Suppan v. Dadonna

• Citation: 203 F.3d 228
• Parties: (3rd Cir. 2000) RICHARD SUPPAN; GLENN KERRIGAN; GERALD DIETER; JAMES BOWSER Appellants v. JOSEPH DADONNA; WAYNE STEPHENS; GERALD MONAHAN, JR.; HAROLD BOYER; RONALD MANESCU; SCOTT MITCHELL; DENNIS TROCOLLA; MICHAEL COMBS; THE CITY OF ALLENTOWN NO. 98-2129
• Decision Date: 10 February 2000
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 228

203 F.3d 228 (3rd Cir. 2000)

RICHARD SUPPAN; GLENN KERRIGAN; GERALD DIETER; JAMES BOWSER Appellants v. JOSEPH DADONNA; WAYNE STEPHENS; GERALD MONAHAN, JR.; HAROLD BOYER; RONALD MANESCU; SCOTT MITCHELL; DENNIS TROCOLLA; MICHAEL COMBS; THE CITY OF ALLENTOWN

NO. 98-2129

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued September 13, 1999

Filed February 4, 2000

Amended February 10, 2000

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 95-cv-05181) District Judge: Honorable Louis H. Pollak Richard J. Orloski Stephen D. Rhoades (Argued) Orloski, Hinga & Pandaleon 111 North Cedar Crest Boulevard Allentown, PA 18104 Attorneys for Appellants

Edward H. Feege Jeffrey M. Zinskind (Argued) Stevens & Lee P.O. Box 20830 Lehigh Valley, PA 18002-0830 Attorneys for Appellees Daddona, Monahan Boyer, Mitchell, Combs and the City of Allentown

James T. Huber Gavin P. Holihan (Argued) Huber and Waldron 535 Hamilton Mall, Suite 301 Allentown, PA 18101 Attorneys for Appellees Stephens, Manescu and Trocolla

BEFORE: MANSMANN, McKEE and STAPLETON, Circuit Judges

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiffs/Appellants are police officers employed by the City of Allentown ("the City"). The defendants are the City and the high-ranking police officers who were involved in evaluating plaintiffs for promotion. Plaintiffs brought suit under 42 U.S.C. SS 1983 and 1985(3), alleging that the defendants violated their civil rights by, inter alia, not promoting them to sergeant in retaliation for their exercise of First Amendment rights, specifically their union activities and their support for a particular mayoral candidate. Plaintiffs each sought injunctive relief ordering their promotion to sergeant and damages. Defendants filed a motion for partial summary judgment on plaintiffs' claims for failure to promote, in which they accepted as true all of the factual averments in the plaintiffs' complaint, but asserted that they were entitled to judgment as a matter of law on the basis of an affidavit of William Heydt, mayor of Allentown, stating that during the relevant time period, no permanent promotions were made. The District Court granted the defendants' motion and this appeal ultimately followed.¹

I. The Facts

The following facts are taken as true for purposes of our review. Throughout 1993, the Queen City Lodge No. 10 of the Fraternal Order of Police (the FOP) and the City were attempting to negotiate a new collective bargaining agreement. All four plaintiffs were members of the FOP negotiating team and were significantly involved in union leadership, a fact of which defendants were aware. Throughout the 1993 contract negotiations, the relationship between defendant Stephens, then Chief of Police, and the FOP was very strained, culminating in defendant Stephens and ten of his Command Staff Officers, including defendants Monahan (Assistant Chief of Police), Manescu (Captain of Police), Trocolla (a police lieutenant) and Combs (another lieutenant), resigning from active FOP membership. In late September 1993, one month before the commencement of the promotional process at issue here, the FOP, having previously rejected five of the City's contract proposals during 1993, declared a total impasse and elected to pursue arbitration.

In March 1992, plaintiff Suppan requested a transfer from steady night patrol. Chief Stephens, in the presence of defendants Monahan, and Boyer, Deputy Assistant Chief of Police, responded by chastising plaintiff Suppan: "Your problem is that you are a frustrated FOP lawyer, and as long as you want to assist a bunch of losers with your labor knowledge, you'll lose." (A. 97). In May 1993, defendant Monahan stated in front of all parties that "The FOP will not dictate how the department will be run." (A. 99). In September 1993, one month before the commencement of the promotional process at issue here, defendant Stephens said to plaintiff Suppan, "I'm getting sick and tired of you and your negotiating team trying to run this department. You don't run it, I do! You had a career here." (A. 97 (emphasis added)).

