A. RICHARD CAPUTO, District Judge.
Presently before the Court is Defendants Larksville Borough, Joseph Zawadski, Tony Kopko, and John Pekarovsky's (collectively "Defendants") Motion for Summary Judgment. (Doc. 56.) Plaintiff Scott E. Kocher, a former Larksville Borough police officer, claims that he was retaliated against in violation of his First Amendment rights, deprived of a protected
Plaintiff Scott E. Kocher ("Kocher") was employed as a part-time police officer for Larksville Borough from 2004 through September 2010. (Doc. 57, Defs.' Statement Material Facts, "Defs.' SMF," ¶ 1.; Doc. 75, Pl.'s Answer Statement Material Facts, "Pl.'s SMF," ¶ 1.) Kocher served as a patrol officer when he was terminated in 2010. (Kocher Dep., 44:9-11.)
Defendant Joseph Zawadski ("Zawadski") has been the elected Larksville Borough Mayor since 2010. (Defs.' SMF, ¶ 2.) Defendant Tony Kopko ("Kopko") served as the Larksville Borough Police Chief from 1997 through the Spring of 2012. (Id. at ¶ 4.) Defendant John Pekarovsky ("Pekarvosky") was a member of the Larksville Borough Council at the time of Kocher's discharge from employment. (Id. at ¶ 3.)
In 2010, patrol officers reported to Detective John Edwards ("Edwards"), Assistant Chief of Police Kofchak, or Kopko. (Kocher Dep., 44:3-15, Ex. 1.) Kofchak would then report to Kopko. (Id. at 44:16-18.) Kopko, in turn, would report to the Mayor. (Id. at 44:19-24.)
The "Larksville Police Department Policies and Operating Procedures" identify certain job functions a Larksville Borough patrolman performs. (Kocher Dep., Ex. 1.) For example, under the Operating Procedures, a patrolman's duties "include but are not limited to," "answer[ing] all complaints and calls for services," "investigat[ing] crimes, mak[ing] full and detailed reports of the same," and "prepar[ing] neat thorough and concise reports of all police activity." (Id.) The duties identified in the Operating Procedures were an accurate representation of Kocher's duties during the time he was employed with Larksville Borough. (Id. at 19:4-12.) While employed with Larksville Borough, Kocher would prepare police reports after incidents occurred. (Id. at 20:8-14.) An incident involved anything that happened in front of a police officer that would require a call to Luzerne County 911. (Id. at 20:16-17.) Kocher would prepare reports for instances of arrests, and he would also prepare reports on occurrences where no arrests were made. (Id. at 20:18-24.)
In preparing an incident report while employed by Larksville Borough, Kocher would identify the time, date, area, and location of the incident. (Id. at 26:5-6.)
A Larksville Borough Police Department incident report would be prepared through Alert, a computer program used by the Borough. (Id. at 28:7-12.) Incident reports were generated on computers that were located in the police station. (Id. at 29:10-30:8.) The reports could only be generated on these computers. (Id.) Reports could not be prepared on a laptop computer or an officer's home computer. (Id.) To access Alert, the user was required to enter a password, which prevented members of the public from using the Alert system. (Id.) After an incident report was completed, it would be printed out and put in a basket for filing with other incident reports. (Id. at 30:7-13.)
On August 13, 2010, Zawadski learned that citizens were parking illegally during a church bazaar. (Zawadski Tr., 197:4-6.) Kocher, who was on-duty at the time, was called to the bazaar to handle the parking issue around 7:00 p.m. (Kocher Dep., 68:13-15.) Kocher responded that he was busy handling another call. (Id. at 69:1-2.) Kocher ultimately arrived at the bazaar at approximately 9:00 p.m. (Id. at Ex. 5.)
Zawadski testified that he asked to speak with Kocher after he arrived at the bazaar (Zawadski Tr., 204:8-18.) The two men walked behind an ambulance, at which time Zawadski questioned Kocher as to why it took over an hour to get to the bazaar. (Id.) Kocher indicated that he was busy in Plymouth. (Id.) Although Zawadski may have pointed his fingers at Kocher, he never made contact with him. (Id.) Father Jerry approached Zawadski and Kocher while they were speaking and asked if he could help, but Zawadski responded that it was a personal matter. (Id. at 205:21-206:7.)
According to Kocher, at approximately 9:02 p.m., officers were dispatched to the bazaar for a fight in the parking lot. (Kocher Dep., Ex. 5.) As he pulled up to the bazaar, he observed Zawadski performing what looked like a traffic stop. (Id.) Kocher proceeded to the area of the fight. (Id.)
Kocher was standing at the entrance to the bazaar with Michael Thomas, Jeffrey Gibson, Sean Riley, Joseph Yosh, and Susan Stevenson when Zawadski approached and directed Kocher to speak with him. (Id.) The two men moved a few feet away. Zawadski, with his finger pointed to Kocher's chest, told Kocher that he was the boss and to follow his orders. (Id.) Zawadski also stated to Kocher that charges were going to be brought against him. (Id.) During the encounter, Zawadski made physical contact with Kocher. (Id. at 85:1-2.)
Many bazaar attendees witnessed the encounter. (Id. at Ex. 5.) Kocher stated that the confrontation escalated to the point that the church priest and Officer Thomas came between Kocher and Zawadski. (Kocher Dep., 62:21-24.) Everything was broken up, and the encounter ended with Kocher and Zawadski shaking hands. (Id. at Ex. 5.)
Later, while still at the bazaar, Kocher informed Kopko, who was off-duty at the time, about the confrontation. (Kocher Dep., 62:24.) Kopko told Kocher that Zawadski should have been arrested. (Id. at 62:25-63:7) Kopko further instructed Kocher to cover himself. (Id. at 78:8-9.) Kocher documented the encounter in a written incident report (the "Incident Report") based on his conversation with Kopko. (Id.) Kocher also prepared the Incident
Kocher also spoke with Edwards about his encounter with Zawadski. (Kocher Dep., 89:15-91:2.) Like Kopko, Edwards advised Kocher to prepare an incident report. (Id. at 90:15-19.) Edwards also told Kocher that Zawadski should have been arrested. (Id. at 90:10.)
The day after the confrontation, Kocher was contacted by Pekarovsky. (Id. at 91:5-92:23.) Pekarovsky told Kocher that Zawadski is the boss and to follow his orders. (Id. at 92:6-10.)
Following the August 13, 2010 confrontation, a series of events occurred leading to Kocher's discharge.
