Nicholas Malfitano Jun. 19, 2015, 11:35am


PHILADELPHIA – On Monday, a federal judge partially dismissed claims of malicious prosecution and First Amendment retaliation brought against a Pennsylvania State Police officer and a shift manager for US Airways.

Judge Mark A. Kearney, of the U.S. District Court for the Eastern District of Pennsylvania, ruled June 15 that Sharon Hill resident Kalilah Brantley’s claims of supervisory liability and constitutional rights violations for malicious prosecution, selective enforcement and vindictive prosecution against Cpl. Keye Wysocki of the Pennsylvania State Police and Renee Burrows of US Airways were dismissed.

However, Kearney further declared a state law claim of malicious prosecution and a separate claim of First Amendment retaliation against the defendants would not be dismissed at this time.

In December 2010, Brantley was employed as a customer service agent at US Airways, with Burrows serving as her shift manager. Brantley and Burrows engaged in repeated verbal confrontations, centered on what Brantley felt were Burrows’ violations of union regulations.

Per another supervisor’s direction, Brantley left work early on Dec. 28, 2010. When held accountable for this action by Burrows, Brantley refused to sign a “coaching review” acknowledging her early departure, and met with Burrows, along with other employees, at a union meeting to discuss the situation two days later.

According to court records, Brantley admitted to secretly recording two minutes of the 45-minute meeting on Dec. 30, 2010, but claimed Burrows at no time asked her to stop recording the conversation or delete the recording. Brantley continued to oppose Burrows’ actions over subsequent weeks.

During this time, Burrows consulted Wysocki, a close friend serving as a Pennsylvania State Police Officer. On Jan. 18, 2011, Wysocki personally accompanied Burrows to file a criminal complaint with the Philadelphia Police Department, alleging Brantley recorded the Dec. 30, 2010 union meeting without her consent.

On Feb. 8, 2011, Wysocki, another John Doe officer and fellow Officer Keith Hagan, wearing plainclothes, approached Brantley at her US Airways workplace demanding she turn over the cell phone allegedly used to record Burrows six weeks earlier. Brantley refused and asked the police officers if they had a search warrant, which they did not.

Wysocki claimed he did not need a warrant, vaguely explaining a friend asked him to look into something and threatened to arrest Brantley if she resisted his efforts to take her phone. Brantley then called her mother and Wysocki threatened her mother if Brantley did not turn over the phone, “She’s gonna get her a-- kicked."

Brantley entered another room at her workplace and turned over her phone. Wysocki apparently listened to the recording and left. Nearly four months later, the Commonwealth issued a police summons charging Brantley with “Intercept Communication.”

After a later hearing at which Wysocki allegedly admitted conducting the investigation on Burrows’ behalf, the trial court suppressed the tape-recorded evidence, a decision affirmed by the Pennsylvania Superior Court. The Commonwealth moved for nolle prosequi (or abandonment of an action), and the trial court dismissed the criminal case in January 2013.

Brantley subsequently filed a civil suit against her employer US Airways, Burrows and Wysocki, along with John Doe officers in July (with a pair of amended complaints to follow in October and Marc), for malicious prosecution under state and federal laws (Count I), selective enforcement/prosecution and vindictive prosecution (Count II) and First Amendment retaliation under Section 1983 (Count III).

US Airways and all John Doe officers have since been dismissed from the complaint, leaving only Burrows and Wysocki as the defendants.

In this second amended complaint, Kearney found Brantley averred sufficient facts to allege a conspiracy against her between Burrows and Wysocki, in order to meet the requirement of state action under Section 1983 – information found to be lacking in previous version of Brantley’s litigation.

“Subject to developing facts in discovery, Brantley’s claims of First Amendment retaliation and malicious prosecution under state law will not be dismissed outright against Defendant Burrows or Officer Wysocki,” Kearney said.

However, Kearney also declared Brantley’s attempt to tie US Airways in under respondeat superior liability failed after three attempts, for not setting forth any proof that Burrows acted on behalf of US Airways, as opposed to for her own benefit.

Kearney also opined Brantley put forward a claim for malicious prosecution under state law, but not federal law.

“Under Pennsylvania law, Burrows and Wysocki may be liable for common law malicious prosecution if (1) They initiated or procured initiation of criminal proceedings; (2) The proceedings ended in Brantley’s favor; (3) The proceeding was initiated without probable cause; and (4) They acted with malice or for a purpose other than bring Brantley to justice,” Kearney said.

Kearny said, “Brantley adequately pleads a plausible state law malicious prosecution claim. Brantley alleges Burrows and Officer Wysocki procured initiation of a criminal proceeding for a purpose other than to bring her to justice. She pleads Burrows and Wysocki conspired to retaliate against her with the absence of probable cause.”

Yet, Kearney added the malicious prosecution claim under federal law failed because it did not include a “deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding” nor was Brantley arrested, both necessary components to satisfy such a charge. Therefore, Kearney dismissed that claim from the suit.

Kearney also didn’t find Brantley, despite three opportunities to do so, provided sufficient evidence for her claims of selective enforcement under Pennsylvania state law – in not showing “(1) Persons similarly situated have not been prosecuted, and (2) Decisions were made on the basis of a suspect classification such as race, religion, or to prevent defendant’s exercise of a fundamental right.”

“Although captioned as such, Brantley does not plead a claim for selective enforcement or equal protection insofar as she has not plead the existence of any similarly situated individuals treated differently by defendants, and absence of any rational basis for differential treatment,” Kearney said.

With respect to her claim for First Amendment retaliation, Brantley must have met the following burden of proof, according to Kearney: “(1) She engaged in protected speech or activity afforded protection under the First Amendment; (2) She suffered adverse action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) A causal link between the protected conduct and the adverse action.”

“Brantley alleges she attended a union meeting protesting Burrows’ violation of union contract terms and thereafter continued opposing Burrows’ violations of union policy. Given the wide deference at this pleading stage, Brantley’s alleged protests may be activities protected by the First Amendment,” Kearney said.

“Brantley also does not allege any causal connection between the prosecution in the underlying case and her pending claim making a claim of vindictive prosecution plausible.”

Kearney added the discovery process would be necessary to clarify a factual matter of dispute between Brantley’s self-proclaimed “protest” of union activities and subsequent prosecution and the defense’s view that she could have been prosecuted for non-consensual recording regardless of presumed liability on Wysocki or Burrows’ part.

“Defendants dispute Brantley’s so-called protest of union activities led to her prosecution for intercepting communications. She could have been prosecuted for this non-consensual taping offense regardless of Burrows’ retaliatory intent and Wysocki’s alleged aid. Brantley presently alleges adverse action and a causal link between her protected activities and the adverse action. We do not know at this stage. This dispute is a factual matter for discovery,” Kearney said.

The plaintiff is seeking an amount in excess of $75,000 in damages, plus punitive damages, attorney’s fees, court costs, equitable relief and any other relief the Court deems appropriate in this matter.

The plaintiff is represented by Matthew A. Weisberg of Weisberg Law, in Morton.

The defendants are represented by Andrew M. Rongaus of the Pennsylvania State Police’s Office of Chief Counsel in Harrisburg, Daniel E. Farrington of The Farrington Law Firm in Bethesda, Md., and Alan S. Gold of Gold & Robins in Jenkintown.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-04185

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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