PHILADELPHIA – A plaintiff who initially alleged civil rights violations, discrimination and retaliation were committed against him in violation of both state and federal laws, including a claim that he was terminated from his role at the Internal Revenue Service because of unlawful retaliation by Lower Frederick Township and its Chief of Police, has tentatively settled his claims.
Joseph Moore of Gilbertsville first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on July 19 versus Lower Frederick Township and one of its police officers, Corporal David Milligan, both of Schwenksville.
“Plaintiff is currently litigating a case against defendant Lower Frederick Township in this Court at 2:20-cv-05920. The allegations in the operative pleading of the related case are incorporated herein by reference. This Court previously issued an opinion on March 4, 2022 addressing some of plaintiff’s claims in the related case. For purposes of background, plaintiff is alleging civil rights violations, discrimination and retaliation in the related case under various statutes, including a claim that he was terminated from his position at the Department of the Treasury, Internal Revenue Service because of unlawful retaliation by the Defendant and its police chief Paul E. Maxey. Plaintiff amended his complaint in the related case to incorporate the post-employment retaliation allegations and claims on Feb. 23, 2023,” the suit said.
“On or about Feb. 27, 2023, only four days after filing an amended pleading in the related case alleging post-employment retaliation, it came to plaintiff’s attention that his former colleague, Ryan Fields, was effectively threatened about testifying on his behalf by defendant Corporal David Milligan, who is currently employed by the police department. Mr. Fields executed an affidavit attesting to the same, which is incorporated herein by reference. By way of background, Mr. Fields is a witness in the related case and provided another earlier affidavit regarding the allegations in that lawsuit. Mr. Fields went to the police department on or about Feb. 27, 2023 to obtain copies of certifications he believed were on file from his time there as an employee. As Mr. Fields’ March 21, 2023, affidavit states, Cpl. Milligan told Mr. Fields ‘the Chief is gonna come back at you and Joe.’ Cpl. Milligan also told Fields that if he did not ‘disengage’ from testifying on plaintiff’s behalf, the Chief could ‘sue’ him. These statements by Cpl. Milligan were made prior to Fields being deposed in the related case. Fields perceived these actions as a threat, according to his affidavit.”
The suit added that during discovery in the related case, it was discovered that Cpl. Milligan allegedly prepared a “memorandum” to Chief Paul Maxey on Feb. 27, 2023.
“In that ‘memorandum’, Cpl. Milligan admitted: 1) He knew depositions were planned in the related case; 2) that he told Fields he was aware of the previous affidavit he prepared for the related case; 3) that he told Fields that plaintiff’s claims in the related case were untrue; 4) that he allegedly questioned why Fields did not report an alleged ticket quota system (as alleged in the related case) to the District Attorney or the Office of the Attorney General; 5) that he told Fields information about Steve Rinker (another police officer who provided information in the related case and an individual who has also filed a charge of discrimination against the Township) in attempt to falsely undermine Rinker’s credibility,” the suit stated.
“Cpl. Milligan’s actions were outright witness intimidation, tampering and/or unlawful post-employment retaliation against plaintiff for the related case and his engagement in protected activity in violation of federal and state law.”
In a Sept. 25 answer to the complaint, the defendants denied the plaintiff’s allegations in their entirety and asserted no less than 39 separate affirmative defenses on their own behalf.
“Plaintiff has not stated and cannot prove a cause of action against answering defendants upon which relief may be granted. At all relevant times, plaintiff was afforded all of the rights, privileges and immunities granted pursuant to the Constitution and laws of the United States and the Commonwealth of Pennsylvania. At all relevant times, answering defendants’ conduct was reasonable under the circumstances. Answering defendants had a legitimate, non-discriminatory, non-retaliatory and lawful business reason for any and all employment decisions with regard to plaintiff, which are the result of legitimate operations of local government considerations and are based on factors other than any protected classification and which were not pre-textual. Answering defendants did not engage in any custom, policy, pattern, or practice that deprived plaintiff of his constitutional rights. All of plaintiff’s claims may be barred by the applicable statutory, administrative and/or judicial limitations, and/or by plaintiff’s failure to comply with or exhaust all statutory, administrative and/or judicial prerequisites to suit,” the defenses stated, in part.
