Opinion
Civil Action No. 02-2257.
May 5, 2004
MEMORANDUM AND ORDER
This case involves a police officer's claim that he was denied a promotion in violation of federal and state law. The defendants move for summary judgment on three of the four counts of the complaint. The Court grants the motion and remands count IV, a state law claim, to the Court of Common Pleas of Montgomery County, Pennsylvania, from whence the case was removed.
I. Background
The plaintiff, Kevin O'Connor, is a police officer in Abington Township. He brings claims against: (1) William Kelly, Chief of Police; (2) Burton Conway, Township Manager; (3) the Board of Commissioners of Abington Township; and (4) Abington Township.
A promotion examination for the rank of sergeant at the police department was administered in December of 1999. The Township's Civil Service Commission Rules and Regulations ("Commission Regulations") provide for a three part evaluation to be used in preparing a promotion list, consisting of: (1) a written test; (2) an oral examination; and (3) "evaluation points," which are determined by the Chief of Police. See Abington Township Civil Service Commission Rules and Regulations, at art. VII (1990), attached to Def.'s Mot. for Summ. J. at Ex. D ("Commission Regulations"). The regulations also provide for a "Rule of Three" whereby three candidates must be considered by the Board of Township Commissioners for each available position.See Commission Regulations, at § 607.
The plaintiff, after taking these tests, was listed as sixth on the promotion list. In the end, persons ranked first, second, third, fourth, fifth, and seventh were promoted to the rank of sergeant, and the plaintiff was not.
The plaintiff maintains that he was qualified for the promotion to sergeant. He was a veteran of the Army and had served as the president of the Abington Township Police Association in 1990 and 1991. He states that he was unlike the other candidates because he: (1) was senior to all of the other candidates but one; (2) has a military background; (3) has an associates degree in security administration, a bachelors degree, and a law degree; and (4) serves as a first lieutenant in the Judge Advocate General's Corps of the Army Reserve.
The plaintiff, in his deposition, states that he was president of the union during the 1988-1989 term and later states it was the 1990-1991 term. Pl.'s Dep. Tr. at 36, 83-84, attached to Def.'s Mot. for Summ. J. at Ex. E ("Pl.'s Dep. Tr."). The exact year is immaterial here, but the Court assumes the term was from 1990 to 1991, as the plaintiff stated in the complaint.
The plaintiff filed a grievance, pursuant to the contract between the Abington Township Police Association and Abington Township, regarding the promotion process on August 14, 2000. He filed an appeal with Chief Kelly on August 18, 2000 and then appealed to Township Manager Conway.
The plaintiff alleges that the defendants are liable under 42 U.S.C. § 1983. He contends that they violated 51 Pa. Cons. Stat. § 7104, part of Pennsylvania's Veterans' Preference Act ("VPA"), by denying the plaintiff a promotion preference. He alleges the defendants further violated § 1983, in that they conspired to deprive the plaintiff of his statutory and regulatory entitlement to a promotion preference. The plaintiff also contends that the defendants violated the plaintiff's First Amendment rights by denying the promotion in retaliation for his union membership and activities. The fourth and final count of the complaint alleges a state law claim for fraudulent misrepresentation.
The defendants move for summary judgment on the following grounds: (1) the Veteran's Preference Act as it applies to promotions has been declared unconstitutional by the Pennsylvania Supreme Court; (2) the plaintiff's allegations that the defendants failed to properly apply the Commission Regulations are not ripe for adjudication; (3) Abington Township, Chief Kelly, in his official capacity, and Township Manager Conway, in his official capacity, cannot be held liable for the plaintiff's § 1983 claims; (4) count III of the complaint should be dismissed because the plaintiff cannot present evidence that he was denied promotion due to his union activities between 1988 and 1990; (5) Township Manager Conway is protected by the doctrine of qualified immunity; (6) Chief Kelly and Township Manager Conway are protected by the doctrine of good faith immunity; and (7) the plaintiff's claims for punitive damages should be dismissed.
The plaintiff concedes that Township Manager Conway is protected by the doctrine of qualified immunity and should be dismissed from the case.
II. Analysis
The Court first will examine the motion as it relates to the plaintiff's claims in counts I and II. The Court will then analyze the plaintiff's First Amendment retaliation claims. Because the Court grants portions of the summary judgment motion that relate to counts I, II, and III, the Court will not address every argument raised in the motion.
