Southerton v. Borough of Honesdale et al

Filing 80

MEMORANDUM (Order to follow as separate docket entry)(PLEASE SEE ORDER FOR COMPLETE DETAILS).Signed by Honorable A. Richard Caputo on 11/6/18. (lh)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RICHARD SOUTHERTON,
NO. 3:17-CV-00165

Plaintiff,
v.

(JUDGE CAPUTO)

BOROUGH OF HONESDALE, et al.,
Defendants.
MEMORANDUM
Presently before me is a Motion for Summary Judgment (Doc. 67) filed by
Defendants Borough of Honesdale, Mayor Melody Robinson, and Borough Council
members Jeremy Ebert, Michael Augello, Chris Murray, and Michael Dux. Plaintiff Richard
Southerton, Honesdale’s Chief of Police, alleges that Defendants retaliated against him, in
violation of the First Amendment, for his testimony at a grievance arbitration, statements to
the press, and filing of this suit.1 He also alleges he was not paid overtime, in violation of
the Fair Labor Standards Act (“FLSA”). For the reasons that follow, although Southerton’s
First Amendment retaliation claim fails as a matter of law, he has produced sufficient
evidence for his Petition Clause and FLSA claims to survive summary judgment. The Motion
will therefore be granted in part and denied in part.
I. Background
On December 9, 2013, the Honesdale Borough Council created a job description for
the position of Chief of Police. (Doc. 69 at ¶ 12 (Defendants’ Statement of Undisputed
Material Facts); Doc. 74 at ¶ 12 (Southerton’s Answer to Defendants’ Statement)). The job
description listed a number of duties for the position, including “acting as chief

1

I refer to Southerton’s claim for retaliation for the filing of this suit (Count IV)
as a Petition Clause claim, as the parties do, even though it could
conceivably proceed on a Free Speech Clause basis. For the reasons stated
in Section III.B of this Memorandum, nomenclature is immaterial to whether
Count IV survives summary judgment.

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administrative officer of the Honesdale Borough Police Department,” “staffing all activities
of

the

Department,”

recommending

and

administering

discipline,

“[h]andl[ing]

