                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2006

Matsey v. Westmoreland
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4189




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4189


                                STEPHEN M. MATSEY,
                                                              Appellant

                                            v.

 WESTMORELAND COUNTY; THOMAS CERASO, Individually, and in his capacity
   as Chairman of the Westmoreland County Prison Board; TOM BALYA, COUNTY
 COMMISSIONER, Individually, and in his capacity as a member of the Westmoreland
    County Prison Board; P. SCOTT CONNER, Individually, and in his capacity as a
 member of the Westmoreland County Prison Board; JOHN PECK, Individually, and in
     his capacity as a member of the Westmoreland County Prison Board; JEFFREY
 PAVETTI, Individually, and in his capacity as a member of the Westmoreland County
    Prison Board; WILLIAM WHIRLOW, Individually, and in his capacity as former
 Deputy Warden of Westmoreland County Prison; CHARLES (CHUCK) DOMINICK,
Individually, and in his capacity as Westmoreland County Director of Human Resources



                   On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                           (D.C. Civil Action No. 01-cv-01802)
                  District Judge: The Honorable Maurice B. Cohill, Jr.


                                 Argued April 27, 2006

                    Before: AMBRO and FUENTES, Circuit Judges,
                             and IRENAS,* District Judge




  *
   Honorable Joseph E. Irenas, Senior United States District Judge for the District of
New Jersey, sitting by designation.
                                  (Filed: May 19, 2006)

Edward A. Olds, Esq. (Argued)
1007 Mount Royal Boulevard
Pittsburgh, PA 15223

              Counsel for Appellant

Robert E. Durrant, Esq. (Argued)
Neva L. Stanger, Esq.
Campbell, Durrant & Beatty, P.C.
555 Grant Street, Suite 310
Pittsburgh, PA 15219

              Counsel for Appellees



                                        OPINION


IRENAS, Senior United States District Judge

              Appellant Stephen M. Matsey appeals from the September 29, 2004,

Opinion and Order of the Western District of Pennsylvania granting the motion for

summary judgment of the Appellees Westmoreland County, Thomas Ceraso, Tom Balya,

P. Scott Conner, John Peck, Jeffrey Pavetti, William Whirlow, and Charles (Chuck)

Dominick on Matsey’s Section 1983 claims alleging violations of the First Amendment,

the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment to

the United States Constitution, and his claim alleging a violation of the Pennsylvania




                                            2
Whistle Blower Act (“PWBA”), 43 Pa.C.S.A. § 1421 et seq.1 Matsey’s claims stem from

his suspension and eventual termination from his job as a lieutenant corrections officer at

the Westmoreland County Prison. We will deny his appeal.

                                              I.

                Matsey began working for the Westmoreland County Prison (“Prison”) in

1982 as a part-time corrections officer. At the time of the events relevant to this lawsuit,

Matsey served as a lieutenant on the night shift. As the night shift lieutenant, Matsey was

the highest ranking official at the Prison during his shift. He was fired from his job in

April, 2001.2

                Matsey’s termination stems from a series of troubling incidents at the

Prison, in which his personal involvement is subject to some dispute. An undercover

investigation by the Pennsylvania State Police revealed in June, 2000, that an inmate at

the Prison, Ronald Whethers, was running a drug trafficking operation out of his prison

cell, using a cell phone and aided by employees of the Prison.

                A grand jury was convened to investigate the drug scandal, and the

Pennsylvania Department of Corrections conducted its own investigation of the Prison.

The investigative reports revealed security and other serious problems at the Prison,

including allegations that Whethers received certain favorable treatment from corrections


  1
   Matsey voluntarily withdrew his claim alleging “political discrimination” and all
claims against Defendant “Gary” (Michael) Millward.
  2
   Matsey’s counsel admitted during oral argument that Matsey was an at-will employee.

                                              3
officers and Prison personnel. Matsey was not, nor has he ever been, implicated in the

Whethers drug trafficking operation.

              The Prison warden, Kurt Scalzott, assigned Whirlow3 to investigate the

allegations of favorable treatment. Whirlow’s investigation concluded that Whethers and

the other inmates in his unit received a special meal on the night of June 18, 2000, despite

the fact that they had not performed any extra work, whereas the inmates of other units

did not receive any food. In addition, Whirlow found that hot food had been given to the

night court staff, and that a sergeant under Matsey’s supervision had entered the Prison’s

kitchen to prepare food during the night shift, both in violation of Prison policy.

