United States District Court, E.D. Pennsylvania
JOHN P. DONDERO, Plaintiff,
LOWER MILFORD TOWNSHIP; ELLEN KOPLIN, individual and in her official capacity as Township Manager; DONNA L. WRIGHT, individually and in her official capacity as a member of the Board of Supervisors; MICHAEL W. SNOVITCH, individually and in his capacity as a member of the Board of Supervisors; and JOHN QUIGLEY, individually and in his official capacity as a member of the Board of Supervisors, Defendants.
OPINION DEFENDANTS' MOTION FOR SUMMARY JUDGMENT,
ECF NO. 40 - GRANTED
F. LEESON, JR., United States District Judge.
civil rights suit, the Plaintiff, John P. Dondero, was a
police officer with Lower Milford Township (hereinafter
“Township”). The Township, citing financial
concerns, disbanded the two-person police department in March
of 2016, and, resultantly, Dondero no longer worked for the
Township. Dondero asserts the dissolution of the police
department due to financial concerns was a pretext for the
termination of his employment because Dondero supported a
political rival of a Township politician in 2013 and
otherwise opposed managerial decisions of the Township.
asserts various civil rights claims against the Township. He
asserts a First Amendment retaliation claim for his speech,
substantive and procedural due process claims for the
dissolution of the police department and termination of his
Pennsylvania Heart and Lung Act benefits, a
Monell claim for having a policy or custom which
enabled misconduct and unconstitutional behavior, civil
conspiracy claims pursuant to § 1983, and a claim
pursuant to the Pennsylvania Constitution.
Township filed a motion for summary judgment. Based upon a
review of the law, there is no genuine dispute of material
fact, and Dondero's claims fail as a matter of law. For
the following reasons, the Township's motion for summary
judgment is granted.
following facts are undisputed:
a resident of the Township since 2002, was a police officer
with the Township, beginning in 2006. Pl. Stat. Facts
¶¶ 3, 10; ECF No. 41. Dondero was not part of a
bargaining unit as a police officer, but did have an
employment contract with the Township. Id. at ¶
9. Dondero stated his intention to form a bargaining unit to
the Township in a letter dated June 22, 2015. Def. Stat.
Facts ¶ 9; ECF No. 50. At the time of Dondero's
hire, the Township was a part-time department with one police
officer. Pl. Stat. Facts ¶ 4. As a police officer,
Dondero reported directly to the Township Manager.
Id. at ¶ 5.
in 2010, Dondero began to protest decisions made by the
Township involving budgetary matters, training protocols, and
alleged retaliatory actions by Township employees. Def. Stat.
Facts ¶ 12. Ultimately, Dondero supported Gail
Hunsberger, the political opponent of Michael Snovitch in the
2013 primary and general election for Township Supervisor.
Pl. Stat. Facts ¶ 13. Dondero alleges Ellen Koplin
retaliated against him for his political activity by issuing
him a negative performance review by grading him
“fair” for three out of seven categories. Def.
Stat. Facts ¶ 12. The grade of “fair” was
the second lowest category Dondero could receive.
was injured in the line of duty on June 3, 2015, while
responding to a house fire. Pl. Stat. Facts ¶ 21. Prior
to Dondero's injury, the Township's other police
officer was also injured in the line of duty, leaving the
Township with no police officers to provide coverage as the
Township's police department only consisted of two
people. Id. at ¶ 23. Resultantly, the
Pennsylvania State Police provided full time police coverage
to the Township at no cost to Township taxpayers.
Id. Prior to the Township's police officers'
injuries, the State Police only assisted the Township when
the Township's officers were not on duty. Id. at
19. Dondero received disability benefits for his on the job
injury under Pennsylvania's Heart and Lung Act. Def.
Stat. Facts ¶ 23. After Dondero's injury, Koplin
sent him a letter dated January 7, 2016, requesting medical
documentation for his injuries. Id. at ¶ 12.
Dondero alleged this was stigmatizing and worthy of a name
clearing hearing as there was an inference of criminal
activity in the letter, which triggered gossip. Id.
Dondero utilized union counsel to communicate and protest
decisions made by the Township regarding his disability
benefits from June 2015 to March 2016. Id. at ¶
February 2016, citing financial concerns, the Township Board
of Supervisors passed a resolution to disband the
Township's police department. Id. at ¶ 26.
The next month, March 2016, the Township Board of
Supervisor's passed Ordinance No. 128 disbanding the
Township police department. Id. at ¶ 27. Prior
to the dissolution of the police department, the State Police
had provided full-time coverage to the Township for
approximately nine months. Def. Stat. Facts ¶ 18.
Dondero protested the dissolution of the police department,
stating that it was retaliatory for Dondero's support of
a rival political candidate and for expressing concerns
related to the department. Id. at ¶ 28. The
Township cited budgetary concerns, as the Township was paying
disability benefits for the other police officer in the
Township, who was permanently disabled after a workplace
injury, and Heart and Lung Act Benefits for Dondero.
Id. at ¶ 40, 41. The Township additionally
predicted the police department would be operating at a loss
within five years. Id. at ¶¶ 48, 49.
with the Township's rationale for the dissolution, and
under the impression the dissolution was due to his exercise
of his free speech rights, Dondero filed suit against the
Township on September 29, 2017. See ECF No. 1.
