The opinion of the court was delivered by: Robert F. Kelly, Sr. J.
Presently before the Court is Defendants, City of Philadelphia (the
"City"), Charles Ramsey,*fn1 Michael Kelly,*fn2
Melvin Singleton, Salvatore Fede, and Frank Palumbo's
(collectively, the "Defendants"),*fn3 Motion for
Summary Judgment against Plaintiffs, Michael Gwynn ("Officer Gwynn")
and Brendan Ryan ("Officer Ryan") (collectively, the "Plaintiffs").
For the reasons set forth below, the Defendants' Motion for Summary
Judgment will be granted in its entirety.
Officer Gwynn and Officer Ryan are employed by the City of Philadelphia Police Department ("PPD") as police officers. (Compl. ¶ 13.) On December 15, 2009, Plaintiffs were assigned to the 19th District day shift. (Defs.' Mot. Summ. J., Ex. 1 at 7.) According to a statement given to the Federal Bureau of Investigation ("FBI") on March 24, 2010, Keishawn Artis ("Artis") claims that on December 15, 2009, at approximately 3:00 p.m., after leaving his aunt's house located at 209 Gross Street in Philadelphia, he was stopped by Officers Gywnn and Ryan. (Id., Ex. 2.) Artis states that he was walking with his brother, Leroy Britt ("Britt"), when they were approached by Plaintiffs and asked to stop. (Id.) They did so, and Plaintiffs immediately began a search of both men, with Officer Ryan searching Britt, and Officer Gwynn searching Artis. (Id.) Artis states that during the search, Officer Gwynn intentionally grabbed his crotch and back pocket to distract him while Officer Gwynn removed approximately $400 to $600 in cash from his back pocket. (Id.) Artis claims that he received this money from his employment at Laxton Enterprises Incorporated where he worked in trash removal. (Id.) After Officer Gwynn finished his search, Artis immediately asked him to return the money to which Officer Gwynn responded that he had not taken any money. (Id.) When Artis again asked for the money, Plaintiffs departed. (Id.) Artis stated that he returned home and told a family member that a police officer had stopped him and stolen his Christmas money. (Id.) The family member called the police, described the incident and reported the allegation of theft. (Id.)
The phone call by the Artis family member resulted in an investigation being initiated by the Internal Affairs Bureau ("IAB") (Defs.' Mot. Summ. J., Ex. 3 at 4.) Lt. Palumbo stated in an Affidavit that he and Sgt. Fede were at the 19th District Station when IAB called to alert Capt. Singleton that their investigators would be coming there in a few hours to investigate the complaint made by Artis. (Id. at 6.) Capt. Singleton was not at the station when IAB called, and Sgt. Fede contacted him and made him aware of the situation. (Id.) Before Capt. Singleton arrived at the station, Plaintiffs returned from their street duty assignment. (Id.)
Plaintiffs contend in their Complaint that upon arrival back at the 19th District, they were "held in a room [sic] not allowed to communicate without [sic] others for up to Five [sic] and a half hours. During such time the Plaintiffs were search [sic] and the search included the removal of parts of the Plaintiff [sic] clothing." (Compl. ¶ 5.) Plaintiffs further assert that "Defendant Charles Ramsey order [sic] the Plaintiff to DRP*fn4 and off street duty because they brought a grievance against the City of Philadelphia for being deprived of their free movement, liberty, and for opposing a [sic] unreasonably [sic] search and seizure by Defendants Michael Kelly, Melvin Singleton, Salvadore Fede and Frank Pulombo." (Id. ¶ 8.)
