Free Compendium of Unreported Decisions - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually and in his official capacity as the Superintendent, Delaware State Police; LIEUTENANT COLONEL THOMAS F. MACLEISH, individually and in his official capacity as the Deputy Superintendent, Delaware State Police; DAVID B. MITCHELL, individually and in his official capacity as Secretary of the Department of Safety and Homeland Security, State of Delaware; and DIVISION OF STATE POLICE, DEPARTMENT OF SAFETY AND HOMELAND SECURITY, STATE OF DELAWARE, Defendants.

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C.A.No.04-1394-GMS

PLAINTIFF'S COMPENDIUM OF UNREPORTED CASES FROM HER OPENING BRIEF IN SUPPORT OF HER MOTION FOR SUMMARY JUDGMENT (D.I. 139)

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Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Dated: January 17, 2005 Attorneys for Plaintiff

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Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court,E.D. Pennsylvania. Robert J. MITCH ELL, Plaintiff, v. Mayor John F. STREET and The City of Philadelp hia, Defend ants. No. Civ.A. 04-3213. Aug. 16, 2005.

James E. Beasley, W illiam T . Hill, The Beasley Firm, Philadelphia, PA , for Plaintiff. Shelley R. Sm ith, City of Philad elphia Law D epartment, Philadelp hia, PA, for D efendants. MEMORANDUM KELLY, J. I. INTRODUCTION *1 Presently pending before this Court is the Defenda nts', Mayor John F. Street ("Mayor Street") and the City of Philadelphia, Motion for Summary Judgment. On July 7, 2004, Mitchell filed his Comp laint with this Co urt. Mitchell's Complaint contains three counts. S pecifically, the counts are: Violation of the First & Fourteenth Amendment and 42 U.S.C. § 1983 (Count I); V iolation of Article I, Section I, of the P ennsylvania Constitution (Count II); and Violation of Article I, Section XI, of the Pe nnsylvania Constitution (Count III). Defendants have moved for summary judgment on all three counts. For the following reasons, Defendants' Motion is denied. However, as will be explained in infra Part IV.B, Counts II and III of the Complaint will be dismissed without prejudice.

Plaintiff, Rob ert J. Mitchell ("M itchell") is the former Deputy Police Commissioner for the City of Philadelphia. M itchell held that title from 19 96 until 2004. In early 2004, a rumor began to circulate that Mitchell had obtained an illegal gun permit. In late Feb ruary, 2004, the media picked up the story and reported that M itchell allegedly possessed an illegal gun perm it. Initially, Police Commissioner Sylvester Johnson ("Johnson") announced his support for Mitchell at a press conference on February 26, 2004. That same day, M ayor S treet called a m eeting to discuss the gun perm it issue. Present at this meeting were Mayor Street, Johnson, M itchell, Mayor Street's Chief of Staff Joyce W ilkerson ("W ilkerson"), Comm unications Director Barbara G rant ("Grant") and Police Counsel Karen Simmo ns, Esquire ("Simmons"). At the meeting, Mitchell denied any wrongdoing with respect to the gun permit. The parties dispute the actual outcome of this m eeting as it related to M itchell's continued emp loyment, however, what is certain is that on February 27, 2004, at a press conference, Mayor Street stated that M itchell wo uld be taking a leave of absence from his position as Deputy Police Comm issioner. An investigation then commenced into the gun permit issue. On March 1 1, 20 04, M itchell filed a com plaint in Equity with the Court of Common Pleas of Ph iladelp hia County. The complaint sought to enjoin Mayor Street and the City of Philad elphia from remo ving him from his post as Deputy Police Commissioner pending the results of the investigation regarding the gun perm it. FN1

FN1. That complaint was dismissed as moot by the Court of Common Pleas on June 11, 200 4. (See Defs.' Mo t. Summ. J. Ex. E). On May 26, 2004, Philadelphia District Attorney Lynne Abraham announced the re sults of her investigation into the gun permit issue. The District Attorney concluded that Mitchell had engaged in no wrongdoing whatsoever.

II. BACKGROUND

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On May 27, 2 004, Mitchell appeared on the Michael Smerconish ("Smerconish") ra dio p rogra m. FN2 During this appearance, Smerconish and Mitchell discussed the District Attorney's public announcement regarding the gun perm it issue and her findings that Mitchell engaged in no wrongdoing. On June 1, 2004, Mitchell received a letter from John son terminating his employm ent. Mitchell subsequently filed his C omp laint with this Court approximately one month later.

FN3. "A fact is material if it could affect the outcome of the suit after applying the substantive law. Further, a dispute over a material fact must be `genuine,' i.e., the evidence must be such `that a reasonable jury could return a verdict in favor of the non-moving party.' " Compton v. Nat'l League of Prof'l Baseball Club s, 995 F.Supp. 554, 561 n. 14 (E.D.Pa.1998) (citations omitted), aff'd, 172 F.3d 40 (3d Cir.1998). IV. DISCUSSION Defendants have moved for summary judgment on all three counts. Under Co unt I, Defendants assert that no genuine issue of material fact exists regarding P laintiff's claim for retaliation under both his First Amendment right to free sp eech and his right to petition. Second, under Counts II and III, Defendants assert that there is no cause of action for damages und er the P ennsylvania Constitution. Finally, Mayor Street asserts he is shielded from liability based upon the doctrine of qualified immunity. These arguments will be considered in turn. FN4

