# Lahovski v. Rush Township, Pennsylvania

> District Court, M.D. Pennsylvania · February 18, 2020

URL: https://www.frixlaw.com/law-library/cases/10408354

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 18, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

FREDERICK LAHOVSKI :
and RYAN OLDT,
:
Plaintiffs CIVIL ACTION NO. 3:19-0819
:
v. (JUDGE MANNION)
:
RUSH TOWNSHIP, et al.,
:
Defendants
:

MEMORANDUM

Presently before the court in this civil rights action under 42 U.S.C.
§1983 is a motion to dismiss the plaintiffs’ amended complaint, (Doc. 15),
pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the defendants,
Rush Township, Rush Township Police Chief Kenneth Zipovsky, and Rush
Township Supervisors Shawn Gilbert and Robert Liebensperger. (Doc. 18).
Plaintiffs, Frederick Lahovski and Ryan Oldt, former Rush Township police
officers, allege they were terminated as retaliation in violation of the First
Amendment for speaking out about improper and unlawful conduct of
defendants. Defendants argue that plaintiffs’ complaints and reports of
wrongdoing were made within the scope of their duties as police officers and
not made as private citizens. For the following reasons, the defendants’
motion to dismiss will be GRANTED IN PART and DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND
According to the facts set forth in the amended complaint1, the plaintiffs

were employed with the Rush Township Police Department (“RTPD”) as
part-time police officers since 2016. During the times relevant to this action,
defendants Liebensperger and Gilbert were members of the Rush Township
Board of Supervisors. Zipovsky became Chief of RTPD in June 2018. As

police officers, plaintiffs reported directly to the Chief.
During 2017, Oldt alleges that Gilbert called Hope’s Towing to tow a
disabled vehicle after Oldt, while on duty as a police officer, called a less

expensive company to tow the vehicle, Zeigler’s Towing. Oldt alleges that
Gilbert told him to only use Hope’s towing during his duties as a police officer
and that he (Gilbert) was “in charge” and “hires and fires” who he wants.
Also, in 2017, Lahovski alleges, while on duty as a police officer, that

Liebensperger demanded he have a vehicle towed which he (Liebensperger)

1For the purposes of the instant motion to dismiss, the court must take the
allegations of the plaintiffs’ amended complaint as true. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007).
claimed was abandoned and Lahovski refused to do so since it would be in
violation of state law regarding the process to remove abandoned vehicles.

In another 2017 incident, Lahovski responded to a vehicle accident and
the driver was the son of Tyrone Rarick, a friend of Gilbert. After his
investigation, Lahovski advised Rarick and his son that their vehicle would

be seized and a search warrant would be obtained to inspect it. Rarick then
told Lahovski that Gilbert wanted to speak with him, and Gilbert ordered
Lahovski to release the vehicle and leave the accident scene. After initially
refusing, Lahovski then left the scene.

In 2018, Lahovski alleges that Gilbert advised him that he called
Hope’s Towing to tow an abandoned vehicle, and Lahovski told Gilbert he
would not take part in the towing since he believed the action was unlawful.

Lahovski told Oldt about the incident and asked for Oldt’s help in
investigating it.
In March 2018, Rush Township posted a notice that the RTPD
bargaining unit was being decertified. Former Police Chief Joseph Lipsett

told Lahovski that Liebensperger refused to hire any full time police officers
unless the union was eliminated. Lahovski complained to Lipsett stating he
thought Liebensperger’s action regarding the union was illegal.
In May of 2018, Lipsett told Lahovski that Gilbert and Liebensperger
wanted to fire him, but Lipsett refused to do it. Later that month, Lipsett died.

Zipovsky was then appointed the new Chief.
In June of 2018, Oldt complained to Zipovsky that Gilbert was
improperly forcing the Township to use Hope’s Towing. In July of 2018, Oldt

complained to Rush Township Supervisor Motroni that another part-time
police officer with the Township was using his Rush Township taser when he
was working as Police Chief with Ryan Township and that this was a misuse
of public property and a violation of Rush Township policy. When Zipovsky

found out about Oldt’s complaint, he told Oldt that he would be terminated if
he ever complained “above [his] head” again.
Also, in July of 2018, Lahovski told Zipovsky that Lipsett had kept a file

regarding illegal conduct by Gilbert and Liebensperger, but Zipovsky said
that the file could not be located.
In August of 2018, Oldt told Zipovsky that Gilbert required RTPD to
only use Hope’s Towing. Gilbert also told Zipovsky to only use Hope’s

Towing.
When he was off duty in August 2018, Lahovski told Rush Township
Secretary and Treasurer that he believed Gilbert’s actions in requiring the
police to use Hope’s Towing were unlawful and that he would not get
involved with the towing of abandoned vehicles.

Subsequently, Lahovski complained about the alleged improper
conduct of Liebensperger and Gilbert to Schuylkill County Assistant District
Attorney Jennifer Foose. Foose allegedly said to Lahovski, “you’re not

surprised are you?”. In October of 2018, Lahovski again complained to
Foose about the improper conduct of Gilbert. Defendants were later made
aware of Lahovski’s complaints to Foose through the Rush Township
Secretary.

