The opinion of the court was delivered by: Conti, District Judge
This case concerns a police officer, plaintiff Erik Schlarp ("plaintiff" or "Schlarp"), who contends that he was wrongfully denied a promotion in retaliation for his exercise of rights protected under the First and Fourteenth Amendments to the United States Constitution. Pending before the court is a motion for summary judgment filed by defendants Paul Dern, Steve Taylor and Plum Borough ("defendants"). For the reasons that follow, that motion will be granted.
Pennsylvania has a statutory process for filling vacancies which arise in a borough police force. Each borough which maintains "a police force or paid fire apparatus operators" has a "civil service commission," which consists of three commissioners appointed by the borough council for terms of six years. 53 PA. STAT. ANN. § 46172. In a given borough, the civil service commission is empowered to promulgate, with the approval of the borough council, rules and regulations "providing for the examination of applicants for positions in the police force and as paid operators of fire apparatus and for promotions, which rules and regulations shall prescribe the minimum qualifications of all applicants to be examined and the passing grades." 53 PA. STAT. ANN. § 46181. The applicable statutory provision provides that "[a]ll examinations for positions or promotions shall be practical in character and shall relate to such matters and include such inquiries as will fairly test the merit and fitness of the persons examined to discharge the duties of the employment sought by them." Id. The borough council is to notify the civil service commission of any vacancy that needs to be filled, and to "request the certification of a list of eligibles." 53 PA. STAT. ANN. § 46184. For each vacancy, the civil service commission must list the names of the three individuals with the highest scores on examinations created by the commission. Id. The borough council, "with sole reference to the merits and fitness of the candidates," must fill the vacancy by choosing one of the three individuals on the list provided by the civil service commission.*fn2 Id.
Defendant Plum Borough ("Plum") enacted ordinances to effectuate its responsibilities under Pennsylvania law. Applicants for the position of sergeant are given a written examination evaluating their reasoning ability, problem solving skills, reading comprehension skills, observational skills, ability to read charts and maps, analytical skills and temperament. PLUM BOROUGH, PA. CODE OF ORDINANCES § 33.045. Applicants are also given an oral examination, which is directed toward determining whether a particular applicant is resourceful and otherwise able to handle the pressures experienced by sergeants on a routine basis. Id. The written examination is worth seventy points, and the oral examination is worth thirty points. Id. A minimum score of 70% on each examination is required of any applicant who wishes to receive consideration for an appointment to the position of sergeant. Id. Applicants who fail to complete successfully the written examination are not permitted to take the oral examination. Id.
Plum's Civil Service Commission ("Commission") is charged with the duty of tallying the weighted scores of the applicants and compiling a list of those eligible for appointment in the order of their combined scores. PLUM BOROUGH, PA. CODE OF ORDINANCES § 33.045. The Commission certifies to the Plum Borough Council ("Council") a promotional list which includes the three highest scorers for the first vacancy and the next highest scorer for each additional vacancy. Id. The Council selects an applicant from this list to fill the vacancy in question.
In 2005 Schlarp, a police officer employed by the Plum Borough Police Department ("Police Department"), was seeking to be promoted to the position of sergeant. On January 19, 2005, the Commission certified an eligibility list on which Schlarp was ranked second with a score of 79.7. (Defs.' Ex. C (Docket No. 37-5).) James Miller ("Miller") was ranked first with a score of 81.9, Jay Kapusta ("Kapusta") was ranked third with a score of 79, Darryl Granata ("Granata") was ranked fourth with a score of 74.9, and Eric Fluent was ranked fifth with a score of 72.7. (Id.)
At the time of the personnel decision at issue, the members of the Council were Paul Dern ("Dern"), Richard Hereda ("Hereda"), Jeffrey Russo ("Russo"), Steve Taylor ("Taylor"), Don Flickinger ("Flickinger"), Russ Oft ("Oft"), and Chuck McMeekin ("McMeekin"). On May 9, 2005, the Council unanimously approved a motion to promote Miller to the position of sergeant. (App. to Pl.'s Counterstatement of Material Facts, Ex. P-9.) At the same meeting, Russo made a motion to fill a second sergeant vacancy by promoting Kapusta. (Id.) That motion was seconded by Taylor. (Id.) Oft made a motion to table the matter, inquiring as to why Schlarp, who had received a higher score than Kapusta, was not receiving the promotion. (Id.) Oft was supported by Flickinger and McMeekin. (Id.) Russo expressed the view that Kapusta was the best remaining candidate for the position. (Id.) Plum Mayor John Schmeck ("Schmeck") recommended that Kapusta receive the promotion. (Id.) Kapusta received the support of Dern, Hereda, Russo and Taylor. (Id.) Oft, Flickinger and McMeekin opposed the move. (Id.) Kapusta was officially appointed as a sergeant at a subsequent meeting held on July 11, 2005. (App. to Pl.'s Counterstatement of Material Facts, Ex. P-10.) Flickinger and McMeekin voted against the appointment. (Id.) Oft was apparently absent on that occasion. (Id.)
