, without first obtaining permission from the Township manager and, for police officers and public works employees, the appropriate supervisor. The proscription applied only to issues related to Township business and not to unrelated matters, such as social relationships between a board member and an employee. (Pl.'s App. in Supp., Ex. 1.) The language read as follows:
It should be clear that, in no case, is an employee (other than the Township Manager) permitted to address issues to the Board of Commissioners (or any member thereof) without the express permission and/or knowledge of the Township Manager OR, in the case of members of the police and DPW workforce, the permission and knowledge of their immediate supervisors and the Township Manager. Obviously, this does not include issues which are not Township business (i.e. social relationships between Board members and employees).
The purported catalysts for the issuance of the memorandum were two vaguely referenced instances of employees violating the policy by speaking directly to a commissioner. (Defs.' Facts ¶ 24.) According to statements attributable to the individual defendants, the chain of command policy detailed in the February 27, 2006 memorandum did not announce a new policy, but rather reiterated an existing policy in effect "since the 1960s," and Township employees were free to neither disregard nor go outside the chain of command. (Pl.'s Facts ¶¶ 20-22; Pl.'s App. in Supp., Ex. 3, at 50-51; Id. Ex. 5 at 110; Id. Ex. 7, at 110-11, 226-27.) The February 27, 2006 memorandum was revised in April 2006, to reflect some changes suggested by the American Civil Liberties Union. (Pl.'s Facts ¶ 19.) Significantly, the language in issue did not appear in the revised version. (Pl.'s App. in Supp., Ex. 16.)
Prior to the issuance of the memorandum, plaintiff alleges numerous instances in which his attempts to speak out were thwarted. On March 14, 2000, defendant Wilson, then chief of police, issued a memorandum to "Sgt. Guthrie and all Patrol Officers" prohibiting police officers from speaking with any commissioner about police department operations while the officer was delivering mail. (Pl.'s Facts ¶ 9.) On June 23, 2005, Wilson, then president of the board of commissioners, issued a memorandum to plaintiff reminding him of the Wilkins Township chain of command policy. (Id. ¶ 15.) A September 21, 2005 memorandum from Bradley to plaintiff warned plaintiff not to contact the Township solicitor without Bradley's prior approval. (Id. ¶ 16.) On February 21, 2006, plaintiff authored a memorandum regarding a letter written by Bradley that was published in the Pittsburgh Post-Gazette. (Defs.' App. in Opp., Ex. 3.) By memorandum dated February 22, 2006, Bradley informed plaintiff that Bradley had removed the memorandum from the commissioners' mailboxes, and warned that any future attempts by plaintiff to submit correspondence to the solicitor or violate the chain of command by communicating with commissioners without her prior authorization would lead to disciplinary action against plaintiff. (Id. Ex. 4.)
Plaintiff, however, continued to express his concerns about Township practices with which he did not agree both before and after the issuance of the February 27, 2006 memorandum. (Defs.' Facts ¶ 27.) Between 2003 and 2005, plaintiff objected to several "orders" he was given by defendants Bradley, Vargo and Wilson. (Id. ¶ 19.) The specific orders with which plaintiff disagreed pertained to requests to "fix" tickets, an order to provide a police department key to a civilian employee, interference with police scheduling, removing a citizen from the municipal building, relinquishing a letter from a citizen and being required to write a traffic signal maintenance proposal.*fn2 (Id.)
With respect to requests to "fix tickets," plaintiff stated, "I therefore maintained my decision not to withdraw the ticket, as doing so would have been contrary to police rules and regulations." (Pl.'s App. in Opp., Ex. A ¶ 25.) Plaintiff reported the so-called "ticket-fixing" orders to the Allegheny County District Attorney and to the Federal Bureau of Investigation ("FBI") respectively in September and November 2005. (Id. ¶ 28.) At least partially because of these reports, plaintiff was twice suspended from duty. (Id.) Defendants deny knowledge about plaintiff's report to the FBI. (Id. ¶¶ 29, 33.)
With respect to providing a police department key, plaintiff wrote: I received your letter directing me to provide a key to Dave Geric giving him access to the Police Department. As we discussed yesterday, this order is in conflict with the Pennsylvania Crimes Code Section 9131 directing criminal justice agencies to provide security for criminal history record information. It also gives access to C.L.E.A.N. information which is also against site security requirements by the PA State Police. I have also spoken with Agent Lenny Zenkel of the Attorney General's Office. He concurs that this would violate C.H.R.I.A. (Criminal History Records Information Act). (Defs.' App. in Opp., Ex. 9.)
With respect to plaintiff's exception to Bradley's interference with police department scheduling, plaintiff testified in his deposition that scheduling was one of the duties of the chief of police. He testified as follows:
Q: Did you have additional duties as chief?
A: It would have been scheduling all of the police personnel . . . . (Guthrie Dep. 83, May 1, 2007.)
