PAPARO v. BOROUGH OF YEADON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ANTHONY PAPARO, CIVIL ACTION

v. NO. 22-841

BOROUGH OF YEADON, SHARON

COUNCIL-HARRIS, Individually and as

PRESIDENT OF YEADON BOROUGH

COUNCIL; LEARIN JOHNSON,

Individually and as VICE PRESIDENT

OF YEADON BOROUGH COUNCIL;

TOMEKA JONES-WATERS, Individually

and as PRESIDENT PRO TEMPORE OF

YEADON BOROUGH COUNCIL, and

CARLETTE BROOKS, Individually and

as a Member of YEADON BOROUGH

COUNCIL.

MEMORANDUM RE: MOTIONS FOR SUMMARY JUDGMENT

Baylson, J. February 2, 2024

“Reverse discrimination” is a term frequently applied to instances of racial discrimination

against persons who are not members of a racial minority. The Supreme Court long ago

established that discrimination against a White person was as illegal as discrimination against a

person in a racial minority. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976).

The Third Circuit has repeatedly followed this ruling. See Hicks v. ABT Assocs., Inc., 572 F.2d

960, 967 (3d Cir. 1978); Iadimarco v. Runyon, 190 F.3d 151, 154 (3d Cir. 1999); Stites v. Alan

Ritchey, Inc., 458 F. App’x 110, 111 (3d Cir. 2012) (non-precedential); Williams v. Tech

Mahindra (Americas) Inc, 70 F.4th 646 (3d Cir. 2023).

This case involves Plaintiff Anthony Paparo’s claims of racial discrimination in connection

with his termination as Chief of Police for the Borough of Yeadon. Paparo, who is White, served

as the Borough’s Chief of Police from January 2018 through his firing in February 2022. The

Borough has a population of approximately 11,600 residents, roughly 90% of whom are Black.

Paparo’s ousting was highly publicized, as the Philadelphia Inquirer contemporaneously reported

on many of the same arguments the parties assert here.

Paparo brings this suit against the Borough itself and the four individual Borough

Councilmembers who voted for his termination: Sharon Council-Harris, Learin Johnson, Tomeka

Jones-Waters, and Carlette Brooks (“Individual Defendants,” and together with the Borough,

“Defendants”).

Presently before this Court are (1) the Borough’s Motion for Summary Judgment (ECF

48), (2) Individual Defendants’ Motion for Summary Judgment (ECF 47), and (3) Paparo’s Cross-

Motion for Partial Summary Judgment (ECF 46). For the reasons explained below, each motion

is DENIED.

I. FACTUAL BACKGROUND

A. Paparo’s 2017 Hiring

On December 21, 2017, the Council for the Borough of Yeadon unanimously voted to hire

Paparo as the Borough’s Chief of Police. ECF No. 47-1 ¶¶ 2-3. Paparo was selected out of nine

possible candidates, three of whom were Black. Id. at ¶ 3. Notably, four of the seven voting

Councilmembers were also on the Council in February of 2022, when Paparo was eventually fired.

Id. Those repeat players include Defendants Council-Harris, Jones-Waters, and Johnson, along

with Councilmember LaToya Monroe, who is not a defendant in this case. Id.

B. Fraternal Order of Police Grievance

During Paparo’s tenure, the Fraternal Order of Police (“FOP”) filed a grievance against

the Borough “on behalf of all full-time members of FOP’s bargain unit.” ECF 47-1 ¶ 5; ECF 55-

1 ¶ 50. Specifically, on January 27, 2020, the FOP asserted the Collective Bargaining Agreement

(“CBA”) between the FOP and the Borough had permitted only limited use of part-time police

officers—but that in 2019 and 2020—Paparo had employed part-time officers exceeding those

limits. ECF No. 47-1 ¶ 7; ECF 55-1 ¶ 50.

A lengthy negotiation process followed, and the Borough eventually settled via Consent

Award in August 2021, agreeing to pay out $387,000 to full-time officers. ECF No. 47-1 ¶¶ 10-

11; ECF 47-4, Ex. R; ECF 55-1 ¶ 60. Notably, Paparo contemporaneously voiced objections,

contending the overtime allocation to part-time officers—which had been approved by Mayor

Rohan Hepkins—was necessary to keep Borough residents safe during a time of civil unrest and

COVID. ECF 55-1 ¶¶ 53, 61-62. Also relevant here, the Consent Award makes clear that it has

“no precedential value or effect whatsoever with respect to any other set of facts or decisions,” and

expressly states that it “does not constitute an admission of any wrongdoing on the part of the

Borough or any of its officers, agents, employees and/or representatives.” Id. at ¶¶ 64-65.

By contrast, in a June 2021 email from Paparo to Borough Officials, Paparo took “full

responsibility for getting [the Borough] into this matter.” ECF 47-4, Ex. Q.

C. Individual Defendants’ Post-Primary Activities

In May 2021, Defendants Council-Harris, Johnson, and Brooks won the democratic

primary for seats on Yeadon’s Borough Council for the 2022 term. ECF 47-1 ¶ 24; ECF 55-1 ¶ 8.

According to Paparo, shortly after this win, Individual Defendants (including then-incumbent

Defendant Jones-Waters) began discussing their intention to replace Paparo with a Black Chief of

Police. ECF 55-1 ¶¶ 21-22. Further, Paparo contends a subset of the Individual Defendants began

to approach other Borough Officials regarding this plan.1 Id. Paparo’s Counterstatement of Facts

1 Defendants appear to concede this point, at least in part, as they note “Defendant Johnson and

[Borough Finance Director Nafis Nicols] met at a lunch meeting in the spring or summer of 2021

and she referenced that she thought the Police Chief in the Borough should meet its demographics

provides the following summary table of testimonial and documentary evidence to support this

contention. The Court describes the context surrounding this table immediately below.2

Witness Evidence

Mayor Rohan Defendant Johnson told Mayor Hepkins that the Individual Defendants

Hepkins planned to fire plaintiff Paparo because: “This is a Black town. We need

a Black chief.”3

Councilmember Defendant Johnson told Councilmember Roadcloud on multiple

Liana Roadcloud occasions that the Borough: “is a Black town; we deserve a Black chief.”

Councilmember Defendants Council-Harris, Johnson, and Jones-Waters all told

LaToya Monroe Councilmember Monroe that: “Yeadon is a Black town that deserves a

Black police chief.”

Councilmember Defendant Johnson told Councilmember Beaty that the Borough:

Nicole Beaty “need[s] a Black chief” and that plaintiff Paparo “does not know how to

talk to Black people.”

In addition, Defendants Council-Harris and Jones-Waters also made

comments to Councilmember Beaty that they wanted to replace plaintiff

Paparo with a Black Chief of Police.

Finance Director Defendant Johnson told Finance Director Nichols that the Borough:

Nafis Nichols “needs a chief that represents the majority of the town, a black Chief.”

Defendant Learin Defendant Johnson admitted that she “said out loudly” before she was

Johnson “sworn into office that she wondered if there was any consideration into

firing plaintiff Paparo, and that she then asked “why did Yeadon not

have a black chief?”

Defendant Carlette Defendant Johnson told Defendant Brooks that the Borough: “should

Brooks hire a black -- a police chief because Yeadon is 50-something percent

black and what's wrong with having a black police chief.”

and the town should have a Chief that represents the majority of the town as in a black Chief.”

ECF 47-1 ¶ 152.

2 Defendants’ Statements Undisputed of Facts likewise notes there was immediately friction

between Individual Defendants and Paparo. That said, they attribute this friction to other issues.

For example, Defendants note that Mayor Hepkins warned Paparo that the new Councilmembers

“are going to do a lot of things in an effort to try to dismantle and harm the police department.”

ECF 47-1 ¶ 25. Likewise, in November of 2021, Defendant Jones-Waters allegedly “screamed at

[Paparo] during a Council meeting about police manpower hours or issues.” Id. at ¶ 28 (emphasis

added).

3 The Borough’s Statement of Facts similarly notes that in September 2021, Mayor Hepkins

informed Paparo that “he had direct knowledge that [the Council was] going to remove [Paparo],

that they wanted to replace [him] with a black Chief of Police.” ECF 48 ¶ 28.

Defendant Brooks also sent the following text message to Defendant

Council-Harris: “Do you know the black police out here in Yeadon?

That want the Police chief's job.”

ECF 55-1 at 6-7 (citations omitted).

D. January 2nd Meetings

On the morning of January 2, 2022, Defendants Johnson and Brooks met with

Councilmember Roadcloud and Councilmember-elect Beaty. ECF 55-1 ¶ 24. According to

Roadcloud and Beaty, at that meeting, Defendant Johnson stated her intention to replace Paparo

with a Black Chief of Police. Id. at ¶ 25.

Immediately afterwards, Roadcloud and Beaty then met with all four Individual

Defendants. ECF 47-1 ¶ 186; ECF 55-1 ¶ 26, ECF 55-2, Ex. 5 at 15-16. At this subsequent

meeting, at least some of the Individual Defendants reiterated their plan to terminate Paparo. ECF

55-1 ¶¶ 26-27. Further, evidence in record reflects that Defendant Jones-Waters conveyed her

intention to reach out to Jonathan Josey, a Black police officer in Yeadon, and to ask Josey to “re-

apply for the position.”4 Id. at ¶ 27; ECF 55-2, Ex. 10.

According to Roadcloud, she expressly advised Defendants Johnson and Brooks this

course of action “was wrong” and that Individual Defendants should “stop saying it as it is

discriminatory and illegal.” ECF 55-2, Ex. 10. Nonetheless, that same evening, Defendant Brooks

then sent a text message to Defendant Council-Harris asking: “Do you know the black police out

here in Yeadon? That want the Police chief’s job?” ECF 55-1 ¶ 29; ECF 47-1 ¶ 166.

4 Individual Defendants frame the meeting differently, noting that Defendant Johnson “testified

that on January 2, 2022, while meeting with other Councilmembers and future Councilmembers

at Illusions, she was speaking aloud wondering why Yeadon did not have a black Police Chief,”

but that no one responded to this comment. ECF 47-1 ¶ 186.

E. January 3rd Calls and Discussions

The next morning, Defendant Johnson—allegedly at the direction of Defendant Council-

Harris—called Detective Ferdie Ingram, who is Black and was a member of Yeadon’s police

department. ECF 55-1 ¶¶ 30, 35. On that call, Johnson purportedly told Ingram that Individual

Defendants, once sworn in later that day, intended to fire Paparo and to offer Ingram the position,

at least on a short-term basis. Id. at ¶ 34.5,6 Ingram declined, instead expressing support for

Paparo. Id. at ¶ 36. Further, Ingram immediately informed Lieutenant Shawn Burns of the call,

doing so for the purpose of Burns then informing Paparo. Id.

The record further reflects that, this same morning, Defendant Johnson also told Mayor

Hepkins that Individual Defendants intended to replace Paparo with Ingram. Id. at ¶ 37.7

F. January 3rd Council Meeting

Individual Defendants were sworn in as Councilmembers that evening. ECF 55-1 ¶ 39;

ECF 47-1 ¶ 31. Immediately before the meeting commenced, however, Paparo confronted

Defendant Brooks about rumors that had begun percolating regarding his termination. ECF 47-1

¶ 32. Per Paparo’s deposition testimony, Paparo told Defendant Brooks he was “hearing [he was]

5 According to Defendant Johnson, her “discussion with Ingram was whether or not he would be

interested in three to six months while they did a nationwide search for a new Police Chief.” ECF

47-1 ¶ 191.

