PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 09-2528 & 09-4644
_______________
WILLIAM A. MORGAN,
Appellant
v.
COVINGTON TOWNSHIP;
SGT. BERNARD KLOCKO, INDIVIDUALLY;
THOMAS M. YERKE, TOWNSHIP CHAIRMAN,
INDIVIDUALLY
_______________
On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil Action Nos. 3-07-cv-01972 and 3-09-cv-00651)
District Judge: Honorable A. Richard Caputo
_______________
Argued November 17, 2010
_______________
Before: AMBRO, FISHER
and GREENBERG, Circuit Judges
(Opinion filed: August 2, 2011)
Cynthia L. Pollick, Esquire (Argued)
The Employment Law Firm
363 Laurel Street
Pittston, PA 18640-0000
Counsel for Appellant
John G. Dean, Esquire
Paula L. Radick, Esquire
Joel M. Wolff, Esquire (Argued)
Elliott Greenleaf & Dean
201 Penn Avenue, Suite 202
Scranton, PA 18503-0000
Counsel for Appellees
_______________
OPINION OF THE COURT
_______________
AMBRO, Circuit Judge
This case involves two lawsuits concerning the
investigation and subsequent termination of plaintiff-
appellant William Morgan, a former police officer with
Covington Township, Pennsylvania. 1 We reverse the District
1
Covington Township is a defendant-appellee in this case,
along with Morgan’s police department supervisor, Sergeant
Bernard Klocko, and the Chairman of the Board of
2
Court’s decision to dismiss Morgan’s second case on res
judicata grounds and affirm in all other respects.
I. Background
In 2007, when the events underlying this case took
place, Morgan was employed by Covington Township as a
police officer. In July and August of that year, he was
involved in two incidents that eventually resulted in
disciplinary charges.
First, Morgan was accused of attempting to interfere in
another officer’s investigation of a “verbal altercation”
between Morgan’s ex-girlfriend, Jill Mailen, and a security
guard, Carla Sodano. (This stemmed from Mailen’s mistaken
belief that Sodano was in a relationship with Morgan.)
Following the altercation, Sodano made a complaint against
Mailen, and Sergeant Klocko ordered the investigating officer
to issue Mailen a citation. Sometime thereafter, Morgan—
who had no official role in the investigation—reportedly
approached Sodano’s supervisor to ask whether she could be
convinced to withdraw her complaint against Mailen.
Additionally, Klocko asserted that Morgan then told him and
the investigating officer that he (Morgan) was taking care of
the situation and that the charges would be dropped. Morgan
denies this assertion.
Second, Morgan entered the empty apartment of Jamie
Villani, his most recent ex-girlfriend, possibly without
Supervisors of Covington Township, Thomas Yerke. We
refer to the defendants collectively as “Covington.”
3
permission. When Morgan left the apartment, he neglected to
shut the back door. To state the obvious, Villani was
surprised and upset when she arrived home. She reported this
incident to Klocko.
On August 16, 2007, Klocko notified the Covington
Township Board of Supervisors of these events, and asserted
that they were part of a larger pattern of “inefficient
performance of duties.” In particular, Klocko characterized
Morgan’s intervention in the Mailen/Sodano situation as
criminal conduct amounting to “official oppression,
intimidation of witnesses or victims, and/or retaliation against
witnesses, victim, or party.” Klocko recommended that
Morgan be suspended without pay. The next day, Covington
Township filed disciplinary charges against Morgan and
informed him that he had a right to respond to the charges in
writing, to request a public hearing, and to be represented by
counsel. Morgan, through counsel, invoked his right to a
public hearing.
The disciplinary charges against Morgan were
suspended shortly thereafter, when Klocko notified the
Pennsylvania State Police of Morgan’s possible commission
of “official oppression,” and placed Morgan on administrative
leave with pay. The Pennsylvania State Police ultimately
declined to investigate. Klocko then referred the case to the
Lackawanna County District Attorney, who also declined to
pursue the matter. Once those avenues were exhausted,
Covington Township reinstituted the disciplinary charges
against Morgan and added an additional charge of conduct
unbecoming an officer. Morgan, who again requested a
public hearing, was continued on paid administrative leave.
