Bifano et al v. Waymart Borough et al
Filing
17
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Malachy E Mannion on 12/22/16. (ao)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH BIFANO and
KEITH RYNEARSON,
:
:
Plaintiffs,
CIVIL ACTION NO. 3:16-0245
:
v.
(JUDGE MANNION)
:
WAYMART BOROUGH and
FREDERICK J. GLAVICH,
Defendants.
:
:
MEMORANDUM
Pending before the court is a motion to dismiss, (Doc. 8), filed by
defendant Waymart Borough located in Wayne County, Pennsylvania (“the
Borough”) and defendant Frederick J. Glavich (“Police Chief Glavich”). The
defendants seek dismissal of all of the claims in the complaint, (Doc. 1), filed
by plaintiff Joseph Bifano (“Corporal Bifano”) and plaintiff Keith Rynearson
(“Sergeant Rynearson”). Corporal Bifano and Sergeant Rynearson were
former employees of the Borough’s police department. The plaintiffs’
complaint alleges that the Borough and Police Chief Glavich violated
Pennsylvania’s whistleblower law (Count I) and the First Amendment of the
United States Constitution (Count II). The complaint also alleges that Police
Chief Glavich defamed the plaintiffs under Pennsylvania law (Count III). For
the reasons that follow, the defendants’ motion to dismiss is GRANTED IN
PART and DENIED IN PART.
I.
FACTUAL BACKGROUND1
Corporal Bifano began working for the Borough’s police department in
2007. Sergeant Rynearson joined the department in 2009. Both possessed
full-time jobs in addition to their time spent with the department. In October
2010, Police Chief Glavich accepted the role of chief of police; the plaintiffs
had been offered this position first but turned it down. Unlike the previous
police chief, Police Chief Glavich frequently sat in the office “on duty” (1) “in
plain clothing”; (2) “with his personal vehicle outside and/or without [a] police
vehicle available”; (3) “avoid[ing] telephone calls”; and (4) “at times, would
avoid citizen complaints attempted in person.” (Doc. 1, at ¶¶16–17). Police
Chief Glavich was billing the Borough during those times he was in the office
and allegedly “on duty.” Police Chief Glavich also used department funds to
purchase equipment “sparingly, and unreasonably,” including the purchase
of less expensive radios for the department. These less expensive radios lost
connectivity after a few hundred yards. (Id. ¶¶18–19). Police Chief Glavich
would also criticize the plaintiffs about their enthusiasm for enforcing the law.
(Id. ¶20).
1
All facts are taken from the plaintiffs’ complaint, (Doc. 1), unless
otherwise noted. The facts alleged in the complaint must be accepted as true
in considering the defendants’ motion to dismiss. See Dieffenbach v. Dept. of
Revenue, 490 F. App’x 433, 435 (3d Cir. 2012); Evancho v. Evans, 423 F.3d
347, 350 (3d Cir. 2005).
2
In March 2015, the plaintiffs met with the Borough’s mayor at the time,
Jack Millard (“Mayor Millard”); the Borough’s councilman, Doug Bayly
(“Councilman Bayly”); and the Borough’s councilwoman, Lillian Rollinson
(“Councilwoman Rollinson”). Another police department employee, Harry
Shaffer (“Patrolman Shaffer”), was also in attendance. During this meeting,
the plaintiffs were asked about Police Chief Glavich’s work performance. (Id.
¶¶21–22). The plaintiffs told Mayor Millard, Councilman Bayly, and
Councilwoman Rollinson about Police Chief Glavich’s conduct in the office
and his “wrongdoing and/or waste of public money and funding.” (Id. ¶23). Job
descriptions for officers and the chief of police were drafted for the
department as a result of this meeting. The newly implemented job description
included a requirement that Police Chief Glavich record all hours he claimed
to be “on duty.” Police Chief Glavich signed this job description on April 17,
2015. However, the plaintiffs later spoke to the Borough’s treasurer, Shelly
Gologski (“Treasurer Gogolski”), and she said that Police Chief Glavich was
“billing a lot,” despite never seeing him. (Id. ¶¶24–28).
At the end of the 2015 summer Mayor Millard and Councilman Bayly
asked Corporal Bifano about Police Chief Glavich’s performance since the
meeting; Corporal Bifano responded that things were “status quo.” (Id.
¶¶29–30). After this encounter, Mayor Millard planned to confront Police Chief
Glavich during a meeting. Before the meeting was to be held, however,
Councilman Bayly told Police Chief Glavich about the meeting’s underlying
3
purpose. The meeting was cancelled and Mayor Millard subsequently
resigned as mayor because he was “so upset by this turn of events.” (See id.
¶¶32–34).
During the Labor Day weekend, a fireman approached Corporal Bifano
and told him that he did not have authority to break up gatherings. Corporal
Bifano called Police Chief Glavich about the matter and Police Chief Glavich
accused Corporal Bifano of “talking behind his back.” (Id. ¶¶35–36). On
September 8, 2016, the Borough held a monthly meeting with Police Chief
Glavich and Patrolman Shaffer in attendance. During that monthly meeting
Police Chief Glavich held an executive, closed-door meeting with the
Borough’s councilmembers. The next day, the plaintiffs were placed on
unpaid suspension due to an alleged lack of funding, despite there being
sufficient funding for their continued service. (Id. ¶¶38–45).
Another meeting was scheduled for October 20, 2015 to discuss the
plaintiffs’ suspension. This meeting turned into a hostile confrontation
between the plaintiffs and the Borough’s councilmembers where the
councilmembers accused the plaintiffs of violating the chain of command.
Afterwards, the plaintiffs were not placed back on the schedule and they
declined to attend any more meetings. (Id. ¶¶46–53). Instead, they sought a
return to duty “upon the acceptance of a few requests,” which the defendants
denied. (Id. ¶¶54–55). After this, the defendants took a series of actions in
addition to the suspension. In October 2015, the Borough’s new mayor, Chip
4
Norella (“Mayor Norella”), implemented a policy of single person patrols which
would have prevented the plaintiffs from working together while on duty. On
November 18, 2015, the plaintiffs were required to return all of their
equipment. On December 8, 2015, the plaintiffs’ ranks and titles were
eliminated. On January 5, 2016, the plaintiffs were officially terminated. (Id.
¶¶57–60).
At some point during this series of events, Police Chief Glavich told the
Borough’s councilmembers that the plaintiffs had “violated the [c]hain of
[c]ommand.” (Id. ¶62). Meanwhile, the plaintiffs were seeking employment in
police departments located in neighboring municipalities. The Forest City
police department was a neighboring municipality. At some unspecified time,
Police Chief Glavich also told the chief of police of the Forest City police
department that Sergeant Rynearson violated the chain of command. (Id.
¶¶62–64). Police Chief Glavich’s statement to the Forest City chief of police
was made voluntarily and not as a result of any request. (Id. ¶111).
II.
PROCEDURAL BACKGROUND
On February 11, 2016, the plaintiffs initiated this civil rights action. In
Count I, the plaintiffs alleged that the defendants violated Pennsylvania’s
Whistleblower Law, 43 PA. STAT. ANN. §1421 et seq. by retaliating against
them after they spoke out against Police Chief Glavich. In Count II, the
plaintiffs alleged that the defendants’ retaliatory actions violated the First
5
Amendment. This claim was brought under Title 42, Section 1983 of the
United States Code. In Count III, the plaintiffs alleged that Police Chief
Glavich’s statements to others that the plaintiffs violated the chain of
command was defamatory.
On March 16, 2016, the defendants filed the current motion to dismiss
based on Federal Rule of Civil Procedure 12(b)(6) and the plaintiffs’ purported
failure to state any claims. (Doc. 8). Attached to their motion as an exhibit was
a letter from the plaintiffs’ attorney to the solicitor of the Borough. (Doc. 8, Ex.