complaints/grievances,” and “respond[ing] to requests for information from media.” (Doc.
52-3 at 2-4). On May 12, 2014, Southerton was appointed Chief of Police. (Docs. 69 and
74 at ¶ 3).
Southerton argues that three distinct events led Defendants to retaliate against him:
his testimony during a subordinate’s grievance arbitration, his statements to the press about
a policy he disagreed with, and his filing of this suit.
The Colombo grievance arbitration. On August 31, 2016, Southerton participated in
a grievance arbitration, in his capacity as Chief of Police, concerning the termination of his
subordinate, Police Sergeant Keith Colombo. (Id. ¶¶ 34, 36). The arbitration was not
transcribed, (id. ¶ 42), and there are factual disputes as to whether the arbitration was open
to the public, whether it occurred during working hours, and whether Southerton testified
under oath (id. ¶¶ 39, 45), but the arbitrator did issue a written decision (Doc. 70-6). The
arbitrator summarized the factual background as follows:
Sgt. Colombo has been employed by the Boro since September
2010. . . . On December 7, 2015, [Southerton] summoned Sgt.
Colombo to his office. He presented him with a four page
document he had prepared[, which] contained a number of
allegations of official misconduct by Sgt. Colombo. [These
allegations included Colombo’s (1) failure to promptly respond
to a 911 call, (2) unauthorized appearance on behalf of part-time
police officers at a Civil Service Commission meeting, and (3)
mistreatment of an arrestee in his custody.] Based primarily
upon these actions, the Chief suspended Sgt. Colombo for 10
days without pay and placed him on probation for “not less than
12 months.” He also revoked “permission to work outside the
department.” And, he warned, that “[f]ailure to improve in your
overall performance, attitude and positive responses to this
disciplinary event . . . will result in your demotion and or
termination.” . . . Sgt. Colombo returned to work on December
24, 2015[, but was sent home upon his arrival. The Borough
Council had already voted to terminate his employment on
December 22, 2015.]
(Doc. 70-6 at 3-5). The arbitrator concluded a few weeks later that even if
Southerton’s written charges and testimony at the arbitration were true, the Borough Council
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did not have “just cause” to discharge Colombo, as required by Article XXX of the collective
bargaining agreement between the Borough and the police union. (Id. at 6-8). The Council
“had no right to discipline [Colombo] a second time for the same offenses” Southerton
disciplined him for, so the arbitrator ordered Colombo’s reinstatement. (Id. at 8).
Following the grievance arbitration, Defendants refused Southerton access to police
department personnel files, refused to address his concerns regarding officer scheduling,
requested that he resign, and stripped Southerton of his scheduling and disciplinary
responsibilities, effectively demoting him to a mere police officer. (Doc. 52 at ¶¶ 26-33; Doc.
74-9 at 23-34). Mayor Robinson even assigned scheduling responsibility Southerton’s
subordinates, telling Southerton to direct any questions or concerns to either his
subordinates or the mayor herself. (Doc. 74-7). Councilman Jennings testified at his
deposition that he believed Defendants’ actions—specifically, revoking Southerton’s
scheduling, disciplinary, and personnel file maintenance authority—were taken in retaliation
for Southerton’s testimony at the Colombo arbitration. (Doc. 74-10 at 4). Southerton agrees;
in his own words, “I think they retaliated against me because of my testimony. . . . I told
them [Colombo] did this, he did that. I don’t think they wanted that to get out. I think they
wanted to bring Colombo back and that’s the best I can explain it.” (Docs. 69 and 74 at ¶
50).
The River Reporter article. On November 16, 2016, The River Reporter published
an articled titled “Honesdale mayor steps up.” (Id. ¶ 54). Southerton “was interviewed for
and quoted in” the article, and “was on duty” and speaking “in his capacity as Chief of
Police” when being interviewed. (Id. ¶¶ 55-57).
The article discusses, among other things, a “Memorandum of Understanding (MOU)
pursuant to the Safe Schools Act” between local schools and law enforcement agencies.
(Doc. 70-9 at 2). The MOU stated “that the law enforcement agencies named [including the
Honesdale Borough Police Department] will respond to requests from assistance” from local
public schools. (Id.). According to the article, Mayor Robinson noted at a November 14,
2016 Council meeting that Southerton objected to signing the MOU. (Id.). Southerton
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explained to the reporter by phone on November 15 that he refused to sign over “concern[s]
about the school’s discretion in referring incidents to the borough police.” (Id.). Southerton
was quoted as saying: “My department has been accused of failing to handle appropriately
incidents of which it was not even aware[.] . . . How can we respond to something we don’t
even know about?” (Id.). From Southerton’s perspective, his “refusal to sign the MOU [wa]s
a form of passive protest” that did not prevent the police from assisting local schools, or
prevent the Mayor herself from signing the MOU on the police department’s behalf. (Id.).
Retaliation ensued, according to Southerton, in the form of the Council entertaining
a complaint filed against him on December 14, 2016 by his subordinate, Police Lieutenant
Robert Langman. (Doc. 52 at ¶¶ 35, 37). Langman’s complaint accused Southerton of
wrongdoing, and specifically mentioned Southerton’s testimony at Colombo’s grievance
arbitration. (Id.). The Council considered Langman’s complaint despite the fact that
Langman failed to follow department procedure. (Id. ¶ 37). Nor did Southerton receive a
requested public hearing regarding the complaint. (Doc. 74-9 at 176:18-25). Ultimately,
however, the Council “decided not to go forward with any charges,” (id. at 178:15-17), and
Borough Solicitor Rich Henry informed Southerton “that all the complaints were unfounded,”
(id. at 181:4-5). No discipline against Southerton followed. (Id. at 177:8-10). And nothing
else happened “[e]xcept for Keith Colombo carrying on with everybody saying that [it’s] not
over because the borough council has never come back and voted on whether it’s
unfounded or not, and he continually . . . brings that up at the . . . police department.” (Id.
at 181:13-20).
Filing suit. Finally, on January 30, 2017, Southerton filed the instant suit. (Doc. 52
at ¶ 50; Doc. 1). The original complaint contained the same allegations that have already
been discussed: that Defendants retaliated against Southerton for testifying at Colombo’s
grievance arbitration and speaking to the press about his refusal to sign the MOU. (See
Doc. 1). After filing suit, Southerton alleges that he suffered retaliation in the form of “wage,
hours and benefits issues” with Defendants, who “have deliberately not provided
[Southerton] with pay and benefits as a result of filing this lawsuit” even though “every other
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police officer has had his pay corrected.” (Doc. 52 at ¶¶ 54, 55). Southerton testified at his
deposition that Borough Secretary Judy Poltanis even told him that “they’re not going to do
anything [with respect to these issues] because of the federal lawsuit.” (Doc. 74-9 at 184:910).
Southerton also claims that from “late 2013 through 2017, [he] worked over 40 hours
in a work week” but the Borough “failed to pay him time and a half” as required by the FLSA
and the collective bargaining agreement in place between the Borough and the police union.
(Doc. 52 at ¶¶ 45-46).
After a few amendments to his complaint, Southerton has settled on four claims: First
Amendment retaliation (Count I); Negligent training, i.e., Monell liability for Count I (Count
II); failure to pay overtime in violation of the FLSA (Count III); and retaliation in violation of
the Petition Clause of the First Amendment (Count IV). (See Doc. 52). Defendants filed the
instant Motion for Summary Judgment (Doc. 67) on July 17, 2018. Defendants challenge
Southerton’s First Amendment retaliation and Petition Clause claims largely on the grounds
that Southerton engaged in employee speech, not citizen speech, and that his speech and
lawsuit are not matters of public concern. The Monell claim must also fail, Defendants say,
because there is no underlying constitutional violation. Additionally, they take issue with
Southerton’s prayer for punitive damages for his constitutional claims. As for Southerton’s
FLSA claim, Defendants argue that Southerton is an exempt administrative employee, and
thus the FLSA’s overtime provisions do not apply.
The Motion has been fully briefed and is ripe for review.
II. Legal Standard
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “A court may grant a motion for summary judgment if, after it
considers all probative materials of record, with inferences drawn in favor of the non-moving
party, the court is satisfied that there are no genuine issues of material fact and the movant
is entitled to judgment as a matter of law.” Chavarriaga v. N.J. Dep’t of Corrs., 806 F.3d
5

