Mark R. Hornak, United States District Judge.
Plaintiff William Gilson filed this civil action against the Pennsylvania State Police and certain of its present or former officers and officials
Presently pending before the Court is Defendants' motion for summary judgment on all counts in Plaintiff's Fourth Amended Complaint (
Plaintiff is a former Pennsylvania State Trooper who was employed by the Pennsylvania State Police (hereafter, "PSP") from 1994 to 2011. (PSAF ¶1.)
According to Plaintiff, Trooper Sibbald harbored a personal animosity toward him as a result of Plaintiff having previously inquired into Sibbald's relationship with a female high school informant. (PSAF ¶24.) Plaintiff claims that Sibbald referred to him as a "freak" and a "pervert" in the presence of others and commented that Plaintiff "didn't belong on this job." (Id.)
On August 17, 2009, various PSP Troopers, including Plaintiff and Trooper Sibbald, were dispatched to assist in an incident involving the involuntary mental health commitment of a twenty-year old male who was acting erratically and threatening to harm himself. (PSAF ¶13.) Also present at the scene was a female crisis service worker by the name of Sandra Grgic. (Id. ¶14.) After the subject of the call was successfully handcuffed, Plaintiff and Grgic exited the premises. (Id. ¶¶17-18.)
What happened next is hotly disputed by the parties. Plaintiff maintains that he tapped the elbow of Grgic, who was walking in front of him, and inquired to which hospital the individual was being taken. (Declaration of William Gilson at ¶13,
Following this incident, Sibbald twice attempted, unsuccessfully, to reach Grgic at her place of employment. (PSAF ¶¶ 23, 29.) When the two subsequently spoke, Sibbald told Grgic that he had witnessed the incident, and he informed her that she could file a complaint about it if she wished to do so. (PSAF ¶30.) On August 24, 2009, Grgic called PSP to complain about Gilson's conduct. (Id. ¶34.)
Sergeant Mark Noce, an investigator in PSP's Internal Affairs Division (IAD), was subsequently assigned to investigate the incident. (PSAF ¶47.) In the course of his investigation, Noce twice interviewed Grgic, who (according to Noce) "related that the contact was not appropriate, [was] unwanted, and [occurred] on a personal area of her body (above her left hip on her waist)." (Pl.'s Ex. 26, Attachment 10,
Noce also interviewed Plaintiff on two occasions — October 26 and November 18, 2009. (PSAF ¶52.) During the course of his interviews, Noce repeatedly asked Plaintiff about the incident in question and Plaintiff repeatedly denied any wrongdoing, consistently
Noce also interviewed others present on the scene or nearby, including the parents and neighbors of the individual who was involuntarily committed and other PSP Troopers who had been dispatched to assist in the incident. (PSAF ¶52.) None of these other individuals witnessed contact between Plaintiff and Grgic. (Pl.'s Ex. 26.) The only other witness to the incident was Sibbald, who generally corroborated Grgic's version of the incident, except that Sibbald claimed that Grgic "quickly pushed herself away" from Plaintiff, whereas Grgic indicated in her verified statement that she merely "walked away." (See Pl.'s Ex. 26 at Attachment 3 and Attachment 10.)
On November 23, 2009, Noce generated a report of his investigation which was forwarded to Schau in his capacity as Plaintiff's commanding officer. (PSAF ¶63.) Schau then prepared a summary of the investigation, entitled "Summary Report," which he issued to Plaintiff on December 8, 2009. (Pl.'s Ex. 27,
Schau then scheduled a pre-disciplinary conference for December 11, 2009. Because he had to be out of town on that date, Schau arranged for Operations Lieutenant Bradley Allen to meet with Plaintiff for his PDC. (PSAF ¶70; Schau Dep. 92:1-5.) Although not personally present, Schau had authored a Disciplinary Action Report ("DAR") to be issued against Plaintiff in the event that Plaintiff "did not bring anything forward" at his PDC. (PSAF ¶71; Schau Dep. 92:6-93:7.) Schau instructed Allen that, if Plaintiff had "something to offer," then the DAR should not be issued, and Schau would consider "whatever [Plaintiff] brought forward" upon his return. (Schau Dep. 92:16-23.) According to Schau, Allen issued the DAR to Plaintiff on December 11 after determining that Plaintiff had nothing to offer concerning his alleged misconduct. (PSAF ¶72; Schau Dep. 92:6-93:7; Arbitration Hr'g Tr. 91:1-14, Jan. 6, 2011,
(Pl.'s Ex. 29,
On December 17, 2009, the DAR was forwarded by Schau's commanding officer,
In March of 2010, PSP's Department Discipline Office in Harrisburg forwarded the IAD Investigatory Report for further review to PSP's Equal Employment Opportunity Office ("EEOO"). (PSAF ¶85.) Sergeant Kristal M. Turner-Childs was tasked with determining whether Gilson's alleged misconduct violated PSP's internal regulations prohibiting "sexual misconduct"
In a memorandum dated March 2, 2010, Turner-Childs opined that Plaintiff had violated PSP's regulations prohibiting its police officers from engaging in sexual misconduct and sexual harassment. (Pl.'s Ex. 99,
(Pl.'s Ex. 99,
In light of Turner-Child's Memorandum, PSP's Department Discipline Office determined that Plaintiff had committed the offenses of "Discrimination and Harassment," in violation of Field Regulation (F.R.) 1-1.25, and "Sexual Impropriety," in violation of F.R. 1-1.38. (Pl.'s Ex. 35,
Plaintiff received the Notice of Disciplinary Penalty on November 15, 2010. (PSAF ¶109.) Thereafter, he initiated grievance arbitration proceedings.
On January 6, 2011, arbitration proceedings were held before Arbitrator Steven M. Wolf, Esq. (PSAF ¶122.) At the hearing, PSP asserted that, "[b]ecause Trooper Gilson lied about the incident numerous times during his IAD interview, the State Police has charged him with a serious act of deception." (PSAF ¶117.) PSP's counsel therefore framed the relevant issue as "whether the grievant committed a serious act of deception during an Internal Affairs investigation in violation of Article 26." (Id.)
