John Dondero v. Lower Milford Township ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1128
_____________
JOHN P. DONDERO,
Appellant
v.
LOWER MILFORD TOWNSHIP; ELLEN KOPLIN, IN
HER INDIVIDUAL CAPACITY; DONNA L. WRIGHT, IN
HER INDIVIDUAL CAPACITY; MICHAEL W.
SNOVITCH, IN HIS INDIVIDUAL CAPACITY; JOHN
QUIGLEY, IN HIS INDIVIDUAL CAPACITY
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 5-17-cv-04370)
District Judge: Honorable Joseph F. Leeson, Jr.
_____________
Submitted on June 4, 2021
Before: AMBRO, HARDIMAN, and PHIPPS, Circuit Judges
(Filed: July 20, 2021)
Fredrick E. Charles
441 West Linden Street
Allentown, PA 18102
Counsel for Appellant
Harry T. Coleman
41 North Main Street
Suite 316
Carbondale, PA 18407
Counsel for Appellees
________________
OPINION OF THE COURT
________________
HARDIMAN, Circuit Judge.
John Dondero appeals a summary judgment rejecting
his constitutional and statutory claims arising out of his
termination as Chief of Police in Lower Milford Township
without a hearing. We agree with the District Court that no pre-
termination hearing was required when the Township
eliminated its police department. And because Dondero’s other
claims lack merit, we will affirm.
I
Dondero served as the Lower Milford Township Chief
of Police from 2006 until the Township eliminated the
department in 2016. As Chief, Dondero reported directly to
Township Manager Ellen Koplin. The Board of Supervisors,
including Koplin, manage the Township’s operations.
Dondero’s relationship with the Supervisors was rocky. He
2
often publicly disagreed with them about the Township’s
safety policies and practices. In 2013, he openly supported, and
campaigned for, a challenger to one of the Supervisors.
While on duty in June 2015, Dondero suffered
temporary but “serious and debilitating injuries” from entering
a burning building in response to a fire call. Dondero Br. 6. At
the time of his injury, Dondero was the only active member of
the police department. While incapacitated, Dondero received
disability benefits under Pennsylvania’s Heart and Lung Act
(HLA). But he fell out of touch with his boss, Koplin, going
more than two months without contacting her. In early 2016,
Koplin sent Dondero a letter requesting updated medical
documents to verify his continued qualification for HLA
benefits.
A few weeks later, citing financial concerns, the
Supervisors passed a resolution to disband the Township police
department. In March 2016, the Supervisors enacted Ordinance
No. 128, officially eliminating the department. From the time
of Dondero’s work-related injury through the elimination of
the Township police department—a period of more than nine
months—the Pennsylvania State Police provided Township
residents full-time police coverage at no extra cost to the
Township taxpayers.
In April 2019, after several earlier filings and
modifications, Dondero filed his Second Amended Complaint.
He alleged retaliation in violation of the First Amendment and
violations of substantive and procedural due process. He also
claimed an unlawful conspiracy under 42 U.S.C. §§ 1983 and
1985, municipal liability based on discriminatory Township
policies, and a violation of the Pennsylvania state constitution.
The District Court granted summary judgment for the
3
Township on all counts. Dondero timely appealed the federal
claims.
II
The District Court exercised jurisdiction under 28
U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction under
28 U.S.C. § 1291. We review the District Court’s summary
judgment de novo. Goldenstein v. Repossessors Inc., 815 F.3d
142, 146 (3d Cir. 2016).
III
A
We begin with Dondero’s procedural due process
arguments. Dondero claims the Township had to conduct a
hearing before dissolving the police department and
terminating his HLA benefits. He also claims entitlement to a
hearing to clear his name. We analyze each argument in turn.
1
Dondero contends he was entitled to a hearing before
the Township eliminated the police department and terminated
his employment. The Due Process Clause’s procedural
protections apply when a person is deprived of a property
interest protected by state law. See Bd. of Regents of State Coll.
v. Roth, 408 U.S. 564, 569, 577 (1972).
Dondero correctly argues he had a property interest in
his continued employment as a police officer. When public
employees may be discharged only for cause, they have a
property interest in their jobs. Gilbert v. Homar, 520 U.S. 924,
928–29 (1997) (“[P]ublic employees who can be discharged
4
only for cause have a constitutionally protected property
interest in their tenure and cannot be fired without due
process.”); accord Bishop v. Wood, 426 U.S. 341, 345 n.8
(1976). In Pennsylvania, regular, full-time police officers can
be “suspended, removed, or reduced in rank” only for an
enumerated list of reasons. See 53 PA. STAT. AND CONS. STAT.
