845 F.2d 1195 (3rd Cir. 1988), 87-5368, Rode v. Dellarciprete

Docket Nº:87-5368.
Citation:845 F.2d 1195
Party Name:Vivian M. RODE and Jay C. Hileman v. Nicholas G. DELLARCIPRETE, John Harhigh, Josephine Fure, Ruth Brown, and Robert Kinch, Pennsylvania State Police and Commonwealth of Pennsylvania, Richard Thornburgh, Leroy S. Zimmerman, and Jay Cochran, Jr. Appeal of Vivian M. RODE.
Case Date:April 28, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1195

845 F.2d 1195 (3rd Cir. 1988)

Vivian M. RODE and Jay C. Hileman


Nicholas G. DELLARCIPRETE, John Harhigh, Josephine Fure,

Ruth Brown, and Robert Kinch, Pennsylvania State Police and

Commonwealth of Pennsylvania, Richard Thornburgh, Leroy S.

Zimmerman, and Jay Cochran, Jr.

Appeal of Vivian M. RODE.

No. 87-5368.

United States Court of Appeals, Third Circuit

April 28, 1988

Argued Dec. 2, 1987.

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[Copyrighted Material Omitted]

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Laurence W. Dague (argued), Harrisburg, Pa., Dianne E. Dusman, Harrisburg, Pa., for appellant.

Leroy S. Zimmerman, Atty. Gen., Andrew S. Gordon, Chief Deputy Atty. Gen., Calvin R. Koons, Deputy Atty. Gen. (argued), Harrisburg, Pa., for appellees.

Before WEIS, HIGGINBOTHAM and ROSENN, Circuit Judges.


ROSENN, Circuit Judge.

Vivian Rode, a civilian employee of the Pennsylvania State Police (PSP), filed a civil rights action against the defendants in the United States District Court for the Middle District of Pennsylvania under 42 U.S.C. Secs. 1983 and 1985. She alleged that she had been unlawfully suspended from employment for several days and that her duties and working conditions had been impermissibly altered. The district court granted motions to dismiss the action against the Governor and Attorney General of the Commonwealth of Pennsylvania and entered summary judgment for the remaining defendants. The plaintiff Rode appeals. We affirm the order of dismissal. We also affirm the summary judgment except insofar as it rejects Rode's claim that she was improperly suspended from employment for exercising her right to free speech.


Rode and her co-plaintiff, Jay C. Hileman, had lengthy unblemished employment histories with the PSP before the defendants' challenged actions. Hileman, Rode's brother-in-law, had been employed by the PSP since 1946 and had attained the rank of major. Hileman, director of the Bureau of Personnel for a period of time in the 1970's, hired Rode as a clerk-typist in the bureau where she worked for eleven years without any negative evaluations or reprimands. She ultimately attained the position of Administrative Assistant I.

In 1980, Hileman became an area commander. The new director of personnel,

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defendant John Harhigh, proceeded to reorganize the bureau. As part of this reorganization, he elevated the defendant Fure to supervisory status over Rode.

In June 1981, Rode received an overall excellent performance rating from her immediate supervisor, Lt. Ronald Rostalski, and from the new director of personnel, Harhigh. In April 1982, the bureau again rated Rode "excellent," this time by the defendant Josephine Fure and Lt. Rostalski. The defendants claim that this rating was not an accurate reflection of Rode's performance; they contend that Rode was already experiencing a personality conflict with Fure, her new supervisor.

In August 1982, Hileman, in response to a subpoena, testified in a civil rights lawsuit by Lieutenant Russell Clanagan against the PSP (the Clanagan case). Hileman's testimony supported Clanagan and contradicted testimony given by previous PSP employees. Following Hileman's testimony, Rode's objective employment record took a downward turn. She also asserts that she became the butt of derogatory statements made to her fellow employees after Hileman's testimony. She complains that she began to experience problems in her relationships with Fure and Harhigh. She received a written reprimand in October 1982 and a negative performance evaluation.

As Fure's subordinate, Rode was the bureau's authority on employee benefits. She had a private office and a fair degree of responsibility. She was transferred in May 1983 to another position at the same salary and benefit level. In her new job she had no private office and performed menial photocopying tasks or had no work assignments. She received a more favorable, but still negative, evaluation in her new position under defendant Ruth Brown.

In June 1983, a local reporter of the Paxton Herald, telephoned and questioned Rode about her personal difficulties within the PSP. A published article based in part on this interview suggested that the PSP was engaged in retaliatory harassment against Hileman and Rode. Rode received a two-day work suspension because of her participation in the interview.