Whirlow also uncovered that Matsey allegedly engaged in an eighteen minute private

conversation with Whethers during a day shift in April, 2000. Whirlow recommended

that immediate action be taken against Matsey and the sergeant.

              Upon review of Whirlow’s investigation, Scalzott recommended that the

Westmoreland County Prison Board (“Prison Board”) suspend Matsey for three days for

violating Prison policy by feeding the night court staff and permitting the sergeant to

cook in the kitchen. Scalzott did not recommend any discipline based on Matsey’s

conversation with Whethers or the meal provided to the inmates on June 18, 2000,


  3
   The working relationship of Matsey and Whirlow was undisputedly very poor.
Matsey openly criticized Whirlow’s job performance and integrity. Additionally, at some
point prior to the Whethers drug scandal, Matsey attempted to discipline Whirlow’s wife
and sister-in-law, both of whom worked at the Prison. The women filed a harassment
charge against Matsey. Whirlow gathered information on the harassment charge, and sent
Matsey a letter indicating that he had used poor judgment in handling the situation.

                                              4
because Prison policy permitted providing a meal to inmates who worked during the

night shift.

               The Prison Board decided to suspend Matsey without pay for sixty days in

January, 2001. While Matsey was suspended, his attorney complained to a reporter about

the suspension and mentioned certain improprieties in the Prison’s kitchen that Matsey

thought the Prison Board should be investigating. Matsey also met with Ceraso on

February 12, 2001. Matsey mentioned the alleged kitchen improprieties to Ceraso, and

reported his concerns about security at the Prison. He also requested a name-clearing

hearing. Ceraso told Matsey to put his request in writing.

               While Matsey was serving his suspension, the Prison Board was informed

of a civil rights lawsuit brought by an inmate against Westmoreland County based upon

allegations of excessive force by Matsey arising from a November, 1996, incident. An

attorney for the County determined that the lawsuit had some merit, despite an

inconclusive internal investigation, and recommended that the County settle. The

attorney also advised that the Prison take some remedial action in case a future abuse

case was brought against the employees involved, such as counseling.

               The Prison Board chose to terminate Matsey’s employment when his

suspension ended in April, 2001.4 Scalzott was asked to retire, but when he refused, he

too was fired. Whirlow was either forced to retire early or allowed to accept early


  4
   After Matsey was suspended but before he was terminated, Matsey’s attorney sent the
Prison Board a letter requesting a post-suspension hearing. No hearing was ever held.

                                            5
retirement instead of being fired.

              Matsey filed suit against Appellees in the Western District of Pennsylvania

on September 27, 2001. Matsey claims that the decision to suspend and then terminate

him was arbitrary, and motivated by his criticism of prison security and Whirlow’s

personal dislike of him. He also contends that he was entitled to and denied a name-

clearing hearing by the Prison Board. The District Court granted Appellees’ motion for

summary judgment on September 29, 2004.

                                             II.

              This Court exercises plenary review over a district court’s conclusions of

law, and reviews its findings of fact for clear error. Fed. Home Loan Mortgage Corp v.

Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003). In doing so, the Court employs the

same standard as used by the district court in deciding motions for summary judgment.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

              Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

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

477 U.S. 317, 322-23 (1986). In deciding a motion for summary judgment, the court

must construe the facts and inferences in a light most favorable to the non-moving party.

Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).



                                              6
              The role of the court is not to “weigh the evidence and determine the truth

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

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The non-moving party may not rest on its

pleadings to oppose a summary judgment motion but must affirmatively come forward

with admissible evidence establishing a genuine issue of fact. Celotex Corp., 477 U.S. at

324.

                                            III.

              While Matsey has pointed to certain irregularities in the process by which

he was suspended and terminated, the Western District of Pennsylvania did not err in

determining that he had not raised any material issues of fact regarding his First

Amendment, Equal Protection, Due Process and PWBA claims. The District Court

properly concluded that the undisputed evidence established that Matsey was terminated

because he was the highest ranking officer on the night shift and in charge of the prison

during a period when serious security lapses occurred, including the operation of a drug

trafficking ring by an inmate, and not because he engaged in protected speech or for any

other prohibited reason.

                                             A.

              The Equal Protection Clause commands that similarly situated persons be

treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985);

Jackson v. Gordon, 145 Fed. Appx. 774, 777 (3d Cir. 2005). An equal protection claim



                                             7
can be brought by a “class of one” where the plaintiff alleges that he has been

“intentionally treated differently from others similarly situated and that there is no

rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S.

