Wilkicki v. Brady

882 F. Supp. 1227

Joseph E. WILKICKI, Jr., Plaintiff, v. Michael BRADY, et al., Defendants.

No. Civ. A. No. 93-0510 P.

United States District Court, D. Rhode Island.

April 25, 1995.

John W. Dineen, Providence, RI, for plaintiff.

Marc DeSisto, Providence, RI, for defendants.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

Plaintiff Joseph E. Wilkicki, Jr. ("Wilkicki") brought this action pursuant to 42 U.S.C. § 1983, alleging that he was discharged from public employment as a police officer in retaliation for his exercise of protected First Amendment activities. In addition, he brings two pendant state claims against defendants. This case is now before the Court for further consideration of the plaintiff's motion for summary judgment. For the reasons set forth below, this court grants summary judgment for the defendants.

I.

Plaintiff initially moved for summary judgment on July 16, 1994. On September 22, 1994 this Court issued a Memorandum and Order denying the motion without prejudice. However, in that Memorandum, the Court identified an issue concerning the waiver of plaintiff's First Amendment rights that is critical to the viability of this action. As a result, I required both plaintiff and defendants to file supplemental pre-trial memoranda addressing the factual and legal components of this issue. Although I denied the motion without prejudice, this issue is part and parcel of that motion for summary judgment. Both parties did, in fact, submit further briefs and the instant Memorandum and Order followed accordingly. In light of the foregoing, it is appropriate to consider the original denial without prejudice of plaintiff's motion for summary judgment as a stay of final judgment pending further briefing.

I also note that this Court has the authority to render summary judgment in favor of the nonmoving party even though he or she has made no formal cross-motion under Rule 56. See National Expositions v. Crowley Maritime Corp., 824 F.2d 131, 133 (1st Cir.1987) (citations omitted). Provided that the "losing party" is put "on notice that she had to come forward with all of her evidence" a court may enter summary judgment sua sponte. National Expositions, 824 F.2d at 133 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986)). This "notice" requirement consists of providing "an adequate opportunity to demonstrate why summary judgment should not be granted" to the party against whom judgment is entered. 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720, at 27.

It is clear that the plaintiff in this case had an adequate opportunity to address the issue upon which this entry of summary judgment is premised; in fact, this Court acknowledged the critical nature of the waiver issue in the September Memorandum and Order, noting its "potential to undermine the action." Memorandum and Order, 9/22/94 at 7. As I noted above, both sides were requested to and did submit further briefs.

II.

The appropriate standards for granting summary judgment are clear:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Fed.R.Civ.P. 56(c) (emphasis added). It is well settled that the party moving for summary judgment has the burden of demonstrating that the above test has been satisfied. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). "Because the burden is on the movant, the evidence presented to the court always is construed in favor of the party opposing the motion and he is given the benefit of all favorable inferences that can be drawn from it." 10A C. Wright, A. Miller & M. Kane, supra § 2727, at 124-25. See also, Continental Cas. Co. v. Canadian Universal Ins. Co., 924 F.2d 370, 373 (1st Cir.1991). Upon motion, summary judgment is "mandated ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case...." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552 (1986). In the instant matter, because I am considering, sua sponte, a "motion" for summary judgment by the defendants, defendants bear the burden of proof and I will construe the evidence in the light most favorable to the plaintiff.

III.

In the original Memorandum and Order of September 22, 1994, I summarized the detailed, and partially contested events that preceded plaintiff's discharge and initiation of suit. In the interest of providing a self-contained ruling, I recount these events below.

Plaintiff was hired by the Town of Charlestown as a Probationary Patrolman in the Charlestown Police Department ("Department") in November of 1977. In December of 1980 he was promoted to Sergeant, and in July of 1983 he was promoted to Lieutenant. From May through September 1987 plaintiff was appointed Acting Police Chief. In September of 1987 defendant Michael Brady ("Brady") was appointed Chief of Police for the Town of Charlestown. Plaintiff resumed his position as second in command and continued his position as Lieutenant.

