Viola v. Borough of Throop et al

Filing 40

MEMORANDUM and ORDER denying 34 Motion for Reconsideration Signed by Honorable James M. Munley on 10/31/08 (sm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ERIC VIOLA, : No. 3:06cv1930 Plaintiff, : : (Judge Munley) : v. : : BOROUGH OF THROOP, : TOM LUKASEWICZ,, : STANLEY LUKOWSKI, : NEIL FURIOSI, and : TONY CHAZAN, : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: M E M O R AN D U M B e fo re the court is plaintiff's motion for reconsideration (Doc. 34) of this court's o rd e r (Doc. 33) granting defendants' motion for summary judgment. For the reasons s ta te d below, the court will deny that motion. B a c k g ro u n d 1 P la in tiff Eric Viola has been employed as a police office by the Village of T h ro o p , Pennsylvania since 2000. (Defendants' Statement of Material Facts as to w h ic h no genuine issue remains to be tried (Hereinafter "Defendants' Statement") (D o c . 23) at ¶ 6). As a full-time police officer, plaintiff was a member of the Throop P o lic e Officers Association and employed pursuant to a collective bargaining a g re e m e n t. (Id. at ¶¶ 7-8). The court cites to the defendants' statement of material facts for those facts which are not disputed. If the parties dispute facts, the decision will note that. 1 P la in tiff testified on May 18, 2006 at a hearing regarding a petition for a p ro te c tio n from abuse ("PFA") filed by his ex-girlfriend in Lackawanna, Pennsylvania c o u n ty court. (Id. at ¶ 9). The judge at that hearing did not issue the PFA. (Plaintiff's Statement of Facts in Dispute (hereinafter "Plaintiff's Statement") (Doc. 2 8 ) at ¶ 9). Though they did not testify, Defendants Police Chief Neil Furiosi, B o r o u g h Councilman Tony Chrzan and Mayor Stanley Lukowski were present at the h e a rin g . (Id.). T h e Borough suspended plaintiff with pay on June 9, 2006. (Defendants' S ta te m e n t at ¶ 10). The Borough informed plaintiff of his suspension by letter. (See D e fe n d a n ts ' Statement, Plaintiff's Deposition (Exh. 1), Exh. 7).2 As reasons for the s u s p e n s io n , the letter reported that during the week of May 29, 2006, plaintiff had b e e n observed "going into [his] residence several times during [his] shift, and re m a in in g [there] for approximately one-half of [his] entire shift." (Id.). Plaintiff, the le tte r claimed, had also twice failed to respond to calls from the Communications C e n te r. (Id.). During this period of suspension, the Defendant Borough deducted s ick time from plaintiff's account. (Defendant's Statement at ¶ 14). After plaintiff c o m p la in e d that this deduction was improper, the Borough restored his sick time. (Id. at ¶ 15). On June 15, 2006, the Defendant Borough again wrote to the plaintiff, Defendants have included plaintiff's deposition as Exhibit 1 of their statement of facts. Included in this deposition are individual exhibits, which are also numbered. Any further citation from the exhibits to this deposition will be noted as "Dep. Exh. (No.)." 2 2 in fo rm in g him of a hearing scheduled for July 5, 2006. (Dep. Exh. 8). The letter n o te d that plaintiff had been subjected to a disciplinary action which had a potential e ffe c t on his pay and employment with the Borough. (Id.). At the hearing, the letter s tate d , plaintiff would "be given an opportunity to respond to these allegations before T h ro o p Borough Council and offer any evidence" plaintiff possessed which would a llo w him to reduce or eliminate the disciplinary action he faced. (Id.). Plaintiff notified the Borough on June 23, 2006 that he had retained counsel, w h o would represent him at the hearing. (Defendants' Statement at ¶ 17; Dep. Exh. 1 0 ). That same day, plaintiff filed a grievance against the Borough challenging his p a id suspension. (Id. at ¶ 18). In his grievance, plaintiff alleged that the Department h a d suspended him without just cause and in violation of his due process rights. (Dep. Exh. 24). Plaintiff complained that he had been suspended without an e xp la n a tio n of the evidence against him or an opportunity to present his version of e ve n ts . (Id.). He sought reinstatement, removal of documents related to the s u s p e n s io n from his personnel file, and restoration of the benefits he had lost. (Id.). Plaintiff thus filed the documents necessary to state a grievance about his June 9, 2 0 0 6 suspension. (Defendants' statement at ¶ 20). A hearing on plaintiff's suspension took place on July 11, 2006. (Id. at ¶ 21). Counsel represented plaintiff at the hearing. (Id. at ¶ 22). Plaintiff testified at this h e a rin g . (Id. at ¶ 23). A witness, Charles Reed, testified for the plaintiff at this h e a rin g . (Id. at ¶ 24). This witness testified at the hearing and in his deposition that 3 o th e rs had committed the same offenses­leaving their assigned posts during s h ifts ­ fo r which the plaintiff had been punished. (Deposition of Charles Reed, Exh. 5 to Defendants' Statement (hereinafter "Reed Dep.") at 6-7). One officer took time a w a y from his shift to start vehicles belonging to his busing company. (Id. at 7). Reed could not recall officers­except for plaintiff­being punished by the Borough for s u c h