Dondero amended his complaint, then the Township moved to
dismiss the amended complaint on April 29, 2018. See
ECF No. 16. This Court, in an Order dated March 13, 2019,
dismissed Dondero's amended complaint with an opportunity
to amend. See ECF No. 18. Dondero filed his second
amended complaint on April 15, 2019. See ECF No. 19.
The second amended complaint states claims for retaliation
based upon the First Amendment, violations of substantive due
process pursuant to the Fourteenth Amendment, violations of
procedural due process pursuant to the Fourteenth Amendment,
conspiracy pursuant to § 1983 and § 1985, a
Monell claim based on policy or custom for
permitting misconduct and unconstitutional behavior, and a
claim pursuant to the Pennsylvania Constitution. Discovery
followed, and after the conclusion of discovery, the Township
moved for summary judgment.
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).
A disputed fact is “material” if proof of its
existence or nonexistence would affect the outcome of the
case under applicable substantive law, and a dispute is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 257 (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 (1986).
such a showing has been made, the non-moving party must go
beyond the pleadings with affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue.
Fed.R.Civ.P. 56; Celotex, 477 U.S. at 324;
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986) (stating that the non-moving party
“must do more than simply show that there is some
metaphysical doubt as to the material facts”). The
party opposing the motion must produce evidence to show the
existence of every element essential to its case, which it
bears the burden of proving at trial, because “a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial.” Celotex, 477 U.S. at 323;
see also Harter v. G.A.F. Corp., 967 F.2d 846, 851
(3d Cir. 1992). “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 as true.”
Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d
1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S.
ten-count second amended complaint states claims for
retaliation based upon the First Amendment for Dondero's
political campaigning, his union speech and association, and
disagreement with the dissolution of the police department;
violations of substantive due process pursuant to the
Fourteenth Amendment for the termination of his public
employment; violations of procedural due process pursuant to
the Fourteenth Amendment because of the termination of his
Heart and Lung Act benefits, the dissolution of the police
department, and misrepresentation without a name clearing
hearing; conspiracy pursuant to § 1983 and § 1985;
a Monell claim based on policy or custom for
permitting misconduct and unconstitutional behavior; and a
claim pursuant to the Pennsylvania Constitution. The Township
maintains all of Dondero's claims are precluded as a
matter of law. For the following reasons, summary judgment is
granted in favor of the Township.
Claims against individual defendants
counts, Dondero asserts claims against the individual
defendants in their individual and official capacities in
addition to the Township. However, Dondero's claims
against these individuals in their official capacity are
redundant and summary judgment is granted in favor of the
individual defendants for claims in their official capacity.
See Hafer v. Melo, 502 U.S. 21, 25 (1991) (claims
against individual defendants in their official capacities
are equivalent to claims against the governmental entity
itself, they are redundant and may be dismissed).
establish a claim against a person in their individual
capacity, Dondero must establish each individual defendant
acting under color of law, violated his constitutional or
statutory rights, and caused the alleged
injury. Fennell v. Penchishen, No. 19-111, 2019 WL
1934877, at *3 (E.D. Pa. April 30, 2019) (emphasis added)
(citing Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir.
2005)). For the reasons stated below, no constitutional or
statutory violation occurred, and, therefore, summary
judgment is granted in favor of the individual defendants in
their individual capacities.
First Amendment claims
Counts One and Two, Dondero asserts a First Amendment
retaliation claim due to his protesting of the Township's
dissolution of the police department, his engagement with
union activity, his grieving of the Township's policies
and training, and his political campaigning.
public employee to state a claim of First Amendment
retaliation, “a public employee must show that (1) his
[activity] is protected by the First Amendment and (2) the
[activity] was a substantial or motivating factor in the
alleged retaliatory action, which, if both are proved, shifts
the burden to the employer to prove that (3) the same action
would have been taken even if the [activity] had not
occurred.” Munroe v. Central Bucks Sch. Dist.,
805 F.3d 454, 466 (3d Cir. 2015) (quoting Dougherty v.
Sch. Dist. of Philadelphia, 772 F.3d 979, 986 (3d Cir.
2014)); accord Gorum v. Sessoms, 561 F.3d 179, 184
(3d Cir. 2009) (articulating the same elements for other
types of First Amendment activity, not just speech).
protected conduct to be a substantial or motivating factor in
a decision, the decisionmakers must be aware of the protected
conduct.” Ambrose v. Twp. of Robinson, 303
F.3d 488, 493 (3d Cir. 2002) (citation omitted). If Dondero
shows that the Township was aware of the protected conduct,
then he may use the temporal proximity between that knowledge
and the adverse employment action to argue causation.
“[A] suggestive temporal proximity between the
protected activity and the alleged retaliatory action can be
probative of causation, ” Thomas v. Town of
Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (citation
omitted), but “[e]ven if timing alone could ever be
sufficient to establish a causal link, . . . the timing of
the alleged retaliatory action must be ‘unusually
suggestive' of retaliatory motive before a causal link
will be inferred, ” Estate of Smith v.
Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (quoting
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d
said, in order to show that the protected speech was a
substantial or motivating factor in the alleged acts of
retaliation, Dondero need not show that the decision was
motivated solely by anti-speech animus or even that the
illegal animus was the dominant or primary motivation for the
retaliation. Suppan v. Dadonna, 203 F.3d 228, 236
(3d Cir. 2000) (citing Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977)). This