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Moore v. Darlington Twp.

February 17, 2010

BRYAN L. MOORE, PLAINTIFF,
v.
DARLINGTON TWP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This is a First Amendment employment retaliation case. Presently before the Court is Defendants' Motion for Summary Judgment. (Docket No. 71). Plaintiff Bryan L. Moore ("Plaintiff") brings this action against Defendants Darlington Township, a second class township in Beaver County, Pennsylvania ("Township"), and the Township Supervisors Hans Dahlin ("Dahlin")*fn1 , Robert McRoberts ("McRoberts"), and John Nicely ("Nicely") (collectively "Defendants") seeking injunctive relief, declaratory judgment, compensatory damages, attorney's fees and costs, and any other relief the Court deems appropriate from all of the Defendants, as well as punitive damages from the individual Defendants. Plaintiff, a former Darlington Township police officer, alleges that he was demoted from police chief to patrolman and eventually fired, both in retaliation for his involvement in the following activities: (1) his refusal to sign a petition in support of Defendant Dahlin's campaign to be reelected as Township Supervisor, and his complaint to Defendant Supervisors regarding being asked to do so; (2) his perceived support of his brother Timothy Moore in his own campaign for Township Supervisor; (3) his criticism of Defendants for hiring Holly Nicely ("Ms. Nicely") and compensating her with benefits that were not made available to Plaintiff when he was police chief; and (4) his exercise of his right to receive Workers' Compensation benefits from the Commonwealth of Pennsylvania. Of the claims initially filed by Plaintiff, only one remains: a claim pursuant to 42 U.S.C. § 1983 under which Plaintiff claims that the adverse employment actions taken against him by Defendants violated his rights protected by the First and Fourteenth Amendments to the United States Constitution and Article I, §§1, 2, 7, 20, and 26 of the Pennsylvania Constitution. The central question for the Court is whether Plaintiff's activities were protected by the First Amendment.

For the following reasons, Defendant's Motion will be GRANTED, in part, and DENIED, in part.

II. FACTUAL BACKGROUND

Unless otherwise specified, the following facts are uncontested.

A. Plaintiff's Employment History

Plaintiff began employment with Defendant Township as a part-time police officer with a rank of patrolman in October of 1999. (Docket No. 35 at ¶ 9). In April of 2001, he was promoted to Police Chief of Defendant Township. (Id. at ¶¶ 9, 11, 14). This position did not include benefits. (Id. at ¶ 10). At the same time, Plaintiff worked seasonally as a park ranger with the Pennsylvania Department of Conservation and Natural Resources ("Pa. D.C.N.R."), a position for which he did receive benefits. (Id. at ¶¶ 10, 12). In November of 2003, Plaintiff's position as a park ranger with Pa. D.C.N.R. became full-time, and that December, Defendant Township cut Plaintiff's work hours as Police Chief to part-time, at the same hourly wage. (Id. at ¶¶ 13-14).

Plaintiff continued to work both jobs until March 2, 2006, when, within the course and scope of his employment with Pa. D.C.N.R.,he sustained a shoulder injury. (Id.) He has since undergone multiple surgical procedures and continues to be at least periodically limited in his ability to perform certain activities, such as lifting, carrying, and driving. (Id. at ¶ 15). As a result of this injury, Plaintiff has received Workers' Compensation benefits at various times, beginning on March 30, 2006. (Id. at ¶ 16; Docket No. 51-2 at ¶ 2(d)).

B. Plaintiff's Allegedly Protected Activities

Plaintiff undertook a number of activities that he now contends were the basis for Defendants' improper retaliation.

On February 12, 2007, Plaintiff attended a public meeting of Darlington Township. He attended the meeting in uniform in his capacity as Police Chief. (Docket No. 35 at ¶ 17). At the meeting Plaintiff was asked to sign a petition to add Defendant Dahlin's name to the ballot for the May 2007 Township Supervisor primary election. (Id.). Plaintiff refused to sign Mr. Dahlin's petition because he believed it was improper for him to be asked to do so while he was on duty and in uniform. (Id.). Following the meeting, Plaintiff approached Defendants Nicely, Dahlin, and McRoberts to explain that he thought it was "unprofessional for them to ask [him] while [he] was in full uniform to sign a petition and, also, that [he] was a state employee and didn't know [if he] was permitted to sign their petition." (Docket No. 73-1 at 18). He also wanted to inform them that his refusal to sign had nothing to do with his brother, who was running against Defendant Dahlin in the upcoming primary. (Id.). Plaintiff testified that he was told by Defendant McRoberts in June 2007 that he was not being allowed to return to work at that time, after his second surgery, because Defendant Dahlin was angry that Plaintiff had not signed the petition during the February 12, 2007 public meeting. (Docket No 73-1 at 7, 9).