Consequently, on November 15, 2018, Gilbert instructed Zipovsky to
not schedule Lahovski and Oldt for any shifts as police officers starting in
December 2018. On November 26, 2018, Zipovsky then told Lahovski that

he was instructed not to schedule him for any work. Lahovski told Foose that
he was removed from the police work schedule. The next day, Zipovsky
indicated that Gilbert ordered him to “cease [Lahovski’s and Oldt’s] hours”
and, Liebensperger consented and acquiesced in the directive. Zipovsky

followed the order and did not schedule either plaintiff for work with RTPD.
On November 27, 2018, Oldt asked Liebensperger why he was not
given any hours to work as a police officer but Liebensperger refused to give

him a reason for the decision. Lahovski also questioned Motroni about the
decision not to give he and Oldt any hours and Motroni told him she had no
part in the decision.

In January 2019, the Board of Supervisors voted to retain and
reappoint Township police officers but plaintiffs were not included on the list
of reappointed officers. Thus, plaintiffs allege they were effectively

terminated from RTPD.
On July 25, 2019, the plaintiffs filed their amended complaint. (Doc.
15). Their amended complaint contains two counts: (I) a retaliation claim
under the First Amendment against the individual defendants, Zipovsky,

Liebensperger and Gilbert, alleging that the adverse employment actions
taken against them were to retaliate against them for their protected speech
and association; and (II) a retaliation claim under the First Amendment

against Rush Township alleging that their rights were violated pursuant to
the polices, customs and practices of the Township and its police department
via its policymakers.
As relief, plaintiffs seek a declaratory judgment that the actions of

defendants have violated and continue to violate their constitutional rights,
an injunction to enjoin defendants from continuing their alleged retaliatory
practices, and compensatory damages.2 Plaintiffs also seek punitive
damages against the individual defendants.

On August 8, 2019, the defendants filed their instant motion to dismiss
for failure to state a claim, (Doc. 18), and filed a brief in support of their motion
on August 22, 2019, (Doc. 20). On September 6, 2019, the plaintiffs filed

their brief in opposition to the motion. (Doc. 21). The defendants then filed a
reply brief on September 20, 2019. (Doc. 22).
On January 24, 2020, the parties filed a stipulation to voluntarily
dismiss Chief Kenneth Zipovsky as a defendant in this case with prejudice.

2Insofar as plaintiffs seek declaratory judgment for alleged past constitutional
violations of the defendants, this request for relief will be dismissed.
Declaratory judgment is not meant to adjudicate alleged past unlawful
activity. There is no question that plaintiffs can request declaratory relief to
remedy alleged ongoing violations of their constitutional rights. See Blakeney
v. Marsico, 340 Fed.Appx. 778, 780 (3d Cir. 2009) (Third Circuit held that to
satisfy the standing requirement of Article III, a party seeking declaratory
relief must allege that there is a substantial likelihood that he will suffer harm
in the future) (citations omitted). However, plaintiffs are not entitled to
declaratory relief that defendants violated their rights in the past as they also
allege. Id. (citing Brown v. Fauver, 819 F.2d 395, 399-400 (3d Cir. 1987)
(Third Circuit directed district court to dismiss plaintiff’s §1983 claim for
prospective relief where he “has done nothing more than allege past
exposure to unconstitutional state action”). Thus, plaintiffs’ request for
declaratory judgment regarding past constitutional violations by defendants
fails as a matter of law and will be dismissed with prejudice from their
amended complaint.
(footnote continued on next page)
(Doc. 25). The court approved of the stipulation and terminated Chief
Kenneth Zipovsky as a defendant in this case. (Doc. 26).

This Court has jurisdiction over this action pursuant to 28 U.S.C.
§§1331 and 1343. Venue is proper in this district pursuant to 28 U.S.C.
§1391.3

III. DISCUSSION
The defendants argue that the plaintiffs have failed to plead facts
sufficient to sustain claims of retaliation under the First Amendment. The

plaintiffs contend that the alleged retaliatory employment actions defendants
took against them were due to their complaints about defendants’ improper
conduct and violated their rights to free speech and freedom of association.

Count I, First Amendment Retaliation Claim against Individual
Defendants
In Count I, plaintiffs assert a First Amendment retaliation claim based
on free speech under 42 U.S.C. §1983 against Zipovsky, Leibensperger and
Gilbert. Plaintiffs sue these defendants in both their individual capacity and
their official capacity. As stated, Zipovsky has been dismissed as a

defendant in this case.

3Since the parties state the correct legal standard of review for a Rule
12(b)(6) motion to dismiss in their briefs, the court does not repeat it herein.
To state a claim under §1983, a plaintiff must meet two threshold
requirements. He must allege:1) that the alleged misconduct was committed
by a person acting under color of state law; and 2) that as a result, he was
deprived of rights, privileges, or immunities secured by the Constitution or

laws of the United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v.
Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels
v.Williams,474 U.S. 327, 330-331 (1986).“A defendant in a civil rights action
must have personal involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v.
Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (citing Rode). “Personal
involvement can be shown through allegations of personal direction or of

actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.
Initially, to the extent that plaintiffs have sued Liebensperger and
Gilbert both in their individual and official capacities, the court finds that the
claims against these two defendants in their official capacity should be
dismissed since they are both being sued as officials of Rush Township and
the claims against them in their official capacity are redundant of plaintiffs’
claims against the Township.4