6 Paparo further contends that Ingram was not “next in line” to be Yeadon’s Chief of Police, as

Ingram was “unqualified for the position because he had failed the requisite exam.” ECF 55-1 ¶

33. Instead, he asserts that Lieutenant Shawn Burns was slated for the role. Id. at ¶ 32.

7 Mayor Hepkins then met with Ingram on January 6, 2022, and confirmed the substance of

Ingram’s meeting with Johnson. ECF 55-1, Ex. 15. He likewise sent the Fraternal Order of Police

a “special report” documenting his meeting with Ingram. Id.

being terminated because [the Council] want a black police Chief.’” Id. Brooks responded this

was “a lie” and that “nobody is talking about a black police Chief.” Id.8

During the meeting, several residents and members of the police department spoke out in

support of Paparo.9 ECF 55-1 ¶ 41. Ultimately, the Council did not bring a vote to terminate

Paparo’s employment that night. Id.; ECF 47-1 ¶ 33.

G. February 5th Conference

On February 5, 2022, Individual Defendants and Councilmember Beaty attended a

“Pennsylvania Association of Boroughs” conference. ECF 55-1 ¶ 43. According to

Councilmember Beaty, at this conference, Defendant Council-Harris informed Beaty the Council

had decided to offer Chief Paparo three-months’ severance if he were to resign, and if he did not

accept, he would be terminated. Id. at ¶ 44. Beaty testified she was surprised and upset by this

news because no vote of the Borough Council had been proposed or taken to support this plan. Id.

at ¶ 45.

8 All four Individual Defendants have testified here and denied that race played a factor in Paparo’s

eventual termination. Defendant Council-Harris testified that she “never heard Defendant Johnson

talk about wanting a black Chief” and never told “Defendants Brooks or Jones-Waters that she

gave the go ahead to Johnson to call Ferdie Ingram.” ECF 47-1 ¶¶ 160-61. Likewise, Defendant

Brooks allegedly “never heard Defendant Johnson make a statement that she wanted a black Chief

until sometime later when she questioned it in a text message” and “did not recall the statement

being made at the meeting of January 2, 2022.” Id. at ¶¶ 164-65. Further, Defendant Jones-Waters

“denied ever hearing Defendant Johnson make any statement about replacing Paparo with a black

Chief and she left the meeting at Illusion’s because she was only there to discuss reorganization

and recalled no discussion about replacing Paparo.” Id. at ¶ 175.

9 Moreover, Paparo notes that in January and February 2022, an online petition was signed by over

a thousand residents expressing support for Paparo and “voic[ing] their opposition to his being

targeted by the individual defendants because of the color of his skin.” ECF 55-1 ¶¶ 41-42.

H. February 7th Ultimatum

On February 7, 2022, Paparo then met with Defendant Council-Harris, Mayor Hepkins,

and Borough Manager Isaac Dotson. Id. at ¶¶ 46-47; ECF 47-1 ¶¶ 34-37. During that meeting,

Defendant Council-Harris offered Paparo the three-month’ severance ultimatum she had

previewed to Beaty. Id. According to Defendant Council-Harris, she believed a majority of the

Council supported this plan, based on conversations “in executive session” and “in telephone

conversation.” ECF 55-2, Ex. 6 at 50-53.

I. February 8th Philadelphia Inquirer Article

On February 8, 2022, the Philadelphia Inquirer published an article entitled: “A Delaware

County Police chief might be fired. His supporters say it’s because he’s white.” ECF 55-1 ¶ 70.

In that article, Defendant Council-Harris conveyed that a vote to terminate Paparo “could come as

soon as [that] week.” Id. Defendant Council-Harris likewise conveyed that she was “confident

she has the support of a majority of the seven-member council in a move to oust the chief.” Id.

Like the present suit, Defendant Council-Harris and “other detractors” asserted that

“Paparo has been a poor steward of borough resources, costing the town $387,000 to a settle a

union grievance that he hired too many part-time officers to supplement the force during the height

of COVID-19 and civil unrest in 2020.” ECF 55-2, Ex. 23. In contrast, “Yeadon Mayor Rohan

Hepkins and Councilmember Liana Roadcloud told The Inquirer that [Defendant] Johnson

specifically mentioned Paparo’s race in conversations about the plan to oust him.” Id. And,

consistent with testimony in this case, the article notes that “Councilmember Learin Johnson called

one of Paparo’s subordinates, who is Black, and asked if he’d be interested in taking over as chief,”

which “Paparo’s supporters interpreted [] as racially motivated.” Id.

J. February 10 Public Session

On February 10, 2022, the Council held a “public session,” which Paparo contends was for

the purpose of firing him. ECF 55-1 § 71; ECF 47-1 439. At that session, Individual Defendants

created the following two posters and placed them in public view:

———— — "$028 |

□ cali

□ an Lovee | | Pee

Chief Paparo Was “Repeatedly Warned,”

The Philadelphia Inquirer

Michael Neilon, a spokesperson jor the FOP's

Lodge 27 in Delaware County, said the Union

repeatedly warned Paparo that he was at risk of

violating the contract, but he did not make any

adjustments.

..- Continuing to balance the sheet with part-

timers is unacceptable to the union and unfair to

the rank-and-file officers who may want to work

the extra shifis and get overtime.”

The Philadelphia Inquirer

February 8, 2022

ECF 55-2, Exs. 25, 26. Paparo’s counsel also attended this meeting and moved to

disqualify all four Individual Defendants from the vote to terminate Paparo.!? ECF 55-1979. In

‘0 Paparo’s counsel also moved to disqualify Defendant Brooks for another, independent reason.

According to Paparo, Brooks had owned a local business, and her family had “voiced complaints

to plaintiff Paparo and Mayor Hepkins about the Police Department’s ticketing of unlawfully

parked cars at [the business] and other law enforcement actions it took in response to complaints

response, the Council convened privately in an “executive session,” after which it adjourned to

reschedule for a future session, ostensibly for the purpose of providing Paparo with a “Due

Process” hearing. Id. at ¶ 81.

K. February 12th Letter

On February 12, 2022, Yeadon Solicitor Mark Much sent a letter to Paparo’s counsel. ECF

47-1 ¶ 71. The letter accused Paparo of a “performance deficiency” for “violat[ing] the terms of

the [CBA] by scheduling part-time officers to work more hours than permitted under the [CBA],”

which “resulted in the entry of a Consent Award that requires the Borough of Yeadon to pay three

hundred eighty-seven thousand ($387,000) dollars to the full-time Yeadon Borough Police

Officers whose rights under the [collective bargaining agreement] had been violated by Chief

Paparo.” ECF 47-4, Ex. M. The letter also invited Paparo to attend a February 17th Council

meeting to “discuss and consider the performance deficiency identified,” specifically framing this

meeting as a chance for Paparo to “participate and take advantage of the opportunity to respond”

to these allegations. Id.

L. February 17th Public Session

At the subsequent public session, the Council again accused Paparo of having violated the

CBA and costing the Borough $387,000. ECF 47-4, Ex. O. Both Paparo’s counsel and Paparo

spoke at length, highlighting Paparo’s “innocence of the allegations, his stellar performance as

Police Chief for the Borough, and overall good name.” ECF 47-1 ¶ 93. Paparo’s counsel also

again requested that the four Individual Defendants recuse themselves, but Paparo contends

Defendant Council-Harris “refused to even bring the motions up for a vote, much less did the

about unruly patrons.” Id. at ¶ 80. Paparo further contends that he refused to curtail proper

policing practices to abate the complaints, a position he alleges upset Defendant Brooks’s family.

ECF 55-2, Ex. 21 at 7-11.

individual defendants even make an effort to dispute the evidence of bias and partiality against

them.” ECF 55-1 ¶ 87.

By a vote of four-to-three, the Council terminated Paparo. Id. at ¶ 83; ECF 47-1 ¶¶ 101-

103. All four Individual Defendants voted in favor of termination, while Councilmembers

Roadcloud, Monroe, and Beaty, all of whom are Black, opposed. Id. Notably, Councilmember

Roadcloud contemporaneously stated the public session “was ridiculous” and the vote “was about

race; this is not about money.” ECF 47-1 ¶ 98; ECF 55-1 ¶ 84. Indeed, the record reflects the

three dissenting Councilmembers “unequivocally” continue to believe that Paparo was fired, at

least in part, on account of his race. ECF 55-2, Ex. 2 at 63-64; ECF 55-2, Ex. 4 at 21-25; ECF 55-

2, Ex. 5 at 172. Individual Defendants likewise concede that Mayor Hepkins, who is Black, also

“believes Chief Paparo may have been fired on account of his race,” but caveat that Hepkins’ basis

for that belief was from just one person conveying that “they’re firing Chief Paparo because this

is a black town, [and] we need a black chief.” ECF 47-1 ¶ 113.

M. Paparo’s Replacement

After Paparo’s termination, the Council voted to install Lieutenant Shawn Burns, who is

White, as Paparo’s interim replacement. Id. at ¶ 116. The Council eventually hired Henry J.

Giammarco Jr., who is also White, as the full-time Chief of Police. ECF 55-2, Ex. 13 at 40.

Defendants cite this as a key piece of evidence in their favor.

N. Post-Termination Wages and Benefits Dispute

On February 21, 2022, Paparo’s counsel sent a letter to Borough Solicitor Much to notify

Much that Paparo was seeking post-employment wages and benefits pay for “all the vacation

hours, earned comp time, sick days and termination to which he is entitled.” ECF 55-1 ¶ 94. The

letter explained that Paparo believed his employment agreement required the Borough to “provide

Paparo with all the benefits provided to police officers pursuant to the Police Collection Bargaining

Agreement,” which supposedly called for those payouts. ECF 55-2, Ex. 32.

On March 5, 2022, Paparo then emailed Borough Manager Dotson to clarify the hours to

which Paparo believed he was entitled. ECF 55-1 ¶ 95; ECF 55-2, Ex. 33.

On March 7, 2022, Borough Manager Dotson responded that he had forwarded the

information Paparo provided to Solicitor Much and Finance Director Nichols. ECF 55-2, Ex. 33.

On March 24, 2022, Paparo followed up with Dotson, noting he had not received any post-

employment wages and benefits in the 35 days since his firing. Id. At Dotson’s deposition in this

case, he agreed “there was a delay” with the Borough’s review of Paparo’s payout claims, which

“resulted in multiple missed pay periods for [] the hours that [Paparo] believed that he was owed

under the contract.” ECF 55-1 ¶¶ 100-101.

On April 4, 2022, Paparo provided the Borough with a “detailed analysis” of the hours

Paparo claimed to be owed, arguing the Borough was obligated to pay Paparo for 776 hours of

severance, resulting from a combination of vacation, compensation time, and sick leave. Id. at ¶

103.

By contrast, Thomas Reynolds, the current FOP Treasurer and a former Yeadon FOP

representative, has submitted an affidavit in connection with these motions, stating that (1)

Yeadon’s Police Chief is a salaried employee, and thus is not entitled to any comp time unless his

contract specifically provides for it, and (2) “[u]nder the Collective Bargaining Agreement, when

an office leaves for any reason other than a normal or disability retirement, they do not get

compensated for unused sick time or unused vacation time.” ECF 47-1 ¶ 196; ECF 47-6, Ex. EE.