Under the terms of the parties' collective bargaining agreement ("CBA"), a "serious act of deception" was one of the so-called 12 "deadly sins" that would warrant termination without consideration of mitigating circumstances. (Pl.'s Ex. 104,
At the hearing, PSP's lawyer represented that, "[a]lthough we consider Trooper Gilson's act of pulling Sandra Grgic to him in an embrace ... as very serious, it is the serious act of deception here which is the primary focus of the case and which has resulted in Trooper Gilson's dismissal." (PSAF ¶125; Arb. Hr'g Tr. at 12:4-8, Jan. 6, 2011,
On May 4, 2012, Arbitrator Wolf issued his opinion and award in favor of PSP. (PSAF ¶131, Pl.'s Ex. 41,
(Pl.'s Ex. 41 at p. 12,
On May 4, 2011, Christie drafted a memo to Schau and Plaintiff regarding the "Imposition of Arbitration Award." (PSAF ¶159.) In relevant part, the memorandum stated:
SECTION F.R. 1-1.02, Unbecoming Conduct F.R. 1-1.28, Internal Investigations F.R. 1-1.35, Discrimination or Harassment F.R. 1-1.38, Sexual Impropriety F.R. 1-2.02, Performance of Duty F.R. 1-2.05, Competency F.R. 1-2.30, Providing False Information TITLE
(Pl.'s Ex. 42,
On September 19, 2011, Christie's memorandum was forwarded to the Pennsylvania Department of Labor and Industry ("L&I") by Debra Facciolo, PSP's Director of Human Resource Management Division in the Bureau of Human Resources. (Pl.'s Ex. 92,
Plaintiff claims that he had a number of promising job interviews following his termination as a State Trooper, but several prospective state agency employers who initially planned to hire him later refused to do so as a result of PSP's publication to L&I of Christie's May 4, 2011 memorandum. According to Plaintiff, publication of Christie's memorandum by its transmittal (along with the arbitration award) to the Department of Labor and Industry gave prospective employers the false impression that Plaintiff had been fired for committing sexual harassment and sexual impropriety and that these charges had been sustained by the arbitrator.
Based on the foregoing events, Plaintiff filed this civil action January 6, 2012. Following extensive pretrial proceedings, Plaintiff filed his Fourth Amended Complaint ("FAC,"
The FAC sets forth thirteen (13) separate causes of action. Count 1 asserts a claim against Schau, Teter, Christie, and
On January 30, 2015, Defendant filed the pending motion (
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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
Many of the claims in the FAC pertain to alleged violations of Plaintiff's rights under the U.S. Constitution. Pursuant to 42 U.S.C. § 1983,
To the extent a constitutional deprivation can be shown, the Court must also consider whether there is sufficient personal involvement on the part of each Defendant identified in Plaintiff's § 1983 claims to support constitutional liability. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005) ("`A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.'")(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)) (alteration in the original). With these principles in mind, the Court will examine Plaintiff's various theories of § 1983 liability.
In Count 1 of the FAC, Plaintiff claims that Schau, Teter, Christie, and Sibbald, by virtue of their respective roles in Plaintiff's investigatory and disciplinary proceedings, deprived him of constitutionally protected interests in his reputation and in continued employment without due process of law. Plaintiff alleges that Teter failed to properly review exculpatory evidence during the course of the investigation and also failed to properly consider and/or develop possible motives on the part of Grgic and Sibbald for making false accusations against him. (FAC ¶¶174-76.) Plaintiff accuses Schau, Teter and Christie of failing to conduct the investigation in a timely manner and failing to produce sufficient evidence of an inappropriate touching or other misconduct on his part. (Id. ¶¶ 177-79.) Plaintiff accuses all four Defendants
In Count 13 of the FAC, Plaintiff asserts a procedural due process claim against Schau, Teter, Christie, Facciolo, and Noonan premised on the theory that these Defendants unconstitutionally deprived Plaintiff of his protected property interest in continued employment by pursuing the "serious act of deception" charge at the arbitration hearing without prior notification to Plaintiff. (FAC ¶¶459-61.) Plaintiff claims that, due to the lack of proper notice, he was unable to properly defend himself against the charge that he had engaged in a "serious act of deception" at any point during the termination proceedings, including at the arbitration hearing. (Id. ¶472.)
In his brief in opposition to summary judgment, Plaintiff articulates a slightly different version of these claims under three (3) distinct theories. He first argues that Schau's Summary Report was constitutionally insufficient because it did not provide him notice of all of the charges against him. In particular, Plaintiff maintains that the report failed to formally advise him that he could be disciplined for his conduct during the investigation-namely, repeatedly denying that he had touched Grgic inappropriately. Plaintiff objects that, despite this deficiency in Schau's Summary Report, he was later "disciplined" on December 11, 2009 (by virtue of Schau's DAR) in part for being "less than truthful" in his two interviews concerning his contact with Grgic.
Plaintiff next maintains that PSP violated his rights in connection with Teter's November 2010 Notice of Disciplinary Penalty. According to that document, Plaintiff was fired for having violated seven (7) PSP regulations, including "Internal Investigations," "Providing False Information," "Discrimination or Harassment," and "Sexual Impropriety." Here again, Plaintiff argues that, prior to receiving this "discipline," he never received notice of, or an opportunity to respond to, the charges stemming from his conduct during the IAD investigation, including his alleged violations of PSP's regulations governing "Internal Investigations" or "Providing False Information." In addition, Plaintiff objects that he never received pre-discipline notice that he was or would be charged with sexual harassment under PSP's "Discrimination or Harassment" regulation or sexual misconduct under PSP's "Sexual Impropriety" regulation. As a result, Plaintiff argues, he never had an opportunity to rebut these "highly charged" violations prior to PSP's issuance of the dismissal notice. (Pl.'s Mem. Law. Opp. Defs.' Mot. Summ. J. at 7,
Finally, Plaintiff reiterates his theory that PSP denied him an opportunity to be heard "at a meaningful time and in a meaningful manner," (see Pl.'s Br. Opp. at 8, (citing Mathews v. Eldridge, 424 U.S. 319,
The Fourteenth Amendment to the U.S. Constitution provides that a State may not "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To successfully state a procedural due process violation, "a plaintiff must allege 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.'" Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.2006) (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)); see Emigh v. Steffee, Civil Action No. 08-1726, 2009 WL 1472916, at *10 (W.D.Pa. May 27, 2009), aff'd, 442 Fed. Appx. 660 (3d Cir.2011). Here, Plaintiff alleges that he had a constitutionally protected property interest in his continued employment. (FAC ¶164.) Defendants do not dispute this allegation, so the question becomes whether Plaintiff was deprived of that interest without "due process of law."