4The court also notes that plaintiffs cannot seek punitive damages against
the individual defendants in their official capacity. See Burke v. Twp. of
Cheltenham, 742 F.Supp.2d 660, 671 (E.D.Pa. 2010) (citing City of Newport
v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981)).
Thus, plaintiff’s claims against Liebensperger and Gilbert in their
official capacity under §1983 cannot proceed “because these claims are
viewed as claims against the [Township].” Credico v. West Goshen Police,
2013 WL 6077168, *3 (E.D.Pa. Nov.18,2013) (citing Kentucky v. Graham,

473 U.S. 159, 165-166 (1985) (“[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity .... It is not a suit
against the official personally, for the real party in interest is the entity.”).
As such, plaintiffs’ First Amendment free speech claim in Count I
under §1983 against Liebensperger and Gilbert in their official capacity will
be dismissed with prejudice. See Credico, 2013 WL 6077168, *5 (“a claim
against an official in his official capacity is considered a claim against the
entity, i.e., [the Township].”); Dondero v. Lower Milford Township, ---

F.Supp.3d ----, 2019 WL 7046915, *3 (E.D.Pa. 2019) (court held that claims
under §1983 against the individual Township defendants in their official
capacity were redundant of the claims against the Township itself and
subject to dismissal).
In Count I against Liebensperger and Gilbert, plaintiffs allege that the
adverse actions these defendants took were to retaliate against them for their
protected speech and association. They allege violations of both their First
Amendment free speech and association rights. Additionally, in Count II of

their amended complaint, plaintiffs allege violations of both their First
Amendment free speech and association rights. However, they only explicitly
plead and state allegations regarding their free speech retaliation claims.
Plaintiffs do not allege any protected activity with respect to any free
association claim. No doubt that a First Amendment free speech retaliation
claim is separate from a freedom of association retaliation claim. See Falco
v. Zimmer, 767 Fed.Appx. 288 (3d Cir. 2019).

As such, the court will dismiss without prejudice plaintiffs’ First
Amendment free association retaliation claims in Counts I and II for failure to
state cognizable claims.
The court now considers plaintiffs’ First Amendment free speech
claim under §1983 against Liebensperger and Gilbert in their individual
capacity.
In order to establish a First Amendment retaliation claim, a public
employee, such as our plaintiffs, must show: “(1) that his or her [activity] is

protected by the First Amendment; and (2) that the [activity] was a substantial
or motivating factor of the employer’s retaliatory action(s). Flora v. County of
Luzerne, 776F.3d 169, 174 (3d Cir. 2015) (citing Gorum v. Sessoms, 561
F.3d 179, 184 (3d Cir. 2009)). If plaintiffs prove both elements, the burden
shifts to the employer to prove that “the same action would have been taken
even if the [First Amendment activity, including speech] had not occurred.”
Falco v. Zimmer, 767 Fed.Appx. 288, 299 (3d Cir. 2019) (citations omitted).
See also Flora, 776 F.3d at 174.

“The first factor is a question of law; the second factor is a question of
fact.” Gorum, 561 F.3d at 184 (quoting Hill v. Borough of Kutztown, 455 F.3d
225, 241 (3d Cir. 2006)).
“The [Supreme] Court has made clear that public employees do not
surrender all their First Amendment rights by reason of their employment.

Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). If public employees speak in

the course of their employment, “the employees are not speaking as citizens
for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Id. at 421. However, if an
employee speaks as a citizen on a matter of public concern, “[t]he question

becomes whether the relevant government entity had an adequate
justification for treating the employee differently from any other member of
the general public.” Id. at 418.

“[T]he question of whether a particular incident of speech is made
within a particular plaintiff’s job duties is a mixed question of fact and law.”
Foraker, 501 F.3d at 240. The majority approach has interpreted this
language to mean that “the ultimate question of whether speech is made

pursuant to a public employee’s official duties is a question for the Court to
decide, whereas the question of whether certain factual circumstances exist
is a question amenable to resolution by a jury.” Baranowski v. Waters, 2008

WL 4000406, at *19 (W.D.Pa. Aug. 25, 2008) (citations omitted).
The inquiry required under Garcetti to determine whether an individual
is acting pursuant to his official duties is a “practical one” that does not turn

on a given employee’s formal job description. Garcetti, 547 U.S. at 424-25.
Expression does not have to fall within a public employee’s job description
or response to an employer’s inquiry in order to constitute speech made

pursuant to the speaker’s official duties. Weintraub v. Board of Education,
593 F.3d 196, 203 (2d Cir. 2010). Factors relevant to the analysis include
the employee’s duties, the impetus for his or her speech, the setting and
subject matter of that speech, and the identities of the individuals to whom

that speech is addressed. See Brown v. Tucci, 2013 WL 2190145 (W.D. Pa.
May 20, 2013) (citing Weisbarth v. Geauga Park District, 499 F.3d 538, 546
(6th Cir. 2007)). Consideration may also be given to “whether the speech

was made inside or outside of the work place and whether it concerned the
subject matter of the speaker’s employment.” Id. (citing Handy-Clay v. City
of Memphis, 695 F.3d 531, 540-41 (6th Cir. 2012)).
Defendants argue that they are entitled to dismissal of plaintiffs’ First

Amendment retaliation claim in Count I because they did not speak out on
any matters of public concern. They state that reports by police officers of
suspected unlawful activity is not protected speech since they are acting

pursuant to their job duties.
Plaintiffs contend that they exercised their First Amendment rights by
complaining of on-going improper and unlawful conduct by the two Township