First, Kopko determined that Kocher inaccurately documented his availability to report to the bazaar on August 13, 2010. Kopko learned about Kocher's encounter with Zawadski on August 13, 2010. (Kopko Tr., 62:11-64:2.) The next day, Kopko reviewed the Incident Report prepared by Kocher. He believed Kocher acted properly. (Id. at 63:12-15.) Later, however, Kopko became aware that the Borough's computers were missing times for 911 calls. (Id. at 64:14-22.) Kopko directed Edwards to gather information relating to the missing calls. (Id. at 64:3-11.) Kopko reviewed the 911 sheets obtained by Edwards and determined that Kocher's reported times were off. (Id. at 63:18-20.) Although Kocher's Incident Report reflected that he was busy the entire time when his presence was requested at the bazaar, the 911 sheets showed that Kocher had over an hour of inactivity where he could have reported to the bazaar. (Id. at 63:20-25.) Based on the difference in the times reported by Kocher and revealed by the call sheets, Kopko decided to investigate if Kocher accurately reported the events from the night of August 13, 2010. (Id. at 80:14-21.) He determined that Kocher falsified his Incident Report based on the erased 911 calls. (Id. at 91:7-11.) During the course of this litigation, however, a 911 supervisor testified that an individual could not erase information from the 911 Call Center. (Adams Dep., 10:1-19.)
Another incident involving Kocher occurred on September 16, 2010. Kocher was at the top of Larksville Mountain when he received a 911 call to report to Petriga's Garage. (Kocher Dep., 198:6-11.) At the time Kocher received the call, he was speaking to a Jackson Township officer. (Id. at 200:8-19.) Kocher continued speaking with the officer after the call came. (Id. at 201:18-21.) The next day, Kopko spoke to Mike Petriga who stated that he waited outside his garage for an officer to come, but no officer ever arrived. (Kopko Tr., 119:17-20.) Petriga testified, however, that he did not mention the lack of response to his call until two or three weeks later. (Petriga Dep., 21:13-14.)
The third incident also occurred on September 16, 2010. (Id. at 97:19-21.) Kopko reviewed a report prepared by Kocher involving a vehicle theft. (Id. at 97:22.) Kopko spoke with the victim and her father, and he determined that the report omitted certain information. (Id. at 97:22-25.) The victim also informed Kopko that she was dissatisfied with how Kocher responded to her call. (Id. at 98:13-16.)
Kopko prepared a memorandum to the Larksville Borough Council on September 21, 2010 (the "Kopko Memorandum") regarding the termination of Scott Kocher. (Kocher Dep., Ex. 9.) With respect to the confrontation at the bazaar, Kopko noted that "he did in fact have at least one (1) hour to address the Mayor's concerns and orders. He did not. What he did do was lie and falsify his reports. I found out that the 911 Center times were erased from our computer. I was able to recover the times, proving he was lying." (Id.) As to the vehicle theft on September 16, 2010, "Kocher was given vital information from a Plymouth Police Officer as to who possibly stole the vehicle and to this date not only didn't he document this, he also failed to follow up on any of it." (Id.) Third, in regard to the September 16, 2010 incident at Petriga's Garage, "Kocher received a radio call from the 911 Center at 1:15 a.m. He never acknowledged that he arrived there nor what he did through the 911 Center." (Id.) Although Kocher indicated that he responded to the Petriga's Garage incident by phone, Kopko "told him that there was still no record of it. I asked him who he spoke to. He said he didn't know." (Id.) Kopko recommended Kocher be discharged from his employment with Larksville Borough because the Police Department "can't have an Officer that is sworn to do his duty fail to comply with this duty." (Id.)
Kocher was terminated from his position with Larksville Borough by the Borough Council on September 21, 2010. (Defs.' SMF, ¶ 53.) Prior to the vote by the Borough Council to terminate Kocher's employment, Council received the Kopko Memorandum. (Cresho Tr., 31:12-14.) Zawadski, however, did not recommend that Kocher be terminated. (Zawadski Tr., 221:8-10, 233:12-14.) While Kocher's termination was discussed during the Borough Council's executive session based on the contents of the Kopko Memorandum, Patricia Cresho ("Cresho"), the Borough Secretary/Treasurer, (Cresho Tr., 31:15-32:17), testified that no comments were made about Kocher during the public meeting. (Id. at 35:1-3.) Kocher did not recall any discussion at the public meeting about his removal other than the motion to terminate his employment. (Kocher Dep., 126:18-128:1.) Kocher also did not remember being accused of a crime at the public meeting. (Id. at 128:2-4.) Nor was Kocher aware of Councilman Pekarovsky ever publishing that Kocher committed a crime or informed other individuals about the circumstances of his termination. (Id. at 150:14-151:1.)
Following his termination from Larksville Borough, Kocher applied for unemployment benefits. (Id. at 118:19-22.) The Kopko Memorandum was provided to the Unemployment Compensation Bureau in connection with Kocher's application for benefits. (Defs.' SMF, ¶ 62.)
In or about April 2009, Kocher applied for a full-time police officer position with Kingston Borough. (Defs.' SMF, Ex. 3.) In connection with his application, Kocher signed a "Waiver and Release for Background Investigation." (Id.) The waiver and release, dated April 29, 2009, was signed by Kocher and notarized by a notary public. It states:
(Id.)
In June or July 2010, Detective Richard Kotchik ("Kotchik") was asked by Kingston Borough Police Chief Keith Keiper to conduct a background check of Kocher. (Kotchik Dep., 12:25-13:20.) Kotchik's initial investigation into Kocher's background was completed on September 4, 2010. (Id. at 32:1-4.) During the course of his initial investigation, Kotchik spoke with Kopko. (Id. at 21:8-10.) Kopko informed Kotchik that while Kocher could be a good officer, he was lazy and did not seem interested in being employed with Larksville Borough. (Id. at 22:4-13.) Kopko, however, did not inform Kotchik that Kocher was under investigation. (Id. at 25:4-10.) Based on his background investigation, Kotchik noted that Kocher could "be a good Police Officer but may lack some motivation." (Id. at Ex. 3.) Furthermore, Kotchik determined that he did "not believe and will not tell the Civil Service Commission that Scott E. Kocher is the best applicant for the position of full-time Police Officer for the Kingston Municipal Police Department." (Id.)
In early October 2010, Kotchik learned that Kocher's employment had been terminated by Larksville Borough. (Id. at 39:6-15.) At the direction of his police chief, Kotchik conducted a supplemental investigation of Kocher's background. (Id. at 42:14-20.) Kotchik subsequently contacted Edwards to find out the reason for Kocher's termination. (Id. at 41:6-13.) Kotchik also spoke with Kopko. (Id. at 41:17-21.)
During his supplemental investigation of Kocher, Kotchik sought to review Kocher's personnel file from Larksville Borough. (Id. at 43:21-44:6.) Kotchik had not reviewed the personnel file during his initial investigation. (Id.) But, once he learned of Kocher's termination, Kotchik contacted Larksville Borough to review the file. (Id.) Kotchik guessed Kopko granted him permission to review the file. (Id. at 97:20-23.) When Kotchik first requested access to the file, Larksville Borough denied his request. (Id. at 49:17-50:5.) Access was only granted once he presented Kocher's signed waiver and release. (Id.)
