Tayoun v. City of Pittston et al
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 8/12/14. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CITY OF PITTSTON, and
MAYOR JASON KLUSH
Case No. 4:12-cv-0068
August 12, 2014
Before the Court is Defendants City of Pittston and Mayor Jason Klush’s
Motion for Summary Judgment (ECF No. 23) on Plaintiff Jeff Tayoun’s allegation
of retaliation for speech protected by the First Amendment to the United States
Constitution. Plaintiff filed a Brief in Opposition (ECF No. 29) to the Defendants’
Motion and the issue is now ripe for disposition. For the reasons discussed below,
the Defendants’ Motion for Summary Judgment is denied.
Plaintiff Jeff Tayoun (“Plaintiff” or “Tayoun”) was the Police Chief of the
City of Pittston. Defs.’ Statement Facts, ¶ 3, Aug. 13, 2013, ECF No. 25
[hereinafter Defs.’ SOF]. In October 2009, he discovered forty-six (46) illicit
photographs on a Pittston Police Department computer. Id. ¶ 4, Exs. B, D. The
photographs, taken by Officer Robert J. Semyon, depicted “the nude body of the
victim (A.H.) who was unconscious or otherwise unaware that these photographs
were being taken. Four photographs depict penetration of the victim’s anus and
vagina.” Pl.’s Br. Opp’n Mot. Summ. J., Ex. A, Sept. 10, 2013, ECF No. 29
[hereinafter Pl.’s Br.].
After discovering the photographs, Tayoun notified the Mayor of the City of
Pittston, then Mayor Donna Connors, and asked her to suspend Officer Semyon.
Defs.’ SOF, ¶¶ 5–7; Pl.’s Statement Facts, ¶¶ 5–7 [hereinafter Pl.’s SOF]. Tayoun
also took the computer to the State Police Crime Lab for analysis. Id. He
participated in a meeting with Mayor Connors and members of the City Council to
discuss his discovery and what action they should take with respect to Officer
Semyon. Defs.’ SOF, ¶ 10. At the same time, Tayoun also notified the Office of
the Attorney General of Pennsylvania of his discovery and provided to it copies of
the photographs. Pl.’s SOF, ¶¶ 7–8.
The Pennsylvania Attorney General subsequently opened a criminal
investigation into Officer Semyon’s conduct. Pl.’s SOF, ¶ 9; Pl.’s Br., Exs. A, C.
As a result of this investigation, Officer Semyon was charged and pled guilty to
Aggravated Indecent Assault, among other charges. See id. Semyon served more
than a year in prison for his crimes. Pl.’s Br., Ex. B.
Shortly after Tayoun’s discovery and report of the photographs, Jason Klush
was sworn in as Mayor of Pittston. Defs.’ SOF, ¶¶ 11, 14. After assuming office,
Mayor Klush demoted Tayoun from his position as Chief of Police. Pl.’s SOF, ¶
11. Tayoun also suffered other adverse actions at the hands of either Mayor Klush
or other Police Department or city officials, including: that he was required to use
Officer Semyon’s old locker that still contained Semyon’s personal effects; that
fellow co-workers were not allowed to donate sick time to Tayoun as others had
done in the past; that Tayoun was required to complete daily activity logs when
other officers were not; and that city officials allegedly killed Tayoun’s fish in his
office fish tank. Id. Tayoun alleges that he suffered these adverse actions,
principally his demotion from Police Chief, as a result of his report to the
Pennsylvania Attorney General about Officer Semyon’s criminal activity. Id.
Tayoun believes he was demoted “because [he] turned in another cop who was
friends with [Mayor Klush].” Pl.’s Br., Ex. 6, Tayoun Dep. Tr., 22:9-12
[hereinafter Tayoun Dep.].
Mayor Klush alleges that he had the power to change the Police Chief at
will, and believed it was time for a change when he assumed his duties as Mayor.
