Mazzoni v. Jarbola et al
Filing
65
MEMORANDUM (Order to follow as separate docket entry) re 35 MOTION for Summary Judgment filed by Lackawanna County Detectives Association, 30 MOTION for Summary Judgment filed by Lackawanna County, Lackawanna County District Attorney's Office, Andrew J. Jarbola Signed by Honorable A. Richard Caputo on 10/16/14. (jam)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT MAZZONI,
Plaintiff,
v.
CIVIL ACTION NO. 3:11-cv-2244
(JUDGE CAPUTO)
ANDREW J. JARBOLA, et al.,
Defendants.
MEMORANDUM
Presently before the Court is the Motion for Summary Judgment of Defendants
Andrew J. Jarbola, Lackawanna County, and Lackawanna County District Attorney’s
Office (collectively the “County Defendants”) (Doc. 30), and the Motion for Summary
Judgment of Defendant Lackawanna County Detectives Association (“LCDA”) (Doc. 35).
This dispute arises out of Plaintiff Robert Mazzoni’s (“Mazzoni”) termination from
employment as a detective at the Lackawanna County District Attorney’s Office (“DA’s
Office”).
Mazzoni asserts he was fired because he expressed his intent to run for office
against an ally of District Attorney Jarbola (“DA,” “Jarbola”), in violation of his “rights of
speech, association, political affiliation and his exercise of political freedom, as
guaranteed by the First and Fourteenth Amendments of the United States Constitution.”
(Compl., Doc. 1, ¶ 43.) The County Defendants assert that Mazzoni was terminated for
cause. Mazzoni also asserts that the LCDA, his union, conspired with the DA’s Office to
violate his rights, and breached their duty to provide Mazzoni with fair representation.
Because Plaintiff has set forth enough evidence, taken in the light most favorable to him
and resolving all possible inferences in his favor, to demonstrate that there is a dispute
of material fact as to the reasons why Mazzoni was fired and the reasons why the LCDA
stopped the grievance process, the Defendants’ Motions for Summary Judgment will be
denied. Because retaliatory motive is not enough to meet the intent standard required of
a Defendant in order to receive punitive damages, and Plaintiff has not demonstrated
any facts to indicate that the County Defendants acted with anything more than
retaliatory intent in terminating him, County Defendants’ motion to dismiss Plaintiff’s
request for punitive damages for his constitutional claim will be granted.
I. Background
A. Factual Background
1. Robert Mazzoni’s Disciplinary History
Mr. Mazzoni began working as a detective for the Lackawanna County District
Attorney’s Office in April 1992. (Doc 32, ¶ 1.) At that time, Mr. Jarbola was not yet the
District Attorney. (Doc. 51, Pl. SMF, ¶ 2). Lackawanna County and the DA’s Office
were Mazzoni’s employers. (Compl., ¶ 25.) The District Attorney, in his official capacity,
was the final authority and ultimate repository of the County’s power in regard to the
Plaintiff’s employment. (Id.)
Mazzoni’s employment record reveals multiple disciplinary infractions and
warnings. In 1992, Mazzoni was notified in writing that a District Judge had told the DA’s
Office that he had outstanding traffic citations, which he needed to pay. (Doc. 33-20, 2.)
He was not disciplined, but was informed that “any further violations will be result [sic.] in
disciplinary procedures.” (Id.) Later in 1992, Mazzoni received a disciplinary letter for
failing to report on a day when he was scheduled to work. (Doc. 33-19.) Mazzoni’s
personnel file contains a handwritten note from December 1992, which appears to be a
list of his infractions, all regarding use of his county car. (Doc. 33-18.) Mazzoni admits
that his county car was taken from him in the 1990s for improper use. (Doc. 51, ¶ 5.)
In 1995, a detective with the DA’s Office’s specialized drug task force sent
Mazzoni’s supervisor a memo complaining about Mazzoni’s behavior, and asking that
Mazzoni stop conducting independent drug investigations. (Doc. 33-16, 4.) It is unclear
whether these matters were investigated, and whether Mr. Mazzoni was notified of this
letter. In 1999, Mazzoni wrote a letter confirming that a two-week suspension without
pay was a “just punishment” for an unnamed violation. (Doc. 33-17.)
In 2000, a memo to Mazzoni indicated that while his work quality was “very good,”
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Jarbola, by then District Attorney, was upset that Mazzoni had not turned in several
arrest reports, following complaints from an Assistant District Attorney, and that failure to
complete reports in the future would result in disciplinary action. (Doc. 33-15.) At the
time, Mazzoni had a medical condition, and Mazzoni asserts that is why he failed to
complete his paperwork. (Id.; Doc. 51 ¶ 8.) In May 2001, a personnel file memo
documented Mazzoni’s absence without leave for two days. (Doc 14-30.) Mazzoni
asserts that there is no indication that this was ever investigated or confirmed, and was
never discussed with him. (Doc. 51, ¶ 9.)
