WILLIAMS v. CITY OF ALLENTOWN et al
Filing
27
MEMORANDUM AND OPINION. SIGNED BY HONORABLE CHAD F. KENNEY ON 2/9/19. 2/11/19 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BILL WILLIAMS,
Plaintiff,
CIVIL ACTION
v.
No. 17-4910
CITY OF ALLENTOWN;
KEITH MORRIS; ED PAWLOWSKI;
GLEN DORNEY; GAIL STRUSS; and
FIVE JOHN & FIVE JANE DOES
Defendants.
MEMORANDUM
Plaintiff, a police officer, has alleged claims against Defendants-a Mayor, a
Chief of Police, and other police officers-for retaliation in violation of the First
Amendment's protection of the freedom of speech and association, violation of
pre-deprivation due process, conspiracy under§ 1985(3), as well as liability for the
City of Allentown under Monell. In addition to arguing that Plaintiff has failed to
state facts sufficient to substantiate any of these four claims, Defendants argue that
they are entitled to qualified immunity, which they claim would require dismissal
of all claims regardless of whether Plaintiff had stated a claim for relief. Defs.'
Mot. Dismiss at 24-25. Defendants contend that the law of qualified immunity
permits vindictive retaliation by government officials in their supervisory role over
a public employee as long as the retaliation is not a clear violation of Plaintiffs
1
constitutional or statutory rights, of which a reasonable person would have known
at the time of the retaliation. Id.
I.
INTRODUCTION
Plaintiff Bill Williams, a police officer with the City of Allentown, initiated
this civil rights action against the City of Allentown and several of its employees
after he was reassigned from his position in the Youth Division to a position in
patrol allegedly for discussing with another officer in the Youth Division whether
the employee could run for political office and how the employee could improve
upon the then-current Mayor's performance in running the City of Allentown. See
generally Amended Complaint (ECF No. 16). Defendants initially moved to
dismiss the Complaint for failure to state a claim on December 13, 2017 (ECF No.
6), which the Honorable Joseph F. Leeson granted (ECF No. 15), dismissing four
counts without prejudice 1 and one count with prejudice. 2 This case was reassigned
from the Honorable Joseph F. Leeson to the Honorable Chad F. Kenney on
November 26, 2018. (ECF No. 22). On August 23, 2018, Plaintiff filed an
Amended Complaint. (ECF No. 16). Before the Court now is Defendants' Motion
to Dismiss the Amended Complaint for Failure to State a Claim (ECF No. 17),
1
Count I: Retaliation for speech or political association in violation of the First Amendment;
Count II: Pre-deprivation due process; Count III: Monell Municipal Liability; Count V
(incorrectly labeled Count IV): Conspiracy to Deprive Rights under 42 U.S.C. § 1985.
2
Count IV (incorrectly labeled Count III): Retaliation in violation ofUSERRA.
2
Plaintiffs Response (ECF No. 20), and Defendants' Reply (ECF No. 21). For the
reasons that follow, the Court grants in part and denies in part Defendants' Motion
to Dismiss the Complaint.
II.
STANDARD OF REVIEW
When reviewing a motion to dismiss, the Court "accept[ s] as true all
allegations in plaintiffs complaint as well as all reasonable inferences that can be
drawn from them, and [the court] construes them in a light most favorable to the
non-movant." Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018)
(quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)).
"To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged." Id. (quoting
Twombly, 550 U.S. at 557, 127 S. Ct. 1955)). "The plausibility determination is 'a
context-specific task that requires the reviewing court to draw on its judicial·
experience and common sense."' Connelly v. Lane Const. Corp., 809 F.3d 780,
786-87 (3d Cir. 2016) (quoting Iqbal, 550 U.S. at 679).
3
Finally, courts reviewing the sufficiency of a complaint must engage in a
three-step process. First, the court "must 'take note of the elements [the] plaintiff
must plead to state a claim.'" Id. at 787 (alterations in original) (quoting Iqbal,
550 U.S. at 675). "Second, [the court] should identify allegations that, 'because
they are no more than conclusions, are not entitled to the assumption of truth."' Id.
(quoting Iqbal, 550 U.S. at 679). Third, '"[w]hen there are well-pleaded factual
allegations, [the] court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief."' Id. (alterations in original)
(quoting Iqbal, 550 U.S. at 679).
III.
BACKGROUND
Plaintiff brings this civil action pursuant to 42 U.S.C. § 1983 and 42 U.S.C.
§ 1985 against the City of Allentown; Keith Morris ("Morris"), then-Chief of
Police of Allentown; Ed Pawlowski ("Pawlowski" or "then-Mayor"), then-Mayor
of Allentown; Glen Dorney ("Dorney") and Gail Struss ("Struss"), Assistant
Chiefs of Police for the City of Allentown Police Department; and ten unnamed
individuals who are "officials, agents, employees, or representatives of the City of
Allentown." Am. Compl.
at~~
17-23. Plaintiff began working for the City of
Allentown Police Department in April 2006 as a police officer and, over time, was
promoted to a detective and ultimately sergeant. Am. Compl.
at~~
25-28.
Plaintiff began working in the Youth Division in February 2014. Id.
4
at~
29. In
May 2016, Plaintiff was promoted within the Youth Division to be the sole
Detective Sergeant and was "assigned to the command and a complement of
officers and detectives within the division." Am. Compl.
at~
30. Plaintiff alleges
that the Sergeant of the Youth Division is a unique specialty position within the
City of Allentown's Police Department, which has "no equal or parallel in benefits,
duties, and responsibilities." Id.
at~
31. The Youth Division is under the
command of the Criminal Investigation Division, the Police Chief and Deputy
Chiefs, and the Mayor. Id.
at~
32. Plaintiff alleges that the Youth Division
Sergeant position included duties such as "compulsory obedience to federal, state,
and city laws," along with "Allentown City polices." Id.
at~
40. Plaintiff alleges
that as Youth Division Sergeant, his duties did not include, "speak[ing] with an
employee about politics, run[ning] for office, provid[ing] advice on ... city
ordinances related to political activities by employees," nor "provid[ing],
approv[ing] or direct[ing] an employee where to obtain consent or advice on
political activity, or political party affiliate," nor "provid[ing] aid to another person
to run for political office, join, represent or affiliated with a particular political
party." Id.
at~
39.
In this position, Plaintiff enjoyed many noneconomic and economic benefits,
including "prestige, which increased [P]laintiff' s employment opportunities and
earning power," along with "career opportunities that included high earnings and
5
earning powers during and post-Allentown P[olice] D[epartment] employment."