Schlarp commenced this action against Dern, Hereda, Russo, Taylor and Plum on August 17, 2006, alleging that they had violated his rights under the First and Fourteenth Amendments to the United States Constitution, as well as his rights under 42 U.S.C. § 1985, by failing to promote him on the basis of his political affiliation. (Complaint ("Compl.")(Docket No. 1).) His constitutional claims were brought pursuant to 42 U.S.C. § 1983. (Id.) The case was assigned to a district judge.*fn3 The defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on October 16, 2006. (Motion to Dismiss ("Mot. to Dismiss") (Docket No. 6).)
On January 17, 2007, while the motion to dismiss was still pending, the parties filed a stipulation which provided as follows:
It is hereby stipulated that any claims pursuant to 42 U.S.C.A. § 1983 alleged in Plaintiff's Complaint based on or arising out of the political affiliation of Erik Schlarp or any of the Defendants is withdrawn with prejudice from this suit. It is also stipulated that any claims for conspiracy pursuant to 42 U.S.C.A. § 1985 based on or arising out of the political affiliation of Erik Schlarp or any of the Defendants is withdrawn with prejudice from the suit. It is finally stipulated that the above stipulations in no way impact the remaining disputed issues raised in the Defendants' pending 12(b)(6) Motion. (Docket No. 17-2.) The district judge partially granted the motion to dismiss on April 2, 2007. (Docket No. 18.) The First Amendment claims against Hereda and Russo were dismissed without prejudice. (Id.) The Fourteenth Amendment claims (except to the extent that the Fourteenth Amendment was relied upon as the basis for applying the First Amendment to state actors) were dismissed with prejudice, as were the § 1985 claims. (Id.) The motion to dismiss was denied with respect to the First Amendment claims against Dern, Taylor and Plum. (Id.) Schlarp was given until April 18, 2007, to file an amended complaint setting forth First Amendment claims against Hereda and Russo. (Id.)
On April 18, 2007, the case was reassigned to the undersigned judge. (Docket No. 21.) Schlarp never amended his complaint to assert claims against Hereda and Russo. On April 25, 2007, the court issued an order indicating that the claims against Hereda and Russo were being dismissed with prejudice. (Docket No. 23.) The defendants filed a motion for summary judgment on May 22, 2008. (Motion for Summary Judgment ("Mot. for Summ. J.") (Docket No. 38.)) That motion is the subject of this memorandum opinion.
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all reasonable inferences in favor of the nonmoving party, "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant 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 only if there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether a 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.
Before addressing the matters in contention, the court notes that Schlarp 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). 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, 119-20 (1992). "Section 1983 itself contains no state-of-mind requirement independent of that necessary to state a violation of the underlying federal right." Bd. of County Comm'rs v. Brown, 520 U.S. 397, 405 (1997) (internal quotation marks omitted).
All the remaining claims in this case are based upon the First Amendment. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. CONST. AMEND. I. The provisions of the First Amendment are applicable to state actors by virtue of the Due Process Clause of the Fourteenth Amendment. United Bhd. of Carpenters & Joiners of America v. Scott, 463 U.S. 825, 831 (1983).