On the day he reviewed Kocher's personnel file, Kotchik called Larksville Borough and spoke with Cresho before he proceeded to Larksville Borough to review the file. (Cresho Tr., 9:8-13, 18:21-22.) Kotchik was at the building for approximately twenty to thirty minutes to review the file. (Id. at 18:23-19:4.) Cresho did not contact anyone, such as Larksville Borough Council, for permission to allow Kotchik to review the file because she was presented with the waiver and release signed by Kocher. (Id. at 19:5-11.) She also did not contact Kocher before permitting Kotchik to review his file. (Id. at 19:15.) Larksville Borough "really didn't want to give me that personnel file," according to Kotchik, but he obtained access to its contents after he supplied the waiver with his request. (Kotchik Dep., 43:21-44:6.) Kotchik reviewed the contents of Kocher's personnel file with Edwards. (Id. at 45:6-21.) That was the first and
As a result of his additional investigation of Kocher, Kotchik prepared a supplemental report. (Id. at Ex. 1.) The supplemental report repeated the reasons for Kocher's termination from Larksville Borough as set forth in the Kopko Memorandum. (Id.)
By letter dated November 30, 2010, Kingston Borough's Civil Service Commission informed Kocher that he was "unsuitable for appointment as a police officer with the Municipality of Kingston." (Kocher Dep., Ex. 11.) The letter noted that Kocher failed his background investigation since he was terminated from his position with the Larksville Borough Police Department due to failure to perform assigned duties. (Id.) The letter also provided that Kocher could appeal the decision and request a hearing before the Civil Service Commission. (Id.) Kocher availed himself of the opportunity for a hearing, but his appeal was unsuccessful. (Id. at 133:7-135:6.)
Based on the foregoing events, Kocher commenced the instant action on November 3, 2011. (Doc. 1.) On December 22, 2011, Kocher filed the Amended Complaint against Larksville Borough, Zawadski, Kopko, and Pekarvosky. (Am. Compl., ¶¶ 2-5.) The Amended Complaint consists of Three Counts asserted against all Defendants: Count I — "Violation of Plaintiff Kocher's Constitutional Right to be Free from Injury to Reputation and Given Due Process Stigma-Plus Claim"; Count II — "First Amendment Retaliation"; and Count III — "False Light & Defamation." (Am. Compl.) Defendants filed an Answer to the Amended Complaint on January 5, 2012. (Doc. 9.)
The litigation proceeded to discovery. After the discovery period closed, Defendants filed a motion for summary judgment on all claims. (Doc. 56.) Now, as Defendants' motion for summary judgment has been fully briefed, it is ripe for disposition.
Summary judgment shall be granted "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). "Summary judgment is appropriate when `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Wright v. Corning, 679 F.3d 101, 103 (3d Cir.2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. See Edelman v. Comm'r of Soc. Sec., 83 F.3d 68, 70 (3d Cir.1996). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law.
"When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party's favor." Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).
"To prevail on a motion for summary judgment, the non-moving party must show specific facts such that a reasonable jury could find in that party's favor, thereby establishing a genuine issue of fact for trial." Galli v. New Jersey Meadowlands Comm'n, 490 F.3d 265, 270 (3d Cir.2007) (citing Fed.R.Civ.P. 56(e)). "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla." Id. (quoting Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505.
Kocher asserts 42 U.S.C. § 1983 claims for First Amendment retaliation and Fourteenth Amendment deprivation of liberty interest in reputation. Kocher also alleges claims for defamation and false light invasion of privacy under state-law. Defendants seek summary judgment on all claims.
Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage... subjects, or causes to be subjected, any citizen ... or other person ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured,..." 42 U.S.C. § 1983. "To establish liability under 42 U.S.C. § 1983, a plaintiff must show that the defendants, acting under color of law, violated the plaintiff's federal constitutional or statutory rights, and thereby caused the complained of injury." Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir.2005) (citing Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir.1998)). Kocher's First Amendment retaliation and Fourteenth Amendment liberty interest claims will be addressed in turn.
The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
To prevail on a First Amendment retaliation claim, a public employee must demonstrate that (1) he or she engaged in activity that is protected by the First Amendment, and (2) the protected activity was a substantial factor in retaliatory action by the employer. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.2006)). "The first factor is a question of law; the second factor is a question of fact." Id.
"[P]ublic employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." See Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citing, inter alia, Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) and Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). The Supreme Court has identified two inquiries to guide interpretation of the constitutional protections afforded to public employee speech. Id. at 418, 126 S.Ct. 1951. "The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on her or her employer's reaction to the speech." Id. (citing Connick, 461 U.S. at 147, 103 S.Ct. 1684). But, "if the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public." Id. According to the Third Circuit, these inquiries should proceed in the following three steps to ascertain whether a public employee's speech is protected by the First Amendment:
Morris v. Phila. Hous. Auth., 487 Fed. Appx. 37, 39 (3d Cir.2012) (internal citations omitted).
Defendants argue that Kocher did not speak as a citizen, that his speech consisted solely of a personal grievance, and that no causal connection existed between his allegedly protected activity and the purported retaliatory action.
The Supreme Court held in Garcetti that a public employee does not "speak as a citizen" when he makes a statement pursuant to his "official duties." Garcetti, 547 U.S. at 421, 126 S.Ct. 1951; see also Sexton v. Cnty. of York, No. 12-CV-0402, 2012 WL 2192250, at *4 (M.D.Pa. June 14, 2012). "Restricting speech that owes its existence to a public employee's professional responsibilities," according to the Supreme Court, "does not infringe any liberties the employee might have enjoyed as a private citizen." Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. Stated differently, the First Amendment does not shield the consequences of "expressions employees make pursuant to their professional duties." Id. at 426, 126 S.Ct. 1951. Thus, "the critical fact is whether the activity or speech performed by a public employee is within the scope of [the employee's] routine operations." Sexton, 2012 WL 2192250, at *4 (citations omitted). "Whether a particular incident of speech is made within a particular plaintiff's job duties is a mixed question of fact and law." Id. (citing Foraker v. Chaffinch, 501 F.3d 231, 241-42 (3d Cir.2007)).
Defendants contend that Kocher cannot satisfy the threshold inquiry for his First Amendment retaliation claim because he was not speaking as a citizen when he prepared the Incident Report or reported Zawadski's conduct to Kopko. Specifically, Defendants argue that Kocher prepared the Incident Report pursuant to his official duties with the Larksville Borough Police Department. Kocher first disputes Defendants' formulation of the applicable inquiry for whether he engaged in protected conduct. Kocher argues that the threshold question is whether his speech involved a matter of public concern, without addressing whether he spoke pursuant to his official duties. Restated, Kocher offers that he "simply needs to show this Court that his speech was a matter of public concern, which he has done since even Citizen Stevenson stated that the Mayor's behavior on the day in question was a matter of public concern." (Doc. 74, 5 n. 1.)
Kocher's position is inconsistent with Garcetti and ignores recent Third Circuit case law establishing that the threshold inquiry in a public employee free speech case is whether the employee's speech was made pursuant to his or her official duties. See, e.g., Morris, 487 Fed.Appx. at 39 ("as a threshold issue, we must determine whether the employee's speech was made pursuant to his or her official duties, and therefore was unprotected by the First Amendment, ..."); Brown v. Montgomery Cnty., 470 Fed.Appx. 87, 89 (3d Cir.2012) ("[the plaintiff's] reports were made pursuant to his official duties, and his statements do not receive First Amendment protection."); Fulmer v. Pennsylvania, 460 Fed.Appx. 91, 93 (3d Cir.2012) ("Garcetti directs us to consider, as a threshold question, whether the employee spoke pursuant to official duties."). Consistent with these decisions, the threshold issue in resolving Kocher's First Amendment retaliation claim is whether he was speaking as a private citizen when he informed Kopko of the confrontation or when he prepared the Incident Report. If the answer is yes, then, under Garcetti, the possibility of a First Amendment claim arises. See Garcetti, 547 U.S. at 418, 126 S.Ct. 1951.
