Viola v. Borough of Throop et al

Filing 60

MEMORANDUM and ORDER GRANTING dft's motion for summary judgment ; and denying plaintiff's 47 Motion for Summary Judgment; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 11/30/10 (sm, )

Viola v. Borough of Throop et al

Doc. 60

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA E R IC VIOLA, : N o . 3:06cv1930 P la in t if f , : : (J u d g e Munley) : v. : : B O R O U G H OF THROOP, : T O M LUKASEWICZ,, : S T A N L E Y LUKOWSKI, : N E IL FURIOSI, and : T O N Y CHAZAN, : D e fe n d a n ts : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM B e fo re the court are the parties' motions for summary judgment in c o n s id e ra tio n of the Third Circuit Court of Appeals' mandate in this case. Having b e e n fully briefed, the matter is ripe for disposition. 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.

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Plaintiff 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 ro 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 ic k 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 the plaintiff, informing

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

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him of a hearing scheduled for July 5, 2006. (Dep. Exh. 8). The letter noted that p la in tiff had been subjected to a disciplinary action which had a potential effect on h is pay and employment with the Borough. (Id.). At the hearing, the letter stated, p la in tiff would "be given an opportunity to respond to these allegations before Throop B o ro u g h Council and offer any evidence" plaintiff possessed which would allow him to reduce or eliminate the disciplinary action he faced. (Id.). A hearing on plaintiff's suspension took place on July 11, 2006. (Defendants' S ta te m e n t at ¶ 21). Counsel represented plaintiff at the hearing. (Id. at ¶ 22). Plaintiff testified at this hearing. (Id. at ¶ 23). A witness, Charles Reed, testified for th e plaintiff at this hearing. (Id. at ¶ 24). This witness testified at the hearing and in h is deposition that others had committed the same offenses­leaving their assigned p o s ts during shifts­for which the plaintiff was punished. (Deposition of Charles R e e d , Exh. 5 to Defendants' Statement (hereinafter "Reed Dep.") at 6-7). One o ffic e r took time away from his shift to start vehicles belonging to his busing c o m p a n y . (Id. at 7). Reed could not recall officers­except for plaintiff­being p u n is h e d by the Borough for such behavior. (Id. at 9-10). He testified that he was "n o t aware" of whether others in the police force were disciplined for such behavior. (Id. at 15). The Borough suspended the plaintiff for ten days without pay after this h e a rin g . (Defendants' Statement 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

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case 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). The court denied the motion to dismiss in p a rt and granted it in part. (Doc. 14). Plaintiff then filed an amended complaint. (Doc. 15). Count I of the amended complaint, brought pursuant to 42 U.S.C. § 1983, a lle g e d that defendants violated plaintiff's due process rights by suspending him with p a y indefinitely and without pay for ten days without giving him an opportunity to be h e a rd . (Id.). Count II, also brought pursuant to Section 1983, contended that the d e fe n d a n ts retaliated against the plaintiff by suspending him without pay for ten days a fte r he filed a grievance over his initial suspension. (Id.). Count III raised a claim fo r violation of plaintiff's right to be free from governmental interference with family re la tio n s h ip s , a state claim for invasion of privacy, and a claim of publicity given to a p riv a te life. (Id. at 6-9). Plaintiff claimed that these wrongs arose from the PFA a c tio n dismissed against him. Count IV was a failure to train claim against the d e fe n d a n ts , who allegedly received no training about providing due process before s u s p e n d in g an officer. After discovery closed, defendants filed a motion for summary judgment. (Doc. 22). On August 5, 2008, the court granted the defendants' motion and closed th e case. (See Doc. 33). Plaintiff filed a motion for reconsideration, and when the c o u rt denied this motion appealed. (Docs. 34, 35, 40, 41). On July 22, 2010, the T h ird Circuit Court of Appeals affirmed this court's opinion in part and reversed that o p in io n in part. (Doc. 43). The Appeals court upheld summary judgment on

