PHILADELPHIA – A federal appeals court panel has affirmed the dismissal of a case from a former member of the Philadelphia Police Department, who believed he was both wrongfully terminated and his attempt for reinstatement refused under racially discriminatory pretenses.

On May 9, Third Circuit judges Michael A. Chagares, Anthony J. Scirica and D. Michael Fisher concurred with the ruling of the U.S. District Court for the Eastern District of Pennsylvania, in dismissing the legal action of former Philadelphia Police Officer John Hargrave versus former Police Commissioner Charles Ramsey and the City of Philadelphia.

Per Philadelphia Police Department policy, officers are subject to termination if “they engage in any action that constitutes a felony or misdemeanor that carries a potential sentence of more than one year of incarceration” and “neither a criminal conviction nor a pending criminal proceeding is necessary to initiate disciplinary action.”

In 2012, Hargrave was arrested and charged with offenses relating to an incident of domestic violence involving his wife. The Philadelphia Police Department separately charged Hargrave with “conduct unbecoming of a police officer” and dismissed him from the force. Following a trial in the Philadelphia County Court of Common Pleas in 2014, a jury found Hargrave not guilty of all charges related to the incident.

Hargrave sought reinstatement to the force, but was refused by an arbitrator.

On Jan. 16, 2015, Hargrave filed a complaint in the U.S. District Court for the Eastern District of Pennsylvania, challenging the constitutionality of his dismissal, and naming the City and former Police Commissioner Ramsey as defendants.

The complaint alleged four counts: (1) Race discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment; (2) Retaliation for speech protected by the First Amendment; (3) Municipal liability under Monell v. New York City Department of Social Services; and (4) Race discrimination in violation of the Pennsylvania Constitution’s equal protection guarantee.

Defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) on all Hargrave’s claim, except for Hargrave’s federal equal protection claim. On May 20, 2015, the District Court dismissed the First Amendment retaliation count without prejudice, declined to dismiss the Monell count, and dismissed the Pennsylvania Constitution-related equal protection count with prejudice.

Hargrave chose not to re-plead his First Amendment retaliation claim, leading the defendants to move for summary judgment on Hargrave’s federal equal protection and Monell claims. In opposing the defendants’ motion, Hargrave filed a Rule 56(d) affidavit, arguing the need for additional discovery. The District Court granted the defendants’ motion on June 8, 2016, and Hargrave’s appeal followed.

On appeal, Hargrave argued to the Third Circuit that he was treated differently than his contemporaries with respect to the reinstatement policy based on his being an African-American; that the District Court mistakenly granted the defendants’ summary judgment on his federal equal protection claim; that the District Court abused its discretion by not providing him more discovery to counter defendants’ summary judgment motion; and that the District Court should not have dismissed his First Amendment retaliation claim.

“To establish a selective enforcement claim, Hargrave must show ‘(1) that he was treated differently from other similarly situated individuals, and (2) that this selective treatment was based on an unjustifiable standard, such as race, or religion, or some other arbitrary factor, or to prevent the exercise of a fundamental right.’ Persons are similarly situated under the Equal Protection Clause when they are alike ‘in all relevant aspects.’ Hargrave also bears the burden of proving ‘the existence of purposeful discrimination,” Fisher stated.

On those criteria, Fisher said Hargrave failed to make his case.

“We agree with the District Court that Hargrave failed make his case on both elements. Hargrave produced no evidence of similarly situated white police officers who committed domestic assault (or engaged in other conduct warranting termination) but were not dismissed from the police department and denied reinstatement. Absent such comparator evidence, Hargrave’s claim fails at the starting gate. We likewise agree with the District Court that Hargrave failed to prove intentional discrimination by the City and Ramsey. The District Court saw no such evidence in the record, and neither do we. Summary judgment on Hargrave’s equal protection claim was appropriate,” Fisher said.

Hargrave also argued the District Court abused its discretion by prohibiting further discovery, after he filed a Rule 56(d) affidavit in opposition to defendants’ motion for summary judgment. The Third Circuit has interpreted Rule 56(d) to require “a party seeking further discovery in response to a summary judgment motion to submit an affidavit specifying, for example, what particular information is sought; how, if uncovered, it would preclude summary judgment; and why it has not previously been obtained.”

Departing from this rule, Fisher said any explanation about how and why the information he sought could not have been obtained during discovery was missing from his affidavit, therefore, the District Court did not abuse its discretion on that point.

“Finally, Hargrave argues that the District Court should not have dismissed his First Amendment retaliation claim. To establish such a claim, a public employee like Hargrave ‘must show that his speech is protected by the First Amendment and that the speech was a substantial or motivating factor in what is alleged to be the employer’s retaliatory action.’ A public employee’s statement is protected by the First Amendment when, inter alia, ‘the employee spoke as a citizen when making the statement’ and ‘the statement involved a matter of public concern,” Fisher stated.

“Hargrave’s complaint contains nothing more than conclusory references to prior speech in ‘opposition to racial discrimination and/or misuse of the criminal and disciplinary system.’ Such threadbare statements are insufficient to state a plausible claim. Especially after Hargrave declined the District Court’s invitation to amend his complaint, we will not now permit him a third bite at the apple,” Fisher said.

The plaintiff is represented by Brian M. Puricelli in Warrington.

The defendants are represented by Frank E. Wehr II and Toi A. Shields of the City of Philadelphia’s Law Department, in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 16-3062

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-00201

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

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