Supervisors and that they engaged in protected speech.
The court will now address the specific requirements to determine
whether plaintiffs’ speech was a matter of public concern. “[W]hen public

employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer
discipline.” Garcetti, 547 U.S.at 421. A public employee’s speech is only

protected when “(1) in making it, the employee spoke as a citizen, (2) the
statement involved a matter of public concern, and (3) the government
employer did not have ‘an adequate justification for treating the employee

differently from any other member of the general public’ as a result of the
statement he [or she] made.” Flora, 776 F.3d at 175 (quoting Garcetti, 547
U.S. at 418).
The defendants mainly challenge the first two prongs of this three-part

inquiry regarding plaintiffs’ First Amendment free speech claims against
them in Count I.
Whether a public employee is speaking as a citizen turns upon the

question of “whether the speech at issue is itself ordinarily within the scope
of an employee’s duties.” Lane v. Franks, 134 S.Ct. 2369, 2379 (2014). The
Supreme Court and the Third Circuit have clarified that the test should not

be whether the speech “concerns” or was “related to” those duties. Id. at
2379; Flora, 776 F.3d at 178–79. The inquiry is a mixed question of law and
fact; “the scope and content of [the public employees] . . . job responsibilities

is a question of fact, but the ultimate constitutional significance of those facts
is a question of law.” Flora, 776 F.3d at 175. There is no “comprehensive
framework” for defining the scope of an employee’s duties. Garcetti, 547 U.S.
at 424.

The proper inquiry is a practical one. Formal job descriptions
often bear little resemblance to the duties an employee actually
is expected to perform, and the listing of a given task in an
employee’s written job description is neither necessary nor
sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment
purposes.
Id. at 424–25. In Lane v. Franks, 134 S.Ct. at 2380, the Supreme Court found
that grand jury testimony given by a supervisor about a subordinate
employee who was indicted for mail fraud and theft of receiving federal funds
was citizen speech. The employee’s testimony included statements that the
subordinate employee performed “virtually no services,” “generated virtually
no work product,” and “rarely even appeared for work.” Id. at 2375. The
Supreme Court determined that this testimony was protected even though
the information underlying the testimony was gathered due to the speaker’s
role as supervisor. Id. at 2375, 2380. The Supreme Court focused on the

manner of the speech as sworn testimony and found that such testimony fell
outside the ordinary responsibilities of the supervisor. Id. at 2379. The
Supreme Court also “recognized that speech by public employees on subject

matter related to their employment holds special value precisely because
those employees gain knowledge of matters of public concern through their
employment.” Id. at 2379.
The fact that plaintiffs became aware of the alleged misconduct issues

involving the defendants by virtue of their position as police officers does not
automatically mean that their speech is unprotected. See Flora, 776 F.3d at
177–78. The Lane case explains that the proper inquiry in distinguishing

between unprotected employee speech and protected citizen speech is
“whether the speech at issue is itself ordinarily within the scope of [the]
employee’s duties.” 134S.Ct. at 2379. Thus, it is no longer the appropriate
inquiry as to whether the issues raised by plaintiffs relate to or concern their

job duties. Id. at 2379; Flora, 776 F.3d at 178–79. As such, plaintiffs’ speech,
particularly their speech about alleged misconduct in the workplace, may
have sought “to advance a political or social point of view beyond the

employment context”, Guarnieri, 131 S.Ct. at 2501, making them matters of
public concern. See Snyder v. Phelps, 562 U.S. 443, 453 (2011). Further,
plaintiffs have alleged that they made more than one complaint about

misconduct in the workplace. Although, “speech that relates solely to
mundane employment grievances does not implicate a matter of public
concern,” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir.

2015), “governmental inefficiency and misconduct is a matter of considerable
significance.” Garcetti, 547 U.S. at 425.
The court “must conduct ‘a particularized examination of each activity
for which the protection of the First Amendment is claimed’ to determine

whether it involves a matter of public concern.” Falco, 767 Fed.Appx. at 302
(citation omitted).
At the outset, defendants point out that Rush Township is a Second-

Class Township and thus the Board of Supervisors is responsible for the
management and supervision of the police department. They cite to 53 P.S.
§66902 and Santiago v. Warminster Twp., 629 F.3d 121, 135 n. 11 (3d Cir.
2010). In Santiago, id., the Third Circuit noted that “as a matter of

Pennsylvania state law, a township Police Chief is not a final policymaker.”
(citing 53 Pa. Stat. Ann. §66902 (“vesting authority over the ‘organization
and supervision’ of township police officers with the township board of

supervisors”)). Thus, under Pennsylvania law, municipal policymaking
authority with respect to RTPD lies with the Rush Township Board of
Supervisors. See id. Therefore, even though plaintiffs argue that

Liebensperger and Gilbert had no power to direct RTPD officers, were not
their direct supervisors and that they did not have a duty to report unlawful
activity to these defendants, these defendants still had authority over the

supervision of police officers. See id.
Defendants argue that Lahovski’s complaints to Foose, on two
occasions as detailed above, regarding their alleged unlawful conduct were
not protected speech. Initially, they state that plaintiffs fail to aver that they

were aware of Lahovski’s complaints to Foose, and allege only that “upon
information and belief” they became aware of them. They state that plaintiffs
should know whether or not Foose told them about Lahovski’s complaints.

