Robert J. MITCHELL, Plaintiff, v. Mayor John F. STREET and The City of Philadelphia, Defendants, 415 F. Supp. 2d 490

MEMORANDUM ROBERT F. KELLY, Senior District Judge. I. INTRODUCTION Presently pending before this Court is the Defendants’, Mayor John F. Street (“Mayor Street”) and the City of Philadelphia, Motion for

Summary Judgment. On July 7, 2004, Mitchell filed his Complaint with this Court. Mitchell’s Complaint contains three counts. Specifically, the counts are: Violation of the First & Fourteenth Amendment and 42 U.S.C. § 1983 (Count I); Violation of

Article I,

Section I, of the Pennsylvania Constitution (Count II); and Violation of

Article I,

Section XI, of the Pennsylvania Constitution (Count III). Defendants have moved for

summary judgment on all three counts. For the following reasons, Defendants’ Motion is denied. However, as will be explained in infra

Part IV.B, Counts II and III of the Complaint will be dismissed without prejudice. II. BACKGROUND Plaintiff, Robert J. Mitchell (“Mitchell”) is the former Deputy Police Commissioner for the City of Philadelphia. Mitchell held that title from 1996 until 2004. In early 2004, a rumor began to circulate that Mitchell had obtained an illegal gun permit. In late February, 2004, the media picked up the story and reported that Mitchell allegedly possessed an illegal gun permit. Initially, Police Commissioner Sylvester Johnson (“Johnson”) announced his support for Mitchell at a press conference on February 26, 2004.

That same day, Mayor Street called a meeting to discuss the gun permit issue. Present at this meeting were Mayor Street, Johnson, Mitchell, Mayor Street’s Chief of Staff Joyce Wilkerson (“Wilkerson”), Communications Director Barbara Grant (“Grant”) and Police Counsel Karen Simmons, Esquire (“Simmons”). At the meeting, Mitchell denied any wrongdoing with respect to the gun permit.

The parties dispute the actual outcome of this meeting as it related to Mitchell’s continued employment, however, what is certain is that on February 27, 2004, at a press conference, Mayor Street stated that Mitchell would be taking a leave of absence from his position as Deputy Police Commissioner. An investigation then commenced into the gun permit issue. On March 11, 2004, Mitchell filed a complaint in Equity with the Court of Common Pleas of Philadelphia County.

The complaint sought to enjoin Mayor Street and the City of Philadelphia from removing him from his post as Deputy Police Commissioner pending the results of the investigation regarding the gun permit. On May 26, 2004, Philadelphia District Attorney Lynne Abraham announced the results of her investigation into the gun permit issue. The District Attorney concluded that Mitchell had engaged in no wrongdoing whatsoever. On May 27, 2004, Mitchell appeared on the Michael Smerconish (“Smerconish”) radio program.

During this appearance, Smerconish and Mitchell discussed the District Attorney’s public announcement regarding the gun permit issue and her findings that Mitchell engaged in no wrongdoing. On June 1, 2004, Mitchell received a letter from Johnson terminating his employment. Mitchell subsequently filed his Complaint with this Court approximately one month later. III.

STANDARD “Summary judgment is appropriate when, after considering the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains in dispute and ‘the moving party is entitled to judgment as a matter of law.’ ” Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir.1991) (citations omitted). The inquiry is “whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact. Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1362 (3d Cir.1992). Once the moving party has produced evidence in support of

summary judgment, the non-movant must go beyond the allegations set forth in its pleadings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63.

Summary judgment must be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). IV. DISCUSSION Defendants have moved for

summary judgment on all three counts. Under Count I, Defendants assert that no genuine issue of material fact exists regarding Plaintiffs claim for retaliation under both his First Amendment right to free speech and his right to petition. Second, under Counts II and III, Defendants assert that there is no cause of action for damages under the Pennsylvania Constitution. Finally, Mayor Street asserts he is shielded from liability based upon the doctrine of qualified immunity. These arguments will be considered in turn. A. COUNT I Count I actually contains two separate causes of action.

