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Etheredge v. Henry

United States District Court, M.D. Pennsylvania

March 24, 2015

M.L. HENRY, et al., Defendants

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For James Etheredge, Plaintiff: Don A Bailey, Harrisburg, PA.

For M.L. Henry, Gerald Brahl, Judith Holly Storms, Lt. Nick Saites, Cpl. John Nederostack, Defendants: Jonathan D Koltash, Office of the Attorney General, Litigation Section, Harrisburg, PA; Keli M. Neary, Office of Attorney General, Harrisburg, PA.

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Robert D. Mariani, United States District Judge.

I. Introduction

Plaintiff's sole remaining claim in this 42 U.S.C. § 1983 action is that Defendants discriminated against him due to his sexual orientation and, thereby, violated the Equal Protection Clause of the Fourteenth Amendment. (Docs. 46 & 47). Presently before the Court is Defendants' Motion for Summary Judgment (Doc. 65). For the reasons set forth below, the Court will grant Defendants' Motion.

II. Factual Background

A. Statement of Undisputed Facts

Plaintiff James Etheredge is a homosexual police officer with the Pennsylvania State Police (" PSP" ). ( See Defs.' Statement of Facts (" DSOF" ), Doc. 66, at ¶ ¶ 1, 10). At all times relevant to the present matter, Plaintiff was assigned to " Troop T - Pocono." ( Id. at ¶ 3). Defendants were Plaintiff's supervisors. ( See id. at ¶ ¶ 6-9, 12-13).The PSP is a paramilitary organization. ( Id. at ¶ 2). Its employees are expected to follow the PSP's chain of command and obey the orders of superior officers. ( Id ).

From February 2009 to April 2011, Defendant Ml. Henry was the Commander of Troop T. ( Id. at ¶ 6). In July 2008, Defendant Gerald Brahl became Eastern Section Commander of Troop T. ( Id. at ¶ 8). Between February 2009 and April 2011, Brahl was a subordinate of Henry. ( Id. at ¶ 9). From March 2009 to January 2010, Defendant Judy Holly-Storms was Sergeant and Station Commander of Troop T. ( Id. at ¶ 12). As Station Commander, Holly-Storms was a subordinate of Defendants Henry and Brahl. ( Id. at ¶ 13).

On September 17, 2006, Etheredge suffered a work-related injury, which kept him out of work until February 2012. ( Id. at ¶ ¶ 14-15). Between March 2008 and November 2009, Plaintiff was ordered to return to work. ( Id. at ¶ ¶ 16-24). Despite two Return to Work Orders, dated March 20, 2008 and August 6, 2009, Plaintiff remained on leave as he was later determined to be medically unable to work. ( Id. at ¶ ¶ 19, 23).

On November 9, 2009, Lieutenant Colonel John R. Brown sent Defendant Henry a memorandum directing him to order Etheredge to return to work. (Henry Decl., Doc. 67-4, Attach. B). Henry received the memorandum on November 12,

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2009 and issued an order for Etheredge to return to work. ( Id.; DSOF at ¶ ¶ 24-25, 36).[1] Henry instructed Brahl to have troopers serve Plaintiff with the Return to Work Order and to have him sign it. ( Id. at ¶ 29). Because the troopers had trouble reaching Etheredge, Henry directed them to continue attempting to serve Plaintiff, on every shift, until service was effected. ( Id. at ¶ 28).

Holly-Storms received Henry's orders and passed them along to her subordinates. (DSOF at ¶ ¶ 30-31). On the night of November 18, 2009, Troopers Thomas Getz and Terry Blatt attempted to serve Etheredge at his residence. ( Id. at ¶ ¶ 32-33). During the attempt, Etheredge fell in his home and sustained an injury requiring hospitalization. ( Id. at ¶ ¶ 34-35). While in the hospital, Plaintiff was served with the Return to Work Order, which he signed. ( Id. at ¶ 35).

Under PSP policy, troopers on medical leave for a long-term illness or disability are required to be visited on a biweekly basis. ( Id. at ¶ 43). Pursuant to this policy, the PSP periodically visited Plaintiff. ( Id. at ¶ 46). Holly-Storms was responsible for ensuring that troopers visited Etheredge, and other officers in Troop T who were on medical leave. ( Id. at ¶ 47). Holly-Storms would personally check in with Etheredge by calling him and by visiting his residence. ( Id. at ¶ ¶ 49-50, 53).[2]

