Summary
noting same in granting summary judgment on claims of ten-year veteran police officer who alleged first sexual harassment, then race discrimination, following unpaid suspension related to arrest on drug charges
Summary of this case from Livingston v. Borough of EdgewoodOpinion
CIVIL ACTION NO. 02-CV-1748
December 12, 2003
MEMORANDUM ORDER
Presently before the Court is the State Police Defendants' Motion for Summary Judgment. For the following reasons, Defendants' Motion will granted as to Counts I, III, El, V, and VI of the Amended Complaint as they relate to the State Police Defendants. The remaining state law claims against the State Police Defendants, Counts VII, VIII, IX, X, and XI, will be dismissed without prejudice.
This Motion for Summary Judgment does not address the claims against the City of Philadelphia Defendants. No motion was filed by those defendants.
We note from the outset that Plaintiff has consistently failed to provide this Court with accurate citations to support her legal and factual conclusions. While we have viewed the facts in a light most favorable to Plaintiff, there are instances where Plaintiff has simply failed to clearly support her position with appropriate references.
I. FACTUAL BACKGROUND
It is not disputed that Plaintiff Valda Knight was first employed by the Pennsylvania State Police ("PSP") in 1990, but resigned after a short time, following an injury to her knee suffered at the State Police Academy. In 1992, she was rehired by the PSP, and became a Liquor Enforcement Officer ("LEO"). In November 1997, Plaintiff reinjured her knee. She was out of work for a period of time and received Workers' Compensation and Heart and Lung benefits. In October 1998, Plaintiff returned to work for about four months in a "Limited Duty" status. In February 1999, Plaintiff stopped working, had additional surgery, and again began receiving Workers' Compensation and Heart and Lung benefits. (Joint Case Report at 1; Knight Dep. at 129-34.)
LEOs are law enforcement officers, that according to the Plaintiff, "conduct investigations on . . . bars or speakeasies . . . arrest underage drinkers, investigate for drugs,. . .[and] set up raids." (Knight Dep. at 118-19.)
The parties appear to use the terms "light" and "limited duty" interchangeably.
Under PSP policies, an injured employee will be assigned to temporary light duty, unless he or she has been found to be permanently disabled. (Bonney Dep. at 9-10.) In addition, an employee continues to occupy a position on the PSP employment roster, unless the individual has been deemed permanently disabled, resigns, retires, or is separated from the PSP. (Id. at 67-68.) On October 9, 2000, an Independent Medical Examination ("IME") was scheduled for Plaintiff with Dr. Robert Mannherz. The IME was scheduled for November 22, 2000. The PSP Defendants assert that the purpose of the IME was to assess Plaintiff's potential ability to return to work in either a limited duty or full duty capacity. By memorandum dated October 30, 2000, Plaintiff was informed of the appointment, and she did in fact report for the scheduled IME. The report of Dr. Mannherz, dated December 1, 2000, did not classify Plaintiff as permanently disabled. Dr. Mannherz did indicate that Plaintiff should limit her work to sedentary activities and opined that Plaintiff may improve with surgery or treatment from Dr. Richard Cautilli, an expert in patellofemoral disorders. (State Police Defs.' Mot. for Summ. J., Ex. F at 281-283.)
On September 19, 2000, Plaintiff was arrested by Philadelphia Police Officers and charged with possession of crack cocaine in violation of the Controlled Substance Drug Device and Cosmetic Act (Act 64). She was released on bail and scheduled for trial in Municipal Court at the beginning of November 2000. On November 8, 2000, Plaintiff appeared at the Criminal Justice Center in Philadelphia where she was offered and accepted placement in the Accelerated Rehabilitative Disposition ("ARD") program. Plaintiff was placed on ARD probation for a period of six (6) months, was required to attend a substance abuse education class, and was directed to pay the costs. On October 13, 2001, Plaintiff was arrested (a second time) for possession of a controlled substance. (Knight Dep. at 89-90, 157.) Plaintiff entered a plea of guilty to those charges. (Id. at 105-06.) For the purposes of analyzing the events relevant to this Complaint, we focus on the September 19, 2000, arrest and ARD disposition.