In August 2001, Chief Thomas K. Dubas (“Dubas”) wrote a memo to Jarbola,
detailing what he described as Mazzoni’s ongoing “open, flagrant” disobedience and
improper behavior. (Doc. 33-13.) He wrote that Mazzoni’s actions were going to lead to
a lawsuit, and that Mazzoni was a danger and embarrassment to the office. He urged
Jarbola to take immediate action. (Id.) His allegations included multiple instances of
Mazzoni mishandling drug evidence, lying about cases and his attendance, and
generally disobeying orders. (Id.) It is not clear that this was discussed with Mazzoni, or
that any disciplinary action was taken in response to the memo. (Doc. 51, ¶ 10.)
In February 2004, Mazzoni was suspended without pay for “not following proper
office procedures.” (Doc. 33-12.) In May 2005, Mazzoni was suspended for three days
without pay for having glasses of wine on his table while at lunch during the work day.
(Doc. 32, ¶ 12; see also Doc. 33-40, Pl. Dep. 37:7-38:5.) In December 2005, Mazzoni’s
pay was docked for ten days for disciplinary reasons. (Doc. 33-10.) Also in 2005,
Mazzoni was suspended a second time, though the parties dispute why. (Doc. 32, ¶ 14;
Doc. 51, ¶ 14.) At some point, Jarbola removed Mazzoni’s county cell phone for
excessive personal calls. (Doc. 32, ¶ 5.) In 2009, Mazzoni was verbally reprimanded for
refusing to attend a scheduled presentation at a local high school. (Doc. 32, ¶ 17.)
A number of other detectives testified in depositions that in 2008 and 2009, there
were instances when Mazzoni would deviate from protocol and run into a house after a
suspect, or turn a “routine bust” into a “buy bust,” which made them feel like they were at
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risk. (Doc. 32, ¶ 18.) None ever filed a written complaint, and Mazzoni received no
discipline for these actions. (Doc. 51, ¶ 18.) Mazzoni disputes that the officers were
ever at risk, and also disputes the underlying facts. (Id.) Jarbola testified that from what
he knew prior to when Mazzoni was terminated, he did not feel that Mazzoni’s actions
endangered other officers or detectives. (Id.)
Mazzoni “produced results” at his job, and had the most arrests and convictions of
any officer in the drug unit since Jarbola took office. (Doc. 32, ¶ 27-8.) From December
14, 2005, to the date of his termination on or about April 12, 2010, his personnel file
contains no written record of any disciplinary action. (Doc. 51, ¶ 31.)
The County Defendants assert that officers and agents from the State Police,
Attorney General’s Office, Federal Bureau of Investigations and the local police all
refused to work with Mazzoni. (Doc. 32, ¶ 21.) Mazzoni disputes this. (Doc. 51, ¶ 21.)
The DA’s Office wrote that Mazzoni socialized with Al Abda, a convicted felon, which
concerned the DA’s office. (Id. at ¶ 19.) Jarbola had also socialized with Mr. Abda. (Id.)
2. Events Immediately Preceding Mazzoni’s Termination
On or about February 2010, Mazzoni asserts that he told Jarbola that he intended
to run for sheriff. (Doc. 51, Pl. SMF, ¶ 2.) Jarbola vehemently denies this. (Doc. 58, ¶
2.) Mazzoni contends that when he informed Jarbola of his intentions, Jarbola told him
not to run. (Doc. 51, Pl. SMF, ¶ 3.) Mazzoni asserts that this was because Jarbola was
a political ally and “close friend” of the incumbent sheriff, John Szymanski. (Id. at ¶¶ 45.) Jarbola and Szymanski served together on the prison board, and Jarbola made
political contributions to Szymanski’s campaign. (Id.) Jarbola says that he and
Szymanski are friends, but he did not contribute more than $100 to his campaign, and
never campaigned for him. (Doc. 58, ¶¶ 4-5).
Mazzoni contends that after he told Jarbola about his intention to run for sheriff,
Jarbola’s demeanor toward him changed, and he was no longer friendly. (Doc. 41, Pl.
SMF, at ¶ 8.) Jarbola asserts that in 2008, Paul Mazzoni, father of Robert Mazzoni, had
told Jarbola that his son was planning to run for sheriff. (Doc. 32, ¶ 47.)
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On or about April 10, 2010, Mazzoni saw a former confidential information in an
oncoming vehicle. (Doc. 51, ¶ 11.) Mazzoni knew that there was a felony warrant out
for the former informant, so turned on his emergency lights and turned around to stop
the vehicle. (Id.) He ran through two red lights and exceeded the speed limit in pursuit.
(Id. at ¶ 16.) The DA’s Office contends that this was a violation of policy, but Mazzoni
asserts that there was no official pursuit policy at that time. (Id.)
An argument between Mazzoni and Jarbola ensued as a result of this incident.
Jarbola accused Mazzoni of lying about his attempt to apprehend the informant, and of
trying to get another detective to file a false report to “cover” for Mazzoni. (Id. at ¶ 13.)
Jarbola testified that most of the reason for Mazzoni’s termination was because Mazzoni
lied about this incident, encouraged the filing of a false report, and threatened another
detective. (Id.)