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210, 218 (3d Cir. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986)); Brooks
v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000)). “A fact is ‘material’ under Rule 56 if its
existence or nonexistence might impact the outcome of the suit under the applicable
substantive law. A dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return
a verdict for the nonmoving party.’” Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “In determining
whether the dispute is genuine, the court’s function is not to weigh the evidence or to
determine the truth of the matter . . . .” American Eagle Outfitters v. Lyle & Scott Ltd., 584
F.3d 587, 581 (3d Cir. 2009) (citing Anderson, 477 U.S. at 248-49).
The moving party bears the initial burden to identify “specific portions of the record
that establish the absence of a genuine issue of material fact.” Santini, 795 F.3d at 416
(citing Celotex, 477 U.S. at 323). If this burden is satisfied by the movant, the burden then
“shifts to the nonmoving party to go beyond the pleadings and ‘come forward with specific
facts showing that there is a genuine issue for trial.’” Id. (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The non-movant’s burden is not satisfied
by “simply show[ing] that there is some metaphysical doubt as to the material facts.”
Chavarriaga, 806 F.3d at 218.
III. Discussion
A.

Counts I and II—First Amendment Retaliation and Monell liability
Southerton argues that his testimony at Colombo’s grievance arbitration and his

statements to The River Reporter merit First Amendment protection. (Doc. 73 at 9-20).
Defendants instead contend that on both occasions, Southerton was speaking as an
employee, not as a citizen, and that his speech did not touch on matters of public concern,
thus taking Southerton’s speech out of the First Amendment’s grasp. (Doc. 68 at 15-35).
And if Southerton’s speech was not protected, Defendants continue, there can be no Monell
claim any of the defendants. (Id. at 30).
First Amendment retaliation claims are evaluated under a three-step process. Green
v. Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997). “First, [the] plaintiff must establish
6