Id.
at~
45. As Youth Division Sergeant, Plaintiff was "tasked with new and
unprecedented responsibilities," including "plan[ning] and implement[ing] a town
hall-style forum for the City's youth," as well as "establish[ing] and maintain[ing]
staffing for crossing guards," "develop[ing] mentoring programs in the schools
including Big Brothers and Big Sisters," "implementing additional referral sources
... for troubled youth," "develop[ing] and implement[ing] a merit-based matrix
system for the selection of new officers to the Youth Division," and "pioneer[ing]
and develop[ing] a new polygraph process for police applicants." Id.
at~
46.
Additional benefits for this position included "increased income and earnings
through overtime," and having a "steady day-work schedule with every weekend
and holiday off." Id.
at~~
48-49. As a part of this position, Plaintiff had the "use
of a City-owned car with gas and maintenance benefits, for the use of the car
between home and work." Id.
at~
66.
In January 2017, Plaintiff was approached by another employee
("Employee") in the Youth Division while both Plaintiff and Employee were offduty. Id.
at~
50. Employee informed Plaintiff that he was "considering to
campaign and run for mayor," and "asked the [P]laintiff for aid[ and] to provide an
opinion regarding any potential conflicts with employment by running for political
office." Id. Plaintiff alleges that, as it was not his duty or within his authority to
6
give advice regarding "allow[ing] an employee to run for political office," Plaintiff
"merely provided his personal opinion only to" Employee. Id. at if 51. Employee
spoke to Plaintiff during this conversation about "running for political office"
against the Mayor "under an opposing political party," as well as "the conduct of
the [then-]current Allentown City Mayor, which [E]mployee believed he could
improve." Id. at if 52. Plaintiff alleges that he "affiliated with" Employee "and his
political views and party," and responded to Employee that he "saw no basis why"
Employee "could not run as a candidate for Mayor[] against [then-Mayor] Ed
Pawloski, or speak on matters to the public in how improvement might be had in
running City business." Id. at if 55.
Over a month later, but before March 2017, Plaintiff alleges that Employee
spoke with him a second time, again off-duty, explaining that "he was close to a
decision about running for Mayor and going public." Id. at if 56. "Plaintiff
suggested the coworker speak with the [then-]Chief of Police for the City of
Allentown," i.e. defendant Keith Morris, "about running for the Mayor's Office."
Id. at if 56. Plaintiff alleges that between mid-February and March 1, 2018,
Employee "met with and had several discussions with defendant Morris," during
which time Employee informed defendant Morris of Plaintiffs "affiliation and
aid." Id. at if 57. Although Morris told Employee that he had "no official position"
on Employee running for Mayor, "Morris used language that made [Employee]
7
feel threatened and [that] there would [be] reprisal or retaliation if [Employee] ran
for the Mayor's Office." Id.
at~
57. On February 23, 2017, Employee "gave a
political speech, where he announced his candidacy for Mayor," which was
"televised in the Allentown area," and "covered political issues and matters of
public concern or interest." Id.
at~
58. On the morning of March 2, 2017, Captain
Lake, Plaintiff's immediate supervisor, ordered Plaintiff to "appear before the
[C]hief of [P]olice," Morris, without informing Plaintiff of the "reason to appear,"
and "escorted [Plaintiff] to" Morris's office. Id. at ~ 62. When Plaintiff arrived at
Morris's office, he found Morris, along with defendants Dorney and Struss. Id. at
~
63. Morris informed Plaintiff that it was his "last day in Youth Division," and
that he was to "report to patrol and to Lt. Hill for the night shift on" March 8. Id.
at~
64. Plaintiff alleges that Morris, Struss, and Dorney conducted a "meeting
regarding this decision before summoning" Plaintiff. Id. at
~
65.
After this meeting, "Plaintiff was removed from his Youth Division position
and placed in patrol." Id.
at~
66. On patrol, Plaintiff "worked permanent
midnights, and all or most holidays and weekends." Id.
at~
67. Plaintiff contacted
Morris requesting "the transfer be made to a vacant day/middle shift patrol rotation
versus steady night shift," and also "requested the transfer be made to a vacant
sergeant's position at the police academy versus steady night shift," but both of
these requests were denied "without explanation." Id.
8
at~
68.
Plaintiff consequently filed a grievance through the collective bargaining
agreement for the position change, which the City opposed. Id. at ,-r,-r 70-71.
During this grievance process, Defendants claimed that Plaintiff was transferred
for "three minor deficiencies," which Plaintiff alleges he proved untrue or suspect.
Id. at ,-r 72. Plaintiff further alleges that Defendants were retaliating for his
association with Employee. Id. at ,-r 73.
Plaintiff met with Dorney, who was at that time the new Police Chief, as
well as with the City's Director of Human Resources, in order to discuss resolving
the matter without a lawsuit in July, August, and September 2017. Id. at ,-r 75.
During this time, defendants Dorney and Pawlowski met with the Director of
Human Resources and the City Solicitor regarding the matter with Plaintiff. Id. at
,-r 76. Plaintiff also spoke directly with defendant Pawlowski. Id. at ,-r 77. In midSeptember 2017, "the City through Pawlowski made an offer" to Plaintiff, which
involved creating a new, potentially temporary, position in the Youth Division. Id.
at ,-r 78. Before Plaintiff accepted this offer, "the City of Allentown and defendant
Pawlowski instructed the new police chief Dorney and Human Resources Director
to withdraw its offer to [P]laintiff and stop discussions with [P]laintiff." Id. at ,-r
79.
The Honorable Joseph F. Leeson dismissed Counts I (Retaliation in violation
of the First Amendment), II (Pre-Deprivation Due Process claim), III (Monell
9
claim) and V (incorrectly labeled as Count IV) (Conspiracy in violation of 42
U.S.C. 1985(3)) without prejudice. Memorandum in Support of Order Granting
Motion to Dismiss ("Memorandum") (ECF No. 14). The Honorable Joseph F.
Leeson dismissed Count IV (incorrectly labeled as Count III) without leave to
amend. Id. Plaintiff filed an Amended Complaint (ECF No. 16) on August 23,
2018. Before the Court is Defendants' Motion to Dismiss the Amended Complaint
(ECF No. 17), Plaintiffs Response in Opposition to Defendant's Motion to
Dismiss (ECF No. 20), and Defendant's Reply (ECF No. 21).
Oral argument was held before Judge Kenney on January 3, 2019.
IV.
DISCUSSION
The doctrine of qualified immunity was established to "balance[] two
important interests-the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably." Pearson v.
Callahan, 555 U.S. 223, 231 (2009). The doctrine was not intended to shield
public officials who use their public office conducting public affairs to retaliate
against a public employee under their supervision because the public employee
spoke and associated with someone who does not support their personal, private
interests. To allow a public official to wear the mantle of qualified immunity in
10
this situation eviscerates the purpose of the doctrine and turns a protection for a
public official into a useful weapon against a public employee.