FN2. Mitchell previously appeared on the Smerconish show on March 4, 2004 after the announcement by Street that Mitchell was suspended from his position as Deputy Police Comm issioner. III. STANDARD *2 "Summary judgment is appropriate when, after considering the evidence in the light most favo rable to the nonmoving party, no genuine issue of material fact remains in dispute and `the moving party is entitled to judgment as a matter of law.' " Hin es v. Consol. Ra il Corp., 926 F.2d 262, 267 (3d Cir.1991) (citations omitted). The inquiry is "whether the evidence prese nts a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a ma tter of law." Anderso n v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact. FN3 Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362 (3d Cir.1992). Once the moving party has produced evidence in support of summary judgment, the non-movant must go beyond the allegations set forth in its plead ings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63. Summ ary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, an d on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FN4. The Defendants do not contest that the Plaintiff has met the threshold for there to be municipal liability under Mone ll v. Dep't of Social Servs. of N.Y., 436 U.S. 658 , 98 S .Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, I will not engage in a discussion of this issue. A. COUNT I Count I actually contains two separate causes of action. First, Mitchell asserts that the D efendants retaliated against him and terminated his employment based upon the filing of his equity complaint with the Court of Common Pleas of Ph iladelp hia Co unty. M itchell asserts this violated his right to petition the government for a redress of grievances. Additionally, Mitchell asserts that he was fired in retaliation for exercising his free speech rights by appearing on the Smerconish radio program. The parties are in agreement as to the elements that make up both of these claims. B oth claims require the following three -step analysis:

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[f]irst, plaintiff must show that he engaged in a protected activity. Second, plaintiff must show that the protected activity was a substantial factor motivating the dismissal decision. Finally, defendant may defeat plaintiff's claim by demonstrating that the same action would have taken place even in the absence of the protected cond uct. San Filippo v. Bo ngio nva nni, 30 F.3d 424, 430 (3d Cir.1994) (citations omitted). FN5 I will consider these elements as they relate to Plaintiff's right to petition and free speech causes of action.

The United States Court of Appeals for the Third Circuit ("Third Circuit") has noted that in a claim for retaliatory discha rge from governm ent employment, the plaintiff "must establish that the conduct which triggered the discharge was protec ted under the first amendm ent." San Filippo, 30 F.3d at 434. Specifically: [w]here the allege d retaliation is based on expressive conduct constituting speech, a c ourt m ust first determine whethe r or no t the speech can be fairly characterized as addressing a `ma tter of pu blic concern,' for a governmental employee who makes public comments about prob lems not of `public concern' has no first amendment immunity against employer discipline. Id. "A public employee's speech involves a matter of public concern if it can be fairly considered as relating to any matter of political, social or other concern to the com munity." Baldassare v. N.J., 250 F.3d 188, 195 (3d Cir.2001)(internal quotation marks and citation omitted). Thus, a court must focus o n the "co ntent, form, and context of the activity in question." Id. (citing Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Wa tters v. City of Ph ila., 55 F.3d 886, 892 (3d Cir.1995)). Furthermore, "[t]he content of the speech may involve a m atter of p ublic concern if it attempts to bring to light actual or potential wrongdoing or breach of pub lic trust on the part of government officials." Id. (internal quotation marks and citations omitted). D etermining whether the public em ployee's speech involved a matter of public concern is a question of law for the court. Id. (citing Watters, 511 U.S. at 668 ; Green v. Phila. Ho us. Auth., 105 F.3d 882, 885 (3d Cir.1997)). The parties dispute whether Mitchell's appearance on the Smerconish radio pro gram to discuss the gu n permit issue and the District Attorney's findings constituted a matter of public conc ern. D efendants assert that this case is similar to Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708, and that I should therefore find as a matter of law that Mitchell's speech did not involve a matter o f "public concern." However, for the following reaso ns, I find that Connick is distinguishable from the instant case. In Connick, the plaintiff, Shiela Myers ("Myers"), was

FN5. As set out in San Filippo, "a pub lic employer may dismiss an employee for speech addressing a matter of public concern if the sta te's interest, as an employer, in promoting the efficiency of its operations outweighs the em ploy ee 's interest, as a citizen, in commenting upon matters of pub lic conc ern." 30 F.3d at 434 n. 11 (citation omitted). However, "[t]his balancing test com es into play only if the public employer concedes that it dismissed an employee because of the em ployee's protected speech but contends that it was justified in doing so." Id.; see also, Dennison v. Pa . Dep 't of Corr., 268 F.Supp.2d 387, 3 99 (M .D.Pa.2003). The Defendants deny that they fired M itchell because o f his alleged ly protected speech so as to deem the balancing test inapplicable. Furthermore, neither party asserts that the balancing test should be utilized in this case. 1. Protected Activity *3 The first step re quires this Court to consider whether Mitchell engaged in a protected activity under his right to petition and free speech claims. A s to his right to petition, Defendants concede that the filing of Mitchell's equity complaint with the Court of Common Pleas of Philadelp hia Co unty was a pro tected activity. However, Defendants vigorously contest that Mitchell engaged in any protected activity under his free speech claim.