To date, Paparo has not received any post-termination payout. ECF 55-1 ¶ 107. That said,

Defendants—who believe Paparo’s payout is capped at 160 hours—previously offered 200 hours

to settle this dispute, which Paparo supposedly declined. ECF 47 at 22. Nonetheless, Paparo

contends Defendant’ refusal to pay these alleged post-employment benefits are a form of

retaliation for his filing suit here. ECF 10 44 101-107.

O. Fast Facts Flyer

Paparo likewise directs this Court to the “Truth Matters” fact sheet (herein, “Fast Facts

flyer”) to bolster his claims of retaliation. ECF 55-2, Ex. 37. This flyer, created at the direction

of Individual Defendants, was initially distributed at a public session the same day Paparo filed

suit:

UTED CURE Ont

l Why did Yeadon Borough Councl Remove Anthony “Chachi” Papare from his position as Chief of Police?

We cannot allow our tap Lew enforcement official te enforce the rubles while breaking the rules. Mr. Paparo violated

the Police Collective Bargaining Agreement by continually scheduling part-time officers to work more hours than the

Agreement pormnétied. Nir, Papaco exceeded the number of hours the Agremment patted him to schedule part-time

officers to work by a whepping 6,200 hours and he did this over □□ extended petted of time during two consecutive

calendar peare 2079 and 2020 Aca result nf hr Papann’s violation of the Police Collective Raegaining Agreement, the

Borough of Yeadon mut pay $387,000 to the 16 fulltime police offerers whose rights under the Agreement were

viddated due te Mr, Paparc's repeated breaking of the miles

Zz Mr, Paparo has cabd publicly that he bod te schedule part-thme officers to work more hours than the Police Collective

Bargaining Agreement permitted because he was short-staffed and because of protests in response te the kalling of

George Floyd. Do these excuses justify his actions?

When confronted with 2 viaffing shortage, the appropriate respond from 6 Chief of Police ia not to violate the Police

Coffective Gargaining Agreement by ging part-time office mone hours than the Agreement permits. Whe. Papare

War truby short vtffed, all he had todo was contact the Fraternal Onreter of Police, eqplain that he was short on officers

and ask for staffing support The FOr would have been happy to work with him jue as they hawe wowled with many

other police departments to help reeotve staffing shortages, Regarding protests in response to the billing of George

Alovd. Mie. Paparo used a □□□ tantial nuntiber of the 6,200 hours in question in 2079 before George Floyd was ified on

May 25, 2020.

3 Was Mr. Paparo ever issued a warning before his actions escalated bo the point of costing the Borough nearly £400,0007

The Philadelphia Inquirer reparted on Fetewary 8, 2022 that the Fraternal Order of Police aad ther union repeatedly

waned” Mr Pageero “bat he did not make any adjusinuents*

4 The Yeadon Borough Code stipulates that Mayor Rohan K. Hephins is responsible for overseeing the police department.

How does something bile this happen under the oversight of the Mayor?

Untertunately, Mayor Hepking has aol provided Couned or this comenunity eith clear and direct ancer as to hore

this happened uncer his watch. And while Counc! dogs not ypeak for the Mayors, he apgeears — to mary — to have

ether been keeping on the job while Mir Pager wad breaking the ruled of turning & blind eye to Me. Paparo’s actions

5. While it was Mr. Papare who kept assigning part-time officers to werk more hours than permitted under the Police

Collective Bargaining Agreement, who within Yeadon Borough government kept authorizing the ballooning payments

part-time officers were receiving for hours the Agreement never permitted them to work?

The Council President during that entire period of time war Latoya Manne, a cunent meniner of Couned, The mare

Mr. Paparo kept scheduling part-time officers to work hows not permitted by the Police Collective Bargaining

Agreement, the mare Ma, Monroe kept sulhorizing payments for thoae prohibited hours

13

UES Ee CE CSCS

6 Did Mr, Papaero’s race play 2 role ie Comme: decrees ba memmewt hem from het petition a4 alleged by Mr. Paparo.

Mayor Hepkins, Counohwoman Lateya Manree and Counohweman Liana Roadcloud?

Race played no role wihetioertt ate afl pocudaieosts of tection han been categorically dened. The tarmr black

Creu heer CRiy date ae ter oe ceergy Wie Per Geet Bee ede ae Te acree lor Cmonicthenmeen whit

“hired MMe Papaeo — chug bin for the Chee! of Police peoeuition over three qualitied black candidates. Adcitionsby,

he perion Court appre bo kewl the pollete cheep alter secre Me Pagaro rs a whee erade jst bike hls

FPageenc titi. widest Geefiieseedl thant thease weno eer “plang ther cece card” are ony dong +o to distract the Corer y

from thet own culpebilety on Mie Paepaero wenlleten of thee Prodene Colkecteee Racgeining Agreement. which cod the

Borough 5 34a7 ooo

7 What about the petition te “Leng Chief Chad” that oafected mere than | O00 signatunrs”

Whe □□ Geerore: SO reerore Ure rag! fo penkortudlly pnctett wie peetiteon iin, howe emporio to nate that

bes. petition mikeeds prope ito capo ft based on an cutregeou: claim. of nechen Bm also worth nating that the

Pueniiber of Weedon pects whee sage Cee Get aed ot Gee fed ded ery neues. 6 chet erenty

Puren Pephor ied! Pane) epee acide to the pertetenn avthoadl Cornett

8 Ded Counchl prownde hdr, Papare with chow process bedore remevamg bien fron hep postion!

Ye. Cowra Preqidient Sharon C ourel-Maerria hae Comterntiy ane pestlacdy saad that in January POT, she requested

thee hime fot Mir Pugnerd Seart ait fer to ditt, Pan aor ao pet fhe Boncugh ina 617 O00 precicament But

he declined each Dre. Yeadon Borcuagh Cour also pecweked ir Pages wth on. opportunity 66 adders his aetiony

befoee Conarecll om Pebersery 17, 202

a Cid Mr Fagare prewide Coumcal Preaident Veron Coumel- Harn, Ceaunal Weon Pinetsdent Leoni Johnson, Ceunailweman

Carlette Brooks aed Counclworen Talhah Water wrth any tuned of dee proces” belore telling numerces media

outlet there ween wacted te curt heen became of the cobor of Bert chim?

Mo. bnateaed of letters frie four Couererilecereen bree Per wes lege hearer rucreors” that they aed bo coast beer

bec of hen nace, hen weer etree bo the pees ened bilerted hee allegations to murrrncue meee cortiiets creating a

rreedia Qrestoren for Feadion shomg act Munor teenie Core ieeneren Mormror and Conencibyomnun Boadcloged Mat rie

Bount ded Air Pager eee aoe the hoe Cue on Geeta tenn foe rm hee et allegedly here were true

Let the necord wis thd thete fewer Couric deere Peters Mir Pageato with doe process ehdle been denied due

process thernvsabees

10 Whe it beading the Veaden Pelce Cepertruent nae?

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Id.; see also ECF 55-1 4 108. The flyer was also then (1) posted to the Council’s website on March

8, 2022, where it remained until July 2023; (2) mailed to each of the residents of the Borough; (3)

posted on the Borough’s social media accounts; and (4) distributed in the Borough’s newsletter.

ECF 55-1 §§ 113-114. Notably, this public dissemination continued over the objection of several

Borough officials, who advised Individual Defendants that distribution would potentially expose

14

the Borough to greater litigation liability, in part because “it had become obvious” the flyer

contained information “to the detriment of Paparo.” Id. at ¶¶ 119-120.

II. PROCEDURAL HISTORY

Paparo filed his initial Complaint on March 7, 2022. ECF 1. He then filed an Amended

Complaint on April 21, 2022. ECF 10. The Amended Complaint brought the following eight

claims against the Borough and Individual Defendants:

• Count I: Violations of Paparo’s right to equal employment under 42 U.S.C. §§

1981 and 1983 against the Borough;

• Count II: Violations of Paparo’s right to equal employment under 42 U.S.C. §§

1981 and 1983 against the Individual Defendants;

• Count III: Violation of 42 U.S.C. § 1985(3) against the Individual Defendants;

• Count IV: Violation of Paparo’s due process right to a fair and impartial process

hearing against all Defendants;

• Count V: Retaliation in violation of federal law against all Defendants;

• Count VI: Defamation against all Defendants;

• Count VII: False Light Privacy against all Defendants;

• Count VIII: Violation of the Pennsylvania Wage Payment and Collection Law

against all Defendants.

Id. at 27-37.

On May 9, 2022, Defendants jointly filed a Motion to Dismiss Counts I, IV, VI, and VII.

ECF 11. On October 7, 2022, this Court denied the Motion as to Counts I and IV for all

Defendants, and as to Counts VI and VII for Individual Defendants, but granted the Motion as to

Counts VI and VII in favor of the Borough. ECF 13; Paparo v. Borough of Yeadon, 2022 WL

6184890, at *8 (E.D. Pa. Oct. 7, 2022). Extensive discovery followed.

On November 9, 2023, Paparo filed a Motion for Partial Summary Judgment with respect

to (1) Defendants’ refusal to pay Paparo the post-employment wages and benefits to which Paparo

alleges he is contractually entitled; and (2) Defendants’ damage to Paparo’s reputation that has

allegedly impeded his ability to obtain another job. ECF 46. Both the Borough and Individual

Defendants responded on December 8, 2023, to which Paparo replied on December 15, 2023. ECF

56, 59, 61.

On November 10, 2023, the Borough and Individual Defendants filed separate Motions for

Summary Judgment on all counts. ECF 47, 48. Paparo responded to the Individual Defendants’

Motion on December 7, 2023, ECF 55, and to the Borough’s Motion on December 8, 2023, ECF

58. The Borough replied to Paparo’s Counterstatement of Facts on December 22, 2023. ECF 65.

The Court provided questions to counsel for oral argument on January 24, 2024, ECF 73,

and argument was held on January 26, 2024.

III. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict

for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual

dispute is “material” if it might affect the outcome of the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing

the district court of the basis for its motion and identifying those portions of the record that it

believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue

at trial, the moving party’s initial burden can be met simply by “pointing out to the district court

that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. After the

moving party has met its initial burden, the adverse party’s response must, by “citing to particular

parts of materials in the record,” show that a fact is “genuinely disputed.” Fed. R. Civ. P. 56(c)(1).

Summary judgment is appropriate if the non-moving party fails to rebut by making a factual

showing “sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Under Rule 56,

the Court must view the evidence presented on the motion in the light most favorable to the

opposing party. Anderson, 477 U.S. at 255.

IV. DISCUSSION

A. The Borough

1. 42 U.S.C. §§ 1981 and 1983 (Count I)

The Borough first seeks summary judgment on Paparo’s racial discrimination claim,

brought under 42 U.S.C. §§ 1981 and 1983. ECF 48 at 29.