B). This letter detailed the “requests” the plaintiffs made to the Borough before
they would agree to return to the police department. This letter was
referenced in the plaintiffs’ complaint but was not attached. (See Doc. 1, at
¶54). The defendants request that the court consider the letter in deciding the
motion. The motion has been fully briefed and is now ripe for review.
III.
STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if the plaintiff fails to state a claim upon which relief can be granted. In
reviewing such a motion, the court must “accept all factual allegations as true,
construe the [c]omplaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the [c]omplaint, the
plaintiff may be entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d 116,
6
120 (3d Cir. 2012) (internal quotation marks and citation omitted). It is the
moving party that bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
Dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). This “plausibility” determination is a “context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Ultimately, the
plaintiff must be able to “provide the grounds of his entitlement to relief,”
requiring more than bold-faced labels and conclusions. Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and internal quotation
marks omitted) (quoting Twombly, 550 U.S. at 555). “[A] formulaic recitation
of the elements of a cause of action will not do.” Id.
The Third Circuit Court of Appeal has announced a three part inquiry to
apply the pleading principles announced in Iqbal and Twombly.
First, the court must take note of the elements a plaintiff must
plead to state a claim. Second, the court should identify
allegations that, because they are no more than conclusions, are
not entitled to the assumption of truth. Finally, where there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). Lastly,
the court should grant leave to amend a complaint before dismissing it as
7
merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d
113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is justified only
on the grounds of bad faith, undue delay, prejudice, or futility." Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).
B.
The Defendants’ Attached Exhibit
As an initial matter, the court must determine if the exhibit attached to
the defendants’ motion to dismiss should be taken into consideration. The
parties spent considerable time briefing this issue, relative to other
arguments. The court will not consider the letter as it is improper and
unnecessary to the court’s finding under Rule 12(b)(6).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may, however, consider
"undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff's claims are based on the [attached]
documents." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered." Pryor v. Nat'l
8
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (quoting 62 Fed.
Proc., L. Ed., §62:508). The court may not rely on other parts of the record in
determining a motion to dismiss. See Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
If a defendant attaches a document to a motion to dismiss the court
must decide if it may properly consider the document in a Rule 12(b)(6)
motion or if it converts the motion into a motion for summary judgment under
Federal Rule of Civil Procedure 56.2 See Miller v. Clinton County, 544 F.3d
542, 550 (3d Cir. 2008). In Miller, the Third Circuit determined that a letter
attached to the defendant’s motion to dismiss should have been considered
in analyzing the sufficiency of the plaintiff’s First Amendment retaliation claim.
Id. The letter formed the basis of the speech that the plaintiff sought
protection for, thus the plaintiff’s claims “were undisputably based on her . .
. letter.” Id.
The letter attached to the defendants motion does not form the basis of
the plaintiffs’ claims. The plaintiffs seek (1) First Amendment and state law
protection for oral statements made to Mayor Millard and the Borough’s
councilmembers regarding Police Chief Glavich’s performance and (2)
protection against alleged defamatory statements made by Police Chief
Glavich to others about the plaintiffs. The attached letter lists the “requests”
2
The defendants have not argued that the letter converts the motion
into a motion for summary judgment.
9
made by the plaintiffs after their suspension but before they would return to
the police department. (See Doc. 1, at ¶54). Unlike the document in Miller, the
requests detailed in the letter do not form the basis of the plaintiffs’
defamation or retaliation claims and may not be considered in a Rule 12(b)(6)
motion to dismiss.
The letter is also unnecessary to the court’s analysis. The letter may
speak to the underlying motives for the defendants’ actions in ultimately
terminating the plaintiffs. Thus, the letter is evidence supporting a likely
defense to this retaliation action—indicating a possible lack of retaliatory
motive. The letter does not, however, speak to the issue of whether the
plaintiffs have stated a claim in the first instance. The defendants seem to
recognize as much because, although they devote considerable time briefing
this issue, the defendants’ legal arguments for dismissal do not actually
reference or make use of the letter. Therefore, not only would it be improper
under Rule 12(b)(6)’s standard of review to consider the attached letter, it is
unnecessary to do so in light of the defendants’ substantive arguments before
the court.
10
IV.
DISCUSSION
A. The Plaintiffs’ First Amendment Retaliation Claim—Count II3
In Count II of the complaint the plaintiffs allege that the Borough and
Police Chief Glavich retaliated against them in violation of the First
Amendment for speaking to Mayor Millard and the Borough councilmembers
about Police Chief Glavich’s performance as chief of police. Specifically, the
plaintiffs allege that the defendants actions in suspending them, removing
their rank, removing their ability to work together, and terminating them
constituted retaliation for their protected speech. The defendants argue that
the statements made by the plaintiffs were related to their official duties, were
not made as private citizens, and are, therefore, not protected. In addition, the
defendants argue that the complaint has not established causation between
the defendants’ acts and the plaintiffs’ speech. Lastly, the defendants argue
that Police Chief Glavich is entitled to qualified immunity. The court agrees,
in part. Particularly, the plaintiffs’ allegation that Police Chief Glavich
purchased less expensive equipment does not state a valid First Amendment
retaliation claim. The court also agrees that Police Chief Glavich is entitled to
qualified immunity. The defendants’ motion is granted in this respect. The
3
The court first addresses the defendants’ arguments as they relate to
the First Amendment claim (Count II), as this claim is the only one invoking
the court’s original jurisdiction under 28 U.S.C. §1331.
11
defendants’ motion is denied with respect to the plaintiffs remaining
allegations against the Borough.
The Supreme Court has long established that a citizen’s ability to
participate in free debate on matters of public importance is “the core value
of the Free Speech Clause of the First Amendment.” Pickering v. Bd. of
Educ., 391 U.S. 563, 573 (1968); see also Connick v. Myers, 461 U.S. 138,
145 (1983); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982).
While a citizen who enters government service must forfeit the scope of some
of his freedoms, he is “nonetheless a citizen” who deserves protection from
restriction of liberties he enjoys in his capacity as a private citizen. Garcetti v.
Ceballos, 547 U.S. 410, 419 (2006). “[A] public employee has a constitutional
right to speak on matters of public concern without fear of retaliation.”
Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001) (citing Rankin v.
McPherson, 483 U.S. 378, 383–84 (1987)). Thus, “[s]o long as employees are
speaking as citizens about matters of public concern, they must face only
those speech restrictions that are necessary for their employers to operate
efficiently and effectively.” Garcetti, 547 U.S. at 419.
In order to establish a First Amendment retaliation claim in this circuit,
a public employee must show (1) that his or her speech is protected by the
First Amendment and (2) that the speech was a substantial or motivating
factor of the employer’s retaliatory action(s). Flora v. County of Luzerne, 776
12
F.3d 169, 174 (3d Cir. 2015) (citing Gorum v. Sessoms, 561 F.3d 179, 184
(3d Cir. 2009)). “The first factor is a question of law; the second factor is a
question of fact.” Gorum, 561 F.3d at 184 (quoting Hill v. Borough of
Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). If these two elements are
established, the burden shifts to the employer to show that it would have
taken the same action regardless of the speech. Flora, 776 F.3d at 174; id.
The court finds that the plaintiffs’ have sufficiently pled the first two required
elements in their First Amendment retaliation claim as it relates to some, but
not all, of the plaintiffs’ speech against Police Chief Glavich.
I.
