Watson v. Borough of Susquehanna et al

Filing 166

MEMORANDUM OPINION - For the foregoing reasons, the Court will grant Defendants' Motion for Judgment as a Matter of Law and vacate the judgment against Defendant Perry, Jr. on Plaintiffs First Amendment retaliation claim with respect her courtro om testimony against William Perry, Sr. It will also vacate the award of $5,000 in compensatory damages and $10,000 in punitive damages. As such, Plaintiffs Motion for Reinstatement (Doc. 128), Motion for Attorney's Fees (Doc. 130), and Motion for Consideration of Defense Counsel Attorney Rates and Attorney Invoices and Statements (Doc. 143) are denied as moot. Signed by Honorable Robert D. Mariani on 10/23/12. (jfg)

THE UNITED STAlES DISTRICT COURT
FOR THE MIDDLE DlrTRICT OF PENNSYLVANIA
LAURA WATSON
Plaintiff

v.

3:09·CV·294
(JUDGE MARIANI)

BOROUGH OF SUSQUEHANNA, et ai.,
Defendants
MEMORANDUM OPINION

I. Introduction
Before the Court is Defendants' renewed Motion for Judgment as a Matter of Law
(Doc. 134) and all accompanying briefs. For the reasons set forth below, the Court will
grant Defendants' Motion.
II. Procedural History
Trial commenced in this case on April 30, 2012. At the close of Plaintiffs case-in­
chief, Defendants' attorney, Mr. Murphy, moved for judgment as a matter of law ('IJMOL"),
but the Court deferred ruling on the motion. At the close of the Defendants' case-in-chief
and at the close of all the evidence, Attorney Murphy renewed the motion, and again, the
Court deferred ruling on it. Following the jury's return of a verdict, Defendants' attorney
once more renewed the motion and alternatively requested a new trial pursuant to Federal
Rule of Civil Procedure 59. (Doc. 134).

On May 7,2012, a jury rendered a [erdict in favor of Defendant Matis and Defendant

Borough of Susquehanna, but rendered a partial verdict against Defendant Perry, .Jr. on
Plaintiff's claim of First Amendment retaliation with respect to her testimony against
Defendant Perry, Jr.'s father at an unrelated criminal hearing. The jury awarded Plaintiff
$5,000 in compensatory damages and $10,000 in punitive damages with respect to this
constitutional violation.
III. Statement of Facts 1
Until her termination in September 2008, Plaintiff Laura Watson had been a police
officer with the Borough of Susquehanna since September 2006. (Watson testimony, Tr.
Trans., Doc. 145, 114:14-115:5). On July 14, 2008, as part of her duties, she testified
against Defendant Perry, Jr.'s father at a preliminary hearing in a criminal case. (Id. at
139:3-16). Defendant Perry, Jr. was present for at least a portion of the preliminary hearing.
(Id. at 139:12-16). Following the charges being bound over for trial (id. at 139:18-19), Perry,

Sr. pled guilty to the charge of false reports on August 28, 2008. (Watson testimony, Tr.
Trans., Doc. 146,8:9-11).
Shortly afterwards, on September 9, 2008, Plaintiff learned that her Section 8
housing assistance form had been "passed ... around" at a "special" Council meeting. (Id.
at 12:6-9). The next day, she found that same form "right on the phone [at the station],
open to any police officer to view." (Id. at 112:18-19). She confronted the Borough
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1 The following is a truncated statement of facts. Because the Court is granting Defendants' Motion for
JMOL, a full recitation of the facts is unnecessary.

