                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2008

Skrutski v. Marut
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2828




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                                                        NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                              Nos. 07-2828 and 07-2848


                              THOMAS C. SKRUTSKI

                                             v.

                 CAPTAIN JOSEPH MARUT; MICHAEL L. BRICE;
                   REBECCA S. WARNER; WANDA GILBERT

                                 Joseph Marut, Michael Brice,
                                 Rebecca Warner and Wanda Gilbert,

                                                  Appellants


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 03-cv-02280)
                          District Judge: Hon. Malcolm Muir


                                 Argued June 6, 2008

            BEFORE: AMBRO, CHAGARES and COWEN, Circuit Judges

                                (Filed: July 18, 2008)

John G. Knorr, III, Esq. (Argued)
Office of Attorney General of Pennsylvania
Department of Justice
Strawberry Square
Harrisburg, PA 17120

Counsel for Appellants
Donald A. Bailey, Esq.
Douglas R. Goldhaber, Esq. (Argued)
Bailey, Stretton & Ostrowski
4311 North 6 th Street
Harrisburg, PA 17110

Counsel for Appellee


                                           OPINION


COWEN, Circuit Judge.

        Plaintiff-Appellee Thomas Skrutski, a Corporal with the Pennsylvania State Police

(“PSP”), instituted this civil rights action against four other employees of the PSP,

Defendants-Appellants: Captain Joseph Marut; Lieutenant Michael Brice; Trooper

Rebecca Warner; and Lieutenant Wanda Gilbert.1 The jury found in favor of Skrutski on

all of the claims 2 and awarded him compensatory and punitive damages; the District

Court additionally awarded him attorney’s fees and costs. Defendants now appeal from

both the judgment and the fees award. Because we conclude that a number of Skrutski’s

claims are precluded as a matter of law, we will reverse in part, vacate in part, and

remand for a new trial.3




  1
      All ranks and titles are as of the time of the filing of the lawsuit in 2003.
  2
      Warner and Gilbert were found not liable for some of the claims in question.
  3
     Our resolution on the merits of the judgment renders it unnecessary to reach the issue
of the award of attorney’s fees and costs.

                                                2
I.         FACTUAL BACKGROUND AND PROCEDURAL HISTORY 4

           The gist of Skrutski’s claims is that as a result of his reports of instances of

inappropriate conduct by fellow PSP officers and of his filing of this lawsuit, Defendants

retaliated against him by subjecting him to a number of adverse employment actions. At

all times relevant to this case, Skrutski served as a patrol corporal, a supervisory position.

           On two separate occasions, Defendant Brice, who then worked at a different

station, called and asked Skrutski to falsify reports for two incidents that occurred in

Skrutski’s jurisdiction. Both incidents involved troopers under Brice’s command. In one,

Trooper Holly-Storms hit a deer while operating her police vehicle, but Brice wanted

Skrutski to state in the report for the accident that there were empty beer bottles found in

her vehicle (which there were not) and that there was no deer hair on the hood of the car

(which there was). In the other, Trooper Sanfilippo committed a crime while off-duty and

then led fellow PSP officers on a high-speed car chase. There, Brice approached

Skrutski, who was assigned to the investigation of this incident, and asked him to “make

this whole thing go away.” App. at 910. Each time, Skrutski refused to get involved, and

reported the incidents to his station commander.

           Another time, Skrutski was in the police station parking lot when he observed

Corporal Langan holding a wrench while kneeling next to a trooper’s vehicle. Later,

Skrutski overheard that trooper complaining someone had loosened the lug nuts on his



     4
         All facts are recited in the light most favorable to Skrutski, the verdict winner.

                                                   3
car; Skrutski thus reported his observations to the station commander. Langan was

Brice’s good friend.

       The final incidents pertained to Defendant Warner, who was romantically involved

with Defendant Marut. Once, Skrutski, as the supervising officer, assigned a matter to

Warner for her investigation. She was upset because she did not think the case was her

responsibility and did not pursue the investigation. Skrutski reported this to Warner’s

direct supervisor. Warner also on occasion failed to discharge certain of her

administrative record-keeping duties; Skrutski issued her written reprimands and reported

her to the station commander. Warner filed a formal harassment complaint against

Skrutski, which led to an internal investigation of his behavior.

