PHILADELPHIA – A federal judge has partially dismissed two claims from a suit filed by a local corrections officer who claimed that his First Amendment rights were violated, when he was disciplined for speech made in a Facebook post to call for a rally in response to payroll policy breaches.
Kevin Sizer first filed suit in the Philadelphia County Court of Common Pleas on July 1 versus the City of Philadelphia (Department of Prisons). Both parties are of Philadelphia.
(The case was removed to the U.S. District Court for the Eastern District of Philadelphia on July 9.)
“Plaintiff was hired as a correctional officer by the City in 2006. In 2009, plaintiff was promoted to Correctional Sergeant. In 2013, plaintiff was promoted to Correctional Lieutenant. In March 2019, the City began using a payroll system known as ‘OnePhilly. The OnePhilly payroll system miscalculated checks, failed to account for overtime, inaccurately accrued sick-time and vacation accruals and shorted many City employees of pay,” the suit stated.
“Plaintiff, himself, did not receive timely payment for the wages he earned as a result of failures in the OnePhilly system. However, plaintiff does not have the records to show precisely how many hours were worked, what overtime was unpaid and what overtime was untimely paid. Such information will be made available in discovery in this matter. The OnePhilly payroll system failure was a matter of great public concern and the scope of the payroll system failure was enormous. It caused several employees to file individual and collective actions against the City for Fair Labor Standards Act violations.”
Sizer is a member of the relevant Union for Prisons employees and started a thread on the “Philadelphia Corrections United” Facebook page, calling for a rally in response to the payroll system failure. Subsequent posts showed other employees suggesting a strike, which is not legal for prison employees to do, but the plaintiff himself did not suggest such an action, the suit said.
On July 11, 2019, a formal disciplinary hearing was held against Sizer. Following charges that Sizer allegedly knew of the planned job action, he was suspended for 30 calendar days and demoted by his employer.
But according to Sizer, he did not know of any “job action” posts until after he first learned he would be disciplined.
“No one testified that plaintiff saw the ‘job action’ posts before he learned of the pending charges. There was no admission by plaintiff or corroboration from anyone that plaintiff knew or endorsed any illegal activity. It is rank speculation and conjecture by defendant to assert that plaintiff was aware of any ‘job action’ post before he was notified of the pending charges,” according to the lawsuit.
“As a direct and proximate result of defendant’s conduct, plaintiff suffered severe injuries, which include but are not limited to: a) Lost wages; b) Lost back pay; c) Lost future wages; d) Lost benefits; e) Embarrassment and humiliation; f) severe emotional distress; and g) other damages as described in further detail in this pleading and as will become evident through the course of discovery.”
The City filed a motion to dismiss the case on July 26.
“Plaintiff’s claims should be dismissed for the following reasons: (1) Plaintiff’s 42 U.S.C. Section 1983 First Amendment retaliation claim fails because the speech at issue was not one of public concern; (2) even if the matter is one of public concern, the employer’s interest in avoid disruption to its prison control staff outweighs any interest in such speech; and (3) plaintiff cannot bring the Fair Labor Standards Act claim without first attempting to resolve it through established procedures and exhausting his remedies,” the motion stated.
“However, plaintiff fails to demonstrate how making a posting in a closed Facebook group available only to current and former corrections officers entitles him to protections under the First Amendment when said statement was made only for the benefit, enjoyment and conversation for and with members of a very specific group. As the statement was made only to other correctional officers and, based on the allegations of plaintiff’s complaint, involved a private grievance regarding wage disputes, plaintiff is not entitled to protections under the First Amendment.”
Counsel for Sizer provided an opposing response to the dismissal motion on Sept. 2, arguing that all of the claims were made with sufficient factual basis.
“Plaintiff spoke as a private citizen. He did not make the comment while on duty. His job duties are to guard prisoners; he has nothing to do with the payroll system and he is not a prison spokesman. There is no question plaintiff’s speech was outside the scope of his duties,” the plaintiff’s response brief stated.
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone ruled on the dismissal motion on Oct. 20, retaining the count for First Amendment violation, retaining the count for Pennsylvania Constitution violation (for equitable relief only and dismissing monetary relief) and dismissed the count for Fair Labor Standards Act violation without prejudice, and with leave to amend.
“Defendants argue that the context in which plaintiff made his statement shows that it does not involve a matter of public concern because it was made ‘in a closed Facebook group available only to current and former Philadelphia Department of Prisons corrections officers…solely for the benefit of PDP’s past and present employees.’ Defendants argue that, unlike plaintiffs who publish their concerns in newspapers, or voice their concerns in a public hearing, the circumstances of plaintiff’s statement do not suggest that the post involved a matter of public concern,” Beetlestone said.
“[However,] because the content, form, and context behind plaintiff’s post indicate that it involved a matter of public concern, defendant’s motion to dismiss plaintiff’s First Amendment claim is denied.”
Beetlestone added that Sizer cannot proceed on his second claim for monetary damages because “neither Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution.”
“This position has consistently and through to the present been adopted by Pennsylvania state courts, as well as other courts in this Circuit assessing claims for damages under the Pennsylvania Constitution. Therefore, to the extent plaintiff seeks monetary relief under the Pennsylvania Constitution, his request for relief will be denied. However, plaintiff’s claim for equitable relief under the Pennsylvania Constitution, which defendant has not addressed, may proceed,” Beetlestone said.
However, Beetlestone granted the dismissal of Sizer’s FLSA claim, since he “did not state that he either typically worked 40 hours per week, or that he ever worked 40 hours per week at a specific point in time”, a requirement to plead that type of claim.
For counts of retaliation under the First Amendment to the U.S. Constitution and the Pennsylvania Constitution, the plaintiff is seeking damages in excess of $50,000 including all monetary damages available under the applicable laws, plus statutory damages available under the applicable laws, all equitable relief; attorney’s fees and costs, plus such other relief as this Court deems just and proper.
The plaintiff is represented by Timothy P. Creech of Creech & Creech, in Philadelphia.
The defendant is represented by Nicole S. Morris of the City Solicitor’s Office, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-03051
Philadelphia County Court of Common Pleas case 210602488
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com