LEWIS RUSNAK, Former State College Police Department Sargeant, now in forced retirement v. ELWOOD WILLIAMS, Former Chief of Police State College Police Department, both in his…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-1257
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LEWIS RUSNAK, Former State College Police
Department Sargeant, now in forced retirement,
Appellant
v.
ELWOOD WILLIAMS, Former Chief of Police State College
Police Department, both in his former official capacity and individually;
TOM KING, Chief of State College Police Department, in his official
capacity only; DEWEY MUSSER, Sgt. of the State College Police
Department, both in his official capacity and individually; THOMAS JORDAN,
Detective of the State College Police Department, both in his official capacity
and individually; DANA LEONARD, Sgt. of the State College Police
Department, both in his official capacity and individually; THOMAS HART,
Lt. of the State College Police Department, both in his official capacity and
individually; JACK S. ORNDORF, Lt., Formerly of the State College Police
Department, both in his former official capacity and individually;
DIANE CONRAD, Lt., of the State College Police Department, both
in her official capacity and individually; ROBERT E. SWISHER, SGT.,
Former Sgt. in the State College Police Department, now retired, in
his previous official capacity and individually; FRED DAILEY, Cpl.
in the State College Police Department, both in his official capacity
and individually
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On Appeal from the Unites States District Court
for the Middle District of Pennsylvania
Civil No. 00-cv-01741
District Judge: The Honorable Sylvia H. Rambo
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Submitted Under Third Circuit LAR 34.1(a)
July 18, 2002
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Before: MCKEE, FUENTES, and ALDISERT, Circuit Judges
( Filed: August 2, 2002)
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OPINION OF THE COURT
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FUENTES, Circuit Judge:
Defendant, Lewis Rusnak, appeals the District Court’s grant of summary
judgment dismissing his complaint. Rusnak’s primary claim is that he was constructively
discharged, without notice or a hearing, in violation of his constitutional rights. He
claims that he was forced to retire due to a series of rumors spread by the defendants,
implying that he was involved in a murder and other criminal acts.
Because we agree with the District Court that Rusnak was not constructively

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discharged but rather retired voluntarily, and that no triable issue of fact remains, we will
affirm.
I.
Since we write for the parties, we provide only a brief summary of the facts and
allegations. The plaintiff Lewis Rusnak ("Rusnak"), began working for the State College
Police Department ("SCPD"), in November 1970. He achieved the rank of Sergeant, a
rank which he held at the time of his retirement, and during the periods of criminal
investigation referenced below.
On Thursday, March 5, 1987, Dana Bailey was murdered in State College,
Pennsylvania. Rusnak was out sick that day and had last worked on Monday, March 2,
1987. No charges were ever filed, at any time, against any person relating to this murder.
The investigation remains open, and has at all times been assigned to one of the
defendants, Detective Thomas Jordan.
In March, 1989, Dana Bailey’s father received an anonymous letter signed
"Concerned Officers", implicating Rusnak in Dana’s murder. As a result, the Attorney
General’s office conducted an investigation into the allegation. Rusnak cooperated fully
with the investigation, which found no evidence to support the allegation against Rusnak.
Rusnak claims this event started a series of consistent rumors of his involvement
in criminal activity that lasted from 1987 to the Spring of 1998. Examples of the rumors
offered in Rusnak’s affidavit are:
In 1990, I walked into the lounge and saw Det. Jordan talking to about six
officers. This is what I overheard. Just because a person is investigated
and not charged does not mean they didn’t do it, it means that they could
not prove that he did it. Det. Jordan then looked around the six other
present and said to me, "Isn’t that right Lou?"
In the early ’90’s, [officers] Musser and Jordan would schedule their
vacations for Ocean City immediately after mine.
The rumor was that the crime rate in Ocean City went up when I was on
vacation. I walked up on . . . Defendants [Musser and Jordan] and heard
them discussing taking certain police radios and the charger with them on
vacation
Sgt. Swisher in the early and mid-nineties directed the officers on his sh
to respond to my apartment should any prowler be reported in this area
Plaintiff’s Br. at 11-12.
