Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-1998

Fultz v. Dunn
Precedential or Non-Precedential:

Docket 97-7378




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Recommended Citation
"Fultz v. Dunn" (1998). 1998 Decisions. Paper 281.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/281


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Filed December 21, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-7378 and 97-7503

KENNETH W. FULTZ

v.

JOHN S. DUNN, JR.; DENNIS L. FARLEY;
DEPARTMENT OF ENVIRONMENTAL RESOURCES,
COMMONWEALTH OF PENNSYLVANIA; JAMES M. SEIF

       John S. Dunn, Jr.;
       Dennis L. Farley,

       Appellants in No. 97-7378

KENNETH W. FULTZ

       Appellant in No. 97-7503

v.

JOHN S. DUNN, JR.; DENNIS FARLEY;
DEPARTMENT OF ENVIRONMENTAL RESOURCES,
COMMONWEALTH OF PENNSYLVANIA; JAMES M. SEIF

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 94-01914)

Argued November 19, 1998

BEFORE: GREENBERG, ALITO, and
GODBOLD,* Circuit Judges
_________________________________________________________________

*Honorable John C. Godbold, Senior Judge of the United States Court of
Appeals for the Eleventh Circuit, sitting by designation.
(Filed: December 21, 1998)

       D. Michael Fisher
       Attorney General
       John G. Knorr, III (argued)
       Chief Deputy Attorney General
       Chief, Appellate Litigation
       Section
       Calvin R. Koons
       Senior Deputy Attorney General
       Gwendolyn T. Mosley
       Senior Deputy Attorney General
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

        Attorneys for John S. Dunn and
        Dennis L. Farley

       Cletus P. Lyman (argued)
       Michael S. Fettner
       Lyman & Ash
       1612 Latimer Street
       Philadelphia, PA 19103

        Attorneys for Kenneth W. Fultz

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellants John S. Dunn, Jr. and Dennis Farley, officers
of the Pennsylvania Department of Conservation and
Natural Resources, appeal from a final judgment entered on
a jury verdict against them in favor of appellee Kenneth W.
Fultz, a Department employee. Fultz asserted a First
Amendment retaliation claim in this action under 42 U.S.C.
S 1983, the alleged retaliation being in response to his
conduct in having brought an action entitled Fultz v. Davis,
D.C. Civ. No. 90-00779 ("Davis"), in the United States
District Court for the Middle District of Pennsylvania. In

                                  2
Davis, Fultz successfully challenged his dismissal in 1988
by the Department of Environmental Resources, the
predecessor to the Department of Conservation and Natural
Resources. As a matter of convenience, we refer to both
Departments interchangeably as Department. In particular,
in this case Fultz charged that upon his reemployment, as
a result of Davis Dunn, the Department's Chief of Employee
Relations and Training, deprived him of his seniority, thus
causing him to lose a later promotion to a position as Park
Operations Manager I. Fultz asserted that Dunn took this
action on behalf of himself and Farley, the Director of the
Department's Bureau of Personnel, and thus we do not
differentiate between the appellants in this opinion. The
appellants denied that Dunn acted to retaliate against
Fultz, and at and after the trial unsuccessfully sought a
judgment as a matter of law pursuant to Fed. R. Civ. P.
50(b).

On this appeal the appellants assert that they are
entitled to a judgment as a matter of law, or, alternatively,
to a new trial pursuant to Fed. R. Civ. P. 59. Inasmuch as
Dunn reemployed Fultz in accordance with a civil service
rule which afforded him no discretion to make a decision
that would have preserved Fultz's seniority, we hold that,
as a matter of law, Dunn, and thus Farley, did not retaliate
against Fultz. Consequently, we will reverse the judgment
of the district court as well as all orders and judgments
granting Fultz monetary damages or equitable relief and
will remand the case to the district court to vacate all such
orders and judgments. Moreover, the district court on the
remand should enter a judgment as a matter of law in favor
of Dunn and Farley. Our disposition of the appeal makes it
unnecessary for us to consider the appellants' request for a
new trial.