A. The Administrative Nature of the Council's Personnel Decision
Although the language of § 1983 speaks of "immunities secured by the Constitution and laws," 42. U.S.C. § 1983, the United States Supreme Court has always assumed that Congress would have expressly made common-law immunities inapplicable to § 1983 actions within the statutory text if it had intended to do so. Pierson v. Ray, 386 U.S. 547, 554-55 (1967). For this reason, the absolute immunity that was available to legislators at common law remains available to legislators who are sued under § 1983. Tenney v. Brandhove, 341 U.S. 367, 376 (1951). This immunity extends to local legislators such as Dern and Taylor. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998). Courts have developed a functional approach to legislative immunity which immunizes legislators from suit for actions that are truly legislative in nature while permitting legislators to be sued for their administrative actions. Fowler-Nash v. Democratic Caucus of the Pennsylvania House of Representatives, 469 F.3d 328, 337-40 (3d Cir. 2006). This functional approach, which likewise applies to other forms of absolute governmental immunity, ensures that an official's immunity shields only those actions which are performed as a part of his or her official duties. Clinton v. Jones, 520 U.S. 681, 693-95 (1997). Although the creation or elimination of a position is generally viewed as a legislative action, a personnel decision involving only a single employee (such as a decision to hire, fire, promote or not promote an individual) is properly classified as an administrative action that is not shielded by absolute immunity. Bogan, 523 U.S. at 56 ("Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office.")(emphasis added); Fowler-Nash, 469 F.3d at 340 ("Neither Harhai nor Brubaker nor the Caucus were acting in a legislative capacity when they terminated Fowler-Nash. Harhai's decision did not reach beyond a single employee. It did not eliminate Fowler-Nash's position, thereby affecting future employees.").
In this case, Schlarp challenges the Council's decision to promote Kapusta instead of him. He does not challenge the Council's decision to create or eliminate a position. Thus, the personnel decision at issue here is properly characterized as an administrative action (rather than as a legislative action). The analysis is not altered by the decision to promote Kapusta (and to not promote Schlarp) being effectuated by a vote of the Council. Zdziebloski v. Town of East Greenbush, 336 F.Supp.2d 194, 203 (N.D.N.Y. 2004)("However, the failure to rehire Zdziebloski and the requirement that a release be signed prior to disbursing accrued benefits is not protected by legislative immunity because those are not legislative activities, even when such actions are taken by a vote of legislators.")(emphasis added)). Dern and Taylor do not enjoy absolute immunity from suit for their decision to promote Kapusta instead of Schlarp.
B. The Evidence of Factionalism Within the Plum Police Department
The First Amendment bases for Schlarp's claims are complicated by the stipulation of January 17, 2007, which withdrew from this lawsuit "any claims" pursuant to § 1983 alleged in the complaint "based on or arising out of the political affiliation of Erik Schlarp or any of the Defendants." (Docket No. 17-2.) The four members of the Council who voted to promote Kapusta were all Democrats, while the three members of the Council who voted against the promotion were all Republicans. (Compl. ¶¶ 11-12.) Schlarp is a Republican. (Id. ¶ 12.) When he commenced this action, Schlarp apparently believed that Dern, Russo, Hereda and Taylor had passed him over for promotion because of his party affiliation. In his deposition, Schlarp, however, acknowledged that both Miller and Kapusta were Republicans. (App. to Pl.'s Counterstatement of Material Facts, Ex. P-1; Schlarp Dep. 33-34.)
Schlarp's remaining First Amendment claims are based upon an alleged history of factionalism in Plum. Schmeck became the mayor of Plum in 1998, and he held that office the until January 2006. (Joint Concise Statement of Material Facts (B) ¶ 7.) Terry Focareta ("Chief Focareta") became the chief of the Police Department in 1996. (App. to Pl.'s Counterstatement of Material Facts, Ex. P-20.) The first incident alleged by Schlarp occurred on March 28, 1997, when Schlarp stopped a male individual for speeding. (Joint Concise Statement of Material Facts (B) ¶ 1.) The male happened to be the husband of Valerie Yockey ("Yockey"), who was the president of the Council. (Id.) Yockey allegedly asked Schlarp not to issue a citation to her husband. (Id. ¶ 2.) Schlarp spoke to Chief Focareta about the matter. (Id.) Believing Yockey's request to be improper, Focareta instructed Schlarp to issue a report. (Id. ¶ 3.) When Focareta told Yockey that her request had been improper, she allegedly laughed at him. (Id.) This exchange prompted Chief Focareta to report Yockey's conduct to the Pennsylvania State Ethics Commission ("Ethics Commission"). (Id.) Schlarp participated as a witness in the Ethics Commission's investigation into Yockey's conduct. (Compl. ¶ 18.) Yockey was not re-elected after ...