Steven Burne v. Frank Siderowicz , 445 F. App'x 529 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4618
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STEVEN W. BURNE,
Appellant
v.
FRANK SIDEROWICZ;
DENNIS GIORDANO;
BRIAN BOGNATZ; ERIN SODIN;
ROBERT COX
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(Civil Action No. 3:07-cv-00588)
District Judge: Honorable James M. Munley
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Submitted Pursuant to Third Circuit LAR 34.1(a)
July 12, 2011
Before: SLOVITER, FUENTES, and GARTH, Circuit Judges
(Opinion filed July, 21, 2011)
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OPINION OF THE COURT
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GARTH, Circuit Judge.
Plaintiff-appellant Steven W. Burne appeals from the District Court‟s order
granting summary judgment to defendants on Burne‟s § 1983 action. Burne alleges that
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the defendants pretextually terminated his employment in retaliation for Burne‟s offer to
give a statement concerning his supervisor‟s involvement in a workplace dispute.
Because we agree with the District Court that the First Amendment does not protect such
speech by a public employee, we will affirm.
I.
Burne began his employment with the Pennsylvania Department of Transportation
(PennDOT) in November 2001 as a seasonal equipment operator and snowplow driver.
In January 2005, while working at a PennDOT depot in Lackwanna County, Burne
allegedly witnessed his supervisor, appellee Frank Siderowicz, physically attack another
employee, John Fife. Burne then allegedly told Robert Cox, the Lackawanna County
Assistant Manager for PennDOT, that he would give a statement reporting the altercation.
Siderowicz denies that any such altercation transpired, and Cox does not recall Burne
approaching him or whether the dispute between Siderowicz and Fife turned physical.
No one filed a formal complaint reporting the incident.
On February 10, 2005, Brian Bognatz, a Carbondale, Pennsylvania police officer,
observed Burne driving a PennDOT snowplow through a red light. Bognatz stopped
Burne and recorded Burne‟s license and registration, but did not issue a citation at that
time. Burne maintains that the light was yellow and that Bognatz left Burne with the
impression that no citation would be issued. However, the following day, Bognatz called
Dennis Giordano, the Lackawanna County Manager for PennDOT, to apprise him of
Burne‟s traffic violation. On the advice of Erin Sodin-Mazikewich, a human resources
coordinator in PennDOT‟s district office, Giordano tried to obtain an incident report from
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Bognatz. Since Giordano could not reach Bognatz, he called the Mayor of Carbondale,
who in turn communicated with Bognatz. Bognatz then faxed PennDOT a copy of the
citation, which was undated. According to Bognatz, officers have up to thirty days to
issue citations for summary offenses, and traffic tickets are “very, very often filed after
the incident.” (App. 129.)
Giordano scheduled a pre-disciplinary hearing for March 11, 2005, to discuss the
traffic citation with Burne and to allow Burne to respond to the allegations. Following
the hearing, Burne was first suspended, then terminated effective March 11, 2005. In a
termination letter dated March 28, 2005, PennDOT specified that Burne‟s traffic
violation was the reason for his termination.
On April 4, 2005, a magistrate dismissed Burne‟s traffic citation because Bognatz
did not appear at the citation hearing.
On March 20, 2008, Burne filed an amended complaint against Siderowicz,
Giordano, Sodin-Mazikewich, Cox (hereafter “PennDOT Defendants”), and Bognatz in
the District Court for the Middle District of Pennsylvania. Burne‟s complaint, brought
under 42 U.S.C. § 1983, alleged (1) violations of his First Amendment right to speak on a
matters of public importance without fear of retaliation, (2) violations of his Fourth
Amendment rights to be free of unlawful seizures and of malicious prosecution, and (3)
conspiracy to violate those rights. The gravamen of Burne‟s complaint was that the stated
basis for his termination -- the traffic citation -- had been manufactured as a pretext to fire
him for offering a statement about Siderowicz‟s alleged misconduct. Burne primarily
sought $40,000 in special damages on account of lost wages.
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Bognatz moved for summary judgment on April 20, 2009, and the PennDOT
Defendants moved for summary judgment on April 27, 2009.
The District Court granted both motions for summary judgment. It held that (1)
Burne‟s expression of willingness to give a statement about the Siderowicz-Fife
altercation was not protected speech related to a public concern; (2) even if such speech
were protected, it did not play a substantial role in Burne‟s termination; and (3) Burne
would have been terminated in any event. The District Court also determined that
stopping Burne for what Bognatz perceived as Burne running a red light was objectively
reasonable, and that Burne could not satisfy several elements of a malicious prosecution
claim. Finally, the District Court concluded that in the absence of First Amendment or
Fourth Amendment violations, Burne could not establish a claim of conspiracy under §
1983.1
II.
A.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, & 1367.
We have jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over the District Court‟s grant of summary judgment,
viewing “the underlying facts and all reasonable inferences therefrom in the light most
favorable to the party opposing the motion.” McGreevy v. Stroup, 413 F.3d 359, 363 (3d
Cir. 2005) (citation omitted). “Under Federal Rule of Civil Procedure 56, summary
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On appeal, Burne does not contest the portion of the District Court‟s holding
relating to his Fourth Amendment claims.
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judgment is proper „if the movant shows that there is no material dispute as to any
material fact and the movant is entitled to judgment as a matter of law.‟” Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011).
