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Bowman v. Burroughs

December 30, 2008

JEFFREY C. BOWMAN, PLAINTIFF,
v.
CORPORAL JUDITH BURROUGHS, CAPTAIN ROBERT LIZIK, CAPTAIN LISA CHRISTIE, AND COLONEL JEFFREY MILLER, DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer U.S. District Judge

MEMORANDUM OPINION

I. Introduction

This is an action involving a police officer who claims that he was discharged in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution. Pending before the Court is a motion for summary judgment filed by the Defendants. (Docket No. 52). For the reasons that follow, that motion will be granted in its entirety.

II. Factual Background

Plaintiff Jeffrey C. Bowman ("Bowman") is an adult individual who resides in Aliquippa, Pennsylvania. (Docket Nos. 54 & 59 at ¶ 1). In October 1992, after serving in the military, Bowman became a police officer for the Pennsylvania State Police ("PSP"). (Docket No. 59 at ¶ 1). He began his career as a member of the patrol unit for Troop A, which is headquartered in Greensburg, Pennsylvania. (Id.). Three years later, he was selected to serve in the Executive Service Section of the PSP, which is sometimes referred to as the Governor's detail. (Id.). He was subsequently transferred to the Criminal Investigation Unit of Troop D, which is headquartered in New Castle, Pennsylvania. (Id.).

Bowman was married in 1996. (Docket No. 52-3 at 8). By the summer of 2003, he and his wife had separated. (Id. at 17). In June 2003, while accessing an Internet chat room, Bowman became acquainted with Jodi Rusnak ("Jodi").*fn1 (Docket No. 59 at ¶ 3). After communicating with Bowman via email for approximately one week, Jodi invited Bowman to come to her house. (Id.). The two became romantically involved, and they had a sexual relationship for approximately eighteen months. (Docket No. 52-3 at 15-24).

In January 2005, Jodi's husband, Dale Rusnak ("Dale"), found out about Bowman's relationship with Jodi. (Id. at 24). Jodi called Bowman and told him that Dale had learned of their affair. (Id. at 24-25). The next day, Dale called Bowman on the telephone. (Id. at 25). Bowman apologized to Dale for having a sexual relationship with Jodi. (Id.). Although Bowman and Jodi did not continue to engage in sexual relations, they remained in contact with each other via email. Dale apparently discovered that they had continued to communicate with each other. (Id. at 30). This discovery prompted Dale to file an ethics complaint against Bowman. (Id.).

On April 26, 2005, Dale contacted the PSP's Bureau of Integrity and Professional Standards concerning Bowman's actions in relation to Jodi. (Docket No. 52-2 at 3). Dale alleged, among other things, that Bowman had engaged in sexual activity with Jodi while on duty and sent sexually explicit emails to Jodi from his PSP email account. (Id.). Defendant Corporal Judith Burroughs ("Burroughs"), an investigator for the PSP's Internal Affairs Division ("IAD"), interviewed Bowman about Dale's complaint on July 18, 2005. (Id. at 2-53). Lieutenant Donald T. Carnahan ("Carnahan"), the commander of the IAD's Western Section, and Trooper Shawn P. Denham ("Denham"), Bowman's union representative, were present for this interview. (Id. at 3). On that occasion, Bowman admitted that he had accessed Jodi's personal email account without her knowledge or permission in order to monitor her communications with other men. (Id. at 37-39).

On September 2, 2005, Defendant Captain Robert Lizik ("Lizik") signed a Disciplinary Action Report ("DAR") concerning Bowman's conduct. (Docket No. 52-4 at 2). In the DAR, Lizik stated that Bowman's accessing of Jodi's personal email account had constituted the "unlawful use of a computer" within the meaning of 18 PA. CONS. STAT. § 7611(a)(2), which is graded as a third-degree felony under Pennsylvania law. (Id.). On February 27, 2006, Bowman was informed that he had been accused of offenses for which he could be subject to a court-martial proceeding, and that he had the option of challenging the accusations through the grievance procedure rather than through the court-martial procedure.*fn2 (Id. at 27). Bowman elected to proceed in accordance with the grievance procedure. (Doc. No. 59-4 at 2). The next day, Lieutenant Byron L. Locke ("Locke") sent Bowman a memorandum informing him that he had been placed on "restricted duty status." (Id. at 3, 9-10). Bowman was prohibited from having contact with the Rusnaks, and he was not permitted to identify himself as a member of the PSP or otherwise act as a police officer when he was not on duty. Id. On March 30, 2006, Bowman was suspended without pay. (Id. at 4). He was required to surrender his badge, identification card and firearm. (Id.). With the concurrence of Defendant Colonel Jeffrey Miller ("Miller"), who was the Commissioner of the PSP, Defendant Captain Lisa Christie ("Christie") recommended that Bowman's employment with the PSP be terminated. Bowman was informed of his impending termination on April 6, 2006. (Docket No. 52-4 at 27-28). He invoked the grievance procedure on April 17, 2006, challenging his dismissal on the ground that it had been in violation of the applicable collective bargaining agreement.*fn3 (Id. at 28).