Ms. Nicely, Defendant Nicely's daughter-in-law, was hired as a part-time Secretary and Treasurer for the Township, but received vacation pay and other benefits. (Id. at ¶19). Considering salary and benefits combined, Ms. Nicely was effectively paid more than the Police Chief, Plaintiff. (Id.). Plaintiff wished to receive the same benefits as Ms. Nicely. (Docket No. 73-1 at 45). He testified that he complained of the inequity to Defendants on numerous occasions. (Id.).

Finally, as described above, Plaintiff applied for and received Workers' Compensation benefits through the Commonwealth of Pennsylvania in conjunction with his Pa. D.C.N.R. job.

C. Plaintiff's Demotion and Termination

Following a shoulder surgery, Plaintiff was released to return to full duty as of December 17, 2007 by his treating physician, Dr. Chris Vasilakis. (Docket No. 35 at ¶ 22). Plaintiff testified that on December 18, 2007, Defendant Dahlin told him that he could return to work for Defendant Township once he provided a medical release from his physician stating that he could return to full duty. (Docket No. 73-1 at 50-1). Plaintiff claims that he left the required medical release on Dahlin's desk when he went in for a meeting with him that day. (Docket No. 73-1 at 28-30). Defendants claim that they did not receive it until a copy was faxed to the Township on February 22, 2008. (Docket No. 72 at ¶¶13-4).

Plaintiff testified that he was told at the December 18, 2007 meeting with Defendant Dahlin that he was being demoted and would not be allowed to return to work as Police Chief for Defendant Township. (Docket No. 73-1 at 33-5). As justification, Defendant Dahlin cited the following issues:

(1) Plaintiff's failure to provide Defendant Township with documentation demonstrating the proper investment of retirement funds given to him by Defendant Township; (2) Plaintiff's failure to file his work schedules regularly; (3) Plaintiff's failure to conduct patrols properly; (4) Plaintiff's efforts to avoid obtaining building and septic tank permits required by Defendant Township; and (5) Plaintiff's failure to advise Defendant Township that he was receiving Workers' Compensation benefits. (Docket No. 73-5). As evidence, Defendants produced a January 4, 2008 letter to Plaintiff outlining these reasons. (Id.) Plaintiff denies the truth of all of these reasons. (Docket No. 35 at ¶ 24). This demotion from police chief to patrolman included a decrease in pay from $15.35/hour to $13.00/hour, the pay rate for a new patrolman. (Id. at ¶ 23). Defendants claim that Plaintiff was not officially demoted until Defendant Township's reorganization meeting on January 7, 2008. (Docket No. 71 at ¶ 9).

However, Plaintiff never actually returned to work for Defendant Township. (Id. at ¶ 24). Instead, Plaintiff's employment with Defendant Township was terminated at a public meeting on February 25, 2008. (Docket Nos. 72 at ¶26; 77 at ¶11). Plaintiff claims that the following reasons, all of which he denies, were given for the termination: (1) an incident between Plaintiff and Plaintiff's father-in-law that occurred at the home of Plaintiff's father-in-law in December of 2007; (2) Plaintiff's assault on his wife on February1, 2008; and (3) Plaintiff's failure to return his police chief badges to Defendant Township. (Docket No. 77 at ¶12). Defendants, however, contend that his discharge had nothing to do with any 2007 incident and that Plaintiff was discharged for: (1) a verbal altercation with his father-in-law on February 1, 2008; (2) physically assaulting his wife on February 1, 2008; and (3) his failure to return his police chief badges and a bullet-proof vest. (Docket No. 73 at ¶26). In support of which, Defendants have produced a February 28, 2008 letter outlining the above reasons for his termination. (Docket No. 73-14). Plaintiff does admit that he was arrested in connection with a February 2008 domestic incident and that he was charged with misdemeanor assault, but points out that the charges were eventually dropped. (Docket 73-1 at 62).