To find otherwise would mean that a public official could abuse their public
trust and powers of office to wield wanton actions of personal vindictiveness and
revenge against public employees whom they supervise. Pearson is premised on a
balance of the public action exercised for the public good serving a public premise.
Supervisory functions taken by public officials against public employees for purely
personal reasons are not in the public interest. Thus, the presumed premise of
Pearson does not exist here, because there is no public action to put on the scale to
balance. However, even assuming a proper premise, applying the Pearson
principles to this case, Defendants have failed to show how the facts alleged in the
Complaint, taken as true and drawing all inferences in Plaintiffs favor, would
allow Defendants to escape liability pursuant to the doctrine of qualified immunity
at this stage of the litigation process.
The Court holds that Defendants' Motion to Dismiss for failure to state a
claim is granted as to Plaintiffs pre-deprivation due process and Monell liability
claims, but that Defendants' Motion to Dismiss Plaintiffs claims regarding
retaliation in violation of the First Amendment and conspiracy under§ 1985(3) is
denied as to Morris and Pawlowski but granted as to Dorney, Struss, and the five
John and five Jane Does. Furthermore, where, as here, Plaintiff has alleged that
11
Defendants intentionally retaliated against Plaintiff because of his political
conversations with another employee, Defendants are not entitled to the protections
of qualified immunity at this stage of the process.
A. First Amendment Retaliation Claim
Plaintiff has alleged facts sufficient to support a First Amendment retaliation
claim asserting a violation of free speech and freedom of association against
Morris and Pawlowski on a motion to dismiss.
1. First Amendment Free Speech Claim
To state a First Amendment retaliation claim under 42 U.S.C. § 1983
asserting a violation of free speech, "a plaintiff must establish: (1) he engaged in
First Amendment protected activity, (2) the defendant took adverse action
sufficient to deter a person of ordinary firmness from exercising his First
Amendment rights, and (3) the adverse action was prompted by the plaintiffs
protected activity." Rossiter v. City of Phila., 674 F. App'x 192, 196 (3d Cir. 2016)
(citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)). For a public
employee, such as a police officer, to fall under First Amendment protected
activity, the individual must also show: (1) he "spoke as a citizen, (2) the statement
involved a matter of public concern, and (3) the government employer did not have
'an adequate justification for treating the employee differently'" than other persons
of the general public. Hill v. Borough ofKutztown, 455 F.3d 225, 241-42 (3d Cir.
12
2006) (quoting Garcetti v.Ceballos, 547 U.S. 410, 417-18 (2006)). As to whether
the public employee "spoke as a citizen," the Court must make a practical inquiry
into the "individual's official duties." Gorum v. Sessoms, 561 F.3d 179, 185 (3d
Cir. 2009). The "claimant's speech might be considered part of his official duties if
it relates to 'special knowledge' or 'experience' acquired through his job." Id.
"Whether a person speaks as a citizen depends less on the subject matter-though
that is relevant-than on the manner of speech, specifically whether the plaintiff is
'expected, pursuant to [his or her] job duties,' to make the speech that is at issue."
Jerri v. Harran, 625 F. App'x 574, 580 (3d Cir. 2015).
The first prong requires that Plaintiff spoke as a citizen and not as a public
employee, pursuant to his job duties. Defendants argue that Plaintiffs discussions
with Employee regarding Employee's potential candidacy for Mayor were made in
Plaintiffs official capacity as a sergeant of the Allentown Police Department and
the Youth Division. Judge Leeson held in his Memorandum dismissing the
Complaint that Plaintiff had not alleged a First Amendment retaliation claim
because Employee had gone to Plaintiff "in his official capacity as the supervising
officer in the Youth Division," and Plaintiff "not only cleared the subordinate
officer to run for mayor while maintaining police employment but also referred
him to the Chief of Police to confirm the finding, all in relation to his official role."
Memorandum at 7 (ECF No. 14).
13
Plaintiff has amended the Complaint and added that both Plaintiff and
Employee were off-duty when they were discussing the possibility of Employee
running for Mayor. See Am. Compl.
at~
50. Plaintiff has additionally pled new
facts regarding his actual duties as Sergeant of the Youth Division, which included
staffing the crossing guards, developing mentoring programs, creating a system to
select new officers, and developing a new polygraph process for police applicants.
Id.
at~
46. Plaintiff further alleges that the Youth Division Sergeant position also
includes duties such as "compulsory obedience to federal, state, and city laws,"
along with "Allentown City polices." Id.
at~
40.
At the motion to dismiss stage, Plaintiff has sufficiently pled facts alleging
that he spoke to Employee as a citizen and not as a public employee. There are no
allegations showing that Plaintiff had gained any "special knowledge" or
"experience" through his job as Youth Division Sergeant relating to whether an
employee of Youth Division could run for mayor. Furthermore, there are no
allegations indicating that Plaintiff would have been expected, pursuant to his job
duties, to make speech relating to the possibility of an employee running for
mayor. Defendants characterize this advice as "related to their duties as police
officers," but such a characterization is needlessly broad. Defs.' Mot. Dismiss at
12 (ECF No. 17). In fact, the communication between Plaintiff and Employee
related to Employee's potential departure from the Allentown Police Department
14
to run for mayor in a party opposing the then-Mayor while Plaintiff and Employee
were off-duty, which is "outside the course of performing [Plaintiffs] official
duties." Garcetti, 547 U.S. at 423. Furthermore, Plaintiff alleges that he and
Employee also discussed the "conduct of the current Allentown City Mayor, which
[Employee] believed he could improve," while both Plaintiff and Employee were
off-duty. Am. Compl.
at~
52. Plaintiff has adequately alleged that he spoke as a
citizen with respect to the speech at issue.
Second, Plaintiff has adequately alleged that the speech at issue was of
"public concern." "A public employee's speech involves a matter of public
concern if it can be fairly considered as relating to any matter of political, social or
other concern to the community." Brennan v. Norton, 350 F.3d 399, 412 (3d Cir.
2003). "It seems likely that advocacy and support for ideas, principles and projects
a Borough Mayor disfavored would involve a matter of public concern under this
standard." Hill, 455 F.3d at 243. Plaintiff has alleged that he spoke to Employee
regarding Employee's potential candidacy for Mayor. Am. Compl.
at~
50.
Plaintiff further alleged that Employee planned to run as an opposing political
party to the then-Mayor of Allentown's party, of which Plaintiff was also a
supporter. Id.
at~
52. Plaintiff alleges the two also discussed the conduct of the
then-current Mayor of Allentown, which Employee "believed he could improve."