Plaintiffs assert further that they were "intentionally placed in a room at the 9th [sic] Police District," and "were not permitted by Defendants Michael Kelly, Melvin Singleton, Salvadore Fede and Frank Pulombo to leave the room or to communicate with others, including friends and family, for approximately five and a half hours. Further, in [sic] this same time the Plaintiffs were not permitted . . . to use their cell phone [sic] or contact others. Gwynn was held for four and a half hours; Ryan held for five and [sic] half hours." (Id. ¶¶ 20-21.) Plaintiffs further aver that they protested the unreasonable search and seizure by filing a grievance with their union, and that in retaliation for filing such, they were ordered to the DRP and removed from street duty for five and one half months. (Id. ¶ 22-23.) Plaintiffs contend that this deprived them of the opportunity to earn overtime pay for this period of time. (Id. ¶ 23.)
In Count I, Plaintiffs assert claims under 42 U.S.C. § 1983,*fn5 and under the First, Fourth, and Fourteenth Amendment. Plaintiffs aver that they were: deprived under color of state law by Defendants . . . of such rights as: liberty, freedom from unreasonable seizures and search [sic], right not to be retaliated for engaging in Petition Clause activity, due process and association, such rights are secured under the First, Fourth, and Fourteenth Amendments of the United States Constitution, and without adequate or valid due process of law. (Id. ¶ 33.)
In Count II, Plaintiffs assert a claim under the Fair Labor and Wage Act, 29 U.S.C. §§ 201, et seq., for the City's failure to pay them for the two and one half hours of overtime pay that they were entitled to when they were held in custody by Defendants. (Id. ¶¶ 36-37.) In Count III, Plaintiffs bring state law claims for false imprisonment and under Pennsylvania's Minimum Wage Act, 35 P.S. § 333.101 et seq. (Id. ¶ 42-43.)
Federal Rule of Civil Procedure 56(c) states that summary judgment is proper "if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." See Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). The Court asks "whether the evidence presents a sufficient disagreement to require submission to the jury or whether . . . one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party has the initial burden of informing the court of the basis for the motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F. Supp. 554, 561 n.14 (E.D. Pa. 1998).
Summary judgment must be granted "against a 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, 477 U.S. at 322. Once the moving party has produced evidence in support of summary judgment, the non-moving party must go beyond the allegations set forth in its pleadings and counter with evidence that presents "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362-63 (3d Cir. 1992). "More than a mere scintilla of evidence in its favor" must be presented by the non-moving party in order to overcome a summary judgment motion. Tziatzios v. United States, 164 F.R.D. 410, 411-12 (E.D. Pa. 1996). If the court determines that there are no genuine issues of material fact, then summary judgment will be granted. Celotex, 477 U.S. at 322.
Plaintiffs assert that they engaged in "First Amendment Petition Clause activity" when they filed grievances with their union under a collective bargaining agreement between the union and the City against all Defendants over the December 15, 2009 incidentin question. (Compl. ¶ 27.) They claim that the Defendants unlawfully retaliated against them for the filing of the grievances by assigning them to the DRP unit where they were not able to earn the same amount of overtime as they had earned while on street duty. (Id. ¶ 23.) These claims, however, fail for several reasons.
We first point out that, logically, the sequence of events here does not support Plaintiffs' claims of retaliation. Both Plaintiffs acknowledge that the very next morning after the incident in Capt. Singleton's office that they were assigned to the DRP. Officer Gwynn testified that he was called by Sgt. Fede the next morning at "approximately 7 or 8 a.m.," and told to report to the DRP. (Pls.' Resp. Mot. Summ. J., Ex. 1 at 94.) Officer Gwynn further stated that he then called Officer Ryan and learned that Officer Ryan was told the same thing. (Id. at 95.) Neither Plaintiff testified that they first filed a grievance with their union before they were assigned to the DRP. Thus, it follows that none of the Defendants could have unlawfully retaliated against the Plaintiffs by assigning them to the DRP because the assignments occurred before Plaintiffs filed their grievances with the union.
