Opinion
Civil Action No. 19-1548
09-04-2020
RYAN JOHNSTON, Plaintiff, v. NORTH BRADDOCK BOROUGH, et al., Defendants.
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss (ECF No. 9) be granted in part and denied in part. The motion should be granted with respect to Plaintiff's claims under the Fourth Amendment, his wrongful discharge claim, and that portion of the Wiretap Act claim that relates to recording Plaintiff's conduct in connection with a locked evidence cabinet. It is further recommended that all of Plaintiff's claims against the individual defendants, other than Defendant Daniele, should be dismissed. With respect to Defendant Daniele, the motion to dismiss should be granted regarding all claims against him other than the Wiretap Act claim arising out of the recording of Plaintiff's conversation and the Whistleblower Law claim. Defendants' motion to dismiss should be denied in all other respects.
II. Report
Plaintiff Ryan Johnston brings this civil rights action pursuant to 42 U.S.C. § 1983. His claims arise out of the termination of his employment as a police officer for the Borough of North Braddock ("the Borough") and includes causes of action under the Fourth and Fourteenth Amendments, as well as the Pennsylvania Whistleblower Law, 43 P.S. §§ 1421-28, the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701-28 ("Wiretap Act"), the Pennsylvania Wage Payment and Collection Law, 43 P.S. §§ 260.1 to 260.10 ("WPCL") and Pennsylvania common law. Named as Defendants are the Borough, the North Braddock Borough Police Department, Chief Isaac Daniele, Mayor Tom Whyel and the members of the Borough Council (John Vahosky, Michael Dobrinich, Bridgette Cobbs, Vicki Vargo, Teresa Parker, Jerome Sepesy, Christopher Roland, Michael Breaston and Tina Dixon) who voted to terminate his employment.
Defendants contend that Johnston erroneously named "Tina Dixon," who was never a member of Borough Council, and suggest that he meant to name "Lena Dixon," who passed away in September 2019 and has never been served. Plaintiff seeks to add the estate of Lena Dixon as a defendant. Because all individual defendants other than Daniele should be dismissed, the Court need not reach this issue.
Currently pending before the Court is Defendants' motion to dismiss. (ECF No. 9). For the reasons that follow, the motion should be granted in part and denied in part.
A. Relevant Procedural History
Johnston filed this action in December 2019. Federal question jurisdiction is based on the civil rights claims, 28 U.S.C. § 1331, and supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367(a).
The Complaint includes four causes of action against all of the defendants. In Count I, Johnston alleges that Defendants violated his procedural due process rights by terminating his employment without just cause and without providing him notice and an opportunity to be heard, and he also alleges a stigma-plus claim. He alleges in Count II that he was surreptitiously recorded in violation of his rights both under the Fourth Amendment and the Wiretap Act. The Complaint alleges claims in Count III both for wrongful termination and violation the Pennsylvania Whistleblower Law. Finally, in Count IV, he alleges that he was not paid for hours he worked and seeks recovery of these wages pursuant to the WPCL.
On February 28, 2020, Defendants filed a motion to dismiss (ECF No. 9) which has been fully briefed (ECF Nos. 10, 23, 24, 26).
B. Background Facts
In October 2018, Johnston was hired as a part-time (32 hours a work) patrolman for the Borough. The decision to hire him was made by the Borough Council, but he was never informed by the Borough or the Police Department that he was hired under a contingent probationary period, nor was he ever given a copy of the Department's Standard Operating Guidelines ("SOG") or the Fraternal Order of Police Lodge #91 Union Collective Bargaining Agreement ("CBA"). However, he later found parts of the SOG and the CBA in the station and copied them for his personal files. (Compl. ¶¶ 10, 13, 15, 17 & Exs. 1, 2.) At the time of his hiring, the police chief was Dean Bazzone, but Chief Bazzone was on medical leave and Isaac Daniele was the Acting Chief pursuant to Borough Council's orders. (Id. ¶¶ 11-12.)
ECF No. 1. Both parties have supplied the CBA that was in effect between January 1, 2013 and December 31, 2015. Defendants indicate that the FOP and the Borough have continued to operate under the terms and conditions of this CBA to the present time. (ECF No. 10 Ex. 2, Marguriet Aff. ¶¶ 2-5.)
Johnston alleges that he was never reprimanded, suspended, nor had a negative written report as a police officer prior to his unlawful termination. After three months of being employed by the Department, he was given a raise. In addition, his union dues to the FOP were automatically subtracted and from his paycheck, and as such he was covered under the CBA with the Borough and Department. (Id. ¶¶ 18-20.)
After the first month or two of his employment as a police officer by the Department, Johnston was advised by other officers that evidence easily "goes missing" and/or is stolen, and to CYA ("cover your ass"). Thereafter, he was especially conscientious in the documenting and accounting for the chain of custody of evidence, particularly regarding any money and/or drugs seized from an arrest. (Compl. ¶¶ 37-38.)
In January 2019, a co-worker showed Johnston a video of Acting Chief Daniele stealing evidence, and his co-worker informed him that there was an official investigation regarding this incident by an outside law enforcement agency. Almost every other officer in the Department had concerns that evidence was being tampered with by Daniele. (Compl. ¶¶ 39-40.)
On April 4, 2019, Johnston was interviewed by two Federal Bureau of Investigation ("FBI") agents, who questioned him about the Department's evidence procedures, and informed him that he would be used as an investigation witness going forward. He was alerted that his suspicions regarding Department evidence irregularities were correct. (Compl. ¶¶ 41-42.)
