Knowles v. Exeter Township

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM KNOWLES, CHARLES

NEFF, and SCOTT VIADOCK, :

Plaintiffs : CIVIL ACTION NO. 3:19-2115

V. : (JUDGE MANNION)

EXETER TOWNSHIP, :

SUPERVISOR DANIEL FETCH, in

his individual capacity, and :

SUPERVISOR DONALD

KRESESKI in his individual :

capacity,

Defendants

MEMORANDUM

This First Amendment retaliation case stems from talk of traffic tickets.

An Exeter Township supervisor told the chief of police that one of his officers

should be out on the highway citing tractor trailers. The chief, Plaintiff William

Knowles, objected to what he considered an illegal order and reported the

interaction to other Township officials. Plaintiffs allege that Defendants then

mounted a “campaign of harassment” against them in retaliation for having

reported the supervisor. They bring two counts through 42 U.S.C. §1983,

claiming that Defendants violated their First Amendment rights. Defendants

have moved for summary judgment.

I. BACKGROUND'

The facts central to this action are disputed. At this stage, the court

must view them “in the light most favorable to the non-moving party,” here,

Plaintiffs, and “must make all reasonable inferences in that party’s favor.”

Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005). Of

course, Plaintiffs may not “solely rest upon [their] allegations in the pleadings,

but rather must set forth specific facts such that a reasonable jury could find”

in their favor. /d. So where certain facts here are disputed, and Plaintiffs have

set out specific evidence of their version, the court will accept that version as

true and determine whether Defendants are nevertheless entitled to

judgment as a matter of law.

At relevant times, Plaintiff Knowles was the chief of police of Exeter

Township, (Doc. 45-1 at 8), and Plaintiffs Neff and Viadock were police

officers for the Township. (Doc. 45-2 at 5-6; Doc. 45-3 at 8). Defendant Fetch

is a member of the Township’s board of supervisors. (Doc. 45-4 at 4).

' As required by Local Rule 56.1, Defendants filed a “statement of

undisputed material fact,” (Doc. 43-2), and Plaintiffs filed an answer to this

statement. (Doc. 45). Defendants’ statement mostly reports what Plaintiffs

“allege,” and thereby reveals little in the way of undisputed facts. The court

derives facts from the evidence submitted by the parties, including

depositions of Knowles, (Doc. 45-1), Neff, (Doc. 45-2), Viadock, (Doc. 45-3),

and Fetch (Doc. 45-4),

-2-

Defendant Donald Kreseski is employed by the Luzerne County Sheriff's

Department and is also a Township supervisor. (Doc. 49-3 at 4).

According to Knowles, in the early morning of February 22, 2019 Fetch

came into the police station and asked him why Neff “was not on the road at

5:30 in the morning writing traffic citations on tractor trailers because that is

the time of the morning when they come barreling up [Route] 92,” and

“wanted to know why he was in the station and not on the road.” (Doc. 45-1

at 12). Fetch “proceeded to say that [Neff] was probably sleeping ... and that

this is why the township should have never hired guys in their 40s and 50s

who were overweight, lazy.” (Id.). He said that “[h]e should’ve hired younger,

more aggressive kids out of the academy,” and told Knowles that Neff

“should have been out there writing traffic citations on tractor trailers.” (Id.).?

Knowles responded that he could not tell his officers to write tickets, he could

only tell them to monitor traffic. (Id.). He told Fetch that “he could not order

[Knowles] to write more tickets” or order him to “order [his] officers to write

more tickets.” (Id.). Knowles told Neff that Fetch was unhappy with him being

in the station. (Id.). Fetch has testified that he never complained about where

* Knowles has testified that statements like these were “a constant

thing .... Get to the academy and get these young kids .... He wanted

revenue. He wanted ... guys to go out there and be aggressive and write

tickets and ... that was requested a lot.” (Doc. 45-1 at 20).

-3-

Neff was and never complained about hiring older officers. (Doc. 45-4 at 12,

14). He further testified that he has “never told Mr. Knowles to write more

tickets.” (Id. at 15).

