Matsey v. Westmoreland County , 185 F. App'x 126 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-19-2006
Matsey v. Westmoreland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4189
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4189
STEPHEN M. MATSEY,
Appellant
v.
WESTMORELAND COUNTY; THOMAS CERASO, Individually, and in his capacity
as Chairman of the Westmoreland County Prison Board; TOM BALYA, COUNTY
COMMISSIONER, Individually, and in his capacity as a member of the Westmoreland
County Prison Board; P. SCOTT CONNER, Individually, and in his capacity as a
member of the Westmoreland County Prison Board; JOHN PECK, Individually, and in
his capacity as a member of the Westmoreland County Prison Board; JEFFREY
PAVETTI, Individually, and in his capacity as a member of the Westmoreland County
Prison Board; WILLIAM WHIRLOW, Individually, and in his capacity as former
Deputy Warden of Westmoreland County Prison; CHARLES (CHUCK) DOMINICK,
Individually, and in his capacity as Westmoreland County Director of Human Resources
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 01-cv-01802)
District Judge: The Honorable Maurice B. Cohill, Jr.
Argued April 27, 2006
Before: AMBRO and FUENTES, Circuit Judges,
and IRENAS,* District Judge
*
Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
(Filed: May 19, 2006)
Edward A. Olds, Esq. (Argued)
1007 Mount Royal Boulevard
Pittsburgh, PA 15223
Counsel for Appellant
Robert E. Durrant, Esq. (Argued)
Neva L. Stanger, Esq.
Campbell, Durrant & Beatty, P.C.
555 Grant Street, Suite 310
Pittsburgh, PA 15219
Counsel for Appellees
OPINION
IRENAS, Senior United States District Judge
Appellant Stephen M. Matsey appeals from the September 29, 2004,
Opinion and Order of the Western District of Pennsylvania granting the motion for
summary judgment of the Appellees Westmoreland County, Thomas Ceraso, Tom Balya,
P. Scott Conner, John Peck, Jeffrey Pavetti, William Whirlow, and Charles (Chuck)
Dominick on Matsey’s Section 1983 claims alleging violations of the First Amendment,
the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to
the United States Constitution, and his claim alleging a violation of the Pennsylvania
2
Whistle Blower Act (“PWBA”), 43 Pa.C.S.A. § 1421 et seq.1 Matsey’s claims stem from
his suspension and eventual termination from his job as a lieutenant corrections officer at
the Westmoreland County Prison. We will deny his appeal.
I.
Matsey began working for the Westmoreland County Prison (“Prison”) in
1982 as a part-time corrections officer. At the time of the events relevant to this lawsuit,
Matsey served as a lieutenant on the night shift. As the night shift lieutenant, Matsey was
the highest ranking official at the Prison during his shift. He was fired from his job in
April, 2001.2
Matsey’s termination stems from a series of troubling incidents at the
Prison, in which his personal involvement is subject to some dispute. An undercover
investigation by the Pennsylvania State Police revealed in June, 2000, that an inmate at
the Prison, Ronald Whethers, was running a drug trafficking operation out of his prison
cell, using a cell phone and aided by employees of the Prison.
A grand jury was convened to investigate the drug scandal, and the
Pennsylvania Department of Corrections conducted its own investigation of the Prison.
The investigative reports revealed security and other serious problems at the Prison,
including allegations that Whethers received certain favorable treatment from corrections
1
Matsey voluntarily withdrew his claim alleging “political discrimination” and all
claims against Defendant “Gary” (Michael) Millward.
2
Matsey’s counsel admitted during oral argument that Matsey was an at-will employee.
3
officers and Prison personnel. Matsey was not, nor has he ever been, implicated in the
Whethers drug trafficking operation.
The Prison warden, Kurt Scalzott, assigned Whirlow3 to investigate the
allegations of favorable treatment. Whirlow’s investigation concluded that Whethers and
the other inmates in his unit received a special meal on the night of June 18, 2000, despite
the fact that they had not performed any extra work, whereas the inmates of other units
did not receive any food. In addition, Whirlow found that hot food had been given to the
night court staff, and that a sergeant under Matsey’s supervision had entered the Prison’s
kitchen to prepare food during the night shift, both in violation of Prison policy.