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emp loyed as an Assistant District Attorney in New Orleans for five and one half years. 461 U.S. at 140. Myers was informed that she would be transferred to prosecute cases in a different section of the criminal court. Id. Myers opposed this transfer and she then "prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns." Id. at 141. She then distributed the questionnaire to her co-workers the next day. Id. Later that day, Myers was terminated by Harry Connick ("Connick") the District Attorney for Orleans Parish for refusing the transfer. Myers brought suit under 42 U.S.C. § 1983, asserting that she was wrongfully terminated b ecause she had exercised her constitutionally protected right to free speech by distributing the questionnaire. Id. *4 The United States Supreme Court ("Supreme Court") noted that practically all of Mye rs questions did "not fall under the rubric of matters of `pub lic concern.' " Id. at 145. The Supreme Court noted that the questionnaire did not seek to inform the public that the District Attorney's office was discharging its governmental respo nsibilities in the investigation or prosecution of criminal cases in an improper manner nor did the questionnaire seek to bring to light actual or potential wrongdoing on the part of Connick or others. Id. The Supreme Court continued by noting that the questions posed by Myers reflected her dissatisfaction with her transfer and her "attempt to turn that displeasure into a cause celebre." Id. Unlike the majority of the que stions posed in Connick, however, I find that the issues discussed on the Smerconish radio program did involve matters of public concern. Unlike Connick, the gun permit issue involved possible illegal activity and corruption on the part of a high ranking government official, namely Mitchell. As previously noted, the courts have stated that matters of public concern can include attempts to bring to light actual or po tential wro ngdo ing on the part of government officials. See Baldassare, 250 F.3d at 195 (citations omitted). Thus, it follows that the discussion on the Smerconish radio program regarding the District

Atto rney's investigation and findings regarding the possible wrongdoing and/o r illegality of ho w M itchell received the gun permit involved matters of "p ublic concern." The instant case goes beyond the intra-office dissatisfaction in Connick since there is the additional element of potential wrongdoing/illegality that brought the gun permit issue to the forefront of the pubic sphere in the first place. Therefore, as M itchell's appearance on the Smerconish radio program involved a matter of "public concern," Mitchell engaged in a protected activity under the law.

2. Substantial Factor Motiving the Dismissal The next step in the analysis is to determin e whether Mitchell's protected activities were a substantial factor which motivated the decisio n to terminate Mitchell's emp loyment. The Defendants assert that M itchell cannot satisfy this element. The Plaintiff asserts that he can survive summ ary jud gment with resp ect to this element by discrediting the Defendants' reasons for his termination. For the follow ing reasons, I agree w ith Plaintiff's position. To survive summary judgment, "a plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the em ployer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determ inative cause of the em ployer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (citations omitted). In this case, Mitchell attemp ts to discredit the Defendants reason for his termination. FN6

FN6. W hile Fuentes was a Title VII case, courts have noted that "[p]retext analysis used in Title VII cases is also useful in deciding First Am end men t retaliation claims. " Cavicch ia v. Phila. H ous. Auth., No. 03-0116, 2003 W L 22595210, at *9 n. 2 (E.D.Pa. Nov.7, 2003), aff'd, 2005 WL 1506038 (3d Cir. June 27, 2005)(non-precedential)(citing Azzaro v. County of Allegheny, 110 F.3d 968, 981 (3d Cir.1997)(en banc); Feldman v. Phila.

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Hous. Auth., 43 F.3d 823, 831 (3d Cir.1994); Zappan v. Pa. Bd. of Prob. & Parole, No. 00-1409, 2002 WL 32174230, at *11 (E.D.Pa. Nov.25, 2002); Rod riguez v. To rres, 60 F.Supp.2d 334 , 340 n. 2 (D.N.J.1999) Fogarty v. Boles, 938 F.Supp. 29 2, 29 9 n. 4 (E.D.Pa.1996), aff'd, 121 F.3d 886 (3d Cir.1997)). *5 The Defendants assert that the decision to fire Mitchell was made at the February 26, 2004 meeting. Thus, it is the Defendants' position that Mitchell could not be retaliated against for his protected activities because the decision to fire him occurred before any of the protected activities occurred. However, I find that there are factual inconsistencies in the record that would allow a reasonable fact finder to find Defend ants' proffered reason unworthy of cred ence. See Fuentes, 32 F.3d at 765 (citations and footnote omitted). For example, the Defendants assert that the decision to fire Mitchell was made at the February 26, 2004 m eeting. This meeting was called to discuss the gun permit issue. No party suggests that budgetary concerns were discussed at this m eeting as it related to M itchell's further employment as Deputy Police Com missioner. Yet, Johnson's press conference on June 1, 2004 detailing Mitchell's termination and the corresponding news coverage explains that Mitchell was fired for bud getary re asons. (See Pl.'s Resp . Defs.' M ot. Summ. J., Ex. O). This and other inconsistencies in the record discredit Defenda nts' proffered theory of M itchell's termination enough so as to create material issues of fact as to this element. FN7

appeared on the Smerconish radio program and was terminated less than one week later. It is wo rth noting, however, that Mitchell's termination was also soon after the District Attorney made her findings with respect to the gun permit issue. 3. Same Action W ould have been T aken Absent the Pro tected Activity Defendants do not address this third element of Plaitniff's right to petition and free sp eech claims. Therefore, I find it unnecessary to address it in the context of deciding Defendants' Summary Judgment Motion. As there are material issues of fact remaining as to all three eleme nts of Plaintiff's right to petition and free speech retaliation claims, I find summary judgment is inappropriate as it relates to Count I of Mitchell's Complaint.