Plaintiff contends that the drugs related to the September 19, 2000, arrest were never tested to determine whether they were actually crack cocaine. However, Plaintiff accepted placement in the ARD program on the drug charges. Plaintiff also characterized the drug charge as possession of crack cocaine in her Joint Case Report. (Joint Case Report at 2.)
Plaintiff did not report her September 19, 2000, arrest to the PSP. The PSP maintains that she was obligated to report this arrest under PSP regulations. Plaintiff maintains that she did not know that she was required to report the arrest, since it occurred while she was on medical leave. At her deposition, Plaintiff explained:
I was very embarrassed and I didn't know I had to [report the arrest] since I was not actually working at the time. I didn't know that I was supposed to notify them and I didn't know who I was supposed to notify, because at the time I didn't know who my supervisor was. I didn't know if I should call the Philadelphia office or call Harrisburg. I wasn't exactly sure who I needed to tell and I was embarrassed by it, so I just didn't tell.
(Knight Dep. at 163-64.)
The record reflects that in her decade of employment with the PSP Plaintiff was informed on a number of occasions of her duty to report any arrests. On January 5, 1990, Plaintiff received a letter from the PSP, informing her of her appointment to the PSP and reminding Plaintiff that she was responsible for reporting any changes in her arrest record. (State Police Defs.' Mot. for Summ. J., Ex. D at 193.) In 1992, when Plaintiff accepted her position as a LEO, Plaintiff signed a document entitled, "Acknowledgment of Responsibilities of Enforcement Officer Trainee Applicant." (State Police Defs.' Mot. for Summ. J., Ex. D at 183.) This document informed Plaintiff that "[s]hould [she] withhold or fail to report information pertaining to [her]. . . arrest record and if the fact becomes known, regardless of the time element involved, [she] will be dismissed from the Pennsylvania State Police." (Knight Dep. at 112-13; State Police Defs.' Mot. for Summ. J., Ex. D at 183.) Shortly thereafter, before reporting to duty as a LEO, Plaintiff was again reminded of her duty to report arrests. (Knight Dep. at 113-14; State Police Defs.' Mot. for Summ. J., Ex. D at 144, 190.) Plaintiff received further reminders of this obligation during her LEO training period, when the applicable regulations were explained to her. (Knight Dep. at 114-15; State Police Defs.' Mot. for Summ. J., Ex. D at 530.) These regulations, entitled "Legal Action Against Department Personnel" explicitly direct employees who have been arrested to "advise his or her Troop Commander or Bureau Director by the most expedient means available." (State Police Defs.' Mot. for Summ. J., Ex. E at 633-34.) In addition, during Plaintiff's tenure as a LEO, she had continuous access to employment policies and regulations, such as the document entitled "Rules of Conduct for Employes." The rules inform PSP employees that they "shall conform to and abide by statutory laws and government regulations." (Knight Dep. at 116; State Police Defs.' Mot. for Summ. J., Ex. E at 453-54.) The rules also remind employees of their duty to report arrests and explain the exact procedure for doing so. (Id.)
The PSP learned of Plaintiff's September 19, 2000, arrest in mid-November of 2000, when the PSP Bureau of Personnel received a routine memorandum from the Governor's Office of Administration, dated November 9, 2000, listing recent arrests of PSP employees. On November 17, 2000, a PSP Internal Affairs investigation into the circumstances surrounding Plaintiff's arrest was initiated. By memorandum dated December 4, 2000, Plaintiff was notified of a Pre-Disciplinary Conference ("PDC"), concerning her arrest and her failure to report it. The PDC was scheduled for December 7, 2000, in Harrisburg. Plaintiff attended the conference with her union representative, Stan Fruman, who drove Plaintiff to and from the meeting. Also on December 7, 2000, Plaintiff was interviewed by the assigned Internal Affairs investigator, Defendant Murray.
On December 19, 2000, PSP Deputy Commissioner Conley directed the Bureau of Liquor Control Enforcement to order Plaintiff back to work, on limited duty. The next day, a written back-to-work order was hand-delivered to Plaintiff, requiring that she report for a temporary limited duty assignment on December 26, 2000 (or explain her inability to do so).
