William Gilson v. Pennsylvania State Police, et al

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, JORDAN and SHWARTZ, Circuit Judges. Total Pages: 14. Judge: SMITH Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2144
_____________
WILLIAM GILSON,
Appellant
v.
PENNSYLVANIA STATE POLICE, an agency of the
Commonwealth of Pennsylvania; MARK SCHAU;
KYLE TETER; LISA S. CHRISTIE; WILLIAM SIBBALD;
DEBRA FACCIOLO; FRANK NOONAN
_____________

On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 1-12-cv-00002
District Judge: The Honorable Mark R. Hornak
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 12, 2017
Before: SMITH, Chief Judge, JORDAN, and SHWARTZ, Circuit Judges
(Filed: January 23, 2017)
_____________________
OPINION*
_____________________
SMITH, Chief Judge.
William Gilson appeals the order of the District Court granting summary judgment
in favor of his former employer, the Pennsylvania State Police (“PSP”) and related

*

This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute
binding precedent.

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individual defendants, on his claims of deprivation of due process and gender
discrimination arising from his termination from the PSP. We will affirm.
I.
Trooper Gilson was employed by the PSP from 1994 to 2011. On August 17,
2009, Gilson and others, including Trooper William Sibbald, Jr., responded to an incident
involving the involuntary commitment of a young man. Sandra Grgic, a female crisis
services worker, was also present at the scene. It is undisputed that Trooper Gilson
briefly had physical contact with Grgic, although the extent of and nature of this contact
is disputed. According to Gilson, he tapped Grgic’s elbow and asked her a question
about where the individual being committed was to be taken. According to Grgic, Gilson
placed his left arm around her waist and pulled her toward himself.
Grgic called the PSP and made a complaint on August 24, 2009. The PSP’s
Internal Affairs Division subsequently conducted an investigation, led by Sergeant Mark
Noce. Sergeant Noce interviewed Grgic, Gilson, Sibbald, and others who were present at
the scene of the incident. Noce interviewed Gilson twice and, before each interview,
Noce read to Gilson a formal “Administrative Warning, which stated, among other
things, “you are required to answer questions truthfully and completely or you may be
subjected to administrative action.” App. 1043. Gilson flatly, and repeatedly, denied
having touched Grgic on her waist, maintaining that he had only touched her elbow.
According to Noce, Grgic “described the touching as unwanted, inappropriate, and on a
personal area of her body.” App. 1003. Sergeant Noce determined that no one else had
observed the incident between Gilson and Grgic, except Trooper Sibbald. Grgic’s and

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Sibbald’s accounts of the incident differed only in that Sibbald stated that Grgic had
quickly pushed herself away from Gilson, while Grgic said that she had walked away.
Sergeant Noce submitted a report of his investigation (the “IAD Report”), dated
November 23, 2009, to Trooper Gilson’s commanding officer, Captain Mark Schau. On
December 8, 2009, Captain Schau issued a Summary Report to Trooper Gilson, which
summarized the investigation, stated that he had determined that the allegation had merit
and that he was considering taking disciplinary action against Gilson. The Summary
Report informed Gilson that, pursuant to PSP procedures, he could request a meeting “for
the purpose of offering any justification” or “mitigating information.” App. 1063. A
copy of the IAD Report was attached to the Summary Report.
Trooper Gilson’s pre-disciplinary conference was held on December 11, 2009.
Captain Schau was unable to attend and arranged for Operations Lieutenant Bradley
Allen to meet with Trooper Gilson. Prior to the conference, Captain Schau had drafted a
Disciplinary Action Report (“DAR”), which he instructed Lieutenant Allen to issue to
Gilson if Gilson failed to “bring anything forward” at the conference. See App. 9.
Lieutenant Allen issued the DAR to Gilson following the conference on December 11,
having determined that Gilson had nothing additional to offer regarding his conduct. The
DAR stated, among other things, “I have determined the allegation of Improper On-Duty
Conduct against you is sustained. You were also found to be less than truthful during
several administrative interviews conducted during this investigation.” App. 1065.
Following a series of internal memoranda in which various PSP officials reviewed
and analyzed the IAD Report, Sergeant Kyle Teter of the PSP Department Discipline

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Office issued a Notice of Disciplinary Penalty to Gilson on November 9, 2010. The
Notice stated that it was the Discipline Office’s recommendation that he be terminated
from the PSP.