Plaintiffs' retaliation claims also fail because the record indicates that Plaintiffs would have been assigned to the DRP whether or not they filed grievances with their union. Capt. Singleton testified at his deposition that all of the officers that had been accused of crimes in the 19th District since he has been captain were assigned to the DRP. (Pls.' Resp. Mot. Summ. J., Ex. 7 at 92.) Capt. Singleton explained that "DRP is something that when an allegation is made on an officer concerning a crime . . . in the course of an Internal Affairs investigation, while Internal Affairs is investigating the officers are assigned to non policing duties." (Id. at 93.) Here, the Plaintiffs have failed to produce evidence of any officer in the 19th District, or any other district for that matter, that was not assigned to the DRP or similar off-street duty after being accused of a crime. In addition, they have presented no evidence to support their position that Plaintiffs were assigned to the DRP in retaliation for any First Amendment Petition activity that they claim to have done after the incident.
However, most importantly, Plaintiffs' retaliation claims fail in light of the United States Supreme Court's decision in Borough of Duryea v. Guarnieri, 131 S.Ct. 2488 (2011). In Duryea, the Court determined that "[w]hen a public employee sues a government employer under the First Amendment's Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern." Id. at 2493 (citing Connick v. Myers, 461 U.S. 138, 147 (1983)). The Court further determined that even where the employee makes such a showing, courts must balance the employee's right to engage in speech against the government's interest in promoting the efficiency and effectiveness of the public services it performs through its employees. Id.
The substantial government interests that justify a cautious and restrained approach to protecting public employees' speech are just as relevant in Petition Clause cases. A petition, no less than speech, can interfere with government's efficient and effective operation by, e.g., seeking results that "contravene governmental policies or impair the proper performance of governmental functions." Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S.Ct. 1951, 164 L.Ed.2d 689. A petition taking the form of a lawsuit against the government employer may be particularly disruptive, consuming public officials' time and attention, burdening their exercise of legitimate authority, and blurring the lines of accountability between them and the public. * * * * The framework used to govern public employees' Speech Clause claims, when applied to the Petition Clause, will protect both the government's interests and the employee's First Amendment right. If a public employee petitions as an employee on a matter of purely private concern, his First Amendment interest must give way, as it does in speech cases. San Diego v. Roe, 543 U.S. 77, 82--83, 125 S.Ct. 521, 160 L.Ed.2d 410. If he petitions as a citizen on a matter of public concern, his First Amendment interest must be balanced against the government's countervailing interest in the effective and efficient management of its internal affairs. Pickering, supra, at 568, 88 S.Ct. 1731.*fn6 If that balance favors the public employee, the First Amendment claim will be sustained. If the balance favors the employer, the employee's First Amendment claim will fail even though the petition is on a matter of public concern.
Plaintiffs argue that "reporting a violation of government laws is a matter of public concern." (Pls.' Resp. Mot. Summ. J. at 15.) Plaintiffs argue that their filing of grievances with their union in which they alleged illegal search and seizure is a matter of public concern. We disagree.
An employee's speech or petition clause activity involves a matter of public concern where "it can be fairly considered as relating to any matter of political, social or other concern to the community." Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2003) (quotingBaldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001)). Here, it is clear that Plaintiffs were not speaking as public citizens when they filed grievances with their union, but rather as employees voicing private concerns regarding how they were treated by their employer, i.e., whether they were improperly searched after being accused of theft. Duryea also stated that "[a] petition filed with an employer using an internal grievance procedure in many cases will not seek to communicate to the public or to advance a political or social point of view beyond the employment context." 131 S.Ct. at 2501. The Court further noted that "[t]he right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts." Id.
Moreover, even if we were to consider Plaintiffs' union grievances a matter of public concern, such must be balanced against the government's countervailing interest in the effective and efficient management of its internal affairs. Duryea, 131 S.Ct. at 2500. Under this balancing test, we find that the City and the PPD had a substantial "countervailing interest" in promptly investigating any police officer accused of a crime, especially a crime involving theft and dishonesty, to ensure the public of the integrity of its police department. Thus, for all these reasons, the Plaintiffs' filing of grievances with their union is ...