“Plaintiff has failed to state or prove a claim upon which he is entitled to injunctive relief. The injunctive relief plaintiff seeks is not appropriate under the facts and circumstances of this case. Plaintiff is not entitled to any damages, or the amount of plaintiff’s alleged damages must be limited pursuant to law and/or plaintiff has failed to mitigate any damages that plaintiff alleges he suffered as a result of answering defendants alleged conduct. Plaintiff’s alleged injuries, suffering, and/or damages, if any, were caused by his own conduct, and not by any act or failure to act on the part of answering defendants. Any and all of defendants’ employment decisions with regard to plaintiff were made in good faith. Defendants specifically deny that its actions or failure to act towards plaintiff was based on discriminatory, retaliatory, and/or impermissible factors, including without limitation, protected activity. To the extent that it should be determined that defendants’ actions or failure to act were based in part upon discriminatory, retaliatory and/or impermissible factors, defendants would have reached the same decision for non-discriminatory, non-retaliatory and/or permissible reasons which were not pre-textual.”
UPDATE
On Jan. 18, plaintiff counsel submitted a letter acting as a joint status report to U.S. District Court for the Eastern District of Pennsylvania Judge Richard Barclay Surrick which explained that the lawsuit reached a potential settlement.
“Kindly accept this letter as a joint status report. The parties were able to reach an amicable resolution with Judge Stengel (Ret.) at mediation in both cases on Jan. 4, 2024. The parties are currently working on finalizing settlement terms. For these reasons, the parties respectfully request the Court not enter an order pursuant to Local Rule 41.1(b) at this time. The parties anticipate filing formal stipulations of dismissal no later than 45 days from today or March 4, 2024. I have enclosed a proposed order herewith reflecting the same. Your Honor’s time and consideration in this regard is greatly appreciated,” the letter stated.
In response, Surrick granted the requested order from counsel.
“Following receipt of the joint status report of counsel in both above-captioned matters, it is hereby ordered that the parties shall file formal stipulations of dismissal in the above-referenced actions on or before March 4, 2024, once settlement is consummated,” Surrick said.
For counts of retaliation and failure to train under 42 U.S.C. Sections 1981 and 1983, retaliation under the First Amendment to the U.S. Constitution, retaliation under the Pennsylvania Whistleblower Law and post-employment retaliation under Title VII of the Civil Rights Act of 1964, the plaintiff is seeking the following relief:
• Defendants are to be prohibited from continuing to maintain their illegal policies, practices, or customs of retaliating against employees and are to be ordered to promulgate an effective policy against such discrimination/retaliation and to adhere thereto (awarding plaintiff such injunctive and/or equitable relief);
• Defendants are to compensate plaintiff, reimburse plaintiff, and make plaintiff whole for any and all pay and benefits plaintiff would have received had it not been for defendants’ illegal actions, including but not limited to back pay, front pay, bonuses and medical and other benefits. Plaintiff should be accorded those benefits illegally withheld from the date he first suffered discrimination or retaliation at the hands of defendants until the date of verdict (in addition to front pay or other equitable relief);
• Plaintiff is to be awarded reinstatement with defendant Township, unless a court determines such a remedy is impractical or impossible; and alternatively, any other damages in lieu of such relief;
• Plaintiff is to be awarded punitive damages against defendant Maxey as permitted by applicable law in an amount believed by the Court or trier of fact to be appropriate to punish the individually-named defendants in this action for their willful, deliberate, malicious and outrageous conduct, and to deter others from engaging in such misconduct in the future;
• Plaintiff is to be accorded any and all other equitable and legal relief as the Court deems just, proper, and appropriate (including but not limited to emotional distress/pain and suffering damages - where permitted under applicable law(s);
• Plaintiff is to be awarded the costs and expenses of this action and reasonable legal fees as provided by applicable federal and state law;
• Any verdict in favor of plaintiff is to be molded by the Court to maximize the financial recovery available to plaintiff in light of the caps on certain damages set forth in applicable federal law; and
• Plaintiff’s claims are to receive a trial by jury to the extent allowed by applicable.
The plaintiff is represented by W. Charles Sipio, Samantha P. Martin and Ari Risson Karpf of Karpf Karpf & Cerutti, in Bensalem.
The defendants are represented by David J. MacMain and Laurie Ann Fiore of MacMain Leinhauser, in West Chester.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-02753
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com