Psota v. New Hanover Twp.

DENNIS A. PSOTA, Plaintiff, v. NEW HANOVER TOWNSHIP, et al., Defendants.

Civil Action No. 20-5004

United States District Court, E.D. Pennsylvania

December 29, 2021

OPINION

Slomsky, J.

TABLE OF CONTENTS

I. INTRODUCTION ....................................................................................................................1

II. BACKGROUND ......................................................................................................................2

A. Plaintiff's Employment with New Hanover Township Police Department ................2

1. Plaintiff's Report of Time Theft and Ensuing Harassment .......................................2

2. First Loudermill Notice and Traffic Assignment ......................................................3

3. Weingarten Hearing, Second Loudermill Notice, and Loudermill Hearing .............5

B. Plaintiff's Resignation and the 2019 Election for Magisterial District Judge ......................................................6

C. Post-Resignation Brady Referral ...................................................................................7

D. This Litigation and Defendants' Motion to Dismiss the Amended Complaint ...................................................9

III. STANDARD OF REVIEW ...................................................................................................12

IV. ANALYSIS .............................................................................................................................15

A. Plaintiff's Claims Against the Township .....................................................................15

1. Section 1983 Claims Against the Township: Monell Liability ...............................15

a. Monell Liability: Violations of Plaintiff's Constitutional Rights ..................16

i. Fourteenth Amendment Liberty Interest in Employment ...................16

ii. Fourteenth Amendment Liberty Interest in Reputation: Stigma Plus ............................................................24

iii. First Amendment Retaliation Claim ...................................................28

b. Monell: Second Prong Regarding Retaliation Claim ....................................34

i. Township Policy, Custom, or Deliberate Indifference ........................34

ii. Delegation and Ratification .................................................................37

2. Plaintiff's State Law Claims Against the Township ...............................................43

a. Immunity Under the Political Subdivision Tort Claims Act .........................44

b. Pennsylvania Whistleblower Law .................................................................45

c. Violation of Pennsylvania Constitution .........................................................48

B. Plaintiff's Claims Against Individual Defendants ......................................................49

1. Section 1983 Claims Against Individual Defendants: Qualified Immunity .................................................49

a. Qualified Immunity: Violations of Plaintiff's Constitutional Rights ............49

b. Qualified Immunity: Whether Right Was Clearly Established .....................51

2. State Law Claims Against Individual Defendants ..................................................55

a. Immunity Under the Political Subdivision Tort Claims Act .........................55

b. Pennsylvania Whistleblower Law .................................................................56

c. Defamation ....................................................................................................56

d. False Light Defamation .................................................................................62

C. Punitive Damages ..........................................................................................................63

V. CONCLUSION ......................................................................................................................65

I. INTRODUCTION

On September 21, 2020, Plaintiff Dennis Psota, a former police officer with the New Hanover Township Police Department, initiated this case in the Court of Common Pleas of Montgomery County against New Hanover Township (the “Township”), the New Hanover Township Police Department (the “Department”), Department Police Chief Kevin McKeon (“Chief McKeon”), Township Manager Jamie Gwynn (“Manager Gwynn”), and Magisterial District Justice Maurice H. Saylor (“Justice Saylor”).^[1] (See Doc. No. 1 ¶ 1.) On October 9, 2020, the case was removed to this Court based on federal question jurisdiction, (see id. at 1), and on October 16, 2020, Defendants filed a Motion to Dismiss the Complaint (Doc. No. 6).

In turn, Plaintiff filed an Amended Complaint. (Doc. No. 10.) This filing led to the first Motion to Dismiss being denied without prejudice as moot. (See Doc. No. 11.) In the Amended Complaint, Plaintiff asserts claims in seventeen counts which arise under 42 U.S.C. § 1983 (“Section 1983”) and Pennsylvania state law. (See id. ¶¶ 135-317.) The Amended Complaint did not name the Township Police Department as a defendant. On July 8, 2021, the Court dismissed the Department from this case. (See Doc. No. 19.) The remaining Defendants are the Township, Chief McKeon, and Township Manager Gwynn (collectively, “Defendants”; McKeon and Gwynn together are referred to as the “Individual Defendants”).