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the activity in question was protected.” Baldassare v. State of N.J., 250 F.3d 188, 194 (3d
Cir. 2001). A public employee’s speech is protected if it is made as a citizen (and not as an
employee) and involves a matter of public concern. Dougherty v. Sch. Dist. of Phila., 772
F.3d 979, 987 (3d Cir. 2014). If that threshold is met, the “plaintiff must demonstrate his
interest in the speech outweighs the state’s countervailing interest as an employer in
promoting the efficiency of the public services it provides through its employees.”
Baldassare, 250 F.3d at 195 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
Finally, “[i]f these criteria are established, [the] plaintiff must then show the protected activity
was a substantial or motivating factor in the alleged retaliatory action.” Id.
As for the first prong, “[i]n order to qualify for First Amendment protection, a public
employee must be speaking in his capacity as a citizen, and not as a government
employee.” McAndrew v. Bucks Cty. Bd. of Comm’rs, 183 F. Supp. 3d 713, 732 (E.D. Pa.
2016) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). “[T]he ‘controlling factor’ is
whether the statements were ‘made pursuant to the speaking employee’s duties,’ that is,
whether such utterances were among the things that the employee ‘was employed to do.’”
Flora v. Cty. of Luzerne, 776 F.3d 169, 176-77 (3d Cir. 2015) (brackets omitted) (quoting
Garcetti, 547 U.S. at 421); see Lane v. Franks, 573 U.S. 228, 134 S. Ct. 2369, 2379 (2014).
Accordingly, a public employee’s speech may still be protected by the First Amendment
even if it “concerns information acquired by virtue of his public employment.” Lane, 134 S.
Ct. at 2379; see Dougherty v. Sch. Dist. Of Phila., 772 F.3d 979, 988-89 (3d Cir. 2014) (the
fact that an employee’s speech “owes its existence to” his employment or “concern[s] the
subject matter of [his] employment” is “nondispositive”). The key inquiry is whether the
speech at issue was “outside the scope of [the employee’s] ordinary job responsibilities.”
Lane, 134 S. Ct. at 2378. That inquiry is a “practical one,” Garcetti, 547 U.S. at 424, and
whether speech falls within the scope of one’s ordinary job duties is a mixed question of law
and fact. Dougherty, 772 F.3d at 988.
1.

The Colombo grievance arbitration

I address Southerton’s testimony at Colombo’s grievance arbitration first. Under
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Lane, the threshold question is whether Southerton’s arbitration testimony “[wa]s itself
ordinarily within the scope of [his] duties.” 134 S. Ct. at 2378.
But Southerton argues his testimony is deemed citizen speech, regardless of his
duties, by Reilly v. City of Atl. City, 532 F.3d 216 (3d Cir. 2008). (Doc. 73 at 10-12). Under
Reilly, “courtroom testimony is categorically ‘citizen speech’ as contemplated by the First
Amendment.” Carlson v. Beemer, 225 F. Supp. 3d 297, 305 (M.D. Pa. 2016). Testifying in
an arbitration, Southerton contends, is sufficiently like testifying in court to merit First
Amendment protection. Indeed, the Supreme Court’s holding in Lane v. Franks that
“[t]ruthful testimony under oath by a public employee outside the scope of his ordinary job
duties is speech as a citizen” is not limited, by its language, to the courtroom. 134 S. Ct.
2369, 2378 (2014). Lane makes clear, however, that Garcetti still applies—testimony is only
citizen speech if it is given “outside the scope of [one’s] ordinary job duties.” Id. That may
be why Lane interprets Reilly to speak “to whether public employees may be fired . . . for
providing truthful subpoenaed testimony outside the course of their ordinary job
responsibilities.” Id. at 2377 (emphasis added) (citing Reilly, 532 F.3d at 231). But as the
court in Carlson pointed out, Reilly takes a categorical approach. 225 F. Supp. 3d at 305;
see Reilly, 532 F.3d at 228, 231 (the “fact of Reilly’s sworn testimony” itself was sufficient
for the court to conclude that “[w]hen a government employee testifies truthfully [in court,]
. . . the employee is acting as a citizen”). Reilly thus ventures beyond Lane with respect to
courtroom testimony, always deeming it speech outside the scope of a public employee’s
ordinary job duties. See Lane v. Franks, 134 S. Ct. 2369, 2378 n.4 (2014) (noting it was
undisputed that testifying in court was outside Lane’s ordinary job duties and thus declining
to decide “whether truthful sworn testimony would constitute citizen speech under Garcetti
when given as part of a public employee’s ordinary job duties”); id. at 2384 (Thomas, J.,
concurring).
Given these precedents, if a public employee testifies in court, he speaks as a citizen
because under Reilly he has an “independent obligation as a citizen to testify truthfully,”
which categorically satisfies Garcetti’s duty inquiry, 532 F.3d at 231; but if a public employee
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testifies elsewhere, such as in a grievance arbitration, Lane applies and I must
independently consider if that testimony falls within the employee’s ordinary job duties. The
reason for drawing the line at the courthouse door is Reilly’s emphasis on the protection of
“the integrity of the judicial process,” the societal truth-seeking function of courtroom
proceedings like grand jury investigations and criminal trials, and the fact that courtroom
testimony “is bound by the dictates of the court and the rules of evidence.” 532 F.3d at 22829, 231 (emphasis added). Labor arbitrations conducted under American Arbitration
Association rules (“AAA rules,” which Southerton says applied (Doc. 73 at 11)), though, are
not

