1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-21-1998

Fultz v. Dunn

Precedential or Non-Precedential:

Docket 97-7378

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Recommended Citation

"Fultz v. Dunn" (1998). 1998 Decisions. Paper 281.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/281
Filed December 21, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-7378 and 97-7503 

KENNETH W. FULTZ 

v. 

JOHN S. DUNN, JR.; DENNIS L. FARLEY; 

DEPARTMENT OF ENVIRONMENTAL RESOURCES, 

COMMONWEALTH OF PENNSYLVANIA; JAMES M. SEIF 

 John S. Dunn, Jr.; 

 Dennis L. Farley, 

 Appellants in No. 97-7378 

KENNETH W. FULTZ 

 Appellant in No. 97-7503 

v. 

JOHN S. DUNN, JR.; DENNIS FARLEY; 

DEPARTMENT OF ENVIRONMENTAL RESOURCES, 

COMMONWEALTH OF PENNSYLVANIA; JAMES M. SEIF 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D.C. Civ. No. 94-01914) 

Argued November 19, 1998 

BEFORE: GREENBERG, ALITO, and 

GODBOLD,* Circuit Judges 

_________________________________________________________________ 

*Honorable John C. Godbold, Senior Judge of the United States Court of 

Appeals for the Eleventh Circuit, sitting by designation. 
(Filed: December 21, 1998) 

 D. Michael Fisher 

 Attorney General 

 John G. Knorr, III (argued) 

 Chief Deputy Attorney General 

 Chief, Appellate Litigation 

 Section 

 Calvin R. Koons 

 Senior Deputy Attorney General 

 Gwendolyn T. Mosley 

 Senior Deputy Attorney General 

 15th Floor, Strawberry Square 

 Harrisburg, PA 17120 

 Attorneys for John S. Dunn and 

 Dennis L. Farley 

 Cletus P. Lyman (argued) 

 Michael S. Fettner 

 Lyman & Ash 

 1612 Latimer Street 

 Philadelphia, PA 19103 

 Attorneys for Kenneth W. Fultz 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

Appellants John S. Dunn, Jr. and Dennis Farley, officers 

of the Pennsylvania Department of Conservation and 

Natural Resources, appeal from a final judgment entered on 

a jury verdict against them in favor of appellee Kenneth W. 

Fultz, a Department employee. Fultz asserted a First 

Amendment retaliation claim in this action under 42 U.S.C. 

S 1983, the alleged retaliation being in response to his 

conduct in having brought an action entitled Fultz v. Davis, 

D.C. Civ. No. 90-00779 ("Davis"), in the United States 

District Court for the Middle District of Pennsylvania. In 

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Davis, Fultz successfully challenged his dismissal in 1988 

by the Department of Environmental Resources, the 

predecessor to the Department of Conservation and Natural 

Resources. As a matter of convenience, we refer to both 

Departments interchangeably as Department. In particular, 

in this case Fultz charged that upon his reemployment, as 

a result of Davis Dunn, the Department's Chief of Employee 

Relations and Training, deprived him of his seniority, thus 

causing him to lose a later promotion to a position as Park 

Operations Manager I. Fultz asserted that Dunn took this 

action on behalf of himself and Farley, the Director of the 

Department's Bureau of Personnel, and thus we do not 

differentiate between the appellants in this opinion. The 

appellants denied that Dunn acted to retaliate against 

Fultz, and at and after the trial unsuccessfully sought a 

judgment as a matter of law pursuant to Fed. R. Civ. P. 

50(b). 

On this appeal the appellants assert that they are 

entitled to a judgment as a matter of law, or, alternatively, 

to a new trial pursuant to Fed. R. Civ. P. 59. Inasmuch as 

Dunn reemployed Fultz in accordance with a civil service 

rule which afforded him no discretion to make a decision 

that would have preserved Fultz's seniority, we hold that, 

as a matter of law, Dunn, and thus Farley, did not retaliate 

against Fultz. Consequently, we will reverse the judgment 

of the district court as well as all orders and judgments 

granting Fultz monetary damages or equitable relief and 

will remand the case to the district court to vacate all such 

orders and judgments. Moreover, the district court on the 

remand should enter a judgment as a matter of law in favor 

of Dunn and Farley. Our disposition of the appeal makes it 

unnecessary for us to consider the appellants' request for a 

new trial. 