On December 21, 2000, Plaintiff was formally ordered to submit a hair sample for testing. The purpose of the testing was to determine whether there were any illegal drugs in Plaintiff's system. After conferring with counsel, Plaintiff refused to provide the hair sample. Effective at the close of business December 21, 2000, Plaintiff was formally suspended without pay. PSP characterizes this action as a suspension pending the completion of the investigation into her arrest and failure to report it. Plaintiff's Heart and Lung benefits also ceased as of December 21, 2000. Initially, Plaintiffs Workers' Compensation benefits continued, but on January 29, 2001, the PSP filed a Suspension Petition, which Plaintiff challenged. An interlocutory supersedeas order was later entered by the Bureau of Workers' Compensation, resulting in the cessation of Plaintiff's Workers' Compensation benefits, effective May 25, 2001. However, on August 20, 2002, PSP's suspension/modification petition was denied, and Plaintiff's Workers' Compensation benefits were ordered reinstated, retroactive to May 25, 2001. PSP filed an appeal from that determination. At the time that the instant Motion was filed, administrative proceedings on Plaintiff's Workers' Compensation claim remained pending. Plaintiff applied for and was granted Disability Retirement, effective January 25, 2001. She had filed a grievance contesting her suspension, but processing of the grievance was discontinued in light of her retirement.
On April 1, 2002, Plaintiff filed this lawsuit. Her initial Complaint alleged state and federal claims against PSP Defendants Paul J. Evanko, Linda Bonney, Phillip DeWire, Leonard H. McCormick, Leonard H. McDonald, Michael Clements, Stacey R. Marshall, and Butina Bunting. (Doc. No. 1.) At that time, Plaintiff also brought state and federal claims against Philadelphia Police Officers. Plaintiff filed her Amended Complaint on August 30, 2002, naming the same Defendants. (Doc. No. 17.) On March 21, 2003, the Pennsylvania State Police Defendants filed the present Motion for Summary Judgment. (Doc. No. 23.) The Philadelphia Defendants did not file a summary judgment motion.
Plaintiff misnamed Defendant McCormick, whose actual name is Casey McCormick.
Plaintiff misnamed Defendant Bunting, whose actual name is Bettina Bunting.
We note that the present Complaint is not Plaintiff's first lawsuit against PSP Defendants. Plaintiff previously filed a lawsuit against Defendant Bunting. At her deposition, Plaintiff initially described the case against Bunting as a sexual harassment case. Plaintiff later stated that her complaint was based on race. (Knight Dep. at 100-02.) Plaintiff has also brought multiple claims for employment benefits over the past decade. (Id. at 103-05.)
II. JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1334.
III. LEGAL STANDARD
Summary judgment is proper "if 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 and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). In considering a motion for summary judgment, a court must view facts and inferences in the light most favorable to the party opposing the motion. Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995). The moving party bears the burden of proving that no genuine issue of material fact is in dispute. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n. 10 (1986). Once the moving party has carried its initial burden, the non-moving party may not rest upon the mere allegations or denials of the pleadings, but must "set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e); Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986).
IV. DISCUSSION
A. Claims Under § 1983
Section 1983, provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage,. . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C.A. § 1983. In order to prevail in an action under § 1983, Plaintiff must establish: (1) that the Defendants acted under color of state law; and (2) that their actions deprived Plaintiff of rights secured by the Constitution or federal statutes. Adickes v. S.H. Kress Co., 398 U.S. 144, 150 (1970). State Police Defendants concede that they are state employees, who were at all relevant times, acting under color of state law. The issue to be determined is whether Defendants' actions deprived Plaintiff of her federally protected rights.
