Rossiter v. City of Phila.
| Decision Date | 29 December 2016 |
| Docket Number | No. 16-1187,16-1187 |
| Parties | KENNETH ROSSITER v. CITY OF PHILADELPHIA; CHARLES H. RAMSEY, Charles H. Ramsey, Appellant |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
Appeal from the United States District Court for the Eastern District of Pennsylvania
Before: SMITH, Chief Judge,† AMBRO and FISHER, Circuit Judges
Elise M. Bruhl, Esquire (Argued)
City of Philadelphia
Law Department
1515 Arch Street
One Parkway
Philadelphia, PA 19102
Counsel for Appellant
David A. Yanoff, Esquire (Argued)
The Beasley Firm
1125 Walnut Street
Philadelphia, PA 19107
Counsel for Appellee
Appellee Kenneth Rossiter brought a First Amendment retaliation claim against Philadelphia Police Commissioner Charles Ramsey and the Philadelphia Police Department for allegedly violating his First Amendment right to associate with the police union. On a motion for summary judgment, the District Court ruled that Rossiter had alleged a colorable claim of unlawful retaliation and that then-Commissioner Ramsey and the Department were not entitled to qualified immunity. Ramsey and the Department filed this appeal. As the First Amendment right at issue was not clearly established, we hold that Ramsey and the Department are entitled to qualified immunity.
Because this case comes to us on appeal of a motion for summary judgment raising a qualified immunity defense, we view the facts on the record in the light mostfavorable to Rossiter. Bayer v. Monroe Country Children & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009). He joined the Department in 1982. At the outset he became a member of the local chapter of the Fraternal Order of Police, a local police labor union, and he remains so. As a member of the FOP, Rossiter has been covered by the terms of a collective bargaining agreement between the City of Philadelphia and the FOP.
An ongoing dispute between the FOP and the Department lays the context for Rossiter's retaliation claim. Between January 2008 and January 2016, Ramsey served as Commissioner of the Department. In 2010, he implemented without approval from the FOP a new Disciplinary Code covering officers in the Department. In response, the FOP filed a complaint with the Pennsylvania Labor Relations Board alleging that the Code set a category of new rules under the labor agreement and therefore required the parties to negotiate prior to implementation.
For over two years, Ramsey and his representatives pressed the union to rescind the complaint instead of proceeding to a formal hearing. In September 2012 the FOP's Vice President informed the Department that the union was moving forward with hearings, which began shortly thereafter.
During negotiations with the FOP over its labor complaint, the Department began a separate disciplinary action against Rossiter, who was then employed as a detective in the Homicide Unit. In July 2011, the Department received an anonymous complaint that Rossiter was at home when he was supposed to be on duty. In response, it began an investigation of Rossiter's conduct. Department officials observed Rossiter at his residence 16 times when payroll records stated that he was working. In December 2011,a Department investigator questioned Rossiter about each instance; he claimed that he had permission to be at home and was working on cases.
In March 2012, the Department charged Rossiter with two counts of Conduct Unbecoming of a Police Officer under Sections 1-§010-10 and 1-§021-20 of the Disciplinary Code. He pleaded not guilty and requested a hearing before the Police Board of Inquiry.
On the day of his hearing, Rossiter learned it was postponed because the Department and the FOP were engaged in plea negotiations regarding him and three other members of the Homicide Unit. Rossiter met with the Vice President of the FOP over the proposed plea deal in his case. He maintained his unwillingness to plead. Over the next month, the FOP continued to discuss disciplinary actions against the four officers, yet the Department never rescheduled Rossiter's hearing.
