On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 94-cv-02885)
Before: SCIRICA and ROTH, Circuit Judges and RESTANI, Judge, Court of International Trade *fn1
The Philadelphia Housing Authority transferred one of its police officers from special drug enforcement duty to regular patrol duty after his appearance at a bail hearing as a character witness for a reputed organized crime associate. The officer contends his transfer violated his free speech and association rights. At trial, after the close of all evidence, the district court granted defendants judgment as a matter of law under Fed. R. Civ. P. 50. We will affirm. *fn2
The plaintiff, Donald Green, has been employed as a police officer for the Philadelphia Housing Authority Police Department since November, 1991. In February, 1994, he was assigned to the Housing Authority Police Department's Drug Elimination Task Force ("DETF"). The DETF is a special unit that works together with other law enforcement agencies to combat illegal drug activity on Philadelphia Housing Authority property.
Several weeks after his assignment to the DETF, Green received a telephone call from Norman Keller, a friend of over twenty years, asking him to testify as a character witness on behalf of his son, Herbert Keller, at a bail hearing in federal court. Pursuant to Housing Authority Police Department regulations, Green made a written request to his immediate supervisor for permission to testify. Green received approval, provided that he testify during his lunch hour and in civilian clothing.
On March 23, 1994, Green appeared at the bail hearing, and Keller's attorney introduced him by name and occupation. The magistrate judge then proceeded to read the charges pending against Keller, which included organized crime activity in connection with the Stanfa crime organization. Green, who until that time was unaware of the organized crime charges, told Keller he could not be associated with the case and left the hearing without testifying.
Later that day, an unidentified law enforcement officer told the DETF Captain, defendant Daniel Rosenstein, that Green had appeared as a character witness for a member of the Stanfa crime organization. Rosenstein ordered Green removed from "street" work and told him there would be an investigation into his possible ties with organized crime. Rosenstein then sent a memorandum to the Housing Authority Police Department's Deputy Chief of Police, defendant John Cresci, recommending such an investigation and requesting Green's temporary transfer to regular patrol duty pending its outcome.
Subsequently, Cresci discussed the matter with the Housing Authority Police Department's Acting Chief of Police, defendant William Bergman. They decided a departmental investigation was unnecessary because it would duplicate the ongoing federal investigation of the Stanfa crime organization, and also because they did not believe Green was affiliated with organized crime. But Cresci and Bergman agreed with Rosenstein that Green should be transferred. On March 31, 1994, Green was formally transferred from the DETF to regular patrol duty.
Green's duties changed as a result of his transfer. As a DETF officer, Green participated in drug raids, made drug-related arrests, and was generally responsible for enforcing the drug laws. After the transfer to regular patrol duty, Green was principally assigned to work out of a building's security booth. Green's salary was not reduced, although he claims his opportunities to work overtime (and consequently to earn overtime pay) decreased.
Green contends his transfer constituted unlawful retaliation for protected First Amendment activity. He brought this action against the Philadelphia Housing Authority, Rosenstein, Cresci and Bergman under: 42 U.S.C. Section(s) 1983 for violation of his First Amendment rights to freedom of speech and association; 42 U.S.C. Section(s) 1985(2) for violation of his right to be free from retaliation for his appearance as a witness in federal court; and the Pennsylvania Constitution for deprivation of reputation without due process of law.
At trial, defendants Bergman and Cresci testified they had no information or even suspicion Green was involved with organized crime, *fn3but that his transfer was nonetheless justified. They explained Green was transferred "in case there was anything where [the Housing Authority Police Department] might be embarrassed . . ." and because it "was right for the organization." (J.A. at 122, 164.) In their brief on appeal, defendants maintain they transferred Green out of their concern that the appearance of his ties to organized crime would "bring ...