B.
To establish a First Amendment retaliation claim, a public employee must show
that (1) “the activity in question is protected by the First Amendment” and (2) “the
protected activity was a substantial factor in the alleged retaliatory action.” Hill v.
Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (citation omitted). The
employer can rebut those showings by demonstrating that it “would have taken the
adverse action in the absence of [the employee‟s] protected conduct.” Id. at 241 n.23
(citation omitted).
The threshold issue -- whether the speech concerned is protected under the First
Amendment -- “is solely a question of law.” Miller v. Clinton Cnty., 544 F.3d 542, 548
(3d Cir. 2008). Speech is protected if (1) “the employee spoke as a citizen on a matter of
public concern” and (2) the government employer had no “adequate justification for
treating the employee differently from any other member of the general public” as a
result of the statement. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citations
omitted). “Whether an employee‟s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983).
C.
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Burne presents two main arguments in support of his position that his speech
touched on an issue of public concern.
First, Burne argues that his statements to Cox implicated an issue of public
concern because Burne “had no personal interest in reporting the workplace assault.” But
the mere fact that Burne‟s speech was not impelled by self-interest does not elevate it to a
level of public significance. See Azzaro v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d
Cir. 1997) (“[T]he speaker‟s motive, while often a relevant part of the context of the
speech, is not dispositive in determining whether a particular statement relates to a
matter of public concern.”) “Rather, the issue is whether it is important to the process of
self-governance that communications on this topic, in this form and in this context, take
place.” Id. at 977. Burne‟s proffer of a statement to a superior regarding a private
dispute in the workplace lacked the requisite connection to broad social and political
issues, transparency in government affairs, or the effectiveness of government service
that is normally characteristic of an issue of public concern. See Borden v. Sch. Dist. of
Twp. of E. Brunswick, 523 F.3d 153, 170 (3d Cir. 2008).
Second, Burne attempts to liken his situation to that of the employee in Pro v.
Donatucci, 81 F.3d 1283 (3d Cir. 1996), who claimed retaliation after volunteering to
testify against her employer at his divorce proceeding. We recognized in Pro that the
speech was protected “because of its form and context -- that is, potential sworn
testimony before an adjudicatory body.” Id. at 1288 (citation and internal quotation
marks omitted); see also Green v. Phila. Hous. Auth., 105 F.3d 882, 887 (3d Cir. 1997)
(“In Pro, we held the context of a courtroom appearance raises speech to a level of public
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concern, regardless of its content.” (citations omitted)). The unique public interest
inherent in courtroom testimony, which we identified in Pro, does not pertain here, where
no adjudicative proceeding or internal investigation was initiated, no witness testimony
was solicited, and indeed, no formal complaint was ever filed.2
The better analog to Burne‟s allegedly protected speech is the “speech” at issue in
Gorum v. Sessoms, 561 F.3d 179 (3d Cir. 2009), in which a professor claimed he had
been retaliated against for, among other things, assisting a student in disciplinary
proceedings. Burne‟s professed willingness to provide a statement regarding a workplace
altercation bears the same hallmarks of the professor‟s speech in Gorum that led us to
conclude that it did not implicate public concerns: Burne‟s speech was “related to the
personal grievance” of another -- namely, Fife; “[t]here is no evidence in the record that
[Burne] even made a public statement,” since he merely indicated that he would make a
statement; and “[t]here is no proof that he thought any public policy issues were at stake.”
Id. at 187.
In short, Burne‟s speech concerned a private dispute between his supervisor and a
co-worker, which does not enjoy First Amendment protection. See Connick, 461 U.S. at
149 (“While as a matter of good judgment, public officials should be receptive to
constructive criticism offered by their employees, the First Amendment does not require
2
We also reject Burne‟s argument that defendant-appellees‟ actions implicated the
Petition Clause of the First Amendment, since he fails to identify a protected petitioning
activity -- e.g., initiating a lawsuit or seeking redress for a grievance -- for which he may
have been penalized. See Foraker v. Chaffinch, 501 F.3d 231, 237-38 (3d Cir. 2007),
abrogated on other grounds by Borough of Durea, Pa. v. Guarnieri, 131 S.Ct. 2488(2011).
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a public office to be run as a roundtable for employee complaints over internal office
affairs.”) As a result, we cannot say that Burne‟s speech “„touch[ed] on broad social or
policy issues‟ or „implicate[d] the discharge of public responsibilities by an important
government office, agency, or institution,‟” which it must, in order to be deemed
protected speech. Gorum, 561 F.3d at 187 (quoting Sanguigni v. Pittsburgh Bd. of Pub.
Educ., 968 F.2d 393, 397 (3d Cir. 1992)).
Having determined at the threshold that Burne‟s speech is not protected by the
First Amendment as a matter of law, we need not address the other aspects of the First
Amendment retaliation inquiry, i.e., whether the PennDOT Defendants had sufficient
justification to treat Burne differently and what role Burne‟s speech played, if any, in his
termination.
Finally, inasmuch as Burne has not demonstrated a violation of his First
Amendment rights, he perforce cannot sustain his claim of a conspiracy to deprive him of
those rights. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150 (1970).
III.
For the foregoing reasons, we will affirm the District Court‟s November 10, 2009,
grant of summary judgment in favor of the PennDOT Defendants and Bognatz.
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