First, Mitchell asserts that the Defendants retaliated against him and terminated his employment based upon the filing of his equity complaint with the Court of Common Pleas of Philadelphia County. Mitchell asserts this violated his right to petition the government for a redress of grievances. Additionally, Mitchell asserts that he was fired in retaliation for exercising his free speech rights by appearing on the Smerconish radio program. The parties are in agreement as to the elements that make up both of these claims.

Both claims require the following three-step analysis: [fjirst, plaintiff must show that he engaged in a protected activity. Second, plaintiff must show that the protected activity was a substantial factor motivating the dismissal decision. Finally, defendant may defeat plaintiffs claim by demonstrating that the same action would have taken place even in the absence of the protected conduct. San Filippo v. Bongiovanni, 30 F.3d 424, 430 (3d Cir.1994) (citations omitted). I will consider these elements as they relate to Plaintiffs right to petition and free speech causes of action. 1.

Protected Activity The first step requires this Court to consider whether Mitchell engaged in a protected activity under his right to petition and free speech claims. As to his right to petition, Defendants concede that the filing of Mitchell’s equity complaint with the Court of Common Pleas of Philadelphia County was a protected activity. However, Defendants vigorously contest that Mitchell engaged in any protected activity under his free speech claim.

The United States Court of Appeals for the Third Circuit (“Third Circuit”) has noted that in a claim for retaliatory discharge from government employment, the plaintiff “must establish that the conduct which triggered the discharge was protected under the first amendment.” San Filippo, 30 F.3d at 434.

Specifically: [w]here the alleged retaliation is based on expressive conduct constituting speech, a court must first determine whether or not the speech can be fairly characterized as addressing a “matter of public concern,” for a governmental employee who makes public comments about problems not of “public concern” has no first amendment immunity against employer discipline. Id. “A public employee’s speech involves a matter of public concern if it can be fairly considered as relating to any matter of political, social or other concern to the community.” Baldassare v.

N.J., 250 F.3d 188, 195 (3d Cir.2001)(internal quotation marks and citation omitted). Thus, a court must focus on the “content, form, and context of the activity in question.” Id. (citing Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Watters v. City of Phila., 55 F.3d 886, 892 (3d Cir.1995)). Furthermore, “[t]he content of the speech may involve a matter of public concern if it attempts to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials.” Id. (internal quotation marks and citations omitted).

Determining whether the public employee’s speech involved a matter of public concern is a question of law for the court. Id. (citing Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Green v. Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir.1997)). The parties dispute whether Mitchell’s appearance on the Smerconish radio program to discuss the gun permit issue and the District Attorney’s findings constituted a matter of public concern. Defendants assert that this case is similar to Connick v.

Myers, 461 U.S. 138, 103 S.Ct. 1684, and that I should therefore find as a matter of law that Mitchell’s speech did not involve a matter of “public concern.” However, for the following reasons, I find that Connick is distinguishable from the instant case. In Connick, the plaintiff, Shiela Myers (“Myers”), was employed as an Assistant District Attorney in New Orleans for five and one half years. 461 U.S. at 140, 103 S.Ct. 1684. Myers was informed that she would be transferred to prosecute cases in a different

section of the criminal court. Id. Myers opposed this transfer and she then “prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” Id. at 141, 103 S.Ct. 1684. She then distributed the questionnaire to her co-workers the next day. Id. Later that day, Myers was terminated by Harry Connick (“Connick”) the District Attorney for Orleans Parish for refusing the transfer.

Myers brought suit under 42 U.S.C. § 1983, asserting that she was wrongfully terminated because she had exercised her constitutionally protected right to free speech by distributing the questionnaire. Id. The United States Supreme Court (“Supreme Court”) noted that practically all of Myers questions did “not fall under the rubric of matters of ‘public concern.’ ” Id. at 145, 108 S.Ct. 1684.

The Supreme Court noted that the questionnaire did not seek to inform the public that the District Attorney’s office was discharging its governmental responsibilities in the investigation or prosecution of criminal cases in an improper manner nor did the questionnaire seek to bring to light actual or potential wrongdoing on the part of Connick or others. Id. The Supreme Court continued by noting that the questions posed by Myers reflected her dissatisfaction with her transfer and her “attempt to turn that displeasure into a cause celebre.” Id.