behavior. (Id. at 9-10). He testified that he was "not aware" of whether others in the police force were disciplined for such behavior. (Id. at 15). The Borough s u s p e n d e d the plaintiff for ten days without pay after this hearing. (Defendants' S ta te m e n t at ¶ 25). Plaintiff filed a complaint in the Court of Common Pleas of Lackawanna C o u n ty , Pennsylvania on August 31, 2006. (Doc. 1-2). Defendants removed the c a s e to this court on September 28, 2006. (Doc. 1). One week later, they filed a m o tio n to dismiss the complaint. (Doc. 2). After the court considered briefs and oral a rg u m e n t, we denied the motion to dismiss in part and granted it in part. (Doc. 14). Plaintiff then filed an amended complaint. (Doc. 15). Count I of the amended c o m p la in t, brought pursuant to 42 U.S.C. § 1983, alleges that defendants violated p la in tiff's due process rights by suspending him with pay indefinitely and without pay fo r ten days without giving him an opportunity to be heard. (Id.). Count II, also b r o u g h t pursuant to Section 1983, contends that the defendants retaliated against th e plaintiff by suspending him without pay for ten days after he filed a grievance o ve r his initial suspension. (Id.). Count III raises a claim for violation of plaintiff's 4 rig h t to be free from governmental interference with family relationships, a state c la im for invasion of privacy, and a claim of publicity given to a private life. (Id. at 69 ) . Plaintiff claims that these wrongs arose from the PFA action dismissed against h im . Count IV is a failure to train claim against the defendants, who allegedly re c e ive d no training about providing due process before suspending an officer. After discovery closed, defendants filed a motion for summary judgment. (Doc. 22). On August 5, 2008, this court issued a memorandum and order granting d e fe n d a n ts ' motion for summary. Among the findings of the court was that plaintiff h a d not spoken on a matter of public concern and thus could not, as a state e m p lo y e e , maintain a cause of action for First Amendment retaliation. On August 1 5 , 2008, plaintiff filed the instant motion for reconsideration (Doc. 34), arguing that th e court committed clear error of law in making this determination.. Jurisdiction A s this case is brought pursuant to 42 U.S.C. § 1983, the court has jurisdiction p u rs u a n t to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all c ivil actions arising under the Constitution, laws, or treaties of the United States."). W e have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U .S .C . § 1367. L e g a l Standard "T h e purpose of a motion for reconsideration is to correct manifest errors of la w or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 799 5 F .2 d 906, 909 (3d Cir.1985); Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 1 7 6 F.3d 669, 677 (3d Cir. 1999). The movant must demonstrate one of three g ro u n d s for such a motion to be granted: (1) an intervening change in controlling la w ; (2) the availability of new evidence not previously available; or (3) the need to c o rre c t a clear error of law or to prevent manifest injustice. Max's Seafood Cafe, 176 F .3 d at 677. A motion for reconsideration is not a proper vehicle to attempt to c o n vin c e the court to rethink a decision it has already made. Glendon Energy Co. v. B o ro u g h of Glendon, 836 F. Supp.1109, 1122 (E.D. Pa. 1993). Such motions also m a y not be used to give a dissatisfied party a chance to "[change] theories and try a g a in ," obtaining a "`second bite at the apple.'" Bhatnagar v. Surrendra Overseas L td ., 52 F.3d 1220, 1231 (3d Cir. 1995); see also Ogden v. Keystone Residence, 2 2 6 F. Supp. 2d 588, 606 (M.D. Pa. 2002) (finding that "The simple fact that Ogden is unhappy with the result of the April 19, 2001 opinion is an insufficient basis to g ra n t her relief."). D i s c u s s io n In his brief in support of his motion for reconsideration, plaintiff appears to a tte m p t to revisit the court's grant of summary judgment to the defendants on p la in tiff's due process claim. He argues that the court erred in finding that his p ro m p t post-deprivation hearing following his initial, paid suspension provided him w ith the procedure he was due under the circumstances. Here, the defendant does n o t point to any change in the controlling law, new evidence or clear error of law by 6 th e court, but instead attempts to reargue the amount of process necessary under th e circumstances. Such arguments are improper on a motion for reconsideration, a n d the court will reject them. T h e plaintiff's motion for reconsideration on his First Amendment retaliation c la im , however, is a different matter. Here, the plaintiff does point to a clear error of la w in the court's interpretation. The court found that the plaintiff needed to speak on a matter of public concern to prevail on a First Amendment retaliation claim. In a F irs t Amendment retaliation case if "a public employee speaks not as a citizen upon m a tte rs of public concern, but instead as an employee upon matters only of personal in te re s t, absent the most unusual circumstances, a federal court is not the a p p ro p ria