1. Fourth Amendment Violations
Plaintiff presents two distinct Fourth Amendment claims. Plaintiff first argues that she was seized when she was required to attend the PDC and Bureau of Professional Responsibility ("BPR") interviews in Harrisburg on December 7, 2000, and again on December 21, 2000, when she attended a meeting at the Philadelphia District Enforcement Office. In her Amended Complaint, Plaintiff states: "On December 19 and 21, Defedants DeWire, Clements, Commissioner, McCormick, Marshall, McDonald, and Bunting caused the Plaintiff to be ceased [sic] and such seizure was done without probable cause, reasonableness, a warrant, knowing and voluntary consent of the Plaintiff, or legal authority." (Am. Compl. at ¶ 16.) Plaintiff argues that Defendants "gave instructions for Ms. Knight to be taken from her home, brought to the station, and be subjected to questioning. The intent was to deprive Ms. Knights [sic] of her free movement." Plaintiff then summarily concludes that "Defendants are not entitled to summary judgment on Ms. Knight's Fourth Amendment seizure of her body claims." (Pl.'s Reply to Pennsylvania. State Police Defs.' Mot. for Summ. J. at 17.)
Even accepting the facts in a light most favorable to the Plaintiff, these facts establish only that Plaintiff traveled to the required meetings in a state vehicle and that Defendants mislead Plaintiff as to the purpose of the meetings. It does not follow that Plaintiff was seized so as to trigger a violation of her Fourth Amendment rights. Moreover, Defendants point to deposition testimony in support of their claim that Plaintiff traveled in a state vehicle as a courtesy to Plaintiff because Plaintiff, by her own admission, has difficulty driving. Plaintiff has failed to direct this Court to any evidence that contradicts this testimony. In fact, Plaintiff has failed to indicate precisely what evidence supports this alleged Fourth Amendment violation. Moreover, we are at a loss to understand why Defendants would not have had the right to call Plaintiff in to discuss her arrest for possession of crack cocaine. Under the circumstances, Plaintiff has failed to establish a genuine issue of material fact on this Fourth Amendment seizure claim. FED. R. CIV. P. 56(e) ("[A]n adverse party may not rest upon mere allegations or denials of the adverse party's pleadings. . . ."). Accordingly, this claim must be dismissed.
Plaintiff contends that when she reported to the Philadelphia District Enforcement Office on December 21, 2000, she believed the purpose of the meeting was to address Plaintiffs return to work, which was scheduled for December 26, 2000. Plaintiff further argues that Defendants mislead her as to the reason for the meeting. However for the present analysis, Plaintiffs subjective belief as to the purpose of the December 21st meeting is not relevant, as we conclude that Defendants were justified in calling Plaintiff into the office to further investigate Plaintiff's acceptance of an ARD for drug-related charges.
Plaintiff next argues that she was subjected to an unreasonable search when ordered to provide a hair sample for a drug test. Interestingly, Defendant refused to cooperate and the drug test never occurred. In any event, even if the drug test had occurred, there would be no viable claim of illegal search under the Fourth Amendment. As a law enforcement employee, she may be subjected to warrantless drug testing. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989) (recognizing that a special need, such as public safety, may justify departure from ordinary warrant and probable cause situations); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 630-31 (1989) (discussing circumstances in which government may require drug testing without probable cause or reasonable suspicion of drug use). In O'Connor v. Ortega, the Supreme Court held that public employers need not show probable cause for noninvestigatory intrusions and investigations of work-related misconduct. 480 U.S. 709, 725 (1987). Agreeing with the government employer's argument that a lesser standard was appropriate, the Court found:
A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.O'Connor, 480 U.S. at 725-26. Two years later, in National Treasury, the Court extended the O'Connor decision to hold that public employers who conducted suspicionless drug testing of all employees applying for promotions to positions involving the interdiction of illegal drugs had met the reasonableness standard. In reaching this conclusion, the Court stated:
Unlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity. Much the same is true of employees who are required to carry firearms. Because successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from . . .[their employer]. . . personal information that bears directly on their fitness.National Treasury, 489 U.S. at 672.
Like the employees in National Treasury, the Plaintiff in this case was charged with the task of arresting criminals on drug (and alcohol) related charges. (Knight Dep. at 118-19.) In addition, Plaintiffs position as a LEO entitled her to carry a firearm. (Id. at 189-190.) The Regulation covering Plaintiff as an employee of the Pennsylvania State Police provide in pertinent part as follows:
Submitting to medical or psychiatric examinations and/or tests. Whenever a troop commander or a bureau office director has reasonable grounds to believe that an employee under their command is being influenced by a medical and/or psychiatric condition which affects, or is likely to affect, the employee's ability to perform assigned duties, the troop commander or bureau office director may require the employee to undergo reasonable tests and/or examinations at the expense of the department to determine the employee's fitness for duty. Such a condition includes, but is not limited to the use of an intoxicant or other drug.