Defendants argue that Kocher did not speak as a private citizen when he authored the Incident Report and/or informed Kopko of the Mayor's conduct on August 13, 2010. Defendants assert that Kocher prepared the Incident Report at the direction of his supervisors, Kopko and Edwards. And, the report was prepared on an official Larksville Borough incident
Defendants cite an unpublished opinion from the United States District Court for the District of New Jersey in support of their claim that Kocher prepared the Incident Report pursuant to his official duties. In Gattison v. Twp. of Irvington, No. 05-1759, 2007 WL 4591354, at *1 (D.N.J. Dec. 31, 2007), the plaintiff, a police officer, claimed that his direct supervisor requested him to alter a police report. The plaintiff refused. See id. The plaintiff then filed a report with Internal Affairs. See id. at *2. After he filed the report, the plaintiff claimed the defendants retaliated against him by filing insubordination charges and transferring him to a different position. See id.
The defendants' motion for summary judgment on the plaintiff's First Amendment retaliation claim was granted because the plaintiff "was acting within his employment duties in communicating the alleged misconduct of his fellow officers to appropriate police personnel." Id. at *4. Specifically, the district court noted that the plaintiff used a department report sheet to report the alleged police corruption and misconduct, the report was signed by the plaintiff using his official rank and badge number, and the plaintiff officer acknowledged that he had a duty to report illegal or unethical conduct. Id. The district court also rejected the plaintiff's argument that he was not acting within his employment duties because he did not have a duty to falsify police reports or cover up wrongful arrests. See id. In finding that the plaintiff had a duty to report misconduct, the district court reasoned:
Id. Defendants contend that these similarities compel the same conclusion in this case: Kocher prepared the Incident Report pursuant to his official duties as a Larksville Borough police officer.
In opposition, Kocher argues that Defendants' reliance on Gattison is misplaced. According to Kocher, the plaintiff in Gattison "conceded that if a police officer sees unethical or illegal conduct, the officer has a duty to report that individual." Id. at *4. In this case, however, Kocher claims that his list of job duties does not identify a duty to report "official misconduct of the mayor." (Kocher Dep., 267:13-19.) Thus, Kocher contends that Gattison is inapposite to the matter at hand because he "denied that he has a duty as a police officer to report the Mayor's misconduct." As a result, he concludes that the preparation of the Incident Report was private citizen speech. In addition, Kocher argues
While the Supreme Court has yet to "articulate a comprehensive framework for defining the scope of an employee's duties" for which First Amendment protection will not attach, the Court has indicated that "[t]he proper inquiry is a practical one." Garcetti, 547 U.S. at 424, 126 S.Ct. 1951. The Garcetti Court rejected "the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions." Id. "Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Id. at 424-25, 126 S.Ct. 1951. The Third Circuit has interpreted this passage as "escew[ing] the use of formal job descriptions to determine whether speech was made pursuant to an employee's official duties." Morris, 487 Fed.Appx. at 37.
Applying these principles, the record demonstrates that Kocher's complaint to Kopko and his authoring of the Incident Report occurred pursuant to his official duties as a Larksville Borough police officer. As noted, "whether a particular incident of speech is made within a particular plaintiff's job duties is a mixed question of fact and law." Foraker, 501 F.3d at 240; Baranowski v. Waters, No. 05-1379, 2008 WL 4000406, at *19 (W.D.Pa. Aug. 25, 2008) (interpreting "mixed question of fact and law" to mean that "the ultimate question of whether speech is made pursuant to a public employee's official duties is a question for the Court to decide, whereas the question of whether certain factual circumstances exist is a question amenable to resolution by a jury."). As a Larksville Borough police officer, Kocher was expected to investigate crimes, and to also make full and detailed reports of such crimes. Kocher was further required to prepare thorough and concise reports of all police activities. Kocher testified that he would prepare such reports after incidents occurred, which included preparing reports on occurrences when no individuals were arrested. (Kocher Dep., 19:4-20:24.) Kocher also believed Zawadski's conduct was unlawful and that he should have been arrested. (Id. at 78:8-12, 113:14-25.)
Kocher, nevertheless, asserts that he "does not have an official job duty reporting abusive behavior by a public official." (Plf.'s SMF, ¶ 9.)
Instead, applying the "practical" inquiry envisioned by Garcetti, the evidence establishes that Kocher was acting in his capacity as a police officer when he informed Kopko about Zawadski's conduct and authored the Incident Report. Here, Kocher prepared the Incident Report on an official Larksville Borough incident report form. The Incident Report included his badge number. And, when the Incident Report was completed, it was placed in a filing bin in the same manner as all other incident reports. Furthermore, it is undisputed that a private citizen could not access Larksville Borough's computer program to prepare a report on an official Larksville Borough form. Finding Kocher's authoring of the report to be part of his official duties is also consistent with his testimony that Zawadski engaged in unlawful behavior, because, as a police officer, Kocher was expected to investigate and prepare incident reports detailing unlawful activity.
Based on this record, Kocher's speech occurred pursuant to his official duties with Larksville Borough. Summary judgment will be granted to Defendants on the First Amendment retaliation claim.
Assuming, arguendo, that Kocher's speech was not within the scope of his official duties with Larksville Borough, Defendants
"An employee's speech addresses a matter of public concern when it can be `fairly considered as relating to any matter of political, social, or other concern to the community.'" See Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir.1993) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). Whether speech can be fairly characterized as addressing a matter of political, social, or other community concern requires consideration of the content, form, and context of the speech. Id. (citing Connick, 461 U.S. at 146-48, 103 S.Ct. 1684). "The content of the speech may help to characterize it as relating to a matter of social or political concern of the community if, for example, the speaker seeks to `bring to light actual or potential wrongdoing or breach of public trust' on the part of government officials." Id. (quoting Connick, 461 U.S. at 148, 103 S.Ct. 1684). "This means that public speech cannot `constitute merely personal grievances.'" Brennan v. Norton, 350 F.3d 399, 412 (3d Cir.2003) (quoting Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir.1994)). Thus, "speech disclosing public officials' misfeasance is protected while speech intended to air personal grievances is not." Swineford v. Snyder Cnty., 15 F.3d 1258, 1271 (3d Cir.1994).
Defendants argue that the Incident Report prepared by Kocher complains only about perceived mistreatment by his supervisor, i.e., Zawadski yelled at him. Defendants further characterize the Incident Report as merely addressing issues over the managerial prerogative of Zawadski, without setting forth any complaints about the practices or policies of the Larksville Borough Police Department. Relying on Bell v. City of Phila., 275 Fed.Appx. 157, 159 (3d Cir.2008), Defendants argue that Kocher's "complaints — which sought not to expose discriminatory or harassing practices or polices ... but [instead] complained solely about his own `abuse' and mistreatment by superiors and co-workers — were not a matter of public concern,..."