In June 1986, Rode and Hileman filed the complaint forming the basis for this appeal. 1 This complaint named as defendants the PSP, the Commonwealth, and certain individuals who the plaintiffs claimed either participated in the course of retaliatory harassment or who knowingly acquiesced in its continuance. 2 In count I of her complaint, Rode alleged that the defendants violated her rights to freedom of speech and association, deprived her of property and discriminated against her based on racial animus. Rode sought relief from these actions under 42 U.S.C. Sec. 1983. Relying on the same factual predicate, Rode asserted in count II that the defendants had engaged in a conspiracy in violation of section 1985 to deter Hileman from testifying in the Clanagan action. Finally, in count III, Rode challenged, on the basis of vagueness and overbreadth, the Administrative Regulations (AR's) under which she had been suspended after giving the interview to the news reporter.

The district court granted the defendants' motion to dismiss the action against Governor Thornburgh and Attorney General Zimmerman. The court then granted the remaining defendants' motion for summary judgment on the first two counts of the amended complaint. Rode v. Dellarciprete, 646 F.Supp. 876 (M.D.Pa.1986). After further briefing, the court enjoined the enforcement of certain PSP administrative regulations, but held that section 4-6.03A was not void for vagueness.

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The defendants are entitled to summary judgment so long as "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." Fed.R.Civ.P. 56(c). Review of the district court's entry of summary judgment is plenary. Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). Factual inferences must be viewed in the light most favorable to the party opposing the entry of judgment and where the non-movant's allegations conflict with those of the movant, the former receive the benefit of the doubt. Id.

Rode's claims initially can be parsed along two different lines based upon the employment actions she challenges. First, Rode contends that the defendants violated her freedom of speech by imposing a two-day suspension because she submitted to a telephone interview with the Paxton Herald news reporter. Second, Rode asserts that the defendants harassed her by transferring her from the personnel bureau, giving her offensive or no assignments, and engaging in derogatory statements about her to fellow employees. Rode argues that these employment decisions are actionable under either 42 U.S.C. Sec. 1983 or Sec. 1985 because they were made (1) with racially discriminatory intent in violation of the equal protection clause of the fourteenth amendment; (2) to retaliate against Hileman through her in violation of 42 U.S.C. Sec. 1985(2); or (3) to discourage her association with her brother-in-law Hileman.

Finally, Rode contends that the district court erred in dismissing defendants Thornburgh and Zimmerman from the suit. We first turn to Rode's challenge to her two-day suspension.

  1. The Facial Validity of PSP Administrative Regulation 4-6.03A

    A news reporter interviewed Rode during non-work hours and questioned her concerning her employment problems at the PSP. The resulting news article criticized the PSP and stirred controversy allegedly leading to staff demoralization in the bureau. After a departmental hearing, Rode was suspended under the AR's which, in part, prohibited conduct bringing discredit upon the PSP. AR 4-6.0.

    In count III of her complaint, Rode challenged the validity of the administrative regulations under which she had received her suspension. The district court found that several of the regulations were unconstitutional and this determination has not been appealed. The court nonetheless sustained Rode's suspension, holding AR 4-6.03A to be constitutional.

    Section 4-6.03A provides:

    Employees of the Pennsylvania State Police shall conduct themselves at all times in such a manner as to reflect most favorably on the Department and the Commonwealth thereby promoting good public relations. Undesirable conduct shall include immorality or any conduct not specifically mentioned in these rules which tends to bring the Department and/or Commonwealth into disrepute or reflects discredit upon the individual employee.

    Rode challenged this provision on grounds of vagueness and overbreadth.

    A statute or regulation governing conduct is unconstitutionally vague when it " 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application.' " Aiello v. City of Wilmington, Delaware, 623 F.2d 845, 850 (3d Cir.1980) (quoting Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926)). Such a regulation violates the first essential of due process of law because it neither affords fair notice to potential violators nor provides standards for enforcement. Id. Statutory vagueness is especially problematic when it may "chill" the exercise of protected first amendment rights. Id.; Baggett v. Bullitt, 377 U.S. 360, 372-73, 84 S.Ct. 1316, 1322-23, 12 L.Ed.2d 377 (1964).

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    An individual has standing to challenge a provision on vagueness grounds only if it is vague as applied to that person. "Thus, when a litigant's conduct clearly falls within the...

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