United States District Court, M.D. Pennsylvania
For Jeff Tayoun, Plaintiff: Cynthia L. Pollick, The Employment Law Firm, Pittston, PA.
For City of Pittston, Mayor Jason Klush, Individually and in his official capacity, Defendants: Sean P. McDonough, Dougherty, Leventhal & Price, L.L.P., Moosic, PA.
Matthew W. Brann, United States District Judge.
Before the Court is Defendants City of Pittston and Mayor Jason Klush's Motion for Summary Judgment (ECF No. 23) on Plaintiff Jeff Tayoun's allegation of retaliation for speech protected by the First Amendment to the United States Constitution. Plaintiff filed a Brief in Opposition (ECF No. 29) to the Defendants' Motion and the issue is now ripe for disposition. For the reasons discussed below, the Defendants' Motion for Summary Judgment is denied.
Plaintiff Jeff Tayoun (" Plaintiff" or " Tayoun" ) was the Police Chief of the City of Pittston. Defs.' Statement Facts, ¶ 3, Aug. 13, 2013, ECF No. 25 [hereinafter Defs.' SOF]. In October 2009, he discovered forty-six (46) illicit photographs on a Pittston Police Department computer. Id. ¶ 4, Exs. B, D. The photographs, taken by Officer Robert J. Semyon, depicted " the nude body of the victim (A.H.) who was unconscious or otherwise unaware that these photographs were being taken. Four photographs depict penetration of the victim's anus and vagina." Pl.'s Br. Opp'n Mot. Summ. J., Ex. A, Sept. 10, 2013, ECF No. 29 [hereinafter Pl.'s Br.].
After discovering the photographs, Tayoun notified the Mayor of the City of Pittston, then Mayor Donna Connors, and asked her to suspend Officer Semyon. Defs.' SOF, ¶ ¶ 5-7; Pl.'s Statement Facts, ¶ ¶ 5-7 [hereinafter Pl.'s SOF]. Tayoun also took the computer to the State Police Crime Lab for analysis. Id. He participated in a meeting with Mayor Connors and members of the City Council to discuss his discovery and what action they should take with respect to Officer Semyon. Defs.' SOF, ¶ 10. At the same time, Tayoun also notified the Office of the Attorney General of Pennsylvania of his discovery and provided to it copies of the photographs. Pl.'s SOF, ¶ ¶ 7-8.
The Pennsylvania Attorney General subsequently opened a criminal investigation into Officer Semyon's conduct. Pl.'s SOF, ¶ 9; Pl.'s Br., Exs. A, C. As a result of this investigation, Officer Semyon was charged and pled guilty to Aggravated Indecent Assault, among other charges. See id. Semyon served more than a year in prison for his crimes. Pl.'s Br., Ex. B.
Shortly after Tayoun's discovery and report of the photographs, Jason Klush was sworn in as Mayor of Pittston. Defs.'
SOF, ¶ ¶ 11, 14. After assuming office, Mayor Klush demoted Tayoun from his position as Chief of Police. Pl.'s SOF, ¶ 11. Tayoun also suffered other adverse actions at the hands of either Mayor Klush or other Police Department or city officials, including: that he was required to use Officer Semyon's old locker that still contained Semyon's personal effects; that fellow co-workers were not allowed to donate sick time to Tayoun as others had done in the past; that Tayoun was required to complete daily activity logs when other officers were not; and that city officials allegedly killed Tayoun's fish in his office fish tank. Id. Tayoun alleges that he suffered these adverse actions, principally his demotion from Police Chief, as a result of his report to the Pennsylvania Attorney General about Officer Semyon's criminal activity. Id. Tayoun believes he was demoted " because [he] turned in another cop who was friends with [Mayor Klush]." Pl.'s Br., Ex. 6, Tayoun Dep. Tr., 22:9-12 [hereinafter Tayoun Dep.].
Mayor Klush alleges that he had the power to change the Police Chief at will, and believed it was time for a change when he assumed his duties as Mayor. Defs.' SOF, ¶ 17. Regarding the other accusations, he asserts either that he allowed the new Police Chief to run the force in the manner he chose to accomplish his duties, or that he was not otherwise involved. See generally Pl.'s Br., Ex. 4, Klush Dep. Tr. [hereinafter Klush Dep.].
Tayoun filed this action alleging retaliation for speech protected by the First Amendment in light of these facts.
A. Summary Judgment Standard
Summary judgment is appropriate where " the movant 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). A fact is " material" where it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" where " the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all inferences in the nonmovant's favor, " could return a verdict for the nonmoving party." Id.
The burden of establishing the nonexistence of a " genuine issue" is on the party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting)). The moving party may satisfy this burden by either (i) submitting affirmative evidence that negates an essential element of the nonmoving party's claim; or (ii) demonstrating to the Court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's case. Id. at 331.
Where the moving party's motion is properly supported, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth " genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. For movants and nonmovants alike, the assertion " that a fact cannot be or is genuinely disputed must" be supported by " materials in the record" that go beyond mere allegations, or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1); see
also Anderson, 477 U.S. at 248-50.
" When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must 'identify those facts of record which would contradict the facts identified by the movant.'" Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, " [i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).
In deciding the merits of a party's motion for summary judgment, the Court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
B. Plaintiff's First Amendment Retaliation Claim Survives Summary Judgment
To assert a retaliation claim under the First Amendment to the United States Constitution, a plaintiff must establish three elements: " (1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action." Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). The Defendants assert Plaintiff's report of Officer Semyon's criminal activity was not constitutionally protected conduct.
In a landmark case on the issue of whether conduct is constitutionally protected, Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court of the United States held that " when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). By contrast, " [w]hen an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences." Id. at 423; see also Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, Will Cnty. Illinois, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (" The problem in any case is to arrive at a balance between the interests of the . . . citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." ).
In the wake of Garcetti, the United States Court of Appeals for the Third Circuit has held that:
A public employee's statement is protected activity only where (1) the employee spoke as a citizen (2) about a matter of public concern and (3) " the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made."
Hara v. Pennsylvania Dept. of Educ., 492 F.App'x 266, 267 (3d Cir. 2012) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (internal quotations omitted)).
Accordingly, the Third Circuit also explained that a court should " proceed through three steps to ascertain whether a public employee's speech is protected by the First Amendment." Morris v. Philadelphia Hous. Auth.,
487 F.App'x 37, 39 ...