The Notice further indicated that Trooper Gilson’s conduct was in

violation of seven State Police Field Regulations, including regulations titled
“Discrimination or Harassment,” “Sexual Impropriety,” and “Providing False
Information.” App. 1211. Thereafter, Trooper Gilson, who had until this point continued
to perform his duties as usual, was suspended without pay. He initiated arbitration
proceedings.
Following an arbitration hearing held on January 6, 2011, Arbitrator Steven M.
Wolf issued an Opinion and Award in favor of the PSP on May 2, 2011. At the
arbitration, the PSP framed the issue as whether Gilson had committed a “serious act of
deception” during the investigation, while counsel for the Pennsylvania State Troopers
Association (“PSTA”), appearing on behalf of Gilson, framed the issue as whether Gilson
had violated the relevant Field Regulations. Under the terms of the collective bargaining
agreement (“CBA”) governing Gilson’s employment relationship with the PSP, “the
commission of a serious act of deception”1 was an infraction for which “the proper level
of discipline is termination of employment, notwithstanding any mitigating
circumstances.” App. 1225.
The arbitrator agreed with the PSP’s framing of the issue, noting that the “serious
act of deception” provision “is what the Commonwealth principally relies upon to
Specifically, the CBA stated: “The commission of a serious act of deception during a
criminal, civil or administrative investigation or proceeding, when under a specific,
official obligation to be truthful, involving intentional (1) lying; (2) fabrication; (3)
misleading acts or words; (4) civil or criminal fraud; or (5) perjury.” App. 1225.
1

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support its dismissal of [Gilson].” App. 1196. The arbitrator determined that Grgic’s
account of the incident was credible, and that Gilson’s was not. He acknowledged the
PSTA’s argument that the term “serious act of deception” was ambiguous, but
determined that it was “prudent to conclude that a State Trooper’s conscious choice to
fabricate testimony well over a dozen times during the course of an IAD investigation
(most of those times being conclusive, but on occasion equivocating by not recalling)
constitutes a ‘serious act of deception.’”

App. 1200.

Accordingly, the arbitrator

concluded that the PSP’s decision to terminate Gilson’s employment was supported by
the CBA, and he upheld the decision.
On May 4, 2011, Major Lisa Christie, Department Discipline Officer, sent a
memorandum to Captain Schau and Gilson. It summarized the events which led to
Gilson’s dismissal—which included a statement of the Field Regulations that Gilson was
found to have violated—and indicated that the arbitration award had denied Gilson’s
grievance challenging the penalty of dismissal. In September 2011, this memorandum
was forwarded by Debra Facciolo, the Director of the PSP’s Human Resource
Management Division, to the Pennsylvania Department of Labor and Industry, along with
copies of the arbitrator’s award and the November 2010 Notice of Disciplinary Penalty.
Gilson claims that several prospective employers declined to offer him job offers after
inquiring about him with the Department of Labor and Industry.
Gilson filed this action on January 6, 2012, bringing claims against the PSP, its
Commissioner, Captain Schau, Sergeant Teter, Major Christie, Trooper Sibbald and Ms.
Facciolo (collectively referred to herein as “the PSP Defendants”). As is relevant here,

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Gilson claimed, under 42 U.S.C. § 1983, that the PSP Defendants deprived him of due
process in violation of his federal constitutional rights because they failed to notify him
that he had been accused of a “serious act of deception,” because they failed to notify him
that he had been charged with sexual harassment or sexual misconduct, and because the
term “serious act of deception” was unconstitutionally vague. He also claimed that the
PSP Defendants deprived him of his protected liberty interest in his reputation by
publishing the May 4, 2011 Christie memorandum to the Pennsylvania Department of
Labor and Industry, which caused state employers to refuse to hire him. Finally, Gilson
claimed that the PSP subjected him to gender discrimination and a hostile work
environment in violation of Title VII of the Civil Rights Act of 1964 and the
Pennsylvania Human Relations Act (“PHRA”).
On March 30, 2016, the District Court granted summary judgment in favor of the
PSP Defendants on all counts. The Court concluded that Gilson had received adequate
pre-deprivation and post-deprivation process, that he could not establish a claim for
deprivation of his liberty interest in his reputation because the May 4, 2011 memorandum
did not contain false information, that the “serious act of deception” language was not
vague as applied, and that Gilson had failed to set forth sufficient evidence to withstand
summary judgment on his claims of gender discrimination. This appeal followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367, and
we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over an
order granting summary judgment, and summary judgment is proper when “the movant