§ 812. So Dondero had a property interest in his employment.
So what process was Dondero due? Property interests
and process usually go hand-in-hand—typically in the form of
a pre-termination hearing. See Roth, 408 U.S. at 569–70 & n.7.
But as the Court of Appeals for the First Circuit has recognized,
“a limited ‘reorganization exception’ to due process” exists
“that eliminates the need for a hearing where a reorganization
or other cost-cutting measure results in the dismissal of an
employee.” Whalen v. Mass. Trial Ct., 397 F.3d 19, 24 (1st Cir.
2005). Several other courts have held likewise. See, e.g., Misek
v. City of Chicago, 783 F.2d 98, 100 (7th Cir. 1986); Dwyer v.
Regan, 777 F.2d 825, 833 (2d Cir. 1985), modified 793 F.2d
457, 457 (2d Cir. 1986); see also Hartman v. City of
Providence, 636 F. Supp. 1395, 1410 (D.R.I. 1986) (collecting
cases); Perkiomen Twp. v. Mest, 522 A.2d 516, 519–20 (Pa.
1987) (recognizing the reorganization exception in
Pennsylvania); cf. Mandel v. Allen, 81 F.3d 478, 482 (4th Cir.
1996) (rejecting the argument “that once a state position is
created, it is unconstitutional to subsequently alter or abolish
that position without an individualized hearing”).
We agree with those courts and hold that the Due
Process Clause does not require a pre-termination hearing in a
case that involves a legitimate government reorganization.
This exception makes sense because when governments
reorganize in good faith, their decisions concern positions—
not individuals. That change in focus puts the office-holder in
5
the same shoes as any other citizen, so “the hearing[s]
contemplated by the Supreme Court’s due process precedent
lose[ their] relevance.” Whalen, 397 F.3d at 25. In
reorganization cases, there are no charges against the
employee, and there is no reason to hold an individual hearing
for a matter of public concern. See Kusza v. Maximonis, 70
A.2d 329, 331 (Pa. 1950); see also Digiacinto v. Harford Cnty.,
818 F. Supp. 903, 906 (D. Md. 1993) (“[I]f an employee is
losing her job not because of allegedly deficient performance
but for extraneous reasons relating to fiscal and operational
concerns, a hearing regarding the quality of the employee’s
performance would serve no useful purpose.”).
But this exception is not absolute. A government may
not “cry ‘reorganization’ in order to circumvent the
constitutional and statutory protections guaranteed” to its
employees. Misek, 783 F.2d at 101. In Pennsylvania, for
example, courts have explained the exception does not apply
when “the abolition was a mere pretense or subterfuge.”
Perkiomen, 522 A.2d at 520. “The pretense or subterfuge must
have been designed to evade a court order, or be evidenced by
the recreation of substantially the same job under a different
name or title.” Id.; see also Carey v. City of Altoona, 16 A.2d
1, 2 (Pa. 1940); Misek, 783 F.2d at 101 (recognizing similar
exceptions).
Dondero claims just that, arguing that the Township’s
reorganization was merely a subterfuge to retaliate against him.
We agree with the District Court that the record does not
support that claim. Although Dondero argues the elimination
of the department was an “effort to circumvent and ‘hedge’
against an anticipated Court Order,” Dondero Br. 50, no such
order exists, nor are there pending matters in another court
related to Dondero’s rights as a public employee. Just as a
6
government cannot “cry ‘reorganization,’” to avoid a hearing,
see Misek, 783 F.2d at 101, a plaintiff cannot overcome the
reorganization exception by assuming some “potential future
order.” And because Dondero does not suggest the Township
substantially recreated his job under a different name or title,
that alternative path to show pretense or subterfuge is also
closed.
In sum, the police department was eliminated through a
valid government reorganization. And because Dondero
cannot show the reorganization was illegitimate, he was not
entitled to a pre-termination due process hearing.
2
Dondero next claims a due process violation when the
Township deprived him of disability payments under the HLA
without a hearing. Looking once more to state law, see Roth,
408 U.S. at 577, Pennsylvania courts have recognized that
police officers injured on the job have “a constitutionally
protected property right in [their HLA] benefits.” Adams v.