B. CO UN TS II AN D III Counts II and III seek money damages under the Pen nsylvania Constitution, Article I, Section I and Article I, Section XI respectfully. The Defendants assert that summary judgment should be granted in their favor because Plaintiff cannot maintain a cause of action under the Pennsylvania Constitution for money dama ges. For the following reasons, based upon the discretion given to me as stated under 28 U .S.C. § 1367(c)(1), I will decline to exercise supplemental jurisdiction over these two counts and dismiss them without prejudice. Section 1367(c)(1) states that "[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if the claim raises a novel or complex issue of state law." As one court in this District has recently noted, "[t]he question of whether there exists a `right of action for money dam ages against go vernm ent officials of the Pe nnsylvania Constitution' is unclear." Gremo v. Karlin, 363 F.Supp.2d 771, 794 (E.D.Pa.2005)(quoting Robbins v. Cumb erlan d Coun ty Ch ildren & You th Serv., 802 A.2d 1239, 1251 (Pa.Cmwlth.Ct.2002)); com pare Erd ma n v. M itchell, 207 Pa. 79, 90-91, 56 A. 327, 331 (1903)(hold ing that there is a right of action

FN7. Additionally, with respect to the free speech retaliation claim, the Third Circuit has noted that the temporal p roxim ity between the em ployee's protected activity and the adverse employment action "is an obvious method by which a plaintiff can proffer circumstantial evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action." Kachmar v. Sungard Da ta Sys., In c., 109 F.3d 173, 177 (3d Cir.1997)(internal quotation marks and citations omitted). In this case, M itchell

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for injunctive relief under the first article of the Pennsylvania Constitution); Ha rley v. Schu ylkill County, 476 F.Supp. 191, 195 -96 (E.D.Pa.1979)(extending Erdman to apply to claims for damages); Jon es v. City of Phila., 68 Pa. D. & C.4th 47, 68-75 (writing in suppo rt of its determination that Article I of the P ennsylvania C onstitution is self-executing and permits private parties to seek civil remedies for constitutional violations); with Millar v. Windsor Township, No. 04-2529, 2005 WL 1513120, at *3-4 (M.D.Pa . June 24, 2005)(stating that there is a dearth of case law on the issue and declining to exercise jurisdiction over the state constitutional claims because deference to the state appellate courts is appropriate); Tillman v. Alonso, No. 04-4391, 2005 W L 1311588, at *5-6 (E.D.Pa. May 31, 2005)(explaining the uncertainty of the state o f the law on the issue of bringing a state constitutional claim under Article I and declining to exercise jurisdiction over state constitutional claims because of this uncertainty); M ulgrew v. Fumo, No. 03-5039, 2004 WL 1 699368, at *2-4 (E.D.Pa. July 29, 2004)(explaining that the issue of whether a direct right of action under A rticle I of the Pennsylvania Constitution is unclear and declining to exercise supplemental jurisdiction over these state constitutional claims). *6 In light of the unclear state of the law on Mitchell's state constitutional claims, I find that the most app ropriate course of action in this particular case is to decline supplemental jurisdiction over Counts II and III of the Complaint pursuant to 28 U.S.C. 1368(c)(1). FN8 Therefore, Counts II and III will be dismissed without prejudice.

C. QUALIFIED IMMUNITY Finally, Defendant M ayor S treet asse rts that he is entitled to qua lified imm unity. "Qualified im munity is available to government officials pe rform ing discretionary functions." Lodato v. Ortiz, 314 F.Supp.2d 379, 385-86 (D.N.J.2004)(citing Harlow v. Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil dam ages insofar as their conduct does not vio late clearly established statutory or constitutional rights of which a re asonable person would have known." Harlow, 457 U.S. at 818 (citing Procunier v. Navarette, 434 U.S. 555 , 565 , 98 S.C t. 855, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)). A court required to rule up on the qualified immunity issue must co nsider ... this thresho ld question: T aken in the light most favora ble to the party asserting the injury, do the facts alleged show the [governm ent official's] conduct violated a constitutional right? T his must be the initial inquiry.... If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties's submissions, the next, sequential step is to ask whether the right was clearly established. Saucier v. Katz, 533 U.S. 194 , 201 , 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)(internal citation omitted). Regarding the first part of the qualified immunity test, as set out in supra Part IV.A ., I have fo und that M itchell has alleged a violation of his constitutional rights to be free from retaliation for filing his equity complaint and fo r spea king out on a matter o f public concern. Therefore, the first part of overcoming Mayor Street's qualified immunity has been satisfied by Mitchell. Next, I note that the Defendants do not attem pt to make any type of argum ent as to the seco nd part of the qualified immunity test. Specifically, the Defendants sole argument with respect to q ualified im munity is

FN8. This decisio n is particularly prudent in light of the fact that it appears that the issue of "whether a cause of action for money damages arises under the state constitution is an issue currently pend ing before the Commonwealth Court of Pennsylvania." Millar, 2005 W L 1513120, at *3 n. 5 (citing City of Phila. v. Jones, No. 795-CD-200 4 (P a. Co mmw. Ct. filed Apr. 19 200 4). "Argument was heard by the [Commonwealth] court en banc on June 8, 2005." Id.

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that, "[b]ecause the plaintiff cannot e stablish that his constitutional rights were violated, D efendant M ayor Street is entitled to qualified immunity, and, therefore, judgment in his favor." (Mem. Law. S upp. Defs.' Mot. Summ. J., at 11). Thus, Mayor Street does not attempt to contest that both of these rights were clearly established at the time he acted. However, it is clear that both of these rights were established at the time Mayor Street acted. See Watters, 55 F.3d at 891 (stating that "it is essential that pub lic emp loyees be ab le to speak out freely on questions of public concern without fear of retaliatory dismissal.... Judicial vigilance is required to ensure that public emplo yers do not use their authority to silence discourse on matters of public concern simply because they disagree w ith the content of the employee's speec h.") (citations omitted); San Filippo, 30 F.3d at 441-443 ("The mere act of filing a non-sham petition is not a constitutionally perm issible ground for discharge of a public emp loyee."); Bennis v. Gable, 823 F.2d 723, 733 (3d Cir.1987)(stating that the law was clearly established that a public employee could not be retaliated against for exercising his rights under the First Amendm ent). Thus, I find Defendant Mayor Street shall not be entitled to qualified immunity.

consideration of the Defendants' Motion for Summary Judgment (Doc. No . 11), and the Response and Replies thereto , it is hereby OR DE RE D that: 1. the Motion is DEN IED; and 2. Counts II and III of the Complaint are DISMISSED WITHOUT PREJUDICE.