Fultz appeals from orders which stayed execution on the 

judgment without requiring the appellants to post a

supersedeas bond, and which deferred an award of 

attorney's fees pending disposition of the appellants' 

appeal. We have consolidated the two appeals. In view of 

our disposition of the appellants' appeal, we will dismiss 

Fultz's appeal, which clearly is moot as he no longer has a 

judgment in his favor and cannot recover attorney's fees 

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under 42 U.S.C. S 1988, as he is not a prevailing party. See 

U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 

U.S. 18, 21, 115 S.Ct. 386, 389 (1994). 

II. BACKGROUND 

A. Factual History 

In 1988, the Department fired Fultz from his position as 

a state park manager after 24 years of employment, in part 

for running a boat storage business without the 

Department's knowledge. In various fora, Fultz argued that 

the Department fired him without procedural due process 

and, in 1990, he filed the Davis action in the district court 

against the Department and two of its officials, other than 

Dunn or Farley, challenging his termination. In Davis, the 

district court granted the defendants summary judgment, 

but on appeal on July 15, 1991, we reversed, as we held 

that Fultz had not received the pre-termination hearing 

required by Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 

532, 105 S.Ct. 1487 (1985). Thus, we ordered the 

defendants to reinstate Fultz to his position. We further 

provided that the district court could consider additional 

relief on remand. Significantly, however, we permitted the 

Department to refile charges against Fultz on the basis of 

a constitutionally adequate hearing. See Fultz v. Davis, Nos. 

90-6039 and 91-5058, slip op. at 14 (3d Cir. July 15, 

1991). Thus, our opinion was a procedural victory for Fultz 

but in no way exonerated him from the Department's 

misconduct allegations against him. 

On May 29, 1992, Fultz and the Department reached a

settlement agreement before trial on the remand in Davis. 

The agreement stated that Fultz acknowledged his error in 

engaging in the boat storage business and that he regretted 

his activity. On the other hand, the Department agreed not 

to re-file charges against him and, as particularly germane 

here, the Department agreed to "re-employ Fultz in the 

capacity of Park Superintendent IV with re-employment to 

commence June 15, 1992," "to provide [Fultz] with 40 days 

annual leave and 135 days of sick leave," and to pay 

$75,000 to Fultz "in settlement of his claims." The

agreement further provided that the defendants would 

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"purge [Fultz's personnel] file with respect to matters 

investigated or charged in 1988." Significantly, the 

agreement did not mention seniority. 

Dunn, who was not a party in Davis, was responsible for 

implementing the settlement agreement. The Department 

reemployed Fultz in the Bureau of State Parks in 

Harrisburg at an appropriate rank and pay level. To comply 

with the settlement agreement provision requiring the 

purging of Fultz's personnel file, Dunn deleted the word 

"terminated" from Fultz's computer personnel record and 

substituted the benign term "voluntary resignation" to 

describe the break in Fultz's work history from 1988-1992. 

It is undisputed that upon his reemployment the 

Department did not credit him with seniority for his 

employment prior to his 1988 termination, or for 1988- 

1992. In effect, the Department treated Fultz as a newly 

hired employee with seniority accruing from the date it 

rehired him in 1992. 

In November 1992, Fultz applied for a promotion to either 

of two Department positions at higher levels in rank and 

with higher salaries than his position at that time. When 

the Department awarded the positions to other applicants, 

Fultz learned that he had not recaptured his seniority upon 

his reemployment, and had been viewed as an employee 

with five months rather than 24 years of seniority. Fultz 

attributes his failure to obtain a position as Park Manager 

I to his loss of seniority for his service prior to his 1988 

termination. 

B. Procedural History 

On November 22, 1994, Fultz filed this suit against the 

appellants, advancing two arguments: (1) Dunn had 

miscalculated his seniority to retaliate against him for 

having successfully brought the 1990 Davis action, and (2) 

he otherwise would have received one of the promotions. 

We focus on the first argument because our disposition of 

it is determinative of this appeal. The court submitted the 

case to the jury on written interrogatories. Thefirst 

question was "Do you find that [Fultz's] exercise of the First 

Amendment rights was a substantial or motivating factor in 

Defendant Dunn's calculation of his seniority?" The court 

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told the jury that if it answered that question "No" it was to 

return to the courtroom, thus recognizing that unless Fultz 

was successful on that question he would lose the case. On 

this appeal, Fultz does not contend that the court was 

wrong on this point. 