te forum in which to review the wisdom of a personnel decision taken by a p u b lic agency allegedly in reaction to the employee's behavior." Connick v. Myers, 4 6 1 U.S. 138, 147 (1983). The court concluded that because plaintiff's speech was s o le ly about an internal personnel matter and not related to any broader public c o n c e rn he was not entitled to First Amendment protection against retaliation. P la in tiff argues that the court committed clear error of law in finding that he did n o t speak on a matter of public concern when he filed a grievance concerning his p a id suspension. He points to Poraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007), to a r g u e that his case should be analyzed under the Petition Clause of the First A m e n d m e n t rather than as a case where a plaintiff spoke at a meeting or to a n e w s p a p e r about conditions on the job. Because plaintiff filed a grievance, he 7 a rg u e s , he is entitled to protection from First Amendment retaliation whether he s p o k e on a matter of public concern or not. We agree. In Poraker v. Chaffinch, three Delaware State Troopers filed a complaint when th e y were restricted to light duty after complaining in e-mails and through their la w y e r to the press about conditions at the indoor firing range they operated for the S ta te Police. Poraker, 501 F.3d at 233-34. The complaint the troopers filed in c lu d e d a claim for violation of their free speech rights and a count alleging violation o f their rights under the Petition Clause. Id. at 234. After a jury found in favor of the p la in tiffs , the District Court granted defendants judgment as a matter of law, finding th a t plaintiffs had not spoken on a matter of public concern but had simply performed the ir official duties; they had thus not engaged in a protected activity. Id. The Third C irc u it Court of Appeals in Foraker addressed plaintiff's argument that the e-mails s e n t regarding conditions at the firing range were an activity protected by the Petition C la u s e of the First Amendment. Id. at 235. The court noted that "a public employee w h o has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that a c tivity, even if the petition concerns a matter of solely private concern." Id. at 236 (c itin g San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)). Thus, when an e m p lo ye e makes a "formal petition" such as by filing a grievance, "the employee n e e d not show that the subject matter of the petition involved a matter of public c o n c e rn ." Id. at 236. 8 T h e Court agrees with the plaintiff that it should have concluded that plaintiff e n g a g e d in protected activity by filing his grievance concerning his paid suspension. Of course, merely finding that plaintiff need not speak on a matter of public concern to avoid summary judgment on his petition-clause retaliation claim does not end the in q u iry into this matter. To prevail on a First Amendment retaliation claim, "First, p la in tiff must show that he engaged in a protected activity. Second, plaintiff must s h o w that the protected activity was a substantial factor motivating the dismissal d e c is io n . Finally, defendant may defeat plaintiff's claim by demonstrating that the s a m e action would have taken place even in the absence of the protected conduct." San Filippo, 30 F.3d at 430. T h e court must therefore determine whether summary judgment is appropriate o n plaintiff's retaliation claim, even if plaintiff can establish that he engaged in a p r o te c te d activity. Granting summary judgment is proper if the pleadings, d e p o s itio n s , answers to interrogatories, and admissions on file, together with the a ffid a vits , if any, show that there is no genuine issue as to any material fact and that th e moving party is entitled to judgment as a matter of law. See Knabe v. Boury, 114 F .3 d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard p ro vid e s that the mere existence of some alleged factual dispute between the parties w ill not defeat an otherwise properly supported motion for summary judgment; the re q u ire m e n t is that there be no genuine issue of material fact." Anderson v. Liberty L o b b y, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). 9 T h e court has concluded that plaintiff, in filing a petition that was not a sham, h a s satisfied the first of these three elements. He must therefore establish that his g rie va n c e was a substantial motivating factor in the decision to suspend him without p a y. Plaintiff argues that defendants retaliated for his exercise of his petition rights b y "suspending [him] for an additional 10 days without pay after already serving 32 d a ys of the first suspension for the alleged same infractions. Hence, Viola was s e n te n c e d twice for the same wrongdoing." (Plaintiff's Brief in Support of his Motion fo r Reconsideration (Doc. 37) at 8). The defendants did no additional investigation, "s in c e it had been completed prior to the first suspension." (Id. at 6). Since this s u s p e n s io n appeared merely to add onto the original suspension, plaintiff contends th a t the filing of the grievance must have been a substantial motiving factor in the d e c