On May 1, 2019, Johnston, along with Officer Joe Lynn ("Lynn"), made an arrest in which over three pounds of marijuana were seized. Due to the number and size of the packages of marijuana, all of it could not fit into a standard department evidence bag to be sealed. Aa a result, all of the seized marijuana packages were dropped into the evidence closet via the drop box door, which was not standard procedure but was the best they could do under the circumstances. This left the evidence "unsecured" and capable of being easily tampered with, which prompted Johnston to notify Daniele of his concern. At an unknown time after this was done, Daniele moved the marijuana evidence into the evidence storage room located near the rear entrance to the police station. (Compl. ¶¶ 43-48.)
The assistant district attorney ("ADA") assigned to the marijuana case, Sarah Weikart ("Weikart"), repeatedly requested the lab results, and Johnston passed along these requests to Daniele. Eventually, Daniele told him that Officer Sha'Ron Jackson ("Jackson") had submitted the marijuana to the lab. Subsequently, however, Weikart informed Johnston that the marijuana was never submitted to the crime lab and that another law enforcement agency was investigating Daniele and that she would forward this information to that agency. (Compl. ¶¶ 49-52, 56-57.)
Johnston states that as required by law, he had immediately reported to the District Attorney's Office the information regarding Daniele's failure to submit evidence and intentional hindering of an active prosecution. He also contacted one of the FBI agents who had previously interviewed him and reported the same information. From that date on (April 30, 2019), Johnston continued reporting to ADA Weikart, Deputy District Attorney Christopher Avetta and the FBI regarding any irregularities with evidence under Daniele's control. (Compl. ¶¶ 58-60.)
Johnston notes that under the SOG, "... the officers of this Department have no choice whatever as to what laws they will enforce, when, where, nor against whom. They are obligated by their oath of office to take appropriate action whenever there is a clear-cut violation of the law." (Compl. ¶ 36.)
Before these events, Johnston had arrested Officer Jackson's cousin, seizing $8,700.00 cash and six ounces of marijuana during the process. He placed the cash in the station's wall safe and the marijuana in the evidence closet. He subsequently witnessed Daniele removing this cash from the wall safe. Daniele told him that he placed the money in his office. (Compl. ¶¶ 61-62.) Another officer watched a playback of this incident, which was recorded on the station's CCTV system. (Id. ¶¶ 63-64.) At some time in March 2019, Daniele removed/disabled the playback and camera control function on the station's CCTV system, allegedly so that officers could not watch and monitor Daniele's actions as they had in the past. (Id. ¶¶ 65-66.)
In preparing for the prosecution of Officer Jackson's cousin, ADA Cassandra Barch ("Barch") asked for the $8,700.00 evidence, but Daniele said he could not access the money because it was locked in a safe in the Department Chief's office and only Bazzone had access to the safe. ADA Barch subpoenaed Daniele to bring the $8,700.00 to court on May 10, 2019. Daniele failed to appear in court on that date, allegedly due to a death in the family. On the same day as the scheduled court hearing and family funeral, Daniele came to the station and instructed Johnston to take the marijuana evidence to court, but neither Daniele nor Johnston could access the $8,700.00 because it allegedly was locked in a safe in the Department Chief's office. (Id. ¶¶ 65-69.)
While Johnston and Daniele were in the Department Chief's office, Daniele confirmed that a black standing safe in the office contained the $8,700.00. Daniele retrieved the marijuana evidence in the Department Chief's office and instructed Johnston to take it to court, which he promptly did. However, the ADA was required to postpone the case because of the missing $8,700.00. (Compl. ¶¶ 70-73.)
While Defendants' summary of the facts states that "sometime thereafter Plaintiff and Daniele located the cash, which Daniele had access to" (ECF No. 10 at 3), the Complaint does not allege that the money was ever located.
On May 21, 2019, Johnston, who was determined to evaluate Daniele's complicity in the missing evidence, mentioned to Daniele that the FBI came to Johnston's house and questioned him. Daniele immediately inquired into specific information about this FBI agent, as well as the nature of the questions asked and Johnston's responses. Daniele's reaction convinced Johnston that Daniele had violated the laws of the Commonwealth regarding the evidence held in the station in the instant case, and Johnston concluded that he obligated to take appropriate action. He again communicated this activity to the District Attorney's Office. (Compl. ¶¶ 74-77.)
During the night shift on May 31, 2019, Johnston and Lynn noticed a new lock on the evidence locker and other new security devices, and they saw that Daniele had restored camera control function to the CCTV system, but not the playback function. Lynn informed Johnston that a shroud had been installed on the inside of the door of the station's evidence locker's drop box. While they were inspecting the shroud, an audible alarm was heard coming from inside the evidence closet. Johnston activated his cell phone's video function, extended his arm through the drop box door, and recorded a video of the inside of the evidence closet. Based on their review of the cell phone video, the officers believed that a Ring™ doorbell camera had been installed in the closet and that the alarm came from the doorbell camera. Johnston took the cell phone video in furtherance of his investigation/documentation of evidence storage and safekeeping within the station. After the installation of the shroud inside the closet, no one could reach or tamper with any evidence due to the height of the drop box door. (Compl. ¶¶ 78-84.)
Johnston and Lynn informed Sgt. Brian Hodges ("Hodges") of the doorbell camera. Johnston also expressed his concern that the doorbell camera may have the ability to record conversations illegally. Hodges, who was previously aware of Daniele's unlawful actions, said he would inform the mayor. (Compl. ¶¶ 85-88.)