15
Id. at i-1 52. These facts are sufficient to find that the speech was related to a
"public concern" at the motion to dismiss stage.
Lastly, "if an erployee speaks as a citizen on a matter of public concern, the
next question is whetµer the government had 'an adequate justification for treating
i
!
the employee differetjtly from any other member of the public' based on the
government's needs "'s an employer." Lane v. Franks, 573 U.S. 228 (2014). The
Supreme Court has "riecognized that government employers often have legitimate
i
'interest[s] in the effective and efficient fulfillment of [their] responsibilities to the
public,' including 'promot[ing] efficiency and integrity in the discharge of official
duties,' and 'maintain[ing] proper discipline in public service."' Id. (quoting
Connick v. Myers, 461 U.S. 138, 149 (1983)). The Supreme Court "also cautioned,
however, that 'a stronger showing [of government interests] may be necessary if
the employee's speech more substantially involve[s] matters of public concern."'
Id. (citing Connick, 461 U.S., at 152). Defendants do not assert, and cannot
demonstrate based on the facts alleged in the Amended Complaint, any
I
i
government interest ~at tips the balance in their favor or any reason that retaliating
i
against Plaintiff for qis speech would promote efficiency or integrity in the
discharge of official ~uties.
!
Thus, Defendahts' Motion to Dismiss Plaintiffs First Amendment
I
retaliation claim bas~d on free speech is denied as to Morris and Pawlowski.
16
Plaintiff, however, has not alleged facts to support the First Amendment retaliation
claim based on free speech against Dorney, Struss, and the five John and five Jane
Does, since there are no facts alleging that any of these defendants took, or had the
authority to take, an "adverse action" against Plaintiff. Thus, the First Amendment
retaliation claim based on free speech is dismissed as to Dorney, Struss and the
five John and five Jane Does.
2. First Amendment Association Claim
"To make out a claim of discrimination based on political association, a
public employee must allege (1) that the employee works for a public employer in
a position that does not require a political affiliation, (2) that the employee
maintained a political affiliation, and (3) that the employee's political affiliation
was a substantial or motivating factor in the adverse employment decision."
Hill, 455 F.3d at 243 (citing Goodman v. Pennsylvania Turnpike Com'n, 293 F.3d
655, 663-664 (3d Cir.2002)). "[S]ome circuits apply the same rubric [as those
involving speech] to cases involving the associational rights of public employees.
This is especially true when an employee's freedom of association claim
'implicate[s] associational rights in essentially the same way and to the same
degree' as his free speech claim." Palardyv. Twp. of Millburn, 906 F.3d 76, 81
(3d Cir. 2018) (citing Sanguigni v. Pittsburgh Bd. ofPub. Educ., 968 F.2d 393, 400
(3d Cir. 1992) ("We hold ... that Connick governs [the plaintiffs] freedom of
17
association claim because that claim is based on speech that does not implicate
associational rights to any significantly greater degree than the employee speech at
issue in Connick.").
Judge Leeson initially denied Plaintiffs claim for First Amendment
retaliation based on Plaintiffs right to freedom of association because "the
Complaint is devoid of any allegations to suggest that Williams agreed with the
[Employee's] political views." Memorandum at n.7 (ECF No. 14). In the
Amended Complaint, Plaintiff alleges that he "affiliated with" Employee "and his
political views and party," and provided advice to Employee regarding whether
Employee could run for Mayor of Allentown against Ed Pawlowski, then-Mayor,
or speak to the public regarding improving how the City of Allentown business is
run. Am. Compl. at ,-r 55. These allegations are sufficient to survive a motion to
dismiss for Plaintiffs claim of retaliation based on Plaintiffs freedom of political
association. Thus, as above, Defendants' Motion to Dismiss Plaintiffs First
Amendment retaliation claim based on freedom of association is denied as to
Morris and Pawlowski but granted as to Dorney, Struss, and the five John and five
Jane Does.
B. Pre-Deprivation Due Process Claim
Under Count II, Plaintiff alleges that he was actively or constructively
demoted in rank when he was removed from his position as Youth Division
18
Sergeant and placed in patrol based on the reduction of duties and privileges,
without having been afforded a "pre-discharge due process of law." Am. Comp I.
at ~ 11 7. Defendants argue that Plaintiff was not entitled to any due process prior
to his removal from his position as Youth Division Sergeant because this job
change did not deprive him of any protected property or liberty interest. Defs.'
Mot. Dismiss at 15 (ECF No. 17).
Both Plaintiff and Defendants agree that Plaintiff has a property interest in
his job as a police officer, such that Plaintiff cannot be terminated, suspended, or
reduced in rank without some type of pre-deprivation procedures. See Wardlaw v.
City of Philadelphia, No. 09-3981, 2011WL1044936, at *5 (E.D. Pa. Mar. 21,
2011) (finding that state law determines whether a property interest is present in
government employment and that a plaintiff may argue constructive reduction in
rank in place of actual reduction in rank) ("[M]unicipal police officers have a
property interest in continued employment.") 3 However, Defendants argue that
Plaintiffs removal from Youth Division to patrol does not constitute an actual or
constructive reduction in rank, also referred to as an actual or constructive
3
This property interest arises from the Police Tenure Act ("Act"). 53 Pa.C.S. §§ 811-816. This
Act protects police officers from suspension, termination, or reduction in rank except for specific
reasons. See Clark v. Twp. of Falls, 890 F.2d 611, 617 (3d Cir. 1989) (holding that a police
officer's property interest is embedded in the Police Tenure Act).
19
demotion, which would implicate due process rights. Defs.' Mot. Dismiss at 16
(ECF No. 17); see Wardlaw, 2011 WL 1044936, at *7.
The Fourteenth Amendment of the Constitution restricts a state from
"depriving persons of life, liberty, or property without due process of law." U.S.
Const. amend. XIV, § 1. To state a violation of procedural due process under 42
U.S.C. § 1983, a two-part analysis is applied: (1) whether the individual's interest
is protected under the Fourteenth Amendment as life, liberty, or property, and (2)
whether the pre-deprivation procedures provided complied with due process of
law. See Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000). Procedural due
process adapts to the situation at hand. See Gilbert v. Hamar, 520 U.S. 924, 930
(1997) (holding that due process is flexible for the situation and that predeprivation hearings need not always be held).
Despite alleging that he was "actually or constructively discharged,"
Plaintiff was simply moved from the Youth Division to patrol, but he was not
terminated or suspended from the Allentown Police Department. Am. Compl. at if
116. Nor has Plaintiff alleged that Defendants made his working environment so
intolerable that he was forced to quit. See Hill, 455 F.3d at 246 ("[A]s a matter of
state law, no government employee or body is permitted to constructively
discharge an employee by making his working environment intolerable."). Thus,
Plaintiff only has a protected property interest ifhe suffered a reduction in rank.