As such, defendants maintain that Lahovski’s complaints to Foose about
misconduct in the Township cannot be the basis for a First Amendment claim
against them. See Ambrose v. Twp. of Robinson, 303 F.3d 488, 494 (3d Cir.
2002) (court held that temporal proximity alone cannot establish causation

with respect to a First Amendment retaliation claim without additional
evidence of the defendant’s knowledge of the protected activity); Cooper v.
Menges, 541 Fed. Appx. 228, 232 (3d Cir. 2013) (“The defendant must be

aware of the protected conduct in order to establish the requisite causal
connection.” (citations omitted). Further, to maintain a constitutional claim
against a defendant under §1983, plaintiff must show that each defendant

had personal involvement in the alleged violation of plaintiff’s rights. See
Rode, supra.
The court finds that the alleged personal involvement of Liebensperger

and Gilbert regarding plaintiffs’ retaliation claim based on Lahovski’s
complaints to Foose is sufficient since plaintiffs clearly allege that defendants
became aware of the complaints through the Township Secretary and that
they were aware of them when they took their alleged retaliatory actions

against them.
However, the courts finds that Lahovski’s complaints to Foose are not
protected speech under the First Amendment since they were made as part

of his official duties as a police officer. Defendants state that “[a]n officer has
a duty to report wrongdoing to the chief law enforcement officer of the
county.” (citing 16 P.S. §4402(a) (duties of district attorney)). Further, as
they point out, “Lahovski’s complaints concerning allegedly unlawful

interference in the Township’s towing policy by the Supervisors, the alleged
interference of Gilbert in the Rarick incident, and the alleged contents of the
missing Lipsett file, are related to, and in furtherance of, Lahovski’s duties as

a police officer to investigate and report criminal activity.” “In order to be
protected by the First Amendment, a plaintiff’s activity ordinarily must not
have been undertaken pursuant to his job responsibilities as a public

employee.” Falco, 767 Fed.Appx. at 300-01(citing Garcetti, 547 U.S. at 421–
22). It is within the scope of a police officer’s duties, i.e., what he “was
employed to do”, and within the course of his ordinary job responsibilities to

report alleged illegal activity to the County prosecutor. See id. at 305-06
(Third Circuit found that police chief’s reporting against other government
officials about their alleged improper interference in the police department to
county prosecutor was part of his ordinary job duties as the chief and not

done as a private citizen). The court finds that it is of no moment that
Lahovski alleges he was “off-duty” when he complained to Foose since it
was still within his job duties as a police officer to report improper conduct by

Township officials.
Thus, defendants’ motion to dismiss will be granted with respect to
their First Amendment free speech claim in Count I based on Lahovski’s
complaints to Foose since they were unprotected under the First

Amendment. See id. at 306.
Regarding the remaining allegations of plaintiffs with respect to their
free speech retaliation claim in Count I against Liebensperger and Gilbert,

the court must decide whether plaintiffs have sufficiently pled that they
engaged in First Amendment protected speech. “If, …, the public employee’s
speech is not part of his ordinary job duties [], then the employee is acting

as a private citizen and his speech hence may or may not be protected under
the First Amendment, depending on the second step of the analysis [i.e.,
whether or not the activity involved a matter of public concern or private

concern].” Id. at 302. Speech involves a matter of public concern when it
“involves a matter of political, social, or other concern to the community.” Id.
at 303.
The court now individually addresses the remaining alleged incidents

of protected speech raised by plaintiffs.
The first incident involved the alleged interference with the towing of a
disabled vehicle in 2017. Oldt alleges that while on duty he ordered Zeigler’s

Towing company to tow a disabled vehicle and that under RTPD policy it was
within his discretion to choose the towing company. However, he states that
Hope’s Towing also arrived at the scene and towed the vehicle since Gilbert
called Hope’s Towing due to his personal friendship with its owner even

though it cost the Township more money. Gilbert then called Oldt and told
him to only use Hope’s Towing and stated that he was “in charge” and “hires
and fires” who he wants.
Oldt “must first allege that he engaged in the activity as a private
citizen, not as a public employee.” Id. at 305. Responding to a disabled

vehicle in the Township is within the ordinary job duties of Oldt’s former
position as a police officer with RTPD. Thus, Oldt fails to overcome the first
step of the analysis, as he engaged in the activity as a public employee as

opposed to a private citizen. See id.
Second Lahovski alleges that he was approached by Liebensperger
and he demanded that Lahovski tow a vehicle. However, Lahovski avers that
he refused since the towing at issue would have violated Pennsylvania law

regarding the removal of abandoned vehicles. In drawing reasonable
inferences in plaintiffs’ favor, it is clear that Lahovski did not engage in the
alleged activity as a private citizen. Rather, he was acting as a public

employee in his capacity as a police officer and within his ordinary job duties
regarding how to lawfully handle an abandoned vehicle.
Thus, this second alleged incident fails to qualify as a protected First
Amendment activity. See id.

