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EXHIBIT 1
Case 1:04-cv-01211-MPT
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
LIEUTENANT HENRY V. TOBIN III, : Plaintiff,
V. THOMAS P. GORDON, individually; CHRISTOPHER A. COONS, in his official capacity as County Executive; SHERRY L. FREEBERY, individually; DAVID L. SINGLETON, in his official capacity as Chief Administrative Officer; COLONEL JOHN L. CUNNINGHAM, C.A. No. 04-1211 I"
RETfRED, individually;
COLONEL DAVID F. MCALLISTER, : individually and in his official capacity; . and NEW CASTLE COUNTY, a maticipal corporation, Defendants.
TO NEW CASTLE COUNT WHO BY OPE 1^
D THE OFFICIAL CAPACITY DEFENDANTS, F FED.R.CIV.P. 25(d)(1) NOW INCLUDE CHRISTOP .' W^OONS, COUNTY EXECUTIVE, AND DAVID L. S,,IN Eq 1CHIEF ADMINISTRATIVE OFFICER
n
PLAINTIFF'S ^MMENT PROPOSAL
IP.__ti
40-
-^
uiq VE
I
W N,
.
"Mill
THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER , ESQ. (#243) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected]
Dated: April 26, 2005
Attorney for Plaintiff
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2. Violation of Work Rules: Testing Commenced Before Application Period Ended .................................14 3. Intervening Pattern of Antagonism ..................................................................14 4. Gordon and Freebery Controlled the Police Department and Had a Motive to Retaliate ................................................................................14 5.
Y.
The Totality of the Circumstances ............................! ............. .15 ' ;Y .
y^
/^/y
^1^'ri P.CRl.C W^'1 (^ ^I1^t Ra ^ Team fn F+rn`[TA
Ro
f
G4
Gw
u
tics
^^'°^
J. Injuries and Relief ................................................. 1. Economic Damages .... ........................ a. Wage and Pension Losses. µ
^^zT
:c "
.16
.°4'.........w'
^I
......................................17 ......................................17 1S
2. Emotional Distress and Psych ' .: c Qaffl: es ^^ 3. Injury to Reputation 4. Humiliation ............. .k
On',
...AF ..........................................................1 S
L5.S,-
..........................................
1:1
..................·............
19
5. Instatement .... K. Defendants ' Attorneys E 1. Young .
..
...: wF ti.
.........................................................................1 9
.......................................................................................19 & Taylor, LLP ............................ .............................20
2. Ob^J E ^L F^L
& Rhodunda, P.A ...................
,20
3. Cy les E .,,p utler, Esquire ................................................................................21 ,,. ^u !^Jp P;Ix 4. The:Known Total for Defendants' b l'a, Attceys Fees is $986,407.13 and Counting ... ............................................... 21 1P L. Plaintiff's Attorneys ' Fees and Expenses ...................................................................21
ii
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5. Plaintiff's Superior Qualifications ...................................................................39 6. Intervening Pattern of Antagonism ..................................................................40 7. The Big Picture .............................. --.............................................................. 41 C. Same Decision Absent Protected Conduct ..................................................................43 II. DEFENDANTS ALSO VIOLATED PLAINTIFF'S FIRST AME MENT RIGHTS TO BE FREE OF RETALIATION FOR PETITIONING; ' THE GOVERNMENT FOR REDRESS OF GRIEVANCES..n ^,.....:J A. Basic Principles ....................................... ........ :ft
44
...... L ....... b........................44
B. The Broad Scope of Activities Which Ar^fR^.tected :1P ................. C. The Specific Legal Analysis ........... ..... D. The Facts Prove the Petition Clause Was
r
^..........:^ ......... .............................46
v + to ' ........................ ........................ -.47
Y
L'M'T TO.
III.
THE FIRST AMENDMENT IS TRIGIR BEAUSE THE ADVERSE ACTIONS THAT WERE^TA ' T A' AINST PLAINTIFF WERE SUFFICIENT TO DETERAPPE101,40F ORDINARY FIRMNESS FROM EXERCISING HIS PROTECTEr ;",FIRST AMENDMENT RIGHTS ..............................4& R NO DEFENSE OF QUALI
IV.
IM`UNITY WILL BE AVAILABLE BECAUSE IT D"1W
LIB D FOR AT LEAST FORTY YEARS THAT A
HAS BEEN CLEARLY ] PUBLIC EMPLOYER, , FOR EXERCISING 111%:,S
d 4T "G I:e
+0T RETALIATE AGAINST A PUBLIC EMPLOYEE SMAMENDMENT RIGHTS .............................................52
h
A. Prong One is S
sfied"::. ` ::..........................................................................................53
0u
B. Prong Teo is Safted ................................................................................................53
x^
;vFre^ ......................................................................................................55
s h1l q22-P
V,t o Al CI ause .................................................................................................5 6
uu
V.
FOUR SEPARATE TYPES OF COMPENSATORY DAMAGES ARE
AVAILABLE FOR THE CONSTITUTIONAL TORTS OF THIS CASE .......................57
iv
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INTRODUCTION This confidential settlement package is subject to the normal protections of Federal and Delaware Rule of Evidence 408. Nothing contained herein shall be deemed to be an admission against plaintiff's interest. This package is sent in the course of compromise and settlement discussions. This settlement package is directed only to defendant New Cam newly added official capacity defendants , who are Christopher A.
,,.
oun a the two ln
E.
p
id David L. Singleton.
It is not being offered to individual defendants Thomas Sheriff Freebery, retired V ` u, } P." Colonel John L. Cunningham, and Colonel David F. MeA . er. It i^not directed to these
: 01.,5.03 git
defendants in their individual capacities because d91^eriN " is Gareon and Freebery have publically stated in numerous published newspaper artiel '^ ha iey ant to have their day in court.'
p.6
Alp
Accordingly, plaintiff is more than happy o T
Y6:6
^- fl U6
;t^ /141 1 11. i y .^
and looks forward to the trial that will
be held once the federal criminal rack teerit5': . ra Redings against Gordon and Freebery are F,,= concluded and also to the crushi F"p gfive damages that the j ury will award to punish these individuals for their malicious * rEiitory misconduct. 49
6161t^duua y ;SfO`n p^-^llw9 1 6
THEM ,`^ '°OF THE PENDING COURT CASE Plaintiff wa :,,T6ked7 st pia the promotion list. He now seeks compensatory and punitive I
damages and j i t t i i
M.
f because he was denied promotion to captain three times because he
testified befo`%
^', ^ ^rO
grad jury and also refused to cover up a crime by CAO Freebery's son.
1 k^
Plaintiff exercised his First Amendment rights to report breach of the public trust,
See e. g_, Brandywine Community News, 117/05, at p. 2; Greenville Community News, 1/11105, at p.G.
1
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.
2. Defendants. Gordon was County Executive, and is sued in his individual capacity.
(Compl. ¶ 4). Freebery was the Colonel and later the CAO and is sued in her individual capacity. (Compl. ¶ 5). Cunningham was the Colonel and is sued in his individual capacity. (Cornpl. b).
McAllister is the Colonel and is sued in both his individual and official capacities. (Compl.( 7). Defendant New Castle County is a municipal corporation under the laws of the State:. gUq.lk of Delaware. (Compl. ¶ 8). B. Gordon's Control of the Police Department. On Mr4 ti Gt, 04, Gordon and
Freebery were indicted by a federal grand jury for public co GA on, rac Leering and fraud. Various criminal schemes are outlined over the course of'f[ X47 pa;Wdocument. For example, pages 12-13 of the indictment explain how Freebe y^ aordon used County police officers to campaign on County time for candidate Patti P Gordon and Freebery make all peg
5
Pik fS fs Lu M5" H^
motion decisions for the NCC Police ierwise exercise total control of the day to day additionally have a policy, practice and custom of
Department, and also when they dem^,f it 41W L A;
V
operations of the Department. 'Fr ^y acid N , retaliating against their politicp^ af
4u"ONuui^La Iiiie:Euf^^SVM^'^'...