Conversely, Kocher argues that speech about a public official's misconduct is a matter of public concern pursuant to O'Donnell v. Yanchulis, 875 F.2d 1059 (3d Cir.1989), and Baldassare v. New Jersey, 250 F.3d 188 (3d Cir.2001). In O'Donnell, the plaintiff, the chief of police, claimed township supervisors retaliated against him after he refused to fix or withdraw citations issued against their friends and other select individuals. See O'Donnell, 875 F.2d at 1061. He subsequently informed a local television station of the demands of the supervisors. See id. at 1060. The Third Circuit found the allegations of "corrupt practices by government officials [to be] of the utmost public concern" as they seek to "bring to light actual or potential wrongdoing or breach of public trust." Id. at 1061 (citation and internal quotation omitted).
Similarly, in Baldassare, the plaintiff, an investigator in a county prosecutor's office, alleged that he was retaliated against for participating in an investigation of alleged criminal activity by other members of the office. See Baldassare, 250 F.3d at 192-93. The Third Circuit determined that the plaintiff's investigation constituted a matter of public concern because "our jurisprudence makes clear that an internal investigation into the alleged criminal actions of public employees `falls squarely within the core public speech delineated in Connick.'" Id. at 196-97 (quoting Swineford, 15 F.3d at 1271). Significantly, the court noted that the determination of whether the matter addresses an issue of
Unlike the plaintiffs in the authority relied on by Kocher, his speech in this case did not shed light on corrupt government practices or inform the community of breaches of the public trust. The Incident Report documented a confrontation between Kocher and Zawadski, witnessed by members of the public, that described an event where a uniformed police offer was mistreated and yelled at in public by the elected Mayor. The nature of the information set forth in the Incident Report did not identify such "corrupt practices" found by the Third Circuit in O'Donnell and Baldassare to address matters of public concern. Rather, as noted by Defendants, this situation is much more akin to the facts in Bell where the Third Circuit concluded that complaints about an individual's own "mistreatment by superiors and co-workers" were not a matter of public concern for First Amendment purposes. See Bell, 275 Fed.Appx. at 159.
Accordingly, as Kocher did not speak as a citizen on a matter of public concern, Defendants are entitled to summary judgment on the First Amendment retaliation claim.
To establish the requisite causal connection for a retaliation claim predicated on the First Amendment, the plaintiff "usually must prove one of two things: (1) an unusually suggestive time proximity between the protected activity and the allegedly retaliatory action; or (2) a pattern of antagonism coupled with timing to establish a causal link." DeFranco v. Wolfe, 387 Fed.Appx. 147, 155 (3d Cir.2010) (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007)).
Because Kocher has failed to demonstrate that he spoke as a citizen on a matter of public concern, it is unnecessary to explore the causation element of his First Amendment retaliation claim. Defendants' motion for summary judgment will be granted with respect to the First Amendment retaliation claim.
The Fourteenth Amendment of the United States 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. Kocher argues that Defendants deprived him of a liberty interest in his reputation.
The Supreme Court held in Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) that an individual has a protectable interest in reputation. "Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential." Id. at 437, 91 S.Ct. 507. Courts "subsequently clarified, however, that `reputation alone is not an interest protected by the Due Process Clause.'" Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.2006) (quoting Versarge v. Twp. of Clinton, 984 F.2d 1359, 1371 (3d Cir.1993)). But, a plaintiff may make out a due process claim for deprivation of a liberty interest in reputation by showing "`a stigma to his reputation plus deprivation of some additional right or interest.'" Dee v. Borough of Dunmore, 549 F.3d 225, 233-34 (3d Cir.2008) (quoting Hill, 455 F.3d at 236).
To satisfy the "stigma" prong, the purportedly stigmatizing statements must have been made publically and be false. Id. (citations omitted); see also Brown v. Montgomery Cnty., 470 Fed.Appx. 87, 91 (3d Cir.2012) (to establish the "stigma" prong, the employee must show: "1) publication of 2) a substantially and materially false statement that 3) infringed upon the reputation, honor, or integrity of the employee.").
The Third Circuit has noted that "[w]hat is required to satisfy the `plus' prong of the test in the public employment context is more equivocal." Hill, 455 F.3d at 237. However, "when a public employee bases his `plus' on government conduct that does not implicate a state law-created property interest, the employee nonetheless satisfies the `stigma-plus' test if he can establish that he was `defamed in the course of being terminated or constructively discharged.'" Dee, 549 F.3d at 234 n. 11 (quoting Hill, 455 F.3d at 238).
In moving for summary judgment, Defendants contend that no purportedly stigmatizing statements have been made public as a result of the conduct of the named Defendants.
Kocher argues that the stigmatizing charges were made publically on multiple occasions. First, he claims that the stigmatizing information was disseminated on September 21, 2010, the day he was terminated by the Larksville Borough Council. Second, Kocher argues that the stigmatizing information was made public when it was placed in his personnel file and when it was actually transmitted to a prospective employer. Third, he claims that it was made public when it was transmitted to the Unemployment Compensation Bureau in connection with his application for benefits. This claim will be addressed as to Larksville Borough and Individual Defendants separately because, as noted by Defendants, their conduct must all be viewed individually to determine if they participated in the alleged denial of Kocher's constitutional rights. See, e.g., Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.1996) ("The precedent in our circuit requires the district court to review the plaintiff's municipal liability claims independently of the section 1983 claims against the individual [defendants].").
Larksville Borough's liability for the Fourteenth Amendment liberty interest claim implicates the Supreme Court's decision in Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In Monell, the Supreme Court held that "a municipality cannot be held liable solely because it employs a tortfeasor-or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory." Monell, 436 U.S. at 691, 98 S.Ct. 2018. Instead, "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under
To establish a Monell claim against a municipality, "[a] plaintiff must identify the challenged policy, attribute it to the [municipality] itself, and show a causal link between execution of the policy and the injury suffered." Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir.1984) (citing Bennett v. City of Slidell, 728 F.2d 762, 767 (5th Cir.1984)); see also Kriss v. Fayette Cnty., 504 Fed.Appx. 182, 187 n. 2 (3d Cir.2012) ("plaintiff seeking to impose liability on a municipality under § 1983 must identify a municipal policy or custom that caused the plaintiff's injury."); Briston v. Cnty. of Allegheny, No. 08-1380, 2011 WL 635267, at *6 (W.D.Pa. Feb. 11, 2011) ("inability to advance facts sufficient to identify an existing policy ... precludes the ability to establish Monell liability.").