bound

by

rules

of

evidence.

See

AAA

Rule

27

(available

at

https://www.adr.org/sites/default/files/Labor_Arbitration_Rules_0.pdf). Arbitrators “may
require witnesses to testify under oath,” but are not obligated to do so. Id. Rule 23. They
“shall maintain the privacy of the hearing” and have the discretion “to determine the
propriety of the attendance of any other person other than a party and its representatives.”
Id. Rule 21. Labor arbitrations are thus hardly “quasi-judicial proceeding[s]” but rather
“informal[] and flexib[le]” contractual dispute resolution mechanisms, the specifics of which
are “best left to negotiation” between employers and employees. Virgin Islands Nursing
Assoc.’s Bargaining Unit v. Schneider, 668 F.2d 221, 224 (3d Cir. 1981). Arbitrating parties
define justice contractually, whereas grand juries and criminal trials (and even civil trials),
on the other hand, implicate a broader public interest, see, e.g., Branzburg v. Hayes, 408
U.S. 665, 736-37 (1972) (Stewart, J., dissenting) (society has an “interest in the use of the
grand jury to administer justice fairly and effectively”).
Reilly’s categorical approach is therefore rightly limited to the courtroom context,
even if in this case the arbitrator opened up the hearing to the public and required
Southerton to testify under oath. See McAndrew v. Bucks Cty. Bd. of Comm’rs, 183 F.
Supp. 3d 713, 733-34 (E.D. Pa. 2016) (applying Garcetti and Lane, rather than Reilly, to an
officer’s claim that he was retaliated against for testifying at a disciplinary hearing, without
analyzing the character of the hearing). The particular rules under which arbitrating parties
agree to process their dispute is ultimately immaterial; for instance, under Reilly, the First
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Amendment protects public employees’ grand jury testimony even though grand jury
investigations are not public and the rules of evidence do not apply. See, e.g., Fed. R. Crim.
P. 6; Fed. R. Evid. 1101(d)(2). But judicial proceedings, unlike grievance arbitrations,
involve public rather than private interests. The purpose of the forum is what Reilly drives
at, not its particular characteristics (although the fact that parties define the characteristics
of an arbitral forum sheds light on its purpose). The question, then, is not whether
Colombo’s grievance arbitration looked enough like a trial to trigger Reilly, but whether
Southerton’s testimony at the grievance arbitration—taking into consideration Southerton’s
speech, his job duties, and the purpose of the arbitration—was offered as an employee or
a citizen.
With regard to this question, the material facts are not in dispute. Southerton testified
at Colombo’s grievance arbitration about his disciplining Colombo for malfeasance. The
purpose of the arbitration, as Southerton understood it, was that “Sergeant Colombo was
grieving his termination from the borough[;]” Colombo “was trying to get his job back.” (Doc.
74-9 at 38:8-15). Southerton testified in his capacity as Chief of Police. (Docs. 69 and 74
at ¶¶ 34, 36). And at the time in question, it was within Southerton’s job duties to discipline
subordinates. (See Doc. 52-3 at 3; Doc. 52 ¶ 33 (alleging that Southerton was stripped of
his disciplinary duties in retaliation for his arbitration testimony)).
Given these facts, Southerton testified at Colombo’s arbitration not as a citizen, but
in his capacity as an employee: he understood that the arbitration’s purpose was to address
Colombo’s employment with the Borough, and testified in his capacity as a Borough
employee. Most critically, testifying at a grievance arbitration undoubtedly fell within the
scope of Southerton’s ordinary disciplinary duties. His ability to effectively discipline
subordinates depended on testifying because an arbitrator could have invalidated discipline
on the basis of the collective bargaining agreement—tellingly, the Borough’s formal job
description (which is by no means controlling) includes the handling of grievances among
the Chief of Police’s duties. (Doc. 52-3 at 3; see Doc. 74-9 at 74:1-4 (Southerton believed
the grievance arbitration was “winnable”)). Thus, this case is akin to McAndrew v. Bucks
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County Board of Commissioners, where the court held that a police officer who believed he
was testifying as an employee at his supervisor’s disciplinary hearing spoke as an
employee, not as a citizen. 183 F. Supp. 3d 713, 733-34 (E.D. Pa. 2016). Like in
McAndrew, Southerton admits that he testified in his capacity as an employee in discharge
of an ordinary job duty. Cf. Gorum v. Sessoms, 561 F.3d 179, 185-86 (3d Cir. 2009) (a
professor who advised a student at a disciplinary hearing spoke as an employee because,
among other reasons, “[i]t was through his position . . . that [he] was able to aid [the
student]” with his “special knowledge of, and experience with, the . . . disciplinary code”).
Under Garcetti and Lane, that means he spoke as a employee and the First Amendment
did not protect his speech.
Because I conclude that Southerton spoke as a employee at Colombo’s arbitration,
I need not address Defendants’ punitive damages or qualified immunity arguments.
However, I note in passing that “[n]o circuit has adopted the rule that sworn testimony in a
private arbitration is on a matter of public concern, regardless of content[,]” Rorrer v. City
of Stow, 743 F.3d 1025, 1048 (6th Cir. 2014), and Lane v. Franks did not answer the
question of “whether a public employee speaks ‘as a citizen’ when he testifies in the course
of his ordinary job responsibilities,” 134 S. Ct. 2369, 2384 (Thomas, J., concurring) (also
noting that police officers testify as “a routine and critical part of their employment duties”).
2.