       As a result of these various reports, Brice (who became Skrutski’s commander at

one point) and Marut conspired to retaliate against Skrutski by transferring Skrutski to a

different post, assigning him less desirable work shifts, giving him fewer overtime hours,

and refusing to accommodate his scheduling requests. Plaintiff also claimed Warner’s

harassment complaint was frivolous, and that Gilbert (Marut’s friend), who conducted the

internal investigation against him, falsified aspects of her report in order to place Skrutski

in a bad light.

       Following discovery, Defendants moved for summary judgment. However, with

the exception of Skrutski’s access to courts claim, the District Court denied the motions,

concluding that triable issues of fact precluded judgment as a matter of law. Plaintiff thus



                                              4
proceeded to trial on his 42 U.S.C. § 1983 claims of First Amendment retaliation,

deprivations of substantive and procedural due process, and equal protection. Skrutski

prevailed after a two-week trial. Defendants then filed a post-verdict motion for Rule 50

(judgment as a matter of law) or Rule 59 (new trial) relief, which the District Court

denied. The District Court thus entered judgment for Skrutski, and pursuant to 42 U.S.C.

§ 1988, awarded him attorney’s fees and costs. Defendants timely appealed from both the

final judgment and the fees award.

II.    DISCUSSION

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. We

have appellate jurisdiction over the final judgment and the order awarding attorney’s fees

by virtue of 28 U.S.C. § 1291. We exercise plenary review over the denial of a motion

for judgment as a matter of law. Leheny v. City of Pittsburgh, 183 F.3d 220, 225 (3d Cir.

1999). Reversal is warranted “only if, viewing the evidence in the light most favorable to

the nonmovant and giving [him] the advantage of every fair and reasonable inference,” no

jury could have found liability. Fultz v. Dunn, 165 F.3d 215, 218 (3d Cir. 1998).

       A.     First Amendment Claims

       Skrutski bases his First Amendment claims on four sets of speech or actions: (1)

his reports of Brice’s alleged attempts to falsify investigations; (2) his report of Trooper

Langan’s possible vandalism of another officer’s vehicle; (3) his criticism and reprimand

of Warner for dereliction of duty; and (4) his filing of the instant civil rights action in



                                               5
December 2003. Defendants’ sole contention on appeal is that with the exception of the

filing of the lawsuit, none of the instances of speech relied upon by Skrutski constitute

constitutionally protected activity because they were all made pursuant to his official

duties.

          A public employee makes a protected statement for purposes of a First

Amendment retaliation claim “when (1) in making it, the employee spoke as a citizen, (2)

the statement involved a matter of public concern, and (3) the governmental 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.” Hill v. Borough of Kutztown,

455 F.3d 225, 241-42 (3d Cir. 2006) (internal quotations omitted). However, “when

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 v. Ceballos, 547 U.S. 410, 421

(2006). Whether a particular statement constitutes protected activity is a legal question.

Connick v. Myers, 461 U.S. 138, 148 n.7 (1983).

          Recently, we held that three Delaware State Police firearms instructors’ complaints

to supervisors of unsafe conditions at the firing range where they worked were made

pursuant to their official duties. Foraker v. Chaffinch, 501 F.3d 231, 241-42 (3d Cir.




                                               6
2007).5 Because plaintiffs regularly used and maintained the equipment at the range,

thereby “put[ing] any environmental concerns there within the scope of their routine

operations,” their internal complaints relating to these issues thus could not form the basis

of a First Amendment retaliation claim. Id. at 241-42 (“that [plaintiff] may have

exceeded the expectations of his formal job description as a firearms instructor does not

mean that they were not within the scope of his duties”).

       In this case, there can be no serious question that Skrutski’s criticism and

reprimands of Warner (and his subsequent reports of Warner’s alleged insubordination to

his supervisor) for not fulfilling her administrative and investigative responsibilities was

done as part of Skrutski’s official duties as a supervisor. Furthermore, as to his reports of

Brice’s requests and of the suspected vandalism, all of the underlying events occurred

when Skrutski was working as a patrol supervisor, when he was “directly responsible for

the actions of [the] troopers” assigned to him. App. at 884. Plaintiff was also involved in

the investigation of the Sanfilippo incident and was responsible for preparing a written

report on the matter. App. at 908 (Skrutski: “I was instructed by my superior to conduct a

fact finding mission ... I had to interview the local officers and ascertain the crime that

Mr. Sanfilippo was being pursued for and whether Mr. Sanfilippo would be charged by

them.”). In light of these circumstances, coupled with the undisputed fact that all of




  5
   We note the District Court did not have the benefit of this decision when it made its
summary judgment and post-trial determinations.