562, 564 (2000) (per curiam); see also Jackson, 145 Fed. Appx. at 777; Eichenlaub v.

Twp. of Indiana, 385 F.2d 274, 286 (3d Cir. 2004) (“The Supreme Court has held that a

‘class of one’ can attack intentionally different treatment if it is ‘irrational and wholly

arbitrary.’”) (quoting Olech).

              In granting summary judgment on Matsey’s “class of one” equal protection

claim, the District Court held that: (1) he was not similarly situated to other shift

commanders because night shift commanders, such as him, are in charge of the operation

of the Prison, whereas day shift commanders are not; (2) Matsey was not similarly

situated to other night shift commanders because of other conduct by him; (3) the

discipline of Matsey was rationally related to his conduct; and (4) he was treated the

same as Scalzott and Whirlow, as all three lost their jobs in the aftermath of the Whethers

scandal.

              This Court agrees with the District Court’s determination that Matsey was

not similarly situated to other shift commanders. Unlike those shift commanders, the

night shift commander is in charge of the Prison during his time on duty, as higher

ranking officials such as the warden or deputy warden are not at the Prison at night.

Given that Matsey had unique responsibility for the operations of the Prison during his



                                               8
shift, he is not similarly situated with other shift commanders, who worked under the

supervision of higher ranking officials. It was on Matsey’s watch when Whethers

conducted some of his illegal activities.

              The District Court correctly noted that there were additional incidents

involving Matsey that distinguish him from other shift commanders, including lieutenants

who also worked the night shift. Matsey does not dispute that Whethers and other

inmates on his unit received an extra meal during the night shift on June 18, 2000, and he

is correct that this was not prohibited by Prison policy.

              As the District Court observed, however, this extra meal should be viewed

in the greater context of the Whethers scandal, which revealed a pattern of favoritism and

special treatment given to Whethers. On June 18, 2000, no inmates other than Whethers

and those in his unit doing night shift work received an extra meal, despite having

performed comparable work as other units on the night shift. No other night shift

commanders permitted inmates to be provided with extra meals with near the frequency

that Matsey allowed.

              The larger Whethers scandal also casts a shadow on the eighteen minute

private conversation that Matsey had with Whethers in April, 2000. The record does not

reveal the substance of the conversation. While it may not have been prohibited or

particularly unusual, Matsey has not pointed to any other shift commanders who had such

extensive private contact with an inmate at the center of a major scandal.



                                              9
              Additionally, none of the other lieutenants who served as night shift

commander were involved in a lawsuit brought by a prisoner involving allegations of

abuse by the lieutenant. Matsey was personally involved in the actions that the prisoner

alleged were impermissibly abusive, rather than being implicated in his supervisory

capacity. While the internal investigation cleared him of the excessive force allegations,

it did reveal that the Prison’s policy requiring videotaping of all prisoner cell extractions

was violated. Despite the fact that the investigation refuted the abuse claims, the County

settled the lawsuit based on its attorney’s conclusion that it would not prevail at trial.

              We conclude that the District Court’s determination that Matsey was not

similarly situated to the other shift commanders is correct. Moreover, although the

District Court did not hold that Matsey was similarly situated to Scalzott and Whirlow, it

noted that, like Matsey, they both lost their jobs.5 Scalzott was given the option to resign

or be fired, and chose to be fired. Whirlow was offered the choice of staying on at the

Prison to assist the interim warden during the transition period until he became eligible

for early retirement, or be fired that day. Whirlow chose to stay on and took early

retirement in April, 2001. We note that Matsey has not demonstrated that he is similarly

situated to either Scalzott or Whirlow, and argues only that he was treated differently

from them. It is significant, however, that, like Matsey, Scalzott and Whirlow were in



  5
    The District Court’s opinion states that “[t]o the extent that Matsey can be considered
as substantially similar to Warden Scalzott or Deputy Warden Whirlow [,] both of these
men were similarly removed from their positions.” (Op. at 25)

                                              10
charge of the Prison during their time on duty, and also lost their jobs as a result of the

Whethers scandal.

                                              B.