On June 3, 2019, Officer Gabrielle Smith ("Smith") and Johnston were informed that Daniele told the Allegheny County Emergency Services PCO (the county dispatchers) that he was going to discipline Smith, Office Eli Shomo, and "another officer" for "putting their hand in the cookie jar." On June 4, 2019, ADA Weikart told Johnston that while she was at District Magistrate Schricker's office, she was informed that Daniele was accusing Johnston of evidence tampering, and that Daniele had shown several office personnel, including the magistrate, pictures/video of the "tampering." Weikart also informed Johnston that Daniele had used this allegation of tampering with evidence as an excuse for Daniele's negligence and multiple failures to submit evidence in a number of criminal cases. (Compl. ¶¶ 89-92.)
ADA Weikart was also told by the magistrate's staff that Daniele said that he was terminating the employment of Johnston and Smith with the North Braddock Borough Police Department. Later that day, Johnston was told to contact Daniele, who stated that, "per council," he had been removed from the duty schedule effective immediately. When asked for the reason for his removal, Daniele said that the Borough Council had received video from inside the evidence closet that showed Johnston "messing with the evidence," and that Johnston had covered up surveillance cameras inside the station. According to Daniele, the Borough Council had a camera installed inside the evidence locker and received notifications when the camera is activated. (Compl. ¶¶ 93-96.)
Daniele asked Johnston to come into the station the following day to talk "just between them." Johnston told Daniele that this meeting sounded like it was disciplinary in nature and requested union representation. Daniele contacted the union representative, James Matrazzo, and told Johnston to talk to him first and not to come in the next day. Matrazzo spoke with Johnston and subsequently filed a formal grievance on his behalf for Defendants' alleged violation of the CBA. Johnston later spoke with ADA Weikart on June 13, 2019, who advised him that he was not facing any criminal charges and was not under investigation by the District Attorney's Office. (Compl. ¶¶ 97-102.)
On June 18, 2019, the day of a scheduled Borough Council meeting, Johnston went to the Borough building to speak with Council President John Vahosky. Vahosky told him that Council had never voted on suspending him and denied knowing the accusations against him. Johnston requested that he be given an opportunity review any evidence, that a hearing be held, and that he be given an opportunity to address Council in private. Vahosky acknowledged his requests. (Compl. ¶¶ 103-05.)
Johnston states in his brief that he spoke to the mayor (ECF No. 23 at 8), but the Complaint alleges that he spoke to Vahosky.
At the appointed time for the scheduled Borough Council meeting, Johnston, Matrazzo and Lynn were present. During the public meeting, the Council went into executive session to discuss personnel matters. Without alerting and readmitting the public, Council reopened the public meeting. Johnston, Matrazzo and Lynn only became aware that the public meeting was over when members of the Council began leaving the meeting room. Matrazzo inquired about the status of Johnston's employment with the Borough, and was told that Council will mail something to him. Johnston subsequently received a letter from the Borough on June 21, 2019 that terminated his employment. (Compl. ¶¶ 106-09.)
Johnston emailed the Borough Manager, Doug Marguriet, within the ten days required under the CBA to appeal the Borough Council's decision. Two days later, the Borough solicitor advised Johnston that he did not have a right to a grievance hearing. Although Johnston clarified to Marguriet the same day that he was requesting a due process hearing, not a grievance hearing, Marguriet failed to respond to his request. (Id. ¶¶ 110-13.)
Johnston alleges that he has not been paid for wages, overtime, court time, and firearm's instructor certification fees as required under the CBA after being terminated. (Id. ¶¶ 25-27, 123, 191-93.)
C. Discussion
1. Standard of Review
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). "This requires a plaintiff to plead "sufficient factual matter to show that the claim is facially plausible," thus enabling "the court to draw the reasonable inference that the defendant is liable for misconduct alleged." Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint "does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged. If a claim "is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits attached thereto, and matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). In addition, "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Johnston has attached the CBA between the Borough and the FOP and the Department's SOG to the Complaint. Defendants have also attached the CBA to their motion to dismiss, along with an affidavit to demonstrate that its terms and conditions were still in place at the time in question, and an opinion from a court of common pleas. Johnston has not challenged the authenticity of these documents, some of which are also public records. Therefore, they may be considered without converting the motion into a motion for summary judgment.
2. Procedural Due Process/Stigma Plus claims
a. Due process claim
In Count I of the Complaint, Plaintiff describes his civil rights claim under § 1983 as "straight due process and stigma plus." Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). "The first step in any such claim is to identify the specific constitutional right allegedly infringed." Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).
Johnston alleges that Defendants violated his procedural due process rights under the Fourteenth Amendment. The Fourteenth Amendment prohibits a state actor from depriving "any person of life, liberty, or property, without due process of law." The Supreme Court has held that "[t]he core of due process is the right to notice and a meaningful opportunity to be heard." LaChance v. Erickson, 522 U.S. 262, 266 (1998). A plaintiff "who seeks to establish a procedural due process claim must demonstrate that '(1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of 'life, liberty, or property,' and (2) the procedures available to him did not provide 'due process of law.'" Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006)).
"The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount." Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972) (footnote omitted). "Whether a person has a legitimate entitlement to—and hence a property interest in—his government job is a question answered by state law." Hill, 455 F.3d at 234 (citing Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005)). Public employees have a property interest in their employment if they can establish an expectation of continued employment based upon a statute or a contract. Pipkin v. Pennsylvania State Police, 693 A.2d 190, 192 (Pa. 1997).