The jury, however, answered "Yes" and went on to answer 

the remaining interrogatories in Fultz's favor and to award 

him substantial damages. In addition, the court granted 

Fultz equitable relief which, in view of our disposition, we 

need not describe at length. On January 16, 1997, the 

district court denied the appellants' motions for a judgment 

as a matter of law or for a new trial, finding the motions 

untimely filed, but stating that there was sufficient evidence 

in the record to support the jury's verdict. In a subsequent 

opinion, however, the court acknowledged that the posttrial motion leading to the January 16, 1997 order was 

timely and Fultz does not contend that the appellants have 

not preserved the right to contend on this appeal that they 

were entitled to a judgment as a matter of law. 

III. DISCUSSION 

Our standard of review on this appeal is well established. 

We exercise plenary review and will overturn a jury verdict 

"only if, viewing the evidence in the light most favorable to 

the nonmovant and giving it the advantage of every fair and 

reasonable inference, there is insufficient evidence from 

which a jury reasonably could find liability." Lightning Lube, 

Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). 

Because Fultz alleges that his conduct in having brought 

the Davis case led the appellants to retaliate against him by 

wrongly calculating his seniority, the case is governed by 

the three-prong analysis enunciated by the Supreme Court 

in Mount Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 

U.S. 274, 97 S.Ct. 568 (1977). A public employee alleging 

an adverse employment action because he engaged in 

protected First Amendment activity must show that (1) he 

engaged in protected activity, and (2) the protected activity 

was a substantial or motivating factor for the adverse 

action. See Swineford v. Snyder County, 15 F.3d 1258, 

1270 (3d Cir. 1994) (applying Mt. Healthy test). If the 

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plaintiff satisfies the first two prongs, the defendant can 

escape liability by showing that (3) he would have taken the 

same action absent the protected activity. See Pro v. 

Donatucci, 81 F.3d 1283, 1287-88 (3d Cir. 1996). 

Fultz argues that the protected activity was the 

successful 1990 Davis suit, and that the adverse action 

was the miscalculation of seniority.1 While the appellants 

acknowledge that Fultz's Davis action was protected First 

Amendment activity, they counter that no reasonable jury 

could have found that Dunn calculated Fultz's seniority to 

retaliate against him for having brought that case, because 

civil service rules governed Dunn's calculation, and because 

Fultz did not bargain for recapture of his seniority in the 

settlement agreement.2 Thus, the appellants contend that 

Fultz did not show that the protected activity was a 

substantial or motivating factor in Dunn's conduct, and 

that in any case, they demonstrated that the seniority 

determination would have been the same absent Fultz's 

protected activity.3 

Inasmuch as appellants acknowledge that Fultz's Davis 

suit was protected First Amendment activity, the issue on 

this appeal is whether that activity was a substantial or 

motivating factor in Dunn's calculation of seniority. The 

district court in a post-trial opinion denying appellants a 

judgment as a matter of law determined that "the record 

contains sufficient evidence from which the jury could 

_________________________________________________________________ 

1. The jury was instructed that the calculation of seniority, and not the 

Department's denying Fultz a promotion, was the adverse action. Fultz 

argued at trial and in his briefs that the loss of promotion stemmed from 

the calculation of seniority, but in view of our result we need not 

describe at length the basis for that argument. 

2. It is not clear that Dunn actually made a notation that Fultz did not 

have seniority for his employment prior to his 1988 termination. The 

seniority had been eliminated under the applicable civil service rule 

prior 

to 1992 and it simply was not restored at that time. Nevertheless, we 

sometimes will refer to Dunn as having determined Fultz's seniority. 

3. Of course, it is difficult to understand how the third Mt. Healthy v. 

Doyle prong could be implicated in this case, for, if Fultz had not 

engaged in the protected activity by filing the Davis case, there is no 

reason to believe that the Department would have reemployed him and 

thus have had a reason to make decisions affecting his seniority. 

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conclude that the decision as to how to calculate [Fultz'] 

seniority was within . . . Dunn's discretion." We disagree. 

Fultz did not show that Dunn had meaningful discretion to 

act other than he did in determining that Fultz did not 

recapture his seniority upon his reemployment. Moreover, 

Fultz did not bargain for recognition of seniority based on 

his terminated employment in the settlement agreement. 

Rather, he agreed to be reemployed commencing June 15, 

1992. Of course, he had good reason to accept 

reemployment as of that date rather than to insist on being 

reinstated retroactively as of 1988 when he was terminated. 

