Beyers v. Duncannon Borough et al

Filing 73

MEMORANDUM AND ORDER - AND NOW, this 1st day of October, 2012, upon consideration of Defendants motion for summary judgment (Doc. 46), Plaintiffs response thereto, and pursuant to the accompanying Memorandum, it is ORDERED that: 1. Defendants motion for summary judgment is GRANTED as toDefendants Brunner and Hammaker. 2. Defendants motion for summary judgment is DENIED as to Defendant Duncannon Borough. Signed by Judge William W. Caldwell on 10/1/12. (See memo for complete details.) (am, )

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ERIC BEYER,
Plaintiff
v.
DUNCANNON BOROUGH, et al.,
Defendants

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: CIVIL NO. 1:09-CV-1398
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MEMORANDUM
I.

Introduction
We are considering Defendants’ motion for summary judgment. This

matter relates to the 2008 termination of Plaintiff from the Duncannon Borough Police
Department. Plaintiff alleges that Defendants Duncannon Borough, Duane Hammaker,
and Patrick Brunner retaliated against him for exercise of his First Amendment right of
free speech. Defendants filed a motion for summary judgment, arguing that Plaintiff’s
speech was not constitutionally protected, and Defendants Hammaker and Brunner did
not engage in any retaliatory conduct.
II.

Background
In November 2005, two officers in the Duncannon area were in pursuit of a

man involved in a shooting. The suspect, armed with a 7 mm Magnum rifle, shot and
injured one officer and then killed himself. Within the community, the shooting raised the
issue of officer safety, because the officers were armed with shot guns that had a
significantly shorter range than the rifle used by the shooter. Following the incident, the
Duncannon Police Department purchased two AR-15 rifles.

On November 20, 2007, the Borough Council learned that the two rifles had
been purchased and began investigating the purchase. On December 18, 2007, the
Council removed the rifles from service. On January 15, 2008, Plaintiff, a part-time
police officer in Duncannon, attended a Borough Council meeting and requested that the
rifles be placed back into service. Council denied the request. On March 6, 2008,
Council placed one of the rifles back into service.
In June 2008, Borough Council became aware of internet postings made
under the name “bigbear,” discussing the Council’s decision to remove the rifles from
service. Some postings by “bigbear” used derogatory language to refer to Council
members. In a January 16, 2008 posting, “bigbear” wrote “I told the mayor that I will be
carrying my [personal] rifle until next month, but that they will be providing me with
ammo.” Pursuant to Borough policy, Plaintiff was required to provide his own weapon
while on duty, but the Borough supplied ammunition.
The Council sent a letter to Plaintiff, asking whether he was the author of
internet postings under the name “Big Bear.” Plaintiff responded that he identified
himself on some web sites as “bigbear.” The Chairman of Duncannon’s Community
Policing Committee sent a letter dated July 1, 2008 to Beyer requesting his presence at a
fact-finding interview on July 8, 2008. On the day of the scheduled meeting, the
Chairman of the Committee received a written note from Plaintiff indicating that he would
not be able to attend the meeting. On July 15, 2008, at a regularly scheduled meeting,
the Council approved a motion terminating Plaintiff’s employment.

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Plaintiff argues that his termination was a result of his criticism of the
Council’s decision to remove the rifles from service and reference to the negative impact
on officer safety. Michael Fedor and Duane Hammaker, members of the Council,
contend Plaintiff was discharged because he failed to attend the July 8, 2008 meeting.
Hugh Brunner, another member of the Council, was concerned with an internet posting,
believed to be authored by Plaintiff, indicating he would continue to carry a rifle after
Council removed the Borough-owned rifles from service.
Council members Lauster, Bomberger, Fedor, and Bell voted in favor of
Plaintiff’s discharge. Members Brunner and Conrad voted against the discharge.
Hammaker did not participate in the vote, but he did, in his capacity as Council
President, send Plaintiff a termination notice.
Plaintiff brought the present action on July 17, 2009, alleging Defendants
Hammaker, Brunner, and the Duncannon Borough retaliated against him for exercise of
his First Amendment right of freedom of speech. Defendants filed a motion for summary
judgment on May 30, 2012. Plaintiff responded on August 3, 2012.
III.