Morgan’s hearing was scheduled for November 5, 2007.
4
Before that hearing, Morgan filed a complaint in
federal District Court (“Morgan I”). He alleged that all three
Covington defendants had: 1) violated his procedural due
process rights by publicizing the charges against him and
failing to afford him a hearing before suspending him with
pay; and 2) violated the First Amendment by retaliating
against him for his decision to request a public hearing by
referring for possible prosecution his intervention in the
Mailen/Sodano situation. He also alleged that Covington
Township had failed to train its employees, resulting in a
constitutional injury to Morgan.
On March 6, 2009, following discovery, the District
Court granted summary judgment to Covington on Morgan’s
due process claims. It concluded that Morgan was not
entitled to a hearing before his suspension with pay because
“[h]is private interest in having the opportunity to tell his side
of the story before being placed on suspension is outweighed
by the governmental interest in prompt action to protect the
integrity of the police force.” Morgan v. Covington Twp., No.
3:07-cv-1972, 2009 WL 585480, at *8 (M.D. Pa. Mar. 6,
2009). It also rejected Morgan’s reputational harm claim
based on its conclusion that he failed to identify any instance
in which any defendant publicly accused him of a crime. Id.
at *9. However, the Court denied summary judgment as to
Morgan’s First Amendment retaliation claim.
In the meantime, Covington went ahead with
Morgan’s administrative hearing and, following its
completion on January 15, 2008, the Board voted to terminate
Morgan’s employment. However, Morgan did not
immediately seek to amend his complaint based on his
termination. Rather, he did so on April 9, 2009, just two
5
weeks before his First Amendment claim was to go to trial.
The District Court denied the motion to amend, ruling that it
had come too late.
Later that day, Morgan filed a new complaint under a
new case number (“Morgan II”) alleging that the same three
Covington defendants illegally retaliated against him by
terminating his employment because he demanded a hearing
and filed Morgan I. The new complaint also included the
following footnote:
After being notified by the Court
this morning that the Court
determined that Morgan’s
termination would not be included
in as a claim in [Morgan I],
Morgan files the instant complaint
. . . . Morgan requests that this
Complaint be consolidated with
[Morgan I], and that all claims be
heard before the same jury for the
sake of judicial economy,
consistency, and complete
resolution of all claims against
Defendants.
On April 20, 2009, trial began in Morgan I, which was
not consolidated with Morgan II. During the trial, and of
relevance to this appeal, Morgan was denied permission to
call three rebuttal witnesses who, he asserted, would
6
undermine Klocko’s and Yerke’s credibility by rebutting their
earlier testimony. 2 The District Court reasoned that
[y]ou ask a question and you get an
answer. That’s the end of it if it’s a
collateral matter, and these are
collateral matters. Whether or not
somebody used public property, for
example, he said no. And if you
had evidence that he did, the time to
have impeached him with it was
then, not bring in another witness
now and say, well, yeah, I know he
used . . . public property, because
then what we’ve done is we’ve
joined issue on the question of did
he or didn’t he use . . . public
property . . . . And then he’d be
entitled to try the issue of whether
or not he did. It’s collateral. I’m
not allowing it.
After trial was completed, Covington successfully
sought a jury instruction that it should prevail if it would have
referred Morgan’s conduct to the State Police and the District
Attorney even if he had not asked for a hearing. Morgan
2
Morgan sought to call Scott Van Fleet to rebut Yerke’s
testimony that he (Yerke) never used Township property for
personal use, Barbara Findeis to testify that Klocko had either
done or requested “favors” in the past, and Brian Yeager to
rebut testimony of Klocko that he had never charged anyone
with the crime of official oppression.