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plaintiff's retaliation claim but reversed this court's opinion on the due process claim. The Appeals Court remanded the case to this court with instructions to reconsider th e case in light of Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir. 2009), which c o n c lu d e d that a protected property interest could exist when a public-employee p la in tiff was suspended, and not terminated. The court also directed that this court's "in q u iry on remand . . . include an analysis of the factors set forth in Mathews v. E ld rid g e , 424 U.S. 319, 335 (1976) in the context of the property interest recognized in Dee." Such an "inquiry," the court stressed, "requires a heightened government in te re s t where the government provides process only after deprivation." (Doc. 44 at 4 ). A fte r receiving this opinion, the court ordered the parties to file briefs a d d re s s in g the issues raised by the Third Circuit. Defendants filed a brief as d ire c te d . Plaintiff filed a motion for summary judgment, a statement of material facts a n d a brief in support of that motion. The parties then briefed the plaintiff's motion, b rin g in g the case to its present posture. 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 iv il actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U .S .C . § 1367.

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Legal Standard G ra n tin g summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th a t there is no genuine issue as to any material fact and that the moving party is e n title d to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3 d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere e x is te n c e of some alleged factual dispute between the parties will not defeat an o th e rw is e properly supported motion for summary judgment; the requirement is that th e re be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 247-48 (1986) (emphasis in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. International Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. Where the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the

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burden shifts to the nonmoving party, who must go beyond its pleadings, and d e s ig n a te specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324. D is c u s s io n T h e court of appeals directed this court to "reconsider [the due process] claim in light of our analysis in Dee. The court's inquiry on remand will include an analysis o f the factors set forth in Mathews v. Eldridge, 424 U.S. 319, 335 (1976) in the c o n te x t of the property interest recognized in Dee. That inquiry requires a h e ig h te n e d government interest where the government provides process only after th e deprivation." (Opinion (Doc. 44-2) at 4). In Dee, plaintiff had worked for e ig h te e n years for the Defendant Borough of Dunmore's fire department. 549 F.3d a t 227. In June 2005, the Borough suspended him without notice after concluding th a t plaintiff had not completed two training requirements. Id. Eight days after a n n o u n c in g this suspension, the Borough Council held a hearing, concluding that p la in tiff was current in all of his training and should not be suspended. Id. Plaintiff b ro u g h t a procedural due process claim based on this suspension. Id. He appealed w h e n the district court determined that his suspension did not implicate a c o n s titu tio n a lly protected property interest. Id. Analyzing state law and the p ro v is io n s of plaintiff's collective bargaining agreement, the Court of Appeals c o n c lu d e d that plaintiff had a "constitutionally protected property interest in not being s u s p e n d e d without just cause." Id. at 232.

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Once the court made this determination, it evaluated whether Dee received th e level of process to which he was "constitutionally due." Id. The court employed fa c to rs developed the by the United States Supreme Court in Matthews v. Eldridge, 4 2 4 U.S. 319 (1976): "First, the private interest that will be affected by the official a c tio n ; second, the risk of an erroneous deprivation of such interest through the p ro c e d u re s used, and the probable value, if any of additional or substitute procedural s a fe g u a rd s ; and finally, the Government's interest, including the function involved a n d the fiscal and administrative burdens that the additional or substitute procedural re q u ire m e n t would entail." Matthews, 424 U.S. at 335. Dee had received neither n o tic e nor an opportunity to be heard before his suspension, and found that "when a n individual is not provided with any form of pre-deprivation process, as in this c a s e , the risk of an erroneous deprivation of his constitutionally protected interest . . . is heightened considerably." Dee, 549 F.3d at 232. The court found that in a s itu a tio n where an important right is at stake and no pre-deprivation process takes p la c e , "[o]nly in `extraordinary situations where some valid governmental interest is a t stake' is it permissible to postpone the hearing until after the deprivation has a lre a d y occurred." Id. at 233. The district court had not reached this issue, and the C o u rt of Appeals remanded the case to the district court to determine whether the fa c ts of the case amounted to one of those "extraordinary situations" where no pred e p riv a tio n process was necessary. Id. This court earlier determined that plaintiff's interest in not being suspended