The Protected Speech Requirement
“[W]hen 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, 547 U.S. at 421. A public employee’s speech
is only protected when “(1) in making it, the employee spoke as a citizen, (2)
the statement involved 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 [or she] made.” Flora, 776 F.3d at 175 (quoting Garcetti, 547
13
U.S. at 418). The defendants only challenge the first prong of this three-part
inquiry, but the court will address each in turn.
Whether a public employee is speaking as a citizen turns upon the
question of “whether the speech at issue is itself ordinarily within the scope
of an employee’s duties.” Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).
Importantly, the Supreme Court and the Third Circuit Court of Appeals have
clarified that the test should not be whether the speech “concerns” or was
“related to” those duties. Id. at 2379; Flora, 776 F.3d at 178–79. The inquiry
is a mixed question of law and fact; “the scope and content of [the public
employees] . . . job responsibilities is a question of fact, but the ultimate
constitutional significance of those facts is a question of law.” Flora, 776 F.3d
at 175.
There is no “comprehensive framework” for defining the scope of an
employee’s duties. Garcetti, 547 U.S. at 424.
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. In Lane v. Franks, the Supreme Court found that grand jury
testimony given by a supervisor about a subordinate employee who was
14
indicted for mail fraud and theft of receiving federal funds was citizen speech.
134 S. Ct. at 2380. The employee’s testimony included statements that the
subordinate employee performed “virtually no services,” “generated virtually
no work product,” and “rarely even appeared for work.” Id. at 2375. The
Supreme Court determined that this testimony was protected even though the
information underlying the testimony was gathered due to the speaker’s role
as supervisor. Id. at 2375, 2380. In their reasoning, the Supreme Court
focused on the manner of the speech as sworn testimony and found that such
testimony fell outside the ordinary responsibilities of the supervisor. Id. at
2379. The Supreme Court also “recognized that speech by public employees
on subject matter related to their employment holds special value precisely
because those employees gain knowledge of matters of public concern
through their employment.” Id. at 2379.
Here, there is nothing to indicate that Corporal Bifano’s and Sergeant
Rynearson’s ordinary job responsibilities included going to the mayor and the
Borough’s councilmembers to report on the activities of the chief of police.
Looking at the complaint and the defendants’ own arguments, there is no
indication that the plaintiffs were responsible for reporting potential
wrongdoing. Thus, the court cannot conclude that this activity fell within their
ordinary job responsibilities.
15
Section 1123.1(a)–(b) of Pennsylvania’s Borough Code, 8 PA. CONS.
STAT. ANN. §101 et seq. gives the Borough’s mayor full power and control
over the police force. These provisions do not dictate whether or not
subordinate police officers are required to speak to the mayor on certain
matters. The court compares these provisions to those cited in Tayoun v. City
of Pittston, 39 F. Supp.3d 572 (M.D. Pa. 2014). There the court looked to
Pennsylvania’s Third Class City Code to definitely establish that the plaintiff
officer’s job responsibilities included reporting to the mayor. 39 F. Supp.3d
572, 579 (M.D. Pa. 2014). In contrast, the Borough Code does not detail a
subordinate officer’s job responsibilities.
The fact that the plaintiffs also spoke to councilmembers suggests that
the plaintiffs were speaking as citizens and not as officers. The
councilmembers were not part of the plaintiffs’ chain of command and it is not
alleged that they owed them any duty of reporting. Cf. Foraker, 501 F.3d at
243 (finding a trooper’s speech unprotected by the Petition Clause where the
trooper had a “duty” to report to an outside auditor due to an executive order).
Construing the allegations in the plaintiffs’ favor, the plaintiffs’ speech to
Mayor Millard and the councilmembers plausibly falls outside of the plaintiffs’
ordinary job duties.
The defendants’ argument primarily focuses on the fact that the
plaintiffs’ statements were made to Mayor Millard, who was “within” their chain
of command. (Doc. 13, at ¶12). However, whether the plaintiffs spoke within
16
or outside the chain of command is not the right inquiry and is not dispositive.
See Foraker v. Chaffinch, 501 F.3d 231, 241 (3d Cir. 2007), abrogated in part
by Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011). The appropriate
inquiry is whether or not they were expected, pursuant to their ordinary job
duties, to report to the mayor. Lane, 134 S. Ct. at 2379; id.
Also, in light of Lane, the defendants’ argument that the plaintiffs’
complaints are not protected because the statements “relate solely to matters
within the scope of [the plaintiffs’] duties” and “addressed issues about which
Plaintiffs became aware solely by virtue of their positions as [p]olice [o]fficers”
is not helpful. (Doc. 13 at 12). As explained by the Supreme Court, the fact
that the plaintiffs became aware of Police Chief Glavich’s performance issues
by virtue of their positions as police officers does not automatically mean that
their speech is unprotected. See Flora, 776 F.3d at 177–78. Lane clarifies that
the appropriate inquiry in distinguishing between unprotected employee
speech and protected citizen speech is “whether the speech at issue is itself
ordinarily within the scope of [the] employee’s duties.” 134 S. Ct. at 2379.
Whether the issues raised by the plaintiffs relate to or concern their job duties
is no longer the appropriate inquiry. Id. at 2379; Flora, 776 F.3d at 178–79.
As explained above, the defendants have not shown that reporting to Mayor
Millard and the Borough’s councilmembers was part of the plaintiffs’ ordinary
job duties. Thus, dismissal on this ground is not warranted.
17
The court briefly turns to the second and third prong of the protected
speech requirement. Addressing the first prong, the court finds that the
plaintiffs’ statements about Police Chief Glavich implicated some matters of
public concern. Addressing the second prong, the court finds that further
discovery is required to determine if the defendants had “‘an adequate
justification for treating the employee differently from any other member of the
general public’ as a result of the statement he [or she] made.’” Flora, 776 F.3d
at 175 (quoting Garcetti, 547 U.S. at 418).
If an employee is speaking as a citizen, the Supreme Court has outlined
when such speech is of public concern for First Amendment purposes:
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, or when it is a subject of legitimate
news interest; that is, a subject of general interest and of value
and concern to the public.
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotations omitted).
When conducting this inquiry, the court must examine “the content, form, and
context of a given statement, as revealed by the whole record.” Connick, 461
U.S. at 147–48. No one factor is dispositive, and the court must take care to
“evaluate all the circumstances of the speech, including what was said, where
it was said, and how it was said.” Snyder, 562 U.S. at 454; Miller, 544 at 550
(“We can not ‘cherry pick’ something that may impact the public while ignoring
the manner and context in which that statement was made or that public
concern expressed.”).
18
“[S]peech that relates solely to mundane employment grievances does
not implicate a matter of public concern.” Munroe v. Cent. Bucks Sch. Dist.,
805 F.3d 454, 467 (3d Cir. 2015). In contrast, “speech may involve a matter
of public concern if it attempts to bring to light actual or potential wrongdoing
. . . on the part of government officials.” Baldassare, 250 F.3d at 195. Also,
“governmental inefficiency and misconduct is a matter of considerable
significance,” Garcetti, 547 U.S. at 425, and “misuse of state funds . . .
obviously involves a matter of significant public concern,” Lane, 134 S. Ct. At
2380.
Here, the content and context of the plaintiffs’ speech indicate that the
plaintiffs’ speech involved some matters of public concern. The plaintiffs
informed Mayor Millard and the Borough’s councilmembers of Police Chief
Glavich’s “wrongdoing and/or waste of public money and funding.” (Doc. 1, at
¶23). Specifically, they informed them that Police Chief Glavich frequently sat
in the office (1) “in plain clothing”; (2) “with his personal vehicle outside and/or
without [a] police vehicle available”; (3) “avoid[ing] telephone calls”; and (4)
“at times, would avoid citizen complaints attempted in person,” during times
he was billing the Borough for his services as police chief. (Id. ¶¶17–18). All
of these factual statements amount to a single allegation that Police Chief
Glavich was being compensated by the Borough while not performing his
expected job duties.