As this Court explained in denying the Borough’s Motion to Dismiss, a municipality may

be sued under section 1981 where “the action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated

by that body’s officers.” Monell v. Dept. of Social Servs. of City of New York, 436 U.S. 658, 690

(1978). To succeed on a claim for municipal liability, a plaintiff must demonstrate that the

defendant’s policies or customs caused the alleged constitutional violation. Id. at 694; Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). The plaintiff “must identify

[the] custom or policy, and specify what exactly that custom or policy was.” McTernan v. City of

York, 564 F.3d 636, 658 (3d Cir. 2009). But “[a] policy need not be passed by a legislative body,

or even be in writing, to constitute an official policy for the purposes of § 1983. A pertinent

decision by an official with decision-making authority on the subject constitutes official policy.”

Porter v. City of Philadelphia, 975 F.3d 374, 383 (3d Cir. 2020). Thus, “[i]f the decision to adopt

that particular course of action is properly made by that government’s authorized decision makers,

it surely represents an act of official government ‘policy’ as that term is commonly understood.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).

Notably, the Borough does not contest that, under Pennsylvania law, “a majority vote of

the quorum [of Councilmembers] present at meetings constitutes the action of a borough” that may

be subject to Monell liability. ECF 48 at 30 (citing to 8 Pa. C.S. §§ 1001(b), 1202, 1104(g);

Meixell v. Borough Council of Borough of Hellertown, 88 A.2d 594, 596 (Pa. 1952); LaVerdure

v. Cnty. of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003)).

Instead, the Borough relies on Monell’s further requirement that the official action by the

municipality must itself be the “‘moving force behind the constitutional violation.’” City of

Canton v. Harris, 489 U.S. 378, 389 (1989) (citations omitted) (emphasis added). Put differently,

the Borough contends Paparo has failed to show that “race was a but-for cause of [his] injury.”

Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Media, 140 S. Ct. 1009, 1014 (2020); see also

Williams v. Tech Mahindra (Americas) Inc., 70 F.4 646, 651 (3d Cir. 2023). More precisely, the

Borough asserts that but-for causation requires Paparo to demonstrate that a majority of the

Council “acted with constitutionally dubious reasons vis-à-vis [his] employment,” but that Paparo

has not done so here. ECF 48 at 31-32 (citing to LaVerdure, 324 F.3d at 126).

Initially, the Borough concedes—for the purposes of summary judgment—that Defendants

Johnson, Council-Harris, and Jones-Waters “may have been motivated by race in their individual

votes to terminate him.” Id. at 32. Thus, the Borough instead pins it hopes entirely on Defendant

Brooks, contending the “difficulties regarding Councilmember Brooks’s business [were] the sole

motivating factor in the events surrounding Chief Paparo’s termination.” Id. at 33 (emphasis

added). In support of that contention, the Borough directs this Court to Paparo’s own deposition

testimony, in which he describes Defendant Brooks’s contemporaneous denial of the Council’s

intention to replace Paparo on racial grounds. Id. Likewise, the Borough highlights various

portions of the record indicating that Defendant Brooks viewed Paparo as having allegedly “falsely

accused” her and her husband “of seeking to fix tickets for customers” for Defendant Brooks’s

private business. Id. at 34 (citations omitted).

The Borough’s recounting here is overly myopic and thus unpersuasive. Simply put, it

ignores additional evidence that plainly supports Paparo’s version of events. Most notably, the

Borough fails to acknowledge Defendant Brooks’s January 2, 2022 text message to Defendant

Council-Harris asking: “Do you know the black police out here in Yeadon? That want the Police

chief’s job?” ECF 55-1 ¶ 29. While the Borough vaguely attempts to recast this text as a nebulous

question devoid of any clear meaning, context belies that attempt—Defendant Brooks sent this

text message following two different meetings at which Councilmembers Roadcloud and Beaty

testify some or all of the Individual Defendants conveyed their intention to replace Paparo with a

Black Chief of Police.

Accordingly, the Court concludes this combination of facts could “cause a reasonable juror

to disbelieve [Brooks’s] articulated legitimate non-discriminatory reason” for voting to fire

Paparo, thereby “creating a genuine dispute of material fact as to the credibility of that reason.”

Burton v. Teleflex Inc., 707 F.3d 417, 430 (3d Cir. 2013); Iadimarco v. Runyon, 190 F.3d 151,

165-66 (3d Cir. 1999). And because that genuine dispute of fact as to Defendant Brooks’s

motivation undermines the Borough’s quorum-based argument, a jury must decide what causal

role, if any, race played in the Borough’s decision to fire Paparo.

2. Due Process (Count IV)

The Borough also moves for summary judgment on Paparo’s Fourteenth Amendment

Procedural Due Process claim. ECF 48 at 36. As this Court reviewed the relevant legal standard

at length in denying Defendants’ Motion to Dismiss, Paparo, 2022 WL 6184890, at *4, it will not

do so again here. Instead, the Court reiterates as needed only those portions of the doctrine related

to the Borough’s current arguments, which are three-fold.

First, the Borough asserts that Paparo was as an at-will employee, and so “this case does

not involve a claimed unconstitutional deprivation of a property right.” ECF 48 at 36. But, as

Paparo persuasively counters, his claim has instead always been rooted in a reputational “liberty

interest,” which may be “combined with his associated termination from employment” to assert a

so-called “stigma plus” Due Process claim. ECF 58-4 at 20.

Third Circuit precedent supports Paparo’s argument, as the Court of Appeals has made

clear that a plaintiff “make[s] out a due process claim for deprivation of a liberty interest in

reputation [by showing] 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) (emphasis added). More

importantly, the Third Circuit has explained that “[a] public employee who is defamed in the

course of being terminated or constructively discharged satisfies the ‘stigma-plus’ test even if, as

a matter of state law, he lacks a property interest in the job he lost.” Id. at 238 (emphasis added);

see also id. at 236 (“The creation and dissemination of a false and defamatory impression is the

‘stigma,’ and the termination is the ‘plus.’”). Thus, the Borough’s attempt to distinguish between

property and liberty interests here is nothing more than a red herring.

Second, the Borough contends that Paparo cannot demonstrate a deprivation of said liberty

interest because he “cannot establish that a majority of the board lacked a legitimate, non-

discriminatory, non-racially motivated reason to terminate him.” ECF 48 at 37. As just explained,

however, a genuine dispute of fact exists regarding each Individual Defendants’ motivations for

the firing, thus undermining this second contention.

Third, the Borough asserts the only “process due a claim of stigma-plus violation is simply

the opportunity for a name-clearing hearing,” id. at 38, and the Council’s series of public and

executive sessions in January and February of 2022 provided Paparo with a “wholly adequate

name-clearing hearing,” id. at 40. In so arguing, the Borough further asserts “there is no

requirement that the name-clearing hearing be before a non-biased, impartial decisionmaker.” Id.

at 45. The outcome of that hearing, the Borough contends, is entirely immaterial.

This argument is unavailing, particularly since this Court already concluded precisely the

opposite in denying the Borough’s Motion to Dismiss. There, this Court explained the Third

Circuit recognizes “two kinds of procedural due process violations: those that arise from

insufficient procedural safeguards and those that arise from decisionmaker bias.” Paparo, 2022

WL 6184890, at *6 (citing to United Retail & Wholesale Emps. Teamster Union Local No. 115

Pension Plan v. Yahn Mc Donnell, Inc., 787 F.2d 128, 137-38 (3d Cir. 1986)) (emphasis added).11

On this latter bias prong, “[a]n unconstitutional potential for bias exists when the same

person serves as both accuser and adjudicator in a case.” Id. (citing to Williams v. Pennsylvania,

579 U.S. 1, 8 (2016); In re Murchison, 349 U.S. 133, 136-37 (1955); Lyness v. Com., State Bd. of

Medicine, 605 A.2d 1204, 1208 (Pa. 1992)). Moreover, to make such a showing, “all [a plaintiff]

needs to establish is that the [adjudicatory panel] was infected with ‘the appearance of non-

objectivity.’” Id. (citing to Purcell v. Reading School District, 167 A.3d 216, 226 (Pa. Commw.

Ct. 2017); Withrow v. Larkin, 421 U.S. 35, 54 (1975)).

11 Likewise, Individual Defendants actively concede that “[d]ecision maker bias can form the basis

for a due process violation.” ECF 47 at 14.

Here, the crux of Paparo’s claim remains unchanged since this Court’s earlier denial, and

discovery has in no way diminished the potential validity of that claim. Indeed, the record reflects

a genuine dispute as to the same core allegations to which this Court previously cited—namely

whether each Individual Defendant (1) expressed personal bias and prejudgment on the matter of

Paparo’s employment; (2) was motivated to remove Paparo from his position as Chief of Police in

order to replace him with a Black Chief of Police; (3) undertook efforts to find a Black replacement

for Paparo before they had investigated or ruled upon any justification to terminate Paparo’s

employment; (4) attempted to pressure Paparo to resign before doing so, and (5) pushed through a

vote unchecked by the three other Borough Council members or by the Mayor of Yeadon. Id.

(citing to Amended Complaint).

As such, a jury must decide whether the due process provided to Paparo, even if facially

valid, was “infected with the appearance of non-objectivity.” Purcell, 167 A.3d at 225. While the

Borough repeatedly argues the mere “opportunity to be heard” satisfies due process even if a

claimant appears before biased decision makers, ECF 65 at 9-11, the Borough fails to appreciate

that such a tainted forum provides no opportunity at all.

3. Pennsylvania Wage Payment Collection Law (Count VIII)

The Borough lastly moves for summary judgment on Paparo’s claim brought under the

Pennsylvania Wage Payment & Collection Law (“WPCL”). ECF 48 at 46. Primarily, the Borough

asserts that the WPCL defines “employers” to include “every person, firm, partnership,

association, corporation, receiver or other officer of a court of this Commonwealth and any agent

or officer of any of the abovementioned classes employing any person in this Commonwealth,”

and therefore omits liability for a municipal corporation like the Borough. Id. at 47 (citing to 43

P.S. § 260.2a).

In support of this argument, the Borough observes that the Pennsylvania Commonwealth

Court has long “exempted municipal entities from the WPCL since it first confronted this issue in

1991,” and “courts for the Eastern and Western Districts of Pennsylvania—have followed its

approach.” Carstetter v. Adams Cnty. Transit Auth., 2008 WL 2704596, at *14 (M.D. Pa. July 8,

2008); Gallaher v. Goldsmith, 213 F. Supp. 2d 496, 499 (E.D. Pa. 2002); Scott v. Philadelphia

Hous. Auth., 2011 WL 1791095, at *10 (E.D. Pa. May 11, 2011); Morrow v. Cnty. of

Montgomery, Pa., 2014 WL 348625, at *3 (E.D. Pa. Jan. 31, 2014) (discussing cases in the context

of analogous PMWA provision); Atland v. York Cnty. Transp. Auth., 2009 WL 922488, at *2-3

(M.D. Pa. Apr. 3, 2009). These courts have reasoned “there is a clear distinction between

municipal and private corporations and, if the legislature wished that municipal corporations be

covered by the Law, it could have easily included them.” Huffman v. Borough of Millvale, 139

Pa. Cmwlth. 349, 352 (1991). Thus, under “the legal maxim, expressio unius est exclusio alterius,”

they have concluded municipal corporations such as a Borough are not included within the

definition of “employer,” and that it would be incorrect to “expand the definition” to sweep in such

entities. Id.; see also Philipsburg-Osceola Educ. Ass'n by Porter v. Philipsburg-Osceola Area Sch.

Dist., 159 Pa. Cmwlth. 124, 129 (1993).