Our Court of Appeals has held that, where a plaintiff has a property interest in employment, due process generally requires a pre-deprivation hearing. Schmidt v. Creedon, 639 F.3d 587, 595-97 (3d Cir. 2011). In Schmidt, that Court explained that:
Schmidt, 639 F.3d at 596-97.
Here, Plaintiff does not dispute that he received both a pre-termination notice of misconduct (i.e., Schau's Summary Report) and a pre-termination informal hearing (i.e., the pre-disciplinary conference with Allen on December 11, 2009). Nevertheless, he insists that these measures were constitutionally insufficient because they failed to notify him of all the relevant charges against him — that is, Plaintiff claims he never got pre-discipline notice
Having thoroughly reviewed the record in this case, the Court is not persuaded that Plaintiff has demonstrated the existence of a genuinely disputed issue of material fact relative to his procedural due process claims. In judging the sufficiency of Plaintiff's pre-discipline process, the Court finds it relevant to consider not only the information provided in Schau's summary report, but also the evidence pertaining to Noce's investigation. See Leader v. Noonan, No. 1:12-cv-2570, 2014 WL 3557105, at *5 (M.D.Pa. July 17, 2014) ("[T]he Third Circuit has made it clear that a formal hearing, such as the [Pre-Disciplinary Conference] ... is not required pre-suspension in order to satisfy due process.") (citing Schmidt, 639 F.3d at 596) (emphasis in the original). Here, it is undisputed that Noce interviewed Plaintiff twice during the investigatory process. At the time of his first interview on October 26, 2009, Plaintiff was given a written notice of Grgic' allegation that Plaintiff had touched her in a nonconsensual fashion by putting his left hand or arm around her left waist area and pulling her to his body. (See Pl.'s Ex. 26, Attachment 13,
At the time he received Schau's Summary Report of the investigation, Plaintiff also received a copy of Noce's IAD file, which included detailed information about all of the interviews Noce had conducted concerning the incident. Again, this included Grgic's statements that the touching was not appropriate, unwanted, and on a personal area of her body, consistent with "how a man would hold his wife or someone he knew." (Ex. 26, Attachment 10.) Plaintiff was given several days to review this material before meeting with Allen on December 11, 2009 for his pre-disciplinary conference. At the time of the PDC, Plaintiff was given another opportunity to address Grgic's allegations, tell his side of the story, or otherwise comment on the evidence Noce had collected. Only after these events was Schau's Disciplinary Action Report issued to Plaintiff advising him that he would be disciplined both for his inappropriate contact with Grgic and for
Based on this collective evidence, the Court is satisfied that Plaintiff's pre-disciplinary process gave Plaintiff constitutionally adequate notice of his alleged misconduct, an explanation of PSP's evidence in support of that misconduct, and an opportunity to present his side of the story. See Schmidt, 639 F.3d at 596 (quoting Loudermill, 470 U.S. at 545, 105 S.Ct. 1487). Consistent with the teachings of Loudermill and Schmidt, the pre-termination proceedings served as an adequate "check" against erroneous decision-making and allowed PSP to ensure there were reasonable grounds to believe that Plaintiff had touched Grgic inappropriately and was lying when he repeatedly denied it. See id. at 596-97 (quoting Loudermill, 470 U.S. at 545, 105 S.Ct. 1487).
Plaintiff contends that a jury could find Schau's summary report to be constitutionally deficient because it failed to include a specific charge that Plaintiff had been untruthful during his interviews. The Court does not agree. For purposes of procedural due process, notice is meaningful and sufficient if it "apprises the individual of the substance of the matter at hand and permits adequate time to present any counter information and response." Andrekovich v. Chenoga, No. 2:11cv1364, 2012 WL 3231022, at *5 (W.D.Pa. Aug. 6, 2012) (citing McDaniels v. Flick, 59 F.3d 446, 454-57 (3d Cir.1995)). As of the time that Plaintiff attended his pre-disciplinary conference, he was aware that Grgic's allegation of inappropriate contact turned on a credibility determination which pitted his own version of the facts against the statements of Grgic and Sibbald. After being twice advised by Noce that untruthfulness could result in adverse administrative action, Plaintiff had been repeatedly questioned concerning his account of the incident. He was aware that his own account of the incident was diametrically different from the accounts offered by Grgic and Sibbald, and he was given a chance to offer any explanation he might have for these differing accounts. Plaintiff therefore knew, as of the December 11, 2009 pre-disciplinary conference that his credibility was at issue and that he could be disciplined for untruthfulness.
For similar reasons, the Court is not persuaded that a jury could find Schau's summary report constitutionally deficient simply because it omitted a specific charge of sexual harassment or sexual misconduct. As another district court has recognized, "Third Circuit precedent indicates that notice need only contain enough specificity to make the nature of the plaintiff's conduct clear, and in such an instance a failure to identify a specific broken `rule' does not offend due process." Leader v. Noonan, No. 1:12-cv-2571, 2014 WL 3557117, at *6 (M.D.Pa. July 17, 2014) (citing Schmidt, 639 F.3d at 599-600) (granting summary judgment and concluding that, where notice "described in sufficient detail the alleged conduct," the Defendants' failure to "identify the specific rules that they claimed his conduct violated" did not deprive the plaintiff of due process). See also Copeland v. Phila. Police Dep't, 840 F.2d 1139, 1145-46 (3d Cir. 1988) (affirming grant of summary judgment and holding that plaintiff's due process rights were not violated simply because the "city did not prepare the formal, written charges against [plaintiff] until after he had been dismissed"; "formal charge was based on the same information previously made available to [plaintiff], which he had the opportunity to refute"). As of the date of his pre-disciplinary conference, Plaintiff knew all of the facts that served as the basis both for Grgic's allegation of inappropriate contact and for PSP's subsequent charge of sexual harassment and sexual impropriety. Plaintiff was disciplined only after he was given a chance to respond to this evidence and present his own side of the story. Accordingly, as a matter of law, Plaintiff's pre-deprivation process was constitutionally adequate.
