# Knowles v. Exeter Township

> District Court, M.D. Pennsylvania · March 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10414415

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414415

## How later opinions describe it (automated extraction)

- 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”

## Opinion text

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),
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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).
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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

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“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.

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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

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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

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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

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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,

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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

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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

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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

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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).

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“[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:

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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.
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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.

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414415. Public record. Not legal advice.