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Bifano v. Borough

United States District Court, M.D. Pennsylvania

December 22, 2016



          MALACHY E. MANNION, United States District Judge

         Pending before the court is a motion to dismiss, (Doc. 8), filed by defendant Waymart Borough located in Wayne County, Pennsylvania (“the Borough”) and defendant Frederick J. Glavich (“Police Chief Glavich”). The defendants seek dismissal of all of the claims in the complaint, (Doc. 1), filed by plaintiff Joseph Bifano (“Corporal Bifano”) and plaintiff Keith Rynearson (“Sergeant Rynearson”). Corporal Bifano and Sergeant Rynearson were former employees of the Borough's police department. The plaintiffs' complaint alleges that the Borough and Police Chief Glavich violated Pennsylvania's whistleblower law (Count I) and the First Amendment of the United States Constitution (Count II). The complaint also alleges that Police Chief Glavich defamed the plaintiffs under Pennsylvania law (Count III). For the reasons that follow, the defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.


         Corporal Bifano began working for the Borough's police department in 2007. Sergeant Rynearson joined the department in 2009. Both possessed full-time jobs in addition to their time spent with the department. In October 2010, Police Chief Glavich accepted the role of chief of police; the plaintiffs had been offered this position first but turned it down. Unlike the previous police chief, Police Chief Glavich frequently sat in the office “on duty” (1) “in plain clothing”; (2) “with his personal vehicle outside and/or without [a] police vehicle available”; (3) “avoid[ing] telephone calls”; and (4) “at times, would avoid citizen complaints attempted in person.” (Doc. 1, at ¶¶16-17). Police Chief Glavich was billing the Borough during those times he was in the office and allegedly “on duty.” Police Chief Glavich also used department funds to purchase equipment “sparingly, and unreasonably, ” including the purchase of less expensive radios for the department. These less expensive radios lost connectivity after a few hundred yards. (Id. ¶¶18-19). Police Chief Glavich would also criticize the plaintiffs about their enthusiasm for enforcing the law. (Id. ¶20).

         In March 2015, the plaintiffs met with the Borough's mayor at the time, Jack Millard (“Mayor Millard”); the Borough's councilman, Doug Bayly (“Councilman Bayly”); and the Borough's councilwoman, Lillian Rollinson (“Councilwoman Rollinson”). Another police department employee, Harry Shaffer (“Patrolman Shaffer”), was also in attendance. During this meeting, the plaintiffs were asked about Police Chief Glavich's work performance. (Id. ¶¶21-22). The plaintiffs told Mayor Millard, Councilman Bayly, and Councilwoman Rollinson about Police Chief Glavich's conduct in the office and his “wrongdoing and/or waste of public money and funding.” (Id. ¶23). Job descriptions for officers and the chief of police were drafted for the department as a result of this meeting. The newly implemented job description included a requirement that Police Chief Glavich record all hours he claimed to be “on duty.” Police Chief Glavich signed this job description on April 17, 2015. However, the plaintiffs later spoke to the Borough's treasurer, Shelly Gologski (“Treasurer Gogolski”), and she said that Police Chief Glavich was “billing a lot, ” despite never seeing him. (Id. ¶¶24-28).

         At the end of the 2015 summer Mayor Millard and Councilman Bayly asked Corporal Bifano about Police Chief Glavich's performance since the meeting; Corporal Bifano responded that things were “status quo.” (Id. ¶¶29-30). After this encounter, Mayor Millard planned to confront Police Chief Glavich during a meeting. Before the meeting was to be held, however, Councilman Bayly told Police Chief Glavich about the meeting's underlying purpose. The meeting was cancelled and Mayor Millard subsequently resigned as mayor because he was “so upset by this turn of events.” (See Id. ¶¶32-34).

         During the Labor Day weekend, a fireman approached Corporal Bifano and told him that he did not have authority to break up gatherings. Corporal Bifano called Police Chief Glavich about the matter and Police Chief Glavich accused Corporal Bifano of “talking behind his back.” (Id. ¶¶35-36). On September 8, 2016, the Borough held a monthly meeting with Police Chief Glavich and Patrolman Shaffer in attendance. During that monthly meeting Police Chief Glavich held an executive, closed-door meeting with the Borough's councilmembers. The next day, the plaintiffs were placed on unpaid suspension due to an alleged lack of funding, despite there being sufficient funding for their continued service. (Id. ¶¶38-45).

         Another meeting was scheduled for October 20, 2015 to discuss the plaintiffs' suspension. This meeting turned into a hostile confrontation between the plaintiffs and the Borough's councilmembers where the councilmembers accused the plaintiffs of violating the chain of command. Afterwards, the plaintiffs were not placed back on the schedule and they declined to attend any more meetings. (Id. ¶¶46-53). Instead, they sought a return to duty “upon the acceptance of a few requests, ” which the defendants denied. (Id. ¶¶54-55). After this, the defendants took a series of actions in addition to the suspension. In October 2015, the Borough's new mayor, Chip Norella (“Mayor Norella”), implemented a policy of single person patrols which would have prevented the plaintiffs from working together while on duty. On November 18, 2015, the plaintiffs were required to return all of their equipment. On December 8, 2015, the plaintiffs' ranks and titles were eliminated. On January 5, 2016, the plaintiffs were officially terminated. (Id. ¶¶57-60).