Johnston alleges that his due process rights were violated because he was not provided with notice and an opportunity to be heard before he was terminated. Defendants argue that as Johnston was an employee at will, he had no property interest in his employment, thus, he was not entitled to due process. See Upper Makefield Twp. v. PLRB, 753 A.2d 803 (Pa. 2000).
Johnston was hired as a police officer in October 2018 and was terminated in June 2019. He asserts that he was never advised that he was hired subject to a probationary period. Nonetheless, the Complaint includes multiple references to both the CBA and the Borough Code as they relate to probationary police officers. See, e.g., ¶¶ 23, 34, 35.
Johnston relies on certain sections of the CBA, but not others, in asserting his claim. As the allegations of the Complaint demonstrate, he asserts an entitlement to the protections that the CBA affords. See ¶¶ 22-31. At the same time, of some significance is Article V, § 5 of the CBA, which provides that all new employees of the police department shall be considered probationary employees for a period of twelve months from their most recent date of hire. At least based upon the CBA, it appears that Johnston was within this probationary period when he was terminated. The CBA further states that a probationary employee "may be summarily dismissed during their probation at the sole discretion of the Employer without being subject to the grievance procedure defined herein." The grievance process includes multiple steps, culminating in an arbitration hearing after the Borough Council or its representative renders a decision.
Johnston asserts that whether he was on probation at the time of his termination is a disputed issue of fact.
The parties dispute the meaning of Article V, § 5 of the CBA. Johnston contends that it means that a probationary employee may not request a grievance hearing through the union but retains his right to a due process proceeding pursuant to the Borough Code. By contrast, Defendants argue that the CBA, not the Borough Code, is dispositive and therefore, a probationary employee is not entitled to a due process hearing prior to his termination.
In relevant part, the Pennsylvania Borough Code includes certain provisions regarding civil service requirements and protections for police officers. See 8 Pa. C.S. §§ 1170-1194. It includes the following provision regarding the circumstances in which a probationary police officer may be dismissed:
An original appointment to a position in the police force or as a paid fire apparatus operator shall be for a probationary period of not less than six months and not more than one year, but during the probationary period an appointee may be dismissed only for a cause specified in section 1183 (relating to rejection of applicant and hearing) or because of incapacity for duty due to the use of alcohol or drugs.8 Pa. C.S. § 1186(a).
Defendants assert that there are several reasons that the Borough Code does not apply to Johnston. First, they contend, Johnston was not appointed to his position pursuant to the Borough Code. They note that the Complaint fails to allege that Johnston was required to undergo any physical examination or competitive testing process in order to obtain employment as provided in 8 Pa. C.S. §1184(b)-(c) with respect to a civil service employee. Rather, according to the Complaint, he was hired by a vote of Borough Council as a temporary part-time patrolman. While Plaintiff alleges that he was appointed by the Borough Council, he does not allege that he was hired through the civil service process to which the cited sections of the Borough Code apply. However, the absence of these allegations does not fully resolve the factual dispute regarding the hiring of Johnston. Moreover, Defendants do not address whether or not the Borough Code provision that bars dismissal of a probationary officer except in limited circumstances applies to all police officers, not just a civil service appointee.
Defendants assert that because the CBA governs this matter, Johnston is precluded by its express terms from claiming that he could only be fired for cause. Since Johnston was a probationary police officer, they argue, he did not possess a property right in his employment. As noted in Upper Makefield Twp. v. PLRB, 753 A.2d 803, 806 (Pa. 2000):
The very notion of probationary employment sets those employees apart from the others, signaling that they are new, newly transferred or newly promoted and that they must prove themselves in the new position before being considered permanently employed therein. [citation omitted] Implicit in the term "probationary" is that the employee is being tested or evaluated on the job. . . . As this creates a strictly "at will" relationship between the employer and employee during the probationary period, a probationary employee is not entitled to register a grievance should he or she not be retained past the probationary period. . . Unless the terms of an officer's probationary period specifically grant him avenues of redress, the relationship is strictly at will and terminable by either side for the duration of the probationary period.
In support of their position, Defendants also cite Bartal v. Borough of Laureldale, 515 F. Supp. 2d 556, 562 (E.D. Pa. 2007), aff'd mem., 283 F. App'x 69 (3d Cir. June 20, 2008). In Bartal, a police officer's probationary period was extended past the one-year date and he was placed on administrative leave and then terminated. The court held that he had no property interest in his employment during the statutory period or even during the briefly extended period during which he was evaluated and terminated. Similarly, in Olson v. Borough of Avalon, 811 A.2d 66, 71 (Pa. Commw. 2002), a police officer was hired as a probationary officer for a period of one year, at the end of which the council elected not to give him a permanent position. Olson sought a post-termination hearing, and the court held that "no property right could be conferred upon a probationary employee under Section 1186 of the Borough Code which only provides that a probationary police officer can be dismissed 'if the conduct [or] fitness of the probationer has not been satisfactory to the council.'" Id. at 73.
In this case, however, it does not appear that Johnston was dismissed by Borough Council at the end of his probationary period on the discretionary ground that his "conduct or fitness ... has not been satisfactory to the council." Rather, if he was dismissed during his probationary period, the Borough Code explicitly states that "during the probationary period an appointee may be dismissed only for a cause specified in section 1183," which, at least according to the Complaint, does not cover the fact pattern here.
This provision now appears in 8 Pa. C.S. § 1186(b).
Johnston cites DeForte v. Borough of Worthington, 212 A.3d 1018 (Pa. 2019) a recent case involving the issue of "extra police," who serve from time to time or on an hourly basis and are not included within the definition of "police force" under Section 1170 of the Borough Code. Given that there is no allegation that Johnston was "extra police," this decision is inapposite.