N `^
ts within the Police Department and against Lodge 5
officers who will not accec `
Aa;y9
t e1r emands for mistreatment of police officers. (Compl. 19).
^a
For example f heir c' U T T rn December 16,t1, third degree, `iviolati
of the Police Department is illustrated by the fact that on am plead guilty in Superior Court to the crime of conspiracy in the
of Title 11 § 511 of the Delaware Code. Therein he admitted that
during August 2002, he agreed with Freebery that one or both of them would engage in the crime of official misconduct in violation of 11 Delaware Code § 1211(2). To that end and out of fear of the personal consequences he would suffer at the hands of Freebery, he pressured subordinate
3
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(Compl. ¶ 13). To accomplish these ends, in the 1996 general election Gordon sought to be elected as County Executive so he could control the operations of County government and the executive branch of govermrent. In November of 1996, Freebery was the Colonel of the Police Department. (Compl. ^ 14). As stated in a May 26, 2004 criminal indict .nt filed by the United States against Gordon and Freebery for engaging in an election racketow November 1, 1996, Freebery directed and caused J.H., a subordi classified employee, to order County Police officers who we.
(1I:,
jE
aflh-
^y Police officer and -I
P
ssified^ployees under J.H.'s
h supervision to report to the headquarters of the Gordon C,Alfi k,gign, c^"^ ing working hours, to ^ 1r make telephone calls for political candidates, therey forgo executing a search warrant they were int ,m
^m':^^^svSm
ing suc County police officers to o ex=ecute at that time . Com 1. 15
(citing Indictment ¶ 13.A.)). From February 1996 to Augus'
a^34.
"Ordon and Freebery diverted and used County
F
resources for their personal bene including computers and restri'i" ,
an&caus
W
County employees to use County property,
ci}uter databases, photocopiers, paper, and buildings to
prepare campaign literatur Y; rea e'µa d maintain campaign contribution and voter databases, and NM^ Z W, perform other related ` campaa or political services (Indictment's 14), such as the following:
a^E, r'.Eld
i. ^
November 1996, using a County Police computer to create and ainta records of financial contributions (¶ 14. A.);
Using a County Police computer to prepare political literature during working hours for the Gordon Campaign and also for Thomas Sharp, an incumbent and powerful State Senator from New Castle County (¶ 14. B.);
5
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reporting it through the chain of command of the Police Department. (Compl. ¶ 19). On December 11, 2002, as required by law, plaintiff appeared before the federal grand jury and testified truthfully when questioned by the U.S. Attorney's Office about defendants' unlawful conduct. The defendants were angry and displeased that he had done so. (Compl. 120). 3. Follow up Phone Conversation with the FBI. On Febr ary 3, 2003, the lead FBI agent in the federal investigation telephoned plaintiff, and he gav:h,MI'"atpplemental oral statement containing additional information and clarificatiorf
F. ieL A 6^ k f·&i4^_
is
AgN
nd jury testimony.
(Compl. ¶ 21-22).
ti4^y' 'F'W
Through his oral and/or recorded statements at the^y`§ret mce ing, in his grand jury testimony, and in the FBI phone call, plaintiff exercisM1 1h p f,F,i
1HT ew;v t' i ^;
Fxrst Amendment right to speak out
on matters of public concern and to petition go M0 t fQT a redress of grievances . (Compl.' ^n. Nib 24). Plaintiff sought to bring to light ach'0 0or pi1 by Gordon and Freebery, and to have,; 44!, 'wrongdoing or breach of the public trust n; exposed to the light of day and corrected by
E. The Content of PIS l
^,qp
w,rotected Speech And Petition.
1. Illegal "MR0 On- uty Police Officers in the 1996 Campaign. At the
! = °h I
secret meeting, in hi' grand 1y testimony, and in the FBI phone call, plaintiff told the federal authorities tha,,y d Ak gaged in election and campaign irregularities by illegally using onpolice officers for political campaigning in 1996. (Compl. T 27). For
^`.^. duty N ew CasgCoug., g,,
example, Freeberry shut down the Police Department's Detective Division for an entire workday and forced a majority of all County detectives to participate in a literature drop for Tom Sharp. (Compl. % 28-29). Defendants also made plaintiff solicit twenty five "volunteers" from on duty
7
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determine whether the driver had been drinking. (Compl. TJ 42-44). Accordingly, the officers responded to Freebery's residence on Ramunno Circle and found tire tracks across her next-door neighbor's front lawn that led toward Freebery's garage door where the vehicle was locked inside. (Compl. T 45). Outside the garage in the driveway a County vehicle with a warm hood was parked. Its driver had obviously just. arrived and rushed inside the home. (Compl. T 46). The officers knocked on Freebery's,dopr but ii Y& would answer. (Compl . ¶ 47). They then telephoned Freebery' s resider .r even thou the hood was warm on the County vehicle par ,.a``: the driveway. (Compl. ti
.11-
48 ) .
All the lights were turned off, and there was no sign of ary0q. (Co pl. T 49). No one answered the door or the phone. (Comps. ^ 50). There was np s x justify a forced entry into the residence. (Co cN warrant or exigent circumstances to T tk
Minnquedale Police Station to properly p
broken auto tail light lens which could-.;,], which the police did not have acts.
h
of p1 1 52). The accident debris and physical evidence
was secured in evidence in ac^wllepartmental procedures . (Compl. ¶ 53). Cunningham learn'inal investigation, and he then ordered plaintiff via a
,. gm ! Captain just to clearif e sce of the accident and to do nothing further. (Compl. T 54). Ili
LL Approximatelr gRi;er the officers had left her home, and after it was too late to m ti^f administer a r^^able s# iety test on the driver of the vehicle, Freebery telephoned the
I ^E^^ IIU
Lieutenant's office from her residence and spoke to plaintiff. (Compl. t 55). She falsely claimed that she had been asleep the whole time and when she awoke she found a message on her answering machine. (Compl. T 56). Doing his duty, plaintiff then demanded to speak with her
9
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voters and the public at large. (Compl. ¶ 66). Nothing plaintiff said interfered with the regular operations of the Police Department. His speech did not interfere with the Department's interests in: crime fighting; fostering trust and confidence among officers; protecting the safety of officers or other members of the community. (Compl. ^ 70). Plaintiff's speech did not threaten the authority of the Colonel to run the Department. Nothing plaintiff said daz^ged his relationship -v.t::::: with any superior officer. Plaintiff did not impugn the integrity of hi' iscr`;{ (Compl. 71). Plaintiffs speech did not have a detrimental impact on any dW w Zing relationship for which personal loyalty, trust, and confidence are necessary. defendants. Organizationally, plaintiff is several ranks b6rlai chain of command. (Compl.172).
U, _
A iff isY
'4pm°^1iS:
the alter ego of
A t'ha inM rhial di .frntiantc i n thi-.
vn:m
Y:L':Y!Yt'ltW.::kl^:? 4"'IG?i14^:RuF::3!
Any disruption that was caused was no caused by the very problems that plaintiff
ANT" conduct. (Comt)l. ¶ 73). In his positi U as
; `'by o intiff's speech but was instead
AT
R R
Wig TIT.'
^l
fact intended to address - illegal
ant, plaintiff did not make or formulate Opolicy is left up to others. (Compl. T 74).
The individual defend described above, and it ang
ten; nlm:..
.
Fare of plaintiffs protected speech and petition, `Md itagonized them . (Compl. ak
a `kc
1 75).
G. Defend ts' Adrse Actions and Long Course of Retaliatory Conduct Against Plaintiff. Den; fbf" kW- PPromotions and Mid-Year Salary Increase. On March 3, 2003, the I''l 4, County anno _ced tha;pit was taking applications for two Police Captain positions. (Compl. ¶ 76). Plaintiff timely applied. (Compl. TT 77-78). The application process consisted of an oral board interview examination before three board members. (Compl. ¶ 79). Under County work rules, the board makes a recommendation to the Colonel based on its interviews of the
11
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Just four days later, on March 23, 2004, defendants posted one of the two vacant Captain positions and declared that applications could be made for promotion. (Compl. ¶ 111). After plaintiff re-tested on April 29, 2004, defendants lowered plaintiff's ranking to fourth and failed to promote him to the vacant Captain position. (Compl. ¶ 112). Instead, on or about May 24, 2004, defendants promoted Elsner Setting to Captain , a clearly unqualified persq ,to be a Captain. (Compl. 1113). Setting previously was ranked last among the twelvdida fc)r promotion p
on the list for the May 2003 promotion, but in 2004, sus iciousl
¶ 114). H. Circumstantial Evidence of Retaliatory Mori
wa
nked first. (Compl.
