Morgan v. Covington Twp.

Decision Date11 August 2011
Docket NumberNos. 09–2528,09–4644.,s. 09–2528
Citation648 F.3d 172,32 IER Cases 1081
PartiesWilliam A. MORGAN, Appellantv.COVINGTON TOWNSHIP; Sgt. Bernard Klocko, individually; Thomas M. Yerke, Township Chairman, individually.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Cynthia L. Pollick, Esquire (Argued), The Employment Law Firm, Pittston, PA, for Appellant.John G. Dean, Esquire, Paula L. Radick, Esquire, Joel M. Wolff, Esquire (Argued), Elliott Greenleaf & Dean, Scranton, PA, for Appellees.Before: AMBRO, FISHER and GREENBERG, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

This case involves two lawsuits concerning the investigation and subsequent termination of plaintiff-appellant William Morgan, a former police officer with Covington Township, Pennsylvania.1 We reverse the District Court's decision to dismiss Morgan's second case on res judicata grounds and affirm in all other respects.

I. Background

In 2007, when the events underlying this case took place, Morgan was employed by Covington Township as a police officer. In July and August of that year, he was involved in two incidents that eventually resulted in disciplinary charges.

First, Morgan was accused of attempting to interfere in another officer's investigation of a “verbal altercation” between Morgan's ex-girlfriend, Jill Mailen, and a security guard, Carla Sodano. (This stemmed from Mailen's mistaken belief that Sodano was in a relationship with Morgan.) Following the altercation, Sodano made a complaint against Mailen, and Sergeant Klocko ordered the investigating officer to issue Mailen a citation. Sometime thereafter, Morgan—who had no official role in the investigation—reportedly approached Sodano's supervisor to ask whether she could be convinced to withdraw her complaint against Mailen. Additionally, Klocko asserted that Morgan then told him and the investigating officer that he (Morgan) was taking care of the situation and that the charges would be dropped. Morgan denies this assertion.

Second, Morgan entered the empty apartment of Jamie Villani, his most recent ex-girlfriend, possibly without permission. When Morgan left the apartment, he neglected to shut the back door. To state the obvious, Villani was surprised and upset when she arrived home. She reported this incident to Klocko.

On August 16, 2007, Klocko notified the Covington Township Board of Supervisors of these events, and asserted that they were part of a larger pattern of “inefficient performance of duties.” In particular, Klocko characterized Morgan's intervention in the Mailen/Sodano situation as criminal conduct amounting to “official oppression, intimidation of witnesses or victims, and/or retaliation against witnesses, victim, or party.” Klocko recommended that Morgan be suspended without pay. The next day, Covington Township filed disciplinary charges against Morgan and informed him that he had a right to respond to the charges in writing, to request a public hearing, and to be represented by counsel. Morgan, through counsel, invoked his right to a public hearing.

The disciplinary charges against Morgan were suspended shortly thereafter, when Klocko notified the Pennsylvania State Police of Morgan's possible commission of “official oppression,” and placed Morgan on administrative leave with pay. The Pennsylvania State Police ultimately declined to investigate. Klocko then referred the case to the Lackawanna County District Attorney, who also declined to pursue the matter. Once those avenues were exhausted, Covington Township reinstituted the disciplinary charges against Morgan and added an additional charge of conduct unbecoming an officer. Morgan, who again requested a public hearing, was continued on paid administrative leave. Morgan's hearing was scheduled for November 5, 2007.

Before that hearing, Morgan filed a complaint in federal District Court (“ Morgan I ”). He alleged that all three Covington defendants had: 1) violated his procedural due process rights by publicizing the charges against him and failing to afford him a hearing before suspending him with pay; and 2) violated the First Amendment by retaliating against him for his decision to request a public hearing by referring for possible prosecution his intervention in the Mailen/Sodano situation. He also alleged that Covington Township had failed to train its employees, resulting in a constitutional injury to Morgan.

