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Emigh v. Miller

July 23, 2010


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



This is a First Amendment employment retaliation case, presently before the Court on a Motion for Summary Judgment filed by Defendants, Jeffrey Miller and Lt. Col. John Brown. (Docket No. 56). Plaintiff George Emigh ("Plaintiff"), a retired Sergeant with the Pennsylvania State Police, originally filed this suit under 42 U.S.C. § 1983, alleging that Miller, Brown, and seven other defendants violated his right to procedural due process and his rights under the First and Fourteenth Amendments. (Docket No. 1). Plaintiff alleged that he was retaliated against for conduct that he claimed was protected by the First Amendment, including: writing a poor review of former defendant, Allison Jacobs; filing a Bureau of Professional Responsibility complaint with the Pennsylvania State Police ("PSP") Internal Affairs Department against former defendant, Lt. James Fulmer; and filing two grievances with his union regarding discipline he received on the job. After a number of motions to dismiss, the only remaining claim is that Defendants Miller and Brown ("Defendants") retaliated against Plaintiff for filing the two union grievances, by denying him an honorable discharge upon retirement (thus denying him the right to keep his hat and badge, and the opportunity to purchase his service weapon). Defendants now move for summary judgment as to that claim.

After careful consideration of the record and the parties' arguments, and for the following reasons, Defendants' Motion [56] is granted.


Before setting forth the material facts of the case, the Court notes significant problems with Plaintiff's presentation of material facts to the Court. At summary judgment, Plaintiff's factual pleadings consisted of: (1) a seven-page section in his Brief in Opposition to Defendants's Motion for Summary Judgment entitled "Factual and Legal Background"(Docket No. 67 at 4-10); (2) a "Counterstatement / Declaration of Material Facts" with (3) voluminous supporting evidence (Docket No. 66); and (4) a Declaration of George Emigh in support of the Counterstatement (Docket No. 68). These pleadings were not in keeping with the Local Rules of the United States District Court for the Western District of Pennsylvania, and they presented numerous facts and issues that are immaterial to the case at this stage.

Western District of Pennsylvania Local Rule 56.C.1 mandates that an opposing party's response to a motion for summary judgment include a separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by:

a. admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is undisputed and/or material;

b. setting forth the basis for the denial if any fact contained in the moving party's Concise Statement of Material Facts is not admitted in its entirety (as to whether it is undisputed or material), with appropriate reference to the record...; and

c. setting forth in separately numbered paragraphs any other material facts that are allegedly at issue, and/or that the opposing party asserts are necessary for the Court to determine the motion for summary judgment.

W.D.Pa. LCvR. 56.C.1. Plaintiff's various filings fail repeatedly to conform with this rule.

First, Plaintiff's Brief in Opposition to Defendants's Motion for Summary Judgment contains a seven-page "Factual and Legal Background," which cites exclusively to, and is drawn almost word-for-word from, Plaintiff's own Complaint. (Docket No. 67 at 4-10). This presentation of "facts," is based on Plaintiff's own allegations before discovery and continues to treat dismissed defendants and claims as if they were part of the remaining claims before the Court. Such a presentation is not proper under Local Rule 56 and does not constitute a statement of facts for summary judgment purposes. W.D.Pa. LCvR. 56.C; see Moeller v. Township of North Strabane, C.A.No. 05-1352 2008 WL 3072975 (W.D.Pa. Aug. 1, 2008)(declining to consider any alleged facts contained in Plaintiff's "Background of the Case" section of his Opposition to Motion for Summary Judgment).

Second, Plaintiff failed to properly respond to Defendants' Concise Statement of Undisputed Material Facts. Rather, Plaintiff filed a "Counterstatement / Declaration of Material Facts," which, at thirty-seven pages, in response to Defendants' ten-page filing, is far from concise. (Docket No. 66). This Counterstatement is equally noncompliant with Local Rule 56.C, and many of the "facts" therein are not material.*fn1 Instead of admitting or denying each of Defendants' facts, Plaintiff responds to each one, sometimes with an admission or denial and sometimes not, often with a lengthy narrative summary of events leading up to the fact, with few or no references to the record. (Id.). Rather than setting forth contrary material facts in separately numbered paragraphs, Plaintiff responds to one of Defendants' asserted facts*fn2 with a fifteen-page, single-spaced outline replete with factual claims, allegations, and speculative conclusions, with only sparse references to the record. (Id. at 21-36). When record references are provided, they are often unclear and inaccurate; Plaintiff repeatedly cites one of his exhibits, an over 300-page document, without any indication of where the alleged fact is to be found. (Id.).

