By David E. Worley
In Carroll v. Clifford Township, 34 IER Cases 1118 (M. D. Pa. 2012), summary judgment was denied when the plaintiff, the former sheriff, had his position eliminated, his department budget reduced, and was denied entry into the Fraternal Order of Police after filing a lawsuit against the township and subsequently filing an earlier retaliation lawsuit.
There were multiple retaliation claims discussed by the court, and sufficient facts supporting each to indicate summary judgment was improper.
The first claim stemmed from the plaintiff filing a state court action against the county and then being denied entry into the Fraternal Order of Police. The plaintiff was undoubtedly qualified for acceptance into the FOP, yet city officials refused to process his application. Accepting the allegations made by the plaintiff as true, the proximity in time between the filing of the lawsuit and the frustration to the plaintiff’s objectives was sufficient to support this claim:
Here, Plaintiff has sufficiently alleged a causal connection based on a pattern of antagonism that occurred after he engaged in protected conduct, the filing the state court action, and the time of the alleged retaliatory conduct, the refusal to complete his FOP application. Specifically, Plaintiff claims that after he commenced the state court action, Defendants improperly accused him of wrongdoing and terminated his health benefits, which culminated in Defendants’ retaliation against him by refusing to complete the FOP application. And, but for Plaintiff’s efforts to seek redress in the state court action, this pattern of antagonism would not have occurred. While the state court action began in August 2009 and the refusal to complete the FOP application in March 2011 is not an “unusually suggestive time proximity,” DeFranco, 287 F.App’x at 155, accepting all allegations in the Second Amended Complaint as true, Plaintiff has alleged that Defendants engaged in a pattern of antagonism towards him between the filing of the state court action and Defendants’ refusal to complete the FOP application. While these allegations may be insufficient to establish causation later in this action, they are sufficient to state a plausible claim for relief at this point.
The second retaliation resulted from the plaintiff filing a first-amendment retaliation claim for the events detailed in the first claim. The plaintiff’s position was eliminated after he brought suit challenging his denial into the FOP. While the defendant’s alleged a qualified immunity defense for a legislative action, the court found this defense was not clearly available, and therefore the claim could go forth.
The third retaliation claim stemmed from the plaintiff’s refusal to follow a local politician’s request to not arrest anyone in front of that politician’s business. The plaintiff spoke out against the request, objecting to politicians using their position for personal gain. Here, the court recognizes that a public employee like the plaintiff still has some free speech rights.
“A public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statements he made.”
Using this test, the court found that sufficient facts existed to allow the case to proceed to trial. The complaint alleged that the plaintiff was speaking as a citizen, and that the abuse of political power for personal gain was a matter of public concern.