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Secretary-Treasurer, Ann Stewart, about the disclosure of this "private" information. (Id. at

13:11-14:13). Stewart testified that the reJson for this "disclosure" was that Plaintiff's time
card indicated she was on duty when she was at the Housing Authority office attending to
personal business, and because part of Stewart's duties as Secretary-Treasurer involved
payroll, she brought the matter to Defendant Matis's attention. (Stewart testimony, Tr.
Trans., Doc. 147, 15:16-20; 16:23-17:13; 18:11-24:24). Multiple witnesses testified that this
confrontation grew heated and angry, including threats by Plaintiff against Stewart and
Stewart's husband. (Id. at 27:7-28:22; see also Collier testimony, Tr. Trans., Doc. 146,
111 :25-113:18; Def. Ex. 23). At another special meeting of the Council on September 17th,
Plaintiff again protested the distribution of her form to Borough Council members. (Watson
testimony, Tr. Trans., Doc. 146,15:3-5; 54:1-55:10). Again, multiple witnesses testified that
Plaintiff was extremely angry and threatened Council members. (See, e.g., Scales
testimony, Tr. Trans., Doc. 147, 87:1-88:7; Dewitt testimony, 115:21-116:11; Iveson, Jr.
testimony,225:23-226:14). She was terminated by letter later that month. (Watson
testimony, Tr. Trans., Doc. 146, at 56:10-15).
Plaintiff argued that because of these two instances of protected free speech,2 the
Borough Council, acting on behalf of Defendant Borough of Susquehanna, Defendant
Michael Matis (President), and Defendant William Perry, Jr. (Vice-President) retaliated
against her by terminating her employment in violation of her First Amendment rights. She
2 That is, her testimony against Perry, Sr. and her report of misconduct in the form of disclosure of her
private and confidential information.

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also alleged that she was terminated in viqlation of the Pennsylvania Whistleblower Law.
43 P.S. §§ 1421-1428.
After hearing all the evidence, the jury found that Defendant Matis had been aware
of Plaintiffs testimony against William Perry, Sr. and had been influenced by that knowledge
when he voted to terminate Plaintiffs employment with the Borough. (Sp. Verd. Form, Doc.
122, 1I1l1-2). However, the jury further found that he would have made the same decision
regardless of whether Plaintiff had testified against William Perry, Sr. (Id. at ~ 3). The jury

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also found that none of the other four Borough Council members who had voted to
terminate Plaintiffs employment had been aware of Plaintiffs testimony against Perry, Sr.

(ld. at ~ 21). Thus, the jury found that of all the Council members who had voted to
terminate Plaintiffs employment, only Defendant Perry, Jr. had been motivated by

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retaliatory reasons (for Plaintiffs testimony against his father), and that he would not have
made the same decision to vote to terminate her in the absence of such protected speech.
(Id. at 1I1l11-13). The jury found in favor of all Defendants on Plaintiffs First Amendment

retaliation claim with respect to her report of the disclosure of her private financial
information, as well as Plaintiffs state lawwhistleblower claim. (See id.).