In deciding a motion for summary judgment, the Court must view the facts in the light most favorable to the non-moving party. Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). A motion for summary judgment shall be granted where all of the evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.Pro. 56(c). The moving party has the initial burden of demonstrating that no genuine issue of material fact exists. Once the moving party has satisfied this requirement, the non-moving party must present evidence that there is a genuine issue of material fact. The non-moving party may not simply rest on the pleadings, but must go beyond the pleadings in presenting evidence of a dispute of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
A. Promotion Preference Claim
The plaintiff alleges that the VPA gave him a property interest — a promotion preference — and the defendants denied him that interest. The defendants argue that the plaintiff's § 1983 claims in counts I and II cannot succeed because the VPA has been ruled by the Pennsylvania Supreme Court to be unconstitutional.
The VPA is a Pennsylvania state law that gives certain employment preferences to qualified veterans. The Pennsylvania Supreme Court has ruled that the VPA, as it relates to promotion preferences, violates the Pennsylvania Constitution. Hoffman v. Township of Whitehall, 677 A.2d 1200, 1203 (Pa. 1996). See also Markel v. McIndoe, 59 F.3d 463, 474 (3d Cir. 1995) (predicting accurately the Hoffman holding); Giles v. Dunmore Borough Council, No. 96-1419, 1997 U.S. Dist. LEXIS 3322, at *19 (M.D. Pa. Mar. 18, 1997), aff'd, 213 F.3d 628 (3d Cir. 2000) ("Hoffman, Markel and the decisions which preceded them leave no question as to the status of veteran's preferences for promotions in public jobs.").
The parties discuss two sections of the VPA. Section 7104(b) states:
Whenever any soldier possesses the requisite qualifications, and his name appears on any eligible or promotional list, certified or furnished as the result of any such civil service examination, the appointing or promoting power in making an appointment or promotion to a public position shall give preference to such soldier, notwithstanding, that his name does not stand highest on the eligible or promotional list.51 Pa. Cons. Stat. § 7104(b). Section 7103(a) states:
Whenever any soldier shall successfully pass a civil service appointment or promotional examination for a public position under this Commonwealth, or any political subdivision thereof, and shall thus establish that he possesses the qualifications required by law for appointment to or promotion in such public position, such soldier's examination shall be marked or graded an additional ten points above the mark or grade credited for the examination, and the total mark or grade thus obtained shall represent the final mark or grade of such soldier, and shall determine his standing on any eligible or promotional list, certified or furnished to the appointing or promoting power.51 Pa. Cons. Stat. § 7103(a).
Because the Third Circuit and the Pennsylvania Supreme Court have held that the VPA promotion provisions are unconstitutional, the Court grants the motion as it relates to counts I and II.
Even if there were no ruling by the Pennsylvania Supreme Court regarding the VPA, the plaintiff's § 1983 claims would still fail. The Third Circuit has ruled that the VPA does not create a property interest protected by substantive due process. Gikas v. Washington Sch. Dist., 328 F.3d 731, 736-37 (2003).
For the first time, at oral argument, the plaintiff raised a procedural due process claim. There are several reasons why the Court rejects this claim. First, the plaintiff did not raise the issue until oral argument. Next, the plaintiff fails on the substance of the claim.
There is a two step analysis for procedural due process claims.See id. at 737; Robb v. City of Philadelphia, 733 F.3d 286, 292 (3d Cir. 1984). The Court must first determine whether the plaintiff "has alleged a property interest protected by procedural due process." Gikas, 328 F.3d at 737. Next, the Court must determine what procedures constitute due process of law. Id.
The plaintiff has not demonstrated that he was deprived of a property interest. It is not clear to the Court whether the plaintiff claims a property interest only as it relates to the VPA promotion preference, as he conceded at certain points at the oral argument, or whether the property interest was broader, as he seemed to argue at other points. See, e.g., Mar. 18, 2004 Hr'g Tr. at 8, 20-21, 23, 57. The plaintiff cited to Gikas to show that the VPA established a promotion preference protected by procedural due process. See Gikas, 328 F.3d at 738. The Court has already addressed and dismissed the VPA claim above. As to whether there is a protected property interest in the promotion itself, the plaintiff did not present any law to support such an assertion. See Robb, 733 F.3d at 292-93.