E.D.Pa.,2005. Mitchell v. Street Slip C opy, 2 005 W L 19 937 74 (E.D .Pa.) Briefs and O ther Related D ocuments (Back to top) · 2 00 5 W L 2150103 (Trial Motion, Mem orandum and Affidavit) Order (Jul. 12, 2005) · 2:04cv03213 (Docket) (Jul. 07, 2004) · 2:04cv01110 (Docket) (Mar. 15, 2004) · 2004 WL 2695311 (Trial Pleading) Complaint (2004) END OF DOCUMENT

V. CONCLUSION *7 In conclusion, I find that summary judgm ent is improper as to Count I of the Co mpla int. I find that material issues of fact rema in in Mitchell's claims for retaliation under the First Amendment's free speech and right to petition clauses. Additionally, I conclude that because Counts II and III raise novel and complex issues of state law, I will decline supplemental jurisdiction over these state constitutional claims and dismiss them without prejud ice. Fina lly, I have concluded that Defendant Mayor Street is not entitled to qualified immunity. An approp riate Orde r follows.

ORDER AND NOW , this 16 th day of August, 2005, upon © 2006 Tho mson/W est. No C laim to Orig. U .S. Govt. Wo rks.

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Briefs and O ther Related Do cuments Only the Westlaw citation is currently available. United States District Court, D. Delaware. David T . SPR ING ER , M.D., P laintiff, v. Renata J. HEN RY, individually and in her official capacity, and Gregg C. Sylvester, M.D. in his official capacity, Defendants. No. 00-8 85(GM S). March 11, 2002.

defendants contend that Springer would have been terminated regardless o f his speech due to his failure to bid for renewal of his contract. Moreover, the defendants argue that Springer has failed to prove that he has suffered damages as a result of their alleged actions. Finally, the defendants argue that Henry is entitled to qualified immunity because it was not certain that Springer's contract would be renewed, and therefore, his rights were not clearly established. Upon review of the briefs and the law, the court agrees with Springer that his speech was protected under the First Amendment. Mo reover, the undisputed facts establish that his speech was not disruptive. Furthermore, the court agrees with the plaintiff that his right to engage in speech was clearly established at the time he was terminated. Therefore, Ms. Henry is not entitled to qua lified imm unity. Thus, the cou rt will grant the plaintiff's motion for partial summary judgment on the issues of protected speech and qualified immunity. The court must, therefore, deny the defenda nts' motions on these issues. Additiona lly, the court finds that questions of fact remain as to whether Springer's speech was the motivation behind his termination, whether the circumstances required his termination such tha t his speech was immaterial, and whether he suffered damages. In light of these genuine issues of material fact, summ ary jud gment is inappropriate on these issues. Thus, the court will deny the defendants' motion in its entirety. The court will now explain the reasons for its decision.

MEMORANDUM AND ORDER SLEET, District J. *1 On O ctober 6, 2000 , Dr. D avid S pringer filed this complaint against Renata J. Henry and Dr. Gregg Sylvester. Springer was a physician who had been under contract to provide medical services at the Delaware Psychiatric Center ("DPC"). Springer alleges that Henry and Sylvester refused to renew his contract in retaliation for remarks he made concerning the operation of the DP C facility. Springer co ntends that his termination the refore violated the First A mendme nt. Presently before the cou rt are two mo tio ns-Springer's Motion for Partial Summary Judgment and the defenda nts' Mo tion for Summary Judg me nt. Springer's motion asserts that his speech was protected under the First Amendment. He further contends that if the court determines that his speech was protected-a question of law-a jury must decid e whether his sp eech caused his termination. Finally, Springer contends that defendant Henry is not entitled to qualified immunity beca use his First Amendment right was clearly established prior to his termination. The defendants' motion argues that Springer's speech was not protected because it addressed his personal concern s. Alternatively, the defendants argue that Sp ringer's speech was disruptive. Additionally, the

II. FACTS Dr. David Springer b egan working for the DP C in 1991. FN1 The hospital was supervised by the Delaware Department of Health and Social Services ("DDHS S"). Mo re spec ifically, it was supervised b y the D DHSS 's Division of Alcoholism, Drug Abuse, and Mental Health ("DADAMH"). Renata Henry was the director of the DADA MH. FN2 Dr. Gregg Sylvester was the

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Secretary of the DDHSS. From August 1992 to June 2000, Springer was the director of the DPC. In that capacity, he was respo nsible fo r training p sychiatric residents. He was also a mem ber o f the cred entials comm ittee responsible for hiring new doctors.