Whirlow also uncovered that Matsey allegedly engaged in an eighteen minute private
conversation with Whethers during a day shift in April, 2000. Whirlow recommended
that immediate action be taken against Matsey and the sergeant.
Upon review of Whirlow’s investigation, Scalzott recommended that the
Westmoreland County Prison Board (“Prison Board”) suspend Matsey for three days for
violating Prison policy by feeding the night court staff and permitting the sergeant to
cook in the kitchen. Scalzott did not recommend any discipline based on Matsey’s
conversation with Whethers or the meal provided to the inmates on June 18, 2000,
3
The working relationship of Matsey and Whirlow was undisputedly very poor.
Matsey openly criticized Whirlow’s job performance and integrity. Additionally, at some
point prior to the Whethers drug scandal, Matsey attempted to discipline Whirlow’s wife
and sister-in-law, both of whom worked at the Prison. The women filed a harassment
charge against Matsey. Whirlow gathered information on the harassment charge, and sent
Matsey a letter indicating that he had used poor judgment in handling the situation.
4
because Prison policy permitted providing a meal to inmates who worked during the
night shift.
The Prison Board decided to suspend Matsey without pay for sixty days in
January, 2001. While Matsey was suspended, his attorney complained to a reporter about
the suspension and mentioned certain improprieties in the Prison’s kitchen that Matsey
thought the Prison Board should be investigating. Matsey also met with Ceraso on
February 12, 2001. Matsey mentioned the alleged kitchen improprieties to Ceraso, and
reported his concerns about security at the Prison. He also requested a name-clearing
hearing. Ceraso told Matsey to put his request in writing.
While Matsey was serving his suspension, the Prison Board was informed
of a civil rights lawsuit brought by an inmate against Westmoreland County based upon
allegations of excessive force by Matsey arising from a November, 1996, incident. An
attorney for the County determined that the lawsuit had some merit, despite an
inconclusive internal investigation, and recommended that the County settle. The
attorney also advised that the Prison take some remedial action in case a future abuse
case was brought against the employees involved, such as counseling.
The Prison Board chose to terminate Matsey’s employment when his
suspension ended in April, 2001.4 Scalzott was asked to retire, but when he refused, he
too was fired. Whirlow was either forced to retire early or allowed to accept early
4
After Matsey was suspended but before he was terminated, Matsey’s attorney sent the
Prison Board a letter requesting a post-suspension hearing. No hearing was ever held.
5
retirement instead of being fired.
Matsey filed suit against Appellees in the Western District of Pennsylvania
on September 27, 2001. Matsey claims that the decision to suspend and then terminate
him was arbitrary, and motivated by his criticism of prison security and Whirlow’s
personal dislike of him. He also contends that he was entitled to and denied a name-
clearing hearing by the Prison Board. The District Court granted Appellees’ motion for
summary judgment on September 29, 2004.
II.
This Court exercises plenary review over a district court’s conclusions of
law, and reviews its findings of fact for clear error. Fed. Home Loan Mortgage Corp v.
Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). In doing so, the Court employs the
same standard as used by the district court in deciding motions for summary judgment.
Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).
Summary judgment is appropriate “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 a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). In deciding a motion for summary judgment, the court
must construe the facts and inferences in a light most favorable to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
6
The role of the court is not to “weigh the evidence and determine the truth
of the matter, but to determine whether there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The non-moving party may not rest on its
pleadings to oppose a summary judgment motion but must affirmatively come forward
with admissible evidence establishing a genuine issue of fact. Celotex Corp., 477 U.S. at
324.
III.
While Matsey has pointed to certain irregularities in the process by which
he was suspended and terminated, the Western District of Pennsylvania did not err in
determining that he had not raised any material issues of fact regarding his First
Amendment, Equal Protection, Due Process and PWBA claims. The District Court
properly concluded that the undisputed evidence established that Matsey was terminated
because he was the highest ranking officer on the night shift and in charge of the prison
during a period when serious security lapses occurred, including the operation of a drug
trafficking ring by an inmate, and not because he engaged in protected speech or for any
other prohibited reason.
A.
