The opinion of the court was delivered by: Judge Caputo
Before the Court is a motion for summary judgment brought by Defendants Pennsylvania State Police, Col. Jeffrey Miller, Linda Bonney, and Frank E. Palowski (collectively, "PSP"). (Doc. 30.) Plaintiff Ronald Scavone alleges that PSP's decision not to hire him as a Liquor Enforcement Officer ("LEO"), after he failed to have a tattoo removed and questioned the removal policy, violated his First Amendment and Fourteenth Amendment rights. PSP argues: (1) the First Amendment retaliation claim fails because there is no causal link between Mr. Scavone's speech and the decision not to hire him; and
(2) a "class of one" equal protection claim cannot be brought in the public employment context. The Court agrees with both of PSP's arguments and will grant PSP summary judgment.
The PSP has been responsible for the enforcement responsibilities of the Liquor Control Board since the late 1980s and has developed the Bureau of Liquor Control Enforcement to carry out the Board's tasks. An LEO primarily conducts undercover and open investigations at licensed establishments. The PSP has had an unwritten tattoo policy since 1984. In 2007, the PSP instituted a policy that anyone applying for the PSP with a visible tattoo would have to have it reviewed by the Tattoo and Replica Review Committee for the Bureau of Liquor Control Enforcement to determine the applicant's employment eligibility. In 2007, the committee was made up of Julie Farling, Major Lutz, and one or both of the Captains from the Bureau, including Captain Patrick Gephart. The Bureau's criterion for tattoos at that time was that they not: be inappropriate; demean the image or reputation of the PSP; or prevent undercover work. At the time, LEOs with tattoos were grandfathered in. In July 2008, the tattoo policy was amended so that new cadets were prohibited from having tattoos that were visible when wearing the standard State Police Trooper short-sleeved uniform. The PSP's tattoo policy is located in both the applicant's Acknowledgment of Responsibilities form and the PSP's website. If an applicant has an unacceptable tattoo, the PSP has a policy of making an offer of employment conditional on the removal of the tattoo -- a policy developed by Linda Bonney and John Rick Brown.
Mr. Scavone originally tested with the PSP in 2007 and later interviewed for an LEO position. After passing the interview and written examination, on the day of his physical fitness exam Mr. Scavone had several of his tattoos photographed for evaluation. Of the ten tattoos photographed, one, a jester, was deemed unacceptable by the committee because of its uniqueness. By letter dated June 11, 2008, the PSP sent Mr. Scavone a letter stating his jester tattoo was unacceptable and had to be removed before he could be considered for employment. Mr. Scavone told the PSP he would remove the tattoo and spoke to two plastic surgeons. They told him the tattoo could not be completely removed and a "ghosting effect" would remain after surgery. After speaking to the surgeons, Mr. Scavone discussed the policy with individuals at the PSP and then hired an attorney to investigate the policy. He was eventually administratively discharged for failing to have the tattoo removed. Mr. Scavone then brought suit, alleging violations of his First Amendment rights and Fourteenth Amendment equal protection rights. The PSP then brought a motion for summary judgment. The motion has been fully briefed and is ripe for review.
Summary judgment is appropriate 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). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may
present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to ...