(DeWire Dep. at 14.)
The standard of reasonable suspicion reflected in this Regulation has been applied by the Third Circuit in circumstances quite similar to those in the instant case. See Copeland v. Phila. Police Dept., 840 F.2d 1139 (3d Cir. 1998) (proper standard for evaluating particularized search by police department of police officers was whether police department had reasonable suspicion that officer was user of illegal drugs).
Plaintiff does not contend that the Defendants' drug testing policy, which requires reasonable suspicion, is unconstitutional. She admits that, pursuant to administrative regulations, "a commander may request an employee to submit to test if there is a reasonable suspicion of drug use, and if that use interferes with the employee's abilities to perform her duties." (Pl.'s Reply to Pa. State Police Defs.' Mot. for Summ. J. at 15.) Rather, Plaintiff argues that Defendants failed to establish the existence of reasonable suspicion before requesting the testing. We disagree. It is undisputed that Plaintiff was arrested and charged with possession of crack cocaine on September 19, 2000. Plaintiff was placed on ARD, which included mandatory ARD probation and substance abuse education. If this does not create reasonable suspicion we cannot imagine what does.
Plaintiff argues that she was not bound by the regulations governing employee conduct because she was out of work on injury status. In support of this claim, Plaintiff directs the Court to Defendant Bonney's deposition. However, Plaintiff fails to indicate where, in the 114-page deposition, Bonney makes such a statement. After reviewing the deposition in its entirety, we are unable to find any support for Plaintiff's argument. Assuming arguendo that Plaintiff's allegation is correct, and she was not required to report the arrest, it does not follow that Defendants were without the requisite reasonable suspicion to request the drug test when the arrest for possession of illegal drugs and subsequent ARD disposition came to their attention. In light of the undisputed fact that Plaintiff accepted placement in the ARD program after being arrested and charged with possession of crack cocaine, we are satisfied that Defendants had a reasonable suspicion that Plaintiff might be using drugs. We reject Plaintiff's assertion that Defendants were attempting to subject Plaintiff to an illegal search. Accordingly, Plaintiff's Fourth Amendment claim alleging an unreasonable search is dismissed.
In her citation, Plaintiff incorrectly identifies the Bonney deposition as Exhibit A to Defendants' Motion for Summary Judgment. The Bonney deposition is actually marked as Exhibit B.
Because our conclusion is based on the undisputed facts surrounding Plaintiff's arrest and ARD disposition we need not address Plaintiff's arguments that co-workers' reports of Plaintiff's odd behavior are an unreliable basis for determining reasonable suspicion. We note, however, that such odd behavior would certainly add to the already existing reasonable suspicion.
2. No First Amendment Violation
Count II of the Amended Complaint alleges a cause of action under the First Amendment for "deprivation of liberty and association rights and retaliation for expressive activities." Plaintiff contends that Defendants' decision to suspend her was a retaliatory act for Plaintiffs refusal to submit to a drug test, and for Plaintiff's request that Defendants "produce a warrant or establish the existence of probable cause or a reasonable basis for the order [that Plaintiff submit to a drug test]." (Am. Compl. at ¶ 46.) Plaintiff claims that she refused the drug test because Defendants had failed to meet her demand that they show "probable cause or [a] search warrant." (Am. Compl. at Count II.)