1. Promotion Factors Usually Cosi'+ed ere Ignored. a. Plaintiffs #1 Rankidv.one;ire Aral Board . The County historically c ncfr
.:l; DWI' Y
has promoted candidates in the order in w0 1 rammed under the oral board testing. (Compl. b ¶ 95). Previously on September 24, 242 , L^kw andidates who were ranked first by the oral , board for promotions to Lieuten , ' an %SergN^nt respectively received those promotions. ^; T 95). In fact, from 1%k jAW 24, 2004, all candidates for promotion to Sergeant, (Compl. Lieutenant, Captain, or otsupe rvory roles within the Police Department, who tested and e:
OMEN.
were ranked first foE-P proin on, were promoted except for plaintiff. (Compl. 97).
' "4t 'lie Successful Candidates Were Ranked Third and Sixth. In
W1. contrast, the lard hadhnly ranked Quinton Watson third overall for promotion to Captain, and McLaren was only sixth. (Compl. ^ 98). One of the requirements of promotion also was completion of some college courses in police science, business, administration, management, finance, or related field. (Compl. T 99). Plaintiff has a Master's degree in Human Resources
13
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speech and petition, defendants retaliated against him in numerous ways: · · Plaintiff was denied promotion to Captain three times; Plaintiff was involuntarily transferred first from the Minnquedaie Station to a less desirable position at the Southern Patrol Unit's Headquarters in Middletown, Delaware, a career experience which plaintiff already had squired in his two 'AR prior assignments there and then from Middletown back Patrol, Squad B;
Plainkiff'c inli r cnnncihilitiPC we-re nitPred h ^i15P, he no"%nger serves as the
M uedale in
Executive Officer to the Patrol Captain; aricMi · Plaintiff, in effect, was demoted becaul officers in Middletown compar commanded as Executive ;T'6" Kltta:. th
116), and he now comr^pd' .
N
commanded approximately 25
apppximately 200 officers he often Patrol Captain at Minnquedale (Compl.
^ offers as a member of Patrol, Squad B.
. Witnesses Who Will ' Used to Wove Plaintiffs Case. The following fact witnesses will be used to affiri ,ve^rove plaintiff's case: Subjects of Discoverable Information Complaint IN 1-147. Complaint ¶ 1-147. Complaint ¶ 95-102, 104-106,
:::. Rb Witness Name, Addx es ^ Wd Telephone Number Lynda Maloney LIF (Irv Maria Rendin 'Patricia Lut;Dilennot Manager Human Resources
108-115. Sally Goldsborough,
Executive Assistant to I~reebery, then Gordon Captain Debra Rees Complaints 76-94.
Complaint ¶¶ 33-64.
Sergeant Kathy Riddell
15
Complaint
16, 54, 62.
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1. Economic Damages. Plaintiff has suffered substantial economic losses as great as $574,000. Presently he is 50 years old. He will reach the mandatory retirement age of 55 on October 25, 2009. a. Wage and Pension Losses. Dr. David E. Black, plaintiff's forensic economist already has analyzed plaintiff's earnings and pension losses. Iij.4wreport is attached as Tab A. As a result of being denied promotion to Captain on May 12, Q^,Q Lt., in's after-tax
lost earnings and pension total $274,026 . His pension loss is $154168. Ns past and future 41, Nal earnings and other benefits loss is $100 ,747. This totals $2^$,,% With'h 25% effective tax rate for wages and the 28% effective tax rate for pension, econffi^j lose;must be multiplied by
d.
la.
Mu.
1.06, producing $274,026 in damages. See Tab A As a result of being denied promotion to salary increase of two pay grades on July pension total $330,947. His pension l benefits loss is $121,480. This t 28% effective tax rate for pen9ft eN ' $330,947 in damages. SeeNElab A a '
tee. ^4" !i.1 - a. ^;wir 1u
^1tIR e nr
DR
=li 9A^ . §7. His past and future earnings and other 1,41:x,.. With a 25% effective tax rate for wages and a mic losses must be multiplied by 1.06, producing
b As a result oeing died promotion to Captain on May 12, 2003, and subsequent promotion to 011^4, 2004, Lt. Tobin' s after-tax lost earnings and pension total L ,.
13
$361,265. H%;pensioloss is $209,687. His past and future earnings and other benefits loss is ^'.I?'lei $129,972. This totals $339,659. Assuming a 25% effective tax rate for wages and a 28% effective tax rate for pension, economic losses must be multiplied by 1.07, producing $361,265 in damages. See Tab A at 2.
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which would justify defendants' failure to promote him. (Compl. ^ 122). He also has been isolated from society. McAllister has confronted Tobin's co-workers, including but not limited to Staff Sergeant Gary Worthy and New Castle County Paramedics Deputy Chief Larry Tan, to discourage them from associating with Lt. Tobin. In fact, Lt. Tobin may never know the full extent of his lost opportunities to relate and assote with others because he can be avoided without knowing the reason and without h#^§,La c1 the reason for the retaliatory action taken against him . (Compl.'fa 4. Humiliation . Lt. Tobin also has sufferedo ' liatiori:'Many of his old friends ^` i to explain
and co-workers began to treat him as outcasts. Persons wNkused to lye friendly with him, i
j l 'j! tu
including but not limited to Lt. Colonel McLaren wuo1^top In the hall, turn briefly into an office and then immediately leave the office, ate,,wal9ba^ down the hall in the opposite direction to avoid interacting with him . 10 yam ? ^ 'o U. Tobin seeks only monetary compensation
^r 11
5. Instatement. To stele .tliL ,pa ;I
for the aforementioned injuries.gaN Ong the promotions he has been denied, he simply will expect fair treatment in the fui administration. However trial motion followi# a fav an6;^trong no retaliation agreement from the new
""'e * case cannot be settled, he will seek injunctive relief in a postble'ury verdict and seek to displace incumbent superior officers in
9,
order to gain h ht 'alp iotion. They obviously have unclean hands.
K. DROndan ^^ Attorneys' Fees. The attorneys' fees expended so far by defendants in this case and my other three County police officer cases against Freebery and some combination
19
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firm so far in this case is $3,770.00 as of February 24, 2005. 3. Charles E. Butler, Esquire. Mr. Butler is an attorney for Defendants Sherry L. Freebery and Thomas P. Gordon. He also represents them in the Riddell case. The amount of taxpayer money paid to him and his firm so far in Lt. Tobin's case is unknown. 4. The Known Total for Defendants ' Attorneys Fees is4 86,007.13 and 11 f, q6, ices Counting. As of February 24, 2005, the County has paid over $980,qq. F i;a a ryN 2 rvin
RM.
INdefense of this case and three of my other County employment ca., an Answer, the County has spent over $25,000 of taxpayer
dn, ,
alone prior to filing
y just two of the three law I to pa
"-
firms representing defendants in this case. It is unknown M been spent to pay the third law firm involved, but , L. Plaintiffs Attorneys' Fees and EAles
_, pyla
Si:p.^11
much more taxpayer money has
c3EbE sure it did not work for free. =R".
:^^...;
KLV
Firm, P.A., which consists of Thomas S. a,^SterNeuberger and is also represented by Law Office of John M. LaRosa which g sly Hof. , hn M. LaRosa. To date, these two fines have spent approximately $25,00 time and $5,200 for expenses in prosecuting this
41- : case. Time to settle the case i9%4ni Nat $4,000. This all totals $34,200.
