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Charles Patton v. Henry Rick Pasqualini and Newtown Township

August 25, 2011

CHARLES PATTON,
PLAINTIFF,
v.
HENRY RICK PASQUALINI AND NEWTOWN TOWNSHIP,
DEFENDANTS.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

In this case, plaintiff Charles Patton alleges he was forced from his position as a sergeant in the Newtown Township Police Department in 2008 by defendant Henry Rick Pasqualini, the recently hired police chief. Patton contends that Pasqualini constructively terminated him because Patton spoke out on police department issues at a public meeting of the Board of Supervisors of Newtown Township and/or because Pasqualini disapproved of Patton‟s service on a Bucks County grand jury. Patton alleges claims arising under 42 U.S.C. § 1983 ("Section 1983") and state law against Pasqualini and a claim arising under Section 1983 against Newtown Township ("Newtown" or "the Township"). Presently before the Court is defendants‟ motion for summary judgment. For the reasons that follow, that motion is granted in part and denied in part.

II. BACKGROUND*fn1

Patton‟s employment with Newtown began in 1976, when he was hired as a part-time police officer. (Patton Dep. at 12.) He became a full-time employee the next year and remained on the Newtown police force until retiring after the events at issue in this case. (Id. at 13, 65.)

For virtually all of Patton‟s tenure with Newtown, Martin C. Duffy served as the Township‟s Chief of Police. Duffy was hired in March 1976 -- two months before Patton joined the force -- and retired on April 30, 2008. (Duffy Dep. at 9-10.) Duffy and Patton are "very close friend[s]." (Id. at 53.) Pasqualini replaced Duffy as Chief of Police on May 29, 2008. (Pasqualini Dep. at 170.)

A. Patton‟s Public Comments and Pasqualini‟s Response

On April 23, 2008, just a week before Duffy retired, Patton attended a meeting of the Township‟s Board of Supervisors. (See Defs.‟ Mot for Summ. J., Ex. D.) Dressed in his police uniform, Pasqualini spoke during the public comment portion of the meeting. In the course of his five-minute address to the board, Patton stated:

I‟m here tonight to address some internal issues in our police department. I have wanted to speak to all of you for some time. I have actually asked since February to speak to you on behalf of me and others. . . . I have been with this township for 32 years. . . . I‟m eligible to retire. This is not for me. I can leave today. I could‟ve left two years ago. And I ask you to listen to the rest of . . . my plea.

The majority of the officers have the same legitimate concerns and complaints that I need addressing [sic] as soon as possible. It behooves this board to ask what the needs of our department are, what the needs are to be fixed and how it is to be fixed. One would have assumed, in this day and age, knowing with the knowledge for the last five years that Martin C. Duffy was going to retire, that we would not wait on the eleventh hour to meet with all the personnel before you choose a chief to see . . . what are their problems, how can he fix this. And unfortunately, up until this day, we have not been reached out by any township supervisor, none of the personnel. And I also say, in this day and age, you‟re paying for a consultant firm to figure out what you need as a new township police chief. And they haven‟t reached out.

Many officers are apprehensive to come forward like I am today, I can assure you, for repercussions within this police department. Why not take the time to meet with us individually -- all of us, each and every one of us officers. Me especially, 32 years, I have nothing to gain out of this. Meet with us as a group or individually. This would be beneficial for every one of us and more importantly, [for] all these township residents that rely on us -- this is a very difficult job. I myself would like to meet with all of you tonight. . . . My point would be to have an executive session with you tonight and give you some of my points . . . to improve this police department that has been plagued with problems [for] 32 years. So I‟m reaching out to you. And I beg you to listen to what I ask for you people to do today. Thank you.

I also have a document that this township in . . . 2000 they did a study . . . this township did a study on what the needs are of this police department. . . . I brought [copies of the study] tonight. And this is an issue that has brought the dissension and plague within the police department. I beg you to read this and understand our plea here. And I really do ask you . . . this is about trust and faith and honor. I‟ve been here 32 years, this is not for me. Thank you. (Id.) Patton then proceeded to hand out copies of the 2000 study to the members of the board. (Id.)