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with pay from his job constituted a protected property interest. The Court of Appeals d id not disturb that finding. Thus, the Due Process Clause applies to this case, and th e question is whether plaintiff received adequate process before his suspension w ith pay. "[O]nce it is determined that the Due Process Clause applies, `the question re m a in s what process is due.'" Cleveland Board of Education v. Loudermill, 470 U.S. 5 3 2 , 541 (1985) (quoting Morrisey v. Brewer, 408 U.S. 471, 481 (1972)). Courts h a v e found that due process "is not a technical conception with a fixed content u n re la te d to time, place and circumstances.'" Matthews v. Eldridge, 424 U.S. 319, 3 3 4 (1976) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). Instead, courts are to inquire into the circumstances of the deprivation to determine w h a t process is required. Id. Accordingly, "`[consideration] of what procedures due p ro c e s s may require under any given set of circumstances must begin with a d e te rm in a tio n of the precise nature of the government function involved as well as of th e private interest that has been affected by governmental action.'" Wolff v. M c D a n ie l, 418 U.S. 539, 560 (1974) (quoting McElroy, 367 U.S. at 895). Three factors are to be considered in this analysis: "the private interest that w ill be affected by the official action; second, the risk of an erroneous deprivation of s u c h interest through the procedures used, and the probable value, if any, of a d d itio n a l or substitute procedural safeguards; and finally, the Government's in te re s t, including the function involved and the fiscal and administrative burdens th a t the additional or substitute procedural requirement would entail." Mathews, 424

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U.S. at 335. Of particular importance in this case, as explained by the Court of A p p e a ls , is the question of whether an emergency situation existed that justified d e fe n d a n t's actions in suspending plaintiff without a hearing. A s to the first factor, the private interest affected by the official action, the S u p re m e Court has found that "while our opinions have recognized the severity of d e p riv in g someone of the means of his livelihood . . . they have also emphasized th a t in determining what process is due, account must be taken of "the length" and "fin a lity of the deprivation." Gilbert v. Homar, 520 U.S. 924, 932 (1997). Addressing a case where an employee faced a temporary, unpaid suspension, the court c o n c lu d e d that "[s]o long as the suspended employee receives a sufficiently prompt p o s ts u s p e n s io n hearing, the lost income is relatively insubstantial (compared with te rm in a tio n ), and fringe benefits such as health and life insurance are often not a ffe c te d at all." Id. In this case, the evidence indicates that plaintiff was suspended w ith pay. He at first had to use his sick time during the suspension, but the evidence d e m o n s tra te s that the Borough restored that sick time. The plaintiff therefore faced e v e n less of a loss to his private interest that the plaintiff in Gilbert; his suspension w a s with pay, and any loss of benefits in the form of sick leave that he faced was re c tifie d . As such the court finds that only a minimal private interest was affected by p la in tiff's suspension with pay. See, e.g., Espinosa v. County of Union, 212 Fed. A p p x . 146, 155 (3d Cir. 2007) (concluding that "a temporary suspension without pay g e n e ra lly does not require a predeprivation hearing").

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As to the second factor, as in Dee the Borough provided plaintiff with notice b u t not an opportunity to be heard before suspending him. As the court noted in D e e , "when an individual is not provided with any form of pre-deprivation process, as in this case, the risk of an erroneous deprivation of his constitutionally protected in te re s t . . . is heightened considerably." Dee, 549 F.3d at 232. Deprivation without p ro c e s s , the court emphasized, should be restricted to those "`extraordinary s itu a tio n s where some valid government interest is at stake.'" Id. at 233 (quoting R o th , 408 U.S. at 570 n. 7). In Dee, a factual dispute existed over the defendant's s ta te d reasons for suspending the plaintiff without process. Id. The defendant c o n te n d e d that it suspended plaintiff because he lacked proper certification to serve a s a firefighter. Id. Plaintiff pointed to evidence he said established that the d e fe n d a n t's stated reasons for suspending him were pretextual, and insisted that d e fe n d a n t acted out of concern for its public reputation. Id. The court remanded the c a s e to the district court to consider the Mathews factors, noting that this disputed is s u e of fact would "greatly impact the analysis of the factors to be examined." Id. D e fe n d a n ts must, therefore, establish the presence of an "extraordinary s itu a tio n " that would justify suspending plaintiff without providing him with an o p p o rtu n ity to be heard or this factor will weigh heavily in plaintiff's favor. Defendants allege that plaintiff demonstrated a "continual and pernicious neglect of h is duties," which "placed his fellow officers at risk and undermined the department's a b ility to conduct its mission to protect the citizens of the Borough of Throop."