Thus, there are multiple issues that cannot be resolved on a motion to dismiss. First, there is an issue of fact regarding the circumstances surrounding the hiring of Johnston, as well as his probationary status when he was terminated. This becomes highly relevant in light of the possible inconsistencies between the CBA and the Borough Code. As discussed previously, Johnston reconciles these provisions by acknowledging that a probationary employee does not have the right to file a grievance through the union but retains due process rights regarding his termination while on probation. In turn, Defendants claim that when a CBA conflicts with the Borough Code, the CBA controls over a statute. See Perroz v. Fox Chapel Borough, 143 A.3d 520 (Pa. Commw. 2016). At this point, the Court cannot resolve these differences based upon the current record. To muddle matters further, Johnston alleges that the union filed a grievance on his behalf and a union representative attended the Borough Council meeting with him. If Johnston was still on probationary status and could be terminated without the right to grieve the decision, it is unclear why the union filed a grievance on his behalf.
In Perroz, a police officer sought a disability pension, which was more difficult to obtain under the CBA than under the Borough Code. The court held that the police union had agreed to the terms of the CBA and that while a party may not assert illegality to avoid compliance with a voluntarily agreed-to provision of a CBA, this general rule did not extend to cases where a dispute is resolved in a decision by an arbitrator rather than through a CBA. However, in that same opinion, the court accepted Perroz's argument that he could not be deprived of a due process right to a neutral and detached hearing officer because he had a property interest in his pension (although the court ultimately concluded that there was no basis to conclude that the hearing officer was not neutral and detached). Id. at 533-35. Johnston's due process rights regarding his termination are like Perroz's rights to a neutral and detached hearing officer, not his qualification for a disability pension, and thus the case does not support the position that they could be negotiated away by the CBA.
In short, based upon the facts alleged in the Complaint, dismissal of Johnston's due process claim at this stage is not appropriate.
While Johnston alleges that all defendants violated his due process rights, he cannot maintain this claim against any defendant except the Borough. Plaintiff was terminated by the Borough Council, which is a decision making body for purposes of Pennsylvania law. See 8 Pa. C.S. § 1202 ("The powers of the borough shall be vested in the borough council"). Its acts "may fairly be said to represent official policy" and therefore liability may be based upon such acts when they violate a plaintiff's rights.
Johnston asserts due process claims against each individual member of Council both in their official and individaul capacities. The claims against the individual Borough Council members in their official capacities are redundant of the claims against the Borough and therefore should be dismissed. See Melo v. Hafer, 502 U.S. 21, 25-26 (1991).
With respect to claims against the Borough Council members in their individual capacities, the Supreme Court has held that, "to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right." Melo, 502 U.S. at 25 (citation omitted). However, the Borough Council members cannot individually terminate a police officer's employment, but can only do so by voting as a group. A single member of a governing body cannot be held liable for decisions that are made by the body as a whole. See Kuzel v. Krause, 658 A.2d 856, 861 (Pa. Commw. 1995). As a result, the Borough Council members should be dismissed as defendants with respect to the due process claim.
Therefore, the Court need not address the argument for their dismissal based on qualified immunity.
Similarly, a municipal police department is not a separate entity from the municipality such that it can be sued for purposes of § 1983 liability. See Briggs v. Moore, 251 F. App'x 77, 79 (3d Cir. 2007); Johnson v. City of Erie, Pa., 834 F. Supp. 873, 878-79 (W.D. Pa. 1993). Likewise, neither the Mayor Whyel nor Daniele was Johnston's employer. Neither had a duty to provide notice and an opportunity to be heard nor the right to terminate Johnston's employment. See, e.g., 8 Pa. C.S. § 10A01. Moreover, while the mayor has certain statutory duties and is in charge of the police department, 8 Pa. C.S. §§ 10A07, 1123.1, Plaintiff's allegation that he spoke directly to him about his concerns is insufficent to state a due process claim against him. The mayor is not a member of council and was not the decision maker regarding Plaintiff's termination.
Therefore, Plaintiff has stated a due process claim against the Borough, but his due process claims against all other defendants should be dismissed.
b. Stigma Plus Claim
Plaintiff also asserts a claim in Count I under the "stigma-plus" test. The Court of Appeals for the Third Circuit has explained that:
In the public employment context, the "stigma plus" test has been applied to mean that when an employer "creates and disseminates a false and defamatory impression about the employee in connection with his termination," it deprives the employee of a protected liberty interest. Codd v. Velger, 429 U.S. 624, 628, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977). The creation and dissemination of a false and defamatory impression is the "stigma," and the termination is the "plus." When such a deprivation occurs, the employee is entitled to a name clearing hearing.Hill, 455 F.3d at 236 (footnote omitted).
To satisfy the "stigma" prong of the test, it must be alleged that the purportedly stigmatizing statement(s)(1) were made publicly, Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Chabal v. Reagan, 841 F.2d 1216, 1223 1224 (3d Cir. 1988); Anderson v. City of Philadelphia, 845 F.2d 1216, 1222 (3d Cir. 1988), and (2) were false. Codd, 429 U.S. at 627 629, 97 S.Ct. 882; Fraternal Order of Police v. Tucker, 868 F.2d 74, 82 83 (3d Cir. 1989).
