McAndrew v. Bucks Cnty. Bd. of Comm'rs

183 F.Supp.3d 713

James McAndrew, Plaintiff

v.Bucks County Board of Commissioners, et al., Defendants.

William J. Klein, Plaintiff

v.County of Bucks, et al., Defendants.

CIVIL ACTION NOS.: 2:12-CV-4676-CDJ

2:12-CV-4809-CDJ

United States District Court, E.D. Pennsylvania.

Signed April 29, 2016

William J. Fox, Law Offices of William J. Fox PC, Philadelphia, PA, Gregg L. Zeff, Zeff Law Firm LLC, Drake P. Bearden, Jr., Costello & Mains, Mt. Laurel, NJ, Jennifer L. Prior, Kraemer Manes & Associates LLC, King of Prussia, PA, for Plaintiff.

Frank A. Chernak, William K. Kennedy, Ballard Spahr Andrews & Ingersoll LLP, Erin K. Clarke, Rebecca L. Massimini, Ballard Spahr LLP, Philadelphia, PA, for Defendants.

MEMORANDUM

Jones, J., District Judge

Now pending before the Court is Defendants' Motion for Summary Judgment against William Klein (Dkt No. 32) [hereinafter "MSJ"], Defendants' Statement of Undisputed Material Facts (Dkt No. 34) [hereinafter "Defs.' SUMF"], Plaintiff Klein's Joint Response (Dkt No. 41–2) [hereinafter "Pls.' Resp."],¹ Plaintiffs' Joint Counterstatement of Material Facts (Dkt. No. 41–1) [hereinafter "CSOF"], Defendant's Reply Brief (Dkt. No. 46) [hereinafter "Rep."], Defendant's Response to Plaintiffs' Counterstatement of Material Facts (Dkt. No. 47) [hereinafter "Defs.' Resp. to CSOF"], and other supporting documents. Defendants move for summary judgment against Plaintiff William Klein in his action alleging a violation of his First and Fourteenth Amendment rights to free speech as well as his rights under the Pennsylvania Whistleblower Law.² After a thorough review of the motion and the parties' respective briefing, and for the reasons below, the Motion will be GRANTED IN PART, DENIED IN PART.

STATEMENT OF FACTS

I. Plaintiff Klein's Background

Plaintiff Klein is a former Bucks County Sheriff's Deputy. (CSOF ¶ 2.) Klein undertook his Sheriff's Academy training in the late summer of 2006, and began working shortly thereafter in the Bucks County Sheriff's Department's Sheriff's Detention Unit. (CSOF ¶ 2.) In 2009, Klein joined the Warrant Unit, where he worked under the supervision of Sergeant Gary Browndorf. (CSOF ¶ 2.) He was reassigned from the Warrant Unit to the Detention Unit in late August of 2011. (CSOF ¶ 2.)

II. Plaintiffs' Observed Malfeasance and Ensuing Speech

Plaintiff Klein, and his former partner and co-Plaintiff in this consolidated action, James McAndrew, observed and reported several instances of malfeasance while employed by the Bucks County Sheriff's Department. The allegations explained in greater factual detail below, include: lapsed and forged firearm certifications, a lack of policies and procedures concerning the use of force, sleeping on the job, poor vehicle maintenance and corruption.

A. Lapsed and Forged Firearms Certifications

Plaintiff Klein, a certified firearms instructor and armorer, learned in early 2010 that a fellow firearms instructor, Lieutenant Thomas French, was not certified to be a firearms instructor. (Amend. Compl. ¶ 17-18; Klein Dep. 38:18-39:20, Oct. 28, 2013, ECF No. 41-4.) Klein then raised the issue with a number of departmental personnel, including several other deputies and Lieutenant Thomas Waltman. (Klein Dep. 39:15-40:7.) Sheriff Donnelly, after learning about the certification situation, instructed recertification to be completed "quietly." (Klein Dep. 41:17-24.) Shortly thereafter, Klein learned that Deputy Oliver Groman—one of Bucks County Sheriff Department's certified armorers—approved the certifications of approximately fifty deputies. (Klein Dep. 43:5-44:9.) Klein asserted that he "knew that these certifications were done illegitimately because Groman was not present during range qualifications."³ (Klein Dep. 43:2-12.) Sometime later, Klein discussed the issue with David Rouland, an investigator in the Bucks County Controller's Office, and Bucks County Commissioner Diane Ellis-Marseglia. (Klein Dep. 51:4-24.)

B. Lack of "Use of Force" Policies and Procedures

Plaintiff Klein, and his partner, McAndrew, both complained about a lack of departmental use of force procedures to their supervisors. (Klein Dep. 59:22-60:4; McAndrew Dep. 139:16-140:15, Nov. 22, 2013, ECF No. 41-6.) Specifically, Klein was concerned that the lack of use of force protocols and guidelines created a risk to the safety of officers and citizens, as well as potential liability for the county. He communicated these concerns to Sheriff Donnelly and Lieutenant Waltman. (Klein Dep. 62:24-63:21.) Although his position did not entail "promulgating, creating, or enforcing policies," Klein began drafting a use of force policy. (Klein Dep. 65:10-12.) Klein, when asked whether he discussed this issue any further with the Sheriff, responded that the "Sheriff told me not to talk to him anymore to go through my chain of command." (Klein Dep. 67:11-15.) When pressed to elaborate, Klein explained that it was not clear whether Donnelly was referring to the use of force issue, or all of Klein's complaints. (Klein Dep. 67: 12-18.)