The Equal Protection Clause commands that similarly situated persons be
treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);
Jackson v. Gordon, 145 Fed. Appx. 774, 777 (3d Cir. 2005). An equal protection claim
7
can be brought by a “class of one” where the plaintiff alleges that he has been
“intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam); see also Jackson, 145 Fed. Appx. at 777; Eichenlaub v.
Twp. of Indiana, 385 F.2d 274, 286 (3d Cir. 2004) (“The Supreme Court has held that a
‘class of one’ can attack intentionally different treatment if it is ‘irrational and wholly
arbitrary.’”) (quoting Olech).
In granting summary judgment on Matsey’s “class of one” equal protection
claim, the District Court held that: (1) he was not similarly situated to other shift
commanders because night shift commanders, such as him, are in charge of the operation
of the Prison, whereas day shift commanders are not; (2) Matsey was not similarly
situated to other night shift commanders because of other conduct by him; (3) the
discipline of Matsey was rationally related to his conduct; and (4) he was treated the
same as Scalzott and Whirlow, as all three lost their jobs in the aftermath of the Whethers
scandal.
This Court agrees with the District Court’s determination that Matsey was
not similarly situated to other shift commanders. Unlike those shift commanders, the
night shift commander is in charge of the Prison during his time on duty, as higher
ranking officials such as the warden or deputy warden are not at the Prison at night.
Given that Matsey had unique responsibility for the operations of the Prison during his
8
shift, he is not similarly situated with other shift commanders, who worked under the
supervision of higher ranking officials. It was on Matsey’s watch when Whethers
conducted some of his illegal activities.
The District Court correctly noted that there were additional incidents
involving Matsey that distinguish him from other shift commanders, including lieutenants
who also worked the night shift. Matsey does not dispute that Whethers and other
inmates on his unit received an extra meal during the night shift on June 18, 2000, and he
is correct that this was not prohibited by Prison policy.
As the District Court observed, however, this extra meal should be viewed
in the greater context of the Whethers scandal, which revealed a pattern of favoritism and
special treatment given to Whethers. On June 18, 2000, no inmates other than Whethers
and those in his unit doing night shift work received an extra meal, despite having
performed comparable work as other units on the night shift. No other night shift
commanders permitted inmates to be provided with extra meals with near the frequency
that Matsey allowed.
The larger Whethers scandal also casts a shadow on the eighteen minute
private conversation that Matsey had with Whethers in April, 2000. The record does not
reveal the substance of the conversation. While it may not have been prohibited or
particularly unusual, Matsey has not pointed to any other shift commanders who had such
extensive private contact with an inmate at the center of a major scandal.
9
Additionally, none of the other lieutenants who served as night shift
commander were involved in a lawsuit brought by a prisoner involving allegations of
abuse by the lieutenant. Matsey was personally involved in the actions that the prisoner
alleged were impermissibly abusive, rather than being implicated in his supervisory
capacity. While the internal investigation cleared him of the excessive force allegations,
it did reveal that the Prison’s policy requiring videotaping of all prisoner cell extractions
was violated. Despite the fact that the investigation refuted the abuse claims, the County
settled the lawsuit based on its attorney’s conclusion that it would not prevail at trial.
We conclude that the District Court’s determination that Matsey was not
similarly situated to the other shift commanders is correct. Moreover, although the
District Court did not hold that Matsey was similarly situated to Scalzott and Whirlow, it
noted that, like Matsey, they both lost their jobs.5 Scalzott was given the option to resign
or be fired, and chose to be fired. Whirlow was offered the choice of staying on at the
Prison to assist the interim warden during the transition period until he became eligible
for early retirement, or be fired that day. Whirlow chose to stay on and took early
retirement in April, 2001. We note that Matsey has not demonstrated that he is similarly
situated to either Scalzott or Whirlow, and argues only that he was treated differently
from them. It is significant, however, that, like Matsey, Scalzott and Whirlow were in
5
The District Court’s opinion states that “[t]o the extent that Matsey can be considered
as substantially similar to Warden Scalzott or Deputy Warden Whirlow [,] both of these
men were similarly removed from their positions.” (Op. at 25)
10
charge of the Prison during their time on duty, and also lost their jobs as a result of the
Whethers scandal.
B.