The Court also concludes, as a matter of law, that no due process violation occurred by virtue of the fact that Teter's November 9, 2010 Notice of Discipline omitted any specific reference to a "serious act of deception." Plaintiff argues that, because of this omission, he was not prepared to defend against the "serious act of deception" charge at the arbitration hearing and was therefore denied a meaningful opportunity to be heard, see Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (noting that due process requires the opportunity to be heard "at a meaningful time and in a meaningful manner"), but the evidence before the Court does not plausibly support Plaintiff's claim. The record from the arbitration hearing reflects that the arbitrator inquired about the proper framing of the issues at the start of the proceeding. PSP's lawyer indicated at the outset that she was proposing a two-part inquiry: the first issue would be whether Plaintiff committed a serious act of deception during the IAD investigation in violation of the CBA and, if not, the second (alternative) issue would be whether PSP otherwise had just cause to dismiss him. (See Arbitration Hr'g Tr.
Although each side proposed their own way of framing the relevant issues, the record does not reflect that the Union's lawyer ever objected to PSP's proposal on the grounds that it would unfairly disadvantage Plaintiff or the Union or otherwise result in a deprivation of due process. Simply put, neither Trooper Gilson or his lawyer claimed any sort of surprise or lack of notice. Had the Union's lawyer perceived a due process violation or some sort of unfair surprise, he could have sought a continuance of the hearing in order to adequately prepare a defense, but that did not occur. On the contrary, the record reflects that the Union pursued Plaintiff's defense consistent with the position Plaintiff had previously taken in his interviews — namely, that no inappropriate contact ever occurred and that the testimony of Grgic and Sibbald was simply not credible. In pursuing this line of defense, the Union offered Plaintiff's testimony and called three other witnesses on his behalf. It also entered exhibits and cross-examined PSP's witnesses. Following the arbitration hearing, the parties had the opportunity to submit further written argument on a number of points, including how the issues before the arbitrator should be framed, whether Plaintiff's conduct constituted a serious act of deception, and whether that phrase was ambiguous. (See Arbitration Hr'g Tr. at 198:5-199:24,
When viewed collectively, the foregoing evidence belies Plaintiff's assertion that his arbitration proceeding failed to afford him a meaningful opportunity to be heard on the "serious act of deception" charge. Moreover, even if the arbitration proceeding could be viewed as constitutionally deficient, Plaintiff had access to judicial review under state law in the Commonwealth Court, which the record does not indicate he ever pursued. See Pennsylvania State Police v. Pennsylvania State Troopers' Ass'n, 540 Pa. 66, 656 A.2d 83, 89-90 (1995) (holding that a court reviewing an arbitrator's award in an Act 111 grievance arbitration involves questions regarding: (1) the jurisdiction of the arbitrator, (2) the regularity of the proceedings, (3) an excess of the arbitrator's powers, and (4) deprivation of constitutional rights). The Third Circuit has advised that, "[i]f there is a process on the books that appears to provide due process, the plaintiff cannot skip that process and use the federal courts as a means to get back what he wants."
In Count 12 of the FAC, Plaintiff asserts a claim against Defendants Schau, Christie, Teter, Facciolo, and Noonan premised on the theory that these Defendants deprived him of a protected liberty interest in future employment without due process of law. Plaintiff's theory is that Defendants stated and/or misled others into believing that he was terminated for having committed sexual harassment and sexual impropriety and that these charges were upheld in arbitration. (FAC ¶442.) In doing so, Plaintiff claims, the Defendants "imposed on [him] a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities and which might seriously damage his standing and associations in the community." (Id. ¶441.)
In his brief opposing summary judgment, Plaintiff clarifies that Count 12 is premised on Facciolo's act of publishing Christie's May 4, 2011 "Imposition of Arbitration Award." Plaintiff claims that, as a result of this publication, he has lost a number of promising jobs with employers who have indicated that they would not hire a former Commonwealth employee found guilty of sexual harassment and sexual misconduct.
Defendants argue that Plaintiff's claim fails as a matter of law for two reasons. First, Defendants maintain that the publication in question did not involve any statements that were untrue. Assuming, however, that Plaintiff suffered a constitutionally significant injury to his reputation, Defendants nevertheless maintain that Plaintiff received an adequate name-clearing hearing by virtue of his arbitration proceeding.
In order "to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006) (citations omitted); see also McCarthy v. Darman, 372 Fed.Appx. 346, 351 (3d Cir.2010). In the context of public employment, this "`stigma-plus' test has been applied to mean
In this case, Defendants challenge only Plaintiff's ability to establish the "stigma" part of the "stigma-plus" test. To establish this criterion, a plaintiff must allege that the purportedly stigmatizing statements (1) were made publicly and (2) were false. Hill, 455 F.3d at 236 (citations omitted). Upon review of the record, this Court agrees with Defendants that Plaintiff has not satisfied the "stigma" criterion because the publication in question did not communicate information that was false.
As noted, Plaintiff claims that he was stigmatized when Facciolo sent Christie's May 4, 2011 "Imposition of Arbitration Award" memo to the Commonwealth's Department of Labor and Industry.
SECTION F.R. 1-1.02, Unbecoming Conduct F.R. 1-1.28, Internal Investigations F.R. 1-1.35, Discrimination or Harassment F.R. 1-1.38, Sexual Impropriety F.R. 1-2.02, Performance of Duty F.R. 1-2.05, Competency F.R. 1-2.30, Providing False Information TITLE
(Pl.'s Ex. 42,
Plaintiff maintains that Christie's memorandum was materially false and misleading because it asserted that Plaintiff had been terminated for committing sexual harassment and sexual impropriety and that those findings were upheld by an arbitrator. The memorandum does indeed state that Plaintiff's termination was premised, in part, on PSP's determination that Plaintiff had violated internal regulations proscribing "discrimination or harassment" and "sexual impropriety." However, there is nothing false about this statement. Plaintiff's Notice of Disciplinary Penalty expressly invoked these regulations as grounds for dismissal only after its Equal Employment Opportunity Office had rendered an opinion that the field regulations were, in fact, violated.