Regardless, Plaintiff alleges that he was demoted and eventually terminated by Defendants in retaliation for: his refusal to sign a petition in support of Defendant Dahlin's campaign to be reelected as Township Supervisor; his perceived support of Plaintiff's brother in his campaign for Township Supervisor; his criticism of Defendants for having hired Ms. Nicely and offered her benefits that were not offered to Plaintiff when he was police chief; and for his exercise of his rights to receive Workers' Compensation benefits from the Commonwealth of Pennsylvania.

III. PROCEDURAL HISTORY

Plaintiff filed his Initial Complaint on August 5, 2008, alleging deprivations of his rights under the First and Fourteenth Amendments to the United States Constitution and under Article I, §§1, 2, 7, 20, and 26 of the Pennsylvania Constitution, as well as violations of the Rehabilitation Act of 1973, the Pennsylvania Whistleblower Act, and the tort of wrongful firing under Pennsylvania law. (Docket No. 6).

Defendants filed a Partial Motion to Dismiss on September 2, 2008. (Docket No. 14). Plaintiff filed a Response (Docket No. 19) and an Amended Complaint on September 22, 2008. (Docket No. 18).

Since the filing of the Amended Complaint mooted the Motion to Dismiss, Defendants filed a second Partial Motion to Dismiss on October 6, 2008. (Docket No. 21). Plaintiff filed a Response (Docket No. 27) and, after mediation, a Motion to Withdraw (Docket No. 31) his claims under the Rehabilitation Act of 1973, the Pennsylvania Whistleblower Act, and Pennsylvania tort law, which was granted on December 16, 2008. (Docket No. 32). Subsequently, the Court granted, in part, and denied, in part, Defendant's October 6, 2008 Motion to Dismiss, striking Plaintiff's "deprivation of liberty without due process" claim and dismissing Plaintiff's claim for punitive damages against Defendants Dahlin, McRoberts, and Nicely in their official capacities (Docket No. 34). Moore v. Darlington Twp. C.A. No. 08-1012, 2008 WL 5339372 (W.D. Pa. 2008).

Thereafter, Plaintiff filed a Second Amended Complaint on January 5, 2009, with a single § 1983 claim, alleging that he was deprived of his rights under the First Amendment to the United States Constitution, as applied to the states via the Due Process clause of the Fourteenth Amendment, and his rights under Article I, §§1, 2, 7, 20, and 26 of the Pennsylvania Constitution, when Defendants, acting under color of state law, terminated*fn2 his employment with Defendant Township (Docket No. 35). Defendants filed their Answer and Affirmative Defenses on January 20, 2009. (Docket No. 38). Discovery ensued.

At the end of discovery, Defendants filed a Motion for Summary Judgment which is currently before this Court, on June 15, 2009. (Docket No. 73). With their Motion, Defendants filed a Concise Statement of Material Facts with supporting exhibits and a Brief in Support (Docket Nos. 72-74). Plaintiff's Response, with supporting Appendix, Brief in Opposition, and Concise Statement of Material Facts were filed on August 14, 2009. (Docket Nos. 77-80). Defendants filed a Response to Plaintiff's Concise Statement of Material Facts and a Reply Brief on August 24, 2009. (Docket Nos. 81-82). Plaintiff filed a Sur-Reply Brief in Opposition on August 31, 2009. (Docket No. 83).

The Court will now rule on Defendants' Motion.

IV. 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 Rule 56, the Court must enter summary judgment against the 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). A motion for summary judgment will only be denied when there is a genuine issue of material fact, i.e., 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). The mere existence of some disputed facts is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986).

In determining whether the dispute is genuine, the court's function is not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. The court is only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. McGreevy, 413 F.3d at 363; Simpson v. Kay Jewelers, 142 F.3d 639, 643 n.3 (3d Cir.1998) (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994)). In evaluating the evidence, the court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in their favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). As to materiality, the relevant substantive law identifies which facts are material. Anderson, 477 U.S. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. "Factual disputes that are irrelevant or unnecessary will not be counted." Id.

V. DISCUSSION

The Civil Rights Act of 1871, 42 U.S.C. § 1983 ("§ 1983"), provides, in pertinent 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. § 1983, thereby, creates a cause of action for violations of the United States Constitution and federal laws but does not itself grant any substantive rights; in order to establish a claim under the statute, a plaintiff "'must demonstrate a violation of a right secured by the Constitution and the laws of the United States [and] that the alleged deprivation was committed by a person acting under color of state law.'"*fn3 Kneipp by Cusack v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996) (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1993)).