20
See Wardlaw, 2011WL1044936, at *5 (holding a police officer's property interest
can be deprived through termination, suspension, or reduction in rank). A
reduction in rank can be either actual or constructive. See Guarnieri v. Duryea
Borough, No. 3:05-CV-1422, 2007 WL 4085563, at *6 (M.D. Pa. Nov. 15, 2007)
(citing Clark, 890 F .2d at 617). An actual reduction in rank is demonstrated
through a change in job title. Clark, 890 F.2d at 618. To determine whether there
was a constructive reduction in rank, i.e., when there is no such alteration in job
title, the court must look to other "traditional indicia of change of rank," including
change in pay, alteration of duties that are usually assigned to a lower rank,
reduced responsibilities, termination of privileges of rank, and whether the changes
are permanent or temporary. Id.
Judge Leeson previously held that because Plaintiffs job title did not
change, in that he remained a sergeant, and because his salary did not change,
Plaintiffs allegations regarding lost opportunity for overtime pay, lost use of a
city-owned vehicle and gas card, assignment to night shift and holiday work, and
removal from a prestigious position did not amount to a constructive reduction in
rank. Memorandum at 12 (ECF No. 14) (citing Skrutski v. Marut, 288 F. App'x
803, 808 (3d Cir. 2008) (holding police officer did not have a protected property
interest in the loss of overtime); Cotner v. Yoxheimer, No. 1:07-cv-1566, 2008 U.S.
Dist. LEXIS 51388, at *30-33 (finding that an office who was unable to take his
.21
police vehicle home on his days off, was assigned to more night shifts than any
other officer, and had numerous responsibilities removed, was not constructively
discharged); Henry v. City ofAllentown, No. 12-1380, 2013 U.S. Dist. LEXIS
172792, at 12-13 (E.D. Pa. Dec. 5, 2013) (holding that assignment to undesirable
duties does not constitute constructive demotion if duties not of the sort normally
given to a lower rank); Satterfield v. Borough ofSchuykill Haven, 12 F. Supp. 2d
423, 433-34 (E.D. Pa. 1998) (holding that reputation alone is not a protected
interest and that defamation in the termination of employment may, in some
circumstances, trigger the right to a hearing)).
In the Amended Complaint, Plaintiff has added only that he had new and
unprecedented responsibilities in his position as Youth Division Sergeant,
including "plan[ning] and implement[ing] a town hall-style forum for the City's
youth," "establish[ing] and maintain[ing] staffing for crossing guards,"
"develop[ing] mentoring programs in the schools including Big Brothers and Big
Sisters," "implementing additional referral sources ... for troubled youth,"
"develop[ing] and implement[ing] a merit-based matrix system for the selection of
new officers to the Youth Division," and "pioneer[ing] and develop[ing] a new
polygraph process for police applicants." Id. at ,-r 46. Although Plaintiff alleges
that he no longer had these duties on patrol, there are no allegations that he was
"deprived of all real job responsibilities." Wardlaw, 2011WL1044936 at *5. Nor
22
does Plaintiff plead that his duties after being reassigned to patrol were "normally
given to employees of a lower rank." Id. The allegations in the Complaint remain
insufficient to show either actual or constructive reduction in rank. Thus, Plaintiff
has failed to show that he had a protected property interest to entitle him to predeprivation due process protection.
The Court further agrees with Judge Leeson that even if Plaintiff had shown
a protected property interest, he would not be automatically entitled to a predeprivation hearing under Loudermill. Memorandum at 13 (ECF No. 14) (citing
Cleveland Bd. ofEduc. v. Loudermill, 470 U.S. 532, 545-46 (1985) (holding that
when a pre-deprivation hearing is required, the hearing need not absolutely resolve
the deprivation; rather, it must provide a preliminary check on the situation and
disputing sides-the hearing is to determine whether "there are reasonable grounds
to believe that the charges against the employee are true and support the proposed
action"); Schmidt v. Creedon, 639 F.3d 587, 589-90 (3d Cir. 2011) (holding only
that a police officer is entitled to a hearing pre-suspension and pre-termination)).
As Judge Leeson stated:
[I]n determining what process is due, the court balances the private
interests affected by the action, the risk of erroneous deprivation, and
the government's interest, including fiscal and administrative burdens,
that additional or substitute procedures entail. Mathews v. Eldridge,
424 U.S. 319, 335 (1976). Considering that Williams remained
employed without a reduction in salary, his interests were
insubstantial. See Guarnieri, 2007 U.S. Dist LEXIS 84580, at *19-20
23
(finding that if the police chief had a protected property interest, he
was not entitled to a pre-deprivation hearing because his interest in the
duties and responsibilities of his job was insubstantial). On the other
side of the balance, the City "has an interest in deciding how to
operate its police force." Cope, 2018 U.S. Dist. LEXIS 42815, at *2021. Additionally, the risk of erroneous deprivation was low because
Williams had access to the grievance process in the collective
bargaining agreement, which he used. See id. at *21-22; Compl. ~ 44.
Due process therefore did not require a pre-deprivation hearing.
Memorandum at 13-14 (ECF No. 14)
Thus, Plaintiffs due process claim is dismissed.
C. Monell Liability
Plaintiff alleged in the Amended Complaint that Defendants Morris and
Pawlowski have created liability for the City of Allentown under the Single Act
Theory for "actual[ly] or constructive[ly] discharg[ing] [P]laintiff from Youth
Division Sergeant," and that Morris, Pawlowski, Struss, and Dorney have created
liability on behalf of the City of Allentown by removing Plaintiff from his Youth
Division Sergeant position without a "meaningful pre-loss procedural due process
of law." Am. Compl.
at~~
125-126. Despite amending the Complaint, as Judge
Leeson noted, it is still not clear on what constitutional violation the Monell claim
is based, since the decision to remove Plaintiff from the Youth Division is the
subject of the First Amendment retaliation claim and the alleged denial of a prederivation hearing before Plaintiff was removed from the Youth Division is the
procedural due process right at issue. Memorandum at 16-17 (ECF No. 14).
24
Defendants argue that Plaintiff failed to allege a Monell claim because
Plaintiff has not pied the existence of any relevant municipal policy or custom,
there are insufficient allegations showing any violation of 42 U.S.C. § 1983, and
there are no allegations indicating that any such violation was the result of an
Allentown employee acting pursuant to a municipal policy or custom. See Defs.'
