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DeForte v. Borough of Worthington

United States District Court, W.D. Pennsylvania

March 24, 2017



          Mark R. Hornak, United States District Judge

         In these civil actions, Plaintiffs William DeForte ("DeForte") and Evan Townsend ("Townsend") have sued the Borough of Worthington (the "Borough") and its mayor, Kevin Feeney ("Feeney"), [1] for alleged wrongdoing in connection with the termination of their employment as Borough police officers. DeForte and Townsend (collectively, "Plaintiffs") contend that the Borough and Feeney (collectively, "Defendants), by their wrongful conduct, violated Plaintiffs' right to due process, violated the terms of Pennsylvania's Whistleblower Law, and tortiously interfered with Plaintiffs' business relations. Defendants have moved for summary judgment on Plaintiffs' due process claims and seek a dismissal without prejudice of the remaining state law claims.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. For the reasons that follow, Defendants' motions for summary judgment will be granted.

         I. BACKGROUND

         DeForte was employed by the Borough as a police officer between July 2009 and November 5, 2012. (See Defs.' Ex. A, Decl. of Debra L. Smith at ¶1, ECF No. 97-1; Defs.' Ex. B, Affid. of William DeForte at ¶1, ECF No. 92-2; Defs.' Ex. C, Worthington Borough Council Minutes, ECF No. 97-3.)[2] On November 5, 2012, DeForte was terminated for alleged insubordination and possible offenses. (Id.) At the time of his termination, DeForte was serving as the Borough's Chief of Police. (Id.)[3]

         Townsend was twice employed by the Borough as a police officer. His first term of employment lasted from January 7 through July 9, 2011. The second term began on February 10, 2012 and ended on November 5, 2012 when Townsend, like DeForte, was terminated. (Smith Decl. ¶5; Defs.' Ex. D, Affidavit of Evan Townsend, at 1, ECF No. 97-4.)

         At the time of Plaintiffs' terminations, the Borough's Police Department was comprised of four part-time officers, including DeForte and Townsend. (Smith Decl. ¶¶ 2, 6, 9; see also Pis.' Br. Resp. Defs.' Mot. Summ. J. at 4, ECF No. 101 (noting that every officer in the Worthington Police Department worked part-time).) Neither DeForte nor Townsend was salaried, and neither one received benefits. (Smith Decl. ¶¶ 4, 8.) Both DeForte and Townsend received an hourly wage. (Id. ¶¶2, 3, 6, 7.) Townsend earned $11.00 an hour, while DeForte was paid $13.00 per hour and $19.50 per hour for overtime. (Id. ¶¶3, 7.)

         While employed as police officers for the Borough of Worthington, both DeForte and Townsend were simultaneously employed by other police departments. (DeForte Affid. ¶¶5, 9; Townsend Affid. ¶¶5-6.) Townsend served as a sworn officer for other police departments and also attended SWAT school. (Townsend Affid. ¶¶4, 6.) Townsend states that "[s]ome of the Worthington Borough officers would work movie details together, and when the need arose, they would take calls in each other's towns." (Id. ¶8.) DeForte was similarly "rostered" as a part-time police officer for two adjacent municipalities. (DeForte Affid. ¶9.) His employment with the other police departments "ranged from helping those departments with firearms qualifications, to taking the occasional part-time shift [during] times that [he] was not fulfilling [his] obligations as Worthington's Police Chief." (Id. ¶12.) During the time period in question, DeForte was also an undergraduate student at the University of Pittsburgh. (DeForte Affid. ¶7.)

         Despite their multiple endeavors, Plaintiffs insist that their employment with the Borough was their top priority and that they were available at all times to fulfill their duties as Worthington Borough police officers. DeForte claims that, during his tenure as the Borough's police chief, he "was available at all times for Worthington Borough Police Business. This meant that [he] had to immediately respond and abandon any and all other activities in [his] life upon receipt of an emergency call relating to Worthington Police Department matters." (DeForte Affid. ¶4.) He states that his "entire life revolved around [his] responsibility as Worthington's Police Chief, " (id. ¶6), and the requirement that he be "on call any and all times" meant that he had to be "available to respond to overdose deaths, hostage situations, explosive devises, dead bodies, ethnic intimidation complaints, and other police emergencies" in the Borough. (Id. ¶5.) Regarding his attendance at the University of Pittsburgh, DeForte asserts that there were "often occasions" when he received emergency calls for police business and, when this occurred, he "immediately left [his] class in order to answer" the call. (DeForte Affid. ¶¶ 7-8.) DeForte maintains that his part-time employment with other police departments was "subordinate" to his employment with the Borough, (id. ¶11), and it was "understood. . . that [he] would immediately abandon all other activities in order to service the community of Worthington Borough." (Id. ¶13.)