The River Reporter article

Southerton’s statements to The River Reporter present an issue more easily
resolved. The same three-step framework for evaluating First Amendment retaliation claims
applies. Relevant here, as before, is the first step: Southerton was protected from retaliation
only if he spoke as a citizen on a matter of public concern. Garcetti v. Ceballos, 547 U.S.
410, 421 (2006).
The fatal flaw to Southerton’s claim: Southerton was under the impression that he
was speaking as an employee when he spoke with The River Reporter. He admits that he
spoke in his capacity as Chief of Police, while on duty; in his words: “according to my job
description, I’m allowed to talk to the press, and I’m correcting what I think is a
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misstatement, several misstatements.” (Doc. 74-9 at 229:10-15). When asked at his
deposition if he ever spoke to the press “as a citizen,” Southerton responded: “No, I think
I’ve talked to them—well, if I’ve talked to them, I’m talking to them as chief.” (Id. at 229:1621). Southerton was thus not publicly advancing a point of view as a citizen but rather
speaking to the press pursuant to his official duties as Chief of Police. That means his
speech was unprotected as a matter of law. See McAndrew v. Bucks Cty. Bd. of Comm’rs,
183 F. Supp. 3d 713, 733-34 (E.D. Pa. 2016) (officer who believed he was testifying on the
clock as an employee spoke as an employee).
To save his First Amendment retaliation claim, Southerton raises (for the first time)
what he says was another instance of protected speech: “he vocalized problems with
officers’ scheduling, thereby raising safety concerns to [the] Borough Council.” (Doc. 73 at
9 n.1 (citing Southerton’s deposition testimony)). The Council’s refusal to act on
Southerton’s concerns, however, is alleged to be retaliation for his arbitration testimony.
(Doc. 52 at ¶¶ 21-27). This is therefore a new claim, and it may not be raised for the first
time in a brief in opposition to summary judgment. Anderson v. DSM N.V., 589 F. Supp. 2d
528, 534 n.5 (D.N.J. 2008). Even if I were to consider it, however, Southerton’s reporting
of scheduling concerns would on this record constitute unprotected employee speech. (Doc.
52-3 at 2-3 (Chief of Police has duty to make recommendations to the Council)); Killion v.
Coffey, 696 F. App’x 76, 78-79 (3d Cir. 2017) (speech that “embodies ‘special knowledge’
acquired through the job” may be unprotected); Foraker v. Chaffinich, 501 F.3d 231, 241-43
(3d Cir. 2007) (officers required to report safety concerns up the chain of command spoke
as unprotected employees), abrogated on other grounds by Borough of Duryea v. Guarnieri,
564 U.S. 379 (2011).
Because neither Southerton’s testimony at the Colombo arbitration, his statements
to The River Reporter, nor his reporting safety concerns to the Borough Council was
protected, Southerton’s First Amendment retaliation claim thus fails as a matter of law.
Count I of the Third Amended Complaint will be dismissed.
3.