Jarbola testified that Mazzoni’s lies had no effect on any of the office’s cases and
that there was probably no negative effect of Mazzoni demanding another detective lie
for him. (Id. at ¶¶ 18-19.) Jarbola also testified that what he really took offense to was
lying, and that he was upset because Mazzoni lied in a report and to him. (Id. at ¶ 20.)
3. Mazzoni’s Termination and Subsequent Grievance
On April 12, 2010, Jarbola met with Mazzoni and told him that he could no longer
work as a detective. (Doc. 51, Pl. SMF, ¶ 9.) Jarbola told him that he could “resign,
retire, or find another job.” (Id.) On May 26, 2010, Jarbola met with Mazzoni and
informed Mazzoni of the disciplinary issues behind Mazzoni’s termination. (Id. at ¶ 22.)
Jarbola provided a list of reasons for Mazzoni’s termination. (Id. at ¶¶ 33-4.) Included in
this list were submitting a false reimbursement and possible violations of the Wiretap
Act. (Id. at ¶¶ 34-6.) Jarbola later testified that the false reimbursement had nothing to
do with the termination. (Id. at ¶ 35.) Jarbola also testified that he did not know of the
possible wiretap violations until after Mazzoni was terminated. (Id. at ¶¶ 36-7.)
Mazzoni was given the opportunity to respond, but did not on the advice of his
union counsel. (Doc. 32, ¶ 23; Doc. 51, Pl. SMF, ¶ 23.) On June 3, 2010, Jarbola sent
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Mazzoni a letter terminating him as an employee of the DA’s Office. (Doc 33-1.) He
also sent a letter to the Personnel Director for Lackawanna County, informing her that
Mazzoni had been terminated. (Doc. 33-2).
The Lackawanna County Detectives Association (“LCDA,” “the union”) is the
exclusive collective bargaining representative for all Lackawanna County Detectives,
including Mazzoni. (Doc. 36, ¶ 2.) Lackawanna County and the LCDA were parties to a
collective bargaining agreement effective January 2006, which was extended to January
2014. (Doc. 26, ¶ 4.) Under this contract, no employee could be discharged “without
good cause.” (Doc. 1, Ex. A.) Plaintiff puts forth evidence to demonstrate that shortly
after he was terminated, the union held a meeting and unanimously decided to pursue
his grievance. (Doc. 51, Pl. SMF, ¶ 41; Doc. 50, ¶ 8.) The deposition of Brian Kosch, a
fellow detective, attests to this. (Doc. 33-32, Kosch Dep. 28:4-30:7.) Both Defendant
LCDA and County Defendants argue that this meeting did not occur, and present
supporting evidence in the form of deposition testimony. (Doc. 32, ¶ 41; Doc. 36, ¶ 8.)
After the union made the initial decision to pursue the grievance, the union’s leadership
sent emails to keep the membership apprised of the ongoing progress of the grievance,
in which it expressed its plans to take the grievance to arbitration. (Doc. 50, ¶ 8.)
On June 4, 2010, Detective Thomas J. Davis, President of the LCDA, submitted a
grievance to Jarbola regarding Mazzoni’s termination, claiming that there was no just
cause for termination. (Doc 32, ¶ 26.) On June 8, Jarbola sent a letter to an attorney for
the LCDA, stating that he did not believe the grievance was arbitrable, and that he was
denying the grievance on the merits because there was just cause for Mazzoni’s
termination. (Id. at ¶ 28.) On June 9, Detective Davis, on behalf of the LCDA and
Mazzoni, submitted a memo to the Human Resources Director of Lackawanna County
regarding the next step of the grievance procedure, “step 3,” to be conducted by the
Human Resources Department. (Id. at ¶ 29.) On July 2, the Human Resources
Department conducted step 3 of the grievance procedure. (Id. at ¶¶ 30-31.)
On July 12, the Human Resources Director sent a letter to a LCDA lawyer and
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Detective Davis that the grievance was denied. (Id. at ¶ 32.) On that same day,
Detective Davis, on behalf of the LCDA and Mazzoni, submitted a memo to Human
Resources providing notice to proceed to arbitration. (Id. at ¶ 33.) The Association
completed every step of the grievance process except for arbitration, and had begun to
schedule an arbitration. (Id. at ¶ 34.) Prior to September, the union members received
numerous notices that the matter was going to arbitration, and no evidence reflects that
anyone voice opposition. (Doc. 50, ¶ 8.)
In early September 2010, the LCDA had a meeting at which no vote was taken as
to whether to proceed with Mazzoni’s grievance. (Doc. 32. at ¶ 36.) Plaintiff asserts the
meeting was held because Jarbola called for it and announced that everyone had to
attend. LCDA meetings are not usually mandatory. (Doc. 51, Pl. SMF, ¶¶ 42-43.)
Plaintiff also asserts that at that meeting, a detective demanded that the association
vote not to go to arbitration based on things that Jarbola had said to him. (Id. at ¶ 41.)