Plaintiffs were also outspoken supporters of then mayoral candidate William Heydt. Heydt's opponent, John Pressman, was a friend of defendants Stephens, Monahan and Manescu. In September 1993, defendant Stephens stated, "I have a sweet deal set up when John Pressman takes over." (A. 100-01). In late September 1993, the local paper ran a story stating that the FOP had endorsed Heydt. The paper also reported that plaintiff Dieter had hinted that a change of Chief of Police might be in the offing if Heydt were elected. Defendant Stephens waged a successful campaign to rescind the endorsement.

General Order 309 set forth the criteria and procedure for determining eligibility for promotion in the Allentown Police Department. All officers with a minimum of five years experience were eligible to participate in the evaluation process for promotion to sergeant. Officers submitting to the evaluation process were then ranked on a "promotion eligibility list." Promotion eligibility lists were effective for two years. For general positions, the Chief of Police was permitted to select any one of the top three candidates on the list for promotion, but could pass over a candidate only twice before that officer became entitled to the next available position.

Plaintiffs, having the requisite five years experience, participated in the evaluation process in October 1993. In November 1993, they were notified of their rankings on the promotion eligibility lists for two potential positions: patrol sergeant and investigative sergeant. In accordance with General Order 309, these lists were effective from January 1994 to December 1995. Out of thirty-six names on each list, plaintiff Kerrigan ranked highest of all the plaintiffs at twenty-eighth on both lists. Plaintiff Suppan was thirtieth on the patrol sergeant list and thirty-first on the investigative sergeant list; plaintiff Dieter was thirty-third on both lists; and plaintiff Bowser was thirty-fourth on both lists.

Candidates for promotion were ranked according to a combined score that accounted for two weighted factors: 20% based on seniority and 80% based on an oral interview. Plaintiffs Kerrigan and Suppan were entitled to the maximum possible credit for seniority, which was 20 points. Plaintiffs Dieter and Bowser were entitled to sixteen and fourteen seniority points respectively.

The Promotional Interview/Evaluation form allows the lowest score to be a four. Defendant Stephens intentionally gave plaintiffs Suppan and Dieter less than four on numerous items in violation of the rules. Defendant Boyer also downgraded plaintiffs, giving scores of less than four. Defendants Monahan and Manescu did not violate the scoring procedure, but alleged insignificant incidents as a basis for their low scores. Plaintiffs had never been disciplined or counseled for these incidents. Defendants Monahan, Manescu and Mitchell admit that they rated plaintiff Kerrigan low because of his actions as President of the FOP when he alleged wrongdoing by a police captain. Defendant Manescu also has testified that he rated plaintiff Dieter low because he got a fellow officer in trouble by reporting that the officer struck a suspect on the head with a flashlight.

The night before the interviews, defendant Stephens telephoned defendant Combs and instructed him what grades to give the applicants under his command. Plaintiffs Suppan and Bowser were to receive threes and fours. Although he did not give threes and fours, defendant Combs gave consistently low scores, which he admits did not accurately reflect his opinion of plaintiffs' abilities, but rather reflected his instructions from defendant Stephens.

The candidates who were ranked first and second on both sergeants lists had had severe disciplinary action taken against them within the two-year period preceding the evaluations, while plaintiffs Suppan Bowser and Dieter have never been disciplined during their entire careers, and plaintiff Kerrigan has never been justifiably disciplined. Plaintiff Suppan has received many accolades from superiors and above-average personnel evaluations during his eleven and one- half years on the police force.

In December 1993, before the promotion lists became effective, Queen City Lodge No. 10 of the Fraternal Order of Police, the bargaining agent for members of the Allentown police force, filed an unfair labor practice charge with the Pennsylvania Labor Relations Board (PLRB) alleging that the sergeant's promotion lists were compiled in the midst of labor/management negotiations over a new collective bargaining agreement and that the rankings assigned to members of the union negotiating team reflected anti-union discrimination and retaliation.² In January 1994, while the PLRB proceedings were still pending, a new mayor, William Heydt, took office. No permanent promotions were made during the effective period of the promotion lists. Heydt explains that this was in part due to his belief that the Allentown Police Department had too many officers in management and not enough officers on patrol, and in part due to the PLRB proceedings, which made it inadvisable to promote from the "tainted" sergeants promotions lists. Heydt also believed that the promotion lists were the result of unfair evaluations based on nepotism and favoritism rather than merit.

II. The Merits Issues

The District Court held that even if plaintiffs' ranks on the promotion lists were lowered in retaliation for their exercise of First Amendment rights, there could be no recovery on their failure to promote claims. In the Court's view, it is impossible for the plaintiffs to prove that they would have been promoted in the absence of the alleged retaliation because there is no way to prove, assuming the alleged retaliation had not occurred, (1)...