Stephens v. Kerrigan
| Decision Date | 12 August 1997 |
| Docket Number | No. 95-,No. 96-1469,95-,96-1469 |
| Parties | James STEPHENS; Anthony Longo; David Moyer v. Glenn S. KERRIGAN; William H. Heydt; The City of Allentown (D.C. Civilcv-00615). Joseph HANNA; Mark Vitalos v. Glenn S. KERRIGAN; William H. Heydt; The City of Allentown (D.C. Civilcv-08093). James Stephens, Anthony Longo, David Moyer, Joseph Hanna and Mark Vitalos, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
Fredrick E. Charles (argued), Edward R. Eidelman (argued), Allentown, PA, for Appellants.
David M. Green, Harrisburg, PA, Edward H. Feege (argued), Jeffrey M. Zimskind, Lehigh Valley, PA, James L. McAneny (argued), Harrisburg, PA, for Appellees.
Before: SLOVITER, Chief Judge, SCIRICA and SEITZ, Circuit Judges.
Appellants, five police officers for the City of Allentown, filed this action asserting that they were denied promotions because they openly opposed or failed to support the candidacy of William Heydt for mayor of Allentown and/or supported his rival, John Pressman. The officers charged that the City, Mayor Heydt, and Officer Glenn Kerrigan, president of the Fraternal Order of Police, who was a Heydt supporter, deprived them of their First Amendment rights in violation of 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3). They also alleged that Kerrigan individually breached his duty of fair representation and that Mayor Heydt violated their First As in most cases involving a contested employment action in which the district court granted summary judgment for the defendants, we must focus on whether the plaintiffs adduced sufficient evidence to permit the fact finder to draw the inference that the employment action was motivated by an impermissible consideration. If so, plaintiffs have established the genuine issue of material fact that precludes summary judgment unless the evidence shows the challenged action would have been taken in any event. To make that decision, we must review the facts adduced in detail.
Amendment rights to petition for redress of grievances by denying them access to the courts.
The candidates for mayor of the City of Allentown in the 1993 election were Democrat John Pressman and Republican William Heydt. Chief of Police Wayne Stephens was a Pressman supporter, as were a number of high-ranking police officials. Glenn Kerrigan, who had been president of the Fraternal Order of Police (the "FOP") since 1992, was a Heydt supporter, as were a number of other police officers, including Richard Suppan, Gerald Dieter and James Bowser who were all union officers or members of the union negotiating committee. The FOP is the recognized bargaining agent for the police, albeit not for certain high ranking officials. There is some evidence that the relationship between the FOP leadership and the Chief of Police and his immediate advisors was somewhat rancorous: the FOP officers believed that Chief Stephens was antagonistic towards them on account of their union activities and the police administration did not approve of the union's attempts to "run" the Department.
The Preamble of the FOP's Constitution and Bylaws states that the FOP is "strictly non-political." App. at 269. The parties differ as to whether that precludes the FOP from endorsing a candidate. Much of the evidence centers on the endorsement, later rescinded, of candidate Heydt and the part that issue played in Heydt's decision not to promote the plaintiffs.
During the primary election, candidate Heydt visited Chief Stephens in an effort, according to Stephens, to gain the Department's endorsement. Stephens declined, testifying later that he did not believe the Department should make endorsements. He also testified that he was a vocal Pressman supporter in the Department and among neighbors and friends. Subsequently, Heydt criticized the management of the Police Department on a number of grounds and his remarks were reported in an Allentown newspaper. Plaintiffs allege that FOP leaders, including Kerrigan, were providing Heydt with information concerning the administration of the Police Department.
On September 7, 1993, candidates Pressman and Heydt made brief statements at the FOP's regular monthly meeting. James Bowser moved to endorse Heydt's candidacy, but the vote resulted in a 16-16 tie. Kerrigan, who was presiding, declined to cast the tie-breaking vote. A motion was passed that no endorsements be made until after the candidates' forum, which could be attended by all members of the FOP. This forum was held on September 28, 1993. Officer Fulmer, also a Heydt supporter, had circulated a petition requesting a special meeting of the FOP to be called the next day, September 29, in order to endorse a candidate.