First, Kocher argues that stigmatizing information was made public on the day of his termination. This claim is simply not supported by the record. Here, the evidence shows that all discussions about Kocher's termination on September 21, 2010 occurred during a private executive session meeting. (Cresho Tr., 31:12-32:17.) Indeed, the Larksville Borough Secretary testified that discussions about Kocher's discharge and the Kopko Memorandum occurred during the executive session as "nothing would have been said derogatory in an open public meeting." (Id. at 32:19-33:9.) Kocher even testified that at the public meeting he attended, he could only recall that a motion was made to terminate his employment, the motion was seconded, and his termination was approved. (Kocher Dep., 126:18-127:14.) Kocher did not remember any other information being discussed at the public meeting about his discharge, and he similarly did not recall being accused of a crime during the public meeting. (Id. at 127:15-128:4.) Kocher, therefore, cannot establish the "stigma" prong of his "stigma-plus" claim with respect to discussions by Larksville Borough officials at the September 21, 2010 meetings. See, e.g., Knaub v. Tulli, 788 F.Supp.2d 349, 355 (M.D.Pa. 2011) ("remarks made to the board for the purpose of inducing Plaintiff's firing are not public and hence fail to satisfy that aspect of the stigma-plus test.").
Kocher next asserts that the stigmatizing accusations contained in the Kopko Memorandum were made public when they were placed in his personnel file since they were likely to be disseminated to a prospective employer. Kocher argues that this amounts to publication pursuant to the United States Court of Appeals for the Second Circuit's decision in Brandt v. Bd. of Co-op. Educ. Servs., 820 F.2d 41 (2d Cir.1987). In Brandt, the plaintiff claimed that the presence of sexual misconduct charges in his personnel file satisfied the "public disclosure" requirement for a deprivation of liberty interest claim because "prospective employers will want to know about his qualifications as a teacher, will gain access to the file, and `will most certainly not hire him' when they learn of the charges." Id. at 44.
Third Circuit precedent establishes that the presence of stigmatizing information in a personnel file, alone, is not sufficient publication to establish a deprivation of liberty interest in reputation under the Fourteenth Amendment. In Cooley v. Pa. Hous. Fin. Agency, 830 F.2d 469, 470 (3d Cir.1987), abrogated on other grounds by Foster v. Chesapeake Ins. Co., 933 F.2d 1207 (3d Cir.1991), the plaintiff was terminated from his employment with the defendant. The reasons for his discharge were outlined in a letter stating that his conduct on the job had not conformed to agency standards. The plaintiff commenced the action asserting, among other claims, a deprivation of his liberty interest predicated on the basis that "the termination letter from the PHFA to him was defamatory and was allegedly placed in his personnel file, thereby disseminating it to potential employers and foreclosing his freedom to pursue future employment." Id. at 473. The Third Circuit affirmed the district court's grant of summary judgment on the liberty interest claim to the defendant. See id. at 474-75. Specifically, the court noted that the plaintiff failed to offer "any evidence of actual dissemination of his termination letter or its contents to future employers." Id. at 474; but see Perri v. Aytch, 724 F.2d 362, 367 (3d Cir.1983) ("Perri alleges that the false accusation made in connection with her termination impugns her good character and reputation, is part of her personnel file, and can reasonably be expected to be communicated to prospective employers and prevent her from obtaining alternative employment. If true, these conditions would require the employer to provide procedural safeguards."). Likewise, no evidence was presented "with regard to the regular procedures of the agency in responding to requests by future employers." Cooley, 830 F.2d at 474. Thus, because the plaintiff failed to "proffer evidence sufficient to prove publication, a required element of his cause of action," the Third Circuit found summary judgment in favor of the defendant was warranted. Id. at 475.
The Third Circuit addressed a similar claim the following year in Copeland v. Phila. Police Dep't, 840 F.2d 1139 (3d Cir. 1988). In Copeland, the plaintiff claimed that the defendant deprived him of his liberty interest in reputation when information relating to his termination was placed in his personnel file. See id. at 1148. The plaintiff alleged that the presence of the information in his personnel file raised an inference that city intended to communicate the information to prospective employers, and that this inference was strengthened by the fact that he was unable to find employment for over a year following his termination. See id. The Third Circuit affirmed the district court's grant of summary judgment to the defendant because "[s]uch assertions are ... insufficient to defeat a motion for summary judgment. Copeland has thus failed to produce the evidence necessary to support his assertion that the city violated his liberty interest." Id.
Kocher, unlike the plaintiffs in Cooley and Copeland, has demonstrated the transmission of the allegedly stigmatizing information to a prospective employer.
An individual's conduct implements official policy or practice when:
Hill v. Borough of Kutztown, 455 F.3d 225, 246 (3d Cir.2006) (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 478-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir.2005); LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 125-26 (3d Cir. 2003)). Larksville Borough contends that no formal policy, act of a final policymaker, or ratification by a final policymaker can be found to be responsible for the transmission of Kocher's personnel file to Kingston Borough.
Larksville Borough argues that there is no direct causal link between a "municipal policy or custom" and the alleged deprivation of Kocher's liberty interest. See Brown v. Muhlenberg Twp., 269 F.3d 205, 214-15 (3d Cir.2001). In opposition, Kocher contends that Larksville Borough is liable for its failure to train Secretary Cresho and Kopko.
Kocher's failure to train theory fails for two reasons. First, it was raised for the first time in his brief opposing the instant motion for summary judgment. "[A] plaintiff may not expand his claims to assert new theories for the first time in response to a summary judgment motion." Desparois v. Perrysburg Exempted Village Sch. Dist., 455 Fed.Appx. 659, 666 (6th Cir.2012) (citing Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir.2007)); see also Dewees v. Haste, 620 F.Supp.2d 625, 635 (M.D.Pa.2009) ("to the extent Plaintiff is attempting to expand upon his original allegations through argument in his brief it is impermissible."); Anderson v. Consol-Pennsylvania Coal Co., 740 F.Supp. 1126, 1130 (W.D.Pa.1990) ("we will not allow plaintiffs to expand their theory of the case at this late date in an effort to avoid summary judgment."). Here, Kocher's Amended Complaint cannot be read to raise a failure to train theory of liability against Larksville Borough,
Second, even considering the failure to train theory, Kocher has not established "deliberate indifference" to his rights. See Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir.1999) ("Where, as here, the policy in question concerns a failure to train or supervise municipal employees, liability under section 1983 requires a showing that the failure amounts to `deliberate indifference' to the rights of persons with whom those employees will come into contact."). A three-part test applies to determine if a municipality's failure to train amounts to "deliberate indifference": "(1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights." Id. (citing Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992)).
Simply put, Kocher has not pointed to any evidence in the record that Larksville Borough's alleged failure to train amounted to "deliberate indifference" towards his constitutional rights. The record does not show that any of Larksville Borough's policymakers knew that its employees would confront a request by a prospective employer with a signed waiver and release to review a former employee's personnel file. See, e.g., Doe v. Luzerne Cnty., 660 F.3d 169, 180 (3d Cir.2011) ("The record does not demonstrate that any of the County's policymakers knew that its employees would likely confront a situation implicating the violation of one's right to privacy when videotaping certain activities."). Likewise, there is no evidence showing a history of Borough employee's mishandling requests for access to personnel files. See id. ("Similarly, the record is devoid of any evidence that there has been a history of County employees mishandling the production of training videos or videotaping in general; indeed, there is no evidence that there has ever been another incident like the one Doe experienced."). In fact, there has been no indication that there has been another incident like the one involving Kocher. Thus, any failure by Larksville Borough to train its employees did not amount to "deliberate indifference" to Kocher's constitutional rights. See id.