Fultz appeals from orders which stayed execution on the
judgment without requiring the appellants to post a
supersedeas bond, and which deferred an award of
attorney's fees pending disposition of the appellants'
appeal. We have consolidated the two appeals. In view of
our disposition of the appellants' appeal, we will dismiss
Fultz's appeal, which clearly is moot as he no longer has a
judgment in his favor and cannot recover attorney's fees

                               3
under 42 U.S.C. S 1988, as he is not a prevailing party. See
U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 

, 21, 

, 389 (1994).

II. BACKGROUND

A. Factual History

In 1988, the Department fired Fultz from his position as
a state park manager after 24 years of employment, in part
for running a boat storage business without the
Department's knowledge. In various fora, Fultz argued that
the Department fired him without procedural due process
and, in 1990, he filed the Davis action in the district court
against the Department and two of its officials, other than
Dunn or Farley, challenging his termination. In Davis, the
district court granted the defendants summary judgment,
but on appeal on July 15, 1991, we reversed, as we held
that Fultz had not received the pre-termination hearing
required by Cleveland Bd. of Ed. v. Loudermill, 

, 

(1985). Thus, we ordered the
defendants to reinstate Fultz to his position. We further
provided that the district court could consider additional
relief on remand. Significantly, however, we permitted the
Department to refile charges against Fultz on the basis of
a constitutionally adequate hearing. See Fultz v. Davis, Nos.
90-6039 and 91-5058, slip op. at 14 (3d Cir. July 15,
1991). Thus, our opinion was a procedural victory for Fultz
but in no way exonerated him from the Department's
misconduct allegations against him.

On May 29, 1992, Fultz and the Department reached a
settlement agreement before trial on the remand in Davis.
The agreement stated that Fultz acknowledged his error in
engaging in the boat storage business and that he regretted
his activity. On the other hand, the Department agreed not
to re-file charges against him and, as particularly germane
here, the Department agreed to "re-employ Fultz in the
capacity of Park Superintendent IV with re-employment to
commence June 15, 1992," "to provide [Fultz] with 40 days
annual leave and 135 days of sick leave," and to pay
$75,000 to Fultz "in settlement of his claims." The
agreement further provided that the defendants would

                               4
"purge [Fultz's personnel] file with respect to matters
investigated or charged in 1988." Significantly, the
agreement did not mention seniority.

Dunn, who was not a party in Davis, was responsible for
implementing the settlement agreement. The Department
reemployed Fultz in the Bureau of State Parks in
Harrisburg at an appropriate rank and pay level. To comply
with the settlement agreement provision requiring the
purging of Fultz's personnel file, Dunn deleted the word
"terminated" from Fultz's computer personnel record and
substituted the benign term "voluntary resignation" to
describe the break in Fultz's work history from 1988-1992.
It is undisputed that upon his reemployment the
Department did not credit him with seniority for his
employment prior to his 1988 termination, or for 1988-
1992. In effect, the Department treated Fultz as a newly
hired employee with seniority accruing from the date it
rehired him in 1992.

In November 1992, Fultz applied for a promotion to either
of two Department positions at higher levels in rank and
with higher salaries than his position at that time. When
the Department awarded the positions to other applicants,
Fultz learned that he had not recaptured his seniority upon
his reemployment, and had been viewed as an employee
with five months rather than 24 years of seniority. Fultz
attributes his failure to obtain a position as Park Manager
I to his loss of seniority for his service prior to his 1988
termination.

B. Procedural History

On November 22, 1994, Fultz filed this suit against the
appellants, advancing two arguments: (1) Dunn had
miscalculated his seniority to retaliate against him for
having successfully brought the 1990 Davis action, and (2)
he otherwise would have received one of the promotions.
We focus on the first argument because our disposition of
it is determinative of this appeal. The court submitted the
case to the jury on written interrogatories. Thefirst
question was "Do you find that [Fultz's] exercise of the First
Amendment rights was a substantial or motivating factor in
Defendant Dunn's calculation of his seniority?" The court

                                5
told the jury that if it answered that question "No" it was to
return to the courtroom, thus recognizing that unless Fultz
was successful on that question he would lose the case. On
this appeal, Fultz does not contend that the court was
wrong on this point.