^f^l u;l. i Z ^^N:'°'Y. ' rr fly .{i^A:....n ^. ,aiinH?fl"nJ'li1
01
'h'^il3Fl^v..
21
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court. First, if the speech is to be protected from retaliation, the court must determine that it addressed a matter of "public concern." Second, the court must balance the relevant interests to determine if the government's interests as an employer in promoting the effective and efficient fulfillment of its public responsibilities outweighs the public employee's interest as a citizen in speaking out on matters of public concern and the value to the comnaunity,,^trlarge of being free
A:.',
to hear such speech. Azzaro v. County of Alle gheny, 110 F.3d 968, ^^I . 1. Matter of Public Concern . Unfortunately for r °v
^P»eEf
EC1i
4L'sh
k5^h3
97)(en bane).
en&@s, "[n] o suggestion
can be found in the Constitution that the freedom there guar ift, for speech and the press bears
" an inverse ratio to the timeliness and importance of the ide,§ff'-eekin m:l:
pression." Bridges y.
State of Cal., 314 U.S. 252, 269 (1941). "[S]peec46 .pa ing public affairs is more than selfexpression, it is the essence of self government ]Hal 'er u City of Allentown, 987 F.2d 1$$, 195 ugi.N.c
4-1 anamad -1-1-11,
ighest run of the hierarchy of First (3d Cir. 1993). "[S]peech on public issue^^^iccl!gsl :e TR kN" tion." Connick v. Myers, 461 U.S. 138, 145 Amendment values,' and is entitled taipec ...
(1983)(quoting NAACP v. Clairb.05" i HArdwa e Co., 458 U.S. 886, 913 (1982) and Carey y.
Aq,111
Brawn, 477 U.S. 455, 467 (1
ft employee' s speech addresses a matter of public concern
when it can be fairly consiti1as"'r6lbiting to any matter of political , social, or other concern to
s'
IlErc:^$ 5 SAlI.51y;
"a..=
the community." Prriy. Donxcci, 81 F.3d 1283, 1288 (3d Cir. 1996). This is determined by
y
it^
reference to tl , ,, 04l of
and context of a given statement, as revealed by the whole
record." Conk. 461 7.5. at 147-48. .^ , joIn San i i v. Pittsbur Bd. of Pub. Ed., 968 F.2d 393 (3d Cir. 1992), the court
surveyed the law and identified a number of broad categories of cases found to be of public
23
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a. Our " Content" Is Criminal Wrongdoing. "The content of the speech may help to characterize it as relating to a matter of social or political concer-1 of the community if ... the speaker seeks to `bring to light actual or potential wrongdoing or breach of public trust' on the part of government officials," Holder, 987 F.2d at 195 (quoting Connick, 461 U.S.
at 148)(emphasis added).
In Baldassare y. State ofN.J., an investigator in a New Jersey!
,gyp..
was fired for his role in an internal investigation of law enforcem_offirs which ultimately resulted in the suspension of two officers for wrongdoing. I# Third Cii uit found that Baldassare ' s conduct and expression during the course of
MPT
stigati6h was on "a matter of
public concern because it attempted to expose spequic` ,wpngs and abuses within the county
inp ^i'=r ^,r
government." Baldassare, 250 F.3d at 196 (intal pnctgation omitted)(emphasis added). The Circuit pointed out that his inky ar wrongdoing or breach of the public trl were of the utmost public conce . > >td. 4 -,. corruption, fraud and illegalit ught to bring to light actual or potential
`cers he investigated" and such allegations 19'1vinternal punctuation omitted). "Disclosing
a' 6 ernment agency is a matter of significant public r
concern." Id. at 196 (quota ^-a-1 ffMn, 43 F.3d at 829)(emphasis added). Our "jurisprudence H- r
d^l ' 1 I! 'Fk
makes clear that an^iternalesigation into alleged criminal actions of public employees falls squarely withia'd corrupt pract co i a^ l is speech delineated in Gonnick. 1d. at 196-97. [A]llegations of
by g&ernment officials are of the utmost public concern ." Id. at 197
Ed. v. Doyle, 429 U.S. 274 (1977)(public school teacher who criticized school district policy protected); Azzaro v. County of Alle eny, 110 F.3d 968 (3d Cir. 1997)(en banc)(public employee who reported sexual harassment by a superior protected). 25
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This is not a typical case among private litigants. It involves serious allegations of public corruption. It may be stating the obvious, but it bears emphasis that "the public has a substantial interest in the integrity or lack of integrity of those who serve them in public office." Id. at *4 (quoting U.S. v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985)(emphasis added)). Continuing, the district court found that "[t]he public's substantial interes unearthing
''Eie?s,,cs a
governmental improprieties requires courts to foster legitimate whistling:(quoting Feldman, 43 F.3d at 830).
li.P
Plaintiff's speech exposed defendants' felonious cri
conduce and he was a key
player in the investigation that led to the federal criminal cfiges agg'^hst defendants Gordon and .:.z, Freebery for public corruption , racketeering and fr70, ! ` ;..s the district court has already found in
EYY^`bhht ^
the criminal case against defendants that arose
t o plaint ff' s speech,
A
This is a matter of exceptio1 p?c ctsequence in this District, involving allegations botk ;cif corrupion in the day-to-day operations at the upperphel3%rofcivernment in the State' s largest moM es foundational to that County and in the eWttio AliF ` ac,, : government' s leggy
1' U.S. v. Gordon, 334 F.Supp.12
aka
-,>
&(D.Del . 2004)(emphasis added).
F!`Y7` yy i4f' I L:u'^L 43['_ 4'lL!^A'M,
b. Q%yi ani' +^ontext. "The form and context of [ speech may help to "I characterize it as ruing to natter of social or political concern to the community if... the
tH
V
p,
P $R
forum where t^,"peecty takes place is not confined merely to the public office where the ' speaker is erxt gyed.IJ older, 987 F.2d at 195. Here, Plaintiff did not speak out internally to
*VilFyi^:i^
Gordon, Freebery, Cunningham, or McAllister. Instead, he went outside the public office of the County Government and spoke to the U.S. Attorney, the FBI, the IRS, as well as the federal grand jury.
27
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(subpoenaed testimony)). "[P]ublic policy ... requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible ." Briscoe v. LaHue , 460 U.S. 325, 333 (1983). "The function of witnesses is fundamental to the administration of justice " and "[e]very consideration of public policy requires that they should be as fearless in testifying as thqrj , dge and jury are
p1: , AS-
: independent in weighing his testimony." Williams v. Hepting, 844 F.2 '0--, ;A,38 u.1^' f d Cir. 1988) :U11vu (quoting Brewer v. Horowitz, 535 F.2d 830, 837 (3d Cir. 1976))als'' N onell v. Henry, 219 " °ar ^W. ,L and unr ibited testimony, the F.3d 1197, 1204 (10th Cir. 2000)("In order to encourage travt,;, . law has long afforded certain protections to witnesses").
ME .
conteki of a [grand jury]
N ^::
w E fir'
appearance raises speech to a level of public conce, rr ess of its content.» Green, 105 F.3 d T^ at 887 (citing Pro, 81 F.3d at 1291). The First.e^One,,provides protection even when the
"M M-Ei
content of the sworn testimony is "`purelyv Arp
bruse the form and context of [the] speech
(p ' ^
[is] of public concern, i.e. an appeara ,... .,to
.a. MLA f^or ti :l.
l
-`v . , Sworn testimony before an adjudicatory
body." Id. at 886 .