         At some point during this series of events, Police Chief Glavich told the Borough's councilmembers that the plaintiffs had “violated the [c]hain of [c]ommand.” (Id. ¶62). Meanwhile, the plaintiffs were seeking employment in police departments located in neighboring municipalities. The Forest City police department was a neighboring municipality. At some unspecified time, Police Chief Glavich also told the chief of police of the Forest City police department that Sergeant Rynearson violated the chain of command. (Id. ¶¶62-64). Police Chief Glavich's statement to the Forest City chief of police was made voluntarily and not as a result of any request. (Id. ¶111).


         On February 11, 2016, the plaintiffs initiated this civil rights action. In Count I, the plaintiffs alleged that the defendants violated Pennsylvania's Whistleblower Law, 43 Pa. Stat. Ann. §1421 et seq. by retaliating against them after they spoke out against Police Chief Glavich. In Count II, the plaintiffs alleged that the defendants' retaliatory actions violated the First Amendment. This claim was brought under Title 42, Section 1983 of the United States Code. In Count III, the plaintiffs alleged that Police Chief Glavich's statements to others that the plaintiffs violated the chain of command was defamatory.

         On March 16, 2016, the defendants filed the current motion to dismiss based on Federal Rule of Civil Procedure 12(b)(6) and the plaintiffs' purported failure to state any claims. (Doc. 8). Attached to their motion as an exhibit was a letter from the plaintiffs' attorney to the solicitor of the Borough. (Doc. 8, Ex. B). This letter detailed the “requests” the plaintiffs made to the Borough before they would agree to return to the police department. This letter was referenced in the plaintiffs' complaint but was not attached. (See Doc. 1, at ¶54). The defendants request that the court consider the letter in deciding the motion. The motion has been fully briefed and is now ripe for review.


         A. Federal Rule of Civil Procedure 12(b)(6)

         Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. In reviewing such a motion, the court must “accept all factual allegations as true, construe the [c]omplaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the [c]omplaint, the plaintiff may be entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012) (internal quotation marks and citation omitted). It is the moving party that bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).

         Dismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). This “plausibility” determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Ultimately, the plaintiff must be able to “provide the grounds of his entitlement to relief, ” requiring more than bold-faced labels and conclusions. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and internal quotation marks omitted) (quoting Twombly, 550 U.S. at 555). “[A] formulaic recitation of the elements of a cause of action will not do.” Id.

         The Third Circuit Court of Appeal has announced a three part inquiry to apply the pleading principles announced in Iqbal and Twombly.

First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). Lastly, the court should grant leave to amend a complaint before dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

         B. The Defendants' Attached Exhibit

         As an initial matter, the court must determine if the exhibit attached to the defendants' motion to dismiss should be taken into consideration. The parties spent considerable time briefing this issue, relative to other arguments. The court will not consider the letter as it is improper and unnecessary to the court's finding under Rule 12(b)(6).

         In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. See Sands v. McCormick, 502 F.3d 263 (3d Cir. 2007). The court may, however, consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (quoting 62 Fed. Proc., L. Ed., §62:508). The court may not rely on other parts of the record in determining a motion to dismiss. See Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

         If a defendant attaches a document to a motion to dismiss the court must decide if it may properly consider the document in a Rule 12(b)(6) motion or if it converts the motion into a motion for summary judgment under Federal Rule of Civil Procedure 56.[2] See Miller v. Clinton County, 544 F.3d 542, 550 (3d Cir. 2008). In Miller, the Third Circuit determined that a letter attached to the defendant's motion to dismiss should have been considered in analyzing the sufficiency of the plaintiff's First Amendment retaliation claim. Id. The letter formed the basis of the speech that the plaintiff sought protection for, thus the plaintiff's claims “were undisputably based on her . . . letter.” Id.

         The letter attached to the defendants motion does not form the basis of the plaintiffs' claims. The plaintiffs seek (1) First Amendment and state law protection for oral statements made to Mayor Millard and the Borough's councilmembers regarding Police Chief Glavich's performance and (2) protection against alleged defamatory statements made by Police Chief Glavich to others about the plaintiffs. The attached letter lists the “requests” made by the plaintiffs after their suspension but before they would return to the police department. (See Doc. 1, at ¶54). Unlike the document in Miller, the requests detailed in the letter do not form the basis of the plaintiffs' defamation or retaliation claims and may not be considered in a Rule 12(b)(6) motion to dismiss.