Discussion
A. Standard of Review
We will examine the motions under the well-established standard.

Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d. Cir. 2008). We “must view all
evidence and draw all inferences in the light most favorable to the non-moving party, and

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may affirm a grant of summary judgment only if no reasonable juror could find for the
non-movant.” Id.
B. First Amendment Retaliation Claim
Defendants move for summary judgment, arguing that Plaintiff’s speech
was not protected by the First Amendment, Plaintiff has not provided sufficient evidence
to demonstrate that Defendants Hammaker and Brunner engaged in retaliatory action,
and the undisputed facts show that Plaintiff was terminated for failing to appear at the
July 8, 2008 fact-finding interview.1
To bring a retaliation claim, a plaintiff must allege three things: “(1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link between
the constitutionally protected conduct and the retaliatory action.” Thomas v.
Independence Twp., 463 F.3d 265, 296 (3d. Cir. 2006).
1. Constitutionally Protected Conduct
Defendants argue that Plaintiff was not engaged in any constitutionally
protected conduct. Specifically, Defendants contend that Plaintiff’s use of a derogatory

Defendants also argue that summary judgment should be granted “for postdischarge legal proceedings initiated by the Duncannon Police Officers Association,
including an uncompleted grievance proceeding and an unfair labor claim determined,
as a matter of law and Order of the Pennsylvania relations Board to have lacked legal
merit.” (Doc. 53, at 3). Defendants fail to explain how this grievance proceeding
relates to Plaintiff’s First Amendment claim, and thus, we will not consider the
argument.
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term in his internet posting was not constitutionally protected. The Third Circuit has found
that
A public employee's statement is protected activity only where (1) the
employee spoke as a citizen (2) about a matter of public concern and (3)
the government employer did not have an adequate justification for
treating the employee differently from any other member of the general
public as a result of the statement he made.
Hara v. PA Dep’t of Educ., 2012 U.S. App LEXIS 17066, *3-4 (3d Cir. 2012)
(nonprecedential) (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
Whether Plaintiff’s speech involves an issue of public concern is
determined by “the content, form, and context of a given statement, as revealed by the
whole record.” Connick v. Meyers, 461 U.S. 138, 147-48, 103 S. Ct. 1684, 75 L. Ed. 2d
708 (1983). Generally, such speech involves a social or political concern, such as
complaining about racial discrimination. Borden v. Sch. Dist., 523 F.3d 153, 170 (3d Cir.
2008). “[S]peech on matters of purely private concern is of less First Amendment
concern.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 759-60, 105
S. Ct. 2939, 86 L. Ed. 2d 593 (1985).
While off duty, Plaintiff posted anonymous messages in a public forum,
discussing the negative impact of the Council’s decision to remove the rifles from service.
His comments involve the safety of police officers in Duncannon Borough. The content,
form, and context of the postings show that he was speaking as a citizen about a matter
of public concern.

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To determine whether Defendants had an adequate justification for this
treatment of Plaintiff, we “balance the First Amendment interest of the employee against
'the interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.’” Borough of Duryea, Pa. v. Guarnieri, 131 S.
Ct. 2488, 2493, 180 L. Ed. 2d 408 (2011) (quoting Pickering v. Bd. of Educ. of Twp. High
Sch. Dist. 205, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)). Defendants
make no argument regarding how the Plaintiff’s use of profanities affects the public
services they provide. Instead, they argue that Plaintiff used derogatory terms to describe
members of the Borough Council, and this type of speech is not protected. They cite no
case law in support of their argument, and fail to address Plaintiff’s assertion that he was
fired in retaliation for comments critical of the Council’s behavior. Plaintiff’s use of
profanity does not preclude constitutional protection. See Cohen v. California, 403 U.S.
15, 25, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971) (finding profane speech may be
constitutionally protected).
2. Retaliatory Action
Defendants Hammaker and Brunner contend that Plaintiff has not
presented any evidence demonstrating that they engaged in retaliatory action. In order
to present a claim for retaliation, Plaintiff must show that Defendants engaged in
retaliatory conduct “sufficient to deter a person of ordinary firmness from exercising his or
her rights." Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Defendant
Brunner participated in the vote to discharge Plaintiff, but he voted against dismissal.