The manner in which the September 29 meeting was called and publicized is another matter of dispute. Kerrigan contends that he was mandated by the Bylaws to call a special meeting upon receipt of a request signed by ten members. Plaintiffs allege that it was unusual for a special meeting to be called the day after the candidates' forum, particularly because there was a regular monthly meeting scheduled for the next week. A number of officers later complained that the September 29 meeting was not adequately publicized to the FOP membership.
Candidate Heydt was endorsed by the FOP membership at the special meeting held on September 29 by a vote of 36 to 2 with 4 The regularly scheduled FOP meeting on October 5 was contentious, with some members, including a Heydt friend and presumably supporter, expressing reservations concerning the FOP's endorsement policy. By a vote of 44 to 12, the endorsement of candidate Heydt was rescinded. What was said and by whom at this meeting is one of the bases for the plaintiffs' claim that their failure to support Heydt led to their non-promotion. Heydt was elected Mayor of Allentown on November 2, 1993, and took office on January 3, 1994.
abstentions. Most of Officer Fulmer's platoon attended the meeting; many of the FOP members who had attended the September 7 meeting did not.
In 1992, before the events at issue here, when Joseph Daddona was Mayor of Allentown, the FOP, headed by Kerrigan, and the Allentown Police Department, with Wayne Stephens as the Chief of Police, negotiated a new promotion procedure for the positions of patrol sergeant, investigative sergeant, patrol lieutenant and investigative lieutenant. This was codified as General Order 309 of the Allentown Police Department. This new promotion procedure was followed in 1993 to produce promotion lists for the above positions. The agreed-upon procedure does not entail objective tests but provides that promotion lists are compiled following an evaluation by a five-person committee including the Chief of Police, the Assistant Chief of Police, the Deputy Assistant Chief of Police, one Captain, and the candidate-officer's primary supervisor. A candidate's placement on the list is based upon these "oral interview/ evaluation" scores, which account for eighty percent of the total score, and seniority, which accounts for twenty percent. Promotions could be made from the top three names on the list, with the Chief of Police able to pass over any particular candidate only twice. If three positions opened, the top three candidates had to be chosen. However, if only one position was to be filled, the first two candidates could be skipped twice. After that, any subsequent open positions would have to be filled by the skipped candidates.
The lists were officially publicized on November 1, 1993, just prior to the mayoral elections held that week. The five plaintiffs ranked highly. James Stephens ranked first for investigative lieutenant and first for patrol lieutenant; Hanna ranked third for investigative lieutenant and fourth for patrol lieutenant; Vitalos ranked first for investigative sergeant and second for patrol sergeant; Longo ranked third for patrol sergeant and fourth for investigative sergeant; Moyer ranked third for investigative sergeant.
In contrast, the policemen who were in the FOP leadership scored near the bottom of the sergeants lists. Kerrigan ranked twenty-eighth on both the investigative and patrol sergeants lists; Suppan ranked thirty-first for investigative sergeant and thirtieth for patrol sergeant, Dieter ranked thirty-third on both lists, and Bowser ranked thirty-fourth on both lists. None were ranked on the lieutenants lists. We were advised by counsel at argument that there were sufficient openings so that each of the top three candidates would have been promoted.
Immediately following his election, Mayor Heydt met with Chief Stephens and informed him that he would not rehire Stephens as Police Chief. According to Stephens, Heydt also accused him of manipulating the promotion lists to arrange for Angel Santos, an Hispanic officer, to place first on the patrol sergeants list and second on the investigative sergeants list in order to accommodate candidate Pressman's promises to promote more Hispanics within the Police Department. Stephens also alleges that Heydt accused him of nepotism in regards to his brother James Stephens' position on the lists and that Heydt harangued him on the operation of the department in general, specifically criticizing a number of the Captains.
In December 1993, Heydt interviewed Assistant Chief Monahan, Captains Mitchell, Berndt, Manescu and Bennis, and John Stefanik, a retired former Captain in the department, for the Chief of Police position. Ultimately, Heydt selected John Stefanik as the new Chief of Police. Stefanik had been a
Heydt supporter and had worked at a polling place for Mayor Heydt during the election.
On December 20, 1993, the FOP filed an Unfair Labor Practice ("ULP") charge with the Pennsylvania Labor Relations Board (the "PL...
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