Yet, as the Borough readily admits, “[n]either the Pennsylvania Supreme Court nor the

United States Court of Appeals for the Third Circuit have addressed this issue.” Carstetter, 2008

WL 2704596, at *14. And more recently, Judge Wolson rejected the “assumption

in Huffman and Porter that the term ‘corporation’ refers to private corporations only.” Fayad v.

City of Philadelphia, 2023 WL 2955894, at *4 (E.D. Pa. Apr. 14, 2023). Instead, he concluded

that “[t]he express text of the [similarly worded PMWA] does not draw a distinction between

public and private corporations.” Id.

This Court finds Judge Wolson’s analysis persuasive. Simply put, a court’s “interpretive

task begins and ends with the text of the statute unless the text is ambiguous or does not reveal

congressional intent ‘with sufficient precision’ to resolve our inquiry.” Jensen v. Pressler &

Pressler, 791 F.3d 413, 418 (3d Cir. 2015); see also 1 Pa.C.S.A. § 1921(b) (“[w]hen the words of

a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.”). Applied here, as Judge Wolson explained, the “plain and ordinary

meaning of ‘corporation’”—both now and at the time the WPCL was enacted—is unambiguously

“broad enough to include municipal corporations.” 2023 WL 2955894, at *3. So this Court “need

not look beyond the text” to conclude that it applies to municipal corporations like the Borough.

Roth v. Norfalco LLC, 651 F.3d 367, 380 (3d Cir. 2011). As such, in view of that applicability,

this Court further concludes that Paparo’s WPCL may proceed against the Borough.12

Accordingly, the Borough’s motion for summary judgment is DENIED in full.

B. Individual Defendants

1. 42 U.S.C. §§ 1981 and 1983 (Count II)

Individual Defendants, like the Borough, move for summary judgment on Paparo’s racial

discrimination claims brought under 42 U.S.C. §§ 1981 and 1983. ECF 47 at 9. Yet, for the same

12 The Court separately notes that Paparo’s further contention that the Borough has waived this

argument is unavailing. While Paparo is correct the Borough did not raise this interpretive

argument prior to the present motion, “a defendant does not waive an affirmative defense if [h]e

raise[s] the issue at a pragmatically sufficient time, and [the plaintiff] [is] not prejudiced in its

ability to respond.’” Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991) (citations and

quotations omitted). Here, the Court perceives no prejudice to Paparo. The Borough’s argument

depends solely on its status as a municipality, thus precluding any sort of prejudice to Paparo’s

discovery efforts. Likewise, the Borough squarely raised this argument in its opening brief, and

so Paparo has had more than a sufficient opportunity to respond. Thus, it is proper for this Court

to reach the merits, both for the Borough, and for Defendants’ remaining “derivative” suit claims,

which the Court addresses separately below in reference to Individual Defendants’ similar claim.

reasons the Borough’s motion must be denied for Count I, so too must Individual Defendants’

motion for Count II.

In support of their motion, Individual Defendants essentially argue that (1) each Individual

Defendant lacked awareness of their Co-Defendants’ actions or words that might have indicated

an intent to replace Paparo with a Black Chief of Police, and/or (2) each Defendant voted to

terminate Paparo for a reason other than race. Id. at 9-10. In relevant part, Individual Defendants

contend

The evidence does not establish that Tomeka Jones-Waters or

Carlette Brooks had any awareness that Learin Johnson was going

to contact Ferdie Ingram on January 3, 2022 before they took office.

Sharon Council-Harris testified that she may have approved the

contact but never told Brooks or Jones-Waters. It is clear that Brooks

took action against the Plaintiff because she believed he lied about

her and her husband when he circulated an email in early February,

2022 suggesting that she was trying to fix tickets. It is clear that

Tomeka Jones-Waters took the action to vote against him because

of the $387,000 payment.

Id. But these assertions, again, ignore the detailed set of documentary and testimonial evidence

that Paparo has put forth—for each Individual Defendant—from a which reasonable juror might

reach the opposite conclusion.13

For instance, Councilmember Monroe expressly testified that “Councilor Jones-Waters,

Councilor Johnson, and Councilor [] Council-Harris . . . all indicated directly to me at one point

or another that Yeadon is a black town that deserves a black police chief.” ECF 55-2, Ex. 4 at 22.

Likewise, Councilmembers Beaty and Roadcloud testified that, at multiple meetings on

January 2, 2022, Defendant Johnson expressed a desire to replace Paparo with a Black Chief of

13 The Court reiterates the Borough itself has conceded the record supports a finding that

Defendants Council-Harris, Jones-Waters, and Johnson “may have been motivated by race in their

individual votes to terminate [plaintiff Paparo].” ECF 48 at 32.

Police, and that Council-Harris and Jones-Waters affirmatively agreed with Johnson. ECF 55-2,

Ex. 2 at 42-44; ECF 55-2, Ex. 5 at 20-23; ECF 55-2, Ex. 10.

True, as Individual Defendants note, the record is less clear as to whether Defendant

Brooks actively voiced support for this plan. ECF 47 at 10. But, as explained above, Defendant

Brooks’s attendance at these various meetings, along with her after-the-fact text, could lead a

reasonable juror to conclude that Defendant Brooks both supported and participated in a plan to

replace Paparo with a Black Chief of Police.

To be sure, a jury may ultimately choose to believe Individual Defendants’ version of

events over Paparo’s. The jury would be free to credit, for instance, that three of the Individual

Defendants voted to hire Paparo in the first place and eventually also replaced him with Lieutenant

Burns, who is White. Nonetheless, the Court is persuaded that a genuine dispute of material fact

exists for each Individual Defendant’s motivation for the firing, thus precluding summary

judgment on Count II.

As a final aside, Individual Defendants’ arguments regarding a purported lack of state

action here also cannot save their motion. ECF 47 at 10-11. Individual Defendants assert, in

essence, that because they had not been sworn in when several of these key meetings and

conversations occurred, those communications are immaterial for the purposes of Paparo’s section

1981 claim. Id. This contention misconstrues the import of these earlier activities. Paparo’s

argument is not that each pre-January 3, 2022 meeting, text, or call was an official state act. It is

instead that these correspondences serve as evidence of Individual Defendants’ motivation in

eventually terminating Paparo on February 17, 2022, an action which Individual Defendants

unequivocally took under color of state law.

2. 42 U.S.C. § 1985(3) (Count III)

Individual Defendants’ conspiracy-related arguments fare no better. They contend, in a

somewhat conclusory manner, that Paparo “simply cannot establish [a] conspiracy among the four

individual Moving Defendants.” Id. at 12. In so doing, however, Individual Defendants rely on

the exact same arguments related to individual awareness made with respect to Count II, which

this Court has just rejected. The numerous meetings and confirmatory texts among each of the

Individual Defendants—in which they discuss the possibility of replacing Paparo with a Black

Chief of Police—likewise raises a genuine dispute as to whether Individual Defendants conspired

to do so. So here too, a jury must decide whether any such conspiracy existed.

3. Due Process (Count IV)

Individual Defendants next move for summary judgment on Paparo’s Fourteenth

Amendment Procedural Due Process claim, incorporating the Borough’s arguments by reference.

Id. at 14. Indeed, the vast majority of Individual Defendants’ contentions precisely parallel those

made by the Borough, as they assert: (1) “Plaintiff cannot establish a conflict of interest” or “actual

bias,” (2) “Plaintiff was an at-will employee who was not entitled to a property interest in his job,”

and (3) “[t]he hearing provided on February 17, 2022, was sufficient to meet the requirements of

a name clearing hearing’s due process requirements.” Id. at 14-18. For the same reasons the

Borough’s motion fails, those arguments are equally unpersuasive as applied to Individual

Defendants.

a. Defamation

Individual Defendants further contend, however, that Paparo’s Due Process “stigma plus”

claim independently fails because the record does not support the requisite finding of defamation—

i.e., actions or words that “damages a person’s reputation, honor, or integrity on the basis of false

information and implies that it is based on undisclosed or false facts because the listener is unable

to evaluate the soundness of the opinion.” Id. at 20 (citing to Kane v. Chester City, 2019 U.S.

Dist. LEXIS 71312, at *11 (E.D. Pa. 2019)) (emphasis added). Specifically, Individual Defendants

assert the allegedly defamatory statements to which Paparo directs the Court—namely the visual

aids at the February 10, 2022 public session—contain only true information, and when “a person

offers opinions that are supported by true facts, the opinion is not defamatory, no matter how

derogatory or unreasonable the statement may be.” Id. at 20-21.

This argument, much like Individual Defendants’ section 1981 contentions, turns on

Individual Defendants’ further assertion that it is unequivocally true Paparo was not fired on

account of race. As described at length above, however, a genuine dispute exists as to whether

Individual Defendants’ campaign to fire Paparo was pretextual.

Moreover, while Individual Defendants may be correct they never overtly “accused

Plaintiff of theft,” id. at 20, such a framing misconstrues Paparo’s claim. This Court has previously

explained that Paparo instead contends “the posters falsely suggested that the Plaintiff had violated

contracts which resulted in misuse of taxpayer funders” and “ma[d]e it appear that [Plaintiff] was

a thief.” Paparo, 2022 WL 6184890, at *4 (citations omitted) (emphasis added). And a genuine

dispute remains whether this contention is accurate. The Consent Award’s own absolution that it

has “no precedential value or effect whatsoever with respect to any other set of facts or decisions”

and its further express waiver that it “does not constitute an admission of any wrongdoing on the

part of the Borough or any of its officers, agents, employees and/or representatives,” ECF 55-1 ¶¶

64-65, must be balanced against Individual Defendants’ disparaging posters and Paparo’s June

2021 email to Borough Officials taking “full responsibility for getting [the Borough] into this

matter,” ECF 47-4, Ex. Q.

Moreover, even if this Court were to assume Paparo was at “fault” for the FOP grievance,

a genuine dispute remains as to whether Individual Defendants pretextually relied on the grievance

to terminate Paparo on the basis of race. If a jury finds that to be true, it could certainly further

conclude that Individual Defendants’ messaging to the contrary amounted to defamation.

Particularly when this Court considers the testimony from Councilmember Roadcloud,

Councilmember Monroe, and Mayor Hepkins—who describe Individual Defendants’ messaging

as “disgraceful,” “misleading,” “ludicrous,” leading to “the destruction of [plaintiff Paparo’s] life,”

and having been created with “[t]he intent to harm and embarrass and skew the people against our

Chief,” ECF 55-2, Ex. 2 at 35; ECF 55-2, Ex. 4 at 32, ECF 55-2, Ex. 1 at 71, 141-43—the Court

is convinced that a jury could find this potentially defamatory campaign supports a “stigma plus”

Due Process claim.

b. Borough Code

Individual Defendants’ final two arguments—based on the Pennsylvania Borough Code—

are equally unavailing. They assert that (1) “a member of the council shall not be disqualified

from voting on any issue before the council solely because the member has previously expressed

an opinion on the issue in either an official or unofficial capacity,” and (2) the “rule of necessity”

required the vote without recusal of council members. ECF 47 at 15-16 (citing to 8 Pa.C.S. §

1001(d); Wells v. Unemployment Comp. Bd. Of Review, 236 A.3d 108, 111 (Pa. Cmwlth. 2020);

Stroudsberg Area Sch. Dist. v. Kelly, 701 A.2d 1000 (Pa. Cmwlth. 1997); Siteman v. City of

Allentown, 695 A.2d 888 (Pa. Cmwlth. 1995)). As Paparo persuasively counters, this Court’s

crediting of either argument would “elevate[] state procedural law over federal constitutional law.”