FN1. In 1991, DP C was known as Delaware State Hospital. Nevertheless, Delaware State Ho spital and D PC are the same entity. FN2. Although she served as director of DAD AM H, M s. Henry is not a physician. *2 The DPC confronted num erous, serious problem s. Several patients had comm itted suicid e. Others had escaped. In Decembe r 1999, the federal Healthcare Financing Agency threatened to end DPC 's federal funding. Moreover, the Delaware News Journal ran several highly critical articles about the DPC. On November 23, 1999, Springer wrote a memorandum addressed to the Governor, the DPC G overning Board, and Ms. Henry. Springer's memo add ressed at least twenty-three separate topics. However, the memo generally described attempted suicides, security failures (including patient escapes), under-staffing, violations of Med icare regulations (includ ing an alleged failure to properly notify Med icare officials of the correct number of staff on hand), and lack of qu ality med ical care. Springer also mentioned the need to continue the medical residency program. On March 21, 2000, Springer filed a repo rt with the DPC G overning Board which addressed concerns similar to those o utlined in his memo. In his report, however, he also alleged fraud and threatened to take his concerns to regulatory agencies. Like the other doctors at the DPC , Springer was an independent contractor under contract with the DPC. From 1991 to 2000, Springer's contracts specified that the contract term was for one year and could be terminated without cause upon fifteen days notice. The contract terms do not guarantee renewal. Nevertheless, Sp ringer's contract-as well as those of the other DPC physicians-was renewed each year.

In 1996, the Delaware G eneral Assembly amended the Delaware Procurement Act, 29 D el. C. ch. 69, to provide that all contracts for professional services exceeding $50 ,000 per year must be sub ject to p ublic bidding. In early 2 000 , Secretary Sylvester instructed his division directors to comply with the new provisions and require public bidding on professional service contracts. The DPC physicians earned more than $50,000 per year. After Springer wrote his m emo to the G overnor, the situation at the D PC workplace beca me p rogre ssively worse. On May 12, 2000, H enry notified Springer that his contract would not be renewed. Springer was told that he would have to submit a bid to maintain his emp loyment. Defendants maintain that all fifteen DPC psychiatrists were required to subm it bids. Conve rsely, Springer maintains that he was the only physician who was made to reapply. Moreover, Springer contends that he was not informed of the bidding procedures until the day before the bids were due. Springer asserts that the non-renewal of his contract was based on his comments to the Governor. Ho wever, DPC offered three other reasons. First, they believed that Springer was insubordinate because he failed to return documents relating to the credentials certification of a physician app licant. Springer asserts that he missed the deadline for returning the materials because he wished to consult his attorney. Second, DPC alleged that Springer improperly kept patient records at home. Springer submits that he never kept originals or copies of patient documents in his home office. Finally, DPC told Springer that he had impro perly considered his personal feelings in deciding whether a certain physician applicant should be credentialed. Springer contends that he did not act inappropriately in the decision-making proce ss.

III. STANDARD OF REVIEW *3 Summary judgment is appropriate when there are no genuine issues of material fact and the mo ving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P 56(c). A fact is material if it might affect the outcome of the case, and an issue is genuine if the

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evidence is such that a reasonable factfinder could return a verd ict in favor of the nonmovant. See In re Headquarters Do dge , Inc., 13 F.3d 674, 679 (3d Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 (1986). When deciding a motion for summary judgment, the court must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Pacitti v. Macy's, 193 F.3d 766, 772 (3d Cir.1999). The nonmoving p arty, however, must demon strate the existence of a material fact supplying sufficient evidence-not mere allegations-for a reaso nable jury to find for the nonm ovant. See Olson v. General Elec. Aerospace, 101 F.3d 947, 951 (3d Cir.1996) (citation omitted). To raise a genuine issue of material fact, the nonmovant "need not match, item for item, each piece of evidence proffered by the movant but simply must exceed the `mere scintilla' [of evidence] standard." Petruzzi's IGA Superma rkets, Inc. v. Da rling-D elaw are C o., 998 F .2d 1224, 1230 (3d Cir.1993) (citations omitted). The nonm ovant's evidence, howe ver, must be su fficient for a reasonable jury to find in favo r of the party, given the applicab le burd en of p roof. See Anderson, 477 U.S. at 249-50.

public concern. See Azza ro v. C oun ty of Allegheny, 110 F.3d 968, 976 (3d Cir.1997). Second, the court must balance the government's interest in effective administration against the employee 's free speech rights. See id. This is commonly referred to as the Pickering balancing test. See Pickering v. Board of Ed. of Tp. High School, 391 U.S. 563, 568 (1968) ("The problem in any case is to arrive at a balance between the interests of the teacher, 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.").

a. Matters of Public Concern *4 Whether speech addresses a matter o f public concern is an issue for the court to decide. See Waters v. Church ill, 511 U.S. 661, 668 (1994). To ascertain whether speech addresses a matter of public concern, the court must consider whether the speech can be "fairly considered as relating to any matter of po litical, social, or other concern to the community." Pro v. Do natu cci, 81 F.3d 1283, 1288 (3d Cir.1996) (citations omitted). In making this determination, the court can consider the "content, form, and context of a given statement." Con nick v. M yers, 461 U.S. 138, 147-48 (1983). The con tent of Springer's speech clearly addressed a matter of public concern. Speech may be characterized as a matter of po litical or social concern if the speech revea ls "actual or potential wrongdoing." See Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir.1993). The cases cited by the plaintiff clearly establish that health care issues are matters of public concern when addressed by medic al pro fessiona ls. See Schneiner v. New York C ity Health a nd H ospitals, 157 F.Supp.2d 487, 495-96 (S.D.N.Y.2001) (finding speech protected where physician wrote to Mayor Giuliani's office regarding problems at municipal ho spital); Kattar v. Three Rivers Area H ospital Au th., 52 F.Supp.2d 789, 799 (W.D.Mich.1999) ("In several cases, courts have held that statements by health care providers regarding patient care involved matters of public concern.") (collecting cases).