Defs.’ SOF, ¶ 17. Regarding the other accusations, he asserts either that he
allowed the new Police Chief to run the force in the manner he chose to accomplish
his duties, or that he was not otherwise involved. See generally Pl.’s Br., Ex. 4,
Klush Dep. Tr. [hereinafter Klush Dep.].
Tayoun filed this action alleging retaliation for speech protected by the First
Amendment in light of these facts.
Summary Judgment Standard
Summary judgment is appropriate where “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). A fact is “material” where it “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
a reasonable jury,” giving credence to the evidence favoring the nonmovant and
making all inferences in the nonmovant’s favor, “could return a verdict for the
nonmoving party.” Id.
The burden of establishing the nonexistence of a “genuine issue” is on the
party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir.
2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J.,
dissenting)). The moving party may satisfy this burden by either (i) submitting
affirmative evidence that negates an essential element of the nonmoving party’s
claim; or (ii) demonstrating to the Court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s case. Id. at
Where the moving party’s motion is properly supported, the nonmoving
party, to avoid summary judgment in his opponent’s favor, must answer by setting
forth “genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250. For movants and nonmovants alike, the assertion “that a fact cannot
be or is genuinely disputed must” be supported by “materials in the record” that go
beyond mere allegations, or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” FED. R. CIV. P. 56(c)(1); see also
Anderson, 477 U.S. at 248–50.
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’” Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, “[i]f a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” FED. R. CIV. P. 56(e)(2).
In deciding the merits of a party’s motion for summary judgment, the
Court’s role is not to evaluate the evidence and decide the truth of the matter, but
to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Credibility determinations are the province of the factfinder, not the district court.
BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Plaintiff’s First Amendment Retaliation Claim Survives Summary
To assert a retaliation claim under the First Amendment to the United States
Constitution, a plaintiff must establish three elements: “(1) constitutionally
protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the
constitutionally protected conduct and the retaliatory action.” Thomas v.
Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). The Defendants assert
Plaintiff’s report of Officer Semyon’s criminal activity was not constitutionally
In a landmark case on the issue of whether conduct is constitutionally
protected, Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court of the
United States held that “when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). By contrast,
“[w]hen an employee speaks as a citizen addressing a matter of public concern, the
First Amendment requires a delicate balancing of the competing interests
surrounding the speech and its consequences.” Id. at 423; see also Pickering v. Bd.
of Educ. of Tp. High Sch. Dist. 205, Will Cnty. Illinois, 391 U.S. 563, 568 (1968)
(“The problem in any case is to arrive at a balance between the interests of the . . .
citizen, in commenting upon matters of public concern and the interest of the State,
as an employer, in promoting the efficiency of the public services it performs
through its employees.”).
In the wake of Garcetti, the United States Court of Appeals for the Third
Circuit has held that:
A public employee’s statement is protected activity only where (1) the
employee spoke as a citizen (2) about a matter of public concern and
(3) “the government employer did not have an adequate justification
for treating the employee differently from any other member of the
general public as a result of the statement he made.”
Hara v. Pennsylvania Dept. of Educ., 492 Fed. App’x 266, 267 (3d Cir. 2012)
(quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241–42 (3d Cir. 2006)
(internal quotations omitted)).
Accordingly, the Third Circuit also explained that a court should “proceed
through three steps to ascertain whether a public employee’s speech is protected by
the First Amendment.” Morris v. Philadelphia Hous. Auth., 487 Fed. App’x 37, 39
(3d Cir. 2012). The Court delineated the steps, writing:
First, as a threshold issue, we must determine whether the employee’s
speech was made pursuant to his or her official duties, and therefore
was unprotected by the First Amendment, or whether it was
constitutionally protected speech made as a citizen. . . . If the speech
was not made pursuant to an employee’s official duties, we proceed to
the analysis set forth in Pickering v. Board of Education, 391 U.S.