Arbitration proceedings were conducted before Arbitrator William E. Caldwell ("Caldwell") on June 6, 2006, and July 11, 2006. (Docket No. 52-4 at 28; Docket No. 52-5 at 2-30). In a decision dated August 23, 2006, Caldwell denied Bowman's grievance. (Docket No. 52-5 at 27-30). He concluded that Bowman's dismissal had been in conformity with the collective bargaining agreement because Bowman's accessing of Jodi's personal email account had been in violation of § 7611(a)(2).*fn4 (Id. at 29-30). The relevant language of the collective bargaining agreement provided that an officer who had engaged in "any action that constitutes the commission of a felony" should be terminated from employment with the PSP "notwithstanding any mitigating circumstances." (Docket No. 52-4 at 20). Consequently, Bowman's employment with the PSP was terminated at midnight on August 23, 2006. (Id. at 28).

Bowman commenced this action against Burroughs, Lizik, Christie, Miller, Jodi and Dale on February 15, 2007. (Docket No. 1). He alleged that Burroughs, Lizik, Christie and Miller had violated his rights under the Due Process Clause of the Fourteenth Amendment, and that Lizik, Christie and Miller had violated his rights under the Equal Protection Clause of the Fourteenth Amendment. (Id. at ¶¶ 31-39). He asserted defamation claims arising under Pennsylvania law against the Rusnaks. (Id. at ¶¶ 40-44). In their answer to Bowman's complaint, the Rusnaks filed cross-claims against Burroughs, Lizik, Christie and Miller for contribution and indemnity. (Docket No. 21). On November 27, 2007, Bowman withdrew his claims against the Rusnaks. (Docket Nos. 41 & 42). The Rusnaks' cross-claims against Burroughs, Lizik, Christie and Miller were subsequently dismissed on December 3, 2007. (Docket No. 45).

On April 30, 2008, Burroughs, Lizik, Christie and Miller filed a motion for summary judgment. (Docket No. 52). Bowman replied on June 6, 2008, filing a brief in opposition to the motion for summary judgment. (Docket No. 58). Three days later, the United States Supreme Court issued its decision in Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146, 2148-2149 (2008), holding that the "class of one" theory of equal protection previously recognized in Village of Willowbrook v. Olech, 528 U.S. 562 (2000), "has no place in the public employment context." On July 28, 2008, the Court ordered the parties to file supplemental briefs concerning the applicability of Engquist to this case. (Docket No. 60). Bowman and the Defendants filed their supplemental briefs on August 15, 2008, and September 5, 2008, respectively. (Docket Nos. 61 & 62). On October 30, 2008, the Court ordered the Defendants to file supplemental information regarding the terms of the applicable collective bargaining agreement. (Docket No. 63). The Defendants filed this supplemental information on November 19, 2008. (Docket No. 64). Pursuant to a subsequent order of the Court dated November 26, 2008, the Defendants and Bowman filed additional briefs on December 5, 2008, and December 24, 2008, respectively. (Docket Nos. 65, 66 & 68). The motion for summary judgment filed by the Defendants is the subject of this memorandum opinion.

III. Standard of Review

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).

IV. Discussion

Bowman brings his claims pursuant to 42 U.S.C. § 1983, which provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. This statute does not create substantive rights. Maher v. Gagne, 448 U.S. 122, 129, n. 11 (1980). Consequently, a plaintiff cannot prevail in an action brought under § 1983 without establishing an underlying violation of a federally-protected right. Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992). "Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right."

Board of County Commissioners v. Brown, 520 U.S. 397, 405 (1997)(internal quotation marks omitted).

Although the statutory language of § 1983 speaks of no immunities, the United States Supreme Court has always assumed that Congress would have expressly made common-law immunities inapplicable to § 1983 actions within the language of the statute if it had intended to do so. Pierson v. Ray, 386 U.S. 547, 554-555 (1967). For this reason, the "qualified immunity" that was available to state officials at common law is available to defendants such as Burroughs, Lizik, Christie and Miller. Kalina v. Fletcher, 522 U.S. 118, 131-135 (1997)(Scalia, J., concurring). As a general matter, government officials performing discretionary duties are "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). State officials can be on notice that their conduct violates clearly established federal law even under novel factual circumstances. Hope v. Pelzer, 536 U.S. 730, 741 (2002). This is because "general statements of law are not inherently incapable of giving fair and clear warning." United States v. Lanier, 520 U.S. 259, 271 (1997). In order for a federally protected right to be "clearly established" for purposes of qualified immunity, "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987). Qualified immunity is not merely a defense to liability, but "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Consequently, the Supreme Court has "stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991)(per curiam).