On March 6, 2009, following discovery, the District Court granted summary judgment to Covington on Morgan's due process claims. It concluded that Morgan was not entitled to a hearing before his suspension with pay because [h]is private interest in having the opportunity to tell his side of the story before being placed on suspension is outweighed by the governmental interest in prompt action to protect the integrity of the police force.” Morgan v. Covington Twp., No. 3:07–cv–1972, 2009 WL 585480, at *8 (M.D.Pa. Mar. 6, 2009). It also rejected Morgan's reputational harm claim based on its conclusion that he failed to identify any instance in which any defendant publicly accused him of a crime. Id. at *9. However, the Court denied summary judgment as to Morgan's First Amendment retaliation claim.

In the meantime, Covington went ahead with Morgan's administrative hearing and, following its completion on January 15, 2008, the Board voted to terminate Morgan's employment. However, Morgan did not immediately seek to amend his complaint based on his termination. Rather, he did so on April 9, 2009, just two weeks before his First Amendment claim was to go to trial. The District Court denied the motion to amend, ruling that it had come too late.

Later that day, Morgan filed a new complaint under a new case number (“ Morgan II ”) alleging that the same three Covington defendants illegally retaliated against him by terminating his employment because he demanded a hearing and filed Morgan I. The new complaint also included the following footnote:

After being notified by the Court this morning that the Court determined that Morgan's termination would not be included in as a claim in [ Morgan I ], Morgan files the instant complaint.... Morgan requests that this Complaint be consolidated with [ Morgan I ], and that all claims be heard before the same jury for the sake of judicial economy, consistency, and complete resolution of all claims against Defendants.

On April 20, 2009, trial began in Morgan I, which was not consolidated with Morgan II. During the trial, and of relevance to this appeal, Morgan was denied permission to call three rebuttal witnesses who, he asserted, would undermine Klocko's and Yerke's credibility by rebutting their earlier testimony.2 The District Court reasoned that

[y]ou ask a question and you get an answer. That's the end of it if it's a collateral matter, and these are collateral matters. Whether or not somebody used public property, for example, he said no. And if you had evidence that he did, the time to have impeached him with it was then, not bring in another witness now and say, well, yeah, I know he used ... public property, because then what we've done is we've joined issue on the question of did he or didn't he use ... public property.... And then he'd be entitled to try the issue of whether or not he did. It's collateral. I'm not allowing it.

After testimony was completed, Covington successfully sought a jury instruction that it should prevail if it would have referred Morgan's conduct to the State Police and the District Attorney even if he had not asked for a hearing. Morgan objected that Covington had never pled this theory, which he characterized as an affirmative defense, and that it was therefore inappropriate to instruct the jury on it. However, the District Court agreed with Covington's counsel that whether it would have taken the same actions against Morgan (regardless of his First Amendment-protected activity) was not an affirmative defense, but rather “one of the elements ... of the claim.”

The jury found for all three Covington defendants. It first concluded that Morgan proved that the Township—though not Klocko or Yerke—retaliated against him for exercising his First Amendment right to petition. However, the jury also found that the Township established that it would have taken the same actions against Morgan even if he had not requested a hearing.

Several months later, in November 2009, the District Court dismissed Morgan II, concluding that it was barred by res judicata because it “arose out of the same transaction” and the “same operative facts at issue” as in Morgan I. Morgan v. Covington Township, 3:09–cv–00651, 2009 WL 3818431 at *4 (M.D.Pa. Nov. 12, 2009). Additionally, the Court reasoned that but for Morgan's decision to wait until just before trial to seek to amend his complaint to encompass his termination, that claim would have been heard in Morgan I. Id. at *5.

Morgan timely appealed the decisions in both cases.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over both Morgan I and Morgan II under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the District Court's decisions granting partial summary judgment to Covington in Morgan I and dismissing Morgan II on res judicata grounds. Massie v. Dep't of Housing & Urban Dev., 620 F.3d 340, 347 (3d Cir.2010); Peduto v. City of North Wildwood, 878 F.2d 725, 727 (3d Cir.1989). We review for abuse of discretion both the District Court's refusal to allow Morgan to present “rebuttal” witnesses and its decision to instruct the jury on the “same action” defense to Morgan's First Amendment claim. McKenna v. City of Phila., 582 F.3d 447, 462 (3d Cir.2009); Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 78 & 80 (3d Cir.2009).

III. Analysis

On appeal, Morgan contends that: (1) the District Court erred by dismissing Morgan II because the event underlying that...

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