After all, he acknowledged his error in engaging in the boat 

storage business, but the Department nevertheless agreed 

not to refile the charges against him which our opinion in 

Davis permitted it to do. We also point out that the parties 

cannot repeat the original settlement negotiations, so we 

have no way of knowing whether he could have negotiated 

successfully to recapture his seniority. 

Fultz's seniority was governed by 4 Pa. Code S 101.714 

which provides as follows: 

 (a) Seniority as used in this part shall be continuous 

 service unless broken by one or more of the following: 

 resignation; retirement; failure to report after 

 notification of appointment through mandatory, 

 preferred or optional reemployment rights; expiration of 

 mandatory, preferred or optional reemployment rights; 

 or failure to report after leave and acceptance of other 

 permanent employment while on leave of absence 

 without pay. If service is broken for one of these 

 reasons, the employe[e] shall lose accrued seniority. If 

 an employe[e] is returned within 1 year after this type 

 of break in service, the employe[e] is entitled to credit 

 for seniority purposes the time accrued up to the time 

 the break in service occurred, but is not entitled to 

 credit for the time represented by the break in service. 

_________________________________________________________________ 

4. The briefs submitted by both sides in this case treated this regulation 

as the one that governed this case. However, near the end of the oral 

argument, counsel for Fultz suggested for the first time that this 

regulation was not in effect at the relevant time. Based on his brief, we 

refuse to entertain that argument. 

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 (b) Periods of furlough and approved leave of absence 

 without pay shall be deemed continuous employment 

 for seniority purposes, except that the period of 

 furlough or leave of absence without pay will not be 

 counted toward seniority. 

 (c) Removal for cause shall terminate accrued 

 seniority. Demotion for cause shall terminate seniority 

 in the class from which demoted. 

Under this rule, Fultz did not have seniority when the 

Department reemployed him based on his service prior to 

his 1988 removal because his service was not "continuous." 

While the rule provides for recapture of seniority if service 

is broken for one of the enumerated reasons, this recapture 

is possible only if the "employe[e] is returned within 1 year 

after this type of break in service." Here, of course, the 

break in service far exceeded one year. Thus, even if Dunn 

had treated Fultz's termination as a "resignation" or a 

"retirement" Fultz could not have overcome the one-year 

obstacle so as to obtain seniority for his service prior to his 

reemployment. Therefore, we have a situation which, as we 

recently noted in Larsen v. Senate of the Commonwealth of 

Pennsylvania, 154 F.3d 82, 95 (3d Cir. 1998), could arise in 

a First Amendment retaliation case: 

 In some circumstances, the legitimate basis for the 

 actions might be so apparent that the plaintiff 's 

 allegations of retaliatory motive could not alter the 

 conclusion that under the circumstances . . . the 

 defendants would have been compelled to reach the 

 same decision even without regard for the protected 

 First Amendment activity. 

Thus, the protected activity was not a substantial or 

motivating factor in Dunn's conduct with respect to Fultz's 

seniority and the appellants are entitled to a judgment as 

a matter of law. 

In reaching our result, we reiterate that we recognize that 

when the Department reemployed Fultz, Dunn removed the 

word "terminated" from his personnel record in the 

Department's computer system, as directed by the 

settlement agreement, and entered "voluntary resignation." 

Fultz characterizes the change as "falsely" entered and 

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retaliatory. Dunn's action was literally "false" in that Fultz 

did not voluntarily resign in 1988 but had been terminated 

improperly. Yet the evidence showed that inasmuch as 

Dunn was directed by the settlement agreement to delete 

"terminated," another term had to be entered, and none of 

the available terms characterized what had occurred more 

accurately. 

In any event, Fultz could not rebut Dunn's testimony 

that the result -- loss of seniority -- would have been the 

same regardless of what term he used. Dunn testified that 

he selected the term "voluntary resignation" from a set of 

terms or "transaction codes" used at that time by the 

Department to describe various changes in employment 

status, such as transfers or leaves. While he had discretion 

in labeling the four-year break in service as a "voluntary 

resignation," versus such other plausible, available terms 

as "involuntary resignation" or even "retirement," he 

testified that his choice of label was in any case immaterial 

because, whatever the label -- "voluntary resignation" or 

"involuntary resignation" or "wrongly terminated and now 

reinstated" -- under the civil service rules Fultz would have 

lost his seniority. 