In addition, Christie's memorandum referenced the fact that Plaintiff grieved his termination and the grievance was denied. Once again, however, this was a true statement that did not necessarily imply that the arbitrator had specifically "upheld" the sexual harassment and/or sexual impropriety violations. To the extent Christie's memorandum was ambiguous about this point, however, any ambiguity was sufficiently resolved by the fact that Facciolo forwarded the actual arbitration decision to the Department of Labor & Industry, along with Christie's memo. Thus, that "publication" to the Department of Labor and Industry considered as a whole (as it must be, see Forrest v. Owen J. Roberts Sch. Dist., Civil Action No. 09-3014, 2011 WL 1549492, at *17 (E.D.Pa. Apr. 1, 2011)(in determining whether a communication is capable of defamatory meaning, the allegedly defamatory statements must be viewed "in context") (citing Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399, 402 (1987))), was both complete and accurate. Consequently, Plaintiff has failed to establish that his protected liberty interests were infringed by the publication of a false and stigmatizing statement.
At bottom, Plaintiff's due process theory is premised on several flawed assumptions that are not supported by the record. Plaintiff first argues that Turner-Childs should never have found him to be in violation of PSP's "discrimination or harassment" and "sexual impropriety" regulations in the first place because his alleged inappropriate contact with Grgic did not, in fact, meet the definitions of "sexual harassment" or "sexual misconduct" set forth in those regulations. Plaintiff next argues that PSP realized it could not defend these charges and therefore "abandoned" them at the arbitration hearing. Finally, Plaintiff reiterates that the arbitrator never actually ruled on his grievance that he was not in violation of the "Discrimination or Harassment" or "Sexual Impropriety" regulations. Collectively, Plaintiff states, this evidence demonstrates the materially false and misleading nature of PSP's statements that he was dismissed for violating sexual harassment and sexual misconduct regulations and that those findings were upheld by the arbitrator.
This line of argument is unavailing. To begin with, Plaintiff's theory essentially asks this Court to engage in what is tantamount to an administrative review of Turner-Child's opinion for the purposes of determining whether she correctly applied PSP's own internal policies. Absent some evidence suggesting that Turner-Child's decision-making, in and of itself, involved a constitutional deprivation, this Court is not the proper forum for obtaining a substantive review of PSP's administrative decision-making. To the extent this type of review is appropriate, however, the Court
Moreover, the record does not support Plaintiff's assertion that PSP abandoned the "sexual harassment" and "sexual misconduct" charges at arbitration because it
Finally, the fact that the arbitrator did not specifically pass on the "harassment or discrimination"/ "sexual impropriety" issues in his decision does not support Plaintiff's theory that Facciolo's publication therefore involved a false and stigmatizing publication. It is true that Arbitrator Wolf premised his ruling solely on his conclusion that Plaintiff's conduct constituted a "serious act of deception." He therefore had no reason to rule one way or the other on the charges that Plaintiff had violated the "discrimination or harassment" and "sexual impropriety" regulations. However, this does not change the fact that PSP itself found Plaintiff to be in violation of those regulations and dismissed him partly on those grounds. Because all of this information was made known to the Department of Labor & Industry through Facciolo's publication of Christie's memorandum, accompanied by the arbitrator's decision, no false publication occurred.
For these reasons, the Court concludes that Plaintiff has not produced evidence sufficient to establish the "stigma" element of the "stigma-plus" test. Because Plaintiff has failed to demonstrate the deprivation of a protected liberty interest, his due process claim at Count 12 fails as a matter of law. See McCarthy v. Darman, 372 Fed. Appx. 346, 351 (3d Cir.2010) (where allegedly stigmatizing statements were not false, they did not show a "stigma," and consequently, plaintiff failed to show that he was deprived of a liberty interest without due process of law).
In Count 11 of the FAC (asserted against Schau, Teter, and Christie), Plaintiff alleges that the CBA's reference to a "serious act of deception" is unconstitutionally vague. Plaintiff claims the phrase is vague `on its face" because it is not defined anywhere, there is no policy regarding what constitutes a "serious act of deception," and PSP provides no training as to what this phrase means. Thus, Plaintiff argues, it is unclear whether a particular falsehood made during an investigation will be classified as a serious act of deception or as a non-serious one. Plaintiff also argues that the "serious act of deception" standard is vague as applied to his case because he received no training on the standard and was never informed that his repeated denial of the same accusation constituted a serious act of deception necessitating termination regardless of mitigating circumstances.
"The `void for vagueness' doctrine arises under the due process clause of the Fourteenth Amendment, and is designed to give `fair warning' of prohibited conduct." Scavone v. Pennsylvania State Police, 501 Fed.Appx. 179, 181 (3d Cir. 2012) (citing San Filippo v. Bongiovanni, 961 F.2d 1125, 1135 (3d Cir.1992)). "In the public employment context, `the vagueness doctrine is based on fair notice that certain conduct puts persons at risk of discharge.'" Id. (quoting San Filippo, 961 F.2d at 1136). "Standards for public employees `are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge.'" Id. (quoting San Filippo, 961 F.2d at 1136). This inquiry must be undertaken on a "case-by-case basis," and "the party opposing the statute or standard must show that it is vague as applied to him." Borden v. School Dist. of Tp. of East Brunswick, 523 F.3d 153, 167 (3d Cir.2008) (citing San Filippo, 961 F.2d at 1136). "In completing this analysis, it is important to note that, in the civil context, statutes need not be as precise as in the criminal context and are, therefore, less likely to be invalidated under a void-for-vagueness challenge." Id. (citing San Filippo, 961 F.2d at 1135).
In this case, Plaintiff's termination was upheld on the ground that he had committed a "serious act of deception," which is one of the so-called twelve "deadly sins" set forth in Appendix E of the parties' collective bargaining agreement.