IV. DISCUSSION A. Springer's Rights under the First Amendment

In order to establish tha t his First Amendme nt rights were violated, Sp ringer m ust dem onstrate that his speech was protected. See Green v. P hilad elphia Housing Authority, 105 F.3d 882, 885 (3d Cir.1997). He must then establish that his protected speech was a motivating factor behind the alleged retaliation. See id. Finally, the burden will then shift to the defendants to dem onstrate that the sam e action wou ld have been taken if the spee ch had not oc curred. See id.

1. Springer's Speech was Protected The Third Circuit has outlined a two-p art test to determine whether a public emp loyee's speech is protected. First, the speech m ust pertain to a matter of

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In the present case, similar to Schneiner and Kattar, Springer was a health care provider who commented on the state of health care at the D PC facility. All of his statements concerned deficiencies at the facility. Moreover, many of problems Springer addressed involved danger to the lives of patients or the surrounding community (i.e. suicides and escapes). Thus, he raised concerns of a grave nature that wo uld be relevant to the medical comm unity, the co mmunity surrounding the DPC facility, the families of DPC patients, and the Delaware taxpayers who financed the operation. The court therefore concludes that the content of Springer's speech addressed issues that would be relevant to many groups of Delaware residents. The defendants assert that Springer's statements were motivated by his own personal interests and thus did not address a matter of public conc ern. T his allegation is based on the fact that Springer's comm ents also addressed the medical re sidency program. The defendants argue that since Springer was in charge of the residency program, only he would benefit from such comm ents. The court rejects this argument. First, a medical residency program could be beneficial to the DPC even in Springer's absence. Second, and more impo rtant, the medical residency program was but one of many points Springer addressed. The record clearly demonstrates that the vast majority of Sp ringer's com ments addressed the safety and medical concerns at the DP C. Thus, the court finds that the content of Sp ringer's speech addressed a matter of public concern. *5 The context of Sp ringer's speech also indicates that he was ad dressing a matter of p ublic concern. First, his com ments were addressed to the Governor, the DPC Governing Board, and M s. Henry. If Springer merely wanted to raise his personal issues, addressing his com ments to Henry alone would have sufficed. The fact that his statements were addressed to public officials, however, indicates that was attempting reach an audience that could provide redress for the serious issues he raised. Furthermore, the federal government had already begun to investigate problems at the DPC long before Springer's statements. Additionally, several News Journal articles had also addressed the issues Springer raised. See Watters v. City of Philadelphia, 55

F.3d 886, 895 (3d Cir.1995) (noting that news coverage can be relevant to determining whether speech addresses a matter o f public concern.) The involvement of the fede ral gov ernment and the pre ss strongly indicates that the public was interested in the operations of the DPC . Thus, the co urt finds tha t the content and context of Springer's speech addressed a matter of public concern.

b. Balancing the G overnm ent's and Sp ringer's Interests The only argument the defendants assert on this po int is that Sp ringer's com me nts were disruptive to the DPC's operation. The defendants assert that Sp ringer's com ments were intended to be disruptive. The court has reviewed the defendants' recitations of the facts and neither recitation includes facts that would permit the court to reasonably conclude that Springer's com ments had any disruptive effect. Indeed, as far as the court can tell, the only fact that the defendants assert in support of this argum ent is that after agreeing to return the doc uments regarding the physician applicant, Springer delayed in producing the documents while he consulted his attorney. First, the defendants have failed to adduce facts demonstrating that the delay was disruptive. Mo re impo rtant, even if this delay in returning the documents was disruptive, the defendants have failed to show how this disruptio n was in any way related to S pringer's speech. Therefore, the court rejects the defendants' argument and concludes that they have not sufficiently demonstrated a government interest sufficient to outweigh Sp ringer's First Amendm ent rights.

3. The Rem aining Pron gs of the Test The court finds that summary judgment is inapp ropriate as to whether Springer's termination was motivated by his speech or, similarly, whether he would have been terminated in the absence of the speech. First, the record reveals that any number of factors could have motivated the defendants' decision to terminate Sp ringer's contract. Indeed, the defendants have provided at least three reasons that are unrelated to Sp ringer's comm ents-his insubordination, keeping

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documents at hom e, and impro perly considering his personal feelings during the physician applicant process. However, issues of fact surround whether plaintiff was truly insubordinate, whether he kept documents at home, or whether he had a "vendetta" against the physician applicant. Springer denies all of these allegations. Thus, the parties do not agree on the facts concerning these issues. The court cannot decide these issues on the record before it because the y all involve credibility determinations. The motivation behind the defendants' decision is, therefore, a question of fact that is more properly addressed to the fact-finder than to the co urt. M oreo ver, it is unclear whether the plaintiff would have been terminated if he had not spoken. The defendants' assert that all fifteen psychiatrists were required to bid for their contracts. Converse ly, Springer contends that he was the only physician made to bid. Additionally, Springer asserts that he was not no tified of the bidding pro cess in a timely fashion. Since the parties disagree on this highly relevant fact, the jury, rather tha n the co urt, should decide this matter. The court will, therefore, deny summary judgment on these two p rongs.