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We agree with Defendant Brunner that Plaintiff has not provided sufficient evidence that
demonstrates he was involved in any retaliatory action.
Defendant Hammaker, President of the Council, signed a letter to Plaintiff
reflecting the Council’s decision to discharge him. As President, Hammaker only casts a
vote to break a tie. The vote to discharge Plaintiff did not result in a tie, and Hammaker’s
vote was not needed. We agree with Defendant Hammaker that Plaintiff has not
provided any evidence that he engaged in retaliatory conduct.
The last remaining Defendant, Duncannon Borough, however, engaged in
action that may be considered retaliatory. Through its Council, the Borough chose to
discharge Plaintiff. Viewing the record in the light most favorable to the Plaintiff, a jury
could conclude Plaintiff’s termination was retaliatory.
3. Causal Link
The final element, a causal link between the retaliatory action and the
protected conduct, is in dispute. To determine whether there is a causal link, Plaintiff
must show:
(1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link. In the absence of that
proof, the plaintiff must show that from the “evidence gleaned from the
record as a whole” the trier of fact should infer causation.
Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citations omitted). The
defendant must know about the protected activity in order to demonstrate that it was a
causal link. Gorum v. Sessoms, 561 F.3d 179, 188 (3d Cir. 2009).

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Defendants argue that there is no causal link between Plaintiff’s discharge
and his protected speech. They contend that Plaintiff was discharged as a result of
failing to attend the fact-finding interview on July 8, 2008. The Council became aware of
the internet postings in June 2008, contacted Plaintiff about the postings, and then
sought to hold fact-finding hearing in early July. At this hearing, the Council wanted to
“better understand the postings by ‘bigbear’ on the internet.’” (Doc. 47-13). The proximity
of the Council’s discovery of the postings and Plaintiff’s termination indicate that there is
a causal link. In the light most favorable to the Plaintiff, a jury could find that the Council
retaliated against Plaintiff for making comments critical of their decision concerning the
rifles.
C. Qualified Immunity
Defendants’ final argument, put forth in a single footnote in their brief, is
that they are entitled to qualified immunity “[i]n deliberating upon and approving the
Resolution.” (Doc. 53, at 10). The resolution referred to by Defendants is the firearms
policy adopted by the Council on March 6, 2008, placing one rifle back into service and
selling the other.
Qualified immunity “shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). For a right to be
clearly established, its “contours must be sufficiently clear that a reasonable official

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would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S.
730, 739 (2002). The unlawfulness must be “apparent.” Id. Qualified immunity “protects
‘all but the plainly incompetent or those who knowingly violate the law.’” al-Kidd, at 2085
(citation omitted).
Defendants’ qualified immunity argument fails to address the present claim.
The retaliatory action alleged by Plaintiff is his discharge. Whether Defendants are
entitled to qualified immunity based upon the Council’s deliberation and adoption of the
firearms resolution is irrelevant.
IV.

Conclusion
Defendants’ Hammaker and Brunner have demonstrated that they are

entitled to summary judgment, because Plaintiff failed to show that they engaged in any
retaliatory conduct. Because there are genuine issues as to material facts surrounding
Plaintiff’s termination, Duncannon Borough has not established it is entitled to summary
judgment.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ERIC BEYER,
Plaintiff
v.
DUNCANNON BOROUGH, et al.,
Defendants

:
:
:
: CIVIL NO. 1:09-CV-1398
:
:
:

ORDER
AND NOW, this 1st day of October, 2012, upon consideration of
Defendants’ motion for summary judgment (Doc. 46), Plaintiff’s response thereto, and
pursuant to the accompanying Memorandum, it is ORDERED that:
1. Defendants’ motion for summary judgment is GRANTED as to
Defendants Brunner and Hammaker.
2. Defendants’ motion for summary judgment is DENIED as to Defendant
Duncannon Borough.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

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