A public employee alleging that his employer retaliated against him for
exercising his right to free speech must establish three elements to successfully oppose a
motion for summary judgment. Swineford v. Snyder County Pennsylvania, 15 F.3d 1258,
1270 (3d Cir. 1994); see also Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997); Green
v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997). First, he must establish
that his speech was protected. Swineford, 15 F.3d at 1270. Second, he must demonstrate
that he suffered some adverse employment action by his employer. Id. Next, he must
prove that his protected speech was a substantial or motivating factor for the adverse
employment action. Id. If the plaintiff meets this burden, the defendant can still defeat
the claim by establishing that he would have taken the same action absent the plaintiff’s
protected speech. Id.
The District Court granted summary judgment for Appellees, concluding
that: (1) his criticisms of Whirlow and Prison security, as well as his comments
regarding improper activities of the head of the Prison’s kitchen, were not matters of
public concern and thus were not protected speech; (2) his speech on these subjects was
not a substantial or motivating factor in the Prison Board’s decision to fire him; and (3)
the Prison Board would have terminated Matsey irrespective of any speech by him.
11
In order to establish that he engaged in a protected activity, Matsey must
demonstrate that he spoke on a matter of public concern, and that his interest in speaking
on these matters outweighed the government’s interest in suppressing his speech. See
Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563
(1968). The District Court correctly noted that much of Matsey’s speech was simply
criticism of the job performance of Whirlow, his supervisor, which does not fall into the
category of protected speech. The Supreme Court in Connick v. Myers wrote that “the
First Amendment does not require a public office to be run as a roundtable for employee
complaints over internal office affairs.” 461 U.S. 138, 149 (1983).
Moreover, Matsey cannot “establish[] that the exercise of his First
Amendment rights played some substantial role in the relevant decision.” Suppan v.
Dadonna, 203 F.3d 228, 236 (3d Cir. 2000). He has not demonstrated that his
complaints about Whirlow, Prison security or other matters played a substantial, if any,
role in the decision to terminate him. To the contrary, the record strongly suggests that
Matsey was fired because he was in charge of the Prison on the night shift during the
period in which Whethers ran the drug trafficking operation, and was centrally involved
in the prisoner abuse case settled by the County. While Matsey’s comments to Ceraso
regarding improprieties in the Prison’s kitchen may have been made shortly before he
was fired, that temporal proximity is not suggestive given the other significant events
12
occurring at the same time.6
C.
The Supreme Court has recognized that when a public employer publishes
or otherwise disseminates false and stigmatizing information in connection with an
employee’s termination, that employee has a due process right to a name-clearing
hearing. Board of Regents v. Roth, 404 U.S. 564 (1972). Contrary to Matsey’s assertion,
a public employee is not entitled to a name-clearing hearing simply because the
government “terminates an employee for reasons that impugn the employee’s reputation,
honor or integrity. . . .” (Appellant’s Br. at 51.) The government employer must publish
or disseminate the false and stigmatizing information to the public. Chabal v. Reagan,
841 F.2d 1216, 1223 (3d Cir. 1988); Poteat v. Harrisburg School District, 33 F. Supp. 2d
384, 391-92 (M.D. Pa. 1999).
Matsey has not established that the Appellees published or otherwise
disseminated false and stigmatizing information to the public. A plaintiff must establish
that the particular defendant was responsible for publicly revealing the defamatory
information. See McMath v. City of Gary, 976 F.2d 1026 (7th Cir. 1992). The news
articles in the record, however, reveal only that Ceraso confirmed that Matsey had been
first suspended and then terminated, which are undisputedly true statements.
6
To the extent that the District Court’s decision on the PWBA claim is based upon the
same analysis of Matsey’s First Amendment claim, we will affirm the District Court’s
grant of summary judgment on the state law claim as well.
13
Matsey is not entitled to a name-clearing hearing to correct false and
stigmatizing information that was published or disseminated by someone other than
Appellees, such as through independent media investigation or speculation, or because
his attorney chose to speak with a reporter. Roth does not impose an obligation on
government employers to correct false information published or disseminated by others.7
IV.
For the reasons set forth above, the Order and Opinion of the Western
District of Pennsylvania granting the motion for summary judgment of the Appellees will
be affirmed.
7
The Court thus not need to address whether Matsey’s request for a name-clearing
hearing was adequate, as he is not entitled to one in the first instance.
14