The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Plaintiff Sergeant Carol Karchnak has filed suit under 42 U.S.C. § 1983 against her former employer, Swatara Township, and her superior officers in the Swatara Police Department, Chief David Bogdanovic and Deputy Chief Jason D. Umberger.*fn1 Plaintiff alleges that each Defendant violated 1) her First Amendment right to be free of retaliation for the exercise of free speech and 2) her Fourteenth Amendment rights to equal protection of the laws and substantive and procedural due process.*fn2 After discovery, Defendants filed a motion for summary judgment. (Doc. 31.) That motion has been fully briefed by the parties and is now ripe for disposition. For the reasons that follow, the court will grant in part and deny in part Defendants' motion.
The following facts are undisputed, except where noted. Carol Karchnak was hired by Swatara Township as a police officer in 1986, became a dog handler in 1988, and a Sergeant in 1996. (Defs.' Ex. 1 in Supp. of Mot for Sum. J., Carol Karchnak Dep. 18, 22.) Defendant David Bogdanovic was hired by Swatara in 1979, and was promoted to Chief of Police in March 2004. (Defs.' Ex. 2 in Supp. of Mot. for Sum. J., David Bogdanovic Dep. 6.) Defendant Jason Umberger has worked at the Swatara Township police department for fifteen years, and was promoted to Captain and Deputy Chief on April 4, 2005. (Defs.' Ex. 3 in Supp. of Mot. for Sum. J., Jason Umberger Dep. 10-11.) Defendant Swatara Township Police Department ("the Department") is a municipal police department employing 43 full time police officers. Defendants Umberger and Bogdanovic were Plaintiff's immediate supervisors. The Department has policies including a chain of command, a sexual harassment policy, policies on internal investigations, supervisor responsibilities, concealment of violations and procedures or regulations, and a policy on the role and authority of supervisors in regard to major misconduct. (Defs.' Ex. 4 in Supp of Mot. for Sum. J., General Order Manual of Swatara Twp. Police Dep't.)
In 2005, the Department began to phase in a performance evaluation system, known as a z-based performance system.*fn4 (Karchnak Dep. 74.) Karchnak participated in the initial evaluation of the program along with Defendant Bogdanovic. (Id., at 71-72.) The parties disagree about the usefulness of the program, and whether Plaintiff registered any complaints to the individual Defendants. Plaintiff asserts that she complained to Defendant Umberger in March 2006 about the implementation of the system because she believed that it inequitably evaluated officers. (Karchnak Dep. 73-74.) Specifically, Plaintiff felt that the metrics chosen for evaluation-such as how many business checks*fn5 were performed by each officer-did not take into account that officers would perform different tasks during different shifts, and depending on how many of a given shift an officer had for any given month, the officer's effectiveness as measured by the z-based system would vary. (Karchnak Dep. 73-74.) Thus, Plaintiff did not believe that the Department was implementing the system properly because it was comparing the same metrics for different shifts. (Id.) In his deposition, Defendant Umberger says that he has no recollection of Plaintiff ever taking issue with the z-based system. (Umberger Dep. 117.)
Among her duties, beginning in 1988, Karchnak served as a dog handler for the Department. (Karchnak Dep. 42.) In 2003, Karchnak was one of three dog handlers. (Id. at 30.) Around that time, another handler, Officer Mike Frey, filed a lawsuit against the Department alleging violations of the Fair Labor Standards Act because of the Department's failure to compensate dog handlers for their off-duty care and training of their dogs. (Id. at 30.) Plaintiff was not a party to this lawsuit, but she supported it and asked the Chief of Police at the time whether she could speak to the Board of Commissioners about the lawsuit and its implications; Plaintiff never spoke to the Board of Commissioners. (Id. at 32-33.) The lawsuit was settled, and, although Karchnak was not a party to the suit, she signed an agreement with the Department that provided compensation for her after hours care and training of her police dog. (Id. at 39.) After the case was settled, Karchnak approached Defendant Bogdanovic on several occasions about the possibility of speaking to the Board of Police Commissioners about the value of the canine unit, but those requests were denied. (Karchnak Dep. 34.)
Beginning in November 2001, the dog Karchnak handled was her own dog that she leased to the Department for its canine services. (Id.) At some point, she became the only dog handler for the Department. The parties dispute whether the lease for Karchnak's dog had a term of a specified number of years, or whether its term was more vaguely defined as the service life of Karchnak's dog. Plaintiff asserts that the lease was for the duration of the working life of her dog. (Karchnak Dep. 43.) Defendants assert that the agreement was coterminous with the collective bargaining agreement then in effect which expired on December 31, 2006. (See Defs.' Ex. 6 in Supp. of Mot. for Sum. J., Agreement & Release). The parties agree that the agreement could have been terminated by either side with or without notice.