In mid-June 2012, representatives from the FOP met with Deputy Commissioner Gaittens for their monthly grievance meeting. At the end of the meeting, the Deputy Commissioner noted two remaining issues. He brought up the disciplinary proceedings against Rossiter and the three other members of his unit. Gaittens suggested the Department would be willing to issue reprimands and allow the officers to remain employed. Next, he addressed the ongoing dispute over the labor complaint. According to the FOP's Vice-President, the Department offered to resolve the pending individual disciplinary actions in a favorable manner if the FOP would agree to withdraw the complaint against the Department. When the FOP continued to assert its intent to proceed with the complaint, Gaittens threatened to terminate Rossiter immediately. Afew days later Ramsey issued a Commissioner Direct Action suspending Rossiter for thirty days with intent to dismiss. Four weeks later, he was terminated.
The FOP filed a grievance on behalf of Rossiter under its labor agreement on the ground that he did not receive a hearing before the Police Board of Inquiry prior to termination.1 Under the Agreement's grievance procedures, the FOP demanded an arbitration hearing on Rossiter's behalf.2 The arbitrator found the Department did not have just cause to terminate Rossiter and ordered it to restore him to his former position as a detective in the Homicide Unit without loss of seniority. Thus he returned to work.
In June 2013, Rossiter filed an action in the District Court alleging five claims related to his termination. The Court dismissed all but his First Amendment association claim—that Ramsey and the Department retaliated against him because of his association with the police union. After discovery, Ramsey and the Department filed a motion for summary judgment. They asserted that the First Amendment does not provide a cause of action because Rossiter himself did not engage in any protected activity and that, in any event, they were entitled to qualified immunity because there was no clearly established right to engage in the allegedly protected activity. The District Court rejected the qualified immunity defense. It then denied the motion for summary judgment, finding that Rossiter asserted a colorable claim of retaliation.
Ramsey and the Department filed a motion for reconsideration. They argued that the Court defined too broadly Rossiter's right to associate and that case law did not clearly establish First Amendment protection for the activity involved here—passive membership of a union member who does not himself engage in any further expressive activity. The Court rejected this motion. It reiterated its belief that the law clearly established a right to associate with the union without fear of retaliation such that Ramsey and the Department would have been on notice that firing Rossiter because of his membership violated the First Amendment.
Ramsey and the Department appeal that decision. We have appellate jurisdiction over the District Court's resolution of questions of law, but not its determination that material issues of fact remain under 28 U.S.C. § 1291 and the collateral order doctrine.3
Our review is de novo, and we view inferences based on the underlying facts in the light most favorable to the nonmoving party. Haybarger v. Lawrence Cty. Adult Prob. & Parole, 551 F.3d 193, 197 (3d Cir. 2008) (internal quotation marks and citation omitted).
1. Qualified Immunity Qualified immunity from suits "shield[s] officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009). To overcome that immunity, the facts alleged by the plaintiff must show (1) the violation of a constitutional right and (2) that the right was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001). We may exercise our discretion to address the two Saucier prongs in either order in light of the circumstances in the particular case. Pearson, 555 U.S. at 236. Because we do not believe the right at issue here was clearly established, we begin with the second inquiry.
A Government official's conduct violates clearly established law when, at the time of the challenged conduct, every reasonable official would understand that what he is doing violates the right alleged. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011); Anderson v. Creighton, 483 U.S. 635, 640 (1987). The Supreme Court recently emphasized that "'[w]e do not require a case directly on point' before concluding that the law is clearly established, 'but existing precedent must have placed the statutory or constitutional question beyond debate.'" Stanton v. Sims, 134 S. Ct. 3, 5 (2013) (quoting al-Kidd, 563 U.S. at 741). We look first for applicable Supreme Court precedent. If none exists, it may be possible that a "robust consensus of cases of persuasive authority" in the Courts of Appeals could clearly establish a right for purposes of qualified immunity. Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015).
To make out a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must establish: (1) he engaged in First Amendment protected activity, (2) thedefendant took adverse action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights, and (3) the adverse action was prompted by the plaintiff's protected activity. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
Rossiter alleged that Ramsey and the Department retaliated against him because he exercised his First Amendment right to be a member of the FOP, his union. The District Court found a clearly established right of a public-sector employee to be a member of an...
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