The Amended Complaint also alleges a First Amendment violation of Plaintiff's associational rights. "Defendant DeWire ordered Plaintiff seized on December 19 and 21 and to me [sic] a [sic] searched because of Plaintiff's choice where to reside, to wit; North Philadelphia. . . . " (Am. Compl. at ¶ 37.) The Amended Complaint also states: "Plaintiff's choice of where to reside is a [sic] Associational and liberty right that is protected under the First and Fourteenth Amendments of the United States Constitution. . . ." (Id. at ¶ 52.) However, Plaintiff fails to provide further explanation for this First Amendment claim. At no point in the Amended Complaint or in Plaintiff's Reply to Pennsylvania State Police Defendants' Motion for Summary Judgment does Plaintiff provide anything more than this allegation. We are unable to decipher why Plaintiff believes her choice of residence is relevant to the events in this case, or why Plaintiff believes Defendants' actions were motivated by Plaintiff's decision to live in North Philadelphia. Moreover, Plaintiff fails to make any reference to this claim beyond the Amended Complaint. Because Plaintiff has provided nothing more than mere allegations regarding this First Amendment freedom of association claim, it will be dismissed. FED. R. CIV. P. 56(e).
In light of our preceding Fourth Amendment analysis which clearly establishes Defendants' right to require that Plaintiff report to the PSP office and submit to a drug test, we conclude that it is unnecessary to entertain a detailed analysis of this First Amendment claim. Defendants had the requisite reasonable suspicion to call Plaintiff in to the office and request the drug test. The request was within the PSP's regulations. (DeWire Dep. at 14.) In light of this authority and clear showing of reasonable suspicion, we fail to see how Plaintiff's refusal to submit to the drug test is an actionable "expression" under the First Amendment. Moreover, Defendants' decision to suspend Plaintiff, pending an investigation into her arrest for possession of crack cocaine, was not retaliation. In light of the public safety considerations discussed above, Defendants' decision to suspend was completely justified. Accordingly, we dismiss Plaintiff's First Amendment claims.
Also in Count II, Plaintiff mentions a First Amendment "chilling claim" and states: [T]he suspension was designed to chill Ms. Knight[']s First Amendment activities and compel her to stop engaging in that activity." However, Plaintiff fails to provide this Court with facts sufficient to evaluate this claim.
3. No Fourteenth Amendment Procedural Due Process Violation a. No Constructive Discharge
Plaintiff claims that Defendants' decision to suspend was the direct cause of her loss of Workers' Compensation benefits and that this loss of income left Plaintiff with no alternative but to retire and trigger her retirement benefits. Plaintiff characterizes her suspension as a constructive discharge because it forced permanent termination through retirement. Defendants agree that Plaintiff lost her compensation benefits when suspended, but they contend that the factors surrounding Plaintiff's decision to retire did not constitute a constructive discharge. (State Police Defs.' Reply Mem. in Further Supp. of their Mot. for Summ. J., at 10.)
While Plaintiff contends that the loss of both her Heart and Lung, and Workers' Compensation benefits motivated her decision to retire, it seems that Plaintiff actually retired before losing her Workers' Compensation benefits. Plaintiff's Heart and Lung benefits ceased on December 21, 2000, the day her suspension became effective. (Knight Dep. at 194.) Plaintiff's retirement became effective on January 25, 2001, (State Police Defs.' Mot. for Summ. J., Ex. D at 92.), but Defendants did not petition for suspension of Plaintiff's Workers' Compensation benefits until January 29, 2001. Knight v. Commonwealth of Pa. State Police, Claim No. 984922, at 2 (Pa. Dept. of Labor and Indus., Bureau of Workers' Comp., Aug. 20, 2002).
Plaintiff does not argue that the suspension itself was a violation of her due process rights.
In Leheny v. City of Pittsburgh, the Third Circuit held:
Employee resignations and retirements are presumed to be voluntary. This presumption remains intact until the employee presents evidence to establish that the resignation or retirement was involuntarily procured. If an employee retires of his own free will, even though prompted to do so by some action of his employer, he is deemed to have relinquished his property interest in his continued employment for the government, and cannot contend that he was deprived of his due process rights.183 F.3d 220, 227 (3d Cir. 1999). Under Leheny, Plaintiff bears the burden of demonstrating that her retirement was "involuntarily procured." Plaintiff has not made such a showing. Even assuming that Plaintiff retired as a direct result of being suspended and losing compensation benefits, it does not follow that Plaintiff had no alternative but to retire. In Suders v. Easton, the Third Circuit defined constructive discharge in Title VII cases and suggested that courts consider whether employee/plaintiffs have viable alternatives to resigning. 325 F.3d 432, 444-45 (3d Cir. 2003). In this case, Plaintiff's suspension was temporary, pending an investigation related to her arrest and ARD disposition. Rather than retiring, Plaintiff could have pursued the grievance she had filed to protest the suspension. Plaintiff also had the option of awaiting the results of the investigation and, depending on the outcome, the possibility of reinstatement.
