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Rife v. Borough of Dauphin

July 17, 2009

JOHN RIFE PLAINTIFF
v.
BOROUGH OF DAUPHIN, JOSEPH WYNN, JOHN REICHARD, JOHN WINDISH, AND TERRY SEARLIGHT DEFENDANTS



The opinion of the court was delivered by: Sylvia H. Rambo, United States District Judge

MEMORANDUM

In this civil rights case, Plaintiff John Rife contends that (1) he was retaliated against in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000, et seq., and the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951, et seq., by the Borough of Dauphin for advocating the hiring of an African-American police officer, and (2) that the Borough of Dauphin deprived him of his federal due process rights under the United States Constitution. Rife also contends that the other Defendants violated 42 U.S.C. §§ 1983 and 1985 by depriving him of his federal due process rights under the First and Fourteenth Amendments to the United States Constitution. The parties have engaged in discovery on these issues, and, on January 30, 2009, Defendants filed a motion for summary judgment. (Doc. 28.) The parties have briefed the issues, and the motion is ripe for disposition.

I. Background

A. Facts

1. Application for Police Chief

The following facts are undisputed by the parties unless otherwise noted. Plaintiff John Rife grew up in Susquehanna Township, and worked at his father's gas station which was very close to the Borough of Dauphin ("the Borough"). (Defs.' Ex. 1 in Supp. of Mot. for Sum. J., Rife Dep. 182.) In 2005, the Borough did not have a police department. (Id. at 186-187.)

In the fall of 2005, Rife wrote Defendant John Reichard a letter stating that he wanted to come back to the Borough to work as the police chief. (Id. at 163.) Rife knew that there was no police department in the Borough at the time of his letter to Reichard, but indicated in his letter that he was willing to work for free in order to maintain his police certification. (Id.) After a series of informal communications with Reichard, on February 7, 2006, Rife wrote to the Defendant Terry Searight, the mayor of the Borough, seeking employment with the Borough as the police chief. (Defs.' Ex. 3 in Supp. of Mot. for Sum. J., Feb. 7, 2006 ltr from Rife to Searight.) Rife's letter contained numerous attachments, including a two-page resume and transcript of grades from Franklin University. (Id.) The resume submitted by Rife with this letter listed, among other things, the following:*fn1

EDUCATION:

1986 B.A., Business Administration 1978 Certification, Police Academy, HACC (Good through 06/07) 1974-2005 Completion of more than 20 military schools, academies, and seminars (Honorably Discharged) (Id.) Rife also submitted a transcript of grades from Franklin University showing that the he earned grades in 16 classes. (Id.) The parties do not dispute that Rife purchased the transcript, never attended the classes listed on the transcript, and never attended Franklin University. (Rife Dep. 215, 302.) The parties also do not dispute that neither the transcript nor the resume submitted by Rife with his February 7, 2006 letter mentions that Rife never attended any of these classes. (Id. at 216.)

After sending his February 7, 2006 letter to Searight, Rife followed up with numerous telephone calls which ultimately led to his being interviewed in March or April 2006. (Rife Dep. 228, 238.) Rife interviewed with Defendant Searight and two members of Borough council: Mike Welker and Adelaide Furhman.*fn2 (Defs.'

Ex. 18 in Supp. of Mot. for Sum. J., Adelaide Furhman Dep. 7; Defs.' Ex. 2 in Supp. of Mot. for Sum. J., Terry L. Searight Dep. 14.) The parties dispute whether the resume submitted by Rife during the meeting was the same resume that Rife mailed along with his February 7, 2006 letter or whether it was a different resume. Rife contends that at his interview he presented a resume that was different than that which was included with his February 7, 2006 letter to Searight. (Id. at 8; Rife Dep. 136;Pl.'s Ex. 4 in Opp. to Defs.' Mot. for Sum. J.) Rife contends that he produced a resume that contains, among other things, the following:

EDUCATION:

1999 PhD -- Business Administration - *Life Experience 1986 *B.A. - Business Administration -- Franklin University 1978 Certification, Police Academy, HACC Certifications Include: ACT 120/Police and ACT 235 (Pl.'s Ex. 4 in Opp. to Defs.' Mot. for Sum. J.) The two asterisks (*s) on this resume reference a footnote at the bottom on the page.*fn3 That footnote reads: "Converted military experience and life skills for a degree. Did not attend the college." (Id.) Rife contends that he explained at this interview that he never attended Franklin University and did not attend any of the classes listed on the transcript, but rather obtained his degree because of his life experience. (Rife Dep. 136.) In her deposition, Adelaide Furhman corroborates Rife's recollection.*fn4 (Furhman Dep. 8.)

Defendants, however, disagree that Rife presented this resume to his interviewers. Defendant Searight testified at his deposition that he does not

remember seeing the asterisk resume. (Searight Dep. 17:11-12.) Searight also testified that he does not remember a discussion occurring at the interview about how Mr. Rife obtained his degree or whether he actually attended Franklin University. (Id. at 17:13-17; 18:24-25; 191-5.)