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(Defendants' Supplement Brief at 6). The Borough's interest in ensuring that citizens h a d reliable and trustworthy police protection, defendants insist, justifies their im m e d ia te suspension of plaintiff. Moreover, plaintiff's interest in not being s u s p e n d e d with pay is minimal, and the government's interest surely outweighs it. Plaintiff responds that no emergency situation could have existed, since the Borough in v e s tig a te d plaintiff for twelve days before suspending him. If an immediate s u s p e n s io n were necessary to protect the public, the Borough would have acted e a rlie r. The court agrees with the defendants that this represents one of those e x tra o rd in a ry situations where an immediate suspension was necessary to protect th e public interest. This case has to do with the integrity and reliability of the B o ro u g h police force and therefore implicates an important governmental interest. In a p p ro v in g the suspension of a bank officer indicted for fraud before a hearing, the S u p re m e Court in Federal Deposit Ins. Corp. v. Mallen, found that "[a]n important g o v e rn m e n t interest, accompanied by a substantial assurance that the deprivation is n o t baseless or unwarranted, may in limited cases demanding prompt action justify p o s tp o n in g the opportunity to be heard until after the initial deprivation." Id. at 240. In Homar v. Gilbert, 89 F.3d 1009 (3d Cir. 1996), the Third Circuit Court of Appeals c o n c lu d e d that this "compelling governmental interest" test had been satisfied when a university suspended a police officer arrested on drug charges without a pred e p riv a tio n hearing. Homar, 89 F.3d at 1015. The Court concluded that "[t]he

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university has a substantial interest in maintaining public confidence in the ESU p o lic e force" and plaintiff's arrest made clear "that the university's concerns were not b a s e le s s or unwarranted." Id. "In cases where public safety is implicated," the

c o u rt found, "`not even an informal hearing . . . must precede a deprivation.'" Id. (q u o tin g Caine v. Hardy, 943 F.2d 1406, 1412 (5th Cir. 1991)).3 This case similarly h a s to do with the trustworthiness and reliability of public institutions and public o f f ic e r s . Police officers are necessary to insure public health and safety, and they must a tte n d to those duties in order to inspire public confidence in the police force and, m o re important, to provide the protection that is the purpose of the police. Once the B o ro u g h confirmed that plaintiff had been neglecting his duties, the nature of the s itu a tio n became clear and public safety demanded a suspension.4 This case is d iffe re n t from Dee, where there was a disputed issue of fact about the reason for