Plaintiff further states that a number of detectives said that Jarbola had told them that if
they voted to pursue the grievance, members of the detective unit were going to be
brought up on federal charges related to wiretapping. (Id.) Jarbola admits that he told
them they could be witnesses in federal court on a civil rights claim. (Id. at ¶ 48 ).
Following this controversy, Detective Davis claims that he sought the advice of
LCDA’s attorney on how to proceed because he thought it had a legal duty to pursue the
grievance. (Doc. 36, ¶ 12.) The attorney suggested that he hold a vote. (Id.) At the
subsequent LCDA meeting on or around September 29, the LCDA voted via a secret
ballot not to take Mazzoni’s grievance to arbitration. (Doc. 51, Pl. SMF, ¶¶ 37-38.) On
October 19, the LCDA withdrew the grievance pursuant to that vote. (Id. at ¶ 40.)
B. Procedural Background
Plaintiff Robert Mazzoni filed a complaint commencing this action against District
Attorney Jarbola, Lackawanna County, the DA’s Office, and the LCDA on December 2,
2011. (Compl., Doc 1.) His complaint contains four causes of action. Count I is a claim
against the County and the District Attorney’s Office for a violation of the First and
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Fourteenth Amendments pursuant to 42 U.S.C. § 1983. Count II brings the same claim
against Mr. Jarbola in his individual capacity as District Attorney. Count III is a claim
against the LCDA for unlawfully conspiring with County Defendants to violate Mazzoni’s
First and Fourteenth Amendment rights pursuant to 42 U.S.C § 1983 and § 1985. Count
IV is a claim against the LCDA for a breach of the duty of fair representation and for
conspiring with the County Defendants to breach this duty of fair representation to
Mazzoni. Mr. Mazzoni seeks monetary damages and equitable remedies.
The LCDA filed a motion to dismiss Counts III and IV of Mazzoni’s complaint on
February 7, 2012, which I denied. (Order, Doc. 14.) Discovery is now complete. On
April 30, 2014, Defendants Andrew Jarbola, Lackawanna County, and Lackawanna
County District Attorney’s Office (collectively the “County Defendants”) filed a Motion for
Summary Judgment (Doc. 30), including a supporting Statement of Facts (Doc. 32),
Appendix of Exhibits (Doc. 33), and Brief in Support of Motion (Doc. 34). Also on April
30, 2014, Defendant Lackawanna County Detectives Association (LCDA) filed a Motion
for Summary Judgment (Doc. 35), along with a Statement of Facts (Doc. 36), Affidavit in
Support (Doc. 37), and Brief in Support of Motion (Doc. 38).
Mazzoni filed a Brief in Response to County Defendants’ Motion for Summary
Judgment on June 16, 2014 (Doc. 52), and a Statement of Facts (Doc. 51). The same
day, Mazzoni filed an answer to the LCDA’s Motion for Summary Judgment (Doc. 49),
and a Statement of Facts (Doc. 50). On July 14, County Defendants filed a Response
(Doc. 58) to Plaintiff’s Counterstatement of Facts, with a supporting Brief (Doc. 59).
On July 21, Mazzoni filed a Motion for leave to file a sur reply brief (Doc. 60) to
County Defendants’ Reply Brief in support of their Motion for Summary Judgment (Doc.
59), in order to address new arguments they had raised. On July 23, I issued an order
denying as moot Plaintiff’s unopposed motion, because the arguments discussed for the
first time in County Defendants’ Reply Brief (Doc. 59) were waived for the purposes of
summary judgment. (Doc. 61.)
These motions for summary judgment are ripe for disposition.
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II. Legal Standard
A. Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriate when ‘the
pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.’” Wright v. Corning, 679
F.3d 101, 103 (3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d
Cir. 1995)). A fact is material if proof of its existence or nonexistence might affect the
outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish
that it is entitled to judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec.,
83 F.3d 68, 70 (3d Cir. 1996). Where, however, there is a disputed issue of material
fact, summary judgment is appropriate only if the factual dispute is not a genuine one.
Anderson, 477 U.S. at 248. An issue of material fact is genuine if “a reasonable jury
could return a verdict for the nonmoving party.” Id.
Where there is a material fact in dispute, the moving party has the initial burden
of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is
entitled to judgment as a matter of law. See Howard Hess Dental Labs., Inc. v. Dentsply
Int’l, Inc., 602 F.3d 237, 251 (3d Cir. 2010). The moving party may present its own
evidence or, where the non-moving party has the burden of proof, simply point out to the
court that “the non-moving party has failed to make a sufficient showing on an essential
element of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
“When considering whether there exist genuine issues of material fact, the court
is required to examine the evidence of record in the light most favorable to the party
opposing summary judgment, and resolve all reasonable inferences in that party's
9
favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). Once the moving party has
satisfied its initial burden, the burden shifts to the non-moving party to either present
affirmative evidence supporting its version of the material facts or to refute the moving
party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477
U.S. at 256-57. The Court need not accept mere conclusory allegations, whether they
are made in the Complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S.
871, 888 (1990).