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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); Mancini v. Northampton Cty., 836
F.3d 308, 313 (3d Cir. 2016). “If the non-moving party fails sufficiently to establish the
existence of an essential element of its case on which it bears the burden of proof at trial,
there is not a genuine dispute with respect to a material fact and thus the moving party is
entitled to judgment as a matter of law.” Mancini, 836 F.3d at 313-14 (internal quotation
marks omitted).
III.
Pursuant to 42 U.S.C. § 1983, an individual has a private right of action to redress
the deprivation of a right secured by the United States Constitution, where the deprivation
is committed by one acting under color of state law. See 42 U.S.C. § 1983; Harvey v.
Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011). The Due Process Clause
“prohibits a State from ‘depriv[ing] any person of life, liberty, or property, without due
process of law.’” Mancini, 836 F.3d at 315 (alteration in original) (quoting U.S. Const.
amend. XIV, § 1).
A.

Due Process Claims

In Schmidt v. Creedon, we determined that (absent extraordinary circumstances)
due process entitles an individual with a protected property interest in continued
employment “to a pre-suspension or pre-termination hearing – albeit a brief and informal
one.” 639 F.3d 587, 596 (3d Cir. 2011). This is the case even when post-deprivation
grievance procedures are adequate, after the fact, to provide redress for erroneously
suspended employees.

Id. at 597.

This hearing, “though necessary, need not be

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elaborate.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985); see Schmidt,
639 F.3d at 596. The employee is “entitled only to ‘notice of the charges against him, an
explanation of the employer’s evidence, and an opportunity to present his side of the
story.’” Schmidt, 639 F.3d at 596 (quoting Loudermill, 470 U.S. at 545).
For example, in Gniotek v. City of Philadelphia, 808 F.2d 241 (3d Cir. 1986),
police officers were suspended after in-court testimony indicated that the officers had
taken bribes. Prior to suspension, each officer was served with a notice, advised that he
had been identified as the recipient of bribes in court testimony, and given a chance to
make a statement. Id. at 242. We held that this notice comported with due process,
because it was sufficient to “g[i]ve [the officer] notice of the charges and nature of the
evidence against him,” and was of sufficient specificity “to allow [the officer] the
opportunity to determine what facts, if any, within his knowledge might be presented in
mitigation of or in denial of the charges.” Id. at 244.
Likewise, in Copeland v. Philadelphia Police Department, 840 F.2d 1139, 1142
(3d Cir. 1988), a police officer was informed that drug test results showed that he had
used marijuana, and he was given an opportunity to explain the results. We determined
that the officer’s due process rights were not violated because the information provided
“was sufficient to fulfill the due process requirement that he be apprised of ‘the substance
of relevant supporting evidence’ against him.” Id. at 1145 (quoting Brock v. Roadway
Express, Inc., 481 U.S. 252, 265 (1987)). We also held that it was not violative of due
process requirements for the city to inform the officer that it “intended to suspend him
with intent to dismiss” only at the end of the meeting, or for the city to prepare formal