Soon after the conversation about writing traffic citations, Knowles

says that he contacted Chairman of the Board of Supervisors Robert Kile

about the interaction. (Doc. 45-1 at 14). He also contacted the Township

solicitor Gene Molino. (Id.). On March 14, 2019, the Township’s Board of

Supervisors issued a directive to the police department that forbid “on the

spot or impromptu disciplinary actions ... by a member of the board of

supervisors.” (Doc. 49-1). It explained that “[t]his directive is not a new policy

but an enforcement of an existing policy.” (Id.).

The Complaint alleges that “on or about March 1, 2019,” Fetch

“threatened to transfer” Knowles. (Doc. 20 18). According to Knowles, on

that day, Fetch and Defendant Kreseski had criticized him for helping the

street department by using his patrol car to slow traffic while work was done,

which a supervisor had ordered. (Doc. 45-1 at 16). Fetch came into the

station and asked Knowles about his vest size, and said “I’m trying to fit you

for a vest and flag.” (Id.). He then said: “If you don’t want to work for the

police department and you want to work for the street department, I’m going

to transfer you to the street department.” (Id.). Knowles interpreted this as a

-4-

“serious” threat of transfer. (Id.). He testified that this encounter “was just

another thing that [Fetch] did to me, and the way he treated me ... | walked

on eggshells for two years of my career.” (Id.).

Knowles testified about another instance in which he was walking

across the parking lot near the Township building, and Fetch said “get the

fuck out of here, you’re not wanted here. Go hang out in the street

department with your boys.” (Id. at 17). He further testified that he was

“belittled and harassed and pressured on a constant” basis by Fetch, to the

point where he “couldn't do the job.” (Doc 49 at 16).

Knowles initially filed this suit in March 2019. (Doc. 1). He has testified

that following the filing of the lawsuit, Defendant Kreseski “discontinued ...

verbal conversation” with him, and thereafter corresponded only through

text. (Doc. 45-1 at 25-26).

ll. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.

_5-

v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable

jury could find for the non-moving party, and is material if it will affect the

outcome of the trial under governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen,

903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage,

“the judge’s function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d

241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make

credibility determinations). Rather, the court must consider all evidence and

inferences drawn therefrom in the light most favorable to the non-moving

party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving

party can discharge that burden by showing that “on all the essential

elements of its case on which it bears the burden of proof at trial, no

reasonable jury could find for the non-moving party.” In re Bressman, 327

F.3d 229, 238 (3d Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving

-6-

party meets this initial burden, the non-moving party “must do more than

simply show that there is some metaphysical doubt as to material facts,” but

must show sufficient evidence to support a jury verdict in its favor. Boyle v.

County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However,

if the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to [the non-movant’s] case, and on which

[the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the

entry of summary judgment because such a failure “necessarily renders all

other facts immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v.

Hoffman-La Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

lll. DISCUSSION

The Second Amended Complaint brings two counts. In Count |,

Plaintiffs claims a violation of their First Amendment rights, alleging that

“Defendants have intimidated Plaintiffs and have affected the way they

perform their duties because Plaintiffs reported official misconduct and

corruption,” and that “Defendants’ conduct, actions, and campaign of

harassment have caused Plaintiffs mental anxiety, stress, and

sleeplessness.” (Doc. 20 at 3, 132-33). In Count Il, Plaintiff Knowles claims

-7-

that Kreseski and the Township retaliated against him for filing this lawsuit.

(Doc. 20 at 8).

The parties construe Count | as raising a claim of First Amendment

retaliation. (Doc. 44 at 12-13; Doc. 49 at 23). A First Amendment retaliation

claim requires plaintiffs to show that “(1) they engaged in a protected activity,

(2) that defendants’ retaliatory action was sufficient to deter a person of

ordinary firmness from exercising his or her rights, and (3) that there was a

causal connection between the protected activity and the retaliatory action.”

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

Defendants advance several arguments in support of summary

judgment on Count |. As they interpret the Second Amended Complaint, it

alleges that the retaliatory action was the request to write more tickets.