Monell liability
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Because Southerton’s First Amendment retaliation claim fails as a matter of law,
Defendants cannot be liable under Monell. Mills v. City of Harrisburg, 350 F. App’x 770, 773
n.2 (3d Cir. 2009) (“Absent an underlying constitutional violation by an agent of the
municipality, . . . the municipality itself may not be held liable under § 1983); (see Doc. 52
at ¶ 40 (Southerton’s Monell claim is based entirely on the First Amendment retaliation
alleged in Count I)).
Count II of the Third Amended Complaint will therefore be dismissed.
B.

Count IV—Petition Clause
Defendants next challenge Southerton’s Petition Clause claim. Southerton claims

that Defendants retaliated against him for filing this lawsuit by failing to pay him, provide
benefits, or correct his pay, even though every other officer had his pay corrected. (Doc. 52
at ¶¶ 54, 55). Defendants argue that Southerton’s suit is not protected under the Petition
Clause because it does not constitute speech on a matter of public concern. (Doc. 68 at 3235). Southerton, for his part, argues that this lawsuit is in fact a matter of public concern.
(Doc. 73 at 22-24).
A public employee’s lawsuit can be protected under the First Amendment’s Petition
Clause in addition to the Free Speech Clause. See Borough of Duryea v. Guarnieri, 564
U.S. 379, 387 (2011). Under either Clause, for the suit to be protected, it must involve a
matter of public concern. Id. at 398. “[W]hether an employee’s petition relates to a matter
of public concern will depend on ‘the content, form, and context of [the petition], as revealed
by the whole record.’” Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 & n.7 (1983)).
“The forum in which a petition is lodged [is also] relevant to the determination of whether
the petition relates to a matter of public concern.” Id. It is clear that merely including a First
Amendment retaliation claim in a lawsuit does automatically render it a matter of public
concern. Morgan v. Covington Twp., 563 F. App’x 896, 901 (3d Cir. 2014). While “[a]
complaint arising out of public employment need not include indications that there is a
systemic problem interfering with the public agency’s performance of its governmental
functions[,]” to address a matter of public concern a plaintiff must “do more than allege
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retaliation arising out of the unusual circumstances of his individual employment dispute.”
Id. (quotation and internal quotation marks omitted). “Whether a petition raises an issue of
public concern is a question of law for the court.” Id. at 903 (citing Baldassare v. State of
N.J., 250 F.3d 188, 195 (3d Cir. 2001)).
This suit involves a matter of public concern. First, this is not a “petition filed with an
employer using an internal grievance procedure,” Borough of Duryea v. Guarnieri, 564 U.S.
379, 398 (2011), but rather a suit filed in federal court. That weighs in favor of a finding of
public concern. Sharif v. Manning, No. 1:13-CV-96, 2013 WL 3754818, at *12 (M.D. Pa.
July 11, 2013) (“A court filing is a public communication.”). Second, and most important, the
allegations in the original complaint (which are what Defendants are alleged to have
retaliated against Southerton for) do provide “indications that there is a systemic problem
interfering with [a] public agency’s performance of its governmental functions.” Azzaro v.
Cty. of Allegheny, 110 F.3d 968, 980 (3d Cir. 1997) (en banc). Southerton alleges that
Defendants refused him access to his department files, refused to address his concerns for
the safety of the department, and ultimately requested that he resign in violation of state
law. (Doc. 1 at ¶¶ 26, 27, 29). These allegations go beyond “merely personal grievances,”
Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994), even if the relief Southerton
seeks is primarily personal in nature. The public would surely take interest in allegations of
misconduct by elected officials and a breakdown of a police department’s functioning.
Watters v. City of Phila., 55 F.3d 886, 895 (3d Cir. 1995) (“We conclude that the public had
a significant interest in learning about problems which . . . could have affected the delivery
of police services.”); cf. Sharif, 2013 WL 3754818 at *12 (denying motion to dismiss as the
court could “reasonably infer that Plaintiff has some interest not only in winning his lawsuit
and gaining whatever rewards may follow, but also in placing . . . alleged misconduct . . .
in the public sphere for outside scrutiny”).
Accordingly, Defendants’ Motion will be denied as to Count IV of the Third Amended
Complaint.
C.