In Hill, the plaintiff alleged that the mayor publicly defamed him by accusing him of wrongdoing, that the accusation were false, and that they tarnished his reputation. Thus, the court concluded that he sufficiently alleged the "stigma" prong of the "stigma-plus" test. Id. at 236-37. The court concluded that Hill also met the "plus" element based on his allegation that he was defamed in the course of being constructively discharged, even if, as a matter of state law, he lacked a property interest in the job he lost. Id. at 237-38. The Court of Appeals reinstated Hill's procedural due process claim for deprivation of his liberty interest in his reputation to the extent that the claim sought a name-clearing hearing (and certain other claims under the First Amendment, ADEA and PHRA) and remanded the case to the district court.
According to Defendants, Johnston makes nothing more than conclusory assertions claiming a violation of his Fourteenth Amendment right to a liberty interest in reputation and fails to allege any facts to support this claim. They argue that the only allegation regarding a statement by any North Braddock official is that ADA Weikart was told that Daniele accused Johnston of evidence tampering and showed several individuals in a district magistrate's office evidence of this tampering. ADA Weikart was also told that "Daniele had made it clear ... that he was terminating Plaintiff's ... employment[.]" (Compl. ¶¶ 91, 93.) Defendants note that the Complaint does not state when these statements were alleged to have been made, the specific identity of witnesses to the same, or the actual content of any statement attributed to Daniele.
Defendants also assert that Johnston's claims that his termination resulted in a "loss of reputation" and make him ineligible to qualify for higher paying law enforcement positions (Id. ¶¶ 139-40) are insufficient to support a cause of action for a violation of a liberty interest in reputation. They base this assertion on the fact that Johnston does not allege any specific damage to his reputation, including the identification of specific law enforcement positions for which he has applied or for which he has been passed over after this termination.
Johnston claims that his employer "created and disseminated a false and defamatory impression about the employee in connection with his termination." He has alleged both the "stigma" (slanderous public accusations about him by Daniele) and the "plus" (his firing). The fact that the Complaint does not allege that he applied for other positions and was passed over because of what was said about him, or the exact date when each defamatory statement was made, is simply not dispositive. The notice pleading standard of Fed. R. Civ.P. 8 does not require Johnston to plead this level of detail in his Complaint in order to state a claim for a stigma-plus violation.
As the Complaint asserts the requisite elements of a stigma-plus claim, his claim against the Borough is adequate to survive a motion to dismiss. For the same reasons address previously, however, the remaining defendants should be dismissed. Only his employer, the Borough, could provide Johnston with a name clearing hearing.
3. Claims Asserted in Count II
Plaintiff asserts a host of claims in Count II. Each will be addressed in turn.
a. Fourth Amendment Claim
As an initial matter, while Johnston refers to his "due process rights under the 4th and 14th Amendments" (ECF No. 23 at 7), the Fourth Amendment contains no due process clause. Moreover, although the title of Count II also refers to a "conspiracy to violate the 4th Amendment and 14th Amendment" (Compl. at 21) the body of Count II contains no allegations of a conspiracy. Therefore, these claims cannot be sustained.
The Fourth Amendment prohibits unreasonable searches and seizures. With respect to his Fourth Amendment rights, Johnston asserts that the recording of his conversation with Officer Lynn and the recording of his hand and phone being extended into the evidence cabinet constituted unreasonable searches.
Defendants argue that recording Johnston's conversation is not a "search" or a "seizure" for purposes of the Fourth Amendment. The Supreme Court has held that being required to submit a voice exemplar does not violate the Fourth Amendment because it "provides no protection for what a person knowingly exposes to the public.... Like a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world." United States v. Dionisio, 410 U.S. 1, 14 (1973) (citation omitted). See In re Grand Jury Proceedings (Mills), 686 F.2d 135, 138 (3d Cir. 1982) (same); United States v. D'Amato, 340 F. Supp. 1020, 1022 (E.D. Pa. 1972) ("The defendant's voice was no more seized than was her physical appearance.")
Defendants also argue that Johnston had no reasonable expectation of privacy when he placed his hand into a locked evidence cabinet. See United States v. Lewis, 666 F. App'x 173, 175 (3d Cir. Dec. 21, 2016); United States v. Cortez-Dutrieville, 743 F.3d 881, 884 (3d Cir. 2014).
Johnston did not address or rebut these matters in his brief. Even if he had, however, the recording of his conversation with another officer is not a violation of the Fourth Amendment. Further, he has not alleged that he had a reasonable expectation of privacy when he placed his hand into a locked evidence cabinet. Therefore, with respect to his Fourth Amendment claims, the motion to dismiss should be granted as to all defendants.
b. Wiretap Act
Defendants first argue that the Wiretap Act claim is "misjoined" to his claim relating to his loss of employment and should proceed in state court. However, this claim is properly before the Court as it is sufficiently related to other claims that have been asserted for which the Court has jurisdiction. See 28 U.S.C. § 1367(a) ("the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.")
Defendants cite cases involving the issue of whether a cause of action states a claim for relief that arises under federal law. However, Johnston's Wiretap Act claim is not asserted as an independent basis for jurisdiction.
Defendants also assert that Daniele has a First Amendment right to record Johnston that defeats his claim, citing Fields v. City of Philadelphia, 862 F.3d 353, 356 (3d Cir. 2017), for its holding that "the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public." See also Gaymon v. Borough of Collingsdale, 150 F. Supp. 3d 457, 466 (E.D. Pa. 2015). However, the cases cited by Defendants related to the public's right to record police activity that occurs in public, not a police chief's right to record conversations among his officers.