C. Sleeping Deputy

Plaintiff Klein reported that he observed a fellow Sheriff's Deputy sleeping in the courtroom. (Klein Dep. 182:22-183:4.) Klein testified at his deposition that this deputy was "known for being in a courtroom and either doing Sodoku puzzles or sleeping or just basically not doing what he was supposed to be doing." (Klein Dep. 183:9.) After a particular incident where Klein caught this Deputy sleeping, Klein reported the sleeping deputy to Corporal Golder. (Klein Dep. 184:1-2.) When it appeared to Klein that the supervisors were ignoring the issue, Klein followed up with Corporal Prudish. (184:24-185:4.) From Corporal Prudish, the report appeared to work its way up the chain of command—from Corporal Prudish to Corporal Golder, from Golder to Sergeant Wilson, from Wilson to Lieutenant Waltman, and from Waltman to Sergeant Gary Browndorf. (Klein Dep. 185:2-10.) Klein testified during his deposition that Golder, Wilson, and Waltman "went nuts" over the report—criticizing Klein for "ratting out a fellow union member." (Klein Dep. 185:4-15.) Specifically, Klein testified that "Waltman said that Klein is up here starting trouble...And he was apparently in the office saying that I was going to be fired for ratting out a fellow union member." (Klein Dep. 185:12-15.)

D. Poor Vehicle Maintenance

Plaintiff Klein complained about the state of the cars he shared with McAndrew. (Klein Dep. 127:15-128:16.) During their tenure in the Warrant Department, Klein and McAndrew were assigned to three cars, each of which, they contend, was maintained in a state of "disrepair." (Klein Dep. 126:2-4.) At the direction of Lieutenant Waltman, and possibly Corporal Spicer, Klein and McAndrew would submit work orders for their vehicles. (Klein Dep. 135:18-136:7.) Klein testified at his deposition, however, that service was never actually completed; rather, the mechanics "would plug in a scan tool and delete the fault code that sets off your check engine light telling you to service the vehicle." (Klein Dep. 128:8-11.) After driving the vehicle for a short time after servicing, the check engine light would reappear and Klein and McAndrew would take the vehicle to be re-serviced. (Klein Dep. 128:11-16.) Issues seemed to come to a head in early June of 2011, when Pete McElroy, the individual in charge of departmental vehicle maintenance, complained about the state of Klein and McAndrew's vehicle to other members of the Sheriff's Department. (Klein Dep. 129:24-130:6; 131:4-20.) The issue was ultimately resolved when Klein wrote an email "justif[ying] all the issues that Pete McElroy had raised or at least explain[ing] them." (Klein Dep. 134:19-24.)

Klein also complained that, in his opinion, the assigned vehicles did not meet the standards required by the Pennsylvania Motor Vehicle Code because they did not have sirens or "appropriate lighting." (Klein Dep. 136:12-16.) The lack of sirens or lighting, in Klein's estimation, impeded his ability to respond to "assist officer" calls.⁴ (Klein Dep. 137:5-138:2.) Klein testified at his deposition that he "probably" raised this issue with Lieutenant Waltman and Sheriff Donnelly, but they failed to act. (Klein Dep. 136:17-23.) When Chief Shook joined the Department, Klein raised the issue with Shook. (Klein Dep. 136:17-137:5.) Klein went so far as to point the newly hired Chief to a provision of the Motor Vehicle Code Klein believed the Department had been violating, although it is not clear which provision. (Klein Dep. 136:17-137:5.) Shook directed Klein to use his car's horn to move through traffic. (Klein Dep. 138:4-9.)

E. Corruption

Plaintiff Klein, and his partner, McAndrew, complained about four different types of perceived "corrupt" activity in which they were forced to participate: (1) monitoring the political activity of fellow deputies, (2) receiving county funds for distributing Sheriff Donnelly's campaign material at public events, (3) assembling and posting political signs throughout Bucks County in support of Sheriff Donnelly's campaign, and (4) fixing mechanics' estimates for department vehicle repair.⁵

First, Plaintiffs complained that they were directed by departmental leadership to ascertain whether their colleagues supported Sheriff Donnelly's re-election. (Klein Dep. 71:8-12; McAndrew Dep. 64:18-21, 76:3-23.) Specifically, Klein alleged that Sheriff Donnelly called Sergeant Gary Browndorf—Klein and McAndrew's supervisor—to ask Browndorf to direct "one of his guys" to observe a deputy's lawn. (Klein Dep. 71:5-9.) The purpose of the observation, Klein alleges, was to determine whether the deputy in question had a lawn sign supporting Sheriff Donnelly's election opponent. (Klein Dep. 71:8-12; 75:2-4.) Browndorf then asked McAndrew to carry out the Sheriff's request. McAndrew, with Klein, complied. (Klein Dep. 75:19-20.) McAndrew later complained to Sergeant Wilson, and, along with Klein, to Defendant Marseglia. (McAndrew Dep. 78:24-79:6; Mar...