Finally, even assuming that the plaintiff has asserted a property interest protected by procedural due process, there has been no violation of procedural due process. The plaintiff contends that the Rule of Three of the Commission Regulations was not followed and, thus, he was never properly considered for a promotion. He argues specifically that Chief Kelly had greater involvement in the process than allowed by the Commission Regulations, in that he consulted with lieutenants and made a recommendation to the Board of Township Commissioners. As the Court reads the Commission Regulations, and specifically the Rule of Three, the procedures were followed. There is no evidence that the promotion examinations were not administered or scored properly. The Court cannot find, and the plaintiff does not point to, any Commission Regulation that prohibits Chief Kelly from making a recommendation to the Board. In any event, there are no facts that rise to the level of a constitutional violation.
B. First Amendment Claims
The plaintiff argues that, apart from his § 1983 claim based on the VPA, the defendants violated the First Amendment by denying him a promotion in retaliation for his union activities. The defendants contend that the plaintiff has not provided any evidence to support this claim.
There is a three step test for analyzing a public employee's retaliation claim. Curinga v. City of Clairton, 357 F.3d 305 (3d Cir. 2004). First, the plaintiff must show that the speech involves a matter of public concern and that his interest in the speech outweighs the state's interest, as an employer, in promoting efficiency. Second, the protected activity "must have been a substantial or motivating factor in the alleged retaliatory action." Id. at 310. Finally, the burden shifts to the employer to show that it would have taken the same action even if the employee had not engaged in the activity. Id.
The causation factor is at issue in this case. The Third Circuit examined causation in Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000). In that case, several police officers brought a § 1983 suit against the city and several high-ranking officers, claiming that the defendants lowered the plaintiffs' scores in the evaluation process and did not promote the plaintiffs to sergeant in retaliation against the plaintiffs for their union activity. Id. at 230.
Reviewing the allegations and evidence offered by the plaintiffs for the purposes of summary judgment, the Third Circuit in Suppan held that the plaintiffs successfully showed that their union activity had been a substantial or motivating factor in the defendants' decision not to promote. Id. at 235. The court reviewed several factors in coming to its conclusion. First, several defendants admitted that the plaintiffs were ranked low because of their union membership. Id. at 237. The defendants, more generally, made statements expressing their hostility to union activities. Id. The plaintiffs also were actively negotiating a new collective bargaining agreement, and negotiations were "very strained." Id. at 230.
The facts that compelled the Suppan court to find that the substantial or motivating factor analysis had been satisfied are notably absent from the case at hand The plaintiff here was the president of the union in 1990 and 1991. As president, the plaintiff's only negotiation with Chief Kelly was regarding pension buy-backs, to which Chief Kelly was not opposed. Pl.'s Dep. Tr. at 84-85. The plaintiff, however, contends that he was the only union president "not to play nice" with Chief Kelly. Mar. 18, 2004 Hr'g Tr. at 37. The plaintiff does not support this allegation with any evidence.
The plaintiff provides no evidence that the defendants here admitted that union activities played any role in the promotion decision. The plaintiff does not point to any comments made by Chief Kelly expressing contempt for the union or the plaintiff's role.
The plaintiff, furthermore, served as president of the union almost a decade before the defendants made the contested promotion decisions. The Third Circuit, in a different context, has held that a plaintiff does not demonstrate causation in a retaliation case simply by showing that the defendant's adverse action temporally followed the protected conduct. Krouse v. American Sterilizer Co., 126 F.3d 494 (3d Cir. 1997) (ruling on an ADA/ADEA case in which the plaintiff claimed that the defendants retaliated against him nineteen months after he filed an EEOC charge). The court also held that, without any other evidence of retaliatory animus, the passage of nineteen months was conclusive and the plaintiff failed to show causation. Id. at 503-04.
The plaintiff here argues that the promotion exams are offered only a few times over the course of the decade. The plaintiff also notes that he was passed over for promotion, and no one else had been passed over for promotion in thirteen years.See Kelly Dep. Tr. at 27, attached to Pl.'s Resp. Summ. J. at Ex. C; McCauley Dep. Tr. at 42, attached to Pl.'s Resp. at Ex. F.
The plaintiff's assertions do not raise a genuine issue of material fact. The timing in this case weighs strongly against the plaintiff. Eight to ten years is obviously a much longer gap than the nineteen months that passed in Krouse. The defendants could have taken any number of adverse employment actions against the plaintiff if they had intended to retaliate. There also were no admissions by the defendants, as there was in Suppan, that union activity played any role in the promotion decision. The plaintiff has not provided any evidence that his union activity was a significant or motivating factor in the defendants' promotion decisions. The Court grants the defendants' motion as it relates to count III.
Because the summary judgment motion does not address count IV of the complaint, a state law claim, the Court remands that issue to state court.
An appropriate Order follows.