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Dondero v. Lower Milford Township

United States District Court, E.D. Pennsylvania

December 23, 2019

JOHN P. DONDERO, Plaintiff,
v.
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

          JOSEPH F. LEESON, JR., United States District Judge.

         I. INTRODUCTION

         In this 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.

         Dondero 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[1] 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.

         The 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.

         II. FACTUAL BACKGROUND

         The following facts are undisputed:

         Dondero, 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.

         Beginning 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. Id.

         Dondero 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 ¶ 37.

         In 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.

         Dissatisfied 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.

         III. LEGAL STANDARD

         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). 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).

         Once 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. 912 (1993).

         IV. ANALYSIS

         The 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.

         A. Claims against individual defendants

         In all 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).

         To 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.

         B. First Amendment claims

         In 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.

         For a 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).

         “[F]or 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 Cir. 1997)).

         That 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 ...


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