19
The plaintiffs’ statements relating to Police Chief Glavich’s work
performance while “on duty” are very similar to the statements made by the
plaintiff in Lane, though not in the context of a criminal investigation. They
concern the use of public funds to pay a public employee who is not actually
performing his job duties. See Lane, 134 S. Ct. at 2375. The court will not
cherry-pick each statement individually and, instead, views those statements
as a whole. Accepting the complaint allegations as true, the plaintiffs were
plausibly speaking on matters of public concern. Certainly, a police chief
avoiding police department calls and citizen complaints while billing the
Borough might indicate some wrongdoing or abuse of public office. After
further discovery, the court will be able to evaluate “the content, form, and
context of a given statement, as revealed by the whole record,” and make a
final determination. Connick, 461 U.S. at 147–48. At this stage, the court
simply finds that the plaintiffs have alleged enough facts to plausibly meet this
requirement.
The plaintiffs also criticized Police Chief Glavich for “us[ing] Police
Department funds to purchase equipment sparingly, and unreasonably.” (Doc.
1, at ¶19). This appears in a separate allegation in the plaintiffs’ complaint,
disconnected from the discussion regarding Police Chief Glavich’s “on-duty”
conduct. This allegation does not plausibly relate to any matter of public
concern. Instead, this complaint was a personal grievance against Police
Chief Glavich based on the fact that some of the equipment was not as good
20
as it could be. Particularly, the radios purchased “lost connectivity after a few
hundred yards.” Id. This type of complaint is akin to an unprotected, public
employee grievance; thus, it is unprotected by the First Amendment. See
Munroe, 805 F.3d 454, 467.
At this stage, the court cannot determine the third prong of the protected
speech requirement. The third prong requires a court to analyze whether or
not “the government . . . [lacked] an adequate justification for treating the
employee differently than the general public based on its needs as an
employer under the Pickering balancing test.” Dougherty v. Sch. Dist. of
Phila., 772 F.3d 979, 987 (3d Cir. 2014) (internal quotations omitted); see also
Flora, 776 F.3d at 175. The Pickering balance test requires that the court
“balance . . . the interests of the [employee], as a 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.” Pickering, 391 U.S. at 568. “In performing this balancing, the
manner, time, place, and entire expression of the context of the expression
are relevant.” Swartwelder v. McNeilly, 297 F.3d 228, 235 (3d Cir. 2002).
Specifically, a plaintiff’s interest as a citizen as well as the public’s
interest in the speech must be balanced against the government’s interest “as
an employer, in promoting workplace efficiency and avoiding workplace
disruption.” Dougherty, 772 F.3d at 991 (internal quotation omitted). The
balancing process requires “a fact-sensitive and deferential weighing of the
21
government’s legitimate interests.” Swartzwelder, 297 F.3d at 235 (quoting
Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 677 (1997)). This
governmental interest may include “whether the statement impairs discipline
by supervisors or harmony among co-workers, has a detrimental impact on
close working relationships for which personal loyalty and confidence are
necessary, or impedes the performance of the speaker’s duties or interferes
with the regular operation of the enterprise.” Rankin, 483 U.S. at 388. In the
law enforcement context, the government generally has a stronger interest in
regulating employee speech. See Ober v. Evanko, 80 F. App’x 196, 200–201
(3d Cir. 2003). However, “a stronger showing [of government interests] may
be necessary if the employee’s speech more substantially involve[s] matters
of public concern.” Lane, 134 S. Ct. at 2381 (quoting Connick, 461 U.S. at
152) (alteration in original).
Here, any attempt to balance interests is premature. Compare with Hill,
455 F.3d at 243 (indicating an unwillingness to discuss the prong three
analysis at the motion to dismiss stage of the case). The defendants’ have not
argued what interest they have in suppressing the plaintiffs’ speech in the
specific context of the Borough’s police department and the court will not
speculate. Without any assertion or demonstration of a government interest,
the balance tips in the plaintiffs’ favor. See Lane, 134 S. Ct. at 2381. Thus, at
this stage the plaintiff’s have asserted sufficient facts to meet the protected
speech requirement in their First Amendment retaliation claim as it relates to
22
Police Chief Glavich’s “on duty” conduct. They have not asserted a claim as
it relates to Police Chief Glavich’s purchase of equipment for the department
because this conduct did not involve a matter of public concern.
ii.
The Causal Link Between the Plaintiffs’ Speech and the
Defendants’ Retaliatory Conduct
The defendants next contend that the plaintiffs are unable to establish
the causation element for their First Amendment retaliation claim because a
span of five (5) months separated the plaintiffs’ first set of statements and the
first retaliatory action against them, their suspension. The court disagrees.
A public employee must show that [his or her] speech was a substantial
or motivating factor in the employer’s retaliatory action(s). Flora, 776 F.3d at
174. This second factor presents a question of fact typically left for a jury.
Gorum, 561 F.3d at 184; see also McGreevy v. Stroup, 413 F.3d 359, 366 (3d
Cir. 2005). At this early stage, the court must simply determine if, under any
reasonable reading of the complaint, there exists a plausible inference of
causation. See Fleisher, 679 F.3d at 120. The court finds the plaintiffs’
complaint sufficient in this respect.
“To establish the requisite causal connection a plaintiff usually must
prove either (1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.” Lauren W. ex rel.
23
Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). “[T]he
decisionmakers [responsible for the retaliatory action(s)] must be aware of the
protected conduct.” Ambrose v. Twp. of Robinson, Pa., 303 F.3d 488, 493 (3d
Cir. 2002). Thus, the span of time to establish temporal proximity is measured
between the time of the defendant(s) learning of the protected conduct and
the time of the retaliatory action taken. See id. at 494.
It is unclear from the plaintiff’s complaint when Police Chief Glavich first
learned about the plaintiffs’ statements criticizing his job performance, making
it impossible to calculate the span of time needed to infer causation using a
timeline alone. Accepting all the facts pled in the complaint as true, the only
timeline suggested by the plaintiffs is as follows:
(1) In May 2015, the plaintiffs made statements about Police Chief
Glavich to Mayor Millard and “others”—presumably referencing
Patrolman Shaffer, Councilman Bayly, and Councilwoman Rollinson,
(Doc. 1, at ¶¶21, 23);
(2) “Towards the end of summer,” Corporal Bifano told Mayor Millard
and Councilman Bayly that things were “status quo” as it related to
Police Chief Glavich’s performance, (Id. ¶¶29–30);
3) Mayor Millard resigned in August 2015, (Id. ¶34);
4) During the Labor Day weekend in 2015,4 Corporal Bifano was told he
did not have authority to break-up a gathering and Police Chief Glavich
accused him of talking behind his back, (Id. ¶¶35–36);
4
The 2015 Labor Day holiday fell on Monday, September 7; thus, the
Labor Day weekend spanned from September 5th to the 6th.
24
5) At a monthly meeting on September 8, 2015, the Borough and Police
Chief Glavich held a closed-door, executive meeting with Patrolman
Shaffer in attendance, (Id. ¶38–39, 41);
6) On September 9, 2015, the plaintiffs were informed that there was
“insufficient funds for their continued service” and they were placed on
unpaid leave, (Id. ¶¶42–43).
Although the complaint states that the plaintiffs’ statements were first made
in March 2015 and later confirmed towards the end of summer, the complaint
does not state when Police Chief Glavich learned of these statements. It is
plausible that he did not learn about the plaintiffs’ statements until the
summer. It was later during the Labor Day weekend that Police Chief Glavich
allegedly lashed out at Corporal Bifano over the phone because of the
statements. Because the court cannot speculate, the absence of a clear
timeline might warrant dismissal with leave to amend. However, the other
allegations in the complaint give rise to an inference of causation without the
need to rely on a strict timeline of events.