Mot. Dismiss at 19-21 (ECF No. 17). Plaintiff argues in response that he has set
forth plausible claims of a§ 1983 violation and that a custom or policy existed
based on a "single act" of Pawlowski or Morris, which constituted removing him
as Youth Division Sergeant and reassigning him to patrol. Pl.'s Opp. 43 (ECF No.
20). The Court agrees with Defendants and the Honorable Joseph F. Leeson that
Plaintiff has failed to state a § 1983 claim against the City of Allentown under
Monell.
"[A] municipality can be found liable under§ 1983 only where the
municipality itself causes the constitutional violation at issue. Respondeat superior
or vicarious liability will not attach under§ 1983." City of Canton v. Harris, 489
U.S. 378, 385 (1989) (citing Monell, 436 U.S. at 694-95). "[I]t 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§ 1983." Monell, 436
U.S. at 694. "A municipal policy, for purposes of Section 1983, is a statement,
25
ordinance, regulation, or decision officially adopted and promulgated by a
government body's officers." Torres v. City ofAllentown, No. 07-1934, 2008 U.S.
Dist. LEXIS 50522, at *10-11 (E.D. Pa. June 30, 2008) (citing Monell, 436 U.S. at
690). A custom, although not authorized by written law, has the force of law
because it is such a permanent and well-settled practice. Monell, 436 U.S. at 690.
The plaintiff "must identify [the] custom or policy, and specify what exactly that
custom or policy was." McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009)
("Mere assertion of an entitlement to relief, without some factual 'showing,' is
insufficient under Fed. R. Civ. P. 8(a)(2).").
To hold a municipal defendant liable under § 1983 for a single act, the
plaintiff must show that: ( 1) the act violating a constitutional right was officially
sanctioned or ordered by the city itself; (2) the municipal official executing the
action had final policymaking authority, as determined by state law; and (3) "the
challenged action must have been taken pursuant to a policy adopted by the official
or officials responsible under state law for making policy in that area of the city's
business." City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). In
establishing final policymaking authority pursuant to state law, the plaintiff must
show that the official's decisions are "final and unreviewable." Hill, 455 F.3d at
245-46.
26
Initially, as the Court has held that Plaintiff has failed to state a
constitutional violation of pre-deprivation procedural due process, Plaintiff cannot
attempt to hold the municipal liable for any such violation. See Reilly v. Leb.
Cnty., No. 16-1469, 2016 U.S. Dist. LEXIS 176999, at *15 (M.D. Pa. Dec. 21,
2016). Thus, the Monell claim must rely on Plaintiff's First Amendment
retaliation claim. However, as the Honorable Joseph F. Leeson previously held,
Plaintiff has failed to allege facts sufficient to make out a Monell claim under the
single act theory for the First Amendment retaliation claim.
First, Plaintiff alleges that Morris and Pawlowski were the "final decisionmakers" who decided to remove Plaintiff from the Youth Division, and thus the
City of Allentown is liable based on this single act. Am. Compl. at ii 125. While
Morris, as Police Chief, would not likely be considered the final policymaker, 4 the
Amended Complaint alleges that Morris and Pawlowski, then-Mayor, worked
together to retaliate against Plaintiff based on his speech and political association.
Am. Comp. at ii 135. Pawlowski, as then-Mayor, is the final policymaker as to the
police department, with "final and unreviewable" authority and the potential to
4
See Santiago v. Warminster Twp., 629 F.3d 121, 135 (3d Cir. 2010) ("In any event, as a matter
of Pennsylvania state law, a township Police Chief is not a final policymaker."); but see Kelly v.
Borough of Carlisle, 622 F.3d 248, 264 (3d Cir. 2010) ("An employee who lacks policymaking
authority can still bind the municipality if a municipal policymaker delegated power to the
employee or ratified his decision.").
27
hold the City of Allentown liable under § 1983 for a single act. See 11 Pa.C.S.A. §
12001 ("Council [composed of the mayor and council members] shall fix, by
ordinance, the number, grades and compensation of the members of the city police
force."); 11 Pa.C.S.A. § 12007 (providing that "[t]he chief of police shall obey the
orders of the mayor"); see also Bennis v. Gable, 823 F.2d 723, 733 (3d Cir. 1987)
("It is undisputed that the City's sole authorized decision maker on promotions and
demotions within the police department is the mayor.") (citing 11 Pa.C.S.A.
~
12002 formerly cited as 53 Pa.Stat.Ann. § 37002). Furthermore, Plaintiffs
allegations regarding Pawlowski's involvement at the grievance stage are
sufficien~
for the Court to infer that he was also involved when Plaintiff was removed from
the Youth Division.
However, Plaintiff has failed to adequately plead facts to show that the
"challenged action [was] taken pursuant to a policy adopted by the official or
officials responsible under state law for making policy in that area of the city's
business." Praprotnik, 485 U.S. at 123. Plaintiff has alleged no facts
demonstrating how the single act of removing him from the Youth Division and
placing him in patrol in retaliation for his speech and political association was
taken pursuant to any policy or custom or how, from this single act, a policy or
custom could be inferred. Thus, the Monell claim is dismissed.
28
D. Conspiracy under § 1985
Plaintiff finally alleges that Defendants Morris, Pawlowski, Dorney, and
Struss conspired together to deprive him of his constitutional rights by removing
him from the Youth Division and additionally preventing his reinstatement. Am.
Compl. at iii! 132-137. In the original Complaint, Judge Leeson found that Plaintiff
failed to "allege any facts, whether particular or generalized, that plausibly allege
any meeting of the minds between Defendants." Memorandum at 21 (ECF No.
14). In the Amended Complaint, Plaintiff alleges that Defendant "came to a
meeting of the minds through words and deeds as described above on or about
February and to September 2017 ... agree[ing] that one or all would retaliate
against the plaintiff and deprive the plaintiff of federal rights." Am. Compl. at iii!
132-133. This Court finds that Plaintiff sufficiently alleges facts in the Amended
Complaint to support a 1985(3) claim of conspiracy on a motion to dismiss.
Section 1985(3) states that a conspiracy arises when "two or more persons
engaged therein do, or cause to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his person or property, or deprived
of having and exercising any right or privilege of a citizen of the United States." 42
U.S.C. § 1985(3). To assert a prima facie claim of conspiracy, a plaintiff must
plausibly allege facts that show ( 1) "a combination of two or more persons acting
with a common purpose to do an unlawful act or to do a lawful act by unlawful
29
means or for an unlawful purpose," (2) "an overt act done in pursuance of the
common purpose," and (3) "actual legal damage." Schlichter v. Limerich Twp.,
No. 04-CV-4229, 2005 WL 984197, at *10 (E.D. Pa. Apr. 26, 2005).