The jury, however, answered "Yes" and went on to answer
the remaining interrogatories in Fultz's favor and to award
him substantial damages. In addition, the court granted
Fultz equitable relief which, in view of our disposition, we
need not describe at length. On January 16, 1997, the
district court denied the appellants' motions for a judgment
as a matter of law or for a new trial, finding the motions
untimely filed, but stating that there was sufficient evidence
in the record to support the jury's verdict. In a subsequent
opinion, however, the court acknowledged that the post-
trial motion leading to the January 16, 1997 order was
timely and Fultz does not contend that the appellants have
not preserved the right to contend on this appeal that they
were entitled to a judgment as a matter of law.

III. DISCUSSION

Our standard of review on this appeal is well established.
We exercise plenary review and will overturn a jury verdict
"only if, viewing the evidence in the light most favorable to
the nonmovant and giving it the advantage of every fair and
reasonable inference, there is insufficient evidence from
which a jury reasonably could find liability." Lightning Lube,
Inc. v. Witco Corp., 

, 1166 (3d Cir. 1993).

Because Fultz alleges that his conduct in having brought
the Davis case led the appellants to retaliate against him by
wrongly calculating his seniority, the case is governed by
the three-prong analysis enunciated by the Supreme Court
in Mount Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 

, 

(1977). A public employee alleging
an adverse employment action because he engaged in
protected First Amendment activity must show that (1) he
engaged in protected activity, and (2) the protected activity
was a substantial or motivating factor for the adverse
action. See Swineford v. Snyder County, 

,
1270 (3d Cir. 1994) (applying Mt. Healthy test). If the

                               6
plaintiff satisfies the first two prongs, the defendant can
escape liability by showing that (3) he would have taken the
same action absent the protected activity. See Pro v.
Donatucci, 

, 1287-88 (3d Cir. 1996).

Fultz argues that the protected activity was the
successful 1990 Davis suit, and that the adverse action
was the miscalculation of seniority.1 While the appellants
acknowledge that Fultz's Davis action was protected First
Amendment activity, they counter that no reasonable jury
could have found that Dunn calculated Fultz's seniority to
retaliate against him for having brought that case, because
civil service rules governed Dunn's calculation, and because
Fultz did not bargain for recapture of his seniority in the
settlement agreement.2 Thus, the appellants contend that
Fultz did not show that the protected activity was a
substantial or motivating factor in Dunn's conduct, and
that in any case, they demonstrated that the seniority
determination would have been the same absent Fultz's
protected activity.3

Inasmuch as appellants acknowledge that Fultz's Davis
suit was protected First Amendment activity, the issue on
this appeal is whether that activity was a substantial or
motivating factor in Dunn's calculation of seniority. The
district court in a post-trial opinion denying appellants a
judgment as a matter of law determined that "the record
contains sufficient evidence from which the jury could
_________________________________________________________________

1. The jury was instructed that the calculation of seniority, and not the
Department's denying Fultz a promotion, was the adverse action. Fultz
argued at trial and in his briefs that the loss of promotion stemmed from
the calculation of seniority, but in view of our result we need not
describe at length the basis for that argument.

2. It is not clear that Dunn actually made a notation that Fultz did not
have seniority for his employment prior to his 1988 termination. The
seniority had been eliminated under the applicable civil service rule
prior
to 1992 and it simply was not restored at that time. Nevertheless, we
sometimes will refer to Dunn as having determined Fultz's seniority.

3. Of course, it is difficult to understand how the third Mt. Healthy v.
Doyle prong could be implicated in this case, for, if Fultz had not
engaged in the protected activity by filing the Davis case, there is no
reason to believe that the Department would have reemployed him and
thus have had a reason to make decisions affecting his seniority.

                               7
conclude that the decision as to how to calculate [Fultz']
seniority was within . . . Dunn's discretion." We disagree.
Fultz did not show that Dunn had meaningful discretion to
act other than he did in determining that Fultz did not
recapture his seniority upon his reemployment. Moreover,
Fultz did not bargain for recognition of seniority based on
his terminated employment in the settlement agreement.
Rather, he agreed to be reemployed commencing June 15,
1992. Of course, he had good reason to accept
reemployment as of that date rather than to insist on being
reinstated retroactively as of 1988 when he was terminated.
After all, he acknowledged his error in engaging in the boat
storage business, but the Department nevertheless agreed
not to refile the charges against him which our opinion in
Davis permitted it to do. We also point out that the parties
cannot repeat the original settlement negotiations, so we
have no way of knowing whether he could have negotiated
successfully to recapture his seniority.