The first step in evaluating a § 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. County of Sacramento v. Lewis, 523 U.S. 833, 841, n. 5 (1998); Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). In the instant case, Plaintiff is claiming violations of his First Amendment rights.*fn4 The Court must, therefore, first determine whether the acts for which he claims he suffered retaliation were protected by the First Amendment, before determining if the adverse employment actions were actually in retaliation for them. Plaintiff claims to have been retaliated against for a number of different activities, each of which must be examined to determine whether it is protected by the First Amendment, which 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 First Amendment has been incorporated by the Due Process clause of the Fourteenth Amendment, and is therefore applicable to state actors. United Bhd. of Carpenters & Joiners of America v. Scott, 463 U.S. 825, 831 (1983).

The First Amendment protects a number of rights under its different clauses, including the rights to speak and associate freely under the Free Speech Clause and the right to petition the government for a redress of grievances under the Petition Clause. Although Plaintiff's complaint only alleges that "he has been deprived of his rights to speak freely and to associate freely," the Court finds that both of these clauses are implicated here. (Docket No. 35, at ¶ 32).*fn5

The Free Speech Clause protects both freedom of speech and freedom of association. NAACP v. Alabama, 357 U.S. 449 (1958); Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984) ("implicit in the right to engage in activities protected by the first Amendment [is] a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."). Therefore, it protects both the right to speak freely on public matters, Garcetti v. Ceballos, 547 U.S. 410 (2006), and the right to affiliate oneself with a political party, Rutan v. Republican Party of Illinois, 497 U.S. 62, 69 (1990). A number of Plaintiff's activities potentially implicate these protections. The right to speak freely on public matters is potentially implicated by: his refusal to sign Defendant Dahlin's candidate petition; his complaints when he was asked to do so; and his complaints regarding the compensation of Holly Nicely. The right to freedom of political affiliation is potentially implicated by Plaintiff's refusal to sign Dahlin's petition and by his perceived support of his brother as a political candidate.

The Petition Clause protects the right "to petition the Government for a redress of grievances." U.S. CONST. AMEND. I. This protection is potentially implicated in Plaintiff's application for Workers' Compensation benefits.

To determine whether a public employee's speech is entitled to First Amendment protection, the Court applies a three-step test derived from the Supreme Court's decisions in Connick v. Myers and Pickering v. Board of Education. [1] First, [the Court] must determine whether the speech addresses a matter of public concern. If it does, [the Court] then employ[s] [2] 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. . . . Finally, if these criteria are met, [3] plaintiff must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action. A public employer can rebut an employee's claim of retaliation by demonstrating that it would have reached the same decision, even in the absence of the protected conduct. Whereas the first and second step inquiries are questions of law for the court,*fn6 the final inquiry presents a question of fact for the jury.

McGreevy, 413 F.3d at 364 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968); and Baldassare v. New Jersey, 250 F.3d 188 (3d Cir. 2001)) (emphasis and numbers added). If a plaintiff fails to make any one of the requisite showings for each of his claimed protected activities, the inquiry as to that activity ends and the plaintiff's related claim fails.

Step One is addressed in section A below, Step Two in section B, and Step Three and the subsequent determination of whether Defendant Township would have reached the same decision absent the protected activity in section C. Finally, in section D, the Court considers the question of punitive damages against the individual Defendants.

A. Are Plaintiff's Activities Protected by the First Amendment? 1. Plaintiff's Free Speech Clause Claims: Speech and Political Affiliation

As discussed above, the Free Speech Clause protects both speech and political affiliation. The Court will consider the applicable standards and then determine which of Plaintiff's activities are protected by each.

As far as speech, in order to pass the first step of the inquiry, Plaintiff must show that he "spoke as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). To do so, he must navigate between the precedential Scylla and Charybdis of Connick and Garcetti by showing both that his speech was not on a matter of purely personal interest, Connick v. Myers, 461 U.S. 138 (1983), and that it was not made pursuant to his official duties, Garcetti v. Ceballos, 547 U.S. 410 (2006)).

In Connick, the Supreme Court identified the first potential obstacle, holding that "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest . . . a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken . . . in reaction to the employee's behavior."