The Wiretap Act provided that any person whose oral communication is intercepted in violation of the Act may pursue a civil cause of action. 18 Pa. C. S. § 5725(a). The Pennsylvania Supreme Court has held that in order to establish a prima facie case under the Wiretap Act for interception of an oral communication, a claimant must demonstrate: "(1) that he engaged in a communication; (2) that he possessed an expectation that the communication would not be intercepted; (3) that his expectation was justifiable under the circumstances; and (4) that the defendant attempted to, or successfully intercepted the communication, or encouraged another to do so." Agnew v. Dupler, 717 A.2d 519, 522 (Pa. 1998). In Agnew, the court held that police officers had no expectation of privacy in conversations held in an open squadroom that were surreptitiously monitored by the chief over an intercom system.
Johnston alleges that he had a reaonable expectation that his private conversation would not be intercepted. He alleges that given the time of day, location, surroundings and circumtances, he had a resaonable expectation of privacy. No one else was in police station, he was not notified of the existence of any listening or recording devices in the building, and the Ring Doorbell recording device was not visible. (Compl. ¶¶ 159-62.) Whether his expectation was objectively reasonable under all of the existing circumstances is a factual issue that cannot be resolved on a motion to dismiss. Therefore, Defendants' motion to dismiss is denied as to Daniele, who is the party alleged to have to have taped and distributed Johnston's conversations. As none of the other defendants are alleged to have had any involvement in this matter, however, they are entitled to dismissal of this claim.
On the other hand, Johnston does not allege that he had an expectation of privacy when he placed his hand and cell phone into a locked evidence cabinet and even if he did, such an expectation is not one that would be reasonable under the circumstances. Therefore, Defendants' motion to dismiss should be granted as to all defendants with respect to this portion of his Wiretap Act claim.
It is also questionable whether Johnston's act of placing his hand and phone into the evidence cabinet constituted a "wire, electronic or oral communication." 18 Pa. C.S. § 5703.
4. Claims Alleged in Count III
Johnston again asserts two different causes of action in Count III: violation of the Pennsylvania Whistleblower Law, and wrongful discharge.
a. Whistleblower Law
Johnston alleges that his termination violated the Whistleblower Law. The Whistleblower Law provides a remedy for wrongful discharge, discrimination or retaliation when it is undertaken with a specific, unlawful intent. 43 P.S. §§ 1423-24. It precludes an employer from, among other things, discharging an employee in retaliation for the employee's act of making a good faith report, verbally or in writing, to the employer or an appropriate authority of an instance of wrongdoing by a public body or another employee, or when the employee is requested by an appropriate authority to participate in an investigation by an appropriate authority. 43 P.S. § 1423. "Wrongdoing" is defined in the statute as more than a mere technical or minimal violation of federal or state laws or regulations. 43 P.S. § 1422.
At the same time, it does not convey a property right in continued employment. See, e.g., Conrad v. Northumberland Cty., 2010 WL 454960, at *6 (M.D. Pa. Feb. 3, 2010).
The elements required to establish a retaliatory termination in violation of the Whistleblower Law are: (1) wrongdoing; (2) a report of wrongdoing; (3) an adverse employment action; and (4) a causal connection between the report of wrongdoing and the adverse employment action. See O'Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001).
Defendants argue that Johnston merely alleges that he had certain conversations with the FBI about Daniele's handling of evidence, but fails to allege that the Borough Council knew about it or that there was a causal link between the events. They also note that the Whistleblower Law is directed at "employers" and does not allow for individual liability.
While Defendants contend that the Complaint merely cites "nondescript conversations with agents of the FBI and the District Attorney's Office" (ECF No. 10 at 20), in fact, Johnston alleges that he reported criminal activity and alerted the DA's Office and the FBI that Daniele failed to submit evidence and hindered an active prosecution. (Compl. ¶¶ 58, 59, 175, 176.) The substance of these conversations, and their possible impact on the events that followed, cannot be determined until discovery is conducted on these issues.
In addition, Johnston also alleges a causal connection between his report of wrongdoing and his termination. As pleaded in the Complaint, after Johnston reported Daniele's conduct, Daniele allegedly made false statements about Johnston, indicated that he was going to get him fired, and told Council about his accusations that Johnston had engaged in evidence tampering. Plaintiff was terminated shortly thereafter. These allegations are sufficient to state a whistleblower claim.
Defendants argue that an employee must allege that he was directed not to report the wrongdoing because there would be adverse consequences if he did so. However, they rely on a case decided at the summary judgment stage, with a fully developed record. Golaschevsky v. Department of Envt'l Protection, 720 A.2d 757, 759 (Pa. 1998) (summary judgment was granted based on plaintiff's failure to present sufficient evidence to connect his report of wrongdoing to his dismissal). Here, a full record has not been developed. See Bielewicz v. Penn-Trafford Sch. Dist., 2011 WL 1486017, at *6 (W.D. Pa. Feb. 9, 2011), report and recommendation adopted, 2011 WL 1399839 (W.D. Pa. Apr. 13, 2011) (distinguishing Golaschevsky because the action was still at the pleading stage and plaintiff alleged in the complaint that she was retaliated against for questioning the propriety of defendants' actions).