Fultz's seniority was governed by 4 Pa. Code S 101.714
which provides as follows:

        (a) Seniority as used in this part shall be continuous
       service unless broken by one or more of the following:
       resignation; retirement; failure to report after
       notification of appointment through mandatory,
       preferred or optional reemployment rights; expiration of
       mandatory, preferred or optional reemployment rights;
       or failure to report after leave and acceptance of other
       permanent employment while on leave of absence
       without pay. If service is broken for one of these
       reasons, the employe[e] shall lose accrued seniority. If
       an employe[e] is returned within 1 year after this type
       of break in service, the employe[e] is entitled to credit
       for seniority purposes the time accrued up to the time
       the break in service occurred, but is not entitled to
       credit for the time represented by the break in service.
_________________________________________________________________

4. The briefs submitted by both sides in this case treated this regulation
as the one that governed this case. However, near the end of the oral
argument, counsel for Fultz suggested for the first time that this
regulation was not in effect at the relevant time. Based on his brief, we
refuse to entertain that argument.

                               8
        (b) Periods of furlough and approved leave of absence
       without pay shall be deemed continuous employment
       for seniority purposes, except that the period of
       furlough or leave of absence without pay will not be
       counted toward seniority.

        (c) Removal for cause shall terminate accrued
       seniority. Demotion for cause shall terminate seniority
       in the class from which demoted.

Under this rule, Fultz did not have seniority when the
Department reemployed him based on his service prior to
his 1988 removal because his service was not "continuous."
While the rule provides for recapture of seniority if service
is broken for one of the enumerated reasons, this recapture
is possible only if the "employe[e] is returned within 1 year
after this type of break in service." Here, of course, the
break in service far exceeded one year. Thus, even if Dunn
had treated Fultz's termination as a "resignation" or a
"retirement" Fultz could not have overcome the one-year
obstacle so as to obtain seniority for his service prior to his
reemployment. Therefore, we have a situation which, as we
recently noted in Larsen v. Senate of the Commonwealth of
Pennsylvania, 

, 95 (3d Cir. 1998), could arise in
a First Amendment retaliation case:

       In some circumstances, the legitimate basis for the
       actions might be so apparent that the plaintiff 's
       allegations of retaliatory motive could not alter the
       conclusion that under the circumstances . . . the
       defendants would have been compelled to reach the
       same decision even without regard for the protected
       First Amendment activity.

Thus, the protected activity was not a substantial or
motivating factor in Dunn's conduct with respect to Fultz's
seniority and the appellants are entitled to a judgment as
a matter of law.

In reaching our result, we reiterate that we recognize that
when the Department reemployed Fultz, Dunn removed the
word "terminated" from his personnel record in the
Department's computer system, as directed by the
settlement agreement, and entered "voluntary resignation."
Fultz characterizes the change as "falsely" entered and

                               9
retaliatory. Dunn's action was literally "false" in that Fultz
did not voluntarily resign in 1988 but had been terminated
improperly. Yet the evidence showed that inasmuch as
Dunn was directed by the settlement agreement to delete
"terminated," another term had to be entered, and none of
the available terms characterized what had occurred more
accurately.

In any event, Fultz could not rebut Dunn's testimony
that the result -- loss of seniority -- would have been the
same regardless of what term he used. Dunn testified that
he selected the term "voluntary resignation" from a set of
terms or "transaction codes" used at that time by the
Department to describe various changes in employment
status, such as transfers or leaves. While he had discretion
in labeling the four-year break in service as a "voluntary
resignation," versus such other plausible, available terms
as "involuntary resignation" or even "retirement," he
testified that his choice of label was in any case immaterial
because, whatever the label -- "voluntary resignation" or
"involuntary resignation" or "wrongly terminated and now
reinstated" -- under the civil service rules Fultz would have
lost his seniority.

