Southerton v. Borough of Honesdale

RICHARD SOUTHERTON, Plaintiff, v. BOROUGH OF HONESDALE, et al., Defendants.

NO. 3:17-CV-00165

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

November 6, 2018

(JUDGE CAPUTO)

MEMORANDUM

Presently before me is a Motion for Summary Judgment (Doc. 67) filed by Defendants Borough of Honesdale, Mayor Melody Robinson, and Borough Council members Jeremy Ebert, Michael Augello, Chris Murray, and Michael Dux. Plaintiff Richard Southerton, Honesdale's Chief of Police, alleges that Defendants retaliated against him, in violation of the First Amendment, for his testimony at a grievance arbitration, statements to the press, and filing of this suit.¹ He also alleges he was not paid overtime, in violation of the Fair Labor Standards Act ("FLSA"). For the reasons that follow, although Southerton's First Amendment retaliation claim fails as a matter of law, he has produced sufficient evidence for his Petition Clause and FLSA claims to survive summary judgment. The Motion will therefore be granted in part and denied in part.

I. Background

On December 9, 2013, the Honesdale Borough Council created a job description for the position of Chief of Police. (Doc. 69 at ¶ 12 (Defendants' Statement of Undisputed Material Facts); Doc. 74 at ¶ 12 (Southerton's Answer to Defendants' Statement)). The job description listed a number of duties for the position, including "acting as chiefadministrative officer of the Honesdale Borough Police Department," "staffing all activities of the Department," recommending and administering discipline, "[h]andl[ing] complaints/grievances," and "respond[ing] to requests for information from media." (Doc. 52-3 at 2-4). On May 12, 2014, Southerton was appointed Chief of Police. (Docs. 69 and 74 at ¶ 3).

Southerton argues that three distinct events led Defendants to retaliate against him: his testimony during a subordinate's grievance arbitration, his statements to the press about a policy he disagreed with, and his filing of this suit.

The Colombo grievance arbitration. On August 31, 2016, Southerton participated in a grievance arbitration, in his capacity as Chief of Police, concerning the termination of his subordinate, Police Sergeant Keith Colombo. (Id. ¶¶ 34, 36). The arbitration was not transcribed, (id. ¶ 42), and there are factual disputes as to whether the arbitration was open to the public, whether it occurred during working hours, and whether Southerton testified under oath (id. ¶¶ 39, 45), but the arbitrator did issue a written decision (Doc. 70-6). The arbitrator summarized the factual background as follows:

Sgt. Colombo has been employed by the Boro since September 2010. . . . On December 7, 2015, [Southerton] summoned Sgt. Colombo to his office. He presented him with a four page document he had prepared[, which] contained a number of allegations of official misconduct by Sgt. Colombo. [These allegations included Colombo's (1) failure to promptly respond to a 911 call, (2) unauthorized appearance on behalf of part-time police officers at a Civil Service Commission meeting, and (3) mistreatment of an arrestee in his custody.] Based primarily upon these actions, the Chief suspended Sgt. Colombo for 10 days without pay and placed him on probation for "not less than 12 months." He also revoked "permission to work outside the department." And, he warned, that "[f]ailure to improve in your overall performance, attitude and positive responses to this disciplinary event . . . will result in your demotion and or termination." . . . Sgt. Colombo returned to work on December 24, 2015[, but was sent home upon his arrival. The Borough Council had already voted to terminate his employment on December 22, 2015.]

(Doc. 70-6 at 3-5). The arbitrator concluded a few weeks later that even if Southerton's written charges and testimony at the arbitration were true, the Borough Councildid not have "just cause" to discharge Colombo, as required by Article XXX of the collective bargaining agreement between the Borough and the police union. (Id. at 6-8). The Council "had no right to discipline [Colombo] a second time for the same offenses" Southerton disciplined him for, so the arbitrator ordered Colombo's reinstatement. (Id. at 8).

Following the grievance arbitration, Defendants refused Southerton access to police department personnel files, refused to address his concerns regarding officer scheduling, requested that he resign, and stripped Southerton of his scheduling and disciplinary responsibilities, effectively demoting him to a mere police officer. (Doc. 52 at ¶¶ 26-33; Doc. 74-9 at 23-34). Mayor Robinson even assigned scheduling responsibility Southerton's subordinates, telling Southerton to direct any questions or concerns to either his subordinates or the mayor herself. (Doc. 74-7). Councilman Jennings testified at his deposition that he believed Defendants' actions—specifically, revoking Southerton's scheduling, disciplinary, and personnel file maintenance authority—were taken in retaliation for Southerton's testimony at the Colombo arbitration. (Doc. 74-10 at 4). Southerton agrees; in his own words, "I think they retaliated against me because of my testimony. . . . I told them [Colombo] did this, he did that. I don't think they wanted that to get out. I think they wanted to bring Colombo back and that's the best I can explain it." (Docs. 69 and 74 at ¶ 50).