Connick v. Myers, 461 U.S. 138, 146 (1983). Thus, in Connick, when an assistant district attorney distributed a questionnaire to her co-workers regarding office morale and whether employees trusted their supervisors, the Court examined the "content, form and context . . . as revealed by the whole record," of her activity to find that most of the questions were not "of public import in evaluating the performance of the District Attorney as an elected official" and therefore not matters of public concern. Id. at 148.However, the Court found that one question, whether "assistant district attorneys 'ever feel pressured to work in political campaigns on behalf of office supported candidates,'" was "a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal." Id. at 149.

In Garcetti, the Supreme Court identified the other potential obstacle, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Thus, in Garcetti, when a supervising district attorney wrote a memorandum to his superiors regarding potential problems with a search warrant in a particular case, and when he subsequently testified to same at a hearing on a defense motion challenging the warrant, the Court found that:

[t]he significant point is that the memo was written pursuant to Ceballos' official duties. Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

Id. at 421-22.

Though it did not undertake it in Garcetti, the Court provided guidance in dicta that the "proper inquiry" for determining whether an act was pursuant to the employee's official duties "is a practical one," that "formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and [that] the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Id. at 424-25. The Court of Appeals for the Third Circuit took up the question in Foraker v. Chaffinch, 501 F.3d 231, 248 (3d. Cir 2007), when it held that the plaintiffs', former state troopers, complaints to their supervisors and subsequent statements to the State Auditor about safety at a state trooper firing range were activities undertaken pursuant to their official duties. As the Court of Appeals explained, the plaintiffs "were expected, pursuant to their job duties, to report problems concerning the operations at the range up the chain of command" and they were also compelled by executive order of the Governor's office to report the same to the State Auditor. Id. at 243. "Because the speech that motivated the [Governor's office's] order was within their job duties [i.e. reporting the conditions to their immediate superiors], the responsibility to respond to the subsequent order was also within the scope of their duties." Id.*fn7 Thus, the standard guiding this inquiry is whether the speech in question was made pursuant to the practically understood or expected duties of a plaintiff's employment.

Plaintiff may also be entitled to First Amendment protection for his political affiliation. In a line of cases beginning with Elrod v. Burns, 427 U.S. 347 (1976), the Supreme Court of the United States has established that the First Amendment protection of free speech and free association prohibits the firing, hiring, promotion, transfer, or recall of public employees based on their political party affiliations. Branti v. Finkel, 445 U.S. 507 (1980); Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). In Elrod, the Court first established that it was unconstitutional for a public employer to dismiss an employee based on party affiliation. Elrod, 427 U.S. at 372. In Branti, the Court explained that the question of "whether a position is one in which political affiliation is a legitimate factor to be considered" "is not always an easy one," and that while requirements of confidentiality and policymaking duties can be relevant, the ultimate inquiry is whether the employer "can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Branti, 445 U.S. at 518; see also Galli v. New Jersey Meadowlands Comm'n, 49 F3d 265, 270-71 (3d Cir. 2007). In Rutan, the Court expanded these protections to cover hiring, promotion, transfer, and recall of public employees as well as termination. Rutan, 497 U.S. at 65. As the Court of Appeals for the Third Circuit has noted, "identical party affiliation does not necessarily ensure the subordinate's loyal adherence to the superior's policies. Primary election fights can be famously brutal, sometimes more so than contests in the general election, and animosity between candidates is likely to result." Curinga v. City of Clairton, 357 F.3d 305, 311 (3d Cir. 2004). Thus, this inquiry is not limited strictly to questions of party membership, but can include other kinds of shared political purpose, partisan activity, and political support. See id. (citing Kaluczky v. City of White Plains, 57 F.3d 202,208 (2d Cir. 1995); Williams v. City of River Rouge, 909 f.2d 151, 153 n.4 (6th Cir. 1990)).

a. Plaintiff's Refusal to Sign Dahlin's Petition and His Related Complaint to Defendant Supervisors

Defendants argue that Plaintiff's refusal to sign Defendant Dahlin's candidacy petition at a public meeting and his subsequent complaints about it were undertaken pursuant to his official duties and therefore were not speech undertaken "as a citizen [speaking] on a matter of public concern." Garcetti, 547 U.S. at 418. While it is not dispositive of the issue, the Court notes that Plaintiff's refusal to sign was undertaken publicly, at a town supervisor's meeting, while his subsequent complaint was more in the nature of a private, within the workplace, act. See Foraker, 501 F.3d at 241 (2007) ("As the Court explained in Garcetti, the facts that 'Ceballos expressed his views inside the office, rather than publicly,' and that his memo concerned the subject matter of his employment, were non-dispositive.").

