Pre-Termination Hearing • “Stigma-Plus” Claim • Retaliation Claim (Freedom to Associate)

Rossiter v. City of Phila., PICS Case No. 14-0466 (E.D. Pa. March 17, 2014) Slomsky, J. (20 pages).

Police officer, who was given informal pre-termination hearing and who cleared his name in arbitration, failed to state due process and “stigma-plus” violations; however, officer sufficiently pled a retaliation action in violation of his First Amendment right to associate with union. Motion to dismiss granted and denied in part.

Local media published reports about overtime abuse by Philadelphia Police Department. A story published In 2010 singled out plaintiff as earning the most overtime pay on city payroll (over $160,000).

The following year, police department received an anonymous complaint that plaintiff was at home when he was supposed to be working overtime. Sergeant investigated plaintiff’s conduct. During 23 days of surveillance, plaintiff was observed at his residence 16 times during work hours. Sergeant questioned plaintiff regarding each instance he was observed at home and plaintiff explained that he had either worked at home or had stopped at home on the days in question. Police department charged plaintiff with conduct unbecoming a police officer and with violating department’s disciplinary code. Thereafter, police commissioner (Ramsey) made several statements to media accusing plaintiff of overtime abuse and indicating that he intended to fire plaintiff. Plaintiff responded publicly to these statements.

Plaintiff met with labor union (FOP) and was informed that Ramsey would give plaintiff a “mere reprimand” if FOP would withdraw their charge of unfair labor practices filed in response to Ramsey’s new disciplinary code. FOP declined.

Four days later, plaintiff was informed he was being terminated. About one month later, Ramsey terminated plaintiff without a hearing.

Plaintiff filed a grievance. Arbitrator held that defendants did not have just cause to terminate plaintiff and ordered him reinstated.

Plaintiff sued Ramsey and city for violating his rights in connection with his termination. He alleged, inter alia: (1) a procedural due process claim; (2) a “stigma-plus” claim; and (3) a retaliation claim. Defendants moved to dismiss for failure to state a claim. The U.S. District Court for the Eastern District of Pennsylvania granted and denied the motion in part.

A public employee with a property interest in his or her job is entitled to a pre-termination opportunity to respond. The pre-termination hearing should consist of oral or written notice of the charges, an explanation of the employer’s evidence, and an opportunity for employee to explain. The hearing may be formal or informal, so long as it grants employee an opportunity to make any plausible arguments to prevent his or her discharge. Notice, which may occur at the pre-termination hearing, is sufficient if it apprises the party of the nature of the charges and general evidence against him or her and it is timely under the particular circumstances of the case.

Here, the questioning by sergeant constituted a pre-termination hearing; it occurred prior to plaintiff’s termination; plaintiff was provided with oral notice of the charges, an explanation of his employer’s evidence, and an opportunity to explain. Furthermore, the questioning was timely because it occurred approximately seven months before plaintiff was fired. Therefore, plaintiff’s procedural due process rights were not violated.

To make out a due process claim for deprivation of a liberty interest in reputation, plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest (the “stigma-plus” test). To satisfy the “stigma” prong of the test, plaintiff must allege that purportedly stigmatizing statements were made publicly and were false. When such a deprivation occurs, the appropriate remedy is a name-clearing hearing.

Plaintiff alleged that Ramsey defamed him by making several public statements accusing plaintiff of overtime abuse and indicating his intent to fire him. However, plaintiff was provided with an arbitration hearing, after which arbitrator ordered him reinstated. The arbitration hearing cured any injury that plaintiff suffered to his reputation.

To properly plead a First Amendment retaliation claim, plaintiff must allege constitutionally protected conduct, retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and a causal link between the constitutionally protected conduct and the retaliatory action. To establish this causal link, plaintiff must prove either an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or a pattern of antagonism coupled with timing to establish a causal link.

Here, plaintiff has satisfied all prongs of the test. Plaintiff was a member of the FOP. His association with FOP constituted a protected activity. Plaintiff was subsequently terminated in retaliation to this association. An ordinary person could reasonably be deterred from associating with FOP if the association could result in termination of employment. The temporal proximity of four days between FOP meeting and plaintiff’s termination is short enough to suggest retaliatory motive.