(Pl.'s Ex. 104,
As applied to Plaintiff's conduct in this case, this language
Considering the foregoing circumstances, the Court finds that "ordinary persons using ordinary common sense" would know that repeatedly and falsely denying misconduct during the course of an administrative investigation arises to a "serious act of deception," thus putting them at risk of discharge. See Scavone, 501 Fed.Appx. at 181; San Filippo, 961 F.2d at 1136. The Court's conclusion in this regard is not altered by the fact that the phrase "serious act of deception" is not more elaborately defined in the CBA or by a policy statement or through specific training.
As noted, conduct standards challenged in a civil context need not be as precise as in the criminal context; they are, therefore, "less likely to be invalidated under a void-for-vagueness challenge." Borden, 523 F.3d at 167. Even in the criminal context, however, a vagueness challenge can be defeated where reasonable persons would know that their conduct puts them at risk of criminal prosecution. See San Filippo, 961 F.2d at 1136 (citing Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)); Graham, 2015 WL 1229492, at *18. "Additionally, the inclusion of a scienter requirement alleviates vagueness concerns because a mens rea element makes it less likely that a defendant will be convicted for an action that he or she committed by mistake." Graham, 2015 WL 1229492, at *18 (citing authority). Here, for the reasons discussed, the Court concludes as a matter of law that reasonable persons in Plaintiff's situation would know that the act of repeatedly and falsely denying misconduct in the course of an administrative investigation would put them at risk of discharge under the CBA's "serious act of deception" provision. The requirement that there be "deception" implicitly incorporates a mens rea component that makes it less likely an employee will be discharged for inaccurate information that is imparted mistakenly, rather than intentionally.
Accordingly, the Court concludes that the CBA's proscription against "serious acts of deception" is not unconstitutionally vague. Defendants' motion will therefore be granted as to Count 12 of the FAC.
In Count 2 of the FAC, Plaintiff asserts a claim against Schau, Teter, Christie, and Sibbald for the alleged violation of his equal protection rights.
The Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. "This is essentially a direction that all persons similarly situated should be treated alike." Shuman ex rel. Shertzer v. Penn Manor School Dist., 422 F.3d 141, 151 (3d Cir.2005) (citing City of Cleburne,
As an initial point, the Court notes that there is no evidence in the record to support the conclusion that Sibbald or Schau treated Plaintiff less favorably than "similarly situated" female officers or otherwise acted with an unlawful gender-based discriminatory intent. At this point in the proceedings, Plaintiff may not rely on mere allegations of wrongdoing. See Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir.1991) (the party opposing summary judgment must present more than just "mere allegations, general denials, or ... vague statements" to show the existence of a genuine issue of material fact). Consequently, the Defendants' motion for summary judgment as to Count 2 will be granted as to Sibbald and Schau.
Plaintiff's claims against Teter and Christie require a bit more discussion but, ultimately, the Court concludes that these claims are legally unsupportable as well. In support of his claim in Count 2, Plaintiff points to two pieces of evidence which, he believes, show that he was subjected to unlawful, gender-based discrimination. The first involves a situation in which a male PSP Officer performed a "bear hug" on another male Officer, picking him off the ground and inadvertently injuring him. There was never any internal investigation by PSP into whether this incident constituted "sexual harassment" or "sexual impropriety," and the offending Officer was ultimately transferred to a different Troop rather than being terminated. What this shows, according to Plaintiff, is that PSP applied a gender-based stereotype in his case by assuming that a male officer's contact with a female is necessarily "sexual," just because the male displays a "machismo"
The Court concludes that this evidence has no probative value insofar as it relates to Teter or Christie. To begin with, Plaintiff has offered no evidence that Teter was personally involved in the "bear hug" incident. Similarly, while Christie testified about this incident, Plaintiff has not pointed to any evidence establishing that she
Plaintiff's second piece of evidence concerns the case of Trooper Carrie Gula
This incident, like the "bear hug" incident, is insufficient to support a rational inference of purposeful, gender-based discrimination on the part of the named Defendants. First, there is no evidence before the Court to suggest that Teter was personally involved in Gula's case, nor is it clear from the record what specific role (if any) Christie played in that matter. Without a record basis for inferring the personal involvement of these Defendants in both employment decisions, a factfinder cannot reasonably interpret this evidence as somehow shedding light on the Defendants' intent in their actions toward Plaintiff. More fundamentally, however, the anecdotal evidence about Trooper Gula's case actually undermines Plaintiff's equal protection claim because it demonstrates that the relevant PSP officials took action to dismiss a female Trooper who, like Plaintiff, was found to have lied. Thus, the incident demonstrates that PSP officials actually treated similarly situated male and female Troopers in like fashion.
Because Plaintiff has failed to adduce evidence supporting an inference that Schau, Sibbald, Teter, or Christie personally acted with a purposeful, gender-based animus toward him, his equal protection claim against those Defendants cannot survive summary judgment. Accordingly, Defendants' motion will be granted with respect to Count 2 of the FAC.
In Counts 7 and 9 of the FAC, Plaintiff asserts claims against PSP for alleged gender-based discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 955(a), respectively.
Claims under Title VII and the PHRA are analyzed under the familiar burden-shifting paradigm outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
If the plaintiff establishes a prima facie case, the employer then has the burden of articulating a legitimate non-discriminatory justification for the adverse employment action. Burton, 707 F.3d at 426 (citations and internal quotations omitted). Once the employer does so, the burden of production shifts back to the plaintiff to provide evidence from which a factfinder could reasonably infer that the employer's proffered justification is merely a pretext for discrimination. Id. (citing Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir.1994) and Sarullo v. U.S. Postal Serv., 352 F.3d 789, 799-800 (3d Cir.2003)).
To make a showing of pretext, "the plaintiff must point to some evidence,
Defendants have moved for summary judgment on Plaintiff's Title VII and PHRA claims on the grounds that Plaintiff has failed to adduce evidence sufficient to prove either his prima facie case or that the stated reason for his discharge was pretextual. The Court finds these arguments persuasive.