As we have indicated, our reading of the civil service 

rules convinces us that Dunn was correct. The applicable 

civil service rule states that seniority is lost whenever there 

is a break in an employee's service of more than one year, 

4 Pa. Code S 101.71 (a), whether the break is due to 

"retirement," "termination" or "resignation," and other 

circumstances. Id. The only express exceptions are for 

employees who are furloughed or on "leave without pay," 

terms which certainly did not describe the circumstances 

here. Id., at (a), (b).5 Thus, in his brief Fultz completely 

misstates what happened when the Department reemployed 

him in 1992, as he indicates that "Mr. Dunn wiped out over 

24-years of service, by falsely entering Mr. Fultz's 1988 

termination as a `voluntary resignation.' " Br. at 11. In fact, 

_________________________________________________________________ 

 

5. Dunn testified that he did not use the term "leave without pay" to 

characterize the four-year break because he understood that Fultz had 

withdrawn funds from the state retirement fund between 1988 and 1992 

and could not or did not wish to repay them. 

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it was the circumstance that Fultz's service was not 

continuous as required by the applicable civil service rule 

which "wiped out" his seniority. 

We find it highly significant that if Dunn had 

circumvented the Department's transaction codes and more 

accurately indicated that Fultz had been "wrongfully 

terminated and was now reemployed" Fultz nevertheless 

would not have recaptured the pre-1988 service for 

seniority purposes, because his service would not have 

been continuous and the break in service still would not 

have been attributable to a circumstance under the civil 

service rules allowing seniority recapture. It is thus clear 

that Fultz reasonably cannot charge that Dunn wrongfully 

deprived him of seniority. 

Moreover, if Dunn attempted to invent a term to 

recapture Fultz's seniority for his service prior to the 1988 

termination, he would have been giving Fultz more than he 

bargained for when he came to an agreement with the

Department settling the Davis action. The settlement 

agreement did not mention seniority, so when Fultz was 

returned to work, Dunn had no directive to give Fultz more 

than he had bargained for or to which he was entitled as, 

in effect, a new employee.6 The plain fact is that Fultz is 

misusing this First Amendment retaliation case as a vehicle 

to enhance his settlement. 

The only evidence Fultz presented to show that Dunn

retaliated against him by "incorrectly" reinstating him 

without accrued seniority was his own belief that under the 

settlement agreement he would be reinstated with accrued 

seniority, and his conversation with John Wilk, Executive 

Director of the Civil Service Commission, when he did not 

_________________________________________________________________ 

6. The district court's order of September 24, 1996, to remedy Fultz's 

failure to receive a promotion directed the appellants to enter into 

Fultz's 

personnel record the term, "[w]rongful termination and reemployment 

with no break in service," a term that did not exist as a transaction code 

option at the time Dunn made the entry (and does not exist today) and 

which would have had to have been invented by him for the express 

purpose of preserving seniority. This order was an unjustified 

amendment of the settlement agreement to give Fultz seniority to which 

he was not entitled. 

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receive a promotion. Fultz asserts that Wilk had told him 

that "the department had the right to interpret[the

seniority rule] however they wanted." But that vague 

evidence cannot be permitted to overcome the 

unambiguous rule provisions so as to permit a conclusion 

that Dunn could have circumvented the rule. The rule is 

clear and leaves no room for "interpretation." Moreover, 

there was no evidence to show that Fultz had been 

promised the opportunity to return to work with his

seniority preserved. Finally, we point out that inasmuch as 

Fultz apparently recognized that there was a seniority 

question when the 1990 case was settled, he should have 

clarified that point at that time. If he had done so, this case 

could have been avoided. 

In sum, it is perfectly clear that Fultz has not shown that 

Dunn would have -- or could have -- done other than view 

the four-year interruption as a break in service leading to 

the elimination of accrued seniority, given that Fultz did 

not bargain for anything else. We find that Fultz failed to 

provide sufficient evidence to show that his protected 

activity was a substantial or motivating factor for the 

seniority decision. Thus, Fultz's evidence as to retaliatory 

conduct was insufficient to support the verdict and the 

appellants are entitled to a judgment as a matter of law. 

IV. CONCLUSION 

For the foregoing reasons, in the appellants' appeal, No. 

97-7378, we will reverse the judgment and orders in favor 

of Fultz granting him damages and equitable relief, and will 

remand the case to the district court to enter a judgment as 

a matter of law in favor of appellants Dunn and Farley. We 

will dismiss Fultz's appeal in No. 97-7503 as moot.

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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