As we have indicated, our reading of the civil service
rules convinces us that Dunn was correct. The applicable
civil service rule states that seniority is lost whenever there
is a break in an employee's service of more than one year,
4 Pa. Code S 101.71 (a), whether the break is due to
"retirement," "termination" or "resignation," and other
circumstances. 

express exceptions are for
employees who are furloughed or on "leave without pay,"
terms which certainly did not describe the circumstances
here. 

(b).5 Thus, in his brief Fultz completely
misstates what happened when the Department reemployed
him in 1992, as he indicates that "Mr. Dunn wiped out over
24-years of service, by falsely entering Mr. Fultz's 1988
termination as a `voluntary resignation.' " Br. at 11. In fact,
_________________________________________________________________

5. Dunn testified that he did not use the term "leave without pay" to
characterize the four-year break because he understood that Fultz had
withdrawn funds from the state retirement fund between 1988 and 1992
and could not or did not wish to repay them.

                               10
it was the circumstance that Fultz's service was not
continuous as required by the applicable civil service rule
which "wiped out" his seniority.

We find it highly significant that if Dunn had
circumvented the Department's transaction codes and more
accurately indicated that Fultz had been "wrongfully
terminated and was now reemployed" Fultz nevertheless
would not have recaptured the pre-1988 service for
seniority purposes, because his service would not have
been continuous and the break in service still would not
have been attributable to a circumstance under the civil
service rules allowing seniority recapture. It is thus clear
that Fultz reasonably cannot charge that Dunn wrongfully
deprived him of seniority.

Moreover, if Dunn attempted to invent a term to
recapture Fultz's seniority for his service prior to the 1988
termination, he would have been giving Fultz more than he
bargained for when he came to an agreement with the
Department settling the Davis action. The settlement
agreement did not mention seniority, so when Fultz was
returned to work, Dunn had no directive to give Fultz more
than he had bargained for or to which he was entitled as,
in effect, a new employee.6 The plain fact is that Fultz is
misusing this First Amendment retaliation case as a vehicle
to enhance his settlement.

The only evidence Fultz presented to show that Dunn
retaliated against him by "incorrectly" reinstating him
without accrued seniority was his own belief that under the
settlement agreement he would be reinstated with accrued
seniority, and his conversation with John Wilk, Executive
Director of the Civil Service Commission, when he did not
_________________________________________________________________

6. The district court's order of September 24, 1996, to remedy Fultz's
failure to receive a promotion directed the appellants to enter into
Fultz's
personnel record the term, "[w]rongful termination and reemployment
with no break in service," a term that did not exist as a transaction code
option at the time Dunn made the entry (and does not exist today) and
which would have had to have been invented by him for the express
purpose of preserving seniority. This order was an unjustified
amendment of the settlement agreement to give Fultz seniority to which
he was not entitled.

                               11
receive a promotion. Fultz asserts that Wilk had told him
that "the department had the right to interpret[the
seniority rule] however they wanted." But that vague
evidence cannot be permitted to overcome the
unambiguous rule provisions so as to permit a conclusion
that Dunn could have circumvented the rule. The rule is
clear and leaves no room for "interpretation." Moreover,
there was no evidence to show that Fultz had been
promised the opportunity to return to work with his
seniority preserved. Finally, we point out that inasmuch as
Fultz apparently recognized that there was a seniority
question when the 1990 case was settled, he should have
clarified that point at that time. If he had done so, this case
could have been avoided.

In sum, it is perfectly clear that Fultz has not shown that
Dunn would have -- or could have -- done other than view
the four-year interruption as a break in service leading to
the elimination of accrued seniority, given that Fultz did
not bargain for anything else. We find that Fultz failed to
provide sufficient evidence to show that his protected
activity was a substantial or motivating factor for the
seniority decision. Thus, Fultz's evidence as to retaliatory
conduct was insufficient to support the verdict and the
appellants are entitled to a judgment as a matter of law.

IV. CONCLUSION

For the foregoing reasons, in the appellants' appeal, No.
97-7378, we will reverse the judgment and orders in favor
of Fultz granting him damages and equitable relief, and will
remand the case to the district court to enter a judgment as
a matter of law in favor of appellants Dunn and Farley. We
will dismiss Fultz's appeal in No. 97-7503 as moot.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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