ROSSITER v. CITY OF PHILADELPHIA et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 12/2/15. 12/2/15 ENTERED AND COPIES E-MAILED.(gs)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES H. RAMSEY,
This 2nd day of December, 2015, it is hereby ORDERED that Defendant’s Motion for
Summary Judgment is DENIED. From the Court’s review of all supporting papers and exhibits,
I am persuaded that Defendant is not entitled to qualified immunity, and that there is a genuine
issue of material fact that precludes a grant of summary judgment.
I. Background 1
Plaintiff is a Philadelphia police officer who was terminated for alleged overtime abuses
following Defendant’s issuance of a Commissioner Direct Action on June 18, 2012. Plaintiff
challenged the termination in an arbitration proceeding and was reinstated on April 2, 2013; he
then brought the instant action on June 18, 2013, alleging five different claims related to his
termination. The Court dismissed all but one of those claims, leaving a claim that Plaintiff was
terminated in violation of his First Amendment right to associate with the police union, the
Fraternal Order of Police (“FOP”). Defendant now argues that he is entitled to qualified
immunity for his actions and moves for Summary Judgment on the retaliation claim.
A more detailed history of the case may be found in the Court’s prior opinion on Defendant’s Motion to Dismiss,
Document No. 13.
II. Qualified Immunity
Defendant argues that Plaintiff has failed to define the contours of the First Amendment
right that he allegedly violated, and therefore Defendant is entitled to qualified immunity because
he could not reasonably know that his actions would violate Plaintiff’s rights. Def. Mem. in
Supp. of Mot. for Summary J. at 12–17. However, this raises an issue that the Court already
addressed in its prior ruling on Defendant’s Motion to Dismiss. As set forth in Judge Slomsky’s
earlier opinion, a plaintiff may state a claim for First Amendment retaliation by proving: (1) he
engaged in a constitutionally protected activity, (2) he suffered a retaliatory action, and (3) there
was a causal link between the two. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir.
2006) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). Whether a plaintiff’s conduct
was “constitutionally protected” is a question of law for the Court. Baldassare v. State of N.J.,
250 F.3d 188, 195 (3d Cir. 2001) (citing Waters v. Churchill, 511 U.S. 661, 668 (1994)). It was
clearly established at the time of the events in question that association with a union was such a
protected activity. See, e.g., Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 465
(1979) (“The public employee surely can associate ... freely ..., and he is protected by the First
Amendment from retaliation for doing so.”); Labov v. Lalley, 809 F.2d 220, 222–23 (3d Cir.
1987) (“Plainly efforts of public employees to associate together for the purpose of collective
bargaining involve associational interests which the first amendment protects from hostile state
Defendant argues that Plaintiff was merely a passive member of a union, so he has not
engaged in the sort of union-related speech or assembly sufficient to trigger the protections of the
First Amendment. Def. Mem. In Supp. Mot. Summary J. at 15–16. Although Defendant cites
examples of cases in which plaintiffs asserting retaliation claims held more of a leadership role
in their respective unions than Plaintiff did in this case, Defendant does not cite any precedential
cases that require such a role in order to state a retaliation claim. Def. Mem. In Supp. Mot.
Summary J. at 15–16. Defendant appears to argue that Plaintiff’s association was so minimal
that he cannot establish the causal connection between his association and the retaliatory action
necessary to prove his claim. I view this as a dispute about the sufficiency of the evidence, not a
dispute about the legal validity of the underlying constitutional claim. I will therefore deny
qualified immunity and apply the standard of review appropriate for Summary Judgment.
II. Summary Judgment
In order to establish the causal link between his protected activity and his termination,
Plaintiff has the burden of demonstrating that the protected activity was a substantial or
motivating factor in the alleged retaliatory action. Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274 (1977); Swineford v. Snyder County Pa., 15 F.3d 1258, 1270 (3d Cir.1994).
Defendant can then rebut the claim by demonstrating he “would have reached the same decision
... even in the absence of the protected conduct.” Mt. Healthy, 429 U.S. at 287; see also
Swineford, 15 F.3d at 1270 (citing Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.1983)).
These are questions for the finder of fact. Baldassare, 250 F.3d at 195. Summary
judgment is only appropriate if “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. From the Court’s review
of all supporting papers and exhibits, I am persuaded that there is a genuine dispute regarding
whether Plaintiff’s protected conduct was the but-for cause of Defendant’s conduct in
terminating him via a Commissioner’s Direct Action.
Plaintiff has provided several pieces of evidence that reflect a link between his union
association and his termination, including evidence that: the FOP represented Plaintiff in several
discussions and negotiations with the Police Department surrounding the charges against
Plaintiff; the FOP filed a grievance asserting that the Deputy Police Commissioner threatened to
terminate Plaintiff if the FOP would not withdraw its grievance in an unrelated matter; Plaintiff
was terminated only four days after that meeting via a Commissioner’s Direct Action; and
Ramsey’s use of a Commissioner’s Direct Action under the circumstances was described by
Deputy Commissioner Gaittens as “very unusual.” Dep. of John McGrody, Def.’s Ex. C at 30:8–
22, 33:17–34:2, 49:22–50:5; Dep. of John Gaittens, Def.’s Ex. D at 28:24–30:3; June 14 Unfair
Labor Charge, Def.’s Ex. O. This evidence supports Plaintiff’s contention that there was a
strong nexus between his termination and his association with broader union activities and
Commissioner Ramsey has also produced contrary evidence, including an affidavit
saying he dismissed Plaintiff because of “the egregious nature of the overtime abuse claims”—
not in retaliation for his association with the FOP—and that he was not even aware of the
meeting in which the FOP was threatened and Plaintiff was allegedly used as a bargaining chip.
Commissioner Ramsey Aff., Def. Ex. E. at ¶¶ 12, 14.
However, at summary judgment, “where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1362–63 (3d Cir. 1992). The summary judgment “trial ‘on paper’
differs from a trial before a jury in one significant detail: ‘at the summary judgment stage the
judge's function is not … to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.’ ” Id. at 1363 (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986)). The summary judgment standard is much like the
“reasonable jury” directed verdict standard. Id. at 1362. Plaintiff has produced evidence that
could reasonably raise an inference that he was singled out to be sacrificed because of the
union’s decision to advance a grievance, and that Defendant would not have taken the action he
did in the absence of Plaintiff’s association with the FOP. Thus, at this juncture, it is appropriate
for a jury to assess the credibility of the parties’ respective testimony and weigh the evidence
accordingly to determine the issue of causation. 2 Summary Judgment is therefore denied.
/s/ Gerald Austin McHugh
United States District Court Judge
The Court must also consider the fact that the Defendant was not produced for deposition. The Commissioner’s
time is undeniably valuable, but given that Plaintiff has advanced a valid claim, he is entitled to adequate inquiry.
Since a retaliation claim requires an analysis of Defendant’s subjective motivation, an affidavit is an insufficient
substitute for cross-examination.
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