immunity, which p ermits o fficials to avo id liability for actions performed in the course of their official duties. The Suprem e Court recently affirmed the two part test for qualified immunity. First, the court must determine whether the facts alleged, taken in the light most favorable to the plaintiff, are sufficient to show that the defendant violated a constitutional right. See Saucier v. Katz, 121 S.Ct. 2151, 2155-56 (2001). Seco nd, if a constitutional violation can be dem onstrated on the facts alleged, the court must next consider whether the right was clearly estab lished at the time of the alleged violation. See id. at 2156. In Saucier, the court further clarified that the right must be estab lished in a "particularized" sense, meaning that "the contours of the right must b e sufficiently clear that a reaso nable official would understand that what he is doing violates that right." See id. Additionally, the court noted that although the court must decide whethe r the facts alleged-not proved-by the plaintiff amount to a constitutional violation, even where there may be a material issue of fact, if the law did not put the officer on notice that his conduct was unlawful, summary judgment may be permissible. See id. at 2156-57. The parties here contest only whether Sp ringer's rights were clearly established at the time he was terminated. A right is clearly established where "it would be clear to a reaso nable officer that his conduct was unlawful in the situation he confronted ." See id. at 2156. M ore specifically, a right is clearly established where case law speaks "with obvious clarity to the specific conduct in question." United States v. Lanier, 520 U.S. 259, 271 (1997). Relevant Supreme Court precedent estab lishes that "independent government contractors cannot be terminated for exercising their First Amendment rights." Boa rd of Co mm . Wab aunsee v. Um behr, 518 U.S. 668, 686 (1996). See also O'Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 721 (1996) (noting same). Thus, the Supreme Court has recognized on at least two occasions that an independent contractor-such as Dr. Springer-- has a constitutional right to free speech. Therefore, it cannot be more clear that this right was clearly established. *7 The defendants assert that this court should be

4. Damages *6 The court similarly finds that summary judgment on the issue of dama ges is inap prop riate. Based on Singer's tax returns fo r the years 1997 to 20 00, the defendants assert that he suffered no economic loss. Conversely, Springer alleges that his 2001 tax return (not mentioned by defendants) proves a significant eco nomic loss. Mo reover, Springer states that he can provide expert testimony to prove that he has, indeed, suffered damages. In light of these conflicting factual interpretations, the court finds that there is a genuine issue of material fact on the damages issue. Therefore, the court will also deny defend ants' motion on this point.

B. The Q ualified Immunity Issue Henry is not entitled to qualified immunity. Although state officials may b e sued in federal court, their liability may be limited by the doctrine of qualified

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persuaded by Ha uge v. Bra ndy wine School D istrict, 131 F.Supp.2d 573 (D.Del 2001). In that case, the court held that the right to be free from retaliation was not clearly established because due to the "fact-intensive nature of the Pickering balancing test," the officials were not on notice that their conduct violated the F irst Amendmen t. Id. at 584. The court will not follow Hauge for two reaso ns. First, the c ourt is persuaded by the plaintiff's contention that Hauge, although it may have been correctly decided on the record before that court, is unique. Although the Hauge court granted qualified immunity based on the fact-intensive balancing required by the Pickering test, neither the plaintiff nor the defendants have presented any authority to permit this court to conclude that the Pickering balancing test must always lead to a denial of qualified immunity. FN3 If the court were to accept the defenda nts' position, qualified immunity could never be denied in First Amend ment retaliation cases. This is an extreme result, one the Hauge court probably did not intend and one that this court will not sanction.

exact congruence between the precedential facts and the facts of the present case is misplaced. First, Saucier involves a com pletely different context-excessive force under the Fourth Amendment. More impo rtant, Saucier does not require that the facts of each case be identical. The court therefore rejects the defendants' argument on this issue. Finally, the defendants contend that the plaintiff's right was not clearly established because under the new bidding process, his contract was not certain to be renewed. As Springer notes, however, independent contractors are entitled to First Amendment protection where there is a preexisting contra ctual relationship. See Um behr, 518 U.S. at 685 (noting that holding establishing right to First Amendment speech was limited to independent contractors with "preexisting commercial relationship" with government). Springer had been under contract with the DPC since 1991. Thus, it is clear that he had a pre-existing commercial relationship. The court therefore rejects the defend ants' argument on this issue. For these reasons, the court finds tha t Ms. Henry is not entitled to qualified immunity.

FN3. Indeed, the Hauge court itself cites no authority for this novel proposition. Second, this case is factually distinguishable from Hauge. Hague involved a school district administrator who brought allegations of fraud against the school district. See id. at 577-578. T his case involves a physician who spoke on the various problems confronting hosp ital adm inistration. Under facts very similar to those in this case, courts have found that the right to speak was clearly established. See Sc hneiner, 152 F.Supp.2d at 493 ("There is no doubt that the plaintiff [physician's] rights under both the First Amendm ent and the Fourteenth Amendment [to comment on health care at the ho spital] were clearly established at the time the plaintiff was disciplined."). Thus, considering the facts before this court, this court also finds that Springer's right was clearly established at the time he spo ke. FN4

V. CONCLUSION For all of the foregoing reasons, the court concludes that Springer's speech was protected. Nev ertheless, a jury must decide whether his protected speech motivated his termina tion, whe ther he would have been terminated in the absence of the speech, and whether he suffered dam ages. F inally, He nry is not entitled to qualified immunity. Thus, the co urt will deny the defendants' motion for summary judgment and grant Springer's mo tion for p artial sum mary judgm ent. *8 NO W , THE REFO RE, IT IS HEREBY ORDERED that: 1. The Defendants' Motion for Summary Judgment (D.I.35) is DENIED; 2. The P laintiff's Motion for Partial Summary Judgment (D.I.38) is GRANTED.

FN4. The court finds that the defendants' reliance on Saucier v. Katz, 121 S.Ct. 2151 (2001) for the prop osition that there must be

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D.Del.,2002. Springer v. Henry Not Reported in F.Supp.2d, 20 02 W L 389 136 (D.D el.) Briefs and O ther Related D ocuments (Back to top) · 1:00CV00885 (Docket) (Oct. 06, 2000) END OF DOCUMENT

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on January 17, 2006, I electronically filed this Pleading with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.