ECF 55-4 at 22. Indeed, longstanding Supreme Court precedent makes clear that “minimum

[procedural] requirements [are] a matter of federal law” and are thus “not diminished by the fact

that the State may have specified its own procedures that it may deem adequate for determining

the preconditions to adverse official action.” Vitek v. Jones, 445 U.S. 480, 491 (1980). As such,

both of Individual Defendants’ arguments here fall short.

4. Retaliation (Count V)

Individual Defendants next seek summary judgment on Paparo’s retaliation claim. ECF

47-1 at 21. Such claims “arise post-employment when an employee who has been terminated files

[a section 1981 action] charging discrimination in discharge only to meet continued harassment

from its employers in retaliation for the filing of the action.” Charlton v. Paramus Bd. of Educ.,

25 F.3d 194, 198 (3d Cir. 1994). In analyzing such claims, courts rely on the three-step burden

shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). See, e.g., Canada v. Samuel Grossi & Sons, Inc., 49 F.4 340, 346 (3d Cir. 2022);

Curry v. Devereux Found., 541 F. Supp. 3d 555, 559 (E.D. Pa. 2021) (noting “[t]he elements of a

§ 1981 employment discrimination claim are identical to those brought under Title VII”). To

establish the prima facie case, a plaintiff must first show

(1) a protected employee activity;

(2) an adverse action by the employer either after or contemporaneous with the

employee’s protected activity; and

(3) a causal connection between the employee’s protected activity and the

employer’s adverse action.

Canada, 49 F.4 at 346. Upon that initial showing, the burden then “shifts to the employer to

advance a legitimate, non-retaliatory reason for its adverse employment action.” Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500 (3d Cir.1997). If the employer satisfies that burden, the plaintiff

must finally be able to demonstrate that both “the employer’s proffered explanation was false, and

that retaliation was the real reason for the adverse employment action.” Canada, 49 F.4 at 346

(citation omitted).

In the post-employment context, an action is sufficiently adverse if it “results in discharge

from a later job, a refusal to hire the plaintiff, or other professional or occupational harm.”

Charlton, 25 F.3d at 200; see also Nelson v. Upsala Coll., 51 F.3d 383, 388 n.6 (3d Cir. 1995).

Likewise, courts have accepted as sufficiently adverse the “discontinuance of severance benefits”

in response to the filing of an action. Nelson, 51 F.3d at 388 (citing to EEOC v. Cosmair, Inc.,

821 F.2d 1085, 1087 (5th Cir.1987)).

Here, neither party disputes that Paparo’s filing of his section 1981 suit constituted a

“protected activity,” thus satisfying the first element of his claim. Instead, Individual Defendants

assert Paparo has failed to demonstrate any type of sufficiently adverse action, let alone a causal

connection between that action and Paparo’s suit. ECF 47 at 21-25.

Paparo counters that the record supports at least two sufficient bases to satisfy these latter

elements. Id. at 21 (citing to ECF 10 ¶ 155). Those bases include (1) Defendants’ publication and

distribution of the Fast Facts flyer, in combination with Defendants’ allegedly false accusations of

theft; and (2) Defendants’ refusal to pay accrued benefits supposedly owed to Paparo under his

employment agreement and their similar failures to respond to inquiries regarding Paparo’s ability

to withdraw pension contributions. Id.14 The Court analyzes these issues in turn.

a. Publicizing and Distributing the Fast Facts Flyer

The Court turns first to Individual Defendants’ dissemination of the Fast Facts flyer, as that

dissemination, by itself, precludes a complete grant of summary judgment here. While Individual

14 Individual Defendants note that Paparo’s “pension contributions were returned to him in the

spring of 2022, likely within two months after his employment ended” and thus argue “that issue

should be moot.” ECF 47 at 22. That said, at oral argument on January 26, 2024, the parties

continued to disagree on whether a genuine dispute remains as to pension funding that Paparo did

not himself contribute. As such, the Court finds it inappropriate to grant Defendants’ motion on

mootness grounds. This particular factual dispute instead fits within Paparo’s broader argument

regarding Individual Defendants’ alleged refusal to pay out benefits.

Defendants raise two arguments to avoid this result, neither is persuasive. First, they contend that

because the flyer was initially created on March 7, 2022—the same day the suit was filed—the

flyer could not have been retaliation for Paparo’s protected conduct. Id. at 25. As Individual

Defendants put it, “it was not retaliation for any lawsuit,” but instead “in rebuttal to the various

claims of racism that were being put forth in the press.” Id. Second, Individual Defendants

contend the flyer is “entirely accurate,” and publishing accurate information cannot be improper

retaliation. Id. at 24.

On timing, even if Individual Defendants’ contemporaneous release of flyer was entirely

coincidental, they concede they then continued to “publicize and distribute” the content across a

variety of media in subsequent months. Id. at 22. But Individual Defendants fail to further explain

why, if their initial creation of the flyer was a “rebuttal” to Paparo’s public allegations of racism,

a reasonable juror could not conclude the continued widespread dissemination was in response to

the suit itself. Otherwise stated, a reasonable juror could find that Paparo’s filing of the suit

increased the intensity of the ongoing dispute, and Individual Defendants responded in kind.

True, it is possible to parse out and hypothesize about various motives for Individual

Defendants’ campaign against Paparo. A factfinder might conclude, for instance, that Individual

Defendants engaged in their messaging campaign not to specifically retaliate against Paparo, but

instead to persuade the public that a particular version of events was true. That question, however,

is best left to the jury.

Individual Defendants’ secondary assertion—that the Fast Fact flyer was “entirely

accurate”—likewise does not support summary judgment here. The flyer expressly attempts to

convince the public that “race played no role whatsoever” in Paparo’s firing, ECF 55-2, Ex. 37; a

contention for which a genuine dispute of fact remains. If the jury finds the opposite to be true, it

bolsters the notion that the remainder of the flyer was meant to disparage and discredit Paparo. In

other words, the truthfulness of the message bears on Individual Defendants’ intent to retaliate.

Lastly, to the extent Individual Defendants instead argue the consequences of their

campaign were not sufficiently adverse, that contention also lacks merit. Simply put, a reasonable

juror could find that Defendants’ messaging led to “professional or occupational harm” for Paparo.

Charlton, 25 F.3d at 200. Indeed, the record evinces specific instances of subsequent employers

refusing to hire Paparo on account of this flyer. Most notably, Mayor Hepkins testified that Paparo

was not only fired he was humil -- publicly humiliated by putting

these 10 facts on the website, on the borough official website, which

I believe is still there .. .I remember one particular employer called

me, and they wanted to hire him. They loved him .... And then they

called me back and said, unfortunately, we can’t hire him because

of these 10 facts .... He can’t get a job; they rendered him

unemployable. They destroyed this man, they destroyed his life.

They not only fired him, they didn’t leave it as that, they destroyed

his life, and that is wrong, it's unethical, and it's ungodly.

ECF 55-2, Ex. 1 at 71-72. Such testimony suffices to preclude summary judgment on “adverse

action” grounds.

b. Post-Employment Wages and Benefits

Individual Defendants’ allegedly wrongful denial of post-employment benefits presents a

closer call. Here, Paparo argues the Borough was “legally obligated to pay plaintiff Paparo all the

benefits to which he is entitled under the applicable contracts,” but that Individual Defendants

“have made retaliatory use of their authority by refusing to pay plaintiff any of the benefits he is

owed.” ECF 55-4 at 28. Two issues impact this claim—one of timing and one of substance.

On timing, recall that Paparo was terminated on February 17, 2022. ECF 55-1 ¶ 83; ECF

47-1 ¶¶ 101-103. He sent his first letter to the Borough seeking post-termination benefits on

February 21, 2022. ECF 55-1 ¶ 94. On March 5, 2022, Paparo then emailed the Borough again

regarding the hours to which he believed he was entitled. ECF 55-1 ¶ 95; ECF 55-2, Ex. 33.

As such, these initial requests and communications all occurred before Paparo actually

filed suit.15 And, by Paparo’s own admission, part of the harm he alleges is that the Borough’s

“delay” in responding to Paparo “resulted in missed pay periods.” ECF 55-4 at 30. Thus, to the

extent Paparo targets Individual Defendants’ pre-suit silence, he likely cannot succeed. Prior to

March 7, 2022, Paparo has not identified a “protected action” upon which Individual Defendants

might have retaliated.

Paparo further notes, however, that he has yet to receive any post-employment wages or

benefits. Id. This presents a more colorable claim. True, Individual Defendants have consistently

maintained that their interpretation of Paparo’s contract precludes the payout he seeks, which

suggests that Paparo must demonstrate Defendants’ position is pretextual.

Defendants’ framing here is persuasive, and, in the Court’s view, casts doubt on whether

Paparo can ultimately succeed on this portion of his claim. Nonetheless, the same basic sentiment

underlying this payout dispute underlies Paparo’s Fast Facts flyer contentions. Paparo asserts, in

essence, that all of Defendants’ untoward treatment of Paparo (i.e., both the personal attacks and

denial of benefits) flow from the amalgamation of Paparo’s pre- and intra-suit allegations of

racism. And from that perspective, it is simply best left to a jury decide which portions, if any, of

Defendants’ post-filing actions were retaliation for Paparo’s suit.

15 That said, the aforementioned February 21, 2022 letter from Paparo’s counsel to the Borough

expressly notified Individual Defendants of his “intent to file a civil lawsuit against the Borough

and the four members of Council who voted to fire him.” ECF 55-2, Ex. 32.

5. Defamation and False Light (Counts VI and VII)

This Court has already addressed the potential defamatory nature of Individual Defendants’

campaign against Paparo, so it will revisit the issue here only briefly in reference to Paparo’s state

law defamation and false light claims.16

a. Defamatory Statements

The crux of Individual Defendants’ argument here is, once again, that “the 10 Fast Facts

were truthful and they were published only in response to the fact that Plaintiff and his supporters

on Council started claiming that he was being fired for racism.” ECF 47 at 27. But, as already

explained, a genuine dispute exists regarding whether Defendants’ campaign was pretextual.

To be sure, Pennsylvania law does not require “perfect truth, so long as any inaccuracies

do not render the substance and ‘gist’ of the statements untrue.” Reuban v. CBS Broad., Inc., 170

A.3d 560, 565 (Pa. Super. 2017) (citations omitted). And here, the Borough did in fact agree to a

Consent Award during Paparo’s tenure. Yet, Individual Defendants’ reliance on the mere

occurrence of this award misconstrues the source of the potential falsity. Paparo takes issue not

with its existence, but instead with Individual Defendants’ public assertion that he was fired solely

because he “mismanaged overtime.” ECF 55-2, Ex. 25. Indeed, as noted, the Fast Facts flyer

expressly creates a zero-sum game, as it unequivocally proclaims that “race played no role

whatsoever” in the Council’s decision to fire Paparo. ECF 55-2, Ex. 37 (emphasis added). If,

16 Under 42 Pa.C.S. § 8343, a plaintiff must establish the following seven elements in order to

meet his burden of proving a defamation claim: (1) The defamatory character of the

communication; (2) Its publication by the defendant; (3) Its application to the plaintiff; (4) The

understanding by recipient of its defamatory meaning; (5) The understanding by the recipient of it

as intended to be applied to the plaintiff; (6) Special harm resulting to the plaintiff from its

publication; and (7) Abuse of a conditionally privileged occasion. If the plaintiff has met the

burden for those seven elements, a defendant must then show: (1) The truth of the defamatory

communication; (2) The privileged character of the occasion on which it was published; or (3) The

character of the subject matter of defamatory comment as a public concern. Id.

however, a jury finds that to be inaccurate, it necessarily diminishes the truthfulness and weight of

Individual Defendants’ lone asserted reason for termination.