In September of 1990 Brady filed a departmental complaint against Wilkicki alleging misconduct. Plaintiff was charged with inappropriately accessing information from the computer of another police officer without authorization and taking supervisory rights in contravention of department policy. Plaintiff was suspended, and in October of 1990 Brady ordered an investigation of plaintiff with respect to additional allegations of misconduct unrelated to those set forth in the September complaint. While on suspension, Wilkicki assembled an itemized list of complaints against Brady. In November of 1990, Brady filed a complaint with the Rhode Island State Police alleging that Wilkicki had attempted to extort him through the charges that Wilkicki had made about him and the administration of the department. No charges of criminal complaints resulted from Brady's allegations.

In December of 1990, plaintiff mailed a letter to the Charlestown Town Council detailing the above mentioned charges against Brady and listing a number of complaints concerning the administration of the Department. Wilkicki subsequently sent copies of the letter to individual members of the Town Council. The itemized complaints concerned the personal situation of the plaintiff, the internal workings of the department, as well as a number of issues of public concern, including, but not limited to, improper use of town funds. Plaintiff requested investigation of these charges. In January of 1991, Wilkicki sent another letter to the Town Council, made note of two additional charges, and incorporated the prior complaints.

On March 7, 1991, Brady amended his departmental complaint against Wilkicki by adding charges that he violated Department rules and regulations with regard to filing a complaint against a fellow officer, that Wilkicki had attempted to extort Brady by going public with his charges and that Wilkicki had violated the "chain of command" by taking said charges to the Town Council pursuant to the above noted letters. Brady sought Wilkicki's termination as a police officer.

Prior to a law enforcement Bill of Rights Hearing in March of 1991, Wilkicki and Brady had a preliminary meeting and entered into some form of agreement that resolved the charges against the plaintiff. Both parties were represented by attorneys. Pursuant to this agreement, Wilkicki agreed to withdraw his public complaints against Brady in a letter to the Town Council. The exact wording of the withdrawal letter was to be agreed upon by the parties. Plaintiff was also "reassigned" from Lieutenant to Sergeant and placed on probation for one year. The terms of the Consent Order were read into the record on March 26, 1991 at a Bill of Rights Hearing. All parties agreed that there would be no statements made with respect to the settlement conference or the agreement.

The parties dispute whether or not a draft letter had been agreed upon the night of the preliminary meeting. In addition, it was the belief of the plaintiff that Brady had breached the terms of the Consent Order. Wilkicki subsequently refused to withdraw the charges made against Brady to the Town Council.

Wilkicki returned to work in April of 1991 as a Sergeant and thereafter, in September of 1991 moved to be reinstated to the rank of Lieutenant. On or about the same time, Brady demanded that Wilkicki withdraw his complaints made to the Town Council and filed a departmental complaint against him for his refusal to do so, alleging that Wilkicki was violating a direct order. Plaintiff's reinstatement was approved and the order was subsequently rescinded after Brady was granted a request for a temporary restraining order by the Washington County Superior Court.

On February 20, 1992 Brady suspended Wilkicki for two days for failing to comply with his order of September, 1991, and again ordered plaintiff to withdraw the charges he had made against Brady to the Town Council. Plaintiff refused and was given an additional two day suspension. On March 3, 1992 Brady filed a new departmental complaint against plaintiff alleging insubordination by failing to execute a direct order of a Lieutenant LeFebvre and by failing to comply with Brady's direct order to withdraw the aforementioned charges. On March 4, 1992 Wilkicki sent another letter to the Town Council reiterating the original charges against Brady and asking again for an investigation. On March 6, 1992 Brady amended his departmental complaint, alleging that Wilkicki had again breached the chain of command and moved for his termination as a police officer. As a result, plaintiff was suspended pending the outcome of a Bill of Rights Hearing. A November 1992 decision found...