Plaintiff's hypotheses and conjectures in his Counterstatement, when unsupported by evidence of record or personal knowledge, do not constitute facts for summary judgment purposes, and the Court will not consider them as such. See Lexington Ins. Co. v. Western Pennsylvania Hospital, 423 F.3d 318, 333 (3d Cir. 2005)("'Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.'" (citation omitted)); Shelton v. University of Medicine & Dentistry of New Jersey, 223 F.3d 220, 227 (3d Cir. 2000) ("Such speculation is insufficient to raise a fact issue precluding summary judgment.").

Third, Plaintiff attached to his Counterstatement an extraordinary amount of allegedly supporting evidence, including fourteen audio CDs of interviews conducted by the PSP Internal Affairs Department and hundreds of pages of documents. (Docket Nos. 66-1 to 66-18). Like the numerous allegations in Plaintiff's Counterstatement, this voluminous evidence concerns his relationships with others at the PSP and investigations of complaints by or against Plaintiff, mostly before he filed the grievances for which Defendants allegedly retaliated.*fn3 Most of this evidence is not material to the present motion, as it concerns non-parties, parties who have been dismissed from the case, and / or activities that pre-date the grievances for which Defendants allegedly retaliated.*fn4

Therefore, the Court will not consider or attempt to resolve the facts and disputes raised in Plaintiff's Counterstatement and exhibits, unless they relate to the question of alleged First Amendment retaliation currently before the Court.

Fourth, perhaps in an attempt to rectify the Counterstatement's limited references to the record, Plaintiff filed a signed "Declaration of George Emigh" stating that:

1. I, George Emigh under the threat of perjury and knowing that making false statements to authorities is unlawful, I [sic] affirm that I personally researched all pertinent documents and testimony in this case and that I personally composed the "Plaintiff's Counterstatement of Undisputed Material Facts" and the contents thereof are mine and were intentionally composed by me.

2. I assert the Counterstatement is more than a mere response to Defendants [sic] Statement of Facts, it is, in fact an affidavit of mine and was composed for that purpose.

3. Any subjective statements in the Counterstatement should be considered sworn to by me. (Docket No. 68). Defendants have asked the Court to find that such a declaration is improper, and to strike it. (Docket No. 73).

In this Court's estimation, Plaintiff's so-called "affidavit" is not properly submitted under Rule 56(e) of the Federal Rules of Civil Procedure. Rule 56(e) provides, in pertinent part, that a "supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit." Fed.R.Civ.P. 56(e). Plaintiff's blanket declaration cannot convert a thirty-seven page document -- containing responses to Defendants' stated facts, Plaintiff's own statements of fact, legal argument, and subjective impressions and speculation -- into a sworn affidavit for summary judgment purposes. Furthermore, under the sham affidavit doctrine, "a court will disregard an affidavit inconsistent with an affiant's prior deposition testimony when a party moves for summary judgment on the basis of the deposition unless the party relying on the affidavit in opposition to the motion can present a legitimate reason for the discrepancies between the deposition and the affidavit." Smith v. Johnson & Johnson, 593 F.3d 280, 285, n. 3 (3d Cir. 2010). Accordingly, this Court will not simply accept Plaintiff's "declaration" that his proposed facts in the Counterstatement, not otherwise supported by the record, should be considered a sworn affidavit. Rather, only Plaintiff's facts supported by the record will be considered.*fn5

Local Rule 56.E provides that:

Alleged material facts set forth in the moving party's Concise Statement of Material Facts or in the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party.