7
objected that Covington had never pled this theory, which he
characterized as an affirmative defense, and that it was
therefore inappropriate to instruct the jury on it. However,
the District Court agreed with Covington’s counsel that
whether it would have taken the same actions against Morgan
(regardless of his First Amendment-protected activity) was
not an affirmative defense, but rather “one of the elements . . .
of the claim.”
The jury found for all three Covington defendants. It
first concluded that Morgan proved that the Township—
though not Klocko or Yerke—retaliated against him for
exercising his First Amendment right to petition. However,
the jury also found that the Township established that it
would have taken the same actions against Morgan even if he
had not requested a hearing.
Several months later, in November 2009, the District
Court dismissed Morgan II, concluding that it was barred by
res judicata because it “arose out of the same transaction”
and the “same operative facts at issue” as in Morgan I.
Morgan v. Covington Township, 3:09-cv-00651, 2009 WL
3818431 at *4 (M.D. Pa. Nov. 12, 2009). Additionally, the
Court reasoned that but for Morgan’s decision to wait until
just before trial to seek to amend his complaint to encompass
his termination, that claim would have been heard in Morgan
I. Id. at *5.
Morgan timely appealed the decisions in both cases.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over both Morgan I
and Morgan II under 28 U.S.C. § 1331. We have jurisdiction
8
under 28 U.S.C. § 1291. We review de novo the District
Court’s decisions granting partial summary judgment to
Covington in Morgan I and dismissing Morgan II on res
judicata grounds. Massie v. Dep’t of Housing & Urban Dev.,
620 F.3d 340, 347 (3d Cir. 2010); Peduto v. City of North
Wildwood, 878 F.2d 725, 727 (3d Cir. 1989). We review for
abuse of discretion both the District Court’s refusal to allow
Morgan to present “rebuttal” witnesses and its decision to
instruct the jury on the “same action” defense to Morgan’s
First Amendment claim. McKenna v. City of Phila., 582 F.3d
447, 462 (3d Cir. 2009); Donlin v. Philips Lighting N. Am.
Corp., 581 F.3d 73, 78 & 80 (3d Cir. 2009).
III. Analysis
On appeal, Morgan contends that: (1) the District
Court erred by dismissing Morgan II because the event
underlying that complaint—Morgan’s termination from his
job as a police officer—took place after Morgan I was filed;
(2) Covington was not entitled to a jury instruction on the
“same action” defense because it failed to plead that
“affirmative defense” in its answer; (3) he should have been
permitted to call Yerke’s and Klocko’s credibility into doubt
through rebuttal witnesses; and (4) Covington was not
entitled to summary judgment as to his due process claims.
We discuss these arguments in turn.
A. The Application of Res Judicata to Morgan II
Res judicata promotes judicial economy and protects
defendants from having to defend multiple identical or nearly
identical lawsuits by “bar[ring] not only claims that were
brought in a previous action, but also claims that could have
9
been brought.” In re Mullarkey, 536 F.3d 215, 225 (3d Cir.
2008). It applies when there exists “(1) a final judgment on
the merits in a prior suit involving (2) the same parties or
their privies and (3) a subsequent suit based on the same
cause of action.” Id. (quoting Post v. Hartford Ins. Co., 501
F.3d 154, 169 (3d Cir. 2007)). However, our Court has not
yet decided whether res judicata may apply to events, like
Morgan’s termination in this case, that postdate—but relate
to—an earlier-filed lawsuit.
Morgan argues that the cut-off date for res judicata
purposes was the date he filed Morgan I, and that he was
therefore free to file a separate complaint based on his later
termination. Covington counters that there is significant
factual overlap between Morgan I—which has already been
decided by a jury—and Morgan II, and that significant
resources will be wasted if we allow those issues to be re-
litigated.