Accordingly, Defendants argue that Plaintiffs’ claim fails because the

allegedly retaliatory conduct preceded the allegedly protected speech. (Doc.

44 at 17-18, 22). They also contend that Fetch’s comments are insufficient,

at any rate, to constitute retaliation. (Id. at 18-21). They further argue that

the Board of Supervisors cannot be held liable for Fetch’s allegedly

retaliatory actions, because those actions were never endorsed by a majority

of the Board. (Id. at 23-28). Finally, they assert that no municipal liability can

-8-

lie here because Plaintiff has failed to establish a Township policy or custom.

(Id. at 28-29).

Plaintiffs argue that they have established retaliation in the form of

Defendant Fetch’s threats of transfer, harassment, criticisms, refusal to

provide mental health assistance, and general interference with their ability

to do their jobs. (Doc. 49 at 27-34). They also contend that they have shown

a causal relationship between the retaliatory conduct and protected speech.

(Id at 34-43). As to municipal liability, Plaintiffs assert that the Township

should be held liable because it “acquiesced in Defendants Fetch’s

misconduct and continued the campaign of harassment that had the force of

a custom.” (Id. at 43-45).

In reply, Defendants argue that Plaintiffs have established no causal

link between protected activity and adverse conduct, and that the alleged

adverse conduct does not rise to the level of actionable retaliation. (Doc. 51

at 5-7). They reiterate their argument regarding Plaintiffs’ failure to state a

claim for municipal liability. (Id. at 9-10).

A. Count | — Protected Speech

“When a public employee sues a government ernployer under the First

Amendment’s Speech Clause, the employee must show that he or she spoke

as a citizen on a matter of public concern.” Borough of Duryea v. Guarnieri,

-9-

564 U.S. 379, 386 (2011) (citing Connick v. Myers, 461 U.S. 138, 147

(1983)).

The Complaint indicates that Plaintiffs consider their reporting of

Fetch’s conduct protected speech. (Doc. 20 7/17, 27-30). Plaintiff Knowles

testified that he relayed to Chairman Kile his conversation with Fetch soon

after it occurred. (Doc. 45-1 at 14). He relayed it to Solicitor Molino as well.

(Id. at 15). During the conversation with Molino, he also brought up

“derogatory statements” and “continuous harassment” on the part of Fetch.

(Id.).

Defendants do not concede that Plaintiffs engaged in protected

speech, (Doc. 44 at 17 (referring to Plaintiffs’ “alleged protected speech’), 18

(“Assuming for the moment that the speech at issue is protected ....”)), but

also do not make argument on this element.

Reporting a crime or testifying about public corruption may constitute

protected speech by a public employee. See Javitz v. County of Luzerne,

940 F.3d 858, 867 (3d Cir. 2019); Lane v. Franks, 573 U.S. 228, 240-41

(2014). And “attempts to bring to light actual or potential wrongdoing or

breach of public trust on the part of government officials,” Ba/dassare v. State

of New Jersey, 240 F.3d 188, 195 (3d Cir. 2001), or “speech disclosing public

Officials’ misfeasance,” Swingeford v. Synder Cnty., 15 F.3d 1258, 1271 (3d

-10-

Cir. 1994), may aiso be protected. Plaintiffs describe their speech in these

terms, (Doc. 20 930 (‘Plaintiffs free speech exposing corruption and

municipal misconduct are a matter of public concern.”)). Without the benefit

of argument, though, and because the court concludes that summary

judgment is warranted on other grounds, the court does not decide whether

Plaintiffs’ speech here is protected.

B. Count | — Retaliatory Action

A “cognizable First Amendment claim” requires that “the alleged

retaliatory conduct was sufficient to deter a person of ordinary firmness from

exercising his First Amendment rights.” McKee v. Hart, 436 F.3d 165, 170

(3d Cir. 2006). “The effect of the alleged conduct on the employee's freedom

of speech need not be great in order to be actionable, but it must be more

than de minimis.” Id. (internal quotations omitted).