The River Reporter article. On November 16, 2016, The River Reporter published an articled titled "Honesdale mayor steps up." (Id. ¶ 54). Southerton "was interviewed for and quoted in" the article, and "was on duty" and speaking "in his capacity as Chief of Police" when being interviewed. (Id. ¶¶ 55-57).

The article discusses, among other things, a "Memorandum of Understanding (MOU) pursuant to the Safe Schools Act" between local schools and law enforcement agencies. (Doc. 70-9 at 2). The MOU stated "that the law enforcement agencies named [including the Honesdale Borough Police Department] will respond to requests from assistance" from local public schools. (Id.). According to the article, Mayor Robinson noted at a November 14, 2016 Council meeting that Southerton objected to signing the MOU. (Id.). Southertonexplained to the reporter by phone on November 15 that he refused to sign over "concern[s] about the school's discretion in referring incidents to the borough police." (Id.). Southerton was quoted as saying: "My department has been accused of failing to handle appropriately incidents of which it was not even aware[.] . . . How can we respond to something we don't even know about?" (Id.). From Southerton's perspective, his "refusal to sign the MOU [wa]s a form of passive protest" that did not prevent the police from assisting local schools, or prevent the Mayor herself from signing the MOU on the police department's behalf. (Id.).

Retaliation ensued, according to Southerton, in the form of the Council entertaining a complaint filed against him on December 14, 2016 by his subordinate, Police Lieutenant Robert Langman. (Doc. 52 at ¶¶ 35, 37). Langman's complaint accused Southerton of wrongdoing, and specifically mentioned Southerton's testimony at Colombo's grievance arbitration. (Id.). The Council considered Langman's complaint despite the fact that Langman failed to follow department procedure. (Id. ¶ 37). Nor did Southerton receive a requested public hearing regarding the complaint. (Doc. 74-9 at 176:18-25). Ultimately, however, the Council "decided not to go forward with any charges," (id. at 178:15-17), and Borough Solicitor Rich Henry informed Southerton "that all the complaints were unfounded," (id. at 181:4-5). No discipline against Southerton followed. (Id. at 177:8-10). And nothing else happened "[e]xcept for Keith Colombo carrying on with everybody saying that [it's] not over because the borough council has never come back and voted on whether it's unfounded or not, and he continually . . . brings that up at the . . . police department." (Id. at 181:13-20).

Filing suit. Finally, on January 30, 2017, Southerton filed the instant suit. (Doc. 52 at ¶ 50; Doc. 1). The original complaint contained the same allegations that have already been discussed: that Defendants retaliated against Southerton for testifying at Colombo's grievance arbitration and speaking to the press about his refusal to sign the MOU. (See Doc. 1). After filing suit, Southerton alleges that he suffered retaliation in the form of "wage, hours and benefits issues" with Defendants, who "have deliberately not provided [Southerton] with pay and benefits as a result of filing this lawsuit" even though "every otherpolice officer has had his pay corrected." (Doc. 52 at ¶¶ 54, 55). Southerton testified at his deposition that Borough Secretary Judy Poltanis even told him that "they're not going to do anything [with respect to these issues] because of the federal lawsuit." (Doc. 74-9 at 184:9-10).

Southerton also claims that from "late 2013 through 2017, [he] worked over 40 hours in a work week" but the Borough "failed to pay him time and a half" as required by the FLSA and the collective bargaining agreement in place between the Borough and the police union. (Doc. 52 at ¶¶ 45-46).

After a few amendments to his complaint, Southerton has settled on four claims: First Amendment retaliation (Count I); Negligent training, i.e., Monell liability for Count I (Count II); failure to pay overtime in violation of the FLSA (Count III); and retaliation in violation of the Petition Clause of the First Amendment (Count IV). (See Doc. 52). Defendants filed the instant Motion for Summary Judgment (Doc. 67) on July 17, 2018. Defendants challenge Southerton's First Amendment retaliation and Petition Clause claims largely on the grounds that Southerton engaged in employee speech, not citizen speech, and that his speech and lawsuit are not matters of public concern. The Monell claim must also fail, Defendants say, because there is no underlying constitutional violation. Additionally, th...