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charges only after he had been dismissed. Id. at 1145-46. We observed that the formal
charge was “based on the same information previously made available to [the officer],
which he had the opportunity to refute,” and that “[t]he fact that the specific charge was
drafted after he had already been terminated does not constitute a violation of [the
officer’s] right to procedural due process under the present circumstances.” Id.
In this case, the District Court correctly concluded that Gilson’s constitutional
right to procedural due process was not violated because, prior to depriving Gilson of his
protected property interest in continued employment, the PSP provided him with all of
the pre-deprivation process that was constitutionally required: notice of the allegations
against him, an explanation of the evidence, “and an opportunity to present his side of the
story.” Loudermill, 470 U.S. at 546; Schmidt, 639 F.3d at 596. At his interviews in
connection with the investigation, Gilson was informed of the allegations against him,
informed about what others had said in connection with the investigation, and provided
with an opportunity to respond. On December 8, 2009, Gilson received the Summary
Report, which included a copy of the full IAD Report, and he had the opportunity to
present his own side of the story at the pre-disciplinary conference on December 11.
Gilson claims that the process was deficient because he was not adequately
informed that he was being charged with lying during the investigation or that he would
be accused of having committed a “serious act of deception.” It is undisputed, however,
that Gilson was warned that he was required to answer questions truthfully in connection
with the investigation, and that he could be subject to administrative action for lying. In
fact, before each of his interviews with Noce, Gilson signed a copy of this Administrative

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Warning and checked a box affirming that he understood it. Also, the Summary Report
made clear that the PSP considered the allegation against Gilson to have “merit,” and, in
this context, that necessarily meant that the PSP did not consider Gilson’s version of
events to be truthful. Gilson was on further notice that lying during the investigation
could lead to his dismissal because the CBA, through a Special Order issued to all
members of the PSP in 2005, specifically stated that termination was the proper discipline
for lying “during . . . administrative investigation or proceeding.”

App. 721.

Accordingly, at the pre-disciplinary conference on December 11, 2009, Gilson was aware
that the PSP considered him to have lied during the investigation, he was aware of the
statements of other witnesses contradicting his story, and he was given an opportunity to
explain and respond.2 In addition, immediately after the conference, and nearly a year
before his suspension and eventual dismissal, Gilson received a copy of the DAR which
stated that Gilson was “also found to be less than truthful during several administrative
interviews conducted during this investigation. App. 1065. The requirements of due
process were met.
Gilson further claims that the process was deficient because the Summary Report
did not provide notice that the PSP considered his conduct to constitute harassment and
sexual impropriety. Just as in Copeland, however, those formal charges were “based on

Gilson argues that the “lack of specificity” with respect to explicit allegations of lying
or a “serious act of deception,” “did not allow [him] the opportunity to determine what
facts, if any, within his knowledge might be presented in mitigation of or in denial of the
charges.” See Blue Br. at 34 (internal quotation marks omitted). It is unclear, however,
what other facts Gilson could have presented in mitigation of or in denial of the charge of
lying, that he did not already have the opportunity and incentive to bring forward at the
pre-disciplinary conference. At that time, he had sufficient notice and opportunity to
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the same information previously made available to [Gilson], which he had the
opportunity to refute,” see 840 F.2d at 1145-46, and Gilson acknowledges that he was
fully informed of the relevant factual allegations. The fact that the formal charges were
prepared only after the pre-deprivation conference does not signal a violation of due
process. See id. The purpose of a pre-deprivation hearing is not to “definitively resolve”
whether discipline is appropriate, or whether particular charges are appropriate given the
facts, but instead is an “initial check against mistaken decisions – essentially, a
determination of whether there are reasonable grounds to believe that the charges against
the employee are true and support the proposed action.” Schmidt, 639 F.3d at 596-97
(quoting Loudermill, 470 U.S. at 545).
Because the PSP provided Gilson with the required notice and opportunity to be
heard prior to his suspension, we will affirm the District Court’s order rejecting Gilson’s
claims for deprivation of due process.3
B.

Liberty Interest in Reputation

Gilson contends that the PSP Defendants deprived him of his liberty interest in his
reputation when they published Major Christie’s May 4, 2011 memorandum to the