;vP
{d _
In Piro, the Third Circu't f^u;Mt at "the public employee' s interest in responding to a subpoena and the judicial tl resfIR "having state employees respond to subpoenas without fear of o employer reprisal" J^a if ed F-., holding that sub p oenaed testimony is p rotected . Pro, 81 F.3d at
1291. Similarl [t]kt 9,4P^if grand jury proceedings, of criminal trials, and of civil trials is to
resolve a dispw by g'^ xering the facts and arriving at the truth, a goal sufficiently important to N,^ . ,:
render testimony given in these contexts as speech `of public concern."' Johnston v. Harris
County Flood Control Dist., 869 F.2d 1565, 1291 (5th Cir. 1989)(quoted in Green, 105 F.3d at
887). The Third Circuit has justified such holdings because of "[t]he utility of uninhibited
29
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campaign for defendant Gordon for County Executive. (Compl. ^ 30). Plaintiff also was the Shift Commander of Patrol Squad E on duty the night of the November 30, 2001 hit-and-run accident on Yorklyn Road which was covered up by Freebery. (Compl. ^T 35-36). Plaintiff was ordered by Defendant Cunningham via a Captain to clear the scene of the accident and to do nothing further . (Compl. ^ 54). iv. Motive. Another factor to be consul" -IJ s tl^eaker's I^.j r
?'^.^4. :ra4^:^i?l:ro icl.
t1'nt,
ac motivation. Brennan v . Norton, 350 F.3d 399,413 (3d Cir. 2003g,,,- co ^ ^^;^Crersarge y. Township ,1
,::: f
^2 . 1 'I "
of Clinton N.J., 984 F.2d 1359, 1364 (3d Cir. 1993 ). Speecy: employee speaks out as part of the meritorious performancl
A;;e,md:
s not to its protection if the
his job' duties. See Feldman v. Balelassare, 250 F.3d at 197. But
Philadelphia Hous. Auth., 43 F.3d 823, 830 (3d C
even when " an employee' s statement is an out " ',,n w ' of his,personal dispute[, this ] does not ET"T prevent some aspect of it from touching u., o M Univ. of Com. Sys. of Hi er Ed. 77;:: 2c'`` 4 omitted). Indeed r 97, ` ^`
rs'
public concern." Johnson v. Lincoln
-1 3d Cir. 1985 internal punctuation
s hat public emptoYees no less than other SHR Common gns s. e more likely to speak out when they are employees pw pally dissatisfied with some aspect of his dis ent o employer. Nevertheless , the harm that results from emp silge .. _ or milling public speech is neither negated nor mitigated ," afrierely,bRause the speaker may have harbored motivations that iwere lei than altruistic.
d"'gfL`R:^ 7 1
Brennan, 350 F.3d at 413. Thus, even improper "motivations will rarely, by themselves , justify silencing speech that otherwise addresses matters concerning the public." Brennan, 350 F.3d at 413.
31
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employer in promoting the effective and efficient fulfillment of its public responsibilities against the public employee's interest as a citizen in speaking out on matters of public concern and the value to the community at large of being free to hear such speech. Azzaro, 114 F.3d at 980; Pickering, 391 U.S. at 568; Connick, 461 U.S. at 150. If the government interest in the effective and efficient provision of services outweighs the value of speech itself, it ";Jll be held to be unprotected. Azzaro, 110 F.3d at 980. The burden of proof is on the "substantial showing." Waters v. Churchill, 511 U.S. 611, 674 (11. n Watters v. City of Phila., 55 F.3d at 816. Importantly, "[v]igilance is necessary to ensure thift%blic erhployers do not use authority over employees to silence discourse, not because it.ha"TLrs pu Tic functions but simply because ANP
b4R,
M;
-
4)( O "ality opinion); accord
superiors disagree with the content of employe 384 (1987).
s
&EIR in v. McPherson, 483 U.S. 378,
dll.
»
a. DisruptionWaM^re vant in the balancing are "the extent to which
^^{
ss
.Y:C^i
OF " the employee's speech activity d1 l' t A e yr eking of the office, the extent to which the
AW
1
1, .a:_4htY
N{ ^^Yv^j^
employee threatens the authon^^;eraployer to run the office, and the extent to which the 41 employee uses the speech Nvxty to resolve an essentially private grievance." Holder, 987 F.2d at 195. In evaluating the disl e rd 61` 1eO"^ l 16ternent impairs discipline by superiors or harmony Ii N among §-workers, has a detrimental impact on close working " `"M elatior ips for which personal loyalty and confidence are ^ -sary or impedes the performance of the speaker ' s duties or , interferes with the regular operation of the enterprise. Wafters, 55 F.3d at $97 (citing Rankin, 483 U.S. at 388). Importantly, there is a presumption in favor of free speech and mere disruption is
4t,
n,
33
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County and in the election processes foundational to that government's legitimacy ." U.S. v. Gordon, 334 F.Supp.2d at 597. ii. Polieymakers. Another consideration is the policymaking status of the public employee. Muti v. Schmidt, 96 Fed.Appx. 69, 73 (3d Cir.2004). Here, plaintiff, in his position as a lieutenant, was not a policymaker as he did nc^make or formulate ^'A'. r_. County Policy . (Compl . at 'I 74) . the disruption z the iii. Causation. Additionall y, whenvalug a^
A
t",
court must consider whether it was caused by the einployee-;40
"Disruption caused by actions independent of the speech a
Lech or 15^ the employer itself
b
sue cant be equated with
disruption caused by the speech itself ." Watters, 55 F.3t 897 (finding that discontent within _ A.11F,
the Police Department was caused by the "veryol
s
which the plaintiff's speech was
directed [f " ); accord Rode, 845 F.2d at I V - l s' f t1o`' caused by a newspaper article in which M,ia'*c oination must not have been too serious employee claimed to be the victim of r b. because the public employer rep roduce d` and`irculated it in the workplace); Zamboni, 847 F.2d
:^
'4CV!Idh. .
-!
9 aJ
WITH; at 79 (finding public employefrW' a^eacerbated any initial disruption by spreading word of
. ^Iw3 "nor,' m All LL
the speech throughout the
3l WY^'V
6 11m . e and by ordering other employees not to associate with the
^:t.' w^Nt
speaker), Springer t W ' Henry,
4v , s
02 WL 389136, at *5 (finding it fatal to defendant ' s disruption
^yq
claims that thorlitla^ 'show how the claimed disruption was caused in any way by +aig; t>nur^ plaintiff's spek^). Silarly, any disruption in NCC government was not caused by plaintiff's ,A, actions, but was instead caused by the very widespread corruption that his speech sought to address and expose.
re'f",
35
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a question of fact, not one of law. Baldassare, 250 F.3d at 195. "But for" causation is not needed. Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000). Instead, a plaintiff need only show that his protected First Amendment rights "played any substantial role in the relevant decision." Suntan, 203 F.3d at 236; see also Miller v. Cigna, Corp.., 47 F.3d 586, 597 n.9 (3d Cir. 1995)(en Banc)("played a role" in the adverse decision). The following legal factors will provide ample evidence for th the defendants, who at the tune of trial will be convicted felons, 1. Temporal Proximity. "[T]emporal proxt -iat ` sr: r,1 gainst plaintiff
-the protected activity
M. and the termination is sufficient to establish a causal link';w"oodsor Scott Paper Co., 109
w 5^
4
F.3d 913, 920 (3d Cir. 1997); see also Zelinski V. P,^nnlyanra S^'tate .Police, 2004 WL 1799234, -11
ip-
at *5-6 (3d Cir. Aug. 1, 2004)( discussing the laN of C inp2o proximity in the causation analysis). When a plaintiff engages in a feriprclcted activity and suffers an adverse
ode"llf such protected activity, a factshortly after the fi fifer that it was the aggregate of the finder may reason ,,ed to retaliatory dismissal. This inference protected actiA t 6ng if the plaintiff can show that the would be aced"a pretext on which to [take adverse action decision rr difli off until shortly before the time of the adverse agains^n. :n actin .
41;
San Filipp o v.,= '
io
y'u4
X30 F.3d 424, 444 (3d Cir. 1994). For example, adverse action taken
against an exloyee t -761 days after engaging in protected activity is "unusually suggestive." Jalil
v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989).
in this section, it is discussed in Argument III below.