Five other Courts of Appeals have already adopted a
bright-line rule that res judicata does not apply to events
post-dating the filing of the initial complaint. Smith v. Potter,
513 F.3d 781, 783 (7th Cir. 2008) (“Res judicata does not bar
a suit based on claims that accrue after a previous suit was
filed. . . . It does not matter whether, as in the case of
harassment, the unlawful conduct is a practice, repetitive by
nature . . . that happens to continue after the first suit is filed,
or whether it is an act, causing discrete, calculable harm, that
happens to be repeated.”); Rawe v. Liberty Mut. Fire Ins. Co.,
462 F.3d 521, 529 (6th Cir. 2006) (“‘Simply put, [Rawe]
could not have asserted a claim that [she] did not have at the
time’” the complaint was filed.) (citation omitted); Mitchell v.
City of Moore, 218 F.3d 1190, 1202-03 (10th Cir. 2000)
10
(“[W]e agree with those courts holding the doctrine of claim
preclusion does not necessarily bar plaintiffs from litigating
claims based on conduct that occurred after the initial
complaint was filed.”); Computer Assocs. Int’l, Inc. v. Altai,
Inc., 126 F.3d 365, 369-70 (2d Cir. 1997) (“For the purposes
of res judicata, ‘[t]he scope of the litigation is framed by the
complaint at the time it is filed.’”) (citation omitted);
Manning v. City of Auburn, 953 F.2d 1355, 1360 (11th Cir.
1992) (“[W]e do not believe that the res judicata preclusion of
claims that ‘could have been brought’ in earlier litigation
includes claims which arise after the original pleading is filed
in the earlier litigation.”); see also Los Angeles Branch
NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 739
(9th Cir. 1984) (noting that res judicata would encompass
acts “occurring prior to the commencement” of the prior
litigation).
We see no reason to part with our sister Circuit Courts.
A contrary rule would only invite disputes about whether
plaintiffs could have amended their initial complaints to
assert claims based on later-occurring incidents. See Fed. R.
Civ. P. 15(a) (describing when parties may amend pleadings
as of right, and when they must first seek leave from the court
or the defendant’s consent). That would be especially unwise
in this area of the law, in which certainty and predictability
are important. Further, we doubt that this rule will
substantially increase the burdens on either courts or
defendants.
We hold that res judicata does not bar claims that are
predicated on events that postdate the filing of the initial
11
complaint, and thus we conclude that the District Court
should not have dismissed the complaint in Morgan II. 3
B. Covington’s Entitlement to a Jury Instruction on
the “Same Action” Theory
Morgan argues that the District Court abused its
discretion by instructing the jurors that Covington should
prevail if it showed that it “would have reached the same
decision . . . even in the absence of the protected conduct,”
Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274,
287 (1977). Specifically, Morgan contends that what he
terms the Mt. Healthy “same action” defense is an affirmative
defense that Covington waived by failing to plead it in its
answer. For its part, Covington argues that the same action
defense is actually “the third step in a ‘well established three-
step test to evaluate a public employee’s claim of retaliation
for engaging in activity protected under the First
Amendment.’” Appellee Br. at 14 (quoting Hill v. City of
Scranton, 411 F.3d 118, 125 (3d Cir. 2005)). 4 Covington
adds that, in any event, Morgan has waived his argument by
failing to object to the same action defense when Covington
raised it at summary judgment.
3
The concept of issue preclusion emerged at oral argument.
In the event that the parties raise this issue on remand, the
District Court can decide what, if any, effect the application
of issue preclusion has in this case.
4
The first two steps require the employee to show that “the
activity is in fact protected,” and “the protected activity ‘was
a substantial factor in the alleged retaliatory action.’” Hill,
411 F.3d at 125 (citation omitted).
12
We need not decide whether Covington was required
to raise its same action defense in its answer (or in a motion
to amend its answer) because we agree that Morgan failed to
object to it at summary judgment, and thereby waived his
objection. In its memorandum in support of summary
judgment, Covington raised the same action defense. While
its discussion was brief, it was sufficient to prompt a one-
page response from Morgan, who did not argue therein that
the defense was waived. Undoubtedly, neither brief’s
discussion of the defense was robust. However, the
deferential standard of review applicable to this issue leads us
to conclude that the District Court did not err in instructing
the jury on the same action defense.