In November 2009, Holly-Storms attempted to contact Etheredge by phone on six or seven occasions but was unable to reach him. ( Id. at ¶ 56).[3] Although Holly-Storms does not believe that Plaintiff was intentionally avoiding contact with her or the PSP ( Id. at ¶ 58), she testified during her deposition that she experienced difficulty contacting Etheredge. (Holly-Storms Dep., Doc. 73-3, Ex. F, at 24:14-23). Part of this difficulty seems to stem from the fact that, due to his financial shortcomings at the time, Etheredge would only accept phone calls at night and on weekends, when he would not have to expend minutes on his cell phone plan. (Etheredge Dep., Doc. 73-1, at 87:6-13, 117:19-118:7; Taylor Dep., Doc. 73-2, Ex. B, at 21:5-9). Because troopers were unable to reach Etheredge during the day, Defendant Henry ordered them to attempt to meet with Plaintiff during evening and night shifts. (DSOF at ¶ 59).[4]

Between March 2009 and January 2010, Holly-Storms met with a Magisterial District Judge in Plaintiff's hometown on three or four occasions. ( Id. at ¶ 63). During the meetings, Holly-Storms and the Judge discussed Etheredge. ( Id. at

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¶ 64). Before her first visit with Plaintiff, Holly-Storms met with the Judge and asked him for directions to Etheredge's residence. ( Id:, Holly-Storms Dep. at 49:8-50:3).[5]

Holly-Storms was also responsible for checking in on Trooper Stephen Boettger. ( See DSOF at ¶ ¶ 47, 68). Boettger, like Plaintiff, was a trooper in Troop T. ( Id. at ¶ 68). On October 30, 2005, Boettger was injured on the job. ( Id. at ¶ 70). On November 1, 2005, Boettger, a heterosexual male, went on leave. ( Id. at ¶ ¶ 69, 71).

B. Etheredge's Allegations of Discrimination

Plaintiff's primary basis for his sexual orientation discrimination claim is that Defendants allegedly treated Trooper Boettger, who is heterosexual, more favorably than Etheredge, because Etheredge is homosexual. Etheredge relies upon the deposition testimony of Corporal Jeffrey Taylor, now retired. ( See Doc. 73-2, Ex. C). In his deposition, Taylor testified that " [t]here's only one difference between Trooper Etheredge and Trooper Boettger.... They both worked for me,... Jim is a homosexual and Trooper Boettger isn't." ( Id. at 24:14-23). According to Taylor, Trooper Boettger was injured on October 31, 2005, when he " hit a deer, cracked the headlamp cover [of his car], and [sustained] a small scuff on the right front fender." ( Id. at 11:2-9).

Also according to Taylor, Plaintiff " was involved in two crashes," one on February 14, 2006, and another on September 17, 2006. ( Id. at 11:9-24). Taylor testified that the second crash was much more serious than the first: " [h]e was backing up, lost control; totaled the car," and there was " extensive, horrific damage to the car." ( Id. at 11:24-12:5). After their respective car accidents, both troopers received Heart and Lung benefits.[6] ( Id. at 12:9-16). By the time Plaintiff went off-duty, Boettger " had been off for... almost 11 months or 10 months" longer. In addition to being treated by their own doctors, both troopers underwent independent medical exams (" IME" ) which were reviewed by the State Police Medical Officer (" SPMO" ). ( Id. at 12:24-13:6).

In Boettger's case, " [h]is doctor said he cannot return to work. The SPMO said he can return to work, [and] the IME doctor said he can return to work." ( Id. at 14:11-19). In Plaintiff's case, " [he] had the same medical documentation that Trooper Boettger did. Family doctor said don't return to work, SPMO said return, IME said return." ( Id. at 15:11-15).

Although Plaintiff's treating physicians did not recommend he return to work, whereas the SPMO and IME did (the same scenario as Trooper Boettger), Defendants " didn't listen to his family doctor, they forced him... to use his sick and annual, [and] they forced him into a no pay situation." ( Id. at 15:6-11). In contrast, Defendants " never forced [Boettger] on

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sick leave, annual leave,... they haven't forced him to do anything, [and] they've kept him on heart and lung." ( Id. at 16:2-5).

In addition, Etheredge contends that Defendants took several other adverse actions against him, but not Boettger, including (1) running NCIC/CLEAN checks[7] on Plaintiff's vehicles (PCSOF at ¶ 55); (2) instigating " numerous" code enforcement warnings for " petty" building code violations (Etheredge Dep. at 82:1-16); (3) leaving Etheredge " dozens of threatening, antagonistic messages" ( id. at 85:10-13); (4) denying that there were light-duty positions for Plaintiff to return to, despite allowing other troopers to work such positions ( id. at 93:10-94:16); and (5) " pre-engineer[ing]" an investigation into a complaint Plaintiff filed such that the investigation would " find that there was no misconduct affecting plaintiff." (Br. in Opp. at 7).

III. Standard of Review

Through summary adjudication, the court may dispose of those claims that do not present a " genuine issue as to any material fact." Fed.R.Civ.P. 56(a). Summary judgment " should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). " As to materiality,... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). " Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken ...

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