(Defs.' Ex. 8, Dec. 8, 2006 Ltr. from Pl. to Def. Bogdanovic.) In late November or early December 2006, Defendant Swatara Township gave notice to Plaintiff that effective January 1, 2007 it would be terminating the lease for Plaintiff's dog. (Defs.' Ex. 7, Nov. 21, 2006 Ltr. to Pl. from Paul Cornell.) Rather then wait until January 2007, almost immediately upon receiving the November 21, 2006 letter from Defendants, Plaintiff wrote to Defendant Bogdanovic and informed him that she would cease providing canine services immediately. (Dec. 8, 2006 Ltr.) The Department has not had a canine program since December 8, 2006. (Bogdanovic Dep. 21.) Defendants assert that the canine program was cut for financial reasons. (Bogdanovic Dep. 13-18.) Plaintiff believes that the canine program was cut in retaliation for her participation in the 2003 lawsuit. (Karchnak Dep. 54-55.)
After becoming a sergeant in 1996, Defendant at various times sought promotions within the Department. Relevant to the instant case, in late 2005, Defendant Bogdanovic approached Karchnak about the position of Detective Sergeant to see if she was interested. (Bogdanovic Dep. 104.) She stated she would consider the position, but was unsure whether she wanted it. (Id.; Karchnak Dep. 154.) Plaintiff never followed-up with Defendant Bogdanovic about her interest in the position until after she found out the job went to another person. (Karchnak Dep. 155.) Defendant Bogdanovic never again broached the subject with Plaintiff prior to informing her that someone else was promoted. (Id.) As indicated, Plaintiff did not get the job, but instead, Michael Farling was promoted to the position in February, 2006. (Defs.' Ex. 5, in Supp. of Mot. for Sum. J., Michael Farling Dep. 17.)
5. Brink's Falsification of Police Logs
In early January 2007, Ms. Karchnak learned that another sergeant had been falsifying his police activity logs, and that a probationary officer had copies of the falsified logs. (Karchnak Dep. 99.) Specifically, on either January 30th or 31st, Karchnak went into the ladies locker room and saw another female officer, Katrina Fiala, standing at the sink examining papers. (Id.) Fiala showed Karchnak two photocopies of patrol logs, one was Fiala's and another belonged to a fellow sergeant Donald Brink. (Id.) Fiala told Karchnak that she believed that Sergeant Brink had falsified his patrol log by indicating that he did over 40 business checks during a 3.5 hour block of time when in reality Sergeant Brink was at home during this time. (Karchnak Dep. 99.) Karchnak did not immediately report this anyone, but approximately 8-10 days later she received a call from the Police Association president-Darrell Reider-asking whether she knew anything about Brink falsifying his log. (Id. at 100.) In a colloquy with Defendants' attorney during her deposition, Karchnak testified that she did not report this information right away because:
Well, it was something I really wasn't sure how to approach first of all. I wasn't sure that it was true. And I certainly don't want to-I don't want to be a tattletale and I don't want to tell stories about people that aren't true. I think that it is one of the worst things you can do is accuse somebody of something they haven't done. But after thinking about it, I did think that maybe I had a moral obligation to talk to someone else about it, somebody who might be able to give me advice on how to handle it. (Id. at 101.)
As a result of the phone call from Darrell Reider, Karchnak decided to report the incident to Sergeant Mike Farling who is the Internal Affairs Officer. (Id.; Farling Dep. 5.) After speaking with Karchnak, Farling went to Defendant Umberger and relayed the information told to him by Karchnak. (Farling Dep. 5; Umberger Dep. 56.) After this meeting, Umberger and Farling met with Karchnak, and Umberger ordered Karchnak to write a memo to Farling about what she knew of the incident. (Umberger Dep. 58-59.) Karchnak wrote a memorandum to Sergeant Farling on February 21, 2007. (Defs.' Ex. 10 in Supp. of Mot. for Sum. J., Feb. 21, 2007 memo from Karchnak to Farling.) The parties dispute whether Karchnak had a duty to report this incident up the chain of command. Plaintiff says that she had no duty to do so. (See Karchnak Dep. 101-102; Pl.'s Ex. in Opp. to Mot. for Sum. J., Karchnak Decl.) Defendants believe that Plaintiff did have a duty, and point to certain portions of the Swatara Township General Order Manual as evidence of Plaintiff's duty.*fn6 (Ex. 4 in Supp. of Mot. for Sum. J.)