The Court reiterates that it is entirely possible dual motivations existed. A reasonable juror

could conclude, for instance, that Individual Defendants terminated Paparo both on account of his

race and a belief that Paparo mismanaged the Borough’s funds. But that is simply not what

Individual Defendants conveyed to the public.

The inherent tension behind these two plausible reasons highlights the potentially

defamatory nature of Defendants’ statements. The more heavily race played a role in their

decision-making, the less credible Individual Defendants’ claims of mismanagement become. In

other words, whether Paparo truly violated the CBA is a distinct question from whether his conduct

amounted to mismanagement, which is further distinct from the question of whether Defendants

did not fully believe Paparo’s conduct amounted to a “fire-able” offense yet conveyed a different

message to the public. Individual Defendants’ campaign implicates all three questions, and a

genuine dispute exists as to the veracity of Defendants’ contemporaneous public statements for

each one.

Simply put, to the extent Individual Defendants relied on pretextual claims of

mismanagement to publicly bolster their termination decision, a jury could find those statements

to be defamatory.

b. Actual Malice, Special Harms, and Abuse of Privilege

Individual Defendants three remaining, passing arguments—related to actual malice,

special harm, and abuse of privilege—are likewise without merit. ECF 47 at 27-28. First,

Individual Defendants assert that because Paparo was a public figure, he must establish actual

malice—defined as proof that a “statement was made with . . . knowledge that it was false or with

reckless disregard of whether it was false or not.” Id. at 27 (citing to New York Times Co. v.

Sullivan, 376 U.S. 254, 280 (1964)). Here too, however, the pretextual posture of this case clearly

precludes summary judgment. If the jury decides that race played a role in Individual Defendants’

decision to terminate Paparo, the Fast Facts flyer’s express statements to the contrary necessarily

satisfies the actual malice requirement.

Second, the record undoubtedly supports the possibility of “special harm”—defined as “the

loss of something having economic or pecuniary value.” Beverly Enterprises, Inc. v. Trump, 182

F.3d 183, 188 (3d Cir. 1999) (citations omitted). Significant evidence in record indicates that, as

result of Individual Defendants’ campaign against Paparo, he may have missed out on future job

opportunities. See, e.g., ECF 55-2, Ex. 1 at 71-72.

Third, a genuine dispute exists as to whether Individual Defendants engaged in an “abuse

of privilege” here. As the Third Circuit has explained, Pennsylvania recognizes two forms of such

abuse—(1) where “an official report [fails] to be fair and accurate, as when the publisher overly

embellishes the account,” and (2) where the defamatory material is “published for the sole purpose

of causing harm to the person defamed.” Medico v. Time, Inc., 643 F.2d 134, 146 (3d Cir. 1981).

On this record, a reasonable juror could conclude that either condition was satisfied. To the extent

the jury finds that Individual Defendants pretextually bolstered Paparo’s alleged mismanagement,

that falls squarely within the first bucket. To the extent the jury distinctly and reasonably

concludes that Individual Defendants launched their campaign to purposefully discredit Paparo’s

assertions of racial discrimination and his performance as Chief of Police, that would fall squarely

within the second bucket. As such, summary judgment is also not appropriate on “abuse of

privilege” grounds.17

17 For the same reason, summary judgment is also not appropriate for Paparo’s “false light” claim,

as he raises a genuine dispute as to whether Defendants’ campaign amounted to “discrete

c. High Public Official Immunity

Individual Defendants separately argue that, even if their statements were defamatory, they

are nonetheless entitled to “high public official quality immunity.” ECF 47 at 30.

As this Court has explained, Pennsylvania “exempts a high public official from all civil

suits for damages arising out of false defamatory statements and even from statements or actions

motivated by malice, provided the statements are made or the actions are taken in the course of the

official’s duties or powers.” Paparo, 2022 WL 6184890, at *7 (citing to Smith v. Borough of

Dunmore, 633 F.3d 176, 181 (3d Cir. 2011)). Accordingly, Individual Defendants are protected

from tort liability only if (1) they qualify as high public officials, and (2) the “allegedly actionable

behavior was made in the course of their official duties.” Osiris Enters. v. Borough of Whitehall,

877 A.2d 560, 567 (Pa. Commw. Ct. 2005). Paparo does not appear to dispute that Individual

Defendants’ roles as Councilmembers satisfies this first element, and so the parties’ briefing

focuses largely on the second.

In conducting the “official duties” inquiry, Pennsylvania courts typically rely on two

factors: “(1) the formality of the forum in which the words were spoken or published; and (2) the

relationship of the legitimate subject of governmental concern to the person seeking damages for

the defamatory utterance.” Id. at 568.

Here, Individual Defendants argue the allegedly defamatory statements “were all made in

the course of the Council meeting and in the course of the official duties of the Council members.”

ECF 47 at 30. Paparo counters with McKibben v. Schmotzer, 700 A.2d 484 (Pa. Super. Ct. 1997)

and Graham v. Avella Area Sch. Dist., 2006 WL 1669881 (W.D. Pa. June 14, 2006), which

presentations of information in a fashion which rendered the publications susceptible to inferences

casting (appellate) in a false light . . . .” Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6, 15

(1982).

distinguish between criticisms made by public officials before and after those officials have

authority over the target of their criticism, shielding officials only as long as that authority lasts.

ECF 55-4 at 37-38.

In McKibben, for instance, the Superior Court of Pennsylvania confronted two distinct

instances of potentially defamatory public facing statements made by a borough mayor against its

chief of police, both related to the chief’s alleged physical assault of the mayor. 700 A.2d at 487-

88. Initially, the Superior Court concluded the mayor was “engaged in the course of her duties

and within the scope of her authority when she suspended [the chief] and issued a ‘News Release’

regarding his suspension,” despite that release being “harsh and, as the jury found, untrue.” Id. at

490-491. Conversely, however, the McKibben Court declined to apply immunity to the mayor’s

later defamatory public statements regarding the police chief’s testimony in a separate private

criminal complaint, which occurred well after the borough council had reinstated the police chief.

Id. The Court concluded the mayor’s later “slanderous comments following the preliminary

hearing [were] not closely related to her official duties in this case, but rather [were] merely those

of a private citizen who was dissatisfied with the outcome” of the private suit. Id.

Likewise, in Graham, the Western District of Pennsylvania declined to apply high public

official immunity to a schoolboard member who “[allegedly] falsely accused [plaintiff-teacher] of

having an illicit sexual affair with a former principal” where “the defamation continued long after

Plaintiff’s last day of work.” 2006 WL 1669881, at *5.

By contrast, in Matta v. Burton, the Commonwealth Court found a school board director

immune from suit where she published a letter in a local newspaper criticizing the school district’s

business manager and accused him of misconduct related to a $13.5 million school renovation

project. 721 A.2d 1164, 1165 (Pa.Cmwlth.1998), appeal dismissed, 558 Pa. 612, (1999). There,

the Court reasoned—in view of the director’s “authority to oversee school district contracts”—that

“her criticism of the business manager’s handling of the contract fell within the scope of her duties

and authority.” Id. at 1167. As the Matta Court saw it, the director’s public criticisms “did not

comment on a matter affecting only her individual rights as a private citizen, but rather was

attempting to inform the general public of what she perceived to be the mismanagement of a large

public contract.” Id.

This case falls somewhere in between Matta on the one hand, and McKibben and Graham

on the other. While Individual Defendants’ campaign against Paparo “continued long after [his]

last day of work,” Graham, 2006 WL 1669881 at *5, budget management was also plainly within

the Council’s purview. In other words, the closer in time Individual Defendants’ messaging was

to their termination of Paparo, the more heavily that messaging mirrors the initial press releases in

Matta and McKibben. As time progressed, however, Defendants’ pervasive and continuous

campaign became increasingly disconnected from these initial, official public statements.

A reasonable juror might therefore find that—at some point along this continuum—

Individual Defendants’ messaging changed from merely informing the public to protecting their

personal reputations, thus ceasing to be a part of Individual Defendants’ official duties. Given the

factual, subjective nature of that inquiry, the Court concludes a jury must decide this cut off point,

to the extent one exists. On this record, it is ultimately for the factfinder to determine whether

Individual Defendants’ efforts throughout the entirety of this campaign were “closely related” to

their “legitimate duties,” or instead those of “private citizen[s] who [were] dissatisfied with” the

accusation leveled against them personally. McKibben, 700 A.2d at 492.18

18 Individual Defendants separately argue they are entitled to qualified immunity for Paparo’s

constitutional claims at Counts II-V because “it cannot be said that any one of the four individual

Defendants acted unreasonably vis a vis any of the four federal claims asserted by the Plaintiff.”

6. WPCL (Count VIII)

Individual Defendants lastly move for summary judgment on Paparo’s claim under the

WPCL, again incorporating the Borough’s arguments by reference. ECF 47 at 31. Each of

Individual Defendants’ additional arguments fall short.

First, at oral argument, Individual Defendants asserted that—even if the WPCL applies to

municipalities—each Individual Defendant does not fall within the definition of “employer” for

the purposes of the Act. But relevant precedent dictates precisely the opposite conclusion. See

Faden v. deVitry, 425 Pa. Super. 555, 560-61 (1993) (“By statutory definition, ‘employer’ includes

any agent or officer of a corporation. . . . Therefore, no error was committed in holding [agent]

individually liable under the WPCL.”); Amalgamated Cotton Garment & Allied Indus. Fund v.

Dion, 341 Pa. Super. 12, 16 (1985). Further undermining this argument, Individual Defendants

ignore that Paparo’s contention here is that Individual Defendants—constituting a majority of the

Council—were acting in unison and on behalf of the Borough both pre- and post-termination, thus

serving as Paparo’s de facto employer in this broader regard.

Second, Defendants argue that because Paparo’s section 1981 and Due Process claims must

fail, so too must his “derivative claim for ‘nonpayment’ of wages and other employment benefits.”

ECF 48 at 46-47; ECF 47 at 31. Even if this Court were to accept this premise regarding the

“derivative” nature of Paparo’s claim, the Court has already rejected Defendants’ section 1981 and

Due Process arguments. Accordingly, this second contention is also unavailing.

ECF 47 at 37. But, as Paparo rightly argues, the right to be free from racial discrimination “has

been clearly embedded in Supreme Court precedent” for decades. ECF 55-4 at 45 (citing to Griffin

v. Breckenridge, 403 U.S. 888, 101-102 (1971)). As a genuine dispute exists regarding that

discrimination for each Individual Defendant, qualified immunity for Paparo’s constitutional

claims is inappropriate here.