         Townsend similarly maintains that he "was always on call any and all times for Worthington Borough Police Department." (Townsend Affid. ¶9.) According to Townsend, "[t]his meant that [he] had to immediately respond and abandon any and all other activities upon receipt of an emergency call relating to Worthington Police Department matters." (Id. ¶5.)

         Following their respective terminations, Plaintiffs commenced separate lawsuits alleging, among other things, that their loss of employment constituted a deprivation of their respective procedural due process rights. Thereafter, the two cases were consolidated and extensive pretrial proceedings ensued, the details of which are not relevant to the parties' present dispute.

         Defendants filed their motions for summary judgment, asserting that Plaintiffs' due process claims fail as a matter of law insofar as DeForte and Townsend did not possess any constitutionally protected property interest in their employment. (See Case No. 2:13-cv-356 at ECF No. 96; Case No. 2:13-cv-357 at ECF No. 50.) Plaintiffs have responded to the motions, and the Defendants have filed their reply. As a result, the Defendants' motions are ripe for disposition.


         Summary judgment is proper "if 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). An issue is genuine only if the evidence is such that a reasonable factfinder could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In considering a motion for summary judgment, a court must draw all reasonable inferences from the underlying facts in the light most favorable to the non-moving party." Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 162 (3d Cir. 2001). "When there is a disagreement about the facts or the proper inferences to be drawn from them, a trial is required to resolve the conflicting versions of the parties." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (alteration and internal quotation marks omitted). "To defeat a motion for summary judgment, the nonmoving party must raise more than some metaphysical doubt as to the material facts, and the court must determine that a fair-minded jury could return a verdict for the nonmoving party on the evidence presented." Doe v. Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011) (internal citations, alterations, and quotation marks omitted).

         III. ANALYSIS

         A. Plaintiffs' Federal Claims

         Plaintiffs' due process claims are asserted under 42 U.S.C. §1983, which affords a private right of action against:

[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws ...

42 U.S.C. § 1983. In order to state a claim under Section 1983, a plaintiff must allege a violation of the Constitution or federal law by a person acting under color of state law. Riley v. Corbett, 622 F.App'x 93, 93-95 (3d Cir. July 29, 2015) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Here, there is no dispute that Defendants acted under color of state law when they discharged DeForte and Townsend. Consequently, the only question is whether the Defendants' conduct violated the U.S. Constitution or federal law. Plaintiffs contend that their respective rights to procedural due process were offended inasmuch as neither officer received notice or a hearing prior to termination.

         To establish a procedural due process claim, a plaintiff must demonstrate that "(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of life, liberty or property, and (2) the procedures available to him did not provide due process of law." Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ, 574 F.3d 214, 219 (3d Cir. 2009) (internal quotation marks and citation omitted). For present purposes, Defendants do not challenge the assertion that DeForte and Townsend were terminated from their jobs without process. Instead, Defendants argue only that Plaintiffs had no constitutionally protected "property" interest in continuing their employment as Borough police officers.

         Whether a public employee has a property interest in his employment sufficient to establish a due process claim is a question of state law. Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006); see also Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Public employees in Pennsylvania have a property interest in their employment only if they can "establish a legitimate expectation of continued employment through either a contract or a statute." Pipkin v. Pennsylvania State Police, 693 A.2d 190, 193 (Pa. 1997). Here, Plaintiffs have alleged that they had a legitimate expectation of continued employment by virtue of: (1) the Pennsylvania Borough Code, (2) the Pennsylvania Police Tenure Act, (3) the Worthington Police Department Policy and Procedure Manual, (4) the Pennsylvania Whistleblower Law, and/or (5) a Worthington ordinance setting forth a progressive discipline policy.

         1. The Pennsylvania Borough Code

         The Pennsylvania "Borough Code, " currently codified at 8 Pa. Cons. Stat. Ann. §§101 et seq., contains certain civil service protections for police officers and firefighters. See Id. at §§1170-1194. At times relevant to this litigation, the pertinent provisions of the civil service system were codified at 53 Pa. Stat. §§46171-46195.[4] These provisions applied to boroughs having a police force of at least three members. 53 Pa. Stat. §46171(a). Section 46171 of the Code provided that any "appointment to and promotion in the police force . . . shall be made only according to qualifications and fitness, to be ascertained by examinations which shall be competitive as provided in this part." Id. §46171(c). In addition, the Code ensured that "[n]o person shall hereafter be suspended, removed or reduced in rank as a paid employe in any police force. . . except in accordance with the provisions of this subdivision." Id. §46171(d). Section 46190 specifically enumerated the limited circumstances under which a "person employed in any police . . . force" could be suspended, removed or reduced in rank. 53 Pa. Stat. §46190.[5] The term "police force" was defined, in relevant part, as:

a police force organized and operating as prescribed by law, the members of which devote their normal working hours to police duty or duty in connection with the bureau, agencies and services connected with police protection work, and who are paid a stated salary or compensation for such work by the ...

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