After Patton distributed the copies of the study, he returned to the podium. Board Chairman Tom Jirele informed Patton that the board had made a "conscious decision" not to seek input from the officers before hiring a new chief. (Id.) Patton responded, "I can‟t figure out for the life of me -- this is an educated group here -- you have to reach out and talk to the employees [and ask], "What went wrong?‟ "What continued to go wrong?‟ "And how can we fix this?‟ . . . And I‟ll tell you the mistake you‟re making here, with all due respect. This guy‟s going to come in here and have absolutely no idea what needs to be fixed." (Id.) The dialogue with Jirele and other members of the board continued for about 10 minutes, after which Patton left the podium. (Id.)

Pasqualini testified that he was not in the audience during the meeting. (Pasqualini Dep. at 41.) According to Lt. Glenn Forsyth, after Pasqualini became Chief of Police a month later, Forsyth informed Pasqualini about Patton‟s appearance before the board. (Forsyth Dep. at 85.) Forsyth also testified that Pasqualini asked him for a video tape of the meeting, and Forsyth said he provided one. (Id.)*fn2

According to Patton, however, Pasqualini told him that Pasqualini was in the audience during Patton‟s speech. (Patton Dep. at 22.) Patton testified that the first time he met with the new chief, Pasqualini expressed his disapproval for Patton‟s speech to the Board of Supervisors, as follows:

He said to me when he interviewed me the first time I had seen him, that, in fact, that he was in the audience; and that he heard me. . . . He said to me specifically that he asked the township supervisors to give him permission to fire me for speaking in front of the township supervisors in April of -- April 23rd, 200[8], and that, in fact, he was in the audience. He said to me, if you ever do that again on my watch, I will fire you. (Patton Dep. at 22-23.) Pasqualini acknowledged that he had concerns about Patton appearing at the meeting "in full uniform representing the police department." (Pasqualini Dep. at 47.) He stated that he believed some officers were upset by Patton‟s speech, but he further testified that no officers missed work as a result and that the department‟s functioning was not impaired. (Id. at 51.)

B. Patton‟s Work for the Grand Jury

At the time Patton spoke to the Board of Supervisors, he had already been impaneled on a Bucks County grand jury for more than a year. Patton was selected for the grand jury on February 23, 2007 and began his regular weekly service on March 1, 2007. (Duffy Dep., Ex. 1.)

After he was selected for the grand jury, Patton informed then-Chief Duffy of his need to appear regularly for grand jury service. (Duffy Dep. at 13-14.) Duffy told Patton that Patton should fill out his time sheets as if he had worked his normal 12-hour shift on days when he was scheduled to work but had to attend the grand jury. (Id. at 14-15.) Patton was not to return to work on those days, even if his grand jury service ended in fewer than 12 hours. (Id. at 15.) Other officers who attended court proceedings were required to return to work if the proceedings ended prior to the end of their shifts. (Id. at 36.) However, given the secret nature of grand jury proceedings, Duffy believed it would be inappropriate for him to know exactly when or for how long the grand jury was meeting. (Id. at 36-37.)

C. Investigation, Confrontation and Retirement

After Pasqualini became Newtown‟s police chief, he learned of Patton‟s service on the grand jury. Pasqualini believed it was inappropriate for police officers to sit on grand juries and worried about the time commitment such service entailed. (Pasqualini Dep. at 24-25.) Pasqualini expressed his misgivings directly to Patton. (Id. at 23-24.) According to Patton, Pasqualini told him that "policem[e]n don‟t belong on grand juries. I am going to look into this." (Patton Dep. at 67.)

Shortly thereafter, in July 2008, Forsyth noticed what he believed to be a discrepancy between the amount of leave time Patton said he was going to request and the amount he claimed on his timesheet. (Patton Dep. at 16.) According to Forsyth, Patton told him he was doing grand jury work on July 10, 2008, during the time when Forsyth thought Patton would be claiming leave time instead. (Id.)