Third, Lahovski responded to an accident scene in July 2017 where a
vehicle driven by Rarick’s son crashed into a telephone pole. Rarick was a
friend of Gilbert’s. During the investigation, Rarick’s son made inconsistent

statements to Lahovski which caused him doubt and he decided to seize the
vehicle so that a search warrant could be obtained to inspect it. Gilbert then
informed Lahovski that Rarick was his friend and ordered Lahovski to release

the vehicle and leave the scene. Lahovski refused stating that it was within
his lawful powers as a police officer to seize a vehicle and obtain a search
warrant, and Gilbert berated Lahovski and again demanded the release of

the vehicle and that Lahovski leave the scene.
Lahovski’s conduct in reporting to an accident scene and conducting
an investigation was within his ordinary job duties as a police officer. Since
Lahovski was acting within his ordinary job duties when he objected to and

complained about Gilbert’s directives on how to procced with the accident
involving his friend’s son, this does not constitute protected speech activity.
Additionally, if Lahovski had probable cause to believe that Gilbert was

obstructing his investigation into the Rarick accident and that a violation of
the law had occurred, he could have charged Gilbert with an offense as part
of his duties as a police officer.
Thus, the court finds that all of plaintiffs’ complaints regarding the

towing orders of defendants forcing RTPD police officers to only use Hope’s
Towing, and regarding how they handle the towing of abandoned vehicles
and accident scenes, while unseemly, not to be speech protected under the

First Amendment since these incidents were within the ordinary job duties of
their position as police officers with RTPD. See Lane, 134S.Ct. at 2379)
(Court explained that the proper inquiry in distinguishing between

unprotected employee speech and protected citizen speech is “whether the
speech at issue is itself ordinarily within the scope of [the] employee’s
duties.”).

The court also finds that the complaint by Oldt about another Township
part-time officer using his Township issued taser when he worked as an
officer for a different town does not constitute protected speech since he
spoke out against using equipment of RTPD when an officer was working for

another town and this conduct is within the scope of his ordinary job duties.
As a police officer, Oldt had an interest in maintaining and preventing misuse
of the equipment of RTPD.

Next, plaintiffs complained about the legality of the Township’s attempt
to decertify the local Fraternal Order of Police unit and Liebsenberger’s intent
not to hire any full time police officers unless the RTPD union was eliminated.
“Regarding union related speech, the Third Circuit stated, ‘[p]ersonal

grievances, complaints about conditions of employment, or expressions
about other matters of personal interest...are matters more immediately
concerned with the self-interest of the speaker as employee.’” Dondero,

2019 WL 7046915, * 5 (citing Palardy v. Twp. of Millburn, 906 F.3d 76, 83
(3d Cir. 2018)). However, at this stage of the instant case, it is not yet clear
if plaintiffs engaged in the speech against decertifying the police union to

assist them with their issues with the Township and, whether their speech
only amounted to personal grievances and complaints about the conditions
of their employment which concerned the self-interests of plaintiffs rather

than the RTPD bargaining unit. If so, this did not constitute protected speech,
and plaintiffs cannot establish the first element of their First Amendment
retaliation claim based on their union speech. Dondero, 2019 WL 7046915,
*4 (citing Falco, 767 Fed.Appx. at 306) (stating “the police chief of the City of

Hoboken brought a First Amendment retaliation claim based upon, inter alia,
his protest of layoffs in the police department. The police chief attempted to
assert this conduct was protected speech. The Third Circuit rejected this

argument because the police chief ‘does not allege that his opposition was
outside his ordinary job duties and we cannot reasonably infer that it was.’”).
On the other hand, if plaintiffs’ union speech was outside of their
ordinary job duties and made when acting as citizens, then it may be

protected by the First Amendment. See Corcoran v. Cauwels, 2019 WL
3774591, *6 (D.N.J. August 9, 2019) (“Although the Third Circuit has not
explicitly determined whether union activities are categorically protected or

unprotected, other Courts of Appeals have used similar reasoning to
establish a bright-line rule that union activities are protected from retaliation
under the First Amendment.”) (citations omitted). In Corcoran, id. at *7, the

court denied a motion to dismiss a police officer’s speech as a member and
leader of the union finding that the alleged facts created a reasonable
inference that he acted as a private citizen “not solely as a union member

reporting something up the chain of command”, and found that “[b]ecause
this union activity does not fall within the scope of his ‘ordinary job
responsibilities,’ Flora, 776 F.3d at 178, and since a citizen could also have
filed a similar [] request [regarding an accounting of funds in connection with

alleged wrongdoing], Plaintiff has sufficiently pled a protected activity.”
The Dondero case and its finding regarding union speech was decided
on a summary judgment motion. Here, defendants filed a motion to dismiss.

Discovery is not yet completed. As in the Corcoran case, id. at *8, the court
finds that at the pleading stage, “Plaintiff[s] ha[ve] plausibly pled that the[]
[union speech] addressed a matter of public concern, [and that] Plaintiff[s]
ha[ve] plausibly pled a violation of [their] First Amendment rights.”