37
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plaintiff was singled out for harassing and retaliatory treatment that other lieutenants did not receive. 4. Violations of Procedures. Violations of laws, rules and procedures also have long been recognized as proof of wrongdoing. See Villa ge of Arlin on Hei ghts v. Metropolitan ia Hous. Develop. Corp . , 429 U.S. 252, 267 (1977)("Departures from the nor al procedural
ty'r ,,
sequence also might afford evidence that improper purposes are play;;
;
ole ",, bstantive
-,j t
alp
departures, too, may be relevant, particularly if the factors usual lynsied important by the z w4 N V V, "Up decisionmaker strongly favor a decision contrary to the one ,g9..1ed. ), cwart v. Rutgers, the State Univ., 120 F.3d 426, 434 (3d Cir. 1997)(departures aft the no' final procedural sequence
.jTki[::nr r .^ 'EL'A:4L.iniRLO {. ^ .!^:^J M
^ =kr afford evidence that improper purposes are playing, a ^^^ T; see also Bra v. Marriott Hotels, 110 M` F.3d 986, 992, 994 (3d Cir. 1997); Kunda v. MU
'pull '
College, 621 F.2d 532, 539 (3d Cir.
AF
1980); Resident Advisory Bd. v. Rizzo, 5,Q.41"T'
defendants long course of harassments cl °f6ta fiat '`;14^i : n F `'
g =ct, F3 a,
:Kl"
6°^ N43-44 (3d Cir. 1977). Here, for example,
violated NCC Personnel Policy 5.10 which
prohibits harassment for engagir13^n p^ tee%activities.
U4
5. Plaintiffs S%rlk,? Qualifications . Also, plaintiff s superior qualifications
yV^1i^'H^
rt for the position establishe ft
sa^ 'fink between his protected speech and defendants adverse
actions. Again, platiff has. pen employed by the County as a police officer for over 25 years.
N
(Complaint ¶ SuHe`1
d a supervisory position since 1989, when he was promoted to
Sergeant. (Cc aplain . 85). In 1994, he was promoted to Lieutenant, and in 1998, to Senior Lieutenant. (Complaint Tj 86-87). His annual performance review received on February 14, 2003, a mere month before his application, rated him as exceeds expectations in all but one category, and his last annual performance review received on March 8, 2004, was outstanding
39
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protected activity and the retaliation, the "intervening pattern of antagonism" by defendants proved causation. Robinson v. SEPTA, 985 F.2d 892, 895 (3d Cir. 1993); see also Estate of Smith v. Marasco, 318 F.3d 497, 513 (3d Cir. 2003)("timing plus other evidence may be an appropriate test where the temporal proximity is not so close as to be `unduly suggestive"'). Similarly, in San Filippo, the adverse action took place in 1986, and the T^k d Circuit noted that, "[a]t the outset, we disagree with the district court's view that San Filiosroted activities
F.bfopllpi::.
in 1977-79 and 1983-84 were too far removed in time to support, Jnfe`
wH,
ce of retaliation"
when the entire situation was viewed in context, in light of eince of stilitYy, disparate treatment and other evidence. 30 F.3d at 444. Here, the chi}4% d retaliation and overt hostility
dill
towards plaintiff clearly demonstrates an intervening PEI, tern. u7 antagonism.
^:Eia
7. The Big Picture . "A play c ei n, It, , scenes but only on its entire performanced s
ot,i #e ur AA rstood on the basis of some of its 1 al " a [retaliation] analysis must concentrate
not only on individual incidents , but o,thezal cenario." Andrews v. City of Phila., 895 F.2d R &i10 1469, 1484 (3d Cir. 1990). The a ^t fider 9fibuld not "examine each alleged incident of A; harassment in a vacuum. Wh If ay ear to be a legitimate justification for a single incident of harassment may look pretd`'' . `cy I when viewed in the context of several other related incidents. The factfinder mustot onl}oklto the frequency of the incidents but to their gravity as well." A :ht, ld. (internal p . VMatx ^ein;itation omitted ). Thus, even when individual incidents by All, ^ themselves n1,4pe de, inimis or otherwise insufficient when standing alone, when viewed together, the totality of the actions maybe sufficient. Woodson, 109 F.3d at 921 ("While each
piece of evidence alone is not sufficient to support an inference of a pattern of antagonistic
41
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last among the twelve candidates for promotion on the list for the May 2003 promotion, but suspiciously was ranked first in 2004 (Compl. ¶ 113-114); · involuntarily transferred plaintiff first from the Minnquedale Station on or about May 31, 2004 , to a less desirable position at the Southern Patrol Unit's Headquarters in Middletown, Delaware, a career experien phich plaintiff
already had acquired in his two prior assignments there" ys . sped le attempt to scare him into silence. (Compl. T 115), and then hoc to'`^nnquedale on March 4, 2005, in Patrol , Squad B , a career experiez q.,, hich pl tiff already acquired at
ry a:. least six times in previous assignments to F ' R1, Squads A, D, and E;
rr ETll`
altered Plaintiff's job responsibilitieg.bbsee no longer serves as the Executive
All
Officer to the Patrol Captain; · in effect, demoted plaintif 1scathmmanded approximately 25 officers in Middletown and now oWtif s pone in Patrol, Squad B compared to the
approximatel y 20 . ^- fficers h G ften commanded as Executive Officer to the Patrol ^^ , 44 P` Captain. (Cotn^"' I^y P Accordingly, there is over
^c+ }`H:RE"InL P.`L"L :'° n, ik°^=: +·e^titlt
"@.
` .
".1
r cord evidence that proves that plaintiff s protected activity
ryra"
was a substantial or .;L otivatN, factor in defendants retaliatory actions against them.
v ii/ F6 ^
SU^r·^ ru
C. Satz 6117Aeelk!"sent Protected Conduct. The burden of proof then "shifts to the defendant to 'w `byl preponderance of the evidence that it would have reached the same 114 ^aW decision even in the absence of the protected conduct."' Nicholas, 227 F.3d at 144 (quoting Mount Health , 429 U.S. at 287). This last step is an "affinnative defense," id. and it is a question for the fact-finder. Baldassare, 250 F.3d at 195. If the employer meets this burden, the
43
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F.3d at 442. Instead, it ranks "among the most precious of the liberties safeguarded by the Bill of Rights" and is "intimately connected, both in origin and purpose with the other First Amendment rights of free speech and free press." United Mine Workers of America V Illinois State Bar ',
Assn, 389 U.S. 217, 222 (1967). "All these, though not identical, are inseparable." Id. (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)). The "right to petition is cfrom the same cloth
as the other guarantees of [the First] Amendment, and is an assuranc u_n
'm i
expression." McDonald, 472 U.S. at 482. "[W]hen one files a `pdon"e is addressing the government and asking government to fix what ... governs duty to repair ." San Filippo , 30 F.3d at 442.
Vie! ,ra y; ``yia ;^'
i k^as broki^m or has failed in its
"[T]he values in the right of petition as an p R111;ntxasp"ect of self government are n,, beyond question." McDonald, 472 U.S. at 483 AN-V The fight to petition "is implicit in the very idea T&A NO, of government, republican in form ." McD, ` a ` m 7 "S. at 482 (quoting U.S. v. Cruikshank, 92 it U.S. 542 ( 1876)(internal punctuation 44^vitf dqk 3 e "fundamental importance of the right to e:T S,e:ry;r
'INi
nh,
n,
petition [is] as a check against t lov ;nmy's abuse of power." Anderson, 125 F.3d at 162. B. The Broad Scope tt^ F cii^3 , es Which Are Protected. In the words of James Madison, the "People S ma3A ° -.., rnunicate their will' through direct petitions to the legislature and :E
. s ^k^^ nG'dl.L'n i uv4^:va.
4chl
government officials MCDthalc, 472 U.S. at 482 (quoting 1 Annals ofCong. 738 (1789)).
