Ambrose v. Township of Robinson, Pa.

• Citation: 303 F.3d 488
• Decision Date: 04 September 2002
• Docket Number: No. 01-1871.,No. 01-3229.,01-1871.,01-3229.
• Parties: Terry L. AMBROSE, v. TOWNSHIP OF ROBINSON, PENNSYLVANIA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

303 F.3d 488

Terry L. AMBROSE, v. TOWNSHIP OF ROBINSON, PENNSYLVANIA, Appellant.

No. 01-1871.

No. 01-3229.

United States Court of Appeals, Third Circuit.

September 4, 2002.

COPYRIGHT MATERIAL OMITTED

David P. Helwig (Argued), Marks, O'Neill, O'Brien & Courtney, Pittsburgh, PA, Samuel P. Kamin, Goldberg, Kamin & Garvin, Pittsburgh, PA, for Appellant, Township of Robinson.

Joseph H. Chivers, III (Argued), Pittsburgh, PA, for Appellee, Terry L. Ambrose.

Before NYGAARD, ROTH, and WEIS, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

The issue on appeal is whether the District Court should have entered a judgment as a matter of law for Robinson Township in this First Amendment retaliation case involving one of its police officers. We find that there was insufficient evidence that the officer's speech was a motivating factor in his suspension, and that the District Court's "perceived support" theory does not provide a legal basis for liability. We will reverse and remand the cause to the District Court for it to enter judgment in favor of the Township.

I.

Until his recent retirement, Appellee, Terry Ambrose, was a sergeant in Robinson Township's police department. Ambrose was suspended from his position for thirty days in 1999. He then brought this suit alleging that he was suspended in retaliation for his aid and/or support of a fellow officer's lawsuit against the Township.

The fellow officer, James Felt, had sued Robinson Township for a series of "adverse consequences" he allegedly suffered at work. Felt v. Township of Robinson, No. 99-330 (W.D.Pa.1999). These "adverse consequences" included a suspension, frequent criticisms, threats of disciplinary action, the arbitrary changing of his schedule, accusations of unlawful conduct, demands for repayment of amounts paid in a settlement, and precluding him from effectively discharging his duties. Felt alleged that the adverse consequences occurred because he participated in a series of raids on three establishments where police suspected that video poker machines were being used for gambling.

On May 13, 1999, Ambrose executed an affidavit regarding facts known to him relevant to Felt's case. In his affidavit, Ambrose identified facts suggesting that illegal gambling has been and continues to be a problem in Robinson Township. He further asserted that these facts, at the very least, have been ignored by senior managers and officials in the Township. Ambrose's affidavit was received by David Helwig, who was Robinson's lawyer in the Felt lawsuit, on June 17, 1999 as part of a document production. The complete document production, including Ambrose's affidavit, was then forwarded by Helwig to Robinson Township solicitor Sam Kamin. Robinson Township manager Berne Dudash received a letter from attorney Robert Garvin of Kamin's office on July 12, 1999 stating that the Felt document production included certain documents which apparently could only have been obtained from the township's administrative offices. Garvin's letter made no reference to Ambrose's affidavit.

On June 11, 1999, which is before Ambrose's affidavit was received by the Township, Detective Steve Lipa was advised by one of the radio dispatchers that Ambrose had been seen going into the administrative spaces of the municipal building where the police department is located. This occurred after normal business hours, but during Ambrose's normal working shift. The administrative offices house information pertaining to negotiations over collective bargaining agreements with Township employees, and correspondence between Township officials and the Township's attorneys. Detective Lipa passed this information along to Chief Vietmeier, who in turn told the Township's Commissioners on June 14, 1999. Upon hearing this, the Commissioners instructed Chief Vietmeier to investigate.

Vietmeier reviewed the videotapes from a surveillance camera positioned above the entrance to the administrative spaces, and they showed Ambrose entering the administrative spaces. Vietmeier's investigation also revealed that daily activity logs prepared by Ambrose for May 29 and July 1, 1999 allegedly indicated that Ambrose was performing duties outside the municipal building when he actually was in the administrative offices.