Plaintiff's grievance was discontinued when she filed for retirement. (Joint Case Rep. at 4.)
To find that the retirement was involuntarily procured would require this Court to conclude that Defendants had no authority to suspend Plaintiff pending investigation of the criminal charges. Considering public safety factors associated with Plaintiffs position as a law enforcement officer, we are unwilling to reach such a conclusion. In the case of Gilbert v. Homar, the Supreme Court held that Pennsylvania state officials did not violate plaintiff's procedural due process rights when they suspended without pay the plaintiff, a police officer, who was employed at a public university and arrested and charged with a drug felony, while defendants investigated the charges. 520 U.S. 924 (1997). In reaching this conclusion, the Gilbert Court balanced three factors: (1) the private interest affected by the government action; (2) "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards"; and (3) the government's interest. Id. at 931-32.
In the instant case, Plaintiff argues that she was forced to retire because her benefits were discontinued when she was suspended. InGilbert, the plaintiff argued that he had a "significant private interest in the uninterrupted receipt of his paycheck." Id. at 32. In addressing this concern, the Court found that plaintiffs temporary suspension, as long as it was followed by a "prompt postsuspension hearing," would result in a relatively small loss of income, as compared to outright termination. Id. The Court then compared the plaintiff's interest with that of the government and found that "the State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers." Finally, the Court considered the risk of erroneous deprivation and found that the "State had no constitutional obligation to provide . . . a presuspension hearing" because the purpose of a pre-suspension hearing would be to "determine `whether there are reasonable grounds to believe the charges against the employee are true and support the proposed action.'" Id. at 933 (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46 (1985).). The Court then concluded that the reasonable grounds to support suspension without pay were "assured by the arrest and the filing of charges." Id. at 933-34.
In the instant case, Plaintiff retired one month after her suspension. The Gilbert Court suggested that ninety days might meet the "prompt hearing" requirement. Gilbert, 520 U.S. at 935. Accordingly, we see no problem with the fact that Defendants had not yet provided Plaintiff with a post-suspension hearing when Plaintiff retired one month after the suspension. We also note that Defendants did provide Plaintiff with a pre-suspension hearing on December 7, 2000, when Plaintiff appeared before the PDC to discuss her arrest and failure to report it to Defendants.
We reject Plaintiff's assertion that Defendants' decision to suspend Plaintiff without pay, pending an investigation into Plaintiff's arrest and ARD disposition for a drug-related felony, constituted a constructive termination violating her due process rights. Like the defendants inGilbert, the Defendants this case were faced with the challenge of balancing Plaintiff's interest in receiving an income with that of the public in not providing an "employee charged with a felony a paid leave at taxpayer expense." Id. at 932. Further, the Gilbert Court clearly indicated that the filing of criminal charges is sufficient to ensure that state employers have not erroneously deprived an employee when suspending an employee without pay, pending an investigation. Id. at 933. Accordingly, we conclude that Plaintiff's due process rights, as they relate to her decision to retire, were not violated when Defendants temporarily suspended Plaintiff pending an investigation.
b. Heart and Lung Benefits
Plaintiff claims that Defendants deprived her of her due process rights when, subsequent to her suspension, Defendants terminated Plaintiffs Heart and Lung Benefits. Plaintiff has presented no authority, and we are aware of none, that would suggest that income received as a benefit of employment must continue after suspension from that employment without pay.
In her Amended Complaint, Plaintiff provides extensive details related to her Heart and Lung benefits and an overall denial of due process. However, Plaintiff then fails to support any of those allegations with depositions, affidavits, or any other evidence obtained during discovery.