IV. Analysis
Standard of Review
Under Fed. R. Civ. P. 50(a)(1):
If a party has been fully heard o~ an issue during a jury trial and the court
'finds that a reasonable jury woul8 not have a legally sufficient evidentiary
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basis to find for the party on that issue, the court may: (A) resolve the issue
against the party; and (8) grant a motion for judgment as a matter of law
against the party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.
If acourt declines to grant a motion for judgment as a matter of law under Rule 50(a), a
party may renew its motion after trial under Rule 50(b), wherein "the court is considered to
have submitted the action to the jury subject to the court's later deciding the legal questions
raised by the motion." A motion for judgment as a matter of law "should be granted only if,
viewing the evidence in the light most favorable to the nonmoving party, there is no question
of material fact for the jury and any verdict other than the one directed would be erroneous
under the governing law." McGreevy v. Stroup, 413 F.3d 359, 364 (3d Cir. 2005) (internal
citations and quotation marks omitted). Although judgment as a matter of law should be
granted sparingly, it is appropriately granted when "the record is critically deficient of the
minimum quantum of evidence in support of the verdict. The question is not whether there
is literally no evidence supporting the unsuccessful party, but whether there is evidence
upon which a reasonable jury could properly have found its verdict." Eshelman v. Agere
Sys., Inc., 554 F.3d 426, 433 (3d Cir. 2009) (internal citations and quotation marks omitted).
In conducting its inquiry, the court "must refrain from weighing the evidence, determining the
credibility of witnesses, or substituting our own version of the facts for that of the jury." Id.
First Amend"lent Retaliation Claim
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To establish aFirst Amendment ret~liation claim, a plaintiff must prove three
elements: (1) that she engaged in constitutionally protected activity; (2) that the government
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responded with retaliation; and (3) that theiprotected activity caused the retaliation. Miller v.
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Mitchell, 598 F.3d 139, 147 (3d Cir. 2010).1 "It is only intuitive that for protected conduct to
be a substantial or motiving factor in a decision, the decisionmakers must be aware of the
protected conduct." Ambrose V. Twp. of Robinson, 303 F.3d 488,493 (3d Cir. 2002).
Previously, Judge Munley held that Plaintiffs testimony at Defendant Perry, Sr.'s
preliminary hearing constituted protected activity. (Doc. 47, at 10) (citing Pro V. Donatucci,
81 F.3d 1283, 1291 n.4 (3d Cir. 1996) {"courtroom testimony ... raises the speech to a
level of public concern regardless of its content, which in turn affords otherwise unprotected
speech First Amendment protection.").3 Furthermore, it is undisputed that Plaintiff suffered
an adverse action in the form of termination from her employment. However, the jury
expressly found that of the six Borough Council members who voted to terminate Plaintiffs
employment, four members 4 were unaware that she had testified against Perry, Sr. (Sp.
Verd. Form, ~ 21). That is, only Defendants Matis and Perry, ,Jr. were found to have been
aware of Plaintiffs protected speech. Furthermore, though the jury found that Defendant
Matis was aware of Plaintiffs protected speech and was substantially motivated by it when
voting to terminate Plaintiffs employment, he would have made the same decision even if
the protected speech had never occurred, (Id. at mr 1-3). Therefore, the jury determined
that only Defendant Perry, I.lr. was aware lof Plaintiffs protected speech, was substantially

3 Because the motion for JMOL pertains to only the speech connected with Plaintiff's testimony against
Perry, Sr., there is no need to discuss the speech associated with Plaintiff's protests against the disclosure of her
housing assistance fonn.
4 Those members were William Iveson, Jr., David Scales, Alan Wolff, and Roy Williams.

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motivated by it, and would not have made ithe same decision to vote to terminate her in the

absence of such protected speech. (Id. atI1Ml11-13).
Therefore, the critical question

bec~mes

whether Plaintiff established a causal link

between her protected speech and subsequent termination through Defendant Perry, Jr.'s
vote to terminate her employment. Though there does not appear to be controlling Third
Circuit precedent,5 the Second Circuit has provided valuable guidance on this precise issue.
"[I]f a majority of defendants prove that their individual votes against the plaintiff would have
been the same" regardless "of the plaintiff's protected conduct, then the defendants as a
group cannot be held liable, and no individual defendant, even one whose proof falls shori,
can be so held because causation is absent." Coogan v. Smyers, 134 F.3d 479, 485 (2d
Cir. 1998) (remanding to the district court to determine which of the five votes against the
plaintiff's reappointment, which included dne vote in abstention, were for unlawful political
reasons)6 (internal citations and quotation marks omitted) (emphasis added). Furthermore,
"even if some defendants based their decision solely on impermissible grounds, a'finding
that a majority of defendants acted adver$ely to the plaintiff on legitimate grounds is
sufficient for all to escape liability." Id. (citing Jeffries v. Harleston, 52 F.3d 9 (2d Cir.1995))
(emphasis added). Of particular relevance to this case, the Coogan court illustrated when
individual voting members could be held liable:
5 However, see infra for a discussion of a retlevant and helpful Third Circuit case, LaVerdure v. Cnty. of
Montgomery, 324 F.3d 123 (3d Cir. 2003).
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6 Two members of the seven-member council had voted to reappoint the plaintiff to his position as city
clerk. The district court had addressed the motives Of only three of the five council members who had voted not to
reappoint. Consistent with its own precedent, the S~cond Circuit remanded for determinations of the motivations of
the two remaining council members who did not votk for the plaintiff's reappointment.

