McIlmail v. Pennsylvania

381 F.Supp.3d 393

Michael MCILMAIL, Plaintiff,

v.Commonwealth of PENNSYLVANIA, Office of the Attorney General, et al., Defendants.

CIVIL ACTION No. 17-cv-2991

United States District Court, E.D. Pennsylvania.

May 14, 2019

Filed May 15, 2019

Donna Freidel, Talbot Kramer, Jr., Freidel & Kramer, P.C., Turnersville, NJ, for Plaintiff.

Daniel McGannon, Office of Attorney General, Harrisburg, PA, Megan K. Kampf, Office of Attorney General, Norristown, PA, for Defendants.

MEMORANDUM

Joyner, District Judge.

Before the Court are Defendants, the Pennsylvania Office of the Attorney General ("PA OAG") and Jonathan Duecker's, Motion for Summary Judgment (Doc. No. 22), Plaintiff Michael McIlmail's Opposition thereto (Doc. No. 30), Defendants' Reply in Support thereof (Doc. No. 31), and Plaintiff's Sur-reply thereto (Doc. No. 34). For the reasons set forth below, we GRANT in part and DENY in part Defendants' Motion.

I. Factual Background

This case arises from allegations that the PA OAG and its employee Defendant Duecker, for retaliatory and discriminatory reasons, constructively discharged Plaintiff Michael McIlmail, who, until his departure in November, 2014, held the position of a Narcotics Agent with the Pennsylvania Office of the Attorney General for nearly 20 years. Plaintiff McIlmail brings claims for lack of constitutional due process and for First Amendment retaliation under 42 U.S.C. § 1983, as well as claims of discrimination on account of race and religion under Title VII and related statutes.

The following facts are undisputed: From approximately 1996 until November 7, 2014, Plaintiff McIlmail was employed by the Pennsylvania Office of the Attorney General ("PA OAG") as a Narcotics Agent II ("NA II"). Def. Ex. B, McIlmail Depo. at 10. He was permanently assigned to the Organized Crime Unit ("OCU"), which was in the Bureau of Criminal Investigations ("BCI"). Compl. ¶14, Doc. No. 1 (hereafter "Compl."); Def. Stmt. Facts ¶29, Doc. No. 22. Plaintiff's regular work duties as a narcotics agent included "writing reports, making undercover purchases, testifying before the Grand Jury," "interview[ing] informants," and "work[ing] with the FBI" on drug cases. Plaintiff engaged in these duties from October 28, 2013 until March 21, 2014. Compl. ¶¶28, 30.

In October, 2013, Plaintiff's son died of a drug overdose. Id. at ¶24. As a minor, Plaintiff's son had been abused by a Catholic priest. Id. at ¶25. On March 22, 2014, Plaintiff attended a demonstration at a Catholic church in Philadelphia protesting the sexual abuse of children by Catholic priests. Id. at ¶¶31-33. Plaintiff's presence at the protest was made public when his picture was published in a Philadelphia Inquirer article reporting on the demonstration. Id. at ¶34. On March 24, 2014, Plaintiff was told by Charles Crawford, id. at ¶¶120-125, his direct supervisor at the time, that he would be removed from assisting the Child Predator Unit ("CPU") in serving a warrant. Id. at ¶¶35, 42, 43; Def. Mot. at 6. After being removed from the scheduled warrant, Plaintiff performed his usual duties as a narcotics agent. Compl. ¶46. "No administrators in [Human Resources] ever inquired" into Plaintiff's participation in the protest, and his removal from assisting CPU serving a warrant was "never a part of any internal agency investigation." Def. Mot. at 6; Def. Ex. B at 16. Defendant Duecker testified, however, that "sometime after [Plaintiff's] picture was in the paper, it was brought up by someone, not me, [at an executive staff meeting] as a potential issue." Def. Ex. I at 24-25.

On April 3, 2014, Plaintiff was told by Defendant Duecker that he was being investigated by the Office of Professional Responsibility ("OPR") and that pending the investigation Plaintiff would be "transferred from the [OCU] to the Education and Outreach division [of the PA OAG]," where Plaintiff "would now be working directly for Chief Duecker." Def. Ex. B at 24-25. In the same conversation, Defendant Duecker asked Plaintiff to surrender his duty firearm and badge. Compl. ¶¶46-48, 50, 53. Plaintiff complied, turning in his gun and credentials. Id. at ¶52; Def. Ex. B at 24-25.

Notedly, while Plaintiff was assigned to administrative duties in the Education and Outreach Unit, his job title remained "Narcotics Agent II." Pl. Ex. B at 25. Further, Plaintiff was never terminated nor suspended, and he maintained the same salary and benefits. Id. at 8-9, 24-25. Yet, he was no longer eligible for overtime pay as he had been when assigned to duties of a narcotics agent. Id. at 25.