              A public employee alleging that his employer retaliated against him for

exercising his right to free speech must establish three elements to successfully oppose a

motion for summary judgment. Swineford v. Snyder County Pennsylvania, 15 F.3d 1258,

1270 (3d Cir. 1994); see also Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997); Green

v. Philadelphia Housing Auth., 105 F.3d 882, 885 (3d Cir. 1997). First, he must establish

that his speech was protected. Swineford, 15 F.3d at 1270. Second, he must demonstrate

that he suffered some adverse employment action by his employer. Id. Next, he must

prove that his protected speech was a substantial or motivating factor for the adverse

employment action. Id. If the plaintiff meets this burden, the defendant can still defeat

the claim by establishing that he would have taken the same action absent the plaintiff’s

protected speech. Id.

              The District Court granted summary judgment for Appellees, concluding

that: (1) his criticisms of Whirlow and Prison security, as well as his comments

regarding improper activities of the head of the Prison’s kitchen, were not matters of

public concern and thus were not protected speech; (2) his speech on these subjects was

not a substantial or motivating factor in the Prison Board’s decision to fire him; and (3)

the Prison Board would have terminated Matsey irrespective of any speech by him.



                                              11
              In order to establish that he engaged in a protected activity, Matsey must

demonstrate that he spoke on a matter of public concern, and that his interest in speaking

on these matters outweighed the government’s interest in suppressing his speech. See

Pickering v. Board of Educ. of Twp. High Sch. Dist. 205, Will County, 391 U.S. 563

(1968). The District Court correctly noted that much of Matsey’s speech was simply

criticism of the job performance of Whirlow, his supervisor, which does not fall into the

category of protected speech. The Supreme Court in Connick v. Myers wrote that “the

First Amendment does not require a public office to be run as a roundtable for employee

complaints over internal office affairs.” 461 U.S. 138, 149 (1983).

              Moreover, Matsey cannot “establish[] that the exercise of his First

Amendment rights played some substantial role in the relevant decision.” Suppan v.

Dadonna, 203 F.3d 228, 236 (3d Cir. 2000). He has not demonstrated that his

complaints about Whirlow, Prison security or other matters played a substantial, if any,

role in the decision to terminate him. To the contrary, the record strongly suggests that

Matsey was fired because he was in charge of the Prison on the night shift during the

period in which Whethers ran the drug trafficking operation, and was centrally involved

in the prisoner abuse case settled by the County. While Matsey’s comments to Ceraso

regarding improprieties in the Prison’s kitchen may have been made shortly before he

was fired, that temporal proximity is not suggestive given the other significant events




                                            12
occurring at the same time.6

                                            C.

             The Supreme Court has recognized that when a public employer publishes

or otherwise disseminates false and stigmatizing information in connection with an

employee’s termination, that employee has a due process right to a name-clearing

hearing. Board of Regents v. Roth, 404 U.S. 564 (1972). Contrary to Matsey’s assertion,

a public employee is not entitled to a name-clearing hearing simply because the

government “terminates an employee for reasons that impugn the employee’s reputation,

honor or integrity. . . .” (Appellant’s Br. at 51.) The government employer must publish

or disseminate the false and stigmatizing information to the public. Chabal v. Reagan,

841 F.2d 1216, 1223 (3d Cir. 1988); Poteat v. Harrisburg School District, 33 F. Supp. 2d

384, 391-92 (M.D. Pa. 1999).

             Matsey has not established that the Appellees published or otherwise

disseminated false and stigmatizing information to the public. A plaintiff must establish

that the particular defendant was responsible for publicly revealing the defamatory

information. See McMath v. City of Gary, 976 F.2d 1026 (7th Cir. 1992). The news

articles in the record, however, reveal only that Ceraso confirmed that Matsey had been

first suspended and then terminated, which are undisputedly true statements.



  6
   To the extent that the District Court’s decision on the PWBA claim is based upon the
same analysis of Matsey’s First Amendment claim, we will affirm the District Court’s
grant of summary judgment on the state law claim as well.

                                            13
               Matsey is not entitled to a name-clearing hearing to correct false and

stigmatizing information that was published or disseminated by someone other than

Appellees, such as through independent media investigation or speculation, or because

his attorney chose to speak with a reporter. Roth does not impose an obligation on

government employers to correct false information published or disseminated by others.7



                                             IV.

               For the reasons set forth above, the Order and Opinion of the Western

District of Pennsylvania granting the motion for summary judgment of the Appellees will

be affirmed.




  7
   The Court thus not need to address whether Matsey’s request for a name-clearing
hearing was adequate, as he is not entitled to one in the first instance.

                                             14