Unlike the majority of the questions posed in Connick, however, I find that the issues discussed on the Smerconish radio program did involve matters of public concern. Unlike Connick, the gun permit issue involved possible illegal activity and corruption on the part of a high ranking government official, namely Mitchell. As previously noted, the courts have stated that matters of public concern can include attempts to bring to light actual or potential wrongdoing on the part of government officials. See Baldassare, 250 F.3d at 195 (citations omitted).

Thus, it follows that the discussion on the Smerconish radio program regarding the District Attorney’s investigation and findings regarding the possible wrongdoing and/or illegality of how Mitchell received the gun permit involved matters of “public concern.” The instant case goes beyond the intra-office dissatisfaction in Connick since there is the additional element of potential wrongdoing/illegality that brought the gun permit issue to the forefront of the public sphere in the first place.

Therefore, as Mitchell’s appearance on the Smerconish radio program involved a matter of “public concern,” Mitchell engaged in a protected activity under the law. 2. Substantial Factor Motivating the Dismissal The next step in the analysis is to determine whether Mitchell’s protected activities were a substantial factor which motivated the decision to terminate Mitchell’s employment. The Defendants assert that Mitchell cannot satisfy this element. The Plaintiff asserts that he can survive

summary judgment with respect to this element by discrediting the Defendants’ reasons for his termination. For the following reasons, I agree with Plaintiffs position. To survive

summary judgment, “a plaintiff must point to some evidence, direct or circumstantial, from which a fact-finder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994) (citations omitted). In this case, Mitchell attempts to discredit the Defendants reason for his termination. The Defendants assert that the decision to fire Mitchell was made at the February 26, 2004 meeting.

Thus, it is the Defendants’ position that Mitchell could not be retaliated against for his protected activities because the decision to fire him occurred before any of the protected activities occurred. However, I find that there are factual inconsistencies in the record that would allow a reasonable fact finder to find Defendants’ proffered reason unworthy of credence. See Fuentes, 32 F.3d at 765 (citations and footnote omitted). For example, the Defendants assert that the decision to fire Mitchell was made at the February 26, 2004 meeting. This meeting was called to discuss the gun permit issue.

No party suggests that budgetary concerns were discussed at this meeting as it related to Mitchell’s further employment as Deputy Police Commissioner. Yet, Johnson’s press conference on June 1, 2004 detailing Mitchell’s termination and the corresponding news coverage explains that Mitchell was fired for budgetary reasons. (See Pl.’s Resp. Defs.’ Mot. Summ. J., Ex. O). This and other inconsistencies in the record discredit Defendants’ proffered theory of Mitchell’s termination enough so as to create material issues of fact as to this element. 3.

Same Action Would have been Taken Absent the Protected Activity Defendants do not address this third element of Plaintiffs right to petition and free speech claims. Therefore, I find it unnecessary to address it in the context of deciding Defendants’

Summary Judgment Motion. As there are material issues of fact remaining as to all three elements of Plaintiffs right to petition and free speech retaliation claims, I find

summary judgment is inappropriate as it relates to Count I of Mitchell’s Complaint. B. COUNTS II AND III Counts II and III seek money damages under the Pennsylvania Constitution,

Article I,

Section I and

Article I,

Section XI respectfully. The Defendants assert that

summary judgment should be granted in their favor because Plaintiff cannot maintain a cause of action under the Pennsylvania Constitution for money damages. For the following reasons, based upon the discretion given to me as stated under 28 U.S.C. § 1367(c)(1), I will decline to exercise supplemental jurisdiction over these two counts and dismiss them without prejudice.

Section 1367(c)(1) states that “[t]he district courts may decline to exercise supplemental jurisdiction over a claim ... if the claim raises a novel or complex issue of state law.” As one court in this District has recently noted, “[t]he question of whether there exists a ‘right of action for money damages against government officials of the Pennsylvania Constitution’ is unclear.” Gremo v. Karlin, 363 F.Supp.2d 771, 794 (E.D.Pa.2005)(quoting Robbins v. Cumberland County Children & Youth Serv., 802 A.2d 1239, 1251 (Pa.Cmwlth.Ct. 2002)); compare Erdman v. Mitchell, 207 Pa. 79, 90-91, 56 A. 327, 331 (1903)(holding that there is a right of action for injunctive relief under the first

article of the Pennsylvania Constitution); Harley v. Schuylkill County, 476 F.Supp. 191, 195-96 (E.D.Pa.1979)(extending Erdman to apply to claims for damages); Jones v. City of Phila., 2004 WL 3104795, 68 Pa. D. & C.4th 47, 68-75 (Pa.Com.Pl.2004) (writing in support of its determination that