563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and consider whether “the
employee spoke as a citizen on a matter of public concern.” Garcetti,
547 U.S. at 418, 126 S.Ct. 1951. If the answer to that question is yes,
we must determine “whether the relevant government entity had an
adequate justification for treating the employee differently from any
other member of the general public.” Id.
Morris, 487 Fed. App’x at 39. This Court proceeds with this inquiry under the
facts of this case.
Plaintiff’s Report to the Attorney General’s Office Was Action
Outside His Official Duties
The Defendants’ principle contention in their Motion for Summary
Judgment is that the Plaintiff fails to satisfy the first element of the retaliation test:
that he did not engage in constitutionally protected conduct because his report of
Officer Semyon’s criminal activity was attendant to his official duties. To discern
whether the activity in question was performed as a private citizen or as part of a
public employee’s official duties, it is necessary to establish the content and scope
of those duties. See, e.g., Garcetti, 547 U.S. at 424–25.
Writing for the Court in Garcetti, Justice Kennedy stated that, because the
issue was not in dispute in that case, it was “no occasion to articulate a
comprehensive framework for defining the scope of an employee’s duties in cases
where there is room for serious debate.” Garcetti, 547 U.S. at 424. Justice
Kennedy continued, however, noting that:
The proper inquiry is a practical one. Formal job descriptions often
bear little resemblance to the duties an employee actually is expected
to perform, and the listing of a given task in an employee’s written job
description is neither necessary nor sufficient to demonstrate that
conducting the task is within the scope of the employee’s professional
duties for First Amendment purposes.
Id. at 424–25.
Considering the practical inquiry referenced in Garcetti with more
specificity, the Third Circuit has held that “whether a particular incident of speech
is made within a particular plaintiff’s job duties is a mixed question of fact and
law.” Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir.2007); see also Reilly v.
City of Atl. City, 532 F.3d 216, 227 (3d Cir. 2008). A court engaged in this
practical inquiry should examine, among other things:
(1) whether the employee’s speech relates to “‘special knowledge’ or
‘experience’ acquired through his job,” [Gorum v. Sessoms, 561 F.3d
179, 185 (3d Cir. 2009) (quoting Foraker v. Chaffinch, 501 F.3d 231,
240 (3d Cir. 2007))]; (2) whether the employee raises complaints or
concerns about issues relating to his job duties “up the chain of
command” at his workplace, Foraker, 501 F.3d at 241; (3) whether the
speech fell within the employee’s designated responsibilities, Gorum,
561 F.3d at 186; and (4) whether the employee’s speech is in
furtherance of his designated duties, even if the speech at issue is not
part of them.
Kimmett v. Corbett, 554 Fed. App’x 105, 111 (3d Cir. 2014).
The Third Circuit has “consistently held that complaints up the chain of
command about issues related to an employee’s workplace duties—for example,
possible safety issues or misconduct by other employees—are within an
employee’s official duties.” Morris, 487 Fed. App’x at 39. The fact that the
speech in question concerns the subject matter of the person’s employment,
however, is not dispositive. Garcetti, 547 U.S. at 420.
For example, in Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007),1 the
Third Circuit held that Delaware State Troopers’ complaints about poor conditions
at a firing range were not protected by the First Amendment because the statements
were made pursuant to their official duties. The troopers first reported the poor
conditions at the range up their internal chain of command, and then to the State
Auditor, an entity not ordinarily within their chain of command. Foraker, 501 F.3d
The Supreme Court subsequently abrogated a portion of this decision concerning the
First Amendment’s Petition Clause in Borough of Duryea, Pa. v. Guarnieri, 131 S.Ct. 2488
(2011). The Supreme Court’s abrogation of Foraker v. Chaffinch, 501 F.3d 231 (3d Cir. 2007),
did not fully affect its application to the case sub judice.
The Third Circuit enunciated an important distinction with respect to the
troopers’ report to the State Auditor, an external entity to which the troopers’ owed
no ordinary official duty of reporting. Id. at 243. Writing for the panel, Judge D.