“To prevail on a motion for summary judgment, the non-moving party must show
specific facts such that a reasonable jury could find in that party's favor, thereby
establishing a genuine issue of fact for trial.” Galli v. New Jersey Meadowlands
Comm'n, 490 F.3d 265, 270 (3d Cir. 2007) (citing Fed. R. Civ. P. 56(e)). “While the
evidence that the non-moving party presents may be either direct or circumstantial, and
need not be as great as a preponderance, the evidence must be more than a scintilla.”
Id. (quoting Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005)). In
deciding a Motion for Summary Judgment, “the judge's function is not himself to weigh
the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson, 477 U.S. at 249.
III. Discussion
A. County Defendants’ Motion for Summary Judgment
1. First Amendment Claims
Lackawanna County, Lackawanna County District Attorney’s Office, and District
Attorney Andrew J. Jarbola comprise the “County Defendants.” The County Defendants
moved for summary judgment as to all of Plaintiff Mazzoni’s claims against them: violation
of his First and Fourteenth Amendment rights, and conspiracy with Defendant LCDA to
violate these rights.
Mazzoni asserts that in firing him for expressing his intent to run for Sheriff, the
County Defendants deprived him of his rights of speech, association, political affiliation and
his exercise of political freedom to run for office, as guaranteed by the First
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Amendment–incorporated to the states by the Fourteenth Amendment–in violation of 42
U.S.C. § 1983. (Compl., ¶ 43.) He also claims that they deprived him of the right to
procedural due process by firing him without prior written notice of the allegations agaisnt
him, and without a prior hearing. (Id. at ¶ 22.)
Mazzoni claims that stating his intent to run for office was constitutionally protected,
that this constitutionally-protected conduct was a substantial and motivating factor in the
Defendants’ adverse employment actions, and the reasons Defendants put forth for firing
him were pretextual. Defendants assert that Mazzoni was fired because of his disciplinary
history and improper behavior.
In their motion for Summary Judgment and accompanying documents, County
Defendants only addressed Mazzoni’s claims that they violated his right to free speech with
respect to his constitutional claims. As I held in my order on July 23, 2014 (Doc. 61),
because County Defendants did not address Mazzoni’s other constitutional claims–that they
violated his First Amendment right to political affiliation, association, and exercise of political
freedom, and his Fourteenth mendment right to procedural due process–in their Brief, they
were denied the right to make these arguments in their Reply Brief. Thus, these arguments
are waived for the purposes of Summary Judgment. Because the County Defendants did
not address these claims in their arguments for their Motion for Summary Judgment, they
will not be granted Summary Judgment on these matters.
Governing substantive law is federal constitutional law. Mazzoni’s constitutional
claims are brought pursuant to 42 U.S.C. § 1983. Section 1983 provides that “[e]very
person who, under color of any statute, ordinance, regulation, custom, or usage . . .
subjects, or causes to be subjected, any citizen . . . or other person . . . to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable
to the party injured . . .” 42 U.S.C. § 1983. Section 1983 is not itself a source of
substantive rights, but a method for vindicating federal rights secured by the United States
Constitution or federal statutes. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002).
To prevail, a public employee claiming that his employer retaliated against him for
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exercising his right to free speech must establish three elements:
First, he must establish that his speech was protected. Second, he must
demonstrate that he suffered some adverse employment action by his employer.
Next, he must prove that his protected speech was a substantial or motivating
factor for the adverse employment action. If the plaintiff meets this burden, the
defendant can still defeat the claim by establishing that he would have taken the
same action absent the plaintiff's protected speech.
Matsey v. Westmoreland Cnty., 185 F. App'x 126, 132 (3d Cir. 2006). The first element
is a question of law, whereas the rest of the analysis comprises questions of fact.
Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004).
With respect to the first element, Mazzoni’s speech was protected speech. The
Supreme Court has set out a framework in cases where a government employee sues
his employer under the First Amendment right to free speech:
the employee must show that he or she spoke as a citizen on a matter of public
concern. . . . Even if an employee does speak as a citizen on a matter of public
concern, the employee's speech is not automatically privileged. Courts 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 (2011) (quoting Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)).
The first step in this inquiry is to determine whether the employee spoke as a
citizen on a matter of public concern. Lane v. Franks, 134 S. Ct. 2369, 2378 (2014)
(citing Garcetti v. Ceballos, 547 U.S. 410,410 (2006)). Speech regarding the electoral
process involves a matter of public concern. Curinga, 357 F.3d at 310.
Furthermore, neither party has demonstrated that the County had an interest in
suppressing Mazzoni’s speech that outweighed his interest. “A citizen who accepts
public employment ‘must accept certain limitations on his or her freedom.’” Borough of
Duryea, 131 S. Ct. 2488, 2494 (citing Garcetti, 547 U.S. at 418). The government, as an
employer, has authority to regulate the speech of its employees “[w]hen someone who
is paid a salary so that she will contribute to an agency's effective operation begins to do
or say things that detract from the agency's effective operation . . . .” Borough of
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Duryea, 131 S. Ct. at 2494 (citing Waters v. Churchill, 511 U.S. 661, 675 (1994)
(plurality opinion)). Neither party has asserted that it was necessary for the government
to curtail Mazzoni’s speech in order to serve its interest as an employer. Mazzoni’s
speech did not relate to the office’s effective operation.