C. Morgan’s Entitlement to Call Rebuttal Witnesses
on Credibility Issues
Morgan argues that the District Court erred by refusing
to allow him to call two witnesses—Van Fleet 5 and
Findeis 6—who would have testified that certain aspects of
Yerke’s and Klocko’s testimony were untrue. We agree with
Morgan that the District Court should have allowed this
testimony, but conclude that he failed to carry his burden of
showing that the error so affected his “substantial rights,”
Fed. R. Civ. P. 61, that he is entitled to a new trial.
5
Morgan’s counsel explained that she wanted to call Van
Fleet because he could show that Yerke’s testimony that “he
never used Covington property for personal use” was “a lie.”
App. 652.
6
Findeis was to testify that Klocko had “done favors” for
others in the course of his duties. Id. at 652.
13
The District Court concluded that “collateral” issues
were impermissible subjects of rebuttal testimony. Picking
up on that reasoning, Covington argues that the proffered
testimony is covered by Federal Rule of Evidence 608(b),
which forbids parties from proving “[s]pecific instances of
the conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness,” through
“extrinsic evidence.”
Covington and the District Court overlook the crucial
fact that Morgan sought to contradict specific testimony
offered under oath, rather than simply to suggest that Yerke
or Klocko had engaged in dishonest behavior on some other
occasion. In other words, Morgan sought to engage in
“impeachment by contradiction,” which is not covered by
Fed. R. Evid. 608. United States v. Castillo, 181 F.3d 1129,
1132-33 (9th Cir. 1999) (Rule 608(b) excludes only extrinsic
evidence that goes to a witness’s general credibility, but the
doctrine of impeachment by contradiction “permits courts to
admit extrinsic evidence that specific testimony is false,
because contradicted by other evidence.”); United States v.
Lopez, 979 F.2d 1024, 1033-34 (5th Cir. 1992) (noting that
Rule 608 does not apply to impeachment by contradiction).
Our Court has previously described impeachment by
contradiction as “a means of policing the defendant’s
obligation to speak the truth in response to proper questions,”
something limited by Fed. R. Evid. 403, which permits courts
to exclude evidence if its probative value is “substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence.” United States v. Gilmore, 553 F.3d
266, 271 (3d Cir. 2009) (citation and quotation marks
14
omitted). Here, the District Court did not analyze whether the
probative value of Morgan’s proffered evidence was
“substantially outweighed by” any of the considerations in
Fed. R. Evid. 403, as it needed to do. Thus, it should not
have excluded Morgan’s proposed rebuttal testimony.
Nonetheless, as both the Federal Rules of Civil
Procedure and the Federal Rules of Evidence make clear,
“[a]n error that is harmless is not grounds for disturbing a
judgment.” Burkhart v. Washington Metro. Area Transit
Auth., 112 F.3d 1207, 1214 (D.C. Cir. 1997) (citing Fed. R.
Civ. P. 61); see also Fed. R. Evid. 103 (“Error may not be
predicated upon a ruling which admits or excludes evidence
unless a substantial right of a party is affected.”); Fed. R. Civ.
P. 61 (“Unless justice requires, no error in admitting or
excluding evidence . . . is ground for granting a new trial . . . .
At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial
rights.”). Moreover, as this is a civil case, it is Morgan’s
burden to show that the District Court’s error was harmful.
See Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009). Yet,
Morgan does not argue as much in his brief, and our own
review of the record suggests the reason why.
Van Fleet was to testify concerning Yerke’s personal
use of Township property, in response to the latter’s
testimony that he had neither done so nor been ordered by a
court to stop doing so. Yerke’s testimony was elicited during
cross-examination, and was preceded by an exchange that we
believe substantially reduced the need for Van Fleet’s
testimony. Specifically, Morgan’s counsel raised the issue,
and after Covington objected, the Court held a side-bar
conversation with the two lawyers. During that colloquy,
15
Yerke’s counsel observed that Yerke’s personal use of a
backhoe owned by Covington was “[t]he subject of a
litigation in Lackawanna County.” The Court overruled the
objection, and Morgan’s counsel asked Yerke if he had “been
accused of using . . . Covington Township equipment for [his]
personal use,” to which Yerke answered “[b]y who?”