If the timing alone is insufficient to show causation, the Third Circuit has
recognized that “timing plus other evidence may be [the] appropriate] test.”
Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir. 2003). A plaintiff may
use “evidence gleaned from the record as a whole” to show an inference of
causation. DeFlaminis, 480 F.3d at 267. Such inference can be made when
an employer gives inconsistent reasons for termination, Waddell v. Small
Tube Products, Inc., 799 F.2d 69, 73 (3d Cir.1986), engages in a series of
25
seemingly benign actions that essentially paved the way for an employee’s
termination, Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997),
or attempts to provoke the employee by continually disciplining him for minor
matters and miscalculating the amount of time he worked, Robinson v.
SEPTA, 982 F.2d 892, 895 (3d Cir. 1993).
Here, the plaintiffs do not need to rely on a strict timeline of events to
establish the requisite causal link. The harsh telephone call between Police
Chief Glavich and Corporal Bifano a few days before the suspension could
infer causation. The fact that the suspension coincided with the resignation
of Mayor Millard who was investigating Police Chief Glavich’s conduct might
also infer causation. In addition, the false justification for the suspension—an
alleged lack of funding despite there being sufficient funding—could infer
causation. See Waddell, 799 F.2d at 73. If nothing else, cumulatively these
facts set forth a plausible inference of causation, without the need to rely on
temporal proximity alone. At a minimum, the court finds that the plaintiffs have
pled sufficient facts to infer causation and reach the discovery phase. Thus,
having already determined that the plaintiffs asserted sufficient facts to
establish the protected speech requirement, the court finds that the plaintiffs
have met their initial pleading burden and have stated a plausible First
Amendment retaliation claim for speaking out against Police Chief Glavich’s
“on duty” conduct.
26
iii.
Police Chief Glavich’s Assertion of Qualified Immunity
Lastly, Police Chief Glavich argues that he is entitled to qualified
immunity with respect to the plaintiffs’ First Amendment claim against him
individually.5 The court agrees. The court’s finding is based on the unique and
unclear Pickering balancing that occurs in the law enforcement context as
applied to the facts alleged in the plaintiffs’ complaint.
The common law privilege of qualified immunity protects public officials
who have undertaken discretionary acts from suit "to protect them ‘from
undue interference with their duties and from potentially disabling threats of
liability.'" Elder v. Holloway, 510 U.S. 510, 514 (1994) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 806 (1982)); Wright v. City of Phila., 409 F.3d 595,
599 (3d Cir. 2005) (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991)). It is “an
immunity from suit rather than a mere defense to liability.” Pearson v.
Callahan, 555 U.S. 223, 231 (2009). As such, the Supreme Court has
“stressed the importance of resolving immunity questions at the earliest
possible stage of litigation.” Id. (quoting Hunter, 502 U.S. at 227 (1991)).
5
The plaintiffs’ complaint caption does not explicitly state that Police
Chief Glavich is being sued in his individual capacity and, instead, simply lists
his name with an address. That address is different than the address listed for
the Borough. Although it is unclear if the plaintiffs intended to sue Police Chief
Glavich in his official or individual capacity, the court construes the plaintiffs’
complaint to assert claims against Police Chief Glavich in his individual
capacity alone, thus making qualified immunity arguments applicable.
27
District courts must use a two-prong test to analyze claims of qualified
immunity. Pearson, 555 U.S. at 232; Saucier v. Katz, 533 U.S. 194, 201–02,
abrogated in part by Pearson, 555 U.S. 223. Courts must determine if: (1)
"Taken in the light most favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional right?" and (2)
"whether the right was clearly established." Saucier, 533 U.S. at 201;
Pearson, 555 U.S. at 232; Wright, 409 F.3d at 600. If there was a violation of
a constitutional right and the right was clearly established, then qualified
immunity does not apply. Thus, the defendants may defeat a claim by
establishing either prong of the analysis. Courts are “permitted to exercise
their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances of
the particular case." Pearson, 555 U.S. at 236.
The court is unable to analyze the first Saucier prong at this stage of the
litigation. The first prong requires that the court determine if the defendants
violated the plaintiffs’ First Amendment right to free speech by looking at the
complaint alone. This determination will require a balancing of interests that
the court in unable to undertake at this stage of the litigation as previously
discussed. “The doctrine of constitutional avoidance counsels against
unnecessarily wading into such muddy terrain.” Zaloga v. Borough of Moosic,
— F.3d —, 2016 WL 6156003, at *3 (3d Cir. Oct. 24, 2016). Trying to address
the issue at this early stage would “be an essentially academic exercise” and
28
would also require that this court speculate on a myriad of factual matters. Id.
(quoting Pearson, 555 U.S. at 237). Instead, the court finds qualified immunity
is warranted based on the second Saucier prong.
A public official is entitled to qualified immunity if the constitutional right
at issue was not clearly established. Saucier, 533 U.S. at 201. Before
concluding that a clearly established right exists, “the court must define the
right allegedly violated at the appropriate level of specificity.” Williams v.
Bitner, 455 F.3d 186, 191 (3d Cir. 2006). The "contours of the right must be
sufficiently clear that a reasonable official would understand that what he [or
she] is doing violates that right." Saucier, 533 U.S. at 202 (quoting Anderson
v. Creighton, 483 U.S. 635, 640 (1987)). This does not “require a case directly
on point, but existing precedent must have placed the statutory or
constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011). “In some cases, even though there may be no previous precedent
directly on point, an action can still violate a clearly established right where a
general constitutional rule already identified in the decisional law applies with
obvious clarity.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012).
Here, it is incorrect to identify the right at issue as a public employee’s
right to be free from retaliatory actions for his or her speech. Zaloga, 2016 WL
6156003, at *3. More particularly, the plaintiffs were part-time police officers
who spoke to the mayor and councilmembers about possible “waste and/or
wrongdoing” stemming from their supervisor’s improper “on duty” conduct.
29
The mayor was within their chain of command and the councilmembers were
not. Construing the complaint in the plaintiffs’ favor, these statements were
not shown to be part of the plaintiffs’ ordinary job responsibilities and plausibly
implicated matters of public concern, as discussed above. However, the court
has found no existing precedent to place the issues raised by the Pickering
balancing beyond debate. Instead, many cases suggest that the Pickering
analysis favors the government’s interest in speech cases involving police
departments. This is particularly true where the statements were made to
those within the chain of command. Because of this, the court cannot
conclude that the plaintiffs’ First Amendment right is clearly established to the
extent that a reasonable chief of police would understand the right.
In Ober v. Evanko, a nonprecedential opinion, the Third Circuit found
that a police officers decision to violate an established department regulation
and speak out against another employee outside the chain of command was
not protected because the government’s interest outweighed that of the
officer. 80 F. App’x at 200–201. In Ober, the Third Circuit cited to a string of
cases outside this circuit to suggest that the government has a greater
interest and ability to regulate speech in the law enforcement context. Id. at
201. In fact, the Third Circuit noted that “[c]ourts have given law enforcement
agencies wide latitude to regulate an employee’s speech when that speech
impacts areas such as discipline, morale, harmony, uniformity, and trust in the
ranks.” Id. The court ultimately found that the plaintiff officer had failed to
30
provide a “persuasive reason for circumventing the chain of command
[established by the department’s internal regulation].” Id. Other courts have
reached similar conclusions. See Persico v. City of Jersey City, 67 F. App’x
669, 674 (3d Cir. 2003) (finding a police department’s interest in maintaining
rules and regulations outweighed the plaintiff officer’s interest in free speech);
Citta v. Borough of Seaside Park, Civ Action No. 09-865(FLW), 2010 WL
3862561, at *13–14 (D. N.J. Sept. 27, 2010) (same); Hoffman v. Dougher,
Civ. Action No. 1:05-CV-0906, 2008 WL 148877, at *9–10 (M.D. Pa. Jan. 14,
2008) (recognizing the defendant police department’s strong interest in
regulating officer speech and declining to “resolve the delicate issue” of
balancing that interest against the plaintiff’s interest).
