Federal appeals court reinstates police officers’ retaliation claim

Wednesday, February 9, 2000

Four Allentown, Pa., police officers who claim that they received low job rankings in retaliation for their union activities have stated a viable First Amendment claim, a federal appeals court has ruled.

In 1995, Richard Suppan, Glenn Kerrigan, Gerald Dieter and James Bowser sued the city of Allentown, the chief of police and other city officials, alleging that the city refused to promote them because of their active role in the union and for their expressed opposition to the mayor.

The four patrol officers had applied for two sergeant positions. Candidates for promotion were ranked based 20% on seniority and 80% on an oral examination. The four officers received very low scores on the oral examination. Out of 36 qualified candidates, the highest-ranking plaintiff was 28th on the oral examination.

U.S. District Judge Louis Pollack granted the defendants’ motion for partial summary judgment, which dismissed plaintiffs’ failure-to-promote claims.

The 3rd U.S. Circuit Court of Appeals reversed that decision late last week, finding in Suppan v. Dadonna that the plaintiffs’ allegations — which the lower court had to accept as true at the early procedural stage of the lawsuit — stated a viable First Amendment claim.

The appeals court noted that plaintiffs’ complaint alleged that defendant Wayne Stephens, the police chief, told Suppan: “Your problem is that you are a frustrated FOP [Fraternal Order of Police] lawyer, and as long as you want to assist a bunch of losers with your labor knowledge, you’ll lose.”

Another comment by Stephens cited in the officers’ complaint was: “I’m getting sick and tired of you and your negotiating team trying to run this department.”

The lower court granted the city’s motion to dismiss the failure-to-promote claims because it determined that the officers could not prove that they would have received the promotions even if they did not have the low ranking.

The appeals court determined, however, that the officers had stated a viable First Amendment claim. The court cited the 1990 U.S. Supreme Court decision Rutan v. Republican Party, in which the high court determined that failing to promote a public employee because of a political affiliation was an “impermissible infringement on the First Amendment rights of public employees.”

In Rutan, the high court rejected the argument that a public employee could not state an actionable First Amendment claim if she or he did not lose her or his job. “This is not credible,” the high court wrote. “Employees who find themselves in dead-end positions due to their political backgrounds are adversely affected. They will feel a significant obligation to support political positions held by their superiors, and to refrain from acting on the political views they hold, in order to progress up the career ladder.”

The 3rd Circuit used this precedent to reinstate the officers’ claims in its Feb. 4 opinion. “Under the teachings of Rutan, we believe that a trier of fact could determine that a violation of the First Amendment occurred at the time of the rankings on the promotion list and that some relief is appropriate even if plaintiffs cannot prove a causal connection between the rankings and the failure to promote.”

The 3rd Circuit wrote that “a factfinder in this case could determine that the alleged retaliatory conduct was sufficient to deter a person of ordinary firmness from exercising his First Amendment rights and that some relief may be appropriate.”

Richard Orloski, attorney for the four police officers, praised the appeals court decision. “My clients were specifically retaliated against by having their scores dropped,” he said. “We benefited from the fact that an administrative tribunal had made several findings of fact that defendants retaliated against my clients.”

Calls to attorneys for the defendants were not returned.