United States District Court, E.D. Pennsylvania
CYNTHIA M. RUFE, Judge.
Before the Court are Defendants' motion to dismiss and Plaintiff's response thereto. For the reasons below, the motion will be granted in part and denied in part.
Plaintiff, Shaun Butts, is a sergeant in the Philadelphia Police Department ("PPD"). The Defendants are the City of Philadelphia, Commissioner of Police Charles Ramsey, Captain David Bellemy of PPD, and Lieutenant Steven McCullum, also of PPD.
Butts joined PPD in January of 1995, and in 2005 he joined the Guardian Civic League ("GCL"). GCL is an association of Philadelphia area law enforcement officers that, among other things, advocates against racial discrimination within PPD. Butts has been GCL's treasurer and a member of its executive board. By 2009, GCL had become aware of racist comments posted on Domelights.com, a website that provided a forum for discussions, the participants of which were mostly Philadelphia police officers. Butts and GCL criticized Domelights.com to the local media, and in July 2009, GCL sued PPD alleging in part that posts on Domelights.com reflected and nurtured a hostile work environment. Butts participated in this lawsuit by providing documents to lawyers and attending court hearings. He also had several meetings with Ramsey, and Bellemy had worked with Butts when Bellemy was a member of GCL, before a falling out between Bellemy and GCL's current president caused Bellemy to relinquish his GCL membership.
Shortly after GCL filed its lawsuit, Butts faced adversity at work. McCullum criticized Butts for speaking out against Domelights.com; Butts's supervisors began subjecting him to increased scrutiny and changing his work responsibilities; and his supervisors allowed an embarrassing photograph of Butts to be posted at police headquarters. In September 2010, Plaintiff submitted a transfer request, which was denied, and in the same month, he requested vacation, but was only approved for leave without pay. Butts has pointed to several other police offers who were granted requests similar to his who had not spoken out publicly about Domelights.com.
In October 2011, Butts's problems at work resurfaced. He sought leave to attend a family funeral, and received a "counseling memo, " a form of discipline within PPD, chastising him for requesting the leave late, even though it was timely and other police officers had submitted untimely leave requests without suffering discipline. That same month, he was detailed to a district where he did not want to serve, despite the fact that a more junior officer was available for the detail and ordinarily would have been assigned. In December 2011, Butts's house was broken into. Butts arrested the perpetrator, and Bellemy interfered with the investigation, breaking the usual investigatory protocol and inquiring whether Butts had harmed the perpetrator.
At some point in August 2012, the district to which Butts was assigned experienced a "fat day, " which happens when too many officers are scheduled for duty. There were not enough cars to accommodate all the officers, and Bellemy ordered supervisors like Butts not to grant anyone vacation time. Notwithstanding Bellemy's order, Butts, McCullum, and a Sergeant Paliord granted vacation to twelve officers. Ramsey suspended Butts for five days, but neither McCullum nor Paliord was disciplined.
Butts's final set of relevant allegations concern Ramsey's failure to promote him. Since 2011, Butts has been #41 on the PPD promotions list, but Ramsey has repeatedly declined to elevate him to the rank of lieutenant. Until February 2013, the reason given for the denials was that there were two complaints open against Butts. During that month, Butts was exonerated for both complaints, and he was later told that the reason he was not being promoted was that he was still within the "reckoning period" for a September 2011 infraction of reporting for duty without a gun. However, one officer who was not a member of GCL was promoted despite open complaints against him for sexual harassment and excessive force, and another officer who was of a different race from Butts was promoted during the reckoning period for insubordination and neglect of duty.
II. Standard of Review
In order to survive a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Additionally, it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." A plaintiff who survives a motion to dismiss for failure to state a claim on which relief may be granted states facts sufficient to "give the defendant fair notice of what the... claim is and the grounds upon which it rests.'"
A. First Amendment Retaliation Claims
In order to state a claim for retaliation under § 1983, "a public employee must demonstrate that (1) he or she engaged in activity that is protected by the First Amendment, and (2) the protected activity was a substantial factor in retaliatory action by the employer." The first inquiry is a question of law, the second of fact. To establish that the activity was protected by the First Amendment, the plaintiff must show that he or she spoke as a citizen on a matter of public concern or associated with a group in order to promote speech on a matter of public concern. After making this showing, the plaintiff must persuade the court that the employee's interest "as a citizen, in ...