Lawrence Twp. Bd. of Supervisors, 621 A.2d 1119, 1120 (Pa.
Commw. Ct. 1993). That right exists so long as the officer
remains a member of the department. See Camaione v.
Borough of Latrobe, 567 A.2d 638, 640 (Pa. 1989).
In Camaione, the Pennsylvania Supreme Court
addressed whether a locality could involuntarily retire a police
officer (and terminate his HLA benefits) for economic reasons
without first providing the officer a hearing. The Court said
yes, noting the HLA did not “confer[] any rights upon injured
officers as to the terms of their employment.” Id. at 641. The
Act, the Court explained, does “no more than assure
uninterrupted compensation of salary for current members of
7
a police force while a temporary incapacity exists.” Id.(emphasis added). Although it guaranteed that “while an
officer is a member of the police force his temporary incapacity
status cannot be changed without a due process hearing,” the
HLA did not remove the Township’s “right to hire, fire,
furlough or retire” its officers. Id. at 640–41. In essence, when
an officer is fired, furloughed, or retired, no hearing is needed.
Id.Dondero, like the officer in Camaione, was not entitled
to a hearing before termination of his HLA benefits because
his position was eliminated by the Township for economic
reasons. In effect, Dondero was “removed . . . from the group
of employees covered by the Act.” Id. The Township did not
alter his incapacity status. Instead, it exercised its legitimate
power of reorganization. See id. (“All that the [HLA] provides
is that while an officer is a member of the police force his
temporary incapacity status cannot be changed without a due
process hearing.”).
3
Finally, Dondero contends the Township “deprived him
of his constitutionally protected liberty interest in his good
name” when it spread “false and defamatory” statements about
him and denied him a name-clearing hearing. Dondero Br. 51,
53. “[T]o make out a due process claim for deprivation of a
liberty interest in reputation, [Dondero] must show a stigma to
his reputation plus deprivation of some additional right or
interest.” Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d
Cir. 2006); see also id. (“We have referred to this as the
‘stigma-plus’ test.”). “To satisfy the ‘stigma’ prong . . . the
purportedly stigmatizing statement(s)” must be “public[]” and
“false.” Id. Dondero fails both prongs.
8
Dondero offers two sets of statements he claims were
stigmatizing. First, he points to a 2013 “extremely negative and
stigmatizing professional performance review.” Dondero Br.
53. Dondero offers no evidence suggesting the poor marks he
received were false or that the Township made them publicly.
Even if the review were conducted with retaliatory motives,
those motives would be irrelevant to the name-clearing
analysis. Name-clearing hearings require proof of publicity
and falsity. See Hill, 455 F.3d 235–36. Without those elements,
the performance review fails the “stigma-plus” test.
Dondero also claims the Township publicized “false
criminal accusations” that he violated the Pennsylvania HLA
and “false and defamatory accusations of his malingering”
after his June 2015 work injury. Dondero Br. 53. As evidence,
Dondero cites an “inference” from letters he received from
Koplin; specifically, a letter sent in January 2016. Dist. Ct. Dkt.
No. 47-1, at 135:21–137:11; Dondero, 431 F. Supp. 3d at 597.
But he offers an unreasonable reading of the letter. Koplin
requested updated “medical documentation” about whether
Dondero might be “able to return to full duty at present and, if
not,” when his return could be expected. Dist. Ct. Dkt. No. 58-
7. There is no inference, much less an accusation, of criminal
activity. Because the letter contains no falsehood, it also fails
the “stigma” test.
The statements Dondero cites cannot satisfy the
“stigma-plus” test. So we agree with the District Court that a
name-clearing hearing was not required because Dondero was
not denied any liberty interest in his reputation.
9
B
We turn now to Dondero’s First Amendment retaliation
claims. According to Dondero, the Township eliminated the
police department in retaliation for exercising his First
Amendment rights. To succeed on a First Amendment
retaliation claim, Dondero must show his activity was (1)
protected conduct under the First Amendment that (2) was a
substantial and motivating factor in the alleged retaliatory
action. Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466
(3d Cir. 2015) (quoting Dougherty v. Sch. Dist. of Phila., 772
F.3d 979, 986 (3d Cir. 2014)). If Dondero shows both, the
burden shifts to the Township to prove it would have taken the
same action regardless of the protected conduct. Id.Dondero offers a litany of activities he undertook while
Chief of Police as evidence of protected conduct. He opposed
the police department’s downsizing and he supported
unionizing. He accused Koplin of falsifying insurance
documents and he spoke on her alleged tardiness and
unexplained absences. Finally, he commented on a medical
drop box and criticized the Township’s safety policies.