Second, a municipality may be liable where no rule has been announced as policy but federal law has been violated
In moving for summary judgment, Larksville Borough argues that there is no evidence of record that the Borough Secretary, the employee that granted Kingston Borough access to Kocher's personnel file, had final policymaking authority such that her conduct represented the official policy of Larksville Borough. Further, it also argues that to the extent that Kopko disseminated information to Kingston Borough, there is no evidence that he had final policymaking authority. Kocher disputes Larksville Borough's claim that Kopko lacked final policymaking authority.
In Santiago v. Warminster Twp., 629 F.3d 121, 134-35 (3d Cir.2010), the Third Circuit affirmed the district court's dismissal of the Monell claim against the township defendant because the plaintiff failed to allege sufficient facts that the police chief was a final policymaker under Monell. In affirming the dismissal of the claim, the Third Circuit noted that the complaint did not identify "what action [the police chief] took that could fairly be said to be policy." Id. at 135. In addition, the Third Circuit held that even if the plaintiff had adequately alleged that the police chief had final policymaking authority, it would not matter because "as a matter of Pennsylvania law, a township Police Chief is not a final policymaker." Id. at 135 n. 11 (citing 53 Pa. Stat. Ann. § 66902 (vesting authority over the "organization and supervision" of township police officers with the township board of supervisors); Hicks v. Warminster Township, No. Civ. A. 00-2895, 2001 WL 1159750, at *3 (E.D.Pa. July 26, 2001) ("In such townships, all of the policymaking power, including over the local police force, is vested in the town supervisors.")). Furthermore, "`the Supreme Court has forbidden courts from assuming that municipal policymaking authority lies somewhere other than where the applicable law purports to put it.'" Id. (quoting St. Louis v. Praprotnik, 485 U.S. 112, 125 n. 1, 126, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988)).
Santiago instructs against the presumption that all municipal police chiefs in the Commonwealth are final policymakers. And, the relevant portions of the Pennsylvania Borough Code indicate that a borough Police Chief is not a final policymaker. See 53 Pa. Stat. Ann. § 46123.1.
Lastly, a municipality may be liable "if an official with authority has ratified the unconstitutional actions of a subordinate, rendering such behavior official for liability purposes." McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir.2005) (citing Praprotnik, 485 U.S. at 127, 108 S.Ct. 915); see also LaVerdure, 324 F.3d at 125-26 (even if individual lacks final policymaking authority to bind the municipality, municipality may be liable if it delegates the individual the authority to act or if it acquiesced to the conduct). Ratification occurs only "`when a subordinate's decision is subject to review by the municipality's authorized policymakers [because] they have retained the authority to measure the official's conduct for conformance with their policies.'" Kelly v. Borough of Carlisle, 622 F.3d 248, 264 (3d Cir.2010) (quoting Praprotnik, 485 U.S. at 127, 108 S.Ct. 915). "`Simply going along with discretionary decisions made by one's subordinates, however, is not a delegation to them of the authority to make policy.'" Id. (quoting Praprotnik, 485 U.S. at 130, 108 S.Ct. 915).
Here, Kocher has failed to identify any evidence that Larksville Borough's policymakers were aware that Borough employees disseminated Kocher's information to Kingston Borough. Likewise, no evidence is shown that these employees were delegated authority to transmit such information. Indeed, the Borough Secretary testified that she did not contact Borough Council prior to providing Kingston Borough's investigator access to Kocher's personnel file. (Cresho Tr., 19:5-11.) At most, it can be said that Larksville Borough's policymakers went along with the
Based on the foregoing, Kocher has failed to establish that the dissemination of the contents of his personnel file to Kingston Borough occurred pursuant to a Larksville Borough policy, practice, or custom.
Kocher also claims that Individual Defendants are liable for the alleged deprivation of his liberty interest in reputation. A "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." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). "It is uncontested that a government official is liable only for his or her own conduct and accordingly must have had some sort of personal involvement in the alleged unconstitutional conduct." Argueta v. U.S.I.C.E., 643 F.3d 60, 71-72 (3d Cir.2011). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Id. at 72 (quoting Rode, 845 F.2d at 1207). Alternatively, a supervisor may also be held liable under § 1983 if it is shown that he or she "established and maintained a policy, practice or custom which directly caused [the] constitutional harm." A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004). Thus, supervisory liability may be imposed under § 1983 only if "the connection between the supervisor's directions and the constitutional deprivation [is] sufficient to demonstrate a plausible nexus or affirmative link between the directions and the specific deprivation of constitutional rights at issue." Santiago, 629 F.3d at 130.
As discussed above, there was no publication of any stigmatizing information at the Borough Council meetings when Kocher was terminated. Kocher, therefore, cannot establish a "stigma-plus" claim against Individual Defendants predicated on comments made about his termination on September 21, 2010 at the Borough Council meetings.
Pursuant to Cooley, 830 F.2d at 469, and Copeland, 840 F.2d at 1139, the
With regard to the transmission of the personnel file's contents to Kingston Borough, Individual Defendants contend that they are nevertheless entitled to summary judgment because: (1) they did not personally participate in the dissemination to Kingston Borough; and (2) the transmission was reasonable based on the waiver and release signed by Kocher.
As to Pekarovsky, the evidence of record establishes only that: (1) he told Kocher on August 14, 2010 that Zawadski was the boss and to follow his orders; and (2) he was a member of the Borough Council at the time Kocher's employment with Larksville Borough was terminated. (Kocher Dep., 91:2-92:10.) These actions do not demonstrate that Pekarovsky had personal involvement in the publication of the allegedly stigmatizing information in Kocher's personnel file to Kingston Borough.
The record is similarly devoid of any evidence that Zawadski disseminated the allegedly stigmatizing Kopko Memorandum. While Zawadski reviewed the Kopko Memorandum and went along with the recommendation for Kocher to be terminated, (Zawadski Tr., 242:16-20), Kocher has not cited any evidence that Zawadski participated in the dissemination of stigmatizing information to Kingston Borough. And, to the extent that he suggests Zawadski is liable as a supervisor for the conduct of Larksville Borough employees, Kocher has not identified any evidence that Zawadski "directed others to violate" his rights, or that he "as the person in charge, had knowledge of and acquiesced
Finally, with respect to Kopko, it is undisputed that he authored the allegedly stigmatizing document in Kocher's personnel file. While Kotchik guessed that he had Kopko's permission to view the personnel file, (Id. at 49:22-24, 97:23), he was provided with access only after the waiver and release was presented to Larksville Borough. (Id. at 43:21-44:6.) In that regard, it is uncontradicted that Larksville Borough permitted Kingston Borough to review the file only because of Kocher's signed waiver and release. (Cresho Tr., 19:10-11.) And, the evidence is clear that Kopko was not present when Kotchik reviewed the contents of the file. (Kotchik Dep., 45:14-16.) Based on this evidence, Kocher has not demonstrated that Kopko personally participated in the transmission of the allegedly stigmatizing information to Kingston Borough or directed others to disseminate the Kopko Memorandum.