Brooks Smith stated:
We recognize that giving statements to the State Auditor was not part
of their everyday duties and that Garcetti leaves open the possibility
that speech within the workplace relating to non-job issues is
protected. However, [one trooper] explained that he spoke to the
auditors because “[i]t was my duty to speak to the auditors. The order
came down from the executive office of the State of Delaware,
meaning the Governor’s office. I am bound by that order.” Although
this speech was compelled by their employer, this fact alone does not
locate the speech within the realm of [the troopers’] job duties.
Rather, what is dispositive is that the prior statements of [the troopers]
within the chain of command prompted the order to speak with the
State Auditor. Because the speech that motivated the order was
within their job duties, the responsibility to respond to the subsequent
order was also within the scope of their duties.
Foraker, 501 F.3d at 243.
The United States Court of Appeals for the Ninth Circuit further
extrapolated on this distinction in a recent en banc decision, Dahlia v. Rodriguez,
735 F.3d 1060 (9th Cir. 2013). In that case, a police detective brought a retaliation
suit against his Police Chief, the city, and other officers, alleging that he was
placed on administrative leave after disclosing the alleged use of abusive
interrogation tactics by other officers. Dahlia v. Rodriguez, 735 F.3d 1060, 1065
(9th Cir. 2013). The police detective reported the alleged abusive tactics both up
the chain of command pursuant to his professional duties, and later to the police
department’s Internal Affairs. Id. at 1077. The Ninth Circuit concluded that,
because the defendants did not establish that meeting and cooperating with Internal
Affairs was a component of a police officer’s duties, the plaintiff adequately
alleged that his activity with Internal Affairs was outside the scope of his duties
sufficient to satisfy that element of the First Amendment retaliation inquiry. Id.
In the case sub judice, Tayoun reported his conduct both to the Mayor, a
person in his ordinary chain of command, and to the Pennsylvania Attorney
General, an unaffiliated entity not ordinarily within his chain of command. The
Defendants establish Tayoun’s responsibilities toward the Mayor by citing
Pennsylvania’s Third Class City Code, which governs the City of Pittston and
Policemen shall obey the orders of the mayor and make report to him,
which report shall be laid by him before council monthly. The mayor
shall exercise a constant supervision and control over their conduct.
53 P.S. § 37007 (amended May 19, 2014).2
The legislature subsequently amended the statue to read:
The Police Chief shall obey the orders of the mayor and make report to the
mayor, which report shall be presented monthly by the mayor to council.
53 P.S. § 37007.
This statutory pronouncement is certainly sufficient to relegate both
Tayoun’s report to the Mayor and the subsequent City Council meeting as
activities within the scope of his duties. Tayoun’s act of bringing the computer to
the State Police Crime Lab for analysis also probably falls within the orbit of his
official duties as well, although even this finding stretches the outer limits of the
amorphous job duties the Defendants allege.
Indeed, beyond this lone citation to the Third Class City Code, the
Defendants’ did not establish any other specific official or practical requirements
for Tayoun’s job as the Police Chief. Defendants do not have an official job
description for the Police Chief position, and Mayor Klush was unable to
enumerate the specifics of any such description. See Klush Dep., at 33:10–19.
Aside from presenting hyperbolic conclusory statements unsupported by evidence,
the Defendants did not establish that the Police Chief had any general duty to
report to the Pennsylvania Attorney General, or that Tayoun was under an order or
duty to report to the Attorney General in this particular instance.
Because reporting this nefarious activity to the Attorney General was not an
element of Tayoun’s official duties, Tayoun acted as a private citizen when
reporting these issues independently to that office. See, e.g., Davis v. McKinney,
518 F.3d 304, 313 (5th Cir. 2008) (“If however a public employee takes his job
concerns to persons outside the work place [sic] in addition to raising them up the
chain of command at his workplace, then those external communications are
ordinarily not made as an employee, but as a citizen.”); Freitag v. Ayers, 468 F.3d
528, 545 (9th Cir. 2006) (“[A plaintiff’s] right to complain both to an elected
public official and to an independent state agency is guaranteed to any citizen in a
democratic society regardless of his status as a public employee.”).