Although a “campaign of retaliatory harassment” may suffice, Suppan

v. Dadonna, 203 F.3d 228, 234-35 (3d Cir. 2000), “not every critical

comment—or series of comments—made by an employer to ain employee”

amounts to a constitutional violation. McKee, 436 F.3d at 170. Indeed,

“courts have declined to find that an employer’s actions have adversely

affected an employee’s exercise of his First Amendment rights where the

employer’s alleged retaliatory acts were criticism, false accusations, or

-11-

verbal reprimands.” Brennan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003)

(quoting Suarez Corp. Industries v. McGraw, 202 F.3d 676, 686 (4th Cir.

2000)).

Defendants contend that the alleged retaliation was de minimis, and

that, in any event, it cannot be attributed to the Board of Supervisors as a

whole. (Doc. 51 at 5-9). They rely heavily on Watson v. Borough of

Susquehanna, No. 3:09-CV-294, 2012 WL 5249551, at *3-5 (M.D. Pa.

October 23, 2012). The plaintiff there moved for judgment as a matter of law

on her First Amendment retaliation claim following a jury verdict against her.

Id. at *1. She alleged that the defendant, the Borough of Susquehanna, had

terminated her from her police officer position in retaliation for protesting a

disclosure of her private information. /d. The jury had determined that of the

six Borough Council members who voted to terminate her, only one was

aware of her protected speech, was substantially motivated by it, and would

not have made the same decision absent that speech. /d. at *3. The court

concluded that because that member “lacked the authority to terminate

anyone’s employment” himself, he could not have, “[a]cting alone,” “violated

[the] [p]laintiff's First Amendment rights.” /d. at *5.

The challenged action here is not one, like the termination at issue in

Watson, that legally required a majority vote of the Board. Instead, Plaintiffs

-12-

allege that Defendants Fetch and Kreseski retaliated through their individual

acts of harassment. While the individual council member’s retaliation in

Watson could not have by itself caused termination, the individual

Defendants here were capable of retaliating, as Plaintiffs allege, by other,

unofficial means. So Watson does not foreclose Plaintiffs’ claims against the

individual Defendants, though it does highlight an important aspect of

Plaintiffs’ claim for municipal liability (which is addressed supra Section

IIl.D}—they do not allege that the Township itself took an affirmative

retaliatory act.

We must consider whether the retaliatory actions allegedly taken by

the individual Defendants were sufficient, as a whole, to deter a person of

ordinary firmness from exercising his First Amendment rights. Plaintiffs

characterize Defendant Fetch’s conduct as a “sustained campaign of

retaliatory harassment.” (Doc. 49 at 29). And Plaintiff Knowles describes

“derogatory statements,” “continuous harassment,” being “harassed daily ...

in SO many ways,” “treated badly” or “like a piece of junk,” and being

“pelittled.” (Doc. 45-1 at 15, 30, 41). As far as specific acts, he recounts the

following comments made by Fetch:

“[YJou’ll know when you’re not doing a good job because

I'll be here at 7:00 in the morning looking for your badge and

keys.” (Doc. 45-1 at 30).

-13-

“[G]et the fuck out of here, you're not wanted here. Go hang

in the street department with your boys.” (Id. at 17).

“!’m trying to fit you for a vest and a flag. If you don’t want

to work for the police department and you want to work for the

street department, I’m going to transfer your down to the street

department.” (Id. at 16).

After township meetings, Fetch was “cornering us ...

asking us if we went to the academy, did we get applications from

these kids? They'll write everybody up.” Fetch “was on me

[Knowles] every chance he got. He made a comment, to myself

and Corporal Neff, that we were the only department in the

municipality that generates revenue, and we weren't doing our

job.” (Id. at 19).

Fetch explained that during highway construction work, a

certain area would be one lane, and said “| want a car here ...

and | want you guys writing tickets.” (Id. at 23).

Knowles further testified that following a tragic work-related incident, it

“[t]ook the Township four days to get me any help.” (Doc. 45-1).

Plaintiff Viadock testified that:

Fetch told him that “you guys are going to start issuing a lot

more tickets down by the bridge.” (Doc. 45-3 at 12).