is io n to suspend him with pay. T h e court finds that the plaintiff's position misconstrues the facts of the case. A rational jury would have to reject plaintiff's claim that he was suspended twice for th e same offense; instead, the defendants followed the procedures laid out to d is c ip lin e officers in their collective bargaining agreement by delaying a suspension th a t cost plaintiff pay until a formal hearing could examine the allegations against h im . This procedure consisted of a June 9, 2004 letter that informed plaintiff he had b e e n suspended with pay and gave him the reasons for his suspension. A letter s e n t plaintiff on June 15, 2004 informed him that he was entitled to a hearing before a n y further disciplinary action would take place. The terms of the June 15, 2004 10 le tte r make clear that plaintiff "may be subject to disciplinary action which could a ffe c t your pay and/or your employment as a Throop Police Officer." (See Exh. 3 to D e fe n d a n ts ' Statement (Doc. 24-3) at 36). This language conforms to the labor a g re e m e n t between officers and the Village of Throop, which establishes that "[n]o d is m is s a l, demotion, reassignment, or other personnel action which might result in the loss of pay or other benefits or which might otherwise be considered a punitive m e a s u re shall be taken against any Police Officer unless such Police Officer is n o tifie d of the action and the reason or reasons thereof prior to the effective date of s u c h action." (Agreement Setting Forth W a g e s , W o rk in g Conditions and Other B e n e fits of Employment Between the Borough of Throop and the Throop Police O ffic e rs Association, Attached as an Exhibit to Defendants' Statement (Doc. 54-4) at 1 9 ). On July 11, 2004, plaintiff appeared with his attorney at the hearing. At the c lo s e of this hearing, the defendants suspended plaintiff without pay for ten days. T h e court finds that plaintiff has presented no evidence by which a jury could c o n c lu d e that his filing of a grievance was a "substantial motivating factor" in the d e c is io n to suspend him without pay for ten days. San Filippo, 30 F.3d at 340. B e tw e e n the time that plaintiff received notice of his suspension and the disciplinary a c tivity contemplated against him, he hired an attorney and filed a grievance. Given the fact that the disciplinary hearing was a normal part of the disciplinary procedure in the police department and the hearing was scheduled before plaintiff ever filed his g rie va n c e , a jury could not find that the decision to hold the hearing was motivated 11 b y the grievance. Plaintiff apparently contends that the decision at the hearing was a result of this grievance, and not an outcome of the procedure that had been in itia te d before he ever hired an attorney. He does not point, however, to any e vid e n c e that indicates that the decision at the hearing came because he filed a g rie va n c e and not because of the evidence that had been accumulated against him. Therefore, no evidence exists by which a jury could find that the grievance plaintiff file d was a substantial motivating factor in the decision to suspend him. Moreover, even if a jury could find that the filing of the grievance was a s u b s ta n tia l motiving factor in the decision to suspend plaintiff without pay, plaintiff h a s not presented any facts by which a jury could discount the defendants' evidence th a t plaintiff's suspension came because he had failed properly to perform his duties a s a police officer. Plaintiff merely repeats the unfounded allegation that he was s u s p e n d e d twice for the same offense, and does not challenge the facts that u n d e rla y that suspension.3 As such defendants have "defeat[ed] plaintiff's claim by d e m o n s tra tin g that the same action would have taken place even in the absence of th e protected conduct." San Filippo, 30 F.3d at 430. Accordingly, plaintiff has not e s ta b lis h e d that there exists any genuine issue of material fact on the issue of First A m e n d m e n t retaliation, and summary judgment is appropriate on that claim. The court notes that to accept plaintiff's position­that a mere temporal proximity between the filing of a grievance and an adverse decision in a disciplinary hearing justifies a finding of first amendment retaliation­would be to allow a plaintiff to recover whenever he files a grievance related to a disciplinary proceeding against him, no matter how just the disciplinary action. 12 3 C o n c l u s io n F o r the reasons stated above, the court will deny the plaintiff's motion for re c o n s id e ra tio n . An appropriate order follows. 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ERIC VIOLA, : No. 3:06cv1930 Plaintiff, : : (Judge Munley) : v. : : BOROUGH OF THROOP, : TOM LUKASEWICZ,, : STANLEY LUKOWSKI, : NEIL FURIOSI, and : TONY CHAZAN, : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: ORDER AN D NOW, to wit, this 31st day of October 2008, the plaintiff's motion for re c o n s id e ra tio n (Doc. 34) is hereby DENIED. BY THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U n it e d States District Court 14

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