W.D.Pa. LCvR. 56.E. In the past, courts in this district have strictly applied Local Rule 56 and deemed uncontroverted facts to be admitted. Cuevas v. U.S., C.A. No. 09-43J, 2010 WL 1779690, *1 (W.D.Pa. Apr. 29, 2010) ("Plaintiff's response to Defendant's Motion does not contain any basis for any... denial of a fact and also fails to reference the record for each such denial. Though this Court must give certain latitude to a pro se litigant, it is not for the Court to sort through the entire record to determine the basis of an alleged disputed fact. As Plaintiff has failed to comply with our local rules, Defendant's Statement of Facts as set forth in [its concise Statement of Material Facts] are admitted as true and correct."); Martin v. Pleasant Ridge Manor-East, Civ. A. No. 08-14E, 2010 WL 887349 (W.D.Pa. Mar. 10, 2010); Jackson v. City of Pittsburgh, 688 F. Supp.2d 379, 396 (W.D.Pa. 2010); Laymon v. Bombardier Transp. (Holdings) USA, Inc., Civ. A. No. 05-169, 2009 WL 793627, *1 (W.D.Pa. Mar. 23, 2009).

However, in order to expedite ruling on the pending motion, and because the Court cannot fathom a more comprehensive presentation of "facts" than the hundreds of pages produced by Plaintiff, all of which this Court has digested, the Court finds that both sides have had more than ample opportunity to present and rebut their proposed facts, in keeping with the spirit, if not the letter, of Local Rule 56. Although Plaintiff's Counterstatement / Declaration of Material Facts does not adhere to Local Rule 56, it does respond to each of Defendants' facts, and does present numerous other alleged facts from Plaintiff's perspective. At times, the Court questions the materiality of the issues presented, but Defendants have replied to Plaintiff's proposed facts at Docket No. 73, pursuant to W.D.Pa. LCvR. 56.D. Therefore, the Court has not simply deemed Defendants' uncontroverted facts admitted pursuant to Local Rule 56.E. Instead, the Court has examined all of the material presented, separated the wheat from the chaff by discounting unsupported hypotheses and immaterial factual disputes, and determined the material facts for the purposes of resolving this motion.

Which facts are material at summary judgment is determined by the relevant substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). "[T]he substantive law's identification of which facts are critical and which facts are irrelevant... governs." Id. The only remaining claim before the Court is a claim under § 1983 that Defendants retaliated against Plaintiff for exercising his First Amendment right to petition by filing two union grievances; therefore, only facts related to that claim are material for the purposes of summary judgment. As discussed below, the validity of a § 1983 claim of First Amendment retaliation depends on whether a plaintiff's activity is protected under the First Amendment, and on how that protected activity factored into a defendant's actions against the plaintiff. See El-Ganayani v. U.S. Dept. of Energy, 591 F.3d 176, 184 (3d Cir. 2010). Thus, facts indicating that Defendants knew of and were motivated by Plaintiff's grievances are material. See Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002) ("It is only intuitive that for protected conduct to be a substantial or motiving factor in a decision, the decisionmakers must be aware of the protected conduct."). But, facts indicating Defendants knew of or were motivated by Plaintiff's other activities, including activities pre-dating Plaintiff's grievances -- or indicating the knowledge and motives of parties other than the two remaining Defendants -- are generally not material, except as general context or background information.*fn6

Accordingly, the material facts, construed in the light most favorable to Plaintiff, are as follows.


Plaintiff is a former sergeant with the PSP who retired on August 24, 2007. (Docket Nos. 1 at ¶¶1, 43; 32 at ¶¶1, 43). He began his employment with the PSP on June 17, 1982, and had, therefore, been employed by the PSP for twenty-five years at the time of his retirement. (Docket No. 59-1 at 23). Brown was a Lieutenant Colonel in the PSP and Miller was Commissioner of the PSP at all relevant times. (Docket Nos. 1 at 3-4; 32 at 2).

A. Steffee's Complaint

On June 8, 2006, former defendant, Indiana County Magisterial District Judge Susanne Steffee complained to former defendant, PSP Lieutenant James Fulmer that Plaintiff had grabbed her, pulled her towards him, and "French kissed" her against her will at an off-duty party in October 2004. (Docket No. 59-1 at 7). Plaintiff believes that this complaint was made in retaliation for his writing a negative review of former defendant Allison Jacobs, a PSP trooper under Plaintiff's supervision, and a friend of Steffee.*fn7 (Docket No. 1 at ΒΆΒΆ 12-20). Fulmer filed Steffee's complaint, which then became the subject of PSP Internal Affairs Department investigation. (Docket Nos. 59-1 at 23-27; 59-3 at 24; 66-2; 66-3). During the course of this investigation, Plaintiff filed a PSP Bureau of Professional Responsibility worksheet with Internal Affairs complaining that ...

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