Article I of the Pennsylvania Constitution is self-executing and permits private parties to seek civil remedies for constitutional violations); with Millar v. Windsor Township, No. 04-2529, 2005 WL 1513120, at *3-4 (M.D.Pa. June 24, 2005)(stating that there is a dearth of ease law on the issue and declining to exercise jurisdiction over the state constitutional claims because deference to the state appellate courts is appropriate); Tillman v. Alonso, No. 04-4391, 2005 WL 1311588, at *5-6 (E.D.Pa. May 31, 2005) (explaining the uncertainty of the state of the law on the issue of bringing a state constitutional claim under

Article I and declining to exercise jurisdiction over state constitutional claims because of this uncertainty); Mulgrew v. Fumo, No. 03-5039, 2004 WL 1699368, at *2-4 (E.D.Pa. July 29, 2004)(explaining that the issue of whether a direct right of action under

Article I of the Pennsylvania Constitution is unclear and declining to exercise supplemental jurisdiction over these state constitutional claims). In light of the unclear state of the law on Mitchell’s state constitutional claims, I find that the most appropriate course of action in this particular case is to decline supplemental jurisdiction over Counts II and III of the Complaint pursuant to 28 U.S.C. 1368(e)(1). Therefore, Counts II and III will be dismissed without prejudice. C.

QUALIFIED IMMUNITY Finally, Defendant Mayor Street asserts that he is entitled to qualified immunity. “Qualified immunity is available to government officials performing discretionary functions.” Lodato v. Ortiz, 314 F.Supp.2d 379, 385-86 (D.N.J.2004)(citing Harlow v.

Fitzgerald, 457 U.S. 800, 816, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[Government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (citing Procunier v. Navarette, 434 U.S. 555, 565, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975)).

A court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [government official’s] conduct violated a constitutional right? This must be the initial inquiry.... If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.

On the other hand, if a violation could be made out on a favorable view of the parties’s submissions, the next, sequential step is to ask whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)(internal citation omitted). Regarding the first part of the qualified immunity test, as set out in supra

Part IV.A., I have found that Mitchell has alleged a violation of his constitutional rights to be free from retaliation for filing his equity complaint and for speaking out on a matter of public concern. Therefore, the first part of overcoming- Mayor Street’s qualified immunity has been satisfied by Mitchell. Next, I note that the Defendants do not attempt to make any type of argument as to the second part of the qualified immunity test.

Specifically, the Defendants sole argument with respect to qualified immunity is that, “[b]ecause the plaintiff cannot establish that his constitutional rights were violated, Defendant Mayor Street is entitled to qualified immunity, and, therefore, judgment in his favor.” (Mem. Law. Supp. Defs.’ Mot. Summ. J., at 11). Thus, Mayor Street does not attempt to contest that both of these rights were clearly established at the time he acted. However, it is clear that both of these rights were established at the time Mayor Street acted.

See Watters, 55 F.3d at 891 (stating that “it is essential that public employees be able to speak out freely on questions of public concern without fear of retaliatory dismissal.... Judicial vigilance is required to ensure that public employers do not use their authority to silence discourse on matters of public concern simply because they disagree with the content of the employee’s speech.”) (citations omitted); San Filippo, 30 F.3d at 441-443 (“The mere act of filing a non-sham petition is not a constitutionally permissible ground for discharge of a public employee.”); Bennis v.