Plaintiff’s Report of Officer’s Criminal Activity Was Speech
Regarding a Public Concern
Tayoun’s report as a citizen to the Pennsylvania Attorney General may
qualify for First Amendment protection if it raised a matter of public concern. See,
e.g., Connick v. Myers, 461 U.S. 138, 143 (1983). The concept of a public concern
has proven nebulous at its fringes, and eludes a definition capable of precise
application that is consistent throughout our jurisprudence. See San Diego v. Roe,
543 U.S. 77, 83 (2004) (“[T]he boundaries of the public concern test are not well
defined.”). Indeed, “our cases have provided little concrete guidance on the
question of when . . . a complaint amounts to an issue of public concern.”
Montone v. City of Jersey City, 709 F.3d 181, 194 (3d Cir. 2013) (internal
There exists no “bright-line rule . . . to determine ‘[w]hether an employee’s
speech addresses a matter of public concern.” Campbell v. Galloway, 483 F.3d
258, 269 (4th Cir. 2007) (quoting Connick, 461 U.S. at 147–48). Rather, the
United States Supreme Court instructs courts to engage in a case- and fact-specific
inquiry that considers “the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461 U.S. at 147–48.
In Snyder v. Phelps, 131 S.Ct. 1207, 1216 (2011), Chief Justice John
Roberts attempted to articulate a workable test to discern whether a given
statement is a public concern. Chief Justice Roberts formulated a disjunctive
Speech deals with matters of public concern when it can “be fairly
considered as relating to any matter of political, social, or other
concern to the community,” Connick, supra, at 146, 103 S.Ct. 1684,
or when it “is a subject of legitimate news interests; that is, a subject
of general interest and of value and concern to the public,” [San Diego
v. Roe, 543 U.S. 77, 83 (2004)].
Snyder v. Phelps, 131 S.Ct. 1207, 1216 (2011) (Roberts, C.J.).
The “concern to the community” inquiry derived from the case of Connick
v. Myers, 461 U.S. 138, 146 (1983), while the “legitimate news interests” inquiry
derived from City of San Diego v. Roe, 543 U.S. 77, 83–84 (2004).
Unfortunately, however, the Supreme Court failed to articulate the difference in
application between the two prongs of this test.3
For a thoughtful analysis of the merits and demerits of the Supreme Court’s formulation
in Phelps, see Clay Calvert, Defining “Public Concern” After Snyder v. Phelps: A Pliable
Standard Mingles with News Media Complicity, 19 VILL. SPORTS & ENT. L.J. 39, 52–58 (2012).
Demonstrating the Connick inquiry’s continued prominence in the wake of
Snyder, the Third Circuit wrote:
Applying the analytical framework laid out by the Supreme Court in
Connick, we noted that the key to the “public concern” inquiry is
“whether expression of the kind at issue is of value to the process of
self-governance.” [Azzaro v. Cnty. of Alleghny, 110 F.3d 968, 977
(3d Cir. 1997) (en banc).] We further explained that “the issue is
whether it is important to the process of self-governance that
communications on this topic, in this form and in this context, take
place.” Id. at 977.
Montone v. City of Jersey City, 709 F.3d 181, 193 (3d Cir. 2013).
Attempting to sharpen the distinction between public and private concerns,
courts have placed emphasis on the speaker’s motivations for the speech under the
context element4 of the inquiry—primarily personal motivations for the speech
may remove speech from the province of public concern. See, e.g., Feldman v.