Count III—FLSA
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Finally, Defendants solely challenge Southerton’s FLSA claim on the ground that he
is an administrative employee—meaning the FLSA’s overtime provisions do not apply to
him. (Doc. 68 at 35-39). Southerton counters that this Court already held that the facts as
alleged in the Second Amended Complaint created an issue of fact as to whether the
administrative employee exemption applies, and that in any event the exemption does not
apply (Doc. 74 at 29-34).
The FLSA requires employers to pay overtime wages to all covered employees who
work in excess of forty hours in a given work week. See 29 U.S.C. § 207(a)(1). The FLSA,
however, contains certain exemptions to the overtime pay requirement, including an
exemption for employees working in a “bona fide . . . administrative . . . capacity.” 29 U.S.C.
§ 213(a)(1). Under regulations promulgated by the Department of Labor, an “employee
employed in a bona fide administrative capacity” is an employee: (1) Who is paid a salary
“of not less than $455 per week;” (2) “Whose primary duty is the performance of office or
non-manual work directly related to the management or general business operations of the
employer . . . ;” and (3) “Whose primary duty include the exercise of discretion and
independent judgment with respect to matters of significance.” 29 C.F.R. § 541.200(a).
“FLSA exemptions should be construed narrowly, that is, against the employer.” Lawrence
v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). The employer has the burden of proving
an exemption applies. Martin v. Cooper Elec. Supply Co., 940 F.2d 896, 900 (3d Cir. 1991).
The applicability of an exemption is a mixed question of law and fact: how an employee
spends his working time is a question of fact, and whether an exemption applies is a
question of law. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986); Reich v.
Gateway Press, Inc., 13 F.3d 685, 691 (3d Cir. 1994).
The material facts regarding Southerton’s job duties are in dispute,2 so summary

2

I note in passing my earlier conclusions as to Southerton’s undisputed official
job duties for First Amendment retaliation purposes may have some impact
here. It is unclear, though, from the briefing whether the parties contest the
applicability of the administrative exemption as to the entirety of the period
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judgment is inappropriate on his FLSA claim. The formal job description created by the
Borough Council gives the impression that Southerton was indeed an exempt administrative
employee. (See Doc. 74-6 at 2-4). But Southerton denies, for instance, that he is the
“administrator” of the Honesdale Borough Police Department. (Docs. 69 and 74 at ¶ 8). He
casts himself instead as a “working Police Chief,” (Doc. 74 at ¶ 8), and that description is
supported by evidence in the record. (See, e.g., Doc. 70-9 (“[Mayor Robinson] said that,
when she offered to assume scheduling duty for the chief, Southerton agreed, happy to
spend more shifts as one of only three full-time working officers.”). Southerton also denies
that he has actual supervisory duties (Docs. 69 and 74 at ¶ 10), has responsibility for
preparing a budget (id. ¶ 11), handles scheduling (id. ¶ 13), handles hiring (id. ¶ 15), and
handles discipline (id. ¶¶ 16-17). These facts are material to the question of Southerton’s
true job duties—they bear on whether Southerton “primary” responsibilities were managerial
or involved the “exercise of discretion and independent judgment” on significant matters.
29 C.F.R. § 541.200(a). So I cannot come to any legal conclusions just yet, given that these
facts are genuinely in dispute. See Reich v. Gateway Press, Inc., 13 F.3d 685, 691 (3d Cir.
1994).
Defendants’ Motion will therefore be denied as to Count III.
IV. Conclusion
For the reasons stated above, Southerton’s First Amendment retaliation claim fails
as a matter of law, but his Petition Clause and FLSA claims survive. Defendants’ Motion for
Summary Judgment will be granted in part and denied in part. An appropriate order follows.

November 6, 2018
Date

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

Southerton alleges he was denied overtime pay (2013 through 2017) or just
for the portion preceding Defendants’ alleged retaliation (2013 through late
2016). Because the parties do not raise this issue, I will not address it further.
16