In support of their motion for summary judgment, the Defendants argue that they are entitled to qualified immunity. (Docket No. 53 at 5-10). The question of qualified immunity, however, cannot be confronted without a threshold determination as to whether Bowman can establish an underlying violation of a federally-protected right in the first place. In Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court clarified the framework that must be employed by a court in determining whether a particular defendant is entitled to qualified immunity. Speaking through Justice Kennedy, the Supreme Court explained that a court evaluating a defendant's claim of qualified immunity must first decide whether the plaintiff can establish an actionable violation of federal law. Saucier, 533 U.S. at 200-201.

Since this issue is before the Court at the summary judgment stage, the relevant question is whether Bowman has presented sufficient evidence to enable a reasonable jury to conclude that the Defendants violated his rights under the Fourteenth Amendment when they terminated his employment with the PSP. Behrens v. Pelletier, 516 U.S. 299, 309 (1996). If this question is answered in the affirmative, the next question for consideration is whether the rights asserted by Bowman were clearly established at the time of the alleged constitutional violations. This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition." Saucier, 533 U.S. at 201. The dispositive question is whether it would have been clear to reasonable officers in the position of Burroughs, Lizik, Christie and Miller that their conduct was unlawful under the particular circumstances that they confronted. Id. at 202. The standard is objective, viewing the relevant circumstances from the perspective of an objectively reasonable officer. Showers v. Spangler, 182 F.3d 165, 171-172 (3d Cir. 1999). "As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

With that in mind, the Court now turns to the threshold question of whether Bowman can establish an underlying violation of a federally-protected right. The federal rights upon which Bowman bases his claims arise under the Fourteenth Amendment. Section 1 of the Fourteenth Amendment provides:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. CONST., AMEND. XIV, § 1. Bowman contends that his rights under the Due Process and Equal Protection Clauses were violated when he was discharged. The Court will address the application of each of these constitutional provisions seriatim.

A. The Due Process Clause

The Due Process Clause of the Fourteenth Amendment, by its clear terms, prohibits a State from depriving a person of "life, liberty, or property, without due process of law." U.S. CONST., AMEND. XIV, § 1. Claims arising thereunder, however, can take different forms. Although the text of the Due Process Clause focuses on the process by which an individual can be lawfully deprived of a liberty or property interest, it is firmly established that the constitutional provision bars certain governmental actions "regardless of the fairness of the procedures used to implement them." Daniels v. Williams, 474 U.S. 327, 331 (1986). The Supreme Court has construed the Due Process Clause to incorporate some of the specific provisions contained in the Bill of Rights, thereby making them applicable to the States. Albright v. Oliver, 510 U.S. 266, 272-275 (1994)(plurality opinion). The Due Process Clause has also been construed to provide "heightened protection against governmental interference with certain fundamental rights and liberty interests." Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Due process protection in the "substantive sense" limits what a State may do in both its legislative and executive capacities. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

In this case, however, Bowman relies on neither a particular provision of the Bill of Rights nor the more generalized notion of substantive due process. The plain language of his complaint indicates that his claims are premised on a theory of procedural due process. (Docket No. 1 at ¶¶ 31-36). In a procedural due process case concerning the discharge of a public employee, the inquiry can be broken down into two discrete components. The first question for consideration is whether the employee "possessed a protected interest giving rise to due process protection." Garcia v. City of Albuquerque, 232 F.3d 760, 769 (10th Cir. 2000). If that question yields a positive answer, the second question for consideration is whether the public employer afforded the employee "an appropriate level of process" in terminating his or her employment. Id. These two questions directly track the language of the Due Process Clause. The first question focuses on whether the government has deprived the employee of "life, liberty, or property," while the second question focuses on whether the applicable deprivation was effected "without due process of law." U.S. CONST., AMEND. XIV, § 1.

As the Supreme Court declared in Board of Regents v. Roth, 408 U.S. 564, 570 (1972), "the range of interests protected by procedural due process is not infinite." "The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Roth, 408 U.S. at 569. Public employment is certainly a "benefit," but not all benefits constitute "property" within the meaning of the Due Process Clause. Speaking through Justice Stewart, the Supreme Court made the following observations in Roth:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

Id. at 577. In the public employment context, an employee has a "legitimate claim of entitlement" to his or her job where he or she can be discharged only for cause. Gilbert v. Homar, 520 U.S. 924, 928-929 (1997).