The finding in Ober does not end the issue. In Ober, the court did state
that it would be “possible” to justify bypassing the chain of command “if the
officer’s superiors were reasonably suspected of wrongdoing.” 80 F. App’x at
201. Also, in Czurlanis v. Albanis, the Third Circuit found that a chain of
command policy that would require a public employee to report to the very
person who the employee intended to speak out against could not be used to
justify a retaliatory action. 721 F.2d 98, 105 (3d Cir. 1983). The court found
that such a policy would impermissible chill protected speech. Id. The public
employee speaking, however, was not a police officer. In addition, some
court’s have distinguished Ober where the plaintiff chose to speak in a public
31
forum, such as the news media. See, e.g., Barry v. Luzerne County, 447 F.
Supp.2d 438, 447 (M.D. Pa. 2006).
The court is not prepared to engage in the fact and context specific
Pickering analysis required to find an actual constitutional violation. However,
it appears from the cases cited above that the Pickering analysis especially
favors the defendant in the law enforcement context. See Ober, 80 F. App’x
at 200–201. This is especially true where there is an actual rule or regulation
in place regulating the officer’s decision to speak.6 See id. It may be less true
where the officer intends to speak out against the person he or she is
expected to report to. See Czurlanis, 721 F.2d at 105. The Third Circuit’s
statement in Ober suggesting that the balancing test might “possib[ly]” favor
the employee if a superior is suspected of wrongdoing does not give the court
real clarity. 80 F. App’x at 201. At the very least, the outcome of the balancing
text is unclear where it involves subordinate officers and their supervisors.
In light of the unique Pickering balancing in the law enforcement
context, it is not clear that a reasonable chief of police would understand that
suspending a subordinate officer when that officer goes above the chief’s
6
The defendants have not alleged any actual rule or regulation that
made the plaintiffs’ speech impermissible and further discovery would
ultimately reveal if this is the case. The court simply notes that this is one
factor that would have to play out in the eventual balancing, making the
ultimate outcome under Pickering unclear, with or without an actual rule.
32
head and speaks to the mayor and councilmembers violates the First
Amendment. The plaintiffs chose to speak to the mayor, within their chain of
command, and the Borough’s councilmembers, outside the chain of
command. They did not go to the media or a news outlet or provide testimony
in an ongoing investigation. Doing so might have placed the Pickering balance
in a clearer state. See Barry, 447 F. Supp.2d at 447; Lane, 134 S. Ct. at 2380.
The allegations against Police Chief Glavich also do not present an instance
where the allegations are so egregious that “a stronger showing [of
government interests] may be necessary.” Lane, 134 S. Ct. at 2381 (quoting
Connick, 461 U.S. at 152) (alteration in original). Thus, even though going
over Police Chief Glavich’s head may have been justified, this is unclear
based on the strength of the department’s underlying interest.
Reviewing the cases above, the constitutional question is not “beyond
debate,” Ashcroft, 563 U.S. at 741, and there is no “obvious clarity” in the law,
Sharp, 669 F.3d at 159. Having recognized the complexity and lack of clarity
of the Pickering analysis in the law enforcement context now, allowing the
claim against Police Chief Glavich to proceed to discovery would obliterate
the protection that qualified immunity was intended to provide. The plaintiffs’
First Amendment rights in this case are not clearly established as required by
the second Saucier prong and Police Chief Glavich is entitled to qualified
immunity. Accordingly, the First Amendment claim against Police Chief
Glavich in his individual capacity is dismissed with prejudice.
33
B. The Plaintiffs’ Whistleblower Claim—Count I
In Count I of the complaint, the plaintiffs allege that they were retaliated
against by the defendants for making good faith reports of wrongdoing or
waste by Police Chief Glavich, a violation of Pennsylvania’s Whistleblower
Law, 43 PA. STAT. ANN. §1421 et seq. The defendants argue that the
complaints made by the plaintiffs about Police Chief Glavich do not amount
to waste or wrongdoing as defined by Pennsylvania law and are, therefore,
not protected by the Pennsylvania statute. They also argue that, like the First
Amendment claim, there is an insufficient inference of causation between the
plaintiffs’ statements and the defendants’ actions. The court finds the plaintiffs
have asserted a plausible claim for reporting waste under Pennsylvania’s
Whisteblower Law, but agrees with the defendants that the plaintiffs have
failed to establish a claim for reporting wrongdoing.
Pennsylvania’s Whistleblower Law makes it unlawful for public bodies
or those receiving money from public bodies to retaliate against employees
for reporting wrongdoing or waste, providing as follows:
No employee may discharge, threaten or otherwise discrimination
or retaliate against an employee regarding the employee’s
compensation, terms, conditions, location or privileges of
employment because the employee or a person acting on behalf
of the employee makes a good faith report or is about to report,
verbally or in writing, to the employer or appropriate authority an
instance of wrongdoing or waste by a public body or an instance
of waste by any other employer as defined in this act.
34
43 PA. STAT. ANN. §1423(a); see also §1422 (defining an “employer”). To
assert a prima facie case under the law an employee must show that he or
she “reported or was about to report in good faith, verbally or in writing, an
instance of wrongdoing or waste to the employer or an appropriate authority,”
before the alleged retaliation occurred. 43 PA. STAT. ANN. §1424(b); see also
O’Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001). The employee
must also show causation or some connection between the employee’s report
and the alleged retaliatory act(s). O’Rourke, 778 A.2d at 1200; Golaschevsky
v. Dep’t of Envtl. Protection, 720 A.2d 757, 759 (Pa. 1998).
I.
The Plaintiffs’ Claim of Waste
The plaintiffs’ have made a sufficient claim for reporting waste. “Waste”
is defined as “[a]n employer’s conduct or omissions which result in substantial
abuse, misuse, destruction or loss of funds or resources belonging to or
derived from Commonwealth or political subdivision sources.” 43 PA. STAT.
ANN. §1422. Explicitly, whatever actions are reported by the employee, those
actions must result in “abuse, misuse, destruction or loss of funds or
resources.” Id. The result or effect of the conduct must be “substantial.” Id.
Thus, under a plain reading of the statute, an employer may be held
accountable not only for the substantial destruction and/or loss of funds or
resources, but also for substantial abuse and/or misuse of those funds and
35
resources.7 This language is sufficiently broad to encompass a wide variety
of alleged misconduct.
In Bennett v. Republic Services, Inc., the Eastern District of
Pennsylvania found that a single instance of a supervisor improperly clocking
in and receiving wages while not actually working did not constitute waste
under the statute. 179 F. Supp.3d 451, 455–56 (E.D. Pa. 2016). Although the
plaintiff had alleged that those instances may have occurred more than once,
the court dismissed these allegations as purely speculative. Id. In contrast,
the Pennsylvania Supreme Court found that a report of the public defendant
entering into fixed-price contracts could constitute waste, indicating the
various ways such a contract could lead to the loss of money. Bailets v. Pa.
Turnpike Comm’n, 123 A.3d 300, 308 (Pa. 2015). The Pennsylvania Supreme
Court appeared to engage in a broad reading of the statute to reach this
conclusion. See id.