Yerke’s counsel objected, and the Court asked whether the
question went to “an accusation or a concluded matter that’s
been adjudicated.” Morgan’s counsel replied that she did not
“know the particulars of it.” Yerke then denied having used
the property and having been ordered to stop using the
property.
We believe this exchange would have alerted the jury
that, though Yerke denied it, he had at least been accused of
misusing Township property. This would have permitted the
jury to infer that there was a dispute whether Yerke had
testified truthfully. We do not think that Van Fleet’s
testimony amplifying that dispute would have meaningfully
affected Morgan’s rights.
Morgan’s position as to Findeis is even weaker. The
latter was to testify that Klocko had previously “done favors.”
This testimony was intended to rebut Klocko’s testimony
during the following exchange:
Q. Sergeant Klocko, you’ve asked people in
law enforcement for favors, correct?
A. Specify favors.
Q. If you can help somebody out?
A. I don’t recall a specific situation.
16
App. 179. Then, Covington’s attorney objected and the Court
sustained the objection; Morgan does not argue on appeal that
the objection was improperly sustained.
We conclude that Klocko’s testimony was simply too
vague and attenuated for the District Court’s exclusion of
Findeis’s testimony to have harmed Morgan. Morgan’s
counsel asked very general questions about favors—not even
improper favors—and Klocko’s response was far from a
categorical denial. Thus, even if Findeis had testified that
Klocko had asked her for a favor (or asked someone else for a
favor on her behalf), that testimony would not have directly
contradicted Klocko.
Accordingly, we cannot conclude that the District
Court’s exclusion of Yerke’s and Findeis’s testimony affected
Morgan’s substantial rights. 7
7
We note that Morgan does not make an argument with
respect to Yeager, from whom he also sought to elicit rebuttal
testimony at trial. If Morgan had made such an argument,
though, it would have failed. Morgan proffered that Yeager
would testify that Klocko had previously accused someone of
“official oppression.” This testimony would not have
meaningfully contradicted Klocko’s testimony that he had
previously been the “victim” of official oppression, but that
the Board of Supervisors had been the body that made the
formal “charge[]” arising out of that situation. Accordingly,
Yeager’s testimony would not have qualified as impeachment
by contradiction.
17
D. Morgan’s Due Process Claims
We have reviewed Morgan’s challenges to the District
Court’s grant of summary judgment to Covington on
Morgan’s due process claims. We discern no error in the
District Court’s opinion.
Morgan articulated two due process claims in his
complaint. The first was that he was deprived of his property
interest in his job without due process of law when he was
suspended with pay without a hearing. The second was that
he was deprived of his liberty interest in his reputation when
he was publicly accused of committing the crime of official
oppression.
As the District Court held, Morgan had a property
interest in his job to which due process rights attached.
However, we agree with it that Morgan’s interest in receiving
a hearing before his suspension with pay was outweighed by
Covington’s interest in maintaining the integrity of its police
force. This was particularly so given that Covington
collected and reviewed witness statements and other
documentation concerning Morgan’s performance before
imposing the suspension.
Likewise, we agree with the District Court that
Morgan’s claim based on harm to his reputation fails. To
succeed, Morgan would have to show that Covington
publicized a false, stigmatizing statement about him. Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006).
However, the District Court concluded that Morgan failed to
show that Covington publicly accused him of official
oppression, and our review of the record does not support a
18
different conclusion. See Brandt v. Bd. of Co-op Educ.
Servs., 820 F.2d 41, 45 (2d Cir. 1987) (placement of letter in
personnel file can constitute “publicity” only if the plaintiff
can show the file is likely to be disclosed to prospective
employers) (collecting cases).
* * * * *
For the reasons set forth above, we affirm the District
Court’s entry of judgment in Morgan I, reverse its entry of
judgment in Morgan II, and remand that case for further
proceedings.
19