Karchnak was not investigated, nor was she disciplined for failure to follow the chain of command in reporting what she knew about the Brink incident. (Bogdanovic Dep. 66-67.) However, Defendant Umberger discussed the issue of disciplining Karchnak with Sergeant Farling, and Farling testified in his deposition that after the Brink incident he believed that Umberger had it in for Karchnak and that Umberger told him that Karchnak needs to "straighten up, watch her step." (Farling Dep. 37:16.) After the Brink incident, Plaintiff was disciplined, ostensibly, for other reasons.
6. Alleged Acts of Retaliation
In May of 2007, Karchnak received a written reprimand for her failure to supervise a subordinate with regard to the withdrawal of an improper parking ticket. (Defs.' Ex. 11 in Supp. of Mot. for Sum. J., May 7, 2007 Disciplinary Action Notice.) For her part, Plaintiff testified that this discipline was unwarranted because she did tell her subordinate-Officer Rory Dimov-to revoke the ticket. (Karchnak Dep. 122.) Included with the May 7, 2007, Disciplinary Action Notice was a Deficient Performance Notice indicating general problems with Karchnak's supervision. (Defs.' Ex. 13 in Supp. of Mot. for Sum. J., May 7, 2007, Deficient Performance Notice.) During a meeting with Defendant Bogdanovic after receiving these notices, Bogdanovic told Plaintiff that one of her deficiencies was her failure to properly report and handle the Brink incident. (Karchnak Dep. 107.) In June of 2007, Plaintiff received a second written reprimand again for failing to adequately supervise Officer Rory Dimov by ensuring that he maintained his J-NET*fn7 certification. (Defs.' Ex. 12 in Supp. of Mot. for Sum. J., Jun. 15, 2007 Disciplinary Action Notice.) These notices were received a few months after she informed Defendants of the Brink incident. Prior to receiving these notices, Plaintiff had never been formally disciplined in her over 20 years in the Department. (Karchnak Dep. 175.)
In October of 2007, Plaintiff was diagnosed for a second time with breast cancer. Plaintiff anticipated that she would be on leave for a significant period and run out of sick leave so she asked Defendant Umberger to ask Defendant Bogdanovic to request permission from the Board of Commissioners that other officers be allowed to donate sick leave. (Karchnak Dep. 110.) Plaintiff made this informal request in October, but placed a formal request in writing on December 28, 2007. (Id. at 112.) Plaintiff's request for donated sick leave was approved in mid-February 2008. (Id. at 113.) On August 1, 2008, Plaintiff retired from the Department.
With leave of court, Plaintiff filed an Amended Complaint on November 4, 2008. (Doc. 27.) Defendants filed their answer on November 12, 2008. (Doc. 28.) On January 20, 2009, Defendants file a motion for summary judgment, (Doc. 31), and a brief in support. (Doc. 32.) After several extensions of time, Plaintiff filed her brief in opposition to Defendants' motion for summary judgment on March 2, 2009. (Doc. 51.) On March 23, 2009, Defendants filed their reply brief. (Doc. 55.) The motion is ripe for disposition by the court.
Summary judgment is proper when "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); accord Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "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 at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Plaintiff claims that she suffered violations of her First and Fourteenth Amendment rights, including her right to equal protection and due process, and that Defendants are liable for these violations pursuant to 42 U.S.C. § 1983. Section 1983 states in relevant part:
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. . . .
42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." City of Monterey v. Del Monte Dunes, 526 U.S. 687, 749 n.9 (1999) (internal quotation omitted). To prevail in an action under § 1983, a plaintiff must demonstrate: (1) a violation of a right secured by the Constitution and the laws of the United States and (2) that the alleged deprivation was committed by a person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000); Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993). "The first step in evaluating a section 1983 claim is to 'identify the exact contours of the underlying right said to have been violated' and to determine 'whether the plaintiff has alleged a deprivation of a constitutional right at all.' " Nicini, 212 F.3d at 806 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).
As to Plaintiff's First Amendment claim, Defendants argue that Plaintiff has not adduced facts demonstrating that she engaged in protected activity, because her speech was made pursuant to her official duties, and, thus, the Garcetti exception to First Amendment activity applies, and she has failed to prove a prima facie case of retaliation. In the alternative, Defendants argue that Plaintiff has failed to adduce any evidence that Defendants actually retaliated against her for any protected activity. As to Plaintiff's Fourteenth Amendment claims, Defendants argue that the undisputed facts demonstrate that Plaintiff did not suffer a violation of equal protection or due process. Defendants also argue that there is no evidence of any municipal action in this case, and, thus, Plaintiff's claims against Defendant Swatara Township fail as a matter of law. Finally, Defendants argue that the individual Defendants are entitled to qualified immunity on all of Plaintiff's claims. The court will discuss each of these arguments in turn.