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In Jeffries, 'fifteen defendants acted to limit a City College professor's term as

chairman of the Black Studies ~epartment because of an inflammatory

speech he had given. We held that under "elementary principles of
causation," Jeffries had suffered no cognizable injury because even though
the jury had found that six defendants acted for impermissible retaliatory
motives, the fact that nine defendants, a clear majority, had voted against
Jeffries for constitutionally permissible reasons constituted "a superseding
cause breaking the causal chain between the tainted motives . . . and the
decision to limit Jeffries' term." In the instant case, therefore, if four of the
defendants who voted against Coogan's reappointment proved that, in
addition to impermissible political motives, they had legitimate motives for
their vote, then neither the CouncU as a whole nor any of its members could
be held liable, even if one or more defendants fail to prove a legitimate
motive.

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134 F.3d at 485-86 (internal citations omitted); cf. LaVerdure v. Cnty. of Montgomery, 324
F.3d 123, 125-26 (3d Cir. 2003); Scully v. Borough of Hawthorne, 58 F. Supp. 2d 435, 455
(D.N.J. 1999) ("because a municipal ordinance can become law only by a majority vote of
the city council, there is a certain incongruity in allowing fewer than a majority of the council
members to subject the city to liability under section 1983.").
The Third Circuit stated in LaVerdure v. Cnty. of Montgomery,
It is undisputed that only a majority of the three-member Board is authorized
to establish policy on behalf of the County. Therefore, whatever the contents
of Marino's statements, because he was only one member of the Board,
those comments do not constitute County policy.... Even though Marino
himself lacked final policymaking authority that could bind the County, [the
plaintiff] could have demonstrated that the Board delegated [Marino] the
authority to speak for the Board, or acquiesced in his statements. [The
plaintiff] failed to meet her burden to prove delegation or acquiescence,
however. She failed even to depose the other two Board members or call
them to testify at trial-methods b~i which she might have proved delegation
or acquiescence. Thus, the Distric Court was correct in holding that Marino's
comments could not subject the ounty to § 1983 liability. Proving that a

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municipal official is a final policymG1king authority is a fundamental element of
a § 1983 cause of action against a municipality.
324 F.3d 123, 125-26 (3d Cir. 2003) (intertlal citations omitted). LaVerdure stands for the
proposition, among others, that one member of a decision-making body cannot, by himself,
subject that body to liability. A logical extension of this principle is that if a Borough cannot
be liable based on the improper actions of one of its members, neither can that member be
liable because his actions alone could not have formed and do not constitute a controlling
majority that could take any action, constitutional or otherwise.
Plaintiff correctly argues that Scully is more applicable to an analysis of a Borough's
liability, rather than an individual council member'S liability. Indeed, the Court relied on
Scully's reasoning when creating the speaial verdict questions with respect to the Borough

of Susquehanna's potential liability. (See Doc. 122, 1Mf 23.27). Nevertheless, the same
corollary at work in LaVerdure holds true both here and in Scully: if a Borough cannot be
liable based on the improper actions of one of its members, neither can that individual be
liable because his actions alone could not have effected any action against Plaintiff.
Applying the above reasoning to the facts of this case, the jury determined that the
causal link was missing between Plaintiffs protected activity and subsequent termination
when assessing the Borough's potential liability because four of the six voting members
were not aware of Plaintiffs testimony against William Perry, Sr. Defendant Perry, Jr.
argues in his motion that he, too, should not be held liable because he was merely one vote
out of six on the Council. Furthermore, by the jury's finding that the other Council members
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(excluding Defendant Matis) were unawarf of the speech, Defendant Perry, Jr. could not

