Appeals panel upholds federal judge's dismissal of whistleblower suit by former state police trooper

By Jon Campisi | Feb 6, 2012

A federal appeals court has upheld a ruling by a lower court judge in a case in which a retired Pennsylvania State Police lieutenant had claimed he was demoted in retaliation for investigating claims of sexual harassment by a local district judge against a well-respected member of the state police.

The U.S. Court of Appeals for the 3rd Circuit ruled Feb. 2 that U.S. District Judge David Cercone was correct to dismiss a lawsuit brought by James Fulmer against former State Police Commissioner Jeffrey Miller, former Maj. Frank Monaco and Maj. Harvey Cole.

In his whistleblower suit, Fulmer claimed the agency violated his First Amendment rights when it demoted him following Fulmer’s investigation into Sgt. George Emigh.

Fulmer’s suit alleged that in late 2005, Fulmer reported Emigh’s “questionable behavior” and alleged misconduct to Monaco, who came to Emigh’s defense, praising the state police sergeant as an “outstanding individual,” according to court papers.

Fulmer was looking into allegations made by Magisterial District Judge Suzanne Steffee that Emigh sexually harassed the local jurist.

Monaco had indicated that Fulmer should drop the matter.

An internal investigation into Monaco then took place, followed by an internal affairs complaint filed against Fulmer by Emigh relating to alleged derogatory remarks made by Fulmer to Emigh.

Then, in the spring of 2007, Fulmer learned he was being removed from his position as Crime Section Commander, a demotion that was supposedly made based on statements that Fulmer made to internal affairs investigators.

After retiring from the state police in August 2008, Fulmer filed a lawsuit against the agency for alleged civil rights violations.

The complaint was later dismissed in federal court. Fulmer appealed the ruling, arguing that his First Amendment retaliation claim be allowed to proceed.

In its ruling, the appeals court stated that Cercone was right to dismiss the claim because public employees speaking in relation to their official duties, and not as citizens, are not insulated by the Constitution.

“Upon reviewing the context and content of Fulmer’s statements, we conclude that he spoke pursuant to his official duties,” the ruling states.

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