present whatever facts and evidence he had to support his version of events of August 17
(i.e., to prove that he was not lying).
3
Gilson does not argue that the post-deprivation grievance and arbitration procedures
were insufficient to protect his right to due process, nor does he argue that they were not
followed. Such a claim would, in any event, be unavailing. See Dykes v. Se. Pa. Transp.
Auth., 68 F.3d 1564, 1565 (3d Cir. 1995). Notably, Gilson failed to avail himself of the
opportunity to appeal the arbitrator’s decision in state court, see Pa. State Police v. Pa.
State Troopers Ass’n, 656 A.2d 83, 89-90 (Pa. 1995) (describing the standard of review
for grievance arbitration awards), and we have held that “[i]n order to state a claim for
failure to provide due process, a plaintiff must have taken advantage of the processes that
are available to him or her, unless those processes are unavailable or patently
inadequate.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).
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Department of Labor and Industry, which thereafter provided it to potential employers.
While “reputation alone is not an interest protected by the Due Process Clause,” our
Court has held that an employee may pursue a due process claim for deprivation of his
liberty interest in his reputation “when an employer creates and disseminates a false and
defamatory impression about the employee in connection with his termination[.]” Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (quotation marks omitted). To
succeed on such a claim, the employee must establish “a stigma to his reputation plus
deprivation of some additional right or interest.” Id. To show “stigma,” “it must be
alleged that the purportedly stigmatizing statement(s) (1) were made publicly, and
(2) were false.” Id. (internal citations omitted).
The District Court correctly concluded that Gilson could not show “stigma,”
because the May 4, 2011 memorandum did not contain false statements.

The

memorandum accurately recounted the events that culminated in Gilson’s ultimate
dismissal, and accurately stated the Field Regulations on which Gilson’s discipline was
based. It did not make any representations regarding the exact findings of the arbitrator;
it merely stated, correctly, that Gilson’s grievance was denied following arbitration.
Because the statements that Gilson contends were stigmatizing were not, in fact, false, the
Court properly granted summary judgment on this claim to the PSP Defendants.
C.

Vagueness

Gilson also contends that the “serious act of deception” provision in the CBA is
void for vagueness because he did not know its meaning, was not trained on its meaning,
and was not made aware that repeated denials of an accusation could constitute a serious

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act of deception. “In a void-for-vagueness challenge, we must ensure that a statute or
standard is fair in that it is not so vague that a party would not know what conduct is
prohibited.” Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 166-67 (3d Cir.
2008). A standard is unconstitutionally vague if its terms are “so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application.” San Filippo v. Bongiovanni, 961 F.2d 1125, 1136 (3d Cir. 1992) (quoting
Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926)). This inquiry is conducted “on
a case-by-case basis, and the party opposing the statute or standard must show that it is
vague as applied to him.” Borden, 523 F.3d at 167.
In this case, the District Court properly concluded that the “serious act of
deception” language was not unconstitutionally vague as applied to Gilson. Although
Gilson correctly points out that reasonable minds could differ as to the meaning of
“serious,” the provision is not “so vague that a party would not know what conduct was
prohibited.” See id. at 166-67. The relevant paragraph of the CBA made clear that the
provision is applicable to conduct that takes place “during a[n] . . . administrative
investigation” when “under a specific, official obligation to be truthful” and when the
conduct involves “intentional [] lying.” App. 1225. This was sufficient to inform Gilson
that intentionally (and repeatedly) lying, during interviews that were part of his official
administrative investigation, was prohibited and could result in his dismissal without
consideration of mitigating circumstances, as indicated in the CBA.

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D.

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Discrimination Claims

Gilson argues that he was targeted for discrimination based on his gender, in
violation of Title VII and the PHRA. “Title VII makes it an ‘unlawful employment
practice for an employer . . . to discriminate against any individual . . . , because of such
individual’s race, color, religion, sex, or national origin.’” Connelly v. Lane Constr.
Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting 42 U.S.C. § 2000e–2(a)(1)). We
interpret claims under the PHRA “coextensively with Title VII claims.” Atkinson v.
Lafayette Coll., 460 F.3d 447, 454 n.6 (3d Cir. 2006).
Here, even assuming that Gilson could establish a prima facie case of gender
discrimination (an issue seriously in doubt), the District Court properly granted summary
judgment in favor of the PSP Defendants because the record is devoid of any evidence
from which a factfinder could conclude that the PSP’s legitimate, nondiscriminatory
reason for Gilson’s termination was pretext for gender discrimination. See Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Likewise, even if Gilson could show that he
suffered intentional discrimination because of his sex, his hostile work environment claim
fails because, as the District Court recognized, he failed to present sufficient evidence
from which a factfinder could conclude that he suffered from discrimination that was
“severe or pervasive.” See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d
Cir. 2013).
IV.
We will affirm the order of the District Court granting summary judgment in favor
of the PSP Defendants.
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