         The letter is also unnecessary to the court's analysis. The letter may speak to the underlying motives for the defendants' actions in ultimately terminating the plaintiffs. Thus, the letter is evidence supporting a likely defense to this retaliation action-indicating a possible lack of retaliatory motive. The letter does not, however, speak to the issue of whether the plaintiffs have stated a claim in the first instance. The defendants seem to recognize as much because, although they devote considerable time briefing this issue, the defendants' legal arguments for dismissal do not actually reference or make use of the letter. Therefore, not only would it be improper under Rule 12(b)(6)'s standard of review to consider the attached letter, it is unnecessary to do so in light of the defendants' substantive arguments before the court.


         A. The Plaintiffs' First Amendment Retaliation Claim-Count II[3]

         In Count II of the complaint the plaintiffs allege that the Borough and Police Chief Glavich retaliated against them in violation of the First Amendment for speaking to Mayor Millard and the Borough councilmembers about Police Chief Glavich's performance as chief of police. Specifically, the plaintiffs allege that the defendants actions in suspending them, removing their rank, removing their ability to work together, and terminating them constituted retaliation for their protected speech. The defendants argue that the statements made by the plaintiffs were related to their official duties, were not made as private citizens, and are, therefore, not protected. In addition, the defendants argue that the complaint has not established causation between the defendants' acts and the plaintiffs' speech. Lastly, the defendants argue that Police Chief Glavich is entitled to qualified immunity. The court agrees, in part. Particularly, the plaintiffs' allegation that Police Chief Glavich purchased less expensive equipment does not state a valid First Amendment retaliation claim. The court also agrees that Police Chief Glavich is entitled to qualified immunity. The defendants' motion is granted in this respect. The defendants' motion is denied with respect to the plaintiffs remaining allegations against the Borough.

         The Supreme Court has long established that a citizen's ability to participate in free debate on matters of public importance is “the core value of the Free Speech Clause of the First Amendment.” Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968); see also Connick v. Myers, 461 U.S. 138, 145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982). While a citizen who enters government service must forfeit the scope of some of his freedoms, he is “nonetheless a citizen” who deserves protection from restriction of liberties he enjoys in his capacity as a private citizen. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006). “[A] public employee has a constitutional right to speak on matters of public concern without fear of retaliation.” Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001) (citing Rankin v. McPherson, 483 U.S. 378, 383-84 (1987)). Thus, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419.

         In order to establish a First Amendment retaliation claim in this circuit, a public employee must show (1) that his or her speech is protected by the First Amendment and (2) that the speech was a substantial or motivating factor of the employer's retaliatory action(s). Flora v. County of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). “The first factor is a question of law; the second factor is a question of fact.” Gorum, 561 F.3d at 184 (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). If these two elements are established, the burden shifts to the employer to show that it would have taken the same action regardless of the speech. Flora, 776 F.3d at 174; id. The court finds that the plaintiffs' have sufficiently pled the first two required elements in their First Amendment retaliation claim as it relates to some, but not all, of the plaintiffs' speech against Police Chief Glavich.

         I. The Protected Speech Requirement

         “[W]hen 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, 547 U.S. at 421. A public employee's speech is only protected when “(1) in making it, the employee spoke as a citizen, (2) the statement involved 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 [or she] made.” Flora, 776 F.3d at 175 (quoting Garcetti, 547 U.S. at 418). The defendants only challenge the first prong of this three-part inquiry, but the court will address each in turn.

         Whether a public employee is speaking as a citizen turns upon the question of “whether the speech at issue is itself ordinarily within the scope of an employee's duties.” Lane v. Franks, 134 S.Ct. 2369, 2379 (2014). Importantly, the Supreme Court and the Third Circuit Court of Appeals have clarified that the test should not be whether the speech “concerns” or was “related to” those duties. Id. at 2379; Flora, 776 F.3d at 178-79. The inquiry is a mixed question of law and fact; “the scope and content of [the public employees] . . . job responsibilities is a question of fact, but the ultimate constitutional significance of those facts is a question of law.” Flora, 776 F.3d at 175.

         There is no “comprehensive framework” for defining the scope of an employee's duties. Garcetti, 547 U.S. at 424.

The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.

Id. at 424-25. In Lane v. Franks, the Supreme Court found that grand jury testimony given by a supervisor about a subordinate employee who was indicted for mail fraud and theft of receiving federal funds was citizen speech. 134 S.Ct. at 2380. The employee's testimony included statements that the subordinate employee performed “virtually no services, ” “generated virtually no work product, ” and “rarely even appeared for work.” Id. at 2375. The Supreme Court determined that this testimony was protected even though the information underlying the testimony was gathered due to the speaker's role as supervisor. Id. at 2375, 2380. In their reasoning, the Supreme Court focused on the manner of the speech as sworn testimony and found that such testimony fell outside the ordinary responsibilities of the supervisor. Id. at 2379. The Supreme Court also “recognized that ...

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