There remains a dispute of material fact as to whether Mazzoni ever engaged in
the speech that underlies this claim. While Mazzoni asserts throughout his complaint
and his statement of facts that he told Jarbola that he was running for office, both the
County Defendants and the LCDA dispute this material fact.
With respect to the second prong, it is plain that Mazzoni suffered an adverse
action from his employer when he was terminated from his position as a detective.
A dispute of material fact in this action exists with respect to the third prong of the
Matsey test: whether Mazzoni’s protected speech–his expressed intent to run for the
Sheriff’s office–was a substantial or motivating factor for his firing. To prove this causal
connection, Mazzoni must demonstrate “either an unusually suggestive temporal
proximity between the protected activity and the allegedly retaliatory action, or 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 the fact should infer causation.” Lauren W. ex rel. Jean W. v. DeFlaminis,
480 F.3d 259, 267 (3d Cir. 2007).
Mazzoni asserts that in his case, the six weeks between when he alleges he first
mentioned running for office to Jarbola, and when he was terminated constitutes an
unusually suggestive temporal proximity. This court has “suggest[ed] that the difference
in time must be measured in days, rather than in weeks or months, to establish
causation on its own.” Gulick v. City of Pittston, 995 F. Supp. 2d 322, 335-36 (M.D. Pa.
2014) (quoting Conklin v. Warrington Twp., No. 06–2245, 2008 WL 2704629, at *12
(M.D. Pa. July 7, 2008)). The Court has found that a “period of twenty-two days is too
lengthy to give rise to an inference of causation.” Id. Thus, six weeks is too long a
period to establish a causal link. Second, there is no evidence in the record to establish
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causation through “a pattern of antagonism coupled with timing.” See Lauren W., 480
F.3d at 267. Mazzoni has not argued that a pattern of antagonism existed during his
employment with the City, and a review of the record does not demonstrate that such
circumstances existed. However, when examining the evidence gleaned from the record
as a whole, in the light most favorable to Mazzoni, a trier of fact could infer causation,
based on the fact that given the decades-long time span of Mazzoni’s employment and
history of misbehavior, his firing occurred shortly after he allegedly informed Jarbola that
he intended to run for sheriff. Mazzoni received disciplinary citations for many years
without facing repercussions—it was only after he expressed his intent to run for sheriff
that he was fired.
There is also a material dispute of fact as to whether the County Defendants
would have taken the same action—terminating Mazzoni—absent Mazzoni’s protected
speech. Moving party has not put forth enough evidence to put beyond dispute that the
same employment action would have been taken even in the absence of Mazzoni’s
protected activity. It is unclear whether the reasons that Jarbola mentioned to Mazzoni
in their May 26, 2010 meeting, and listed in his letter of June 3, 2010 (Doc. 33-1) were
the actual reason for Mazzoni’s firing, or merely a pretext.
Taking the facts in a light most favorable to Mazzoni, a reasonable jury could find
that these reasons were pretextual, and furthermore, that the County would not have
fired him absent Mazzoni’s protected speech. The main evidence to support this is that
the majority of the events that Defendants list in their Brief as the reasons for the firing
occurred many, many years before Mazzoni was fired. The County seemingly tolerated
Mazzoni’s behavior for many years, which Mazzoni asserts was because of his good
results, up until shortly after Mazzoni’s statement about running for Sheriff. In the years
immediately preceding his firing, Mazzoni had largely ceased engaging in misconduct.
Both parties proffered enough evidence to put the fact of why Mazzoni was fired in
dispute. Whether or not the County’s stated reasons were pretextual is an essential
material fact, as the outcome of this case depends on it. Without demonstrating that a
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reasonable jury could not find that Mazzoni was not fired for the County’s stated
reasons, and these reasons were pretextual, movant cannot prevail on its Motion for
Summary Judgment with respect to Defendant’s First Amendment Claim.
Should defendant Jarbola be found to have violated Mazzoni’s constitutional
rights, the County and the DA’s Office would be liable as well. A municipality is liable for
the actions of an employee “if an official with authority has ratified the unconstitutional
actions of a subordinate, rendering such behavior official for liability purposes.”
McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (citing St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988)); see also LaVerdure v. Cnty. of Montgomery, 324 F.3d 123, 12526 (3d Cir. 2003). Under Pennsylvania law, a District Attorney is a county official, not a
state official. Pettit v. Namie, 931 A.2d 790, 797 (Pa. Commw. Ct. 2007) (citing Carter v.
City of Phila., 181 F.3d 339, 349–50 (3d Cir. 1999) (“Pennsylvania's Constitution
expressly defines District Attorneys as county rather than state officers.”)). Jarbola, as
District Attorney, had the authority to make personnel decisions, and Mazzoni’s firing
was ratified by the County and DA’s Office. The County Human Resources Department
reviewed and approved his decision.