A plaintiff must assert "specific factual allegations of combination,
agreement, or understanding among all or between any defendants to plot, plan, or
conspire to carry out the alleged chain of events." Germantown Cab Co. v.
Philadelphia Parking Auth., No. 14-4686, 2015 WL 4770722, at *10 (E.D. Pa.
Aug. 12, 2015) (quoting Hammond v. Creative Fin. Planning Org., 800 F. Supp.
1244, 1248 (E.D. Pa. 1992)). A complaint must allege particular and exacting
facts that demonstrate the "period of the conspiracy, object of the conspiracy, and
certain other actions of the alleged conspirators to achieve the purpose." Id.
(quoting Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000)); see
also Chruby v. Kowaleski, 534 F. App'x 156, 160 (3d Cir. 2013) (holding that a
plaintiff must allege facts that plausibly suggest a meeting of the minds).
As the Court has maintained the First Amendment retaliation claim,
Defendants' argument that Plaintiff has not stated a deprivation of a federal right
fails at this time. Defs.' Mot. Dismiss at 22 (ECF No. 17). Furthermore, Plaintiff
has alleged sufficient facts for the Court to plausibly infer that Defendants Morris
and Pawlowski conspired together to remove Plaintiff from the Youth Division
based on Plaintiffs discussion with and support of Employee in potentially
30
running for mayor in opposition to Pawlowski. Plaintiff has alleged that Morris
was informed that Plaintiff had discussed with and supported Employee's potential
bid for mayor. Am. Compl. at if 57. Plaintiff has alleged that Morris removed
Plaintiff from the Youth Division only one week after Employee gave his televised
political speech announcing his candidacy for mayor against Pawlowski. Am.
Compl. at ifif 58-64. Plaintiff additionally alleged that Defendants Morris and
Pawlowski were involved with the grievance process as well as with the proffer of
a settlement offer, which Pawlowski ultimately revoked. Id. at ifif 72-79. Plaintiff
has further alleged that, "[a]t the time of [P]laintiff s speech... Morris was seeking
advancement in employment and pay increase from the City of Allentown ... from
Pawlowski," and that Morris "supported ... Pawlowski's mayoral re-election
effort." Id. at if 89-90.
Drawing all inferences in Plaintiffs favor, and based on the additional
allegations pied in Amended Complaint, Plaintiff has sufficiently pied that Morris
and Pawlowski acted together with the common purpose of retaliating against
Defendant for his communications with and support of Employee in running for
mayor against Pawlowski and removed Plaintiff from the Youth Division in
pursuance of this common purpose. Plaintiff has sufficiently alleged the "period of
the conspiracy," which includes the date Morris learned of Plaintiffs aid and
association through the time that Pawlowski withdrew the settlement offer, id. at if
31
if 57, 79; the "object of the conspiracy," to retaliate against Plaintiff for his
communications with and support of Employee in running against Pawlowski for
mayor; and "certain other actions of the alleged conspirators to achieve the purpose
of the conspiracy," including Morris refusing Plaintiff's request to be transferred to
other vacant day shifts without explanation and Pawlowski withdrawing the
settlement offer. Id. at ifif 68, 79; see Germantown Cab Co. v. Philadelphia
Parking Auth., No. 14-4686, 2015 WL 4770722, at *10 (E.D. Pa. Aug. 12, 2015).
These facts are sufficient to state a claim for conspiracy to violate Plaintiff's First
Amendment rights on a motion to dismiss against Morris and Pawlowski.
However, even construing all reasonable inferences in a light most favorable
to Plaintiff, Plaintiff has not sufficiently stated a claim for conspiracy against
Dorney, Struss, or the five John and five Jane Does. The only relevant allegations
pertaining to Dorney and Struss are that: Dorney and Struss "had a ... meeting"
with Morris regarding removing Plaintiff from the Youth Division, id. at if 64;
Dorney and Struss were in Morris's office when Morris removed Plaintiff from the
Youth Division, id. at if 65; Dorney and Struss, along with Morris, stated during
the grievance proceedings that Plaintiff "was transferred for three minor
deficiencies," id. at if 72; Dorney and Struss used their position to support Morris
in his decision to remove Plaintiff from the Youth Division, id. at if 136; Dorney
met with Plaintiff and other defendants during the negotiation period, id. at ifif 75,
32
76, 78; and Dorney and Struss were two of Plaintiff's supervisors, id. at ,-r 87. The
only relevant allegations regarding the five John and five Jane Does are that they
knowingly provided "inaccurate [and] untrue []misrepresentation[ s]" regarding
City of Allentown ordinances controlling the use of a City of Allentown car, which
"induce[d] the plaintiff to end CBA grievance and stop arbitration." Id. at ,-r 137.
None of these allegations are "specific factual allegations of combination,
agreement, or understanding" between Dorney, Struss, the five John and five Jane
Does and the other defendants "to plot, plan, or conspire to carry out the alleged
chain of events." Germantown Cab Co., 2015 WL 4770722, at *10. Plaintiff has
not alleged how Dorney, Struss or the five John and five Jane Does took any "overt
acts" in pursuance of the common purpose of removing Plaintiff from the Youth
Division except in allegedly supporting Morris and Pawlowski, who had the
ultimate authority to remove Plaintiff from the Youth Division. See supra at 2728. The Complaint shows that Dorney, Struss, and the five John and five Jane
Does could only, and did only, advise Morris and Pawlowski at the time of
Plaintiff's removal from the Youth Division5 and does not allege that they were
able to or did independently take any adverse action against Plaintiff.
5
Although Plaintiff alleges that Dorney was the Chief of Police for the Allentown Police
Department at some point after Plaintiff was removed from the Youth Division and before the
end of the grievance process, Dorney was an Assistant Chief of Police at the time of Plaintiffs
removal. Am. Compl. ~~ 65, 75.
33
Thus, Defendants' Motion to Dismiss Plaintiffs claim of conspiracy under §
1985(3) is denied as to Morris and Pawlowski but granted as to Dorney, Struss,
and the five John and five Jane Does.
E. Qualified Immunity
Lastly, Defendants argue that they are entitled to qualified immunity on all
claims because Plaintiffs right to freedom of speech and political association are
not so "clearly established" and "[t]here do not appear to be any cases that have
indicated that the transfer experienced by Plaintiff implicates free speech or
association rights in any way." Defs.' Mot. Dismiss at 25 (ECF No. 17). 6 The
Court finds that the Defendants are not entitled to qualified immunity on the
remaining claims at the motion to dismiss stage.