I' l"It`igf s wspftition extends to all departments of Government." California Motor Trans ort Co Truddlh Unlimited, 404 U.S. 508, 510 (1972).10 It extends to "administrative
1° As Blackstone wrote long ago, "there still remains a. . . right, appertaining to every individual, namely, the right of petitioning the king, or either house of parliament, for the redress of grievances." San Filippo, 30 F.3d at 443 n.23 (quoting 1 William Blackstone, Commentaries 143). Recognizing this, the Third Circuit has held that "[t]here is no persuasive reason for the right of petition to mean less today than it was intended to mean in England three centuries ago." 45
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Importantly, the protected activity analysis under the petition clause is different than that under the free speech clause. In the petition arena, there is no disruption balancing nor is there a public concern analysis. Instead, matters of purely private concern are protected, as long as the petition is not a sham. San Filippo, 30 F.3d at 440, 443; We, Inc., 174 F.3d at 330 n.2; Brennan, 350 F.3d at 417; see also San Filippo, 30 F.3d at 434-43 (the Third Circu extensive analysis of
'^:'a;
,,, w 1.;4!'.7.Y
^'
the issue). As the Circuit stated in Brennan, a plaintiff need only sho ,-E ^at,,his "OO ion "was not
frivolous in order to make out a prima facie claim for retaliation *er O Petition Clause." ^^
h
%9 -IN"
Brennan , 350 F . 3d at 417 .
^ =..^w''^iiiq
4`Tq`
Simply put, the making of a "petition is not a constzonallyermissible ground for"
cuwl ^e ^`^ww^ui
`%4ih
adverse action against anyone. San. Filippo, 30 F.34 aN retaliate against those who petition it as such a,
Me °government simply may not
;ag hb
ul y^'is ha (fly consistent with the fundamental
Pu,
principles of orderly protest, which our Caught to preserve by protecting our right to
petition the government for redress ." de 1#5 F .3d at 163. fi
D. The Facts Prove the . 4 etiti4 Cluse Was Violated. It is clear that plaintiff also rANA, ^LU^Ee^ c^i2^ He sought out and petitioned the Executive Branch engaged in protected petitianizicti" Y,: GIN, re,,3 hs. prosecutorial authorities tti ^ ,,ort cniinal wrongdoing and asked those same Executive Branch
I,
^^niii^' ^ii^^u^ air s ^a^P·
authorities to fix ou p `brokeri'`u ounty government which had been corrupted by eight years of defendants ' un
fuI'O 's. Thus, as a matter of law, plaintiff petitioned high Executive
Branch agenck and a icials, such as the U.S. Attorney, the FBI, and the IRS, and that activity a ^,ry. rp", was protected against retaliation by the First Amendment.
O? P
The remaining prongs, substantial or motivating factor and same decision absent protected conduct, are identical to those discussed in the free speech argument above and need
47
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person of ordinary'firmness from exercising his First Amendment rights." Suppan, 203 F.3d at 235 (internal punctuation omitted)(emphasis added); accord Allah v. Seiverlina, 229 F.3d 220, 225 (3d Cir. 2000); Muti, 96 Fed.Appx. at 74.12 "Put another way, the retaliatory actions must be sufficiently severe to cause reasonably hardy individuals to refrain from protected activity." Muti, 96 Fed.Appx. at 74 ( internal punctuation omitted)(quoting A osto-Feliciano v.
n, 'eC w.
Aponte-Rogue, 889 F.2d 1209, 1218 (1st Cir. 1989)(en Banc). This ibjecivtest, not a subjective one. Garcia v. City of Trenton, 348 Fad 726, 729 (8t1'
3^it3. Sr 3L:I:N1^
As a matter of law, both individually and together , ( in ° 4117
hying tl RE
e promotions and
(2) the rest of the retaliatory actions defendants took agairi `?..a aantiare "sufficient to deter a person of ordinary firmness from exercising his First 235. Such an adverse action would cause reasab
,,I
nc azaeril rights." Sup an, 203 F.3d at ary individuals to refrain from protected
" activity." Muti, 96 Fed.Appx. at 74."°^q} j "Determining whether a plaint#gs NO., A fendment rights were adversely affected by retaliatory conduct is a fact intense ia^uir^^'Llbcusing on the status of the speaker, the status of
g.^
4
r
the retaliator, the relationship bevee ; e speaker and the retaliator, and the nature of the retaliatory acts." Brennan
T
Z"
` -H- n,r N[uH ' .
B-h
.MV419 (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d
,
dfggtgffTorres, 60 F.Supp.2d 334, 349 (D.N.J. 1999); Kadetsky v. En 12 See Harbor Towr din BdAbf Ed., 82 F.Supp.2d 327, 337 (D,N.J. 2000); Katzenmoyer v. City of Reading, 200^;NL 11374, at *2 (E.D.Pa. Sept. 21, 2001); Marrero v. Camden County Bd. of "1 Soc. Serv., 164"T" 06 2d 455, 467 (D.N.J. 2001); Sunkett v. Misci, 183 F.Supp.2d 691, 708 (D.N.J. 2002); Kelleher v. City of Reading, 2002 WL 1067442, at *5 (E.D.Pa. May 29, 2002); Zu arek v. Southern Tio a Sch. Dist., 214 F.Supp.2d 468, 476-77 (M.D.Pa. 2002) (all applying the "sufficient to deter a person of ordinary firmness"standard). " The existence of adverse action is usually a question for the fact finder. See Suppan, 203 F.3d at 235; Allah, 229 F.3d at 225; Baldassare, 250 F.3d at 195; Muti, 96 Fed.Appx. at 69. 49
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with just a lateral transfer, absent any loss in pay or benefits. Torre v. Casio, Inc._, 42 F.3d 825, 831 n.7 (3d Cir. 1994); accord Dilenno v. Goodwill Indus. of Mid-Eastern Pa., 162 F.3d 235, 236 (3d Cir. 1998). The case law is clear that it covers many situations. See e.g.. Jones v. School Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999)(adverse action when teacher involuntarily transferred to a less desirable assignment and lost the opportunity to do tl; job he "sought
.Lr}iVu Fti^.
l most'); Dilenno, 162 F.3d at 236 (transferring plaintiff with bug phollRu. , wsxfll` inspecting
th.
viF!^xi3
bags of donated clothing); Torre, 42 F . 3d at 831 n.7 (transfer tuf v. Pathmark Stores, Inc., 162 F.3d 778, 787- 88 (3d Cir. 1999---)
ad^Iid job); Mondzelewski
411 chafe in working haurs).
See also Rodriguez v. Board of EL 620 F.2d 362, 364-6G`(d Cir. fl %0)(adverse action where . transfer radically changed nature of employee's w9F M4 r9 ' in "severe professional
?.Nil
trauma.") (internal punctuation omitted).
A46"
40
iI mITTA To illustrate, in Hampton v. Boron ,r"o^ '%" &Palls Police Dept, 98 F.3d 107 (3d Cir.
rotected speech rights . Soon thereafter he
'
1996), a police officer spoke out andc,mrct :h i
7;9
assignment, without any explanation . The officer was involuntarily transferred to 4.^i1 ss d sir ^1.r deemed his transfer to be a detr^oiit summary judgment, the defendants argued that the transfer was not a demotioiiecaiis`zs rank and pay were unaffected, was merely a lateral reassignment, was 7rt of a A ine rotation schedule, and thus did not constitute adverse action.
13..
^a:J
,;
:u:eyoa;E ;li:w::aua uX
A,T
^
^
The Third Ciro-IVn-'ej&h"6 argument that adverse action was lacking and reversed the grant of
P. u!
summary jud`
ent f6i" he defense. Id. at 116.
As described above, the retaliatory actions defendants took against plaintiffs, even under a Title VII standard, adversely affected their status as employees. Robinson, 120 F.3d at 1300, 1296-97. Accordingly, under both the First Amendment test and the stricter Title VII test,
51
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536 U.S. 730, 736 (2002). If the plaintiff meets this threshold, a court must next decide whether the right allegedly violated was a clearly established one, about which a reasonable person would have known. Wilson, 526 U.S. at 609; Hoge, 536 U.S. at 739. "Whether a governmental official is entitled to protection under the doctrine of qualified immunity is a `purely legal question.
Rogers v. Powell, 120 F.3d 446, 454 (3d Cir. 1997)(quoting Acierno y. Cl,utier, 40 F.3d 597,
609 (3d Cir. 1994)( en bane)); see also Doe v. Delic, 257 F.3d 309, 3(d{Cir:-y-: ri :^a,,: Plantier, 182 F.3d 192, 196-97 (3d Cir. 1999). A. Prong One is Satisfied. In light of the extensive^,i found in Arguments 1-111 above, there can be no question constitute a First Amendment violation under both,,
ai,.