Thus, the court finds that plaintiffs have sufficiently alleged that their
stated speech about decertifying the police union constituted activity
plaintiffs engaged in as private citizens instead of as a public employees

since supporting unions can be outside of the ordinary job duties of police
officers. See Corcoran, supra. The court also finds that plaintiffs have alleged
that this activity involved a matter of political, social, or other concern to the

community since supporting Township unions falls within these parameters.
See Falco, 767 Fed.Appx. at 305 (Third Circuit found that police chief’s
supporting of political candidates in municipal elections was outside of

ordinary duties of police officers and was an activity of public, not private,
concern.). As such, plaintiffs’ speech about decertifying the police union can
be said, at this point of the case, to have sought “to advance a political or
social point of view beyond the employment context”, Guarnieri, 131 S.Ct. at

2501, making it a matter of public concern. See Snyder v. Phelps, 562 U.S.
443, 453 (2011).
Since the court has found that plaintiffs have plausibly alleged that they

spoke as private citizens regarding the police union and their activity
addressed a matter of public concern, the court “must determine whether or
not [defendants] had an adequate justification for treating [plaintiffs]
differently from any other member of the general public.” Falco, 767

Fed.Appx. at 304 (citations omitted). In conducting this step of the analysis,
the court will utilize the balance test of Pickering v. Bd. of Educ., 391 U.S.
563, 566, 88 S.Ct. 1731 (1968), which requires that the court “balance . . .

the interests of the [employee], as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employees.”

Pickering, 391 U.S. at 568; Falco, 767 Fed.Appx. at 303-04. “In performing
this balancing, the manner, time, place, and entire expression of the context
of the expression are relevant.” Swartwelder v. McNeilly, 297 F.3d 228, 235

(3d Cir. 2002). Specifically, a plaintiff’s interest as a citizen as well as the
public’s interest in the speech must be balanced against the government’s
interest “as an employer, in promoting workplace efficiency and avoiding
work place disruption.” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 991

(3d Cir. 2014). “If the public employer’s interest is ‘significantly greater’ than
the public employee’s interest in contributing to public debate, then the public
employee’s speech is not protected.” Falco, 767 Fed.Appx. at 304 (citations

omitted). However, if “the government’s interest in promoting the efficiency
of its services is not significantly greater than the employee’s interest in
speaking about the matter and the value to the community of his being able
to do so, then the speech is protected under the First Amendment.” Id.

Plaintiffs contend that defendants did not have an adequate
justification to treat them differently than any other member of the general
public regarding their complaints about the decertification of the police union.

Participation in a union is a right of any citizen and restricting public
employees from joining in a union is in contravention of this right. See
Dondero, 2019 WL 7046915, *5 (stating “union association is protected

constitutional speech”) (citing Palardy, 906 F.3d at 84).
At this stage of the case, the court cannot determine whether
defendants’ interest in promoting the Township’s services efficiently

significantly outweighs plaintiffs’ interest in speaking out about the police
union and the community’s interest in having citizens join unions. Plaintiffs
will be permitted discovery on the issue of whether their interest and the
community’s interest in having citizens join unions and engage in union

activities outweighs the Township’s and defendants’ interest in promoting
their services’ efficiency. See Falco, supra. Further, discovery will be
permitted to determine whether plaintiffs’ speech about the police union

interfered with the daily duties of police officers or interfered with the
operation of RTPD.
Thus, the court finds that plaintiffs have sufficiently alleged that the
defendants did not have “‘an adequate justification for treating [them]

differently from any other member of the general public’ as a result of the
statement[s] [about the union decertification they] made.’” Flora, 776 F.3d at
175 (quoting Garcetti, 547 U.S. at 418).
Further, plaintiffs sufficiently allege that defendants’ retaliatory acts
taken against them by not giving them any shifts and not including them on

the work schedule, i.e., essentially terminating them, were motivated by their
stated complaints about the police union. They also allege that the
defendants’ retaliation occurred in sufficient temporal proximity to their

complaints.
As such, plaintiffs’ complaints about the decertification of the police
union may constitute protected First Amendment activity.
Therefore, defendants’ motion to dismiss will be denied with respect to

plaintiffs’ First Amendment free speech claim against Gilbert and
Liebensperger in Count I regarding their complaints about the decertification
of the police union. Also, as detailed above, plaintiffs’ allegations sufficiently

show the personal involvement of Gilbert and Liebensperger with the stated
claim so that it will proceed against these two defendants in their individual
capacity.
The next alleged incident occurred when Lahovski was off-duty and he

told Zipovsky that Lipsett had a file of illegal conduct involving Gilbert and
Liebensperger, and Zipovsky then informed Lahovski that the file was
missing. Lahovski later complained to Foose about the missing file and about

the subsequent alleged retaliation by defendants due to his complaints.
As discussed above, the court has found all of plaintiffs’ complaints to
Foose about alleged unlawful conduct and inappropriate behavior by

defendants to have been made within the scope of their ordinary job duties
and not to constitute protected speech under the First Amendment. See
Falco, 767 Fed.Appx. at 305-06 (Third Circuit affirmed district court’s

granting of motion to dismiss for failure to state a First Amendment free
speech claim regarding city police chief’s complaints to county prosecutor
about the improper interference with the operations of the police department
and its investigations by city officials.).