Philadelphia Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994). “[P]ublic speech
‘cannot constitute merely personal grievances.’” Brennan v. Norton, 350 F.3d 399,
412 (3d Cir. 2003) (quoting Feldman, 43 at 829). “Speech that is necessary or
appropriate to enable citizens to make informed decisions about the operation of
Prior to the Phelps decision, another scholarly commentator observed that the newsworthiness
standard “involves essentially the same inquiry as a ‘public concern’ test.” Mary-Rose
Papandrea, Citizen Journalism and the Reporter’s Privilege, 91 MINN. L. REV. 515, 580 (2007).
Courts also consider a speaker’s motivation under the “form” element of the public
concern inquiry. See Delgado v. Jones, 282 F.3d 511, 519 (7th Cir. 2002).
their government is of public concern, while speech by public employees
addressing individual personnel disputes and grievances is not.” Pool v.
VanRheen, 297 F.3d 899, 906 (9th Cir. 2002). Thus, it is clear that “the
quintessential employee beef” is not a public concern. Murray v. Gardner, 741
F.2d 434, 438 (D.C. Cir. 1984).
For example, while complaints about personal abuses suffered at the hands
of public employees do not generally rise to the level of public concern,5 speech
regarding a public employee’s criminal activity not exclusively directed at the
speaker generally does constitute a public concern.6 Nevertheless, a speaker’s
personal “motivation is merely one factor to be considered.” Versarge v. Twp. of
Clinton N.J., 984 F.2d 1359, 1365 (3d Cir. 1993) (internal quotations omitted).
With respect to the speech’s content, the Third Circuit has noted that
“speech may involve a matter of public concern if it attempts to bring to light
See, e.g., Bell v. City of Philadelphia, 275 Fed. App’x 157, 159 (3d Cir. 2008) (finding
complaints of personally experiencing alleged gender and race discrimination by supervisors in a
public office was not a matter of public concern); Feldman v. Cmty. Coll. of Allegheny (CCAC),
85 Fed. App’x 821, 825 (3d Cir. 2004) (finding that discrete complaint of racial and religious
animus by a supervisor was a private matter not of public concern); Middleton v. Deblasis, 844
F. Supp. 2d 556, 565 (E.D. Pa. 2011) (finding that plaintiff’s complaints about her own abuse
and mistreatment by her superiors was not a matter of public concern).
See, e.g., Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (finding that police
detectives speech disclosing alleged use of abusive interrogation tactics by other officers
commented on a matter of public concern); Swineford v. Snyder Cnty. Pa., 15 F.3d 1258, 1271
(3d Cir. 1994) (“[S]peech disclosing public officials’ misfeasance is protected while speech
intended to air personal grievances is not.”).
actual or potential wrongdoing . . . on the part of government officials.”
Baldassare v. State of N.J., 250 F.3d 188, 195 (3d Cir. 2001) (internal quotations
and citation omitted). “Our jurisprudence makes clear that an internal investigation
into the alleged criminal actions of public employees falls squarely within the core
public speech delineated in Connick.” Id. at 196–97. “[A]llegations of criminal
behavior against . . . fellow officers could touch upon a matter of public concern.”
Sebast v. Mahan, 09-CV-98 GLS-RFT, 2009 WL 2256949, *2 (N.D.N.Y. July 28,
2009). Furthermore, “[a] complaint arising out of public employment need not
include indications that there is a systemic problem . . . to address a matter of
public concern.” Morgan v. Covington Twp., —Fed. App’x—, 2014 WL 1465723
(3d Cir. Apr. 16, 2014) (internal quotations omitted).
For example, in Baldassare v. State of New Jersey, 250 F.3d 188, 197 (3d
Cir. 2001), the Third Circuit held that a county investigator’s speech in connection
with an investigation of fellow law enforcement officers was on a matter of public
concern. In that case the investigator worked for the county prosecutor’s office
and investigated allegations that two colleagues bought vehicles previously leased
by the county well below market price. Baldassare, 250 F.3d at 192–94. The
investigator reported the alleged criminal activity to his superior, who then notified
the state attorney general’s office. Id.