Forsyth brought the issue to Pasqualini‟s attention. (Pasqualini Dep. at 53.) Pasqualini directed Forsyth to investigate. (Id. at 54.) Forsyth contacted the Bucks County District Attorney‟s Office and learned that the grand jury had not been in session on July 10, 2008. (Pasqualini Dep., Ex. 1.) Forsyth gathered further information on this issue and prepared a report, dated July 31, 2008, which stated that Patton had claimed to be working for the grand jury on a total of eight days in 2007 and 2008 when he was not doing so. (Id. at 72; see also id., Ex. 1.)

Armed with the information in the report, Pasqualini contacted Newtown Officer Dan Bell, president of the Police Benevolent Association ("PBA") and advised that there were "some serious questions about Sergeant Patton‟s appearance at the grand jury and his time sheets." (Id. at 75.) According to Patton, Bell later told him that Pasqualini said during that conversation, "I‟m firing [Patton]. . . . He‟s a thief." (Patton Dep. at 59.)

Pasqualini then contacted David Zellis at the district attorney‟s office. Pasqualini asked Zellis if his office maintained a sign-in log that would reflect all times when grand jury members reported for work. (Pasqualini Dep. at 72.) Zellis responded that there were times when grand jury members came to the courthouse to review evidence on their own, but that there was no sign-in log that would document if and when any particular grand juror had done so. (Id.) As a result, the district attorney‟s office lacked complete records of all the times when grand jurors were working. (Id. at 72-73.) Zellis told Pasqualini that the district attorney‟s office would not pursue criminal charges against Patton based on the information available at that time. (Id. at 103.)

Pasqualini subsequently met with township manager Joe Czajkowski and Phil Whitcomb, the Township‟s labor counsel, to discuss the investigation. (Id. at 87.) According to Pasqualini, Whitcomb suggested that Pasqualini tell Patton that "there were serious questions as to the grand jury appearances and his time sheets, and to indicate to him that he might want to consider retiring and putting this behind him." (Id.)

The next day, Saturday, August 2, 2008, Pasqualini summoned Patton to his office for a meeting with him and Forsyth. The parties dispute what transpired during the meeting. Patton testified that Pasqualini told him he would be fired and charged criminally if he did not resign or retire. (See Patton Dep. at 67-68.) Pasqualini, by contrast, stated that he only "told [Patton] the possibility of charges were on the table." (Pasqualini Dep. at 123.)

The following Monday, August 4, 2008, Pasqualini signed up for a deferred retirement option program ("DROP").*fn3 (Patton Dep. at 68.) In November 2008, he informed Pasqualini by memorandum that he would be retiring as of January 8, 2009. (Id., Ex. 6.)

D. The Instant Action

On October 23, 2009, Patton filed the instant action, alleging, inter alia, that Pasqualini forced him to retire because of his speech to the Board of Supervisors and his work on the grand jury. Patton brings claims arising under Section 1983 and state law against Pasqualini and under Section 1983 against the Township. Defendants have moved for summary judgment; the motion is fully briefed and ripe for review.

III. LEGAL STANDARD

In considering a motion for summary judgment, "the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party‟s favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). The party opposing the motion, however, cannot "rely merely upon bare assertions, conclusory allegations or suspicions" to support its claim. Fireman‟s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). After examining the evidence of record, a court should grant summary judgment if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

A factual dispute is material when it "might affect the outcome of the suit under the governing law," and genuine when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial.‟" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

IV. DISCUSSION

Although the Complaint is less than precise, it appears to assert the following claims against Pasqualini:*fn4 (1) retaliation for First Amendment-protected activities, in violation of Section 1983; (2) deprivation of due process, in violation of Section 1983; (3) deprivation of equal protection, in violation of Section 1983; (4) intentional infliction of emotional distress; and (5) defamation.

Patton also asserts a Section 1983 claim against the Township based on a policy of retaliation for First Amendment-protected activities and/or a failure to train its officers in protection of First Amendment rights.

As an initial matter, defendants argue that all of plaintiff‟s claims are barred because he has not exhausted all administrative remedies available to him under the collective bargaining agreement ("CBA") between the Township‟s police officers and the Township. As the Third Circuit has held, however, "there is no requirement that a plaintiff exhaust administrative remedies before bringing a § 1983 action." Cnty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006) (citation omitted). Moreover, defendants have not provided a copy of the CBA or produced any evidence showing that plaintiff could have availed himself of an administrative process in ...


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