In her memorandum, Plaintiff states that Exhibits 13 and 14 "specifically shows [sic] that Ms. Knight had asked for her benefits to be restored but the request was denied and no hearing was ever afforded Ms. Knight." (Pl.'s Reply to Pa. State Police Defs.' Mot. for Summ. J. at 20.) However, Exhibit 13 addresses a matter completely unrelated to Ms. Knight's suspension of benefits or request for a hearing. In fact, Exhibit 13 does not discuss Ms. Knight at all. Further, Exhibit 14 does not exist.
Plaintiff dedicates considerable time in her Amended Complaint describing the shortcomings of the state system that "allows the taking [of benefits] to occur without first requiring notice and opportunity for a haring [sic] to be provided to the Plaintiff." (Am. Compl. at ¶ 95(c).) We note, however, that Plaintiff had an opportunity to be heard, prior to her suspension, when she attended the PDC in Harrisburg. It was only after this conference and Plaintiff's refusal to provide a hair sample that she was suspended. She then voluntarily retired. Plaintiff cannot now assert that the benefits associated with her employment at the PSP should not be terminated along with her position as a law enforcement officer. Accordingly, we dismiss Plaintiff's due process claims. C. Conspiracy Claims Under 42 U.S.C. § 1985
In order to state a claim under § 1985, a plaintiff must allege:
(1) a conspiracy;
(2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons . . .[of] the equal protection of the laws;
(3) an act in furtherance of the conspiracy; and
(4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States.Douris v. Dougherty, Civ. No. 01-5757, 2003 WL 231258 (E.D. Pa. Jan. 31, 2003) (quoting Rideewood Bd. of Educ. v. N.E. ex rel M.E., 172 F.3d 238, 254 (1999).
Plaintiff withdrew her equal protection claim, (Pl.'s Reply to Pa. State Police Defs.' Mot. for Summ. J. at 20.), and we have dismissed all of Plaintiff's § 1983 claims against the PSP Defendants. Because an underlying § 1983 claim is a prerequisite for a conspiracy claim under § 1985, Plaintiff cannot proceed on this count. Natale v. Schwartz, 151 F. Supp.2d 562, 572 (E.D. Pa. 2001) (granting summary judgment for defendants on § 1985 claims because plaintiffs' § 1983 claims lacked merit).
Plaintiff's conspiracy claims against Defendants also fail as a matter of law because Defendants are "agents of a single entity." In Bougher v. University of Pittsburgh, the district court dismissed the plaintiff's § 1985 claim against employees of the University of Pittsburgh because they were a single entity. 713 F. Supp. 139, 145 (W.D. Pa. 1989) (citing Johnson v. University of Pittsburgh, 435 F. Supp. 1328, 1370 (W.D. Pa. 1977) ("This is in accord with the familiar rule that a person cannot conspire with himself and therefore for the agents of a single corporation to conspire among themselves and not with outsiders does not state a cause of action under 1985(3).")). In the instant case, the named state Defendants are also one entity for the purposes of Plaintiff's claim because they all work for and represent one organization, the State Police of Pennsylvania. Accordingly, Plaintiff's conspiracy claims under § 1985, as they relate to the PSP Defendants, are dismissed with prejudice.
D. Plaintiff's State Law Causes of Action
Plaintiff has alleged various state law causes of action in Counts VII, VIII, IX, X and XL Because we have granted summary judgment on all of Plaintiff's federal law claims against all of the State Police Defendants, we exercise our discretion pursuant to 28 U.S.C. § 1367(c) and decline to exercise supplemental jurisdiction over any surviving state law claims against the State Police Defendants.
V. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted as to Counts I, II, III, V, and VI of the Amended Complaint as they relate to the State Police Defendants. The remaining state law Counts against the State Police Defendants, Counts VII, VIII, IX, X, and XI, are dismissed without prejudice.
ORDER
AND NOW, this 12th day of December, 2003, upon consideration of the State Police Defendants' Motion For Summary Judgement (Doc. No. 23) and all papers filed in support thereof and in opposition thereto, it is ORDERED that the Motion is GRANTED. Counts I, II, III, V and VI of Plaintiff's Complaint are DISMISSED with prejudice. Counts VII, VIII, IX, X, XI are DISMISSED without prejudice.
IT IS SO ORDERED.