Although qualified immunity is an affirmative defense, "a complaint may be
subject to dismissal under Rule 12(b)(6) when an affirmative defense appears on
its face. Thus, qualified immunity will be upheld on a 12(b)( 6) motion only when
the immunity is established on the face of the complaint." Leveto v. Lapina, 258
F .3d 156, 161 (3d Cir.2001) (quotations and citations omitted). In order to
6
We do not consider Defendants' qualified immunity arguments for the 14th amendment predeprivation due process and Monell claims since this Court has granted Defendants' Motion to
Dismiss as to these claims and dismissed them. See Memorandum at n.5 (citing Spell v.
Allegheny CountyAdmin., No. 14-1403, 2015 U.S. Dist. LEXIS 36903, at *17-18). Furthermore,
as the conspiracy claim is premised on a violation of Plaintiffs First Amendment rights, the
same analysis regarding qualified immunity of the conspiracy claim follows.
34
determine whether Defendants are entitled to qualified immunity, the Court must
first "decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc.
12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional
right," and also "whether the right at issue was 'clearly established' at the time of
defendant's alleged misconduct." Pearson, 555 U.S. at 232 (holding that Courts
should "exercise their sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the circumstances
in the particular case at hand.") To determine whether the constitutional right was
"clearly established" at the time of the misconduct, "it is not necessary that there
have been a previous precedent directly in point." Good v. Dauphin Cty. Soc.
Servs.for Children & Youth, 891F.2d1087, 1092 (3d Cir. 1989). "The ultimate
issue is whether, despite the absence of a case applying established principles to
the same facts, reasonable officials in the defendants' position at the relevant time
could have believed, in light of what was in the decided case law, that their
conduct would be lawful." Id.
The Court has already determined that Plaintiff has alleged facts sufficient to
state a claim for retaliation in violation of his First Amendment right to freedom of
speech and association, satisfying the first prong of the qualified immunity
analysis. As to the second prong, accepting the allegations in the Amended
Complaint as true and drawing all inferences in Plaintiffs favor, the Court finds
35
that the "illegality of the [Defendants'] actions was sufficiently clear that they can
fairly be said to have been on notice of the impropriety of their actions."
McGreevy v. Stroup, 413 F.3d 359, 366-67 (3d Cir. 2005) (internal quotation
marks omitted).
The Third Circuit has recognized that retaliation against a public employee
for exercising his or her rights under the First Amendment violates clearly
established law. See Schleig v. Borough ofNazareth, 695 F. App'x 26, 31 (3d Cir.
2017) (holding that a police officer who retaliated against employee by threatening
to injure or kill the employee based on that employee's participation in a labor
union violated clearly established law); Baldassare v. State ofN.J, 250 F.3d 188,
201 (3d Cir. 2001) ("[A]s of 1982 the law was 'clearly established' that a public
employee could not be demoted in retaliation for exercising his rights under the
first amendment."); Reilly v. City ofAtl. City, 532 F.3d 216, 233 (3d Cir. 2008)
("The Pickering balancing test [,the test to evaluate a public employee's First
Amendment retaliation claim,] was clearly established at the time of the alleged
retaliation, as was the notion of pretextual discipline in the context of a First
Amendment retaliation claim."); McGreevy, 413 F.3d at 367 (3d Cir. 2005)
(holding that the law was clearly established for qualified immunity purposes
where defendants could not proffer any "legitimate countervailing interests in
limiting [plaintiff's] speech.") .
36
The Supreme Court has further held that "qualified immunity would be
defeated if an official ... 'took the action with the malicious intention to cause a
deprivation of constitutional rights or other injury."' Harlow v. Fitzgerald, 457
U.S. 800, 815 (1982). Furthermore, the Third Circuit has found that qualified
immunity does not apply where "Defendants have not proffered any legitimate
countervailing interests in limiting [plaintiffs] speech." McGreevy, 413 F.3d at
366-67. "When the balance of cognizable interests weighs so heavily in an
employee's favor, our cases make plain that the law is clearly established." Id.
(citing Czurlanis v. Albanese, 721F.2d98, 107 (3d Cir.1983) (holding that county
employees' speech at board meeting was constitutionally protected because it was
a matter of public concern and because the county was unable to set forth a
sufficient countervailing interest); Monsanto v. Quinn, 674 F.2d 990, 999 (3d
Cir.1982) (holding that internal revenue department employee's speech was
constitutionally protected because it was a matter of public concern and because no
substantial disruption was alleged); Trotman v. Bd. of Tr., 635 F.2d 216 (3d
Cir.1980) (reversing motion to dismiss for defendants and holding that faculty
member's criticism of university president constituted core speech)).
Here, Plaintiff has alleged that Defendants retaliated against Plaintiff based
on his communications with another employee involving a matter of public
concern, which included discussing with and advising an employee of the Youth
37
Division as to whether the employee could run for mayor for the opposing party of
then-Mayor Pawlowski, in opposition to Pawlowski. Plaintiff has sufficiently
alleged facts such that reasonable officials in the Defendants' position could not
have believed that retaliating against Plaintiff based on these communications
would be lawful. As previously stated, it has been clearly established that a public
official cannot retaliate against a public employee for exercising his rights under
the First Amendment, which here include discussing Employee's candidacy in a
political race against Pawlowski, then-Mayor, as well as how to improve running
the City of Allentown. In this matter, as in Prov. Donatucci, "[t]he state had no
legitimate interest in regulating this speech to 'promot[ e] the efficiency of the
public services it performs through its employees."' 81F.3d1283, 1291 (3d Cir.
1996) (citing Pickering v. Bd. ofEd. of Twp. High Sch. Dist. 205, Will Cty.,
Illinois, 391 U.S. 563, 568 (1968)). Nor are there any legitimate countervailing
interests that Defendants could have had, as alleged in the Complaint, for
retaliating against Plaintiff based on this speech or political affiliation. See
McGreevy, 413 F.3d at 366. Finally, as Defendants have claimed qualified
immunity at the motion to dismiss stage, "factual development through discovery"
will allow the Court to determine whether this "defense may well lend itself to
resolution at summary judgment." Hill, 455 F.3d at 244-45. Thus, the Court holds
38
that Defendants are not entitled to qualified immunity for the remaining claims at
this time.
V.
CONCLUSION
For the reasons stated above, the Court denies in part and grants in part
Defendants' Motion to Dismiss the Amended Complaint (ECF No. 17). The Court
grants Defendants' Motion to Dismiss as to Counts II (Pre-Deprivation Due
Process) and III (Monell Liability). The Court further grants Defendants' Motion
to Dismiss as to Counts I (First Amendment Retaliation) and IV (Conspiracy under
1985(3)) for defendants Dorney, Struss, and the five John and five Jane Does. The
Court denies Defendants' Motion to Dismiss as to Counts I (First Amendment
Retaliation) and IV (Conspiracy under 1985(3)) for defendants Morris and
Pawlowski.
39
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