The County Defendants also argue that Mazzoni’s § 1983 claim is barred with
respect to Jarbola because as a public official, he has qualified immunity against claims
that he infringed on constitutional rights. However, at this stage, it is not clear that
Jarbola is entitled to qualified immunity, which only “protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citing Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). Thus, for Jarbola to be covered by qualified immunity, the rights of
Mazzoni that he is said to have violated must be clearly established ones.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable [state actor] that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 201 (2001).
15
See also Pearson, 555 U.S. at 223 (no longer requiring courts to assess the Saucier
factors in sequential order). As discussed above, the right that Mazzoni asserts was
violated is a clearly established right: a public employee’s speech on the electoral
process is constitutionally protected under the First Amendment. Curinga v. City of
Clairton, 357 F.3d 305, 310 (3d Cir. 2004). Jarbola, an attorney, reasonably should
have known that to fire an employee on the basis of protected speech would violate that
employee’s First Amendment right.
2. Conspiracy Claims
County Defendants also move for summary judgment with respect to Plaintiff
Mazzoni’s claim that they colluded and conspired with the LCDA to deprive him of his
civil rights under 42 U.S.C. § 1983.
To demonstrate a conspiracy under section 1983, “a plaintiff must show that two
or more conspirators reached an agreement to deprive him or her of a constitutional
right under color of law,” and an overt act in furtherance. Royster v. Beard, 308 F. App'x
576, 579 (3d Cir. 2009) (quoting Parkway Garage, Inc. v. City of Phila., 5 F.3d 685, 700
(3d Cir. 1993)). This includes “combination, agreement, or understanding among all or
between any of the Defendants to plot, plan, or conspire to carry out the alleged chain of
events.” Panayotides v. Rabenold, 35 F.Supp.2d 411, 419 (E.D. Pa.1999).
When viewing the evidence in the light most favorable to Mazzoni, he has offered
enough evidence to demonstrate that a reasonable jury could find this to be the case.
Mazzoni put forth evidence that Jarbola and the LCDA conspired so that the LCDA
would withdraw Mazzoni’s grievance. Jarbola called a meeting of the members of the
LCDA to hold a vote on whether to take Mazzoni’s grievance to arbitration–something
which had never happened before. Having already begun the arbitration process, the
LCDA withdrew Mazzoni’s grievance as a result of this vote. Furthermore, Plaintiff has
put forth sufficient evidence to call into dispute whether the members of the LCDA voted
against taking Mazzoni’s grievance to arbitration because Jarbola told them that if they
took the grievance to arbitration, there would be investigated for wiretap fraud.
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Because the facts viewed in the light most favorable to the non-moving party,
resolving all possible inferences in his favor, could lead a reasonable jury to find for
Plaintiff Mazzoni, County Defendants will not prevail on their Motion for Summary
Judgment with respect to Mazzoni’s conspiracy claim.
3. Punitive Damages
In County Defendants’ Motion for Summary Judgment, they ask that Mazzoni’s
claims for punitive damages with respect to his claims under Section 1983 be dismissed.
Summary judgment is appropriate here, and I will dismiss Plaintiff’s requests for punitive
damages under Count II (Doc. 1, ¶ 9). “A plaintiff is not entitled to damages on a § 1983
claim for a deprivation of constitutional rights absent a showing that a state official's
conduct ‘is shown to be motivated by evil motive or intent’ or ‘involves reckless or callous
indifference to the federally protected rights of others.’” Michel v. Levinson, 437 F. App'x
160, 164 (3d Cir. 2011) (quoting the Supreme Court’s decision on punitive damages in
Section 1983 claims in Smith v. Wade, 461 U.S. 30, 56 (1983)).
Retaliatory motive is not enough to meet the intent standard required of the
Defendant in order to receive punitive damages in Section 1983 claims: “it is clear . . .
that punitive damages require more than the retaliatory motive itself.” Brennan, 350
F.3d at 429-30. In Brennan, the Court found that while it did not condone the contended
retaliatory behavior of a government employer, his behavior did not rise to the level
required for punitive damages. Id.
With respect to his retaliation claim, Plaintiff has not put into evidence or even
alleged that the County Defendants acted recklessly or callously. Thus, Plaintiff’s
request for punitive damages for his retaliation claim will be dismissed.
B. LCDA’s Motion for Summary Judgment
The LCDA moves for Summary Judgment as to all of Plaintiff Mazzoni’s claims
against it: that it conspired with the County Defendants to violate his First and
Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983 and § 1985, and also
breached its state law duty to him of fair representation (Doc. 35).
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1. Constitutional Claims
Only a state actor can be liable for deprivation of a constitutional right under 42
U.S.C. § 1983. Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005). The LCDA argues
that it not a proper defendant under § 1983, since it is a private party and did not engage
in state action. (Doc. 38, 7-8.) It is well-settled that private actors in certain
circumstances may be regarded as acting under color of state law pursuant to § 1983.