In it undisputed that Rife was hired as the chief of police in April of 2006 and was sworn in on May 4, 2006. (Rife. Dep. 228, 238.) Although he originally volunteered to work for free, Rife was paid $8.00 per hour for his services after the Borough discovered that a police officer must be on a payroll. (Id. at 209-210.) Various members of the Borough council had concerns about the cost of police service. (Defs.' Ex. 5 in Supp. of Mot. for Sum. J., November 8, 2006, Borough Council minutes.)

2. Derogatory comments by Defendant Wynn

The parties dispute whether Defendant Wynn ever used derogatory language. At various times both prior to and subsequent to his being hired as police chief, Rife alleges that he heard Defendant Wynn use the word nigger. (Rife Dep. 249.) Rife testified at his deposition that he heard Wynn use that word frequently, and that he repeatedly expressed his dissatisfaction with Wynn's use of the word to Defendant Searight. (Rife Dep. 250-51.) On at least one occasion, Rife expressed his concerns about Wynn's use of the word to the Borough Solicitor, a deputy Dauphin County District Attorney, and another member of Borough Council Derek Stence. (Id.) Adelaide Furhman also heard Defendant Wynn use this word. (Doc. 44-2, Adelaide Furhman Decl. ¶ 3.) At some point in early 2006, Furhman was in the Borough Office reading a faxed resume submitted by someone applying for a job with the Borough, when Defendant Wynn took the resume from her and said that "he's probably a . . . nigger," and destroyed it. (Id.) For his part, Defendant Wynn denies that any of this occurred or that he has ever used the word nigger. (Wynn Dep. at 8; 11.)

3. Hiring of Charles Anderson

By August 2006-three months after Rife began as police chief-he determined that he wanted to hire another officer for the Borough and suggested to Defendant Searight that the Borough hire Charles Anderson, a longtime friend of Rife and a recently retired Harrisburg City police officer. (Rife Dep. 240-41.) Anderson is African-American. At various times during August 2006, Rife had informal conversations with the Defendant Searight and members of Borough council, including Defendants Wynn and Reichard, about the need to hire another police officer, specifically about Rife's desire that Anderson be hired. (Rife Dep. 239.)

Nothing was brought to the Borough Council about the hiring of an additional police officer generally, or Anderson specifically, until the November 8, 2006 council meeting. (Rife Dep. 240-41.) However, at some point in August 2006, Rife asked Defendant Searight whether Anderson could be sworn in so that he could maintain his police certification. Anderson was sworn in by Defendant Searight in August 2006-three months before he was hired-at Rife's home. (Rife Dep. 242.) By that time, Rife believed that he had the support of the council for the hiring of Anderson, and so he did not believe that it was a problem to have him sworn in prior to his having been hired. (Id. at 245.) Specifically, Rife testified at his deposition that Defendants Wynn and Reichard approved of Anderson being sworn-in during August of 2006. (Id. at 245-46.) Defendant Windish was not on Borough Council at the time that Anderson was sworn in, but he joined in September 2006. (Id. at 246; Defs.' Ex. 6 in Supp. of Mot. for Sum. J., John Windish Dep. 20.)

At the November 8, 2006 Borough council meeting, Rife officially requested for the first time the hiring of Anderson as a second, part-time police officer. (Rife Dep. 238.) That evening, Rife spoke facing the audience of residents. (Doc. 44-2, Adelaide Fuhrman Decl. ¶ 6.) According to Plaintiff, there was a record public attendance at that meeting because of the perceived opposition by the Borough Council to the hiring of Anderson. (Id. ¶¶ 5, 11.) During the meeting, councilperson Trudy Kopenhaver said to Rife that "[w]e don't want to change the way we do things up here," which Rife and Furhman took as opposition to hiring Anderson. (Id. ¶ 7.) Upon hearing Ms. Kopenhaver say this, a resident at the meeting, Robert Youngblood, shouted, "[i]t's because he is a . . . nigger, isn't it?" (Id. ¶ 9.) After public and executive sessions, the Borough Council voted unanimously to hire Anderson as a part-time police officer.*fn5 (Windish Dep. 22.)

4. Events after November 8, 2006 Borough Council Meeting

Prior to the November 8, 2006 Borough Council meeting, Rife received excellent job performance evaluations. (Rife Dep. 277.) Between August 2006-when Anderson was sworn in-and November 2006-when Anderson was unanimously hired as a part-time police officer-Rife testified that he did not suffer any harassment by any of the Defendants. (Rife. Dep. 277-79.)

While the parties disagree about the meaning of what happened after the November 8, 2006 council meeting-i.e., whether any actions taken by Defendants were retaliatory-they appear to be in agreement about the basic series of events. After that meeting, Defendants Searight and Windish informed Rife that he should not attend any more council meetings because of the contentiousness of the November 8, 2006 meeting. (Rife Dep. 271). Various members of council, but Defendant Windish specifically, had concerns about the way that Rife conducted himself at the November meeting. Windish also believed that there was the need for Rife to provide better documentation in the form of police logs and time-sheets. (Id.) At some point after the November meeting, Windish, who is on the personnel committee, requested Rife's personnel file from Searight, but he did not request any other employee's personnel file. (Id. 274-75; Searight Dep. 31.) After reviewing Rife's personnel file, Windish discussed with Searight concerns that he had about Rife's ...


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