A deputy attorney general who was friendly with the two accused public
employees engaged in retaliatory conduct against the investigator. Id. at 192–94.
The investigator subsequently sued alleging, inter alia, a retaliation claim under
the First Amendment. Id. The Court found that the investigator’s speech on the
alleged criminal activity of his fellow officers constituted a public concern. Id. at
Similarly, in Montone v. City of Jersey City, 709 F.3d 181, 193–95 (3d Cir.
2013), the Third Circuit held that a police officer’s speech alleging sexual
harassment by a superior against herself and several fellow officers involved a
matter of public concern. In that case, the plaintiff complained about multiple
instances of inappropriate conducted directed towards her, as well as complaints of
inappropriate conduct directed towards other females. Montone, 709 F.3d at 194.
The Third Circuit found the plaintiff’s speech met the public concern threshold
because the allegations concerned a police officer exercising authority on behalf of
the public and the alleged misconduct concerned women other than the defendant.
Id. at 193–95.
In contrast, in Middleton v. Deblasis, 844 F. Supp. 2d 556, 563–65 (E.D. Pa.
2011), a court found it was not a public concern when a police officer brought a
retaliation claim against her city employer after making allegations of racial and
sexual discrimination by her supervisors. The court stated that “plaintiff complains
solely about her own abuse and mistreatment by superiors, which is not a matter of
public concern.” Middleton v. Deblasis, 844 F. Supp. 2d 556, 565 (E.D. Pa. 2011).
In the case before the Court, Tayoun spoke to the Pennsylvania Attorney
General on a matter of public concern. See, e.g., Baldassare, 250 F.3d at 192–94.
Admittedly, neither the Court nor the Parties discovered an individual case that
directly places this matter squarely within or outside of the existing confines of the
public concern question. Nevertheless, considering the principles, policy, and
normative considerations underlying the public concern analysis, the facts of this
case demonstrate that Tayoun spoke on a matter of public concern. See id.
First considering the content of the speech, it is undoubtedly a public
concern that those charged with the duty and privilege to enforce the law be law
abiding citizens themselves. See Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 978
(3d Cir. 1997) (finding that a communication that brought to light actual
wrongdoing on the part of one exercising public authority related to matters of
public concern). Like the plaintiffs in Baldassare, Tayoun’s speech concerned the
criminal activity of a fellow officer. See Baldassare, 250 F.3d at 192–94.
Significantly, the officer stored the evidence of that criminal activity on a police
department computer—equipment supplied by taxpayer labor and the public
monies it produced.
More significantly still, the fact that Tayoun’s speech led to a successful
criminal prosecution of the offending police officer further indicates its public
import. “Certainly, a communication by a law enforcement officer that contains
information essential to a complete and objective investigation of serious criminal
activity is content that implicates public concern.” Delgado v. Jones, 282 F.3d
511, 517–18 (7th Cir. 2002). Based on Tayoun’s information, the Attorney
General’s Office successfully prosecuted Officer Semyon, who subsequently
served over a year in prison for his criminal activity.
Considering the context, the record does not indicate Tayoun had any
personal motivation for his speech. The speech did not concern any abuse or
mistreatment Tayoun suffered at the hands of his employers and the thrust of his
speech did not relate to an employment dispute. See Middleton, 844 F. Supp. 2d at
565. Tayoun had no personal interest in his speech aside from his interest as a
member of the public in ensuring that officers of the law are themselves law
The form of the speech, a private report to the Pennsylvania Attorney
General, is not a material consideration for the outcome of this case. Private
statements that are not made publicly are protected by the First Amendment if they
involve matters of public concern. See Givan v. Western Line Consolidated Sch.
Dist., 439 U.S. 410, 415 (1979).
Accordingly, the content, context, and form of Tayoun’s speech—reporting
a police officer’s criminal activity to the Pennsylvania Attorney General’s Office,
which lead to the successful criminal prosecution of that officer—demonstrate that
Tayoun’s speech was on a matter of public concern.