In support of his Title VII and PHRA claims, Plaintiff relies on the same evidence proffered in support of his equal protection claim — namely, the "bear hug" incident involving contact between two male PSP Officers, and the termination proceedings of Trooper Gula. For the reasons discussed in connection with Count 2, when these incidents are viewed in the context of the entire record, they are insufficient to support a reasonable inference that Plaintiff's termination was motivated by his gender. There is simply no record evidence supporting an inference that similarly-situated others were treated more favorably based on their gender. See Doe v. C.A.R.S. Prot. Plus, Inc., 527 F.3d 358, 366 (3d Cir.2008), order clarified, 543 F.3d 178 (3d Cir.2008) (noting that, for purposes of demonstrating the fourth element of a prima facie employment discrimination case, "[t]he evidence most often used to establish this nexus [between the plaintiff's protected status and the adverse employment action] is that of disparate treatment, whereby a plaintiff shows that she was treated less favorably than similarly situated employees who are not in plaintiff's protected class") (citing cases); see also McClung v. Songer Steel Servs., Inc., 1 F.Supp.3d 443, 451 (W.D.Pa.2014) (noting that the fourth prima facie element of a Title VII claim requires the plaintiff to show that similarly situated persons out-side of the plaintiff's protected class were treated more favorably or that other circumstances in the case give rise to an inference of unlawful discrimination) (citing authority). Because Plaintiff has not established a prima facie case of gender discrimination under Title VII or the PHRA, his claims at Counts 7 and 9 are subject to summary judgment on that basis alone.
In addition, however, Plaintiff has not pointed to evidence that could support a reasonable inference of pretext. There is no dispute that PSP has met its burden of articulating a nondiscriminatory reason for Plaintiff's discharge — namely, Plaintiff's untruthfulness during the IAD investigation. Plaintiff has not shown that PSP's explanation suffers from internal
In Counts 8 and 10, Plaintiff asserts claims against PSP for allegedly subjecting him to a hostile work environment in violation of Title VII and the PHRA, respectively. As in Counts 7 and 9, Plaintiff claims the hostile work environment was the result of gender-based discrimination. Defendants contend that Plaintiff has failed to produce evidence sufficient to establish a hostile work environment. They further argue that the Title VII claim is untimely and that Plaintiff failed to properly exhaust his administrative remedies for purposes of his PHRA claim. The Court need only address Defendants' first argument, as it provides sufficient grounds for granting summary judgment.
To prevail on a hostile work environment claim under Title VII, a plaintiff must establish that: (1) he suffered intentional discrimination based on a protected ground (here, gender) (2) the discrimination was severe or pervasive, (3) the discrimination detrimentally affected him, (4) the discrimination would detrimentally affect a reasonable person in like circumstances, and (5) respondeat superior liability exists. Bright v. LabCorp., 627 Fed.Appx. 75, 77 (3d Cir.2015) (citing Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.2013)). Federal courts apply a "totality of the circumstances" approach to determine whether the threshold level of severity and pervasiveness has been reached, considering factors such as "`the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
In this case, by contrast, Plaintiff has failed to offer evidence that could satisfy the first four elements of his hostile environment claim. In his brief in opposition to the pending motion, Plaintiff fails to point to any specific evidence of record that would shed light on the nature or severity of the alleged hostile conduct, the frequency with which it occurred, and/or whether it unreasonably inhibited Plaintiff's work performance. At his deposition, Plaintiff stated that he was basing his claim on PSP's allegedly biased investigation and arbitration as well as its post-termination conduct in allegedly interfering with Plaintiff's efforts to obtain employment at another state agency. (See DSMF ¶ 19.)
It is undisputed that Noce interviewed Plaintiff twice in connection with the IAD's investigation — once in October 2009 and once in November 2009, and the arbitration proceeding itself took only one day. (Id. ¶¶ 20-21.) There is nothing beyond this in the record to suggest that Plaintiff endured acts of hostility on a frequent or severe basis from fellow Troopers or supervisors as a result of the charges against him.
Based on the foregoing, the Court concludes that Plaintiff has failed to adduce evidence that would be sufficient to support the existence of a hostile work environment for purposes of Plaintiff's claims at Counts 8 and 10 of the FAC. Accordingly, Defendants' motion for summary judgment will be granted as to those claims.
In Count 4 of the FAC, Plaintiff alleges that PSP violated his rights under the Public Health Services Act ("PHSA"), 42 U.S.C. §§ 300bb-1 et seq., as amended by the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"). "The PHSA provides that state-operated group health plans must offer 18 months of continuing coverage to qualified beneficiaries who otherwise would lose coverage as a result of a `qualifying event.'" Larsen v. Senate of the Commonwealth of PA, 154 F.3d 82, 95 (3d Cir.1998) (citing 42 U.S.C. §§ 300bb-1(a), 300bb-2(2)). Under the PHSA, the term "qualifying event" includes "termination (other than by reason of [the] employee's gross misconduct)." Id. (citing 42 U.S.C. § 300bb-3(2) (alternation in the original)). Thus, a termination based on the employee's "gross misconduct" is not a qualifying event that triggers continuing health care coverage.
In their motion for summary judgment, Defendants contend that the circumstances giving rise to Plaintiff's termination constituted "gross misconduct," and PSP was thereby relieved of any obligation to provide him with continuing coverage. See 42 U.S.C.A. § 300bb-3(2). Plaintiff denies that the "gross misconduct" exception applies here.
"Neither the PHSA, nor the comparable statute applicable to private employers [i.e., "COBRA," 29 U.S.C. § 1161(a)], defines the term `gross misconduct.'" Larsen, 154 F.3d at 96 (citing 42 U.S.C. §§ 300bb-1 et seq.; 29 U.S.C. §§ 1161 et seq.). However, in Chatterjee v. School Dist. of Philadelphia, 170 F.Supp.2d 509 (E.D.Pa.2001), the district court noted that, for purposes of COBRA:
Id. at 518-19.