It is undisputed that, at the time when the event occurred, Plaintiff was attending the meeting as Police Chief of Darlington Township. (Docket Nos. 35 at ¶ 17; 74 at 9-11). In his Second Amended Complaint, Plaintiff states that he believed "it improper that he had been given this petition while at a public meeting on duty and in uniform, [and therefore] refused to sign," as he testified during his deposition (Docket Nos. 35 at ¶ 17; 73-1 at 18-21). Defendants argue that if the presentation of the petition were a violation of Pennsylvania ethics laws, then it would be within Plaintiff's duties to report it, which he did not do beyond complaining to the Township Supervisors themselves. (Docket No. 74 at 10).*fn8 Plaintiff denies that enforcing state ethics laws is within the duties of a Township police officer. (Docket No. 80 at 9-10).

Beyond the arguments of counsel, the Court has been given little guidance by the parties as to whether enforcing state ethics laws falls within Plaintiff's job duties. Defendants argue that "Moore took an oath of office wherein he was sworn to uphold the Constitution of the United States and the Constitution of the State of Pennsylvania" and that "it was in his job description to report violations of the law."*fn9 (Docket No. 74 at 10). Plaintiff argues that he does not believe that it is part of his job to enforce state ethics laws and that requiring him to do so would lead to "absurd, if not preposterous results," wherein a township police officer would be required to be conversant with and enforce any number of "arcane provisions" of state law. (Docket No. 80 at 10). As the Supreme Court made clear in Garcetti, public employers cannot restrict employees' rights by creating overly broad job descriptions, and formal "job descriptions often bear little resemblance to the duties an employee actually is expected to perform." Garcetti, 547 U.S. at 424-25. A broadly phrased oath of office cannot, therefore, be used to determine the scope of Plaintiff's official duties, and the Court must undertake the "practical" inquiry prescribed by Garcetti. Id. In doing so, the Court also notes that Plaintiff testified that he complained that he thought it was "unprofessional," "wrong" and "improper" that he was asked to sign, not that it was "illegal." (Docket No. 73-1 at 18-21).

"'[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Foraker, 501 F.3d at 239 (quoting Garcetti, 547 U.S. at 421).When Plaintiff refused to sign the petition, he was "on duty, in uniform, and engaged in discussion with [his] superiors," which some courts have found sufficient to show that speech was made in the course of a public employee's official duties. Mills v. City of Evansville, Ind., 452 F.3d 646, 648 (7th Cir. 2006).However, in Foraker, the Court of Appeals for the Third Circuit, while citing Mills v. City of Evansville, did not adopt this reasoning and focused on the practical question of whether the speech was "made pursuant to employment duties" and was "among the tasks [the plaintiff was] paid to perform." Foraker, 501 F.3d at 241. The Appeals Court revisited this issue in Heller v. Fulare 282 Fed. Appx. 184 (3d Cir. 2008), affirming the District Court's grant of summary judgment when the defendant showed that the plaintiff police officers' complaints to an investigatory committee about the conduct of another officer were made pursuant to their employment duties, because one plaintiff spoke with the investigatory committee "at the direction of the township manager and [the other plaintiffs] thereafter cooperated in the hearings . . ., a task that was clearly required of them in accordance with the police manual." Heller v. Fulare, C.A. no. 3:2004-265, 2007 WL 1726521, *8 (W.D. Pa. 2007). There is no evidence that enforcing state ethics laws was within Plaintiff's duties, and it remains unclear whether Plaintiff's complaint was about violations of law or about other types of unprofessional or improper conduct. Furthermore, the "right to vote is personal," and signing or refusing to sign a candidate's petition is clearly related to the exercise of that right, which a citizen undertakes in his personal capacity. United States v. Bathgate, 246 U.S. 220, 227 (1918). Therefore, the Court cannot find that Plaintiff's refusal to sign the petition or his complaint about being asked to do so were made pursuant to his employment duties as opposed to as a citizen.

Defendants do not argue that Plaintiff's refusal and complaint were not speech on a matter of public concern, as described in Connick v. Myers, 461 U.S. 138 (1983).Since the refusal and complaint, construed in a light most favorable to Plaintiff, can be understood to concern the improper or illegal use of elected positions to influence future elections, the Court finds that they are on a matter of public concern. Therefore, Plaintiff's refusal to sign and his complaint about Dahlin's petition are speech undertaken ...


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