The parties do not appear to dispute that Bowman had a constitutionally protected property interest in his continued employment with the PSP. Pennsylvania law provides for an arbitration procedure to address impasses occurring during the collective bargaining process between a public employer and its policemen. 43 PA. STAT. § 217.4. This procedure was invoked after the pre-existing collective bargaining agreement for members of the PSP expired on July 1, 2004. (Docket No. 52-4 at 5). The arbitration process resulted in a new collective bargaining agreement that was in effect from July 1, 2004, through June 30, 2008. (Id. at 7). Bowman, of course, was terminated during that period of time. "Appendix A" of the collective bargaining agreement provided that members of the PSP "should be subject to disciplinary action only for 'just cause.'" (Id. at 20). It is clear from the language of Appendix A that "termination of employment" constituted "discipline" within the meaning of the collective bargaining agreement. (Id.). Since the collective bargaining agreement provided that police officers could be disciplined (i.e., terminated) only for "just cause," Bowman had a property interest in his continued employment.*fn5 Consequently, he suffered a "deprivation" of "property" within the meaning of the Due Process Clause when he was discharged.

A deprivation of property having been established, the Court must consider whether the deprivation at issue was effected "without due process of law." "Nothing in [the Fourteenth] Amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations 'without due process of law.'" Parratt v. Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 328-331 (1986). The essential requirements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545-548 (1985). The standard for determining what process is due in a particular situation is flexible. The very nature of the due process inquiry eschews reliance on inflexible requirements in favor of an approach which accounts for the precise factual circumstances of the situation at issue. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In Matthews v. Eldridge, 424 U.S. 319 (1976), the Supreme Court delineated the factors that must be considered in determining the "appropriate level of process" in a particular situation:

More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Matthews, 424 U.S. at 334-335. The second factor mentioned in Matthews focuses on the accuracy of the decisionmaking process at issue, as well as on the potential accuracy of any feasible alternative procedures.

The constitutional mandate of due process, however, is not a substantive guarantee that the "process" involved will necessarily yield an accurate result. The fairness of the procedure, and not the result of the procedure, is what matters. In Fuentes v. Shevin, 407 U.S. 67 (1972), the Supreme Court explained:

The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person's possessions. But the fair process of decision-making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented.

Fuentes, 407 U.S. at 81. While one of the purposes of due process is to prevent erroneous deprivations of property, an erroneous deprivation itself does not constitute a violation of the Due Process Clause. This is clear in light of the Supreme Court's decision in Carey v. Piphus, 435 U.S. 247 (1978). In Carey, the Supreme Court held that "[b]ecause the right to procedural due process is 'absolute' in the sense that it does not depend upon the merits of a claimant's substantive assertions," a denial of procedural due process is actionable under § 1983 for nominal damages without proof of actual injury. Carey, 435 U.S. at 266. This is true even if the "deprivation" at issue would still have occurred with appropriate procedural protections in place.*fn6

The converse, however, is also true. Just as a "correct decision" to deprive an individual of property is unconstitutional if the government does not provide "due process of law," an "incorrect decision" to deprive him or her of property is constitutionally permissible if "due process of law" is properly provided. Harris v. City of Akron, 20 F.3d 1396, 1404 (6th Cir. 1994).

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Supreme Court recognized that, in the public employment context, pre-termination hearings can serve two distinct purposes. The first purpose served by a pre-termination hearing is to permit the employee to present his or her view of the facts, thereby increasing the chances of "an accurate decision" with respect to any disputed factual questions. Loudermill, 470 U.S. at 543. The second purpose served by such a hearing is to give the employee an opportunity "to invoke the discretion" of the person responsible for making the termination decision in a situation where "the appropriateness or necessity of the discharge" is subject to dispute. Id. A close examination of the record reveals that neither of these purposes could have been furthered by additional procedures in this case. In this case, it is clear that Bowman was provided with an opportunity to be heard by way of the grievance and arbitration procedures available to members of the PSP. Similar procedures have been found to be in conformity with the requirements of the Due Process Clause. Dykes v. Southeastern Pennsylvania Transportation Authority, 68 F.3d 1564, 1571-1572 (3d Cir. 1995). In truth, it is not clear to the Court what additional process Bowman believes to have been necessary.

At the time of Bowman's discharge, Appendix A of the applicable collective bargaining agreement provided, in pertinent part, as follows:

Certain conduct immediately and absolutely threatens the integrity of the Department's public duty and responsibility. In the following circumstances, the proper level of discipline is termination of employment, notwithstanding any mitigating ...


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