Since plaintiffs have already filed an amended complaint and since the
court finds futility based on the above discussion, it will dismiss all of
plaintiffs’ First Amendment free speech retaliation claims against Gilbert and

Liebensperger in Count I, except for their speech regarding the
decertification of the police union, with prejudice.
Count II, First Amendment Retaliation Claim against Rush
Township

Since plaintiffs name Rush Township as a defendant and allege that it
violated their constitutional rights, the standards annunciated in Monell v.
Department of Social Servs., 436 U.S. 658, 691, 98 S.Ct. 2018 (1978), apply
to their claim against it. See Moeck v. Pleasant Valley School Dist., 983
F.Supp.2d 516, 524 (M.D.Pa. 2013). A municipality is a “person” for
purposes of §1983. See Bd. of the County Comm'rs of Bryan County,
Oklahoma v. Brown, 520 U.S. 397, 403 (1997). But §1983 does not allow

municipal liability under a theory of respondeat superior. Id. A municipality is
not liable under §1983 merely for employing someone who violates a
person’s civil rights; rather, a municipality that does not directly violate a

person’s civil rights is liable only where it has in place a policy or custom that
led to the violation. Id. “Municipal liability only attaches when a plaintiff
demonstrates that an official policy or custom caused the asserted
constitutional deprivation.” Moeck v. Pleasant Valley School Dist., 983

F.Supp.2d at 524; Mann v. Palmerton Area School Dist., 33 F.Supp.3d 530,
540-41 (M.D.Pa. 2014) (“Municipal liability only attaches when a plaintiff
demonstrates that an official policy or custom caused the asserted

constitutional deprivation.”) (citation omitted). The plaintiff bears the burden
of identifying the policy or custom. Id. This rule ensures that a municipality
will only be liable where it is the “moving force” behind the plaintiff's injury.
Id.

A court may find that a municipal policy exists when a “‘decisionmaker
possess[ing] final authority to establish municipal policy with respect to the
action’ issues an official proclamation, policy, or edict.” Andrews v. City of

Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City
of Cincinnati, 475 U.S. 469, 481 (1986)). It is also possible for a court to find
the existence of a municipal policy in “the isolated decision of an executive

municipal policymaker.” City of St. Louis v. Praprotnik, 485 U.S. 112, 139
(1988). “A course of conduct is considered to be a ‘custom’ when, though
not authorized by law, ‘such practices of state officials [are] so permanent

and well settled’ as to virtually constitute law.” Andrews, 895 F.2d at 1480
(citations omitted). There must be a “direct causal link” between the
municipal policy or custom and the alleged constitutional violation. City of
Canton, Ohio v. Harris,489 U.S. 378, 385 (1989); Jiminez v. All American

Rathskeller, Inc., 503 F.3d 247, 249–50 (3d Cir. 2007) (citation omitted).
Additionally, “the conclusion that the action taken or directed by the
municipality or its authorized decisionmaker itself violates federal law will

also determine that the municipal action was the moving force behind the
injury of which the plaintiff complains.” Bd. of Cnty. Comm’rs of Bryan Cnty.
v. Brown, 520 U.S. 397, 405, 117 S.Ct. 1382 (1997).
“[F]or protected conduct to be a substantial or motivating factor in a

decision, the decisionmakers must be aware of the protected conduct.”
Dondero, 2019 WL 7046915, *3 (citing Ambrose, 303 F.3d at 493). “If
[plaintiffs] show[] that the Township was aware of the protected conduct, then
[they] may use the temporal proximity between that knowledge and the
adverse employment action to argue causation.” Id.

Under Monell, plaintiffs have sufficiently alleged that Gilbert and
Liebensperger had policymaking authority and were final policy makers, and
they have alleged what actions these defendants took that can be said to be

official policy. Plaintiffs have alleged that Rush Township had a policy or
custom which enabled the misconduct and unconstitutional behavior of the
two individual defendants to retaliate against them for exercising their First
Amendment free speech right regarding the decertification of the police

union. As such, plaintiffs have also alleged that Rush Township had an
official policy in violation of their First Amendment rights and that the policy
was the cause of their injuries.

However, since the court has found that plaintiffs’ remaining
allegations regarding their First Amendment retaliation claim against Gilbert
and Liebensperger were not protected speech, these other allegations
cannot be the basis of plaintiffs’ claim under Monell against Rush Township

in Count II. See Dondero, 2019 WL 7046915, *10 (“Absent an underlying
constitutional violation by an agent of the municipality, however, the
municipality itself may not be held liable under §1983.” (citation omitted). As

such, all of plaintiffs’ First Amendment free speech retaliation claims against
Rush Township in Count II, except for their speech regarding the
decertification of the police union, will be dismissed with prejudice.

IV. CONCLUSION
For the reasons discussed herein, the defendants’ motion to dismiss is

GRANTED IN PART and DENIED IN PART. Plaintiffs’ claims against Gilbert
and Liebensperger in their official capacity in Count I are dismissed with
prejudice. Plaintiffs’ claim for declaratory judgment against defendants for
alleged past violations of their constitutional rights are dismissed with

prejudice. Plaintiffs’ First Amendment free association retaliation claims
against Gilbert and Liebensperger in Count I are dismissed without
prejudice. Defendants’ motion is granted with respect to all of plaintiffs’ First

Amendment free speech retaliation claims against Gilbert and Liebensperger
in Count I, except for their speech regarding the decertification of the police
union. Plaintiffs’ First Amendment claim regarding their speech about the
decertification of the police union against Gilbert and Liebensperger in Count

I in their individual capacity shall proceed.
Plaintiffs’ First Amendment free association retaliation claims against
Rush Township in Count II are dismissed without prejudice. Defendants’

motion is granted with respect to all of plaintiffs’ First Amendment free
speech retaliation claims against Rush Township in Count II, except for their
speech regarding the decertification of the police union, which claim shall

proceed. An appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

DATE: February 18, 2020
18-2201-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408354. Public record. Not legal advice.