have influenced the other Council membe~s' votes. The Court agrees that, as a matter of
law, Defendant Perry, Jr. lacked the authority to terminate anyone's employment. Though
the jury found he acted out of retaliation, Defendant Perry, Jr.'s actions did not affect the
outcome of the Council's vote because the jury also found that four of the Council members
were unaware of Plaintiffs testimony against his father. As such, the impartiality of the
other Council members' votes nullified Defendant Perry, Jr.'s unlawfully-motivated vote.
Acting alone, he could not have violated Plaintiffs First Amendment rights. Thus, the Court
will vacate the jury's award of $5,000 in compensatory damages in favor of Plaintiff and
against Defendant Perry, Jr.
Plaintiff's Arguments
Plaintiffs primary argument against Defendant Perry, Jr.'s motion is that he failed to
object to "inconsistent jury instructions" at the time they were given, and so, he waived his
right to raise in his renewed motion the argument that Defendant Perry, Jr. could not have
caused Plaintiffs termination. (Doc. 165 at 2-5).
First, Plaintiff does not indicate how the jury instructions were inconsistent. The jury
found that Defendant Perry, Jr. was aware of Plaintiffs protected speech against his father
and that this knowledge substantially motivated his vote to terminate her employment. The
special verdict questions ask nothing abo~t his ability or authority to take any adverse action
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against Plaintiff on his own. The Court dacides, as a matter of law, that absent a majority

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vote to do so, Plaintiffs employment could not have been terminated, notwithstanding the
tainted vote of Defendant Perry, Jr. in favor of termination.
The questions were submitted to the jury because it was necessary to ask not only
about Defendant Perry, Jr.'s motivations for his vote but also whether a majority of voting
members had been aware of Plaintiffs testimony against Perry, Sr.7 If the jury had found
that a majority of voting members had been aware of the protected speech and been
substantially motivated by that speech without an otherwise legitimate reason to take the
same action, then the Borough would have been liable for First Amendment retaliation.

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Then, and only then, would Defendant Perry, Jr. have been liable on that claim. Because
the Court first needed to know whether a ry,ajority of voting members had harbored improper
motives for terminating Plaintiff, it could not have granted judgment as a matter of law in
favor of the two individual defendants before submitting the case to the jury.
Second, if there is an inconsistency in the special verdict questions, Defendant
Perry, Jr. did not waive them. When Defense counsel first made his motion for judgment as
a matter of law at the close of Plaintiffs case-in-chief, he stated: lithe Defendants move to
dismiss the individual Defendants in this case. This is clearly a decision that was made by
7 The special verdict questions sought jury responses as to whether a majority of Borough Council was
aware ofPlaintitrs testimony against Perry, Sr. and motivated by that speech. The questions also sought a response
as to whether a "substantial bloc of Borough Council members voted to terminate Laura Watson" and whether the
jury further found "that there is evidence of probable complicity among the other Council members to terminate
[Plaintiff] in violation of her free speech rights beca~se she testified against William Perry, Sr. at a preliminary
hearing[.]" (Sp. Verd. Form ~~ 22,23). Because theijury found that four of the six voting members of the Borough
Council were unaware ofPlaintitrs testimony againJi Perry, Sr. (id. at ~ 21), it properly followed instructions which
directed that it not answer the questions as to the BoJ,ugh Council's motivations for terminating Plaintiffs
employment. Absent knowledge of Plaintiff's testi~~ny against Perry, Sr., these council members could not have
had an unlawful retaliatory motive based on Watson'is testimony against Perry, Sr. Thus, what is at issue here is a
jury verdict which shows that Plaintiff failed to prove that a majority voted to terminate her for unlawful and
retaliatory reasons.

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seven people comprised of Borough coun1il. Borough council was the decision maker in
this case to terminate the Plaintiff, not Mr. ~atis individually, not Mr. Perry individually."8
(Tr. Trans., Doc. 146, 152:20-25). Later, in response to Plaintiffs counsel, Attomey Murphy
stated, "Let's assume Councilman Perry, Jr. was aware of the speech, let's assume it.
Where is the connection shown by Plaintiff in this case so far to show that the other six
council people were aware of it, considered it, in their decision to terminate the Plaintiff in
this case?" (ld. at 156:10-15). He elaborated on this point by saying:
Assuming [Perry, Jr.] was even aware of [the speech], where is the
connection to that and the six other council members knowing that? There's
no evidence of that, there's no evidence of the other six people. So if one
person has it in his mind, and assLiming he has it in his mind that he's upset
about the courtroom testimony, where is the evidence that played into the
decision to terminate for the other Six people?
(/d. at 161 :8-17). At the conclusion of arguments by counsel, the undersigned and Attorney

Murphy had the following exchange:
MR. MURPHY: Because the decision makers, again, are council, they are not
Mr. Matis and Mr. Perry, the decision makers in this case are Borough
council, the seven people who raised their hand and voted in favor of

termination.