See, e.g., Donnell v. Corr. Health Servs., Inc., 405 Fed.Appx. 617, 622 n. 5 (3d Cir.
2010). Actions “under color of law” are considered the equivalent of “state action” under
the Fourteenth Amendment. Leshko, 423 F.3d at 339. A private party can be held liable
for a violation of § 1983 when it conspires with state officials who act under color of state
law. Mazzoni claims that the LCDA conspired with the County Defendants to deprive
him of his constitutional rights, while the LCDA asserts that it did not.
To establish a § 1983 conspiracy claim against a private actor, a plaintiff must
show that a private actor and at least one of the state actors named as a defendant
reached an understanding to deny the plaintiff his or her constitutional rights. Corliss v.
O'Brien, 200 F. App'x 80, 84 (3d Cir. 2006) (citing Kost v. Kozakiewicz, 1 F.3d 176, 185
(3d Cir. 1993)); see also McCleester v. Mackel, No. 06–120, 2008 WL 821531, at *11
(W.D. Pa. Mar.27, 2008). “Establishing the existence of this ‘understanding,’ however, is
really nothing more than another way to show state action as required by § 1983 when a
private party is alleged to have violated that statute.” Id. Thus the analysis on this point
is identical to the question of whether the parties conspired. As discussed in III.A.2
above, there are enough material facts in dispute on the matter of whether the parties
conspired to preclude summary judgment at this stage.
2. Breach of Duty of Fair Representation Claim
Summary judgment is also not appropriate with respect to Plaintiff’s Breach of
Duty of Fair Representation claim against the LCDA because there exist genuine issues
of material fact.
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Mazzoni asserts that the LCDA violated the union’s duty of representation
required under Pennsylvania law: Act 111 of 1968, 43 P.S. § 217.1, et seq., and the
Pennsylvania Labor Relations Act (“PLRA”), 43 P.S. § 211. 1, et seq. Pennsylvania
Courts follow the federal model and apply the same duty of representation as set forth
by the United States Supreme Court. See, e.g., Martino v. Transp. Workers' Union of
Phila., Local 234, 480 A.2d 242, 245–48 (Pa.1984) (adopting the standard set forth in
Vaca v. Sipes, 386 U.S. 171, 173 (1967)).
Unions have a statutory duty to fairly represent all employees within the
appropriate bargaining unit. Vaca, 386 U.S. at 177.
[T]o prove a claim against a union for breach of the duty of fair representation, a
plaintiff must demonstrate that the union's actions are either arbitrary,
discriminatory or in bad faith. A union's actions are arbitrary only if, in light of the
factual and legal landscape at the time of the union's actions, the union's behavior
is so far outside a wide range of reasonableness as to be irrational.
Vavro v. Gemini Food Mkts., Inc., 39 F. Supp. 2d 553, 559 (E.D. Pa. 1999) (citing Air Line
Pilots Ass’n Int’l v. O'Neill, 499 U.S. 65, 67 (1991); Vaca, 386 U.S. at 171, 190) (internal
citations omitted). A union official’s grievance handling is not arbitrary or perfunctory
when it is inept or negligent, nor does disagreement about strategy form a foundation for
a breach of the duty of fair representation claim. Johnson v. United Steelworkers of Am.,
District 7 Local Union No. 2378–B, 843 F.Supp. 944, 946, 948 (M.D. Pa.1994).
Mazzoni argues that because the LCDA began the arbitration process, but then
decided not to go to arbitration after facing pressure and threats from Jarbola, it violated
its duty of fair representation to him. The LCDA argues that it did not act in bad faith in
deciding to stop Mazzoni’s grievance process, and that this decision was not the result
of pressure from Jarbola. However, Mazzoni has put forth enough evidence to put into
dispute whether the LCDA ceased the grievance process for proper reasons, and so
summary judgment on this matter is precluded. The LCDA presented evidence in the
form of testimony from Union President Thomas J. Davis and Jarbola that Jarbola did
not influence the representation. However, Mazzoni presented evidence that the LCDA
only stopped the grievance process when Jarbola threatened the members with
19
investigation, and that it had never before held a vote in the midst of the process to
decide whether to proceed. The LCDA also has not provided an explanation for why
itdecided to hold a vote in this case, thus, a reasonable jury could deem that decision to
be arbitrary. A reasonable jury could also find that the LCDA acted in its own interest in
holding the vote and not going forward with Mazzoni’s grievance, violating its duty of fair
representation. Thus, Summary Judgment is precluded on this issue.
IV. Conclusion
For the above reasons, the Motion for Summary Judgment of Defendants Andrew
J. Jarbola, Lackawanna County, and the Lackawanna County District Attorney’s Office with
respect to Plaintiff’s request for punitive damages for his retaliation claim will be granted.
All other relief sought in their Motion for Summary Judgment will be denied. Lackawanna
County Detectives Association’s Motion for Summary Judgment will similarly be denied.
An appropriate order follows.
October 16, 2014
/s/ A. Richard Caputo
Date
A. Richard Caputo
United States District Judge
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