The Court nonetheless found that the district court erred in granting defendants summary judgment. Plaintiff had been suspended without pay, and the court concluded that "The Supreme Court's decision in Loudermill strongly suggests that suspension without pay must be preceded by notice and an opportunity to be heard in all instances." Homar, 89 F.3d at 1015. Plaintiff's argument that the Borough's failure to suspend plaintiff immediately when accusations of misconduct appeared is evidence that no emergency existed is unavailing; plaintiff would apparently find an emergency situation existed only if the Borough felt compelled to suspend plaintiff even before investigating the allegations against him. To suspend without an investigation, however, would increase the risk of erroneous deprivation substantially. Since the reason for confining suspension without a hearing to extraordinary circumstances is partly to limit the risk of an erroneous deprivation, plaintiff's position would actually encourage an employer to suspend employees at the first hint of improper behavior, thus increasing the risk of erroneous deprivation. 13
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plaintiff's suspension. The defendant here had a well-founded reason to believe that p la in tiff was endangering the public by not attending to his duties as a police officer; in d e e d , it is undisputed that plaintiff failed to report for duty and left his duty station w ith o u t permission. Suspending plaintiff pending an investigation was necessary so th e Borough could be assured that a police officer assigned to duty actually p e rfo rm e d the duties assigned. The court finds that this is one of those "e x tra o rd in a ry situations" where prompt government action was necessary to protect th e public safety. In addition, the court finds that the risk of erroneous suspension in th is matter was slight. Defendants informed plaintiff at the time of his paid s u s p e n s io n of the grounds for the suspension. Plaintiff did not then, nor has he ever d is p u te d the fact that he did not fulfill his assigned duties. This factor therefore w e ig h s in favor of the defendants. Finally, the court must consider "the Government's interest, including the fu n c tio n involved and the fiscal and administrative burdens that the additional or s u b s titu te procedural requirement would entail." Mathews, 424 U.S. at 335. D e fe n d a n ts argue that the Borough has a strong interest in insuring that proper p o lic e protection and public safety exist, and that such action justifies a suspension w ith notice but without an opportunity to be heard. Defendants do not address, h o w e v e r, the additional fiscal and administrative burdens that would apply if the B o ro u g h were forced to convene a full hearing before suspending the plaintiff with p a y . Plaintiff does not address these factors either, insisting instead that no

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emergency situation occurred and thus the suspension without a hearing was u n ju s tifie d no matter the weight of the other Mathews factors. The court finds that th e Borough has a substantial interest in promoting public safety through a reliable p o lic e force. The parties have provided no estimate of the cost or burden of a d d itio n a l procedure before suspension, which the court concludes would have been s o m e opportunity to contest the charges. This additional procedure would have lim ite d the substantial government interest in promoting public safety through a re lia b le police force, though not to an intolerable degree. This factor, therefore, is n e u tra l in the analysis. In the end, the court, using the factors articulated in Mathews, finds that s u m m a ry judgment is appropriate for the defendant on plaintiff's procedural due p ro c e s s claim related to his suspension with pay. The court concludes that the p riv a te interest at stake­suspension with pay­was minor. Plaintiff did not lose any p a y , and the sick time he originally used to cover the suspension was restored. The c o u rt also finds that the extraordinary nature of this situation justified a prompt s u s p e n s io n before plaintiff received an opportunity to be heard. Plaintiff was a police o ffic e r, and his admitted neglect of his duties placed other officers and the public at ris k . The Borough needed to be assured that police officers assigned to duty would a c tu a lly perform their duties. The plaintiff's suspension with pay, coupled with the B o ro u g h 's investigation and letter informing him of the charges against him, limited th e risk of erroneous deprivation. Finally, police protection is itself an important

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government interest that requires close and careful supervision. Though adding a h e a rin g before paid suspension would not necessarily burden the Borough s u b s ta n tia lly , this factor when added to plaintiff's minor interest does not outweigh th e Borough's need to act quickly. Plaintiff's Motion T h e plaintiff filed a motion for summary judgment on his procedural due p ro c e s s claim after the Court of Appeals remanded this case. As the court has c o n c lu d e d that summary judgment is appropriate for the defendant on this claim, the c o u rt will deny the plaintiff's motion C o n c lu s io n F o r the reasons stated above, the court will therefore grant the defendants' m o tio n for summary judgment and deny the plaintiff's motion. An appropriate order f o l lo w s .

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA E R IC VIOLA, : N o . 3:06cv1930 P la in t if f , : : (J u d g e Munley) : v. : : B O R O U G H OF THROOP, : T O M LUKASEWICZ,, : S T A N L E Y LUKOWSKI, : N E IL FURIOSI, and : T O N Y CHAZAN, : D e fe n d a n ts : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

ORDER A N D NOW, to wit, this 30th day of November 2010, the defendants' motion for s u m m a ry judgment (Doc. 22) is hereby GRANTED. The plaintiff's motion for s u m m a ry judgment (Doc. 47) is hereby DENIED. The Clerk of Court is directed to C L O S E the case.

BY THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U n ite d States District Court 17