Construing the complaint in the plaintiffs’ favor, the court finds that the
series of allegations against Police Chief Glavich cumulatively amount to a
plausible claim for reporting waste. The plaintiffs allege that Police Chief
Glavich frequently sat in the office (1) “in plain clothing”; (2) “with his personal
vehicle outside and/or without [a] police vehicle available”; (3) “avoid[ing]
7
1 PA. CONS. STAT. ANN. §1903(a) (“Words or phrases shall be
construed according to rules of grammar and according to their common and
approved usage,” unless technical in nature.)
36
telephone calls”; and (4) “at times, would avoid citizen complaints attempted
in person,” during times he was billing the Borough for his services as police
chief. (Doc. 1, at ¶¶16–17). As explained previously, these factual statements
amount to an allegation that Police Chief Glavich was billing the Borough
despite not performing his work duties.
The plaintiffs’ allegations here are not comparable to those made in
Bailets, but they are more substantial than the allegations made in Bennett.
Compensating Police Chief Glavich for unperformed services over a period
of approximately four and a half years8 does amount to a plausible claim of
waste under an abuse or misuse of funds theory. If it is proven true that Police
Chief Glavich was not actually working—particularly by avoiding calls and
avoiding citizen complaints—while billing the Borough for his services, his
billing would certainly be improper and could constitute substantial abuse or
misuse of funds under a broad reading of the Pennsylvania statute. As such,
the plaintiffs’ have stated a plausible claim of reporting waste and the
defendants motion is denied as it relates to this claim.
8
The complaint alleges that Police Chief Glavich accepted his role as
chief of police in October of 2010 and the plaintiffs first complaint regarding
his behavior was in March of 2015. (Doc. 1, at ¶¶13, 21).
37
ii.
The Plaintiffs’ Claim of Wrongdoing
Although the plaintiffs have asserted a plausible claim using a waste
theory, they have not asserted a plausible claim of reporting wrongdoing. The
Whistleblower Law defines “wrongdoing” as “[a] violation which is not of a
merely technical or minimal nature of a Federal or State statute or regulation,
of a political subdivision ordinance or regulation or of a code of conduct or
ethics designed to protect the interest of the public or the employer.” 43 PA.
STAT. ANN. §1422. “Wrongdoing includes not only violations of statutes or
regulations that are of the type that the employer is charged to enforce, but
violations of any federal or state statute or regulation, other than violations
that are of a merely technical or minimal in nature”. Golaschevsky, 720 A.2d
at 759. The plaintiffs’ complaint does not allege that Police Chief Glavich or
the Borough violated any of the following: a federal or state statute; a federal
or state regulation; a subdivision ordinance; a code of conduct; or a code of
ethics. Assessing the plain language of the statute, this failure is fatal to the
plaintiffs’ claim under a wrongdoing theory. Although one court has found that
a failure to state what law or code was violated was not fatal to a claim at the
initial pleading stage, the court disagrees. See Bielewicz v. Penn-Trafford
Sch. Dist., Civ. Action No. 10-1176, 2011 WL 1486017, at *5 (W.D. Pa. Feb.
9, 2011). Not advising the court what law or code Police Chief Glavich
allegedly violated would require this court to speculate on the plaintiffs’ claim.
The right to relief must be beyond the speculative level.
38
Nonetheless, the court cannot definitively determine that the plaintiffs’
claim is futile under a wrongdoing theory. See Alston, 363 F.3d at 236.
Though speculative, it is possible that Police Chief Glavich’s improper billing
to the Borough and his avoidance of telephone calls and citizen complaints
while on duty violated some statute, regulation, ordinance, or code of conduct
or ethics. The plaintiffs should identify such law if choosing to amend their
claim. Accordingly, the court will grant leave to the plaintiffs to amend their
whistleblowing claim using a wrongdoing theory if they so choose.
iii.
Causation Under the Whistleblower Law
Briefly addressing the defendants’ causation argument, the court finds
that it is lacking. The plaintiffs’ whistleblower claim requires that they show
some connection between their report of waste and the retaliatory acts taken
against them. O’Rourke, 778 A.2d at 1200; Golaschevsky v. Dep’t of Envtl.
Protection, 720 A.2d 757, 759 (Pa. 1998). This requires pleading facts or
surrounding circumstances that support an inference that the employee’s
report ultimately led to the retaliation—i.e. causation. See Golaschevsky, 720
A.2d 757, 759 (Pa. 1998). The same reasoning that supports an inference of
causation in the First Amendment retaliation context applies with equal force
in the whistleblower context. See Boyer v. City of Phila., Civ. Action No. 136495, 2015 WL 9260007, at *7 (E.D. Pa. Dec. 17, 2015) (“Causation under
the Whistleblower Law is proved in the same way as under Title VII and
39
§1983.”). The court has already addressed the defendants’ causation
argument as it relates to the plaintiffs’ First Amendment claim, a Section 1983
claim.9 The court makes the same finding as it relates to the plaintiffs’
whistleblower claim and finds the complaint sufficient to assert an inference
of causation.
Accordingly, the defendants’ motion is denied to the extent is seeks
dismissal of the plaintiffs’ whistleblower claim under a waste theory and
granted to the extent it seeks dismissal of the plaintiffs’ whistleblower claim
under a wrongdoing theory. The plaintiffs’ claim asserting a violation of
Pennsylvania’s Whistleblower Law under a wrongdoing theory is dismissed
without prejudice. The plaintiffs are granted leave to amend this claim if they
so choose.
C. The Plaintiffs’ Defamation Claim—Count III
In Count III of the complaint, the plaintiffs allege that Police Chief
Glavich defamed them by telling the Borough’s councilmembers that they
violated the chain of command. In addition, Sergeant Rynearson alleges that
Police Chief Glavich defamed him, specifically, by telling the chief of police of
the nearby Forest City police department that he violated the chain of
command. Police Chief Glavich argues that the alleged statements are
9
See supra, part IV.A.ii. (discussing the facts alleged by the plaintiffs
that support an inference of causation).
40
incapable of defamatory meaning, that the statements were true, and that any
statement made to the Forest City police chief was conditionally privileged. In
the alternative, Police Chief Glavich argues that his statements are shielded
by the Political Subdivision Tort Claims Act (“PSTCA”), 42 PA. CONS. STAT.
ANN. §8541 et seq. Again viewing the complaint in the plaintiffs’ favor, the
court finds that the plaintiffs have sufficiently pled a defamation claim against
Police Chief Glavich.
Police Chief Glavich allegedly told the Borough’s councilmembers “and
others” that the plaintiffs were violating the chain of command. (Doc. 1, at
¶107). The plaintiffs do not allege when these statements occurred, but the
plaintiffs do state that during the October 20, 2015 meeting with the Borough’s
councilmembers and solicitor there was a “hostile confrontation” where they
were accused of “[c]hain-of-[c]ommand violations.” (Id. ¶¶49–50). Thus, the
statement must have been made to them before this time. This meeting was
held after the plaintiffs’ suspension and was scheduled to discuss their
continued employment as officers with the Borough. Assuming Police Chief
Glavich was the one who told the councilmembers that the plaintiffs “violated
the chain of command,” as the plaintiffs suggest, it is plausible that the
statement was defamatory in this context. The same can be said about Police
Chief Glavich’s statement to the Forest City chief of police that Sergeant
Rynearson violated the chain of command.