Dondero also engaged in political activity.
Assuming the First Amendment protects all those
activities, Dondero’s retaliation claim still fails. To succeed,
Dondero must show causation—he must establish the activities
were substantial and motivating factors in his termination. See
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267
(3d Cir. 2007) (“[I]f there was not a causal relationship then
the [Township] could not have engaged in its conduct in
retaliation for [Dondero] having engaged in a protected
activity.”). Our cases offer three avenues to establish causation.
But Dondero satisfies none of them.
10
First, “an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory
action” can establish causation. Id. Dondero’s most recent
protected activity—speech about Koplin’s tardiness and
unexplained absences—took place from July to October 2015.
His position was eliminated in March 2016. Although “there is
no bright-line rule for the time that may pass between protected
speech and what constitutes actionable retaliation,” Conard v.
Pa. State Police, 902 F.3d 178, 183 (3d Cir. 2018), a five-
month gap is not “an unusually suggestive temporal
proximity,” DeFlaminis, 480 F.3d at 267. Compare Est. of
Smith v. Marasco, 318 F.3d 497, 512 (3d Cir. 2003)
(explaining two days is proximate enough), with id. (19 months
is not), and Thomas v. Town of Hammonton, 351 F.3d 108, 114
(3d Cir. 2003) (under the comparable Title VII framework,
three weeks was not proximate enough). The rest of Dondero’s
protected activities took place at least a year before his firing,
so their timeframes are not unusually suggestive.
Second, “a pattern of antagonism coupled with timing”
may establish a causal link. DeFlaminis, 480 F.3d at 267.
Dondero offers several Township actions he claims show a
pattern of antagonism: (1) attempts in 2013 and 2015 to
eliminate the police chief position; (2) the January 2015
cancellation of Dondero’s Township-provided cell phone plan;
(3) an April 2015 “counseling” memorandum that was
allegedly distributed throughout the community; and (4)
Koplin’s opening of mail addressed to the Chief of Police
while Dondero was on medical leave. Even assuming evidence
existed to prove the Township took each of the alleged actions,
they do not amount to a pattern of antagonism. Cost-reduction
efforts, a disciplinary notice spawned by a public employee’s
perceived shortcomings, and the reading of potentially time-
11
sensitive safety communications while the only safety officer
was on medical leave speak to the Township’s attempts to
govern itself responsibly. They do not show a pattern of
antagonism.
Finally, the record as a whole may reveal evidence
implying causation. DeFlaminis, 480 F.3d at 267. Although
Dondero makes passing reference to the “record as a whole,”
Dondero Br. 41, the dearth of evidence he offers does not imply
causation. So we agree with the District Court: Dondero’s First
Amendment retaliation claims are unpersuasive. 1
* * *
The District Court did not err when it granted summary
judgment to the municipal employers. Although Dondero
1
Dondero also advances substantive due process, conspiracy,
and Monell claims. “[F]or a property interest to be protected
for purposes of substantive due process, it must be
‘fundamental’ under the United States Constitution.” Hill, 455
F.3d at 234 n.12. But public employment is not a fundamental
right. Nicholas v. Pa. State Univ., 227 F.3d 133, 142–43 (3d
Cir. 2000). The conspiracy and Monell claims fail because of
the lack of a legal harm. See In re Orthopedic Bone Screw
Prods. Liab. Litig., 193 F.3d 781, 789 (3d Cir. 1999)
(“[A]ctionable civil conspiracy must be based on an existing
independent wrong . . . that would constitute a valid cause of
action if committed by one actor.” (quoting Posner v. Essex
Ins. Co., 178 F.3d 1209, 1218 (11th Cir. 1999))); Brown v. Pa.
Dep’t of Health Emergency Med. Servs. Training Inst., 318
F.3d 473, 482 (3d Cir. 2003) (“[F]or there to be municipal
liability, there still must be a violation of the plaintiff’s
constitutional rights.”).
12
possessed a property interest in continued employment and in
HLA benefits while he was a police officer, under the
governmental reorganization exception, due process did not
require a pre-termination hearing. We will affirm.
13