1 }; Rouse v.
al recall and the legal analysis '1N: iaintilhas proven facts that 1 and petition clauses. So the first
'7,. 2%*
prong in defeating qualified immunity has beert"Otis 1.=
ni.
R11 1M. -Z l,f
B. Prong Two is Satisfied. Secoa
ai
f meets the prong one threshold, the
;{ Ull.
court next must decide whether the ri t v18' 1.d as a clearly established one, about which a
Nmh
reasonable person would have ku<.
A',
.3tkir
n, 316 F .3d at 261; Saucier v. Katz, 533 U. S. 194,
201 (2001 ); Hope, 536 U. S. 07
on, 526 U.S. at 609; Doe 257 F.3d at 314-15. In other
words, in light of prong oil' , w6M a reasonable public official be put on notice that the ,.. l v^ constitutional viola tn alrea established under prong one runs afoul of clearly established law? See Bennett v AftR-3d 133, 136-37 (3d Cir. 2001 )(observing that prong two operates
on the "facto'" ';venal`established by the plaintiff' under prong one). ,. . "[Q]ualified immunity applies if `reasonable officials in the defendants ' position at the relevant time could have believed, in light of what was in the decided case law, that his conduct
would be lawful ."' Doe, 257 F.3d at 318 (emphasis added )(quoting Good v. Dauphin County,
53
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protecting legions of public employees in the Supreme Court, the Third Circuit and the District of Delaware, there is no way that defendants could reasonably believe that they could retaliate against plaintiff in violation of the Free Speech Clause.' Concerning the huge body of public employee case law (only a portion of which is listed in the preceding footnote), the Third Circuit recently held that in our Circuit since 1982, the law has been clearly estab,hed that no public employee can suffer adverse action or other "retaliation for exercisin^;rht'ler the first amendment." Baldassare, 250 F.3d at 201. Going even farther bay""...to 19'x'$, the Supreme ; Court's Pickering o p inion specifically held that a public empl ^^ ^^e's spe`^^h critical of a public employer's policies was protected . 391 U.S. 563.
.HM
t,t
gm
","
The general legal principles from these ma
fJy analogous cases, and those cases
]^y.IL^c L
.f4?itilb ff:d:^r
1idiscussed in much greater length in Argument : 3li add put any reasonable official on notice that plaintiff had clearly established,5. e anent rights to be free of retaliation
,. J '6 See e. ., Baldassare v. State q^1 F.3d 188 (3d Cir. 2001)(public employee who
-Oing and breach of the public trust in a p ublic i conducted internal investigation fto ''!^r ^ngff a
, -11 &.1451
agency protected); Feldman v. P''t1ad,01 hia Hous. Auth., 43 F.3d 823 (3d Cir. 1994)(public employee who exposed corrurWn, ftciency, and other improprieties in public agency 990 (3d Cir. 1982)(public employee who criticized protected); Monsanto n a Ep! c agency protected); Czurlanis y. Albanese, 721 F.2d 98 (3d Cir. management policies 1983)(public employ l p cn . pized waste and inefficiency in public agency protected); Rode v. Dellareiprete, 84 TV.2d 111?5 (d Cir. 1988)(public employee's criticism of racism in police `' department protected ;L; O'Dormell v. Yanchulis, 875 F.2d 1059 (3d Cir. 1989 )(p olice chief's criticism of toyv9bip'ftyeent for trying to force him to fix traffic citations protected); Watters v. C'>>;`Yof Phi la., 55 F.3d 886 (3d Cir. 1995)(public employee who criticized policies in atecte; Pro v. Donatucci, 81 F.3d 1283 (3d Cir. 1996)(public employee who public agenc was subpaenacl'1K00ify at supervisor's divorce proceeding protected); Azzaro y. County_of P NO en , 110 F.3d 968 (3d Cir. 1997)(en banc)(public employee who reported sexual Alle harassment by a superior protected); Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)(public employee who criticized policies and health hazards in a public agency protected); Pickering v. Board of Ed,, 391 U.S. 563 (1968)(public school teacher who criticized school district policies protected); Mount Healthy City Bd. of Ed. y. Doyle, 429 U.S. 274 (1977)(public school teacher who criticized school district policy protected). 55
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"It is well settled that compensatory damages under § 1983 are governed by general tortlaw compensation theory." Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000); see also Memphis Comm. Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986)("when § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts"). "Rights ... do not exist in a vacuum. Their purpose is to pra -. .9 i om injuries to
particular interests, and their contours are shaped by the interests l h._, p. het." Carephus, 435 U.S. 247, 254 (1978). "Our legal system's concept ofd
I': tIU
Rges refs +r s this view of legal
rights." Id. "The cardinal principle of damages in Anglo"lt crican ,1`aw is that of compensation
, p, w
6,
for the injury caused to plaintiff by defendant' s bre^ac & F. James, Law of Torts § 25. 1, p. 1299 (195 compensatory damages may include not o
uty "fI at 254- 55 (quoting F. Harper
ir
em asi§,,-,,tn original)). "To that end,
°o %, f-' Met loss and other monetary harms, but
also such injuries as impairment of rep tati, pex nal humiliation, and mental anguish and
ATP
suffering." Stachura, 477 U.S. at 250. In another one of caQMe s "
^^ ^ Ll ltl ^
7 (ter
punctuation omitted); accord A11ah, 226 F.3d at
ent § 1983 police cases, a federal court jury awarded
ILI
... ^
!
$300,000 in compe < *. atory
ss:rci.
ages on a far weaker record than exists in Tobin's case. In Bullen
v. Chaffinch, A-361F.9%0,,x- V342, 356 (D. Del. 2004), the District of Delaware recently upheld the
`F
; ,
IRd
Egli
jury s $300,A, awar4^;`fto compensate the Bullen plaintiffs for "injury to reputation ... Tl m humiliation and emotional distress."" In Bullen, the damages award was based solely upon the
" The Supreme Court has noted that the word "distress" includes "mental suffering or emotional anguish." Carey, 435 U.S. at 264 n.20. This then encompasses the concept of pain and suffering, but also implicitly recognizes that humiliation and injury to reputation are separate 57
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Smith v. Wade, 461 U.S. 30 (1983). Smith was a § 1983 action arising from a brutal assault against a youthful first offender while in a juvenile reformatory. A jury awarded $25,000 in compensatory damages to the youth as well as $5,000 in punitives. The defendant appealed the punitive damages award on two grounds. First, he argued that the proper test for punitive damages is one of "actual malicious intent - ill will, spite, or intent to inj ." Id. at 37-38. es had to
(internal punctuation omitted). Second, that the requisite standard fa aU.W ; ve 'd".
F.1fi.J"
',ou TIM;' ly rejected both of
these arguments. Id. at 56. hu As to the first argument, the Supreme Court exterisiy survdyed the common law both at the time and since the enactment of § 1983 in 18.,71, I&,,at 3 = ^ and found that
N541 6.
we are content to adopt the poli,,^uc^,rinenof the common law that reckless or callous disregard ft Ait e plaintiff s rights, as well nffi!
as intentional violations af^lei^ala
V
INN K
ould be sufficient to
trigger a jury's consideras damages.
1.
f 1
of the appropriateness of punitive
5
.'4C^4I
. nOWntentions that the higher standard of "actual Id. at 51 . The Court rejected thel_^ ^fer_* malicious intent - ill will , spit ' R g, in6 o injure," A at 37- 38 (internal punctuation omitted), wp was a prerequisite for punf cans and instead held that although the higher standard would warrant considerate of puive damages, "reckless or callous indifference to the federally
protected righ?efrot?a11 that is needed as an alternative basis for punitive damages. Id. at
56.
"r ,ua::.,^yf ^ oearn:w:^Ig ""{.
-T, H
The Court also rejected the defendant' s second argument that "the threshold for punitive
damages" had to be higher "than the underlying sta
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