Gable, 823 F.2d 723, 733 (3d Cir.1987)(stating that the law was clearly established that d public employee could not be retaliated against for exercising his rights under the First Amendment). Thus, I find Defendant Mayor Street shall not be entitled to qualified immunity. Y. CONCLUSION In conclusion, I find that

summary judgment is improper as to Count I of the Complaint. I find that material issues of fact remain in Mitchell’s claims for retaliation under the First Amendment’s free speech and right to petition clauses. Additionally, I conclude that because Counts II and III raise novel and complex issues of state law, I will decline supplemental jurisdiction over these state constitutional claims and dismiss them without prejudice. Finally, I have concluded that Defendant Mayor Street is not entitled to qualified immunity. An appropriate Order follows. ORDER AND NOW, this 16th day of August, 2005, upon consideration of the Defendants’ Motion for

Summary Judgment (Doc. No. 11), and the Response and Replies thereto, it is hereby ORDERED that: 1. the Motion is DENIED; and 2. Counts II and III of the Complaint are DISMISSED WITHOUT PREJUDICE. . That complaint was dismissed as moot by the Court of Common Pleas on June 11, 2004. (See Defs.' Mot. Summ. J. Ex. E). . Mitchell previously appeared on the Smerconish show on March 4, 2004 after the announcement by Street that Mitchell was suspended from his position as Deputy Police Commissioner. .“A fact is material if it could affect the outcome of the suit after applying the substantive law.

Further, a dispute over a material fact must be 'genuine,' i.e., the evidence must be such 'that a reasonable jury could return a verdict in favor of the non-moving party.'" Compton v. Nat'l League of Prof'l Baseball Clubs, 995 F.Supp. 554, 561 n. 14 (E.D.Pa.1998) (citations omitted), aff'd, 172 F.3d 40 (3d Cir.1998). . The Defendants do not contest that the Plaintiff has met the threshold for there to be municipal liability under Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Thus, I will not engage in a discussion of this issue. .

As set out in San Filippo, "a public employer may dismiss an employee for speech addressing a matter of public concern if the state’s interest, as an employer, in promoting the efficiency of its operations outweighs the employee's interest, as a citizen, in commenting upon matters of public concern.” 30 F.3d at 434 n. 11 (citation omitted). However, ”[t]his balancing test comes into play only if the public employer concedes that it dismissed an employee because of the employee's protected speech but contends that it was justified in doing so.” Id.; see also, Dennison v. Pa.

Dep’t of Corr., 268 F.Supp.2d 387, 399 (M.D.Pa.2003). The Defendants deny that they fired Mitchell because of his allegedly protected speech so as to deem the balancing test inapplicable. Furthermore, neither party asserts that the balancing test should be utilized in this case. . While Fuentes was a Title VII case, courts have noted that "[p]retext analysis used in Title VII cases is also useful in deciding First Amendment retaliation claims.” Cavicchia v. Phila. Hous. Auth., No. 03-0116, 2003 WL 22595210, at *9 n. 2 (E.D.Pa. Nov.7, 2003), aff'd, 137 Fed.Appx. 495 (3d Cir.2005)(nonprecedential)(citing Azzaro v.

County of Allegheny, 110 F.3d 968, 981 (3d Cir.1997)(en banc); Feldman v. Phila. Hous. Auth., 43 F.3d 823, 831 (3d Cir.1994); Zappan v. Pa. Bd. of Prob. & Parole, No. 00-1409, 2002 WL 32174230, at *11 (E.D.Pa. Nov.25, 2002); Rodriguez v. Torres, 60 F.Supp.2d 334, 340 n. 2 (D.N.J.1999) Fogarty v. Boles, 938 F.Supp. 292, 299 n. 4 (E.D.Pa.1996), aff’d, 121 F.3d 886 (3d Cir.1997)). .

Additionally, with respect to the free speech retaliation claim, the Third Circuit has noted that the temporal proximity between the employee’s protected activity and the adverse employment action "is an obvious method by which a plaintiff can proffer circumstantial evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.1997)(internal quotation marks and citations omitted). In this case, Mitchell appeared on the Smerconish radio program and was terminated less than one week later.

It is worth noting, however, that Mitchell’s termination was also soon after the District Attorney made her findings with respect to the gun permit issue. . This decision is particularly prudent in light of the fact that it appears that the issue of "whether a cause of action for money damages arises under the state constitution is an issue currently pending before the Commonwealth Court of Pennsylvania." Millar, 2005 WL 1513120, at *3 n. 5 (citing City of Phila. v. Jones, No. 795-CD-2004 (Pa. Commw. Ct. filed Apr. 19 2004)). "Argument was heard by the [Commonwealth] court en banc on June 8, 2005." Id.