Here, Defendants contend that Plaintiff's act of touching Grgic inappropriately and then repeatedly lying about it constituted "willful misconduct" within the meaning of Pennsylvania's unemployment compensation statute and, therefore, was "gross misconduct" for purposes of the PHSA. Defendants cite several cases wherein courts have found that acts of dishonesty amount to "gross misconduct" under the PHSA or COBRA. See, e.g., Larsen, 154 F.3d at 96 (former state judge unlawfully procured controlled substances through the use of his subordinates); Moore v. Williams College, 414 Fed.Appx. 307, 308-09 (1st Cir.2011) (former college employee concealed and misrepresented his credentials during the period of employment at defendant college); Burke v. American Stores Employee Benefit Plan, 818 F.Supp. 1131, 1136-38 (N.D.Ill.1993) (employee used improperly procured "saver stamps" to obtain free turkeys from employer's retail outlets); Adkins v. United Int'l Investigative Servs., Inc., No. C 91-0087 BAC, 1993 WL 345186, at *4 (N.D.Cal.1993) (former employee left post unattended and falsified records to receive additional paychecks); Conery v. Bath Assocs., 803 F.Supp. 1388, 1396 (N.D.Ind. 1992) (allegations that employee misappropriated company funds, if true, would constitute "gross misconduct").
Here, Plaintiff's discharge was premised on his inappropriate touching of Grgic and his repeated denials of any inappropriate physical contact. Arbitrator Wolf found that Plaintiff had engaged in a "serious act of deception" by repeatedly denying the inappropriate contact with Grgic during the course of the IAD investigation. The Court agrees that, as a matter of law, these circumstances demonstrate a "wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has a right to expect of an employee, and/or negligence indicating an intentional disregard of the employer's interest or of the employee's duties and obligations to the employer" sufficient to establish willful misconduct. McLean, 383 A.2d at 535.
Plaintiff maintains, however, that there is at least a genuine issue of material fact concerning whether he engaged in "willful misconduct" because, following his discharge from PSP, he applied for and was awarded unemployment compensation benefits. Specifically, Plaintiff represents that the unemployment compensation office found that: "the incident which caused the separation was not sufficiently related in time to the date of the separation [over one (1) year]. As such, the separation cannot be said to have been caused by the rule violation and benefits must be allowed under section 402(e)." (PSAF ¶ 172.) In making this assertion of fact, Plaintiff purports to reference the unemployment compensation office's ruling, which he designates "Exhibit 39," but which does not appear in the record. Because the document is not part of the summary judgment record, this Court is unable to meaningfully interpret the import of the unemployment compensation ruling and its relevance to the "gross misconduct" inquiry.
For the reasons stated in this Opinion, Defendants' motion for summary judgment will be granted as to all counts in the Fourth Amended Complaint.
An appropriate Order will follow.
(PSAF ¶91; Pl.'s Ex. 77, § 1.38,
42 U.S.C.A. § 1983.
Under the regulations, "sexual harassment" is defined to include "unwelcome sexual advances... or physical conduct of a sexual nature..., where any or all of the following occur: (1) Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual's employment. (2) Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individuals. (3) Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment." (Pl.'s Ex. 77 at § 1.38-(B).)
Plaintiff argues that he could not have engaged in "sexual harassment" within the meaning of the regulation because, by Turner-Childs' own admission, none of the circumstances set forth in subsections (1) through (3) applied in his case. However, Turner-Childs testified that subsections (1)-(3) apply to workplace sexual harassment involving supervisors and their subordinates. (Turner-Childs Dep. 91:4-93-5,
PSP's zero tolerance toward sexual impropriety includes not only act of sexual harassment, but also acts of "sexual misconduct." (Pl.'s Ex. 77,§ 1-1.38,
Plaintiff asserts that Turner-Childs never found that Gilson's alleged touching of Grgic was "sexual" and, therefore, he could not have violated the policy. According to Plaintiff, Grgic tried to hide this "fatal flaw" in her June 8, 2010 memorandum by omitting any reference to the word "sexual" when discussing the definition of "sexual misconduct," thereby falsely claiming that "any uninvited or unwelcome touching" would violate PSP's policy.
Plaintiff's assertion is unsupported by the record. The Turner-Childs' June 8, 2010 memorandum reflects that she accurately defined "sexual misconduct" to include "any uninvited or unwelcome sexual touching, sexual contact, or conduct of a sexual nature which victimizes another..." (Def.'s Ex. R at ¶ 4,
(Id. at ¶ 4.) Accordingly, the evidence establishes a reasonable basis for Turner-Childs' conclusion that Plaintiff had violated PSP's policy against "sexual misconduct."
First, the Court does not see how the materials have anything to do with the resolution of the Motion for Summary Judgment, and the Plaintiff does not really advise the Court as to the answer to that question. (
The core argument advanced by Plaintiff in opposition of the Defendants' explanation as to why the disclosure of the notes in discovery was inadvertent was the fact that the handwritten notes, which are of multiple pages, in far-less-than-legible penmanship, bear the notation on one page "Tpr William Gilson-Cross" (which appears at the top of the eighth of twenty-five pages of such handwritten notes), and that they were referenced in the deposition of Mark Noce, at which time no one (the witness or the lawyers) seemed to know what they were. (
First, as to inadvertence, it seems to the Court that Plaintiff cannot justly complain that it should have been plainly obvious to Defendants' counsel that these materials were protected work product when such was likewise not obvious to Plaintiff's lawyer. The trial lawyers in this case are highly experienced, savvy practitioners. While perhaps the Q&A format of some of the notes and the noted page header should have been some sort of tip-off of protected status, that was not obvious to any of the lawyers in the case.
Second, the Court is loath to get into the ins and outs of the mechanisms that the Commonwealth uses as to the resources it devotes to agency document review before materials are shipped off to the Office of Attorney General ("OAG"). Is it likely that with more eyes on the documents, this could have been caught? Maybe, but the Court does not conclude that the process used by the OAG and the PSP as to processing these documents was so unreasonable that Defendants should be treated as relinquishing the protected status of the documents. Finally, the Court believes that the Defendants' counsel acted with reasonable enough dispatch after the Noce deposition to seek the return of the documents, given the facially oblique nature of the materials. The Defendants' "clawback" Motions (ECF Nos. 60, 89) are granted.