                                              7
Skrutski’s complaints about these incidents were only made within his direct chain-of-

command, Foraker compels our conclusion that none of these internal statements can

serve as the predicate for a viable First Amendment retaliation claim. Any determination

to the contrary would plainly be against the weight of legal authority. See, e.g., Vose v.

Kliment, 506 F.3d 565, 570 (7th Cir. 2007) (that narcotics unit supervisor “may have

gone above and beyond his routine duties by investigating and reporting suspected

misconduct in another police unit” to supervisors does not mean he spoke as a citizen);

Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007) (athletic director’s

memo to office manager and school principal complaining of mishandling of athletic

accounts was written in the course of his job); Haynes v. City of Circleville, 474 F.3d

357, 364 (6th Cir. 2007) (canine handler’s memo to police chief criticizing proposed

cutbacks in canine program was written pursuant to professional duties). Accordingly,

the judgment in favor of Skrutski, insofar as it relied upon these unprotected statements

and activities, must be reversed; Defendants are entitled to a judgment as a matter of law

on these portions of Plaintiff’s First Amendment claim.

       On the other hand, there is no dispute that Plaintiff’s filing of this action in

December 2003 is a protected activity under the First Amendment, and is thus a valid

basis upon which to premise a cognizable retaliation claim. However, because the

evidence presented at trial pertained almost exclusively to Defendants’ retaliatory actions

predating the lawsuit, and because the jury’s damages award failed to distinguish between



                                               8
the particular bases for retaliatory liability, we must vacate both the judgment and the

damages award. See Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 485-87 (3d Cir.

1997) (reaching same conclusion where evidence relating to time-barred discrimination

claims “likely infected” liability verdict, and where it was impossible to determine what

portion of the damages award was attributable to the not out-of-time claims). Under the

unique circumstances of this case, we cannot be sure that the heavy weight of the pre-

December 2003 evidence on the legally insufficient retaliation claims did not color the

jury’s resolution of the post-December 2003 claim;6 Defendants Marut and Brice are thus

entitled to a new trial, limited to the allegation that they impermissibly retaliated against

Plaintiff for filing this lawsuit. See id. at 485 (remanding for new trial where evidence on

legally valid and invalid claims of discrimination were “presented in tandem”); see also,

e.g., Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 476 (3d Cir. 1973) (“[a]n improper

submission of a material issue to the jury is [a] ground for a new trial”) (quoting 6A

Moore’s Federal Practice § 59.08[2]); Libbey-Owens-Ford Co. v. Ins. Co. of N. Am., 9

F.3d 422, 427 (6th Cir. 1993) (same).

       B.     Substantive Due Process

       Defendants are also entitled to prevail on Skrutski’s substantive due process claim.




  6
     In reaching this conclusion, we emphasize that we have no occasion to pass upon,
and thus express no opinion as to whether the evidence directly relating to the retaliation
occurring prior to December 2003 would be admissible in a trial pertaining solely to the
filing of the lawsuit.

                                               9
The Due Process Clause contains both procedural and substantive components; when a

substantive due process claim is premised upon a non-legislative state action, “a plaintiff

must establish as a threshold matter that he has a protected property interest to which the

Fourteenth Amendment’s due process protection applies.” Nicholas v. Pa. State Univ.,

227 F.3d 133, 139-40 (3d Cir. 2000) (quoting Woodwind Estates, Ltd. v. Gretkowski, 205

F.3d 118, 123 (3d Cir. 2000)). Only property interests that are fundamental under the

federal Constitution are sufficient for purposes of substantive due process. Nicholas, 227

F.3d at 140 (collecting cases); see also Reich v. Beharry, 883 F.2d 239, 243 (3d Cir.

1989) (whereas certain state law property interests may give rise to procedural due

process claims, “not all property interests worthy of procedural due process protections

are protected by the concept of substantive due process”).

       Skrutski’s substantive due process claim is premised solely on “monies he lost as a

result of the denial of overtime by the defendants.” Appellee’s Brief at 42. However,

Skrutski did not present any evidence at trial that he was legally entitled to any overtime

assignments; on the contrary, he expressly testified that no such entitlement existed. App.

at 1134 (“[Defense counsel]: Is there any entitlement to overtime in the State Police?