THE COURT: So in your mind, th~re could not be individual liability for Mssrs.

Perry, Jr. and Matis, in the absenoe of liability on the part of the Borough?
MR. MURPHY: Yes, I don't see where that was established in this case by the
evidence, Your Honor.
(/d. at 162:7-16).
8 Though Attorney Murphy spoke ofa seven-member council, only six of the council members voted on
the issue of Plaintiffs employment termination.

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At the close of Defendants' case-inthief, and at the close of the evidence, Attorney

Murphy renewed Defendants' motion for judgment as a matter of law. (Tr. Trans., Doc. 148,
108:6-11; Tr. Trans., Doc. 149, 12:13-20). Following the jury's verdict, Attorney Murphy
filed his post-trial motion for judgment as a matter of law. (Doc. 134).
As illustrated above, Attorney Murphy clearly set forth his reasons in support of his
oral motions for judgment as a matter of law. It matters not that he "failed" to object to any
perceived inconsistencies in the special verdict slip or jury instructions. See Harris Corp. v.
Ericsson Inc., 417 F.3d 1241,1252 (Fed. Cir. 2005). "JMOL can be granted either before
or after the jury has rendered a verdict, and it does not depend on how the jury was
instructed. The test is whether there is a legally sufficient basis for a reasonable jury to find
for the nonmoving party under the controlling law." Id. (citing FED. R. CIV. P. 50(a)(1))
(internal quotation marks omitted). The Harris court went on to say that "irrespective of any
jury instructions," the "controlling law is the legal interpretation of the asserted claims." Id.
The same is true here. "Irrespective of any jury instructions," the underlying basis for
Attorney Murphy's motion for JMOL was that, as a matter of law, the two individual
defendants acting alone could not have terminated Plaintiffs employment with the Borough
of Susquehanna. Attorney Murphy was diligent in preserving his arguments; he moved for
JMOL at the close of: Plaintiffs case-in-chief, Defendants' case-in-chief, all the evidence,

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and after the jury returned its verdict. The Icourt finds that Defendants in no way waived

any rights to raise this argument and will g~ant JMOL on that basis. 9
Punitive Damages
Because the Court concludes that, as a matter of law, Defendant Perry, Jr. could not
have violated Plaintiffs First Amendment rights, it also must vacate the jury's award of
$10,000 in punitive damages. "[P]unitive damages may be awarded to punish violations of
constitutional rights." Rivera-Oquendo v. Soto-Santiago, 552 F. Supp. 2d 229,232 (D.P.R.
2008) {citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268, 101 S. Ct. 2748, 69
L. Ed. 2d 616 (1981) (emphasis added)). "In sum, in a section 1983 action, ajury may
properly award punitive damages ... only where the jury first finds that a constitutional
violation was committed by the party against whom the punitives are imposed". Jd. at 233
(vacating award of punitive damages because jury expressly had found that no
constitutional violation had occurred).
Defendant's Motion for a New Trial or Remittitur

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Because the Court decides that Defendant Perry, Jr. is entitled to judgment as a
matter of law, these portions of the motion are now moot.
V. Conclusion
For the foregoing reasons, the Court will grant Defendants' Motion for Judgment as a
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Matter of Law and vacate the judgment a~ainst Defendant Perry, Jr. on Plaintiffs First
9 As such, the Court will not address Defendants' argument that the weight of the evidence was insufficient
to fmd that Defendant Perry, Jr. was unaware ofPlaintifi"s testimony against his father.

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Amendment retaliation claim with respect t~ her courtroom testimony against William Perry,
Sr. It will also vacate the award of $5,000 in compensatory damages and $10,000 in
punitive damages. As such, Plaintiffs Motion for Reinstatement (Doc. 128), Motion for
Attorney's Fees (Doc. 130), and Motion for Consideration of Defense Counsel Attorney
Rates and Attorney Invoices and Statements (Doc. 143) are denied as moot.

Robert D.
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United States District Judge

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