Fetch would “complain[] that I’m not patrolling by his house

and his house only.” (Doc. 45-3 at 14).

At one point, Fetch “took it upon himself to take like a

malibu light, something light that, tape it to the banister, to the

railing outside of our office, and have it pointing in our doorway,”

which was “an officer safety issue” because “[y]ou can see

inside.” (Id. at 16).

After a meeting, Fetch came into their office to speak with

Knowles, and “didn’t even acknowledge the fact that [Viadock]

and [Neff] were in the office .... [hJe just walked past us ... like

we were dogs just standing there.” (Doc. 45-3 at 17).

Finally, Plaintiff Neff testified that:

-14-

Fetch made “statements that ... they should have never

hired a person of my age, you know. And how ... if they would

have hired younger, they will have got more out of the younger

person than an older person.” (Doc. 45-2 at 26).

Unfortunately for Plaintiffs’, the testimony demonstrates no more than

a series of immature criticisms and rudeness. Especially considered in light

of the undisputed fact that Defendant Fetch lacked individual authority to take

official action against Plaintiffs, these do not amount to conduct sufficient to

deter a person of ordinary firmness from exercising his First Amendment

rights.4 See, e.g., McKee, 436 F.3d at 171 (concluding that the defendant-

supervisors comments, which were “critical of [the plaintiff's] job

performance” and could be “construed as reprimands,” would not, “taken

together ... have deterred a person of ordinary firmness from exercising his

First Amendment rights”); Revell v. City of Jersey City, 394 Fed. App’x 903,

906 (3d Cir. 2010) (non-precedential) (“Revell’s allegations, which were

equivalent to a few criticisms, admonishmenrts, or verbal reprimands, do not

rise to the level of a campaign of retaliatory harassment.”). So Plaintiffs have

3 See Doc. 45-1 at 9; 53 Pa. Stat. Ann. §65603 (“An affirmative vote of

a majority of the entire board of supervisors at a public meeting is necessary

in order to transact any business.”).

* However, if true, the statements and activities of Defendant Fetch are

a profound embarrassment to the public that he serves. While the statements

hee may not rise to an actionable level, they are nonetheless repugnant,

indicative of unwarranted arrogance and significantly below the level of any

competent public official.

-15-

failed to show actionable retaliatory conduct, and Defendants are entitled to

summary judgment on Count I.

C. Count Il

Count Il is brought by Plaintiff Knowles against the Township and

Defendant Kreseski. (Doc. 20 at 8). Plaintiff claims that Defendants retaliated

against him for filing this lawsuit. (Id. 9/44).

The First Amendment's “Petition Clause protects the right of individuals

to appeal to courts.” Guanrieri, 564 U.S. 379, 387 (2011). So the filing of a

lawsuit, as a general matter, is constitutionally protected.

But Plaintiff does not identify an adequate basis on which to hold

Defendant Kreseski liable. He testified that following the institution of this

suit, Kreseski “discontinued ... verbal conversation” with him. (Doc. 45-1 at

25). Instead, Kreseski informed him that from then on, he preferred

communications through text. (Id.). This plainly does not constitute

actionable retaliation—it falls squarely within the category of de minimis

conduct which would not deter a person of ordinary firmness from exercising

his First Amendment rights. So Defendants are entitled to summary

judgment on Count Il’s claim against Defendant Kreseski.

-16-

D. Municipal Liability

Plaintiffs seek to hold the Township liable based on its alleged

“acquiescence” in Defendant Fetch’s conduct. (Doc. 49 at 43). But as

discussed above, the court concludes that Defendant Fetch did not violate

Plaintiffs’ constitutional rights. Because Plaintiffs have not established an

underlying constitutional violation, there can be no §1983 municipal liability.

Mulholland v. Gov't Cnty. of Berks, 706 F.3d 227, 238 n.15 (3d Cir. 2013).

Defendants are therefore entitled to summary judgment on Plaintiffs’ claims

against the Township as well.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment

will be granted. An appropriate order will follow.

6/ Matachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 1, 2024

19-2115-01

-17-