[Skrutski]: No.”). His substantive due process claim must fail as a result. See Bd. of

Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in

a benefit, a person clearly must have more than an abstract need or desire for it. He must

have more than a unilateral expectation of it. He must, instead, have a legitimate claim of



                                             10
entitlement to it.”); see also, e.g., Rolon v. Henneman, 517 F.3d 140, 148 (2d Cir. 2008)

(loss of overtime does not constitute protected property interest even in procedural due

process context); Brown v. Brienen, 722 F.2d 360, 365 (7th Cir. 1983) (“Disputes over

overtime ... do not implicate the great objects of the Fourteenth Amendment.”).

         C.    Procedural Due Process

         Plaintiff’s procedural due process claim – based on Defendants’ actions resulting

in his being suspended without pay – is likewise foreclosed as a matter of law. Here,

there is no question Skrutski has established a requisite deprivation of property.

However, no due process violation occurs as a result of an adverse employment action as

long as the government provides the employee with notice and an adequate opportunity to

be heard after the fact. McDaniels v. Flick, 59 F.3d 446, 459-60 (3d Cir. 1995) (citing

Parratt v. Taylor, 451 U.S. 527, 543 (1981)). A public employer may discharge its due

process obligations by providing for facially adequate post-deprivation grievance

procedures, even if the initial determination resulting in the deprivation was biased.

Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564, 1571 (3d Cir. 1995); Jackson v. Temple

Univ., 721 F.2d 931, 933 (3d Cir. 1983). Grievance procedures provided in collective

bargaining agreements may satisfy due process. Dykes, 68 F.3d at 1572 n.6; Armstrong

v. Meyers, 964 F.2d 948, 951 (9th Cir. 1992) (quoted with approval in Dykes, 68 F.3d at

1571).

         Here, Skrutski is a member of the Pennsylvania State Police Association union,



                                              11
was notified of the internal investigation, the charges lodged against him, and the

proposed discipline, and was given the opportunity to respond. App. at 1132-33; 1061-

65. After being so notified, Skrutski initiated grievance procedures (through the

independent grievance committee) against the disciplinary actions imposed, but his union

representative ultimately settled the dispute without his consent. App. at 1061-65, 1070-

74; 1081-89. These undisputed facts fatally undermine Skrutski’s due process claim.

       Absent an allegation that the post-discipline grievance procedures at issue were

per se inadequate (or not followed or otherwise completely unavailable), our decision in

Dykes makes clear that there can be no departmental violation of due process under the

circumstances. That Gilbert and Marut colluded to impose sham disciplinary charges on

Plaintiff simply has no legal relevance on the due process question before us because

Skrutski presented no evidence that Defendants were involved in the subsequent, post-

deprivation grievance proceedings conducted by the union.7 To the extent Skrutski

objects that the union settled the grievance without his consent, that is a claim more

appropriately addressed through an action against the union itself. See Martino v. Transp.

Workers Union of Phila., 480 A.2d 242, 243 (Pa. 1984) (plaintiff claimed union “violated

its duty of fair representation by failing in bad faith to pursue his grievance to impartial




  7
    Defendant Marut made the initial departmental decision to impose disciplinary
charges against Skrutski. However, he was not a member of the grievance committee nor
otherwise involved in the subsequent independent grievance procedures through the
union, other than in the capacity as a witness.

                                              12
arbitration”); Jackson, 721 F.2d at 933 (action against both union and employer based on

allegations that union did not adjudicate plaintiff’s grievance fairly). In sum, Defendants

are entitled to a judgment in their favor on Skrutski’s procedural due process claim.

       D.     Equal Protection Claim

       Finally, Skrutski proceeded on his equal protection claim below based on the

“class of one” theory articulated in Village of Willowbrook v. Olech, 528 U.S. 562 (2000)

(per curiam). This legal avenue is now clearly foreclosed by the Supreme Court’s recent

decision that such claims are not cognizable in the public employment context. Engquist

v. Oregon Dep’t of Agric., __ S. Ct. __, 2008 WL 2329768, *2 (June 9, 2008).

III.   CONCLUSION

       For the reasons set forth above, we will reverse the judgment entered in Skrutski’s

favor on the portions of his First Amendment retaliation claim premised on his internal

complaints, and on the due process and equal protection claims; the District Court shall

accordingly enter judgment for Defendants on these counts. We will also vacate the

damages award and the judgment for Skrutski on his retaliation claim based on the filing

of this lawsuit, and remand the matter for a new trial limited to this issue. The award of

attorney’s fees and costs will likewise be vacated.




                                             13