Material Facts Remain Disputed Regarding Whether the City
Had an Adequate Justification for its Subsequent Treatment of
The third prong of the test establishing First Amendment protection for an
employee’s speech charges courts to discern whether “the government employer
did not have an adequate justification for treating the employee differently from
any other member of the general public as a result of the statement he made.”
Hara, 492 Fed. App’x at 267. This is a fact intensive inquiry that is often left to a
jury. See, e.g., Zamboni v. Stamler, 847 F.2d 73, 79 n.6 (3d Cir. 1988) (“We note
that these inquiries, which follow a determination that speech is protected, are for
An employer’s “professed belief that he hired [a plaintiff’s replacement]
because she was ‘right for the job’ can not, by itself, be accepted as an adequate
[non-discriminatory] explanation for rejecting [a plaintiff].” Iadimarco v. Runyon,
190 F.3d 151, 167 (3d Cir. 1999).7 “After all, a hiring official’s subjective belief
that an individual would not ‘fit in’ or was ‘not sufficiently suited’ for a job is at
least as consistent with discriminatory intent as it is with nondiscriminatory intent:
The [sic] employer just might have found the candidate ‘not sufficiently suited’ for
the position because of . . . engaging in a protected activity.” Patrick v. Ridge, 394
F.3d 311, 317 (5th Cir. 2004).
Not surprisingly, the Parties present two differing theories for the
events subsequent to Tayoun’s speech in this case. Tayoun believes that he
was demoted from Police Chief and treated unfavorably “because [he]
turned in another cop who was friends with [Mayor Klush].” Tayoun Dep.,
at 22:9–12. Defendants counter that they have the power to demote the
Police Chief without cause,8 and that Mayor Klush believed it was time for a
The Third Circuit’s decision in Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999), was
in the context of a Title VII case, not a First Amendment action. Nevertheless, the employment
context principles in this case and in others cited remain instructive in the case at bar.
Defendants cite 53 P.S. § 37002 for this authority, which stated at the time:
The mayor shall designate, from the force, the chief and other officers who shall
serve as such officers until their successors are appointed and qualified. The
Police Chief shall be designated by the mayor and may be demoted without cause
in the same manner, but not to any rank lower than the rank which he held at the
time of his designation as Police Chief.
53 P.S. § 37002 (amended May 18, 2014).
change when he took office. See Pl.’s Br., at 16–17. Nevertheless,
demoting a Police Chief when a new administration took office without
soliciting resumes or holding a single interview for his replacement was an
unprecedented occurrence in Pittston. See id.; Klush Dep. 41:21–24.
Furthermore, Defendant Klush testified to their differing accounts of
the reasons for Tayoun’s demotion and treatment at his deposition, stating:
He’s saying one thing, you’re saying another, and it’s up to
someone to believe who’s telling the truth, correct?
Klush Dep., 59:21–60:1.
“Evaluation of witness credibility is the exclusive function of the jury, and
where the only evidence of intent is oral testimony, a jury could always choose to
discredit it.” Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 262 (3d Cir.
1987). The evidence proffered by both sides in this case is primarily oral
testimony that is often in conflict.
Viewing the facts in the light most favorable to the non-moving party as
required on summary judgment, material facts remain in dispute on the issue of the
Defendants’ adequate explanation. See Anderson, 477 U.S. at 248. These
disputed facts are also material to demonstrating the elements of retaliatory action
and the causal link between the speech and the retaliatory conduct that are
necessary for a First Amendment retaliation claim. See, e.g., Thomas, 463 F.3d at
296. Accordingly, these issues are inappropriate for summary judgment and
should be submitted to a fact finder.
For the foregoing reasons, Plaintiff Tayoun’s speech reporting a police
officer’s criminal activity was speech protected under the First Amendment.
Further disputed material facts preclude the resolution of this case on summary
judgment, and the Defendants’ Motion is denied.
An appropriate Order follows.
BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge
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