Chief Vietmeier gave Ambrose a "Loudermill hearing"¹ on July 8, 1999 in connection with his entry into the closed administrative offices and the allegedly misleading entries in his daily activity log. Ambrose admitted that he entered the administrative offices, but said he did so to copy police department forms because the police department's photocopy machine made poor copies. Ambrose denied in his deposition and trial testimony that he made copies of documents produced in the Felt lawsuit while he was in the administrative offices.

On July 9, 1999, Vietmeier informed Ambrose in writing that he was suspended without pay conditional upon a review by the Board of Commissioners. The letter identified the following reasons for the suspension: conduct unbecoming a member of the department; entering a locked municipal building without permission or authority; and false statements concerning official documents.

The Commissioners met and discussed Ambrose's actions on July 12, 1999. During the discussions, Ambrose was accused of copying documents for Officer Felt in aid of Felt's lawsuit against the Township. Although there was discussion of termination, the Commissioners voted to suspend Ambrose for thirty working days. Ambrose is currently appealing his suspension before the Civil Service Commission of Robinson Township.

Ambrose filed this lawsuit pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, as amended, and the Pennsylvania Whistleblower Law, 43 Pa. Cons.Stat. Ann. § 1421 et seq. Ambrose alleged that the real reason he was suspended was because he had provided an affidavit in support of Officer Felt's lawsuit against the Township, and he alleged that this violated his First Amendment rights. A jury returned a verdict in Ambrose's favor and awarded him $6,200.00 in back wages. He was also awarded $32,678.59 in attorney's fees and costs by the District Court pursuant to 42 U.S.C. § 1988.

Robinson Township appealed claiming numerous errors.² We only need to consider one of them because we find that the District Court erred by denying the Township's motion for a judgment as a matter of law. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

II.

The Township's first allegation of error is that the District Court should have granted its motion for a judgment as a matter of law. We apply the following standard on review:

We exercise plenary review of an order granting or denying a motion for judgment as a matter of law and apply the same standard as the district court. Wittekamp v. Gulf & Western Inc., 991 F.2d 1137, 1141 (3d Cir.1993). Such a motion should be granted only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability. Id. In determining whether the evidence is sufficient to sustain liability, the court may not weigh the evidence, determine the credibility of witnesses, or substitute its version of the facts for the jury's version. Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 190 (3d Cir.1992), cert. denied, 507 U.S. 921, 113 S.Ct. 1285, 122 L.Ed.2d 677 (1993). Although judgment as a matter of law should be granted sparingly, a scintilla of evidence is not enough to sustain a verdict of liability. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir.1993). "The question is not whether there is literally no evidence supporting the party against whom the motion is directed but whether there is evidence upon which the jury could properly find a verdict for that party." Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir.1978) (citation omitted) (quotation omitted). Thus, although the court draws all reasonable and logical inferences in the nonmovant's favor, we must affirm an order granting judgment as a matter of law if, upon review of the record, it is apparent that the verdict is not supported by legally sufficient evidence.

Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993). Therefore, if there is insufficient evidence to support a jury verdict, we should remand to the district court with instructions to enter a judgment as a matter of law for the Township.

A.

We apply a three-step test to Ambrose's claim that he was suspended in retaliation for exercising his First Amendment rights. Bd. of County Comm'rs. v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). First, a plaintiff must show that his conduct was constitutionally protected. Id. Second, he must show that his protected activity was a substantial or motivating factor in the alleged retaliatory action. Id. Finally, the defendant may defeat the plaintiff's case "by showing that it would have taken the same action even in the absence of the protected conduct." Id. See also Green v. Philadelphia Hous. Auth., 105 F.3d 882, 885 (3d Cir.1997).

The Township argues that Ambrose never met his initial burden of showing that his affidavit was a substantial or motivating factor in the Commissioners' decision to suspend him since he did not produce any evidence showing that any of the Township Commissioners knew about his affidavit before they voted to suspend him on July 12, 1999. All of the Commissioners who voted for the suspension testified that they knew nothing about the affidavit before they voted. If the Commissioners did not know about the affidavit, the Township argues, it could not have been a substantial or motivating factor in their decision. Therefore, Robinson Township contends that the District Court should have entered judgment in its favor.

It is only intuitive that for protected conduct to...