Defendants also contend that Johnston cannot assert a whistleblower claim against any of the individual defendants because the Whistleblower Law does not provide for individual liability. The Whistleblower Law provides that any individual with supervisory authority over the complainant may be held liable for that employee's wrongful termination. More specifically, the statutory provisions prohibit discharge, discrimination or retaliation for reporting of wrongdoing or waste to the employer or an appropriate authority. The term "employer" is defined as "[a] person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body." 43 P.S. § 1422. In addition to the remedies provided in § 1425 of the Whistleblower Law (reinstatement, payment of back wages, reinstatement of fringe benefits and seniority rights, and/or damages), it also provides that a person who, under color of an employee's authority, violates the Law is "liable for a civil fine" of up to $500 and, under certain circumstances, may be suspended from public service. Id. § 1426. See Jordan v. Mel Blount Youth Home of Pennsylvania, 2006 WL 1495513, at *3 (W.D. Pa. May 26, 2006) (plaintiff could state a claim against supervisors under the Whistleblower Law).
Johnston allege that Daniele—his supervisor—retaliated against him for reporting his wrongdoing to an appropriate authority or for attempting to do so. According to the Complaint, Daniele retaliated against Johnston when he learned that Johnston had reported his conduct to the FBI by concocting false accusations which ultimately lead to Johnston's termination. Therefore, in addition to the Borough, which allegedly wrongfully terminated him, Johnston also has stated a claim against Daniele under the Whistleblower Law.
b. Wrongful Discharge
Johnston alleges that his termination constitued a wrongful discharge in violation of public policy.
The Pennsylvania Supreme Court has affirmed that: "Generally, an employer "may discharge an employee with or without cause, at pleasure, unless restrained by some contract. Absent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason. The employer's privilege to dismiss an employee with or without cause is not absolute however, and may be qualified by the dictates of public policy. Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998) (quoting Geary v. U.S. Steel Corp., 319 A.2d 174, 176 (Pa. 1974)). In Shick, a former employee who alleged that he was fired after he filed a claim for workers' compensation brought suit, contending that his discharge was unlawful as a violation of public policy. The court held that "an at will employee who alleges retaliatory discharge for the filing of a workers' compensation claim has stated a cause of action for which relief may be granted under the law of this Commonwealth." Id. at 1232.
Pennsylvania courts have also recognized a public policy exception for employees who were fired for filing unemployment compensation claims, Highhouse v. Avery Transp., 660 A.2d 1374, 1378 (Pa. Super. 1995); refused to take a polygraph test, Kroen v. Bedway Sec. Agency, 633 A.2d 628, 633 (Pa. Super. 1993); refused to commit a crime, Mikhail v. Pennsylvania Org. for Women in Early Recovery, 63 A.3d 313, 319 (Pa. Super. 2013); and participated in jury duty, Reuther v. Fowler & Williams, Inc., 386 A.2d 119, 120 (Pa. Super. 1978).
However, the Third Circuit Court of Appeals has held that under Pennsylvania law, an action for wrongful discharge may only be asserted if there is no available statutory remedy for the aggrieved employee. See Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1983). Courts have specifically applied this rule to bar common law claims where a plaintiff had a cognizable claim under the Whistleblower Law. See Angelini v. U.S. Facilities, Inc., 2018 WL 3155995, at *12 (E.D. Pa. June 27, 2018); Kent v. Keystone Human Servs., 68 F. Supp. 3d 565, 568 (M.D. Pa. 2014); Katzenmoyer v. City of Reading, Pa., 158 F. Supp. 2d 491, 503 (E.D. Pa. 2001); Freeman v. McKellar, 795 F. Supp. 733, 742 (E.D. Pa. 1992).
As indicated above, Johnston has stated a claim under the Whistleblower Law. Therefore, he may not state a claim for a wrongful discharge against the Borough. Moreover, as discussed previously, he was not terminated by any of the other defendants and as such, could not assert a wrongful termination against them. Therefore, Defendants' motion to dismiss should be granted.
5. WPCL Claim (Count IV)
In Count IV, Johnston seeks to be compensated for wages the Borough did not pay him pursuant to the WPCL. Defendants argue that they are entitled to dismissal of this claim because he did not allege what days he worked or what payments he failed to receive. However, the Complaint alleges that while Johnston was entitled to be paid for hours work prior to termination and for court time, as well as reimbursement for firearm instructor certification fees as required under the CBA, for which he was not compensated. He estimates that this amounts to approximately $5,000.00. (Compl. ¶¶ 191-93.) He also alleges that he was entitled under the CBA to be reimbursed for attending court as a witness and for training other officers in handling firearms, and to be paid time and a half for all hours he worked in excess of eight hours per day and forty hours per week during any work week. (Id. ¶¶ 25-27.) These allegations are more than sufficient to state a claim under the WPCL.
Similar to the other causes of action in the Complaint, however, Johnston has asserted this claim against all defendants. He was employed by the Borough, the only defendant that is potentially liable for failure to pay wages and other compensation to its employee. Therefore, with respect to Count IV, the motion to dismiss should be granted with respect to all of the individual defendants and denied with respect to the Borough.
III. Conclusion
In summary, Defendants' motion to dismiss should be granted in part and denied in part. The motion should be granted with respect to Plaintiff's claims under the Fourth Amendment, his wrongful discharge claim, and that portion of the Wiretap Act claim that relates to recording Plaintiff's conduct in connection with a locked evidence cabinet. It is further recommended that al Plaintiff's claims against the individual defendants, other than Defendant Daniele, should be dismissed. With respect to Defendant Daniele, the motion to dismiss should be granted regarding all claims against him other than the Wiretap Act claim arising out of the taping of Plaintiff's conversation and the Whistleblower Law claim. Defendants' motion to dismiss should be denied in all other respects.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by September 18, 2020. Any party opposing the objections shall file a response by October 2, 2020. Failure to file timely objections will waive the right of appeal. Dated: September 4, 2020
/s/_________
PATRICIA L. DODGE
United States Magistrate Judge