On December 20, 2013, a complaint from outside the PA OAG, originating from the Bureau of Narcotics Investigations Philadelphia Police Department Task Force Officer, was made against Plaintiff McIlmail and other PA OAG narcotics agents, regarding their alleged mishandling of confidential informants ("CIs") and departure from OAG procedures during drug purchases. Def. Ex. D at 12. The outside complaint involved Plaintiff's practice, while working as an undercover narcotics agent, of giving unstamped cigarettes, undocumented money, and a license plate to CIs. Id. at 9, 13. An OPR investigation followed. The OPR report, dated May 20, 2014, detailed that Plaintiff admitted to "substandard methods of dealing with confidential informants" and it concluded that Plaintiff had violated OAG policy. Id. at 13-15.

Simultaneously, Plaintiff was also subject to a separate OPR investigation stemming from an outside complaint lodged on April 22, 2014, and received by First Deputy Attorney General ("First Deputy") Adrian King. Id. at 30. This complaint indicated "that multiple former and current OAG employees were sending or receiving sexually explicit messages through OAG electronic mail (email)." Def. Ex. C at 2, 7. In October, 2014, Plaintiff was notified that he was among the 62 OAG employees, Def. Ex. K at 31, being investigated for possession of inappropriate emails. Def. Ex. B at 27.

This OPR investigation "determined that NA McIlmail forwarded two emails containing sexually explicit content utilizing his OAG email account" and concluded that Plaintiff had violated the OAG Administrative Policy. Def. Ex. C at 3, 5.

These were the same claims brought against Plaintiff in a pre-disciplinary ("PDC") hearing. Plaintiff was notified on October 31, 2014 that a PDC would be held on November 4, 2014, with the purpose of reviewing the allegations against Plaintiff that he violated sections of the OAG's policy for Appropriate Use of Computer Resources and to give Plaintiff an opportunity to explain [his] actions before a final determination was made regarding any disciplinary action. Ex. E at 3. The PDC took place November 4, 2014, and both Plaintiff and his union attorney, Lawrence Moran, attended. Ex. D at 30. Plaintiff admitted in his deposition, "I sent inappropriate pictures to other people...I violated policy." Ex. D at 38, 49.

At his November 4th PDC, Plaintiff was asked if he wanted to submit a written statement, and he responded that he would submit one. Ex. D at 35-36. The record shows that a specific disciplinary action had not yet been decided at the time of Plaintiff's PDC, since Human Resources was waiting for Plaintiff to submit his written statement. Nicole Kreiser, Director of Human Resources at the relevant time, testified that she wrote a notation in her personnel committee notes that said, "[Redacted name] + Mc - try to get them to resign," Pl. Ex. C at 9, referring to Plaintiff McIlmail. Def. Ex. K at 35. Yet, she also testified that she did not recall the context of her note, that there was no discussion of firing Plaintiff and that a 10-day suspension for Plaintiff had been contemplated by disciplinary personnel. See Def. Ex. K at 34-37.

At some time before November 7, 2014, Plaintiff learned that other OAG employees had been terminated. Ex. D. Specifically, Plaintiff learned that Tom Sedor (whose termination Plaintiff learned of through his union attorneys) and John Palowski (who Plaintiff saw immediately after he was terminated, with "tears in his eyes"), had been fired. Additionally, he learned that these other employees had possessed nearly 200 pornographic images on their OAG email. Def. Ex. D at 50, 51.

Central to Plaintiff's claims, following the November 4, 2014 disciplinary hearing, Plaintiff had conversations with his union attorneys, Lawrence Moran and Melissa Murphy Weber. Id. at 39. Plaintiff testified that Mr. Moran told him by telephone there was a "50 percent chance" that Plaintiff would be fired, because of "political stuff," yet at that point acknowledging "[he didn't] know what's going on here." Id. at 39, 40. On hearing this, Plaintiff attributed his possible termination to his participation in the protest against abuse within the Catholic church, explaining to Mr. Moran, "I can't help but think that this is connected with the church." Id. at 43. Plaintiff testified that Mr. Moran agreed: "Yes, and [the target on your back], it's high up in the church." Id. at 53. Plaintiff further testified that Mr. Moran told him in another phone call that Plaintiff's termination was a certainty: "no ifs, ands or buts, you don't retire, you're getting fired," adding, "you're going to lose everything. You'll lose your medical, everything....I can't help but think 110 percent you got a target on your back." Id. at 41. The following day, according to Plaintiff's testimony, Mr. Moran told him "you absolutely will be fired if you don't retire. You need to retire if you want your medical benefits and your pension and all." Id. at 42.

Plaintiff's other attorney, Melissa Murphy Weber, echoed Mr. Moran's message, telling Plaintiff, "you will be fired today if you do not resign." Id. at 43. Ms. Weber offered to write a resignation letter on Plaintiff's behalf. Id.

On November 7, 2014, Plaintiff submitted a written resignation letter stating,

Since I have amassed the requisite amount of service time to receive retiree health care benefits, as well

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