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Rossiter v. City of Philadelphia

United States District Court, Eastern District of Pennsylvania

March 17, 2014

KENNETH ROSSITER, Plaintiff,
v.
CITY OF PHILADELPHIA and CHARLES H. RAMSEY, Defendants.

OPINION

JOEL H. SLOMSKY, J.

I. INTRODUCTION

Plaintiff Kenneth Rossiter (“Plaintiff”) is employed as a police officer with the Philadelphia Police Department. Effective July 15, 2012, Plaintiff was terminated when Police Commissioner Charles H. Ramsey (“Defendant Ramsey”) issued a “Commissioner Direct Action.” The termination was challenged in an arbitration proceeding, and on April 2, 2013 an arbitrator ordered Plaintiff reinstated.

On June 18, 2013, Plaintiff instituted this action against Defendant Ramsey and the City of Philadelphia for violating his rights in connection with his termination. In the Complaint, Plaintiff alleges five claims in two counts. Count I alleges the following claims: (1) a procedural due process claim in violation of 42 U.S.C. § 1983; (2) a “stigma-plus” claim in violation of 42 U.S.C. § 1983[1]; (3) a retaliation claim in violation of Plaintiff’s First Amendment right to be associated with the Fraternal Order of Police (“FOP”); and (4) a retaliation claim in violation of Plaintiff’s First Amendment right to make a public statement to the press.[2] Count II alleges a municipal liability claim against the City of Philadelphia.

Presently before the Court is Defendants’ Motion to Dismiss for Failure to State a Claim. (Doc. No. 4.) Plaintiff filed a Response in Opposition, and Defendants filed a Reply. (Doc. Nos. 5, 6.) On October 22, 2013, a hearing on the Motion was held. Following the hearing, the Court permitted the parties to submit supplemental briefs, which have been filed of record. (Doc. Nos. 10, 11.) For reasons that follow, the Motion will be granted in part and denied in part.

11. BACKGROUND

Plaintiff Kenneth Rossiter is a police officer employed by the Philadelphia Police Department. (Doc. No. 1 at ¶ 12.) At all times during his employment, Plaintiff has been covered by the terms of the Collective Bargaining Agreement (“CBA”) between the City of Philadelphia and the FOP. (Id. at ¶ 14.) The FOP is the labor union for City of Philadelphia Police Officers. Defendant Ramsey is Police Commissioner of the Philadelphia Police Department.

In 2008, several local media sources published reports about overtime abuse among City workers. (Id. at ¶ 15.) The Philadelphia Police Department was the subject of particular scrutiny. (Id.) In January 2009, the Police Department created an overtime-management unit in an effort to reduce Department expenses. (Id. at ¶ 16.)

On August 12, 2010, the Philadelphia Daily News published a story on the highest-earners on the City payroll, noting that Defendant Ramsey was the third highest paid employee, and singling out Plaintiff as earning the most overtime pay. Plaintiff’s total compensation was $163, 923. (Id. at ¶ 17.)

On July 28, 2011, the Police Department received an anonymous complaint that Plaintiff was at home when he was supposed to be working overtime. (Id. at ¶ 18.) In response to this complaint, Sergeant Joseph Nadolski, a member of the Internal Affairs’ Integrity Control Unit, began an investigation into Plaintiff’s conduct, which included twenty-three days of surveillance during August and September 2011. (Id. at ¶ 19.) During this time, Plaintiff was observed at his residence sixteen times when he was recorded for payroll purposes as being on either straight time or overtime. (Id. at ¶ 20.)

On December 13, 2011, without providing notice to Plaintiff, Sergeant Nadolski questioned Plaintiff regarding each instance he was observed at home by the surveillance team. (Id. at ¶ 21.) Plaintiff explained to Sergeant Nadolski that he had either worked at home or had stopped at home in each instance. (Id.)