Third, Defendants assert that Paparo cannot satisfy section 10 of the WPCL, which requires

an employee to show “no good faith contest or dispute of any wage claim including the good faith

assertion of a right of set-off or counter-claim exists accounting for such nonpayment.” ECF 48

at 47 (citing 43 P.S. § 260.10); ECF 47 at 31. Again, Defendants’ argument hinges on Paparo’s

inability to “establish a claim for wrongful termination under § 1981, [or] a due process violation.”

Id. Assuming without the deciding the applicability of this section of the WPCL, this argument

fails for the same reason Paparo’s “derivative” claim contention fails.

Fourth, Defendants argue that Pennsylvania’s Political Subdivision Tort Claims Act

renders Defendants immune from suit under the WPCL. ECF 48 at 38 (citing to 42 Pa. C.S. §

8541); ECF 47 at 31. As Paparo correctly counters, however, the WPCL does not provide for tort

relief. ECF 55-4 at 43-44. Instead, it is a statutory vehicle for a former employee “to enforce

payment of wages and compensation to which” he may be “otherwise entitled by the terms of an

agreement.” Id. at 44 (citing to Toppy v. Passage Bio, Inc., 285 A.3d 672, 689 (Pa. Super. 2022));

see also Hunt v. Custom Cable Indus., Inc., 2011 WL 2200065, at *4 (E.D. Pa. June 7, 2011)

(noting a lack of “authority that suggests that violations of the WPCL are torts”).

Finally, as to the actual number of hours owed, Defendants argue the CBA precludes

Paparo, as Chief of Police, from the 776 hours of severance pay to which he claims he is entitled.

ECF 47 at 6. Defendants rely primarily on an affidavit from Thomas Reynolds, who contends that,

under the CBA

1. A police chief is not entitled to compensatory time unless specifically defined in

his/her Employment Agreement. Compensatory time is received in lieu of overtime

and as a salary employee, a police chief s not entitled to overtime.

2. Under the Collective Bargaining Agreement, when an office leaves for any reason

other than a normal or disability retirement, they do not get compensated for unused

sick time or unused vacation time. Any deviation would have to be based on upon

contractual terms that are not included in the Collective Bargaining agreement.

ECF 47-6, Ex. EE (emphasis added). Paparo replies that (i) his employment agreement; (ii) the

2014-2017 CBA; and (iii) the 2018-2022 CBA, in combination, make clear that he is entitled to

the hours he claims. ECF 58-4 at 25-26; ECF 55-4 at 1.

In so doing, Paparo breaks his calculation into three components: vacation, compensation,

and sick days. On vacation, Paparo relies on language in his employment agreement expressly

providing for the following: (1) “[v]acation and personal holiday leave shall follow the guidelines

of the Police Collective Bargain Agreement in effect”; (2) “Paparo shall be permitted to carry over

up to ten (10) days of unused vacation days into the following year”; and (3) “Paparo is recognized,

as of the date of hire, to be entitled to maximum annual paid vacation allowance of 200 hours,

currently in effect.” ECF 55-2, Ex. 35. He likewise notes the 2018-22 CBA then amended this

latter maximum to 240 hours. Id. Thus, Paparo calculates that, as of January 1, 2022, he had

accrued 320 hours of vacation—the sum of his 240-hour cap and his 80 hour (i.e., 10 day) carry

over as authorized by agreement. Id.

On compensation pay, Paparo similarly notes his agreement states that “it is the intent of

the Borough to provide Paparo with all of the benefits provided to police officers pursuant to the

Police Collective Bargaining Agreement,” and that the CBA states “[o]fficers may accrue

compensatory time to a maximum of one hundred twenty (120) hours.” Id.

On sick leave, Paparo’s agreement again provides that he “shall be entitled to receive sick

leave … in accordance with the Police Collective Bargaining Agreement,” which in turn states

“each full time officer shall have an annual allotment of 12 sick days (96 sick hours), which shall

be added to the carry-over sick days from the prior year. An officer shall be permitted to carry-

over not more than 30 unused sick days (240 hours) into each subsequent year.” Id. Paparo also

notes the CBA further states that “up to 42 unused sick days (336) hours shall be paid to the officer

at the time of retirement.” Id.

The parties, to some degree, are arguing past each other here. Paparo leans heavily into

the hours accrued provisions, whereas Individual Defendants rely on their assertion that payout for

most, if not all, claimed hours applies only where a police officer retires. Most notably, section

28 of the 2017 CBA, entitled “termination of the Department,” states that “[u]pon the termination

of the Department each officer shall receive two (2) weeks pay in addition to any severance pay to

which the officer would otherwise be entitled.” ECF 55-2, Ex. 30 (emphasis added). Likewise,

not every category of accrued time within the CBA expressly references a payout, regardless of

whether an employee is terminated or retires. Id. The vacation section of the CBA, for instance,

references an employee’s right to compel the Borough to buy back forty hours of vacation

annually, but says nothing of a termination payout. Id. Further, Paparo’s agreement expressly

states that “[u]nused vacation days may accrue for early retirement purposes only” and that this

“accrual shall not be used for lump sum payment at retirement.” ECF 55-2, Ex. 29. That would

appear to indicate, unless Paparo’s termination constituted “early retirement,” he is not entitled to

such unpaid vacation days. That said, the next sentence then carves out the “early retirement

incentive program” for situations “authorized by Council which does not provide sufficient time

for usage of accrued vacation days,” id., which, in theory, could swing this dispute back in Paparo’s

favor.

In short, while Paparo appears to be entitled to some sort of payout under his agreement

and the relevant CBAs, it is entirely possible the proper amount is somewhere between his claimed

776 hours and Defendants’ asserted cap of 160 hours. Further, in this Court’s view, there are

multiple reasonable readings of these agreements that might lead to different payouts, thus

rendering the connection between Paparo’s employment agreement and the various CBA

provisions ambiguous. As such, a jury must decide the proper scope of these agreements. See,

e.g., Pacitti v. Macy’s, 193 F.3d 766, 773 (3d Cir. 1999) (“If the contract as a whole is susceptible

to more than one reading, the factfinder resolves the matter”) (citations omitted).

Accordingly, Individual Defendants’ arguments do not warrant summary judgment on

Paparo’s final WPCL claim. Thus, this Court will DENY Individual Defendants’ motion in full.

C. Paparo’s Cross-Motion

Paparo separately moves for partial summary judgment on specific portions of his

retaliation claim. ECF 46. First, Paparo argues that no genuine dispute of fact exists for Paparo’s

assertion that Defendants have refused to pay him “any of the hours he was contractually entitled

for vacation, compensation time, and sick leave.” ECF 46-7 at 1. Second, Paparo contends

Defendants have indisputably damaged his reputation and impeded his ability to obtain another

job as a result of their distribution of the Fast Facts flyer. Id. Yet, for the same reasons Defendants’

motions for summary judgment must be denied, so too must Paparo’s.

First, while Defendants concede they have yet to pay Paparo post-employment wages or

benefits apart from returning his own pension contributions, a genuine dispute remains as to the

proper number of hours to which Paparo is entitled. As noted above, the terms of Paparo’s

employment agreement, in combination with the relevant CBAs, are ambiguous, making summary

judgment inappropriate.

Paparo attempts to reframe the inquiry, arguing that the exact hour count is merely a

question of damages, rather than one of liability. ECF 61 at 3. But this framing ignores that non-

payment alone is insufficient to establish liability. Most notably, a jury must still parse the “causal

connection” between Paparo’s suit and Defendants’ refusal to pay, for which a genuine dispute of

fact remains. Moreover, Paparo appears to blur the line between hours owed and actual resulting

monetary damages. The former is ultimately a question of contract interpretation, and this Court

has already determined the relevant contractual provisions are sufficiently ambiguous to reach a

jury. Otherwise stated, the Court cannot assume retaliatory liability for Defendants’ refusal to pay

out hours when a jury could conclude Defendants were not liable for some (or all) of the hours in

the first place.19

If anything, granting summary judgment on the narrow fact that Defendants have yet to

pay any out benefits might confuse the jury on this very distinction. Thus, to the extent Defendants

agree they have not yet paid out any benefits, it would seem a stipulation of fact is appropriate,

rather than a grant of summary judgment. See, e.g., Martin v. City of Reading, 118 F. Supp. 3d

751, 782-83 (E.D. Pa. 2015); SEC v. Thrasher, 152 F.Supp.2d 291, 297

(S.D.N.Y.2001) (observing that Rule 56, which permits the Court to resolve certain factual

disputes after passing on, and declining to grant, a request for summary judgment, “does not allow

a party to bring a motion for a mere factual adjudication”).

Second, Paparo is also undoubtedly correct that significant evidence in the record indicates

the Fast Facts flyer was “to the detriment of [Paparo’s] employment opportunities.” Charlton, 25

F.3d at 201. Recall, however, Defendants counter that the contents were entirely accurate and “not

retaliation for any lawsuit,” but instead “in rebuttal to the various claims of racism that were being

put forth in the press.” ECF 47 at 25. So, again, even if there is little dispute amongst the parties

19 At oral argument on January 26, 2024, Counsel for Paparo asserted that Defendants do not

contest that Paparo is entitled to at least 160 hours of pay, and further that the WPCL requires the

immediate payout of such undisputed claims. See also ECF 61 at 3 n.1 (citing to 43 Pa.C.S.A. §

260.5). To the extent any such concession occurred, it appears to have been in the context of

settlement negotiations. See Fed. R. Evid. 408; Cf W. Palm Beach Hotel, LLC v. Atlanta

Underground, LLC, 626 F. App’x 37, 43 n.5 (3d Cir. 2015). Even if that is not correct, however,

the record does not clearly reflect that Defendants have so conceded, and so this Court believes it

is best left to the jury to decide the proper hours due under the relevant agreements.

as to the binary issue of whether Paparo’s reputation was harmed as a result of this Fast Facts flyer,

the causal connection between Paparo’s suit and the Fast Facts flyer remains at issue. And if the

jury accepts the Fast Facts flyer as entirely accurate, it becomes less clear whether the

dissemination was sufficiently adverse for the purposes of a retaliation claim. In the same way

truth serves as a defense to defamation, it could do the same for Paparo’s retaliation claim here.

Otherwise stated, retaliation claims are not meant to enable bad actors to shift the consequence of

their misconduct to a third-party who publicizes that misconduct. Framed in terms of Paparo’s

current summary judgment motion, if the Fast Facts flyer is entirely accurate, a genuine dispute of

fact remains as to whether any diminished employment opportunities flowed from Paparo’s

alleged mismanagement of funds, or instead from the Council’s extensive efforts to highlight that

alleged mismanagement to combat Paparo’s claims of racism. Thus, here too, summary judgment

is inappropriate. Accordingly, Paparo’s motion is DENIED.

V. CONCLUSION

For the foregoing reasons, both the Borough’s and Individual Defendants’ motions for

summary judgment are DENIED. Further, Paparo’s motion for partial summary judgment is also

DENIED. The following claims are preserved for trial:

• Count I against the Borough;

• Count II against Individual Defendants;

• Count III against Individual Defendants;

• Count IV against all Defendants;

• Count V against all Defendants;

• Count VI against Individual Defendants;

• Count VII against Individual Defendants;

• Count VIII against all Defendants.

An appropriate order follows.

O:\CIVIL 22\22-841 Paparo v. Borough of Yeadon et al\22-841 - Paparo MSJ Memorandum.docx