Before the Court is Defendants' Motion to Dismiss the Amended Complaint (“Motion to Dismiss, ” or “Motion”) in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. No. 12.) On December 10, 2020, Plaintiff filed a Response in Opposition to the Motion (Doc. No. 14) (“Response”), and on December 16, 2020, Defendants filed a Reply (Doc. No. 15) (“Reply”). On June 24, 2021, the Court held a hearing on the Motion. (See Doc. No. 17.)

The Motion is now ripe for disposition. For reasons stated infra, Defendants' Motion to Dismiss (Doc. No. 12) will be granted in part and denied in part.^[2]

II. BACKGROUND^[3]

A. Plaintiff's Employment with New Hanover Township Police Department

1. Plaintiff's Report of Time Theft and Ensuing Harassment

Plaintiff Dennis Psota is a former police officer employed by the New Hanover Township Police Department. (See Doc. No. 10 ¶ 1.) Throughout his 23-year law enforcement career, Plaintiff “ha[s] never been accused of providing testimony . . . that was not credible” in any case- criminal or civil. (Id. ¶ 50.)

Under Pennsylvania law, New Hanover Township is “governed and supervised by”^[4] a Board of Supervisors (“the Board”), “which is comprised of five members . . . .” Board of Supervisors, NEW HANOVER TOWNSHIP, PA, https://www.newhanover-pa.org/departments/administration.php.^[5] The Board is vested with the authority to, inter alia, “organiz[e] and supervis[e]” a police department for the Township and to “determine the number and the compensation of the police officers.” 53 PA. CONS. STAT. § 66902; see also Santiago v. Warminster Twp., 629 F.3d 121, 135 n.11 (3d Cir. 2010). Defendant Jamie Gwynn is the Township Manager, ^[6] and Defendant Kevin McKeon is the Chief of Police. (See Doc. No. 10 ¶¶ 4-5.)

On July 13, 2017, a police Sergeant in the Department (the “Sergeant”) allegedly received compensation from the Township for hours that he did not actually work based upon a false submission by the Sergeant. (See id. ¶¶ 9, 11, 13(c).) After Plaintiff became aware of this “theft of employee hours[, ]” he reported it to Manager Gwynn. (Id. ¶ 140; see also id. ¶¶ 9, 13(c).)

According to Plaintiff, following this report of wrongdoing, Chief McKeon engaged in a pattern of harassment toward Plaintiff. McKeon instructed another officer “not to talk to Plaintiff because he was a ‘rat' and could not be trusted.” (Id. ¶ 13(a).) McKeon also “ignored Plaintiff, would not greet him, and did demeaning activities to him that he did to no other officer.” (Id. ¶ 13(b).) On August 24 or 25, 2017, Chief McKeon filed a complaint against Plaintiff's wife at her workplace for not saying “hi” to him. (Id. at ¶ 13(d).) About a month later, on September 27, 2017, he filed a disciplinary charge against Plaintiff for his alleged mishandling of a traffic stop of a truck. (Id. ¶ 13(e).)

2. First Loudermill Notice and Traffic Assignment

On October 6, 2017, Plaintiff mentioned to a member of the Township Board that Chief McKeon had reprimanded him. (Id. ¶ 45.) After so doing, Plaintiff was charged with insubordination and issued his first Loudermill^[7] notice with a proposed one-day suspension. (Id.)

This notice was later withdrawn by Defendant Township, but Plaintiff alleges that Chief McKeon's harassment continued. (Id.)

On October 13, 2017, Chief McKeon filed a disciplinary complaint against Plaintiff for reporting his harassment. (Id. ¶ 13(f).) On March 7, 2018, McKeon “fabricated a story to the [Manager Gwynn] that Plaintiff wanted all orders in writing.” (Id. ¶ 13(g).) “On June 8, 2018, Chief McKeon yelled at Plaintiff for getting a car wash outside of [the Township].” (Id. ¶ 13(h).) On August 3, 2018, Chief McKeon had a confrontation with Plaintiff. (Id. at ¶ 13(i).) While Plaintiff was learning a new evidence system from county tech personnel, Chief McKeon stated to Plaintiff “Get out of my way.” (Id.) Another confrontation occurred a few weeks later, on August 27, 2018. (Id. ¶ 13(j).) Plaintiff alleges that Chief McKeon interrupted Plaintiff and put his hand up toward Plaintiff's face. (Id.) This pattern of harassment was “commonly known throughout the police department” and “Plaintiff had reported the harassment to a Corporal in the Department and other officers had witnessed and discussed it.” (Id...