41
Under Pennsylvania law, a plaintiff must establish seven elements in a
defamation
claim,
including
“[t]he
defamatory
character
of
the
communication.” 42 PA. CONS. STAT. ANN. §8343(a). The defamatory
character of a statement is an initial question for the court. Burton v. Teleflex
Inc., 707 F.3d 417, 434 (3d Cir. 2013); Tucker v. Philadelphia Daily News,
848 A.2d 113, 123–124 (Pa. 2004); MacElree v. Philadelphia Newspapers,
Inc., 674 A.2d 1050, 1053 (Pa. 1996). A statement is defamatory if it “tends
so to harm the reputation of another as to lower him in the estimation of the
community or to deter third parties from associating or dealing with him.”
Tucker, 848 A.2d at 124 (quoting Restatement (First) of Torts §559 (1938)).
The statement must be examined in context and a court “should evaluate the
effect [the statement] is likely to produce in the minds of the average persons
among whom it is intended to circulate.” Burton v. Teleflex Inc., 707 F.3d 417,
434 (3d Cir. 2013) (internal quotation marks omitted); see also Wendler v.
DePaul, 499 A.2d 1101, 1103 (Pa. Super. Ct. 1985). Thus, “[a] critical factor
in determining whether a communication is capable of defamatory meaning
. . . is the nature of the audience hearing the remarks.” Baker v. Lafayette
Coll., 532 A.2d 399, 402 (Pa. 1987).
Here, Police Chief Glavich’s statements that the plaintiffs “violated the
chain of command” are capable of defamatory meaning when viewed in their
factual context. A violation is defined as “[t]he act of breaking or dishonoring
the law; the contravention of a right or duty.” BLACK’S LAW DICTIONARY 712
42
(10th ed. 2014). As a police officer—one who is charged with enforcing the
law—a violation of any command can have special import reflecting on the
officer’s fitness to enforce rules and regulations for the community. The
statement did not merely criticize the plaintiffs in their work performance.
Instead, it was a statement of fact suggesting that the plaintiffs dishonored or
broke the rules in bypassing the chief of police and going to the mayor
directly.
In this case, the intended audience for the statement included the
Borough’s councilmembers who were in the process of determining whether
the plaintiffs were fit to continue employment with the police department. The
statement likely cast a poor light on the plaintiffs’ ability to continue
employment as officers charged with enforcing the law. Thus, the statement
likely held great weight when it was mentioned during the October 20, 2015
meeting scheduled to discuss the plaintiffs’ suspension. In this context, the
statement was capable of defamatory meaning.
The statement made to the Forest City chief of police was also capable
of being defamatory for similar reasons as those above. The statement about
Sergeant Rynearson was made during a time when the plaintiffs were seeking
employment in other, nearby police departments. In that context, the
statement likely cast a poor light on Sergeant Rynearson’s ability to follow
rules and was, therefore, capable of defamatory meaning.
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Next, Police Chief Glavich asserts the defense of truth and asserts that
a conditional privilege exists as it relates to the statements made to the Forest
City chief of police. If a plaintiff is able to establish the required elements of
a particular defamation claim, the statute provides three defenses. See 42 PA.
CONS. STAT. ANN. §8343(b). These defenses include: proving the truth of the
statement; asserting a privilege; and showing the statement relates to a
matter of public concern. Id. None of these clearly apply at this stage.
A conditional privilege applies to statements “whenever a prior employer
evaluates a former employee at the request of a prospective employer.”
Zuschek v. Whitmoyer Labs., Inc., 430 F. Supp. 1163, 1165 (E.D. Pa. 1977).
Police Chief Glavich’s argument that any statements made to the police chief
of Forest City are protected by a conditional privilege misreads the allegations
in the plaintiffs’ complaint. Sergeant Rynearson has explicitly alleged in the
complaint that the statement made to the police chief of Forest City was “not
requested but [was] made voluntarily in an effort to harm [him].” (Doc. 1, at
¶111). The court must accept this allegation as true at this stage of the
proceedings. Thus, there was no “request” from a prospective employer—the
Forest City police department in this case. Zuschek, 430 F. Supp. at 1165. As
such, the court cannot dismiss the defamation claim brought by Sergeant
Rynearson on the grounds of a conditional privilege at this time.
The court also cannot safely determine that the statements made by
Police Chief Glavich were true. As explained previously, to state that the
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plaintiffs “violated” the chain of command implies that they broke or
dishonored the rules set forth by the chain of command. Looking at the
complaint, and the defendants’ own argument, there was no rule, duty, or
procedure that required the plaintiffs to speak with Police Chief Glavich before
approaching the mayor. Instead, the defendants cite to Sections 1123, 1123.1
of Pennsylvania’s Borough Code. Those provisions provide that the mayor
has full control over the police force and that he may delegate powers to the
chief of police or other supervisory officers. 8 PA. CONS. STAT. ANN.
§§1123–1123.1. Those provisions do not state how subordinate officers
should express grievances or concerns. Thus, it is a mischaracterization to
state that the plaintiffs violated the chain of command when looking at those
provisions alone. Those provisions do not establish a “violation” of any rule.
Further discovery will reveal if such a rule actually existed, but the statute
alone is insufficient to make that finding. Thus, at this stage, whether the
plaintiffs “violated” the chain of command is arguable.
Addressing Police Chief Glavich’s final argument, the court finds that his
conduct is not immunized by the PSTCA. Section 8541 of the PSTCA
provides that “no local agency shall be liable for any damages on account of
any injury to a person or property caused by any act of the local agency or an
employee thereof or any other person.” The PSTCA clearly applies to “local
agenc[ies]” or municipal defendants. Id.; see also Roskos v. Sugarloaf Twp.,
295 F. Supp. 480 (M.D. Pa. 2003) (dismissing a defamation claim against
45
municipal defendants under the PSTCA, but not the individual defendant). As
interpreted by the court, the plaintiffs have sued Police Chief Glavich in his
individual capacity. The plaintiffs did not bring a defamation claim against the
Borough. Thus, this claim was not brought against any “local agency.” Id.
Accordingly, the PSTCA does not apply. As such, the plaintiffs have asserted
a sufficient defamation claim to proceed with litigation and the motion is
denied to the extend is seeks dismissal of Count III of the complaint.
V.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss the
plaintiffs’ complaint under Rule 12(b)(6) is GRANTED IN PART and DENIED
IN PART. The defendants’ request to dismiss the plaintiffs’ First Amendment
retaliation claim (Count II) is granted and denied in part. The motion is
DENIED to the extent it seeks dismissal of the claim against the Borough
based on Police Chief Glavich’s “on duty” conduct. The motion is GRANTED
to the extent it seeks dismissal of a claim against the Borough based on
Police Chief Glavich’s purchase of equipment for the department. The
plaintiffs’ reporting of this conduct does not plausibly state a First Amendment
claim and any claim founded on such conduct is DISMISSED WITH
PREJUDICE. The motion is GRANTED to the extent it seeks dismissal of the
First Amendment retaliation claim against Police Chief Glavich in his
46
individual capacity. Police Chief Glavich is entitled to qualified immunity and
the First Amendment claim against him is DISMISSED WITH PREJUDICE.
The defendants’ request to dismiss the plaintiffs’ Pennsylvania
Whistleblower claim (Count I) is also granted and denied in part. The motion
is DENIED to the extent is seeks dismissal of the plaintiffs’ whistleblower
claim under a waste theory and GRANTED to the extent it seeks dismissal of
the plaintiffs’ whistleblower claim under a wrongdoing theory. The plaintiffs’
claim asserting a violation of Pennsylvania’s Whistleblower Law under a
wrongdoing theory is DISMISSED WITHOUT PREJUDICE and the plaintiffs
are granted leave to amend this claim, if they so choose.
Finally, the Police Chief Glavich’s request to dismiss the plaintiffs’
defamation claim (Count I) is DENIED. In making the above determinations
the court has declined to consider the letter attached to the defendants’
motion as an exhibit. A separate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: December 22, 2016
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0245-01.wpd
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