Nicholas Malfitano May 8, 2015, 8:39am


PHILADELPHIA – A former Lower Saucon Township Council candidate had her claim for retaliation against the community’s police department and its chief, in response to her vocal opposition of a planned landfill expansion project, was dismissed by a federal court judge on April 29.

Donna Louder and her husband Thomas, a current officer with the Lower Saucon Township Police Department, filed suit against both the township and its police chief Guy Lesser in June 2014, for alleged deprivations of their civil rights leading to retaliatory acts against Thomas.

These claims were in alleged violation of federal law with regards to facing retaliation in his duties as a Lower Saucon Township police officer, while Donna claimed the retaliation against her husband led to the curtailing of her First Amendment rights under the U.S. Constitution.

According to the lawsuit, Donna Louder began a campaign to run for a seat on the Lower Saucon Township Council in March 2013.

A lynchpin issue of her campaign was to oppose a landfill expansion and re-zoning project, which would have required the purchasing of several area homes and allegedly have an adverse effect on other homes in the surrounding area.

The landfill is owned and operated by IESI, Inc., a private corporation.

Though Louder was not successful in her council bid in November 2013, she remained a vocal opponent of the landfill project.

Around this same time period, public hearings on the project began in Lower Saucon Township, and the plaintiffs allege Lesser’s position on the project changed from opposition to support – due to the fact he owned one of the homes IESI would need to purchase in order to complete the expansion.

Further, the plaintiffs claim Officer Louder was then subjected to retaliatory actions by Lesser, as a result of his wife’s disapproval of the landfill expansion.

These included an official reprimand from the chief, being deprived of “a significant loss” of overtime compensation and finally being transferred to a different department, resulting in “a reduction of rank and loss of seniority.”

As a result of these alleged actions against her husband, Donna Louder claimed she quieted her opposition of the landfill expansion, so as not to incur further alleged retaliation for her spouse. However, she claimed she was “chilled” at the curtailing of her First Amendment rights to free speech.

In response to the litigation, both Lower Saucon Township and Lesser filed a motion to dismiss the retaliation count of the Louders’ complaint in September.

The matter was brought before U.S. Magistrate Judge Henry S. Perkin of the U.S. District Court for the Eastern District of Pennsylvania, who issued a decision on the matter April 29.

Citing Ballas v. City of Reading, Perkin noted a specific criterion necessary to prove retaliation pursuant to the First Amendment was “the plaintiff must show that the defendant responded with retaliation, and that the protected activity was a substantial or motivating factor in the alleged retaliatory action.”

Perkin felt Donna Louder had not successfully showed this took place.

“The Complaint does not contain any allegations that satisfy the second criterion, i.e. that Plaintiff Donna Louder suffered retaliatory conduct,” Perkin said.

“There are no allegations in the Complaint demonstrating that she personally suffered any adverse consequence, retaliation, or retribution under color of state or federal law that would amount to violations of her personal constitutional rights, and thus permit her claim.

“Plaintiff Donna Louder was not terminated, demoted, transferred, or denied any employment benefit based on her speech.”

Therefore, Perkin dismissed the retaliation claim brought forth by Donna Louder, denied the plaintiffs’ petition to leave their claim open to amendment in the circumstance of a dismissal (citing a lack of rationale for that action) and provided the defendants until May 8 to answer the plaintiff’s complaint on retaliation against Thomas Louder.

The plaintiffs had sought damages comprising of all lost pay and seniority for Thomas Louder, actual damages, punitive damages and any other relief the court deemed just or appropriate, along with permanent enjoinment from their alleged illegal acts of civil rights violations and retaliation thereto.

The plaintiffs are represented by Timothy M. Kolman, Esq. and W. Charles Sipio, Esq. of Kolman Ely P.C., in Penndel.

The defendants are represented by Henry F. Canelo, Esq. and Wendy D. Testa, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP, in Philadelphia.

United States District Court for the Eastern District of Pennsylvania case 5:14-cv-03860

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