On or about December 27, 2011, Defendant Ramsey said in a statement to the Philadelphia Daily News that “[o]vertime is not a bad thing, there are things that go beyond your tour of duty” and that “[i]t’s not the norm that people would falsify information, ” but that, “when serious [overtime] wrongdoing is uncovered, ” he would send the case “to the District Attorney’s Office for review for possible criminal charges.” (Id. at ¶ 23.)

On March 29, 2012, the Philadelphia Police Department charged Plaintiff in two counts with “Conduct Unbecoming” of a police officer. (Id. at ¶ 24.) Plaintiff was charged with violating Sections 1-§010-10 and 1-§021-20 of the Department’s Disciplinary Code. (Id.) Section 1-§010-10 prohibits members of the Police Department from making false entries in Department records. (Id.) Section 1-§021-20 prohibits members of the Police Department from engaging in conduct that shows little or no regard for Department responsibilities. (Id.) A hearing on these violations was scheduled with the Police Board of Inquiry. It was later postponed and never rescheduled. (Id.)

In June 2012, Defendant Ramsey gave several statements to the media in which he accused Plaintiff of overtime abuse and indicated his intent to fire Plaintiff. (Id. at ¶¶ 26, 30.) On or about June 17, 2012, Plaintiff responded publically to these statements. (Id. at ¶ 27.) He stated, “Ask the mothers of Claire Clay, Terrence Hawkins, Malik Sims, Andrew Rivera and the Coleman family, ask them if I slept at home while I worked on their cases . . . Ask them if I was at home when I caught their killers.” (Id.)

On or about June 14, 2012, Plaintiff met with FOP labor representatives and was informed that Defendant Ramsey had offered to “give Plaintiff a mere reprimand in response to the charges against him, if the FOP were to withdraw their charge of Unfair Labor Practices in response to Defendant Ramsey’s new Disciplinary Code.” (Id. at ¶ 25.) The FOP declined to do so. (Id.)

On June 18, 2012, Plaintiff was informed that he was being terminated. (Id. at ¶ 29.) Effective July 15, 2012, Defendant Ramsey terminated Plaintiff by issuing the “Commissioner Direct Action, ” without affording Plaintiff a hearing before the Police Board of Inquiry. (Id. at ¶ 32.)

In response to his termination, Plaintiff filed a grievance under the CBA between the City and the FOP. (Id. at ¶ 34.) Pursuant to the CBA grievance procedures, the FOP demanded an arbitration hearing on Plaintiff’s dismissal. (Id. at ¶ 35.) Arbitrator David J. Riley was assigned to the case and held three hearings. (Id.) On April 2, 2013, the Arbitrator held that Defendants did not have just cause to terminate Plaintiff. (Id. at ¶ 39.) He ordered the City to promptly restore Plaintiff to his former position within the Police Department as a detective in the Homicide Unit, without loss of seniority. (Id.) On April 22, 2013, Plaintiff returned to work. (Id. at ¶ 41.)

Plaintiff claims that since returning to work he has been subjected to continual harassment and retaliation. (Id.) Plaintiff alleges that “a portion of the Arbitration funds that were awarded to him were diverted into the Pension Fund as an act of retaliation against him.” (Id. at ¶ 42.) He also submits that he was forced to remain in an administrative capacity and deprived of overtime pay. (Id. at ¶ 43.) He argues that he did not receive his badge and gun for four weeks after he returned to work, he was not allowed to return to active duty on the Special Investigations Unit until nearly one month after his scheduled return to work, and he was reassigned to a different platoon without the thirty-days notice normally given. (Id. at ¶¶ 44-46.) Further, Plaintiff alleges that as a result of these incidents, he no longer is able to testify in court proceedings related to investigations because he may be subject to impeachment. (Id. at ¶ 47.) Because he can no longer testify in court, he has lost a substantial portion of his income. (Id.) As a result of these actions taken against him, Plaintiff commenced the instant suit against Defendant Ramsey and the City of Philadelphia.

III. STANDARD OF REVIEW

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals Corp., 609 F.3d 239, n.27 (3d Cir. 2010)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Applying the principles of Iqbal and Twombly, ...


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