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James Fulmer v. Electronic Filing Commonwealth of Pennsylvania

March 16, 2011


The opinion of the court was delivered by: David Stewart Cercone United States District Judge


Plaintiff James Fulmer ("Fulmer") commenced this civil rights action pursuant to 42 U.S.C. § 1983 seeking redress for workplace retaliation in violation of the First Amendment and Title VII. Fulmer avers that defendants, the Pennsylvania State Police ("PSP"), Jeffery B. Miller ("Miller"), Frank Monaco ("Monaco"), and Harvey Cole, Jr. ("Cole") violated his constitutional and statutory rights in retaliation for responses he gave in state police internal investigations and proceedings. The court dismissed plaintiff‟s § 1983 claims against the PSP and the individuals for actions taken in their official capacity. It also dismissed plaintiff's Title VII claim. What remains is plaintiff‟s First Amendment claims against the individual defendants in their individual capacity. Presently before the court is defendants‟ motion for summary judgment. For the reasons set forth below, the motion will be granted.

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving 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 judgment as a matter of law. Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party‟s claim, and upon which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. When the movant does not bear the burden of proof on the claim, the movant‟s initial burden may be met by demonstrating the lack of record evidence to support the opponent‟s claim. National State Bank v. National Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving party must set forth specific facts showing that there is a genuine issue for trial, or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56 (a), (e)) (emphasis in Matsushita). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

In meeting its burden of proof, the opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita, 475 U.S. at 586. The non-moving party must present affirmative evidence in order to defeat a properly supported motion and cannot simply reassert factually unsupported allegations. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Nor can the opponent merely rely upon conclusory allegations in [its] pleadings or in memoranda and briefs. Harter v. GAF Corp., 967 F.2d 846 (3d Cir. 1992). Likewise, mere conjecture or speculation by the party resisting summary judgment will not provide a basis upon which to deny the motion. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382-83 n.12 (3d Cir. 1990). If the non-moving party‟s evidence merely is colorable or lacks sufficient probative force summary judgment must be granted. Anderson, 477 U.S. at 249-50; see also Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1362 (3d Cir. 1992), cert. denied, 113 S.Ct. 1262 (1993) (although the court is not permitted to weigh facts or competing inferences, it is no longer required to turn a blind eye to the weight of the evidence).

The record as read in the light most favorable to plaintiff establishes the background set forth below. Fulmer‟s employment with the PSP began on September 19, 1983. In 2002, he advanced to the position of lieutenant and was stationed at Troop A in Greensburg. On March 27, 2004, he was assigned the position of Crime Section Commander. The position‟s duties included receiving and investigating complaints of criminal conduct in Somerset, Westmorland, Indiana and Cambria counties and overseeing and directing all criminal investigations undertaken by Troop A. Additionally, plaintiff had the responsibility of handling the investigations of complaints from the public alleging misconduct by state police officers in those counties.

While stationed at Troop A plaintiff was under the command or interacted with several officers whose conduct is at the heart of plaintiff‟s First Amendment claims. They include: Cole, who was acting captain of the PSP; Monaco, who was a major in the PSP, the officer in charge of the Greensburg barracks, and plaintiff's commanding officer; and Sergeant George Emigh ("Emigh"), a subordinate officer.

After becoming Crime Section Commander, plaintiff began to experience problems with Emigh. After encountering a number of difficulties with Emigh, plaintiff began to document Emigh's questionable behavior. Plaintiff reported this behavior to Monaco and Cole as part of a document outlining numerous issues within plaintiff's crime section. The matters pertaining to Emigh included improperly performing investigations, interfering with the hiring process, maintaining an unauthorized vice operations account, and failing to notify command of an arrest. Monaco sided with Emigh, referring to him as "an outstanding individual" and "the best Crime Sergeant in the state." Monaco never addressed the reported issues and thereafter rarely spoke to plaintiff.

On June 8, 2006, Fulmer responded to a complaint by District Magistrate Judge Suzanne Steffee ("Steffee") alleging that she had been sexually harassed by Emigh. Steffee relayed that she had been experiencing ongoing problems with Emigh. She was prompted to speak out about his behavior when, at a "wings" party sponsored by the Indiana station held at a Red Barn restaurant on a Saturday night, Emigh attempted to French kiss her and inappropriately grabbed her buttocks.

Plaintiff immediately commenced a formal complaint process against Emigh, as required by PSP regulations. The PSP has a "zero tolerance" policy when dealing with complaints of sexual harassment or misconduct. Plaintiff reduced his interview with Steffee to a six-page report which he attached to a "Use of Force or Complaint" form and submitted to Lieutenant Dale Blasko ("Blasko").

Thereafter, Blasko informed plaintiff that Monaco did not agree with plaintiff‟s summarization of the Steffee complaint. That day Monaco commented to plaintiff that he believed the statute of limitations had run on the offense and that Steffee "probably enjoyed the kiss." Pl. Concise Statement of Facts (Doc. No. 44) at No. 15, 16. Monaco then said to plaintiff; "you understand, I am the major and if I say something is a certain way, that‟s the way it is." Pl. Concise Statement of Facts, No. 17, 29. Plaintiff believed that Monaco's comment suggested that no further action should be taken on the Steffee complaint.

In response to plaintiff's formal initiation of the Steffee complaint, Emigh initiated a "Use of Force or Complaint" against plaintiff. This complaint alleged that plaintiff was biased against him and had assisted others in contriving the sexual misconduct complaint.

Because the Steffee complaint involved a possible violation of the PSP‟s sexual harassment policy, it was reviewed by State Police Equal Employment Opportunity officer Lieutenant Martin Henry ("Henry"). Henry‟s investigation characterized Monaco‟s statement, "I am the major and if I say something is a certain way, that's the way it is..." as an instruction that plaintiff not further process the Steffee complaint. Internal proceedings were then instituted against Monaco.

The State Police Internal Affairs Department began investigations into the complaints involving plaintiff and various officers. In addition to the Steffee complaint, Emigh's counter- complaint, and the investigation into Monaco's comments, an investigation was initiated into an unrelated complaint stemming from a physical altercation in the Greensburg barracks between civilians and PSP members. The civilians filed an internal complaint. During the investigation of the civilian complaint plaintiff accused Cole of placing the investigation on hold, and Cole thereafter became upset with plaintiff's accusation.

Lt. Donald Carahan ("Carahan") conducted the investigation into Monaco‟s comments. Plaintiff relayed the comments Monaco made regarding the Steffee complaint. Carahan showed Monaco plaintiff‟s interview responses and censorious information in plaintiff's journal notes. The notes were critical of Monaco and illustrated plaintiff‟s opinion regarding the effect that Monaco and Emigh were having on the barracks. Defendants' Response to Plaintiff's Concise Statements (Doc. 49) at ¶ 32. The journal stated: "The Devil is running wild in Troop A. Everything comes back to the Major and George EMIGH. What does EMIGH have on the Major." Defendant's Exhibit (Doc. No. 41-4) at 29. Monaco became enraged and harshly criticized plaintiff, calling him "incompetent", a "rat weasel", "gutless", a "clueless idiot", a "bare-faced liar", a "disgrace", and stating that he would "like to go down and smack his lying face." ...

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