To establish a prima facie case of retaliation for engaging in First Amendment activity under 42 U.S.C. § 1983, Plaintiff must demonstrate that: (1) that the activity at issue is protected by the First Amendment, (2) that Defendants' adverse action was sufficient to deter a person or ordinary firmness from exercising her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action. Lauren W. ex. rel. Jean W. v. DeFalminis, 480 F.3d 259, 267 (3d Cir. 2007); see also Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (stating the test in a slightly different way: "(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action"). The first factor is a question of law; the latter factors are questions of fact. Hill, 455 F.3d at 241. Defendants can defeat the claim of retaliation by showing that it would have taken the same action even if Plaintiff had not engaged in protected activity. Lauren W., 480 F.3d at 267 (citing Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002).)
To meet the first prong of the prima facie case for retaliation, a statement made by a government employee is protected when: (1) is made by the employee in her capacity as a citizen; (2) the statement involved a matter of public concern; and (3) the government did not have an adequate justification for treating the speaker differently than a member of the general public. Hill, 455 F.3d at 242. The landscape for public employees making First Amendment retaliation claims has been significantly altered since the United States Supreme Court's decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). As the United States Court of Appeal for the Third Circuit recently observed, "Garcetti simply 'narrowed the Court's jurisprudence in the area of employee speech' by further restricting the speech activity that is protected." Reilly v. City of Atlantic City, 532 F.3d 216, 228 (3d Cir.2008) (quoting Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir.2007)). After Garcetti,a court analyzing a public employee's First Amendment retaliation claims must first consider whether the employee's speech is made pursuant to the employee's official duties. "[T]he First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities." Garcetti, 547 U.S. at 424.
Thus, the court is tasked with determining whether or not the expressive activity engaged in by Plaintiff was pursuant to her official duties as a sergeant in the Swatara Township Police Department. If it was, the speech is not protected and Plaintiff's First Amendment retaliation claim must necessarily fail. Id. If the speech was not made within her official duties, then the court must nonetheless determine whether Plaintiff was speaking as a citizen on a matter of public concern. If Plaintiff was not speaking as a citizen, or if the speech did not involve a matter of public concern, then Plaintiff's expressive activity falls outside the ambit of First Amendment protection. If, however, Plaintiff was speaking as a citizen on a matter of public concern, then the court must "employ the Pickering balancing test to determine whether an employee's interest in the speech outweighs the state's countervailing interest as an employer in promoting workplace efficiency and avoiding workplace disruption." McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir.2005) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).
Ordinarily, the court would proceed by analyzing the Garcetti issue first, and then, only if the court concluded that the speech in question was not within Plaintiff's official duties, the court would move on to the other aspects of Plaintiff's prima facie case. Here, however, neither party presents their evidence in this fashion; instead, both parties look at the discrete instances of alleged retaliation and barely discuss the remaining prima facie prongs. Therefore, the court will look at each of the discrete instances of alleged retaliation, and only address those factors of a prima facie retaliation case that are dispositive, including a Garcetti analysis, for each alleged instance of retaliation. Even this will be cumbersome, as Plaintiff's attorney was less than stellar in presenting those instances where Plaintiff engaged in protected activity, and the alleged retaliation that followed. However, from what the court can glean, Plaintiff has alleged four instances of retaliation each of which she says was preceded by protected speech: (1) her failure to be promoted to Detective Sergeant in February 2006; (2) the termination of the dog handling contract in December 2006; (3) the delay in her request for donated sick time; and (4) the May and June 2007 discipline. The court will discuss each of these in turn.
1. Failure to Receive Promotion to Detective Sergeant in February 2006
In late 2005, Defendant Bogdanovic came to Plaintiff and asked her whether she would consider the position of Detective Sergeant, which was a promotion from sergeant. (Karchnak Dep. 154.) Plaintiff told him that she would have to think about it. (Id.) Plaintiff testified at her deposition that she did not think that the position would become open, and so she never went back to Bogdanovic to tell him that she was interested. (Id. at 155.) After that, Plaintiff heard nothing about the position until one morning when Bogdanovic told her that Mike Farling had been selected. (Id.) In her brief in opposition to summary judgment, Plaintiff argues that she did not get this promotion because "of her participation in the Dog Handler lawsuit, because she criticized the quota system as she saw it, and also because of her gender." (Doc. 51 at 13.) Defendants argue that Plaintiff has not demonstrated that she engaged in protected activity that ...