With respect to removing a citizen from the municipal building, plaintiff's declaration describes the incident this way:
In June 2004, a Township citizen visited my office to discuss possible drug trafficking in her neighborhood. Bradley entered my office and interrupted the conversation. Shortly thereafter, Bradley and the citizen began arguing, at which point Bradley stated that she thought the citizen should leave. The citizen left the building and I responded to an emergency call. Upon my return, Bradley reprimanded me for failing to follow her "order" to remove the citizen. She gave no such "order," and in any event, I did not believe there was a basis to force a citizen from the Township building who was discussing a Township issue and not violating any law or ordinance. I was formally reprimanded that same month for failure to follow Bradley's "order" to remove the citizen, because I should have "sensed" that Bradley wanted me to remove the citizen. (Pl.'s App. in Opp., Ex. A. at 5-6.)
With respect to records, Wilkins Township Resolution No. 4-77, defining the duties of police department personnel in effect during the time relevant to this lawsuit, under the heading "Chief of Police," stated: "Supervises all police department records." (Defs.' App. in Opp., Ex. 14.) Plaintiff testified as follows:
Q: Okay. And you supervise all police department records. Is that what we talked about earlier?
Q: You're responsible for maintaining the accuracy, the completeness, the security of police records?
A: Correct. (Guthrie Dep. 88-89.)
An article published in the Woodland Progress on January 25, 2006, and a letter to the editor published in the Pittsburgh Post-Gazette newspaper on February 16, 2006, contain statements made by Bradley that plaintiff alleges are defamatory and cast him in a false light. (Id. ¶¶ 34, 50.) Plaintiff further asserts that two e-mails authored by Bradley and sent to Post-Gazette reporter, Bill Heltzel, with copies to various Township personnel, are likewise defamatory and cast him in a false light. (Id. ¶¶ 38, 45, 50.) The first e-mail of January 5, 2006 (the "January e-mail"), discusses disciplinary action taken by the Township against plaintiff, and reads in relevant part:
In each case where disciplinary action has been brought against the Chief, the reasons for this action have been documented in correspondence to the Chief. It is obvious to me from this latest article that the Chief is trying to "spin" these issues in his favor. I think if you had an opportunity to review the letters of discipline, that you would have a much more accurate view of why the Township has taken the actions that it has thus far. Since the Chief has been so receptive to media attention, you may want to explore this avenue with him. My bet is he will not share these documents with you.
[A]pparently, the Chief feels that he can take advantage of the required silence of the Commissioners by relaying half-truths to the media in [an] attempt to gain public sympathy. (Defs.' App. in Supp., Ex.27.)
The second e-mail, dated July 12, 2006 (the "July e-mail"), related the events occurring at a Township meeting in relevant part as follows:
I would ask that the following information be kept 'off the record.' I feel that I have been working with you long enough now that I can give you some of the colorful background without fear that you will print it in association with me. . . .
You have attended enough meetings that you now know who the "players" are. It is obvious that Mr. Gibbons' supporters were none other than the wife of Mr. Hearn (lawsuit) and the daughter of Chief Guthrie (the Chief is out of town at training this week), as well as a former member of the Board of Commissioners who ran against Mr. Wilson. . . . Mr. Gibbons now claims to have retained the same attorney who is representing Guthrie in his lawsuit - is that a coincidence? (you might want to check on that . . . ).
After Mr. Gibbons finished speaking, Mrs. Hearn and Chief Guthrie's daughter (as well as Gibbons) left the meeting. Mrs. Hearn was the voice of taxpayer concern at the meeting - demanding that the Board hear what Gibbons had to say. . . .
This entire act was illicited [sic] for the sole purpose of trying to spread a little dirt. Why? Does it help the Hearns' [sic] and/or the Guthries' [sic] in their respective lawsuits? . . . Or, is there really some underlying reason why Mr. Gibbons felt the need to tell on me and Paul in a public forum because of the impact our actions would have on the public or in the performance of our duties as township employees? (Defs.' App. in Supp., Ex.25.)
Plaintiff commenced the instant action by filing a complaint with this court on May 8, 2006, against Wilkins Township, Bradley, Vargo, Wilson, Frank Greco, Sylvia Martinelli and Paul Padula asserting claims under the Pennsylvania Whistleblower Law and the First Amendment to the United States Constitution. Defendants filed a motion to dismiss on June 22, 2006, which was addressed at a motion hearing held August 15, 2006, in conjunction with a case management conference. Defendants answered plaintiff's complaint on October 6, 2006, and plaintiff filed an amended complaint on October 25, 2007, which did not name Frank Greco, Sylvia Martinelli or Paul Padula but asserted additional claims of defamation, false light invasion of privacy, defamation per se and civil conspiracy. On October 31, 2007, Frank Greco, Sylvia Martinelli and Paul Padula were officially terminated from this action by the court. On November 5, 2007, defendants answered plaintiff's first amended complaint. Plaintiff filed a motion for partial summary judgment on January 30, 2008, addressing only the constitutionality of the Wilkins Township chain of command policy. Defendants filed their summary judgment motion on February 4, 2008, asserting that judgment in their favor should be granted with respect to all claims raised in plaintiff's first amended complaint. Supporting and opposing submissions were filed, the court now addresses the pending motions.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "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). 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, Inc., 477 U.S. 242, 247-48 (1986). 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 nonmoving party. Id. at 249. The court is to draw all reasonable inferences in favor of the nonmoving party. El v. Southeastern Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir.2007)("In considering the evidence, the court should draw all reasonable inferences against the moving party."). The United States Court of Appeals for the Third Circuit has stated:
[I]f there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted. Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in ...