The evidence presented in this case instead demonstrates that the allegedly stigmatizing Kopko Memorandum was provided to Kingston Borough by a Larksville Borough employee that is not a party to this action. As the Borough Secretary testified, she permitted Kotchik to review the personnel file's contents only after he presented a release and waiver signed by Kocher. (Cresho Tr., 19:10-11.) Furthermore, the only other Larksville Borough employee present when Kotchik reviewed the contents of the file was Edwards, another individual that is not a named defendant in this matter. (Kotchik Dep., 45:16.) Edwards obtained permission from Cresho, and not Kopko, prior to allowing Kotchik to inspect the file. (Edwards Dep., 79:3-8.) Because there is no evidence that Individual Defendants, as supervisors, authorized or knowingly acquiesced to this transmission, Individual Defendants are not responsible for the actions of Cresho or Edwards.
Accordingly, as Individual Defendants were not personally involved in disseminating the information to Kingston Borough, Kocher has failed to establish the necessary publication element of his "stigma-plus" claim with respect to these Defendants. Individuals Defendants are therefore entitled to summary judgment on Kocher's Fourteenth Amendment claim.
Kocher also argues that "Defendants should not be allowed to shield themselves from their actions based on an unenforceable waiver since it is against public policy, Defendants are not named, and there was no consideration that is required for every contract made in the state of Pennsylvania." (Doc. 74, 26.) Specifically:
(Id. at 27.)
Upon review of the parties' submissions, Defendants have not claimed that the waiver and release absolved them from all liability in this action. Instead, they cite the waiver and release only to support their argument that they acted reasonably in permitting Kotchik to review the contents of the personnel file. Thus, whether the waiver and release absolved Defendants of liability need not be addressed
Even if any Individual Defendants participated in transmitting the personnel file to Kingston Borough, summary judgment would still be warranted because they are entitled to qualified immunity. The Supreme Court has established a two-part analysis that governs whether an official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). "Thus, we ask: (1) whether the facts alleged by the plaintiff show the violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the alleged misconduct." Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir.2010). Courts may address the two Saucier prongs in any order, at their discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). If the plaintiff fails to satisfy either prong, the defendant is entitled to judgment as a matter of law. See id. at 232, 129 S.Ct. 808.
A legal right is clearly established if "its contours [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). "This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Id. (citations omitted). This prong "of the qualified immunity analysis therefore `turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.'" Montanez v. Thompson, 603 F.3d 243, 251 (3d Cir.2010) (quoting Pearson, 555 U.S. at 243, 129 S.Ct. 808). "`[I]f the law did not put the
A clearly established right does not require that "there be binding precedent from this circuit" when "the unlawfulness of the defendant's conduct would have been apparent to a reasonable official based on the current state of the law." Brown v. Muhlenberg Twp., 269 F.3d 205, 211-12 n. 4 (3d Cir.2001). Thus, "`the absence of a previous decision from our court on the constitutionality of the conduct at issue is not dispositive' in determining whether the particular constitutional right at issue was clearly established at a particular time, ..." Pro v. Donatucci, 81 F.3d 1283, 1292 (3d Cir.1996) (quoting Bieregu v. Reno, 59 F.3d 1445, 1459 (3d Cir. 1995)). In that regard, the Third Circuit "routinely considers decisions by other Courts of Appeals as part of [the] `clearly established' analysis when we have not yet addressed the right asserted by the plaintiff." Williams v. Bitner, 455 F.3d 186, 192-93 (3d Cir.2006) (citing Kopec v. Tate, 361 F.3d 772, 777-78 n. 6 (3d Cir.2004); Brown, 269 F.3d at 211-12 n. 4).
Here, placing the Kopko Memorandum in Kocher's personnel file did not violate his constitutional rights, see Copeland, 840 F.2d at 1148; Cooley, 830 F.2d at 474-75, because "the mere `presence' of information in a personnel file, without more, is insufficient to require due process." Sciolino v. City of Newport News, 480 F.3d 642, 648 (4th Cir.2007) (citing Copeland, 840 F.2d at 1148).
Furthermore, the claimed unlawfulness of any dissemination by Individual Defendants of information in Kocher's personnel file pursuant to a signed waiver and release was not clearly established in 2010. Kocher claims that Individual Defendants are not entitled to qualified immunity by simply stating that a "stigma-plus" claim is clearly established. This statement, however, fails to "define the right allegedly
In this case, a reasonable official would not have believed that an individual's liberty interest in reputation would be violated by disclosing the contents of a personnel file pursuant to a signed waiver and release. While Kocher identifies a case which contemplated that an employee's liberty interest in reputation could be violated in such a scenario because he or she would be compelled to provide access to the personnel file, see Brandt v. Bd. of Co-op. Educ. Servs., 820 F.2d 41 (2d Cir.1987) ("In applying for jobs, if Brandt authorizes the release of his personnel file, the potential employer would find out about the allegations of sexual misconduct and probably not hire him. If he refuses to grant authorization, that, too, would hurt his chances for employment"), there is a "dearth of precedent of sufficient specificity (and factual similarity to this case) ... to say that the constitutional right ... alleged [to be] violated was clearly established." McKee v. Hart, 436 F.3d 165, 173 (3d Cir.2006). Thus, permitting a prospective employer to review the contents of Kocher's personnel file pursuant to the signed waiver and release was objectively reasonable in light of the legal rules established at that time. Qualified immunity, therefore, provides an additional reason for granting Individual Defendants' motion for summary judgment on the "stigma-plus" claim.
Kocher's remaining claims are under state-law for defamation and false light invasion of privacy. District courts have supplemental jurisdiction "over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A district court may refuse to exercise such jurisdiction where, as in the instant case, "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In fact, "where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so." Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir.1995).
Here, there is no affirmative justification for exercising supplemental jurisdiction beyond any ordinary inconvenience associated with dismissal on this ground. Therefore, as Kocher's constitutional claims will be dismissed, I will decline to exercise supplemental jurisdiction over the remaining state-law claims. These claims will be dismissed without prejudice to allow Kocher to re-file them in state court if he so desires.
For the above stated reasons, Defendants' motion for summary judgment will be granted as to Plaintiff Scott Kocher's § 1983 claims, and judgment will be entered in Defendants' favor on these claims. Supplemental jurisdiction over the remaining state-law claims will be declined, and the defamation and false light invasion of privacy claims will be dismissed without prejudice.
An appropriate order follows.
(Kocher Dep., 267:13-19.)
Devore, 2005 WL 2178909, at *6 (quoting Cirillo, 862 F.2d at 451). In Devore, a case involving a release similar to that in this action, the former employer defendant claimed "with respect to the prospective employment with the PSP, ... the waiver signed by the Plaintiff, that permitted the City to release his personnel information to the PSP, absolved it from all liability." The district court denied the defendant's motion for summary judgment due to the "bizarre circumstances" of the case, which included the disclosure of discipline records that the defendant "should not have had in its possession" pursuant to a prior settlement agreement between the parties.
Sciolino, 480 F.3d at 648.