Rusnak also claims that defendants conspired to implicate him in two sexual
assault cases that occurred in 1995 and in a series of dumpster fires set in the State
College area in 1998. Rusnak never filed a grievance with the SCPD because, according
to Rusnak, he felt he could not get a fair opportunity to be heard. For instance, Rusnak
complains his supervisors knew of these rumors and failed to discipline any officers
alleged to be spreading them. Rusnak contends this inaction was part of a conspiracy to
allow these rumors to persist and force Rusnak into retirement.
In the course of discovery, Rusnak admitted that his eventual retirement was a
matter long contemplated and was determined more than three years before he actually
quit. Rusnak testified that "for some period of time well before 1998 I had desired to
retire as soon as it would be financially possible." App. at 134. After 28 years of service,
Rusnak retired one month before his 62nd birthday. Rusnak selected the date of his
retirement, was not denied any promotion in rank and was not subject to any employment
reprimand or disciplinary action. In addition he always retained the right of continued
employment at his rank and pay. Affidavit of Chief King; App. 55, 57.
II.
Rusnak filed the instant claim on September 29, 2000, in the District Court for the
Middle District of Pennsylvania. Rusnak’s complaint charged ten officers, current and
retired, in both their individual and official capacities. In his complaint, Rusnak claimed
that although he chose the date of his retirement, the consistent rumors of misconduct
and the failure of his superiors to address these rumors actually worked a constructive

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discharge, thereby forcing him to retire from the SCPD. Rusnak asserts that, since he
was forced to retire, his resignation was not voluntary and, therefore, the Department’s
failure to give him notice and a hearing violated his constitutional rights. Among the
alleged conspirators are high-ranking officers, named for their asserted role in failing to
reprimand officers claimed to have started the rumors, and consequently, furthering the
plan to force Rusnak into retirement.
On June 15, 2001, the defendants filed for summary judgment. On December 21,
2001, the District Court granted the defendants’ summary judgment motion, concluding,
among other things, that a plaintiff who voluntarily retires cannot assert a due process
claim, pursuant to this Court’s holding in Leheny v. City of Pittsburgh, 183 F.3d 220 (3d
Cir. 1999). The District Court noted that "Plaintiff has not adduced evidence from which
a reasonable jury could conclude that he was constructively discharged." The court
concluded that "because no constructive discharge occurred, Defendants did not deprive
Plaintiff of a liberty due process interest." See, Rusnak v. Williams et al., Civil
No.4:CV-00-1741 at 12. Accordingly, the Court determined that since no triable issue of
fact remained in the case, defendants were entitled to summary judgment.
III.
Procedural due process claims, to be valid, must allege state sponsored-
deprivation
of a protected interest in life, liberty or property. See Zinermon v. Burch, 494 U.S. 113,
125 (1989). If such an interest has been or will be deprived, procedural due process
requires that the governmental unit provide the individual with notice and a reasonable
opportunity to be heard. Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667,
680 (3d Cir. 1991) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985)). The Supreme Court has determined that a public employee has a protected
property interest in their continued employment by the government. See Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 547-548.
The central issue presented for adjudication is whether Rusnak retired voluntarily
or whether he was constructively discharged. See Id. at 545-546. We addressed this
question in Leheny v. City of Pittsburgh, 183 F.3d 220 (3d Cir. 1999) stating:
Employee resignations and retirements are presumed to be voluntary. This
presumption remains intact until the employee presents evidence to establish that
the resignation or retirement was involuntarily procured. If an employee retires of
his own free will, even though prompted to do so by some action of his employer,
he is deemed to have relinquished his property interest in his continued
employment for the government, and cannot contend that he was deprived of his
due process rights.
183 F.3d at 227-228 [internal citations omitted]. Plaintiff proffers that the constant
rumors regarding his alleged criminal activities drove him into retirement. Therefore, his
retirement was involuntarily procured and constituted a constructive discharge. In
determining whether a resignation or retirement was voluntary, this Court also stated in
Leheny, that "[t]here appear to be two circumstances in which an employee’s resignation
or retirement will be deemed involuntary for due process purposes: (1) when the
employer forces the resignation or retirement by coercion or duress, or (2) when the
employer obtains the resignation or retirement by deceiving or misrepresenting a material
fact to the employee." 183 F.3d at 228 (citing Hargray, 57 F.3d at 1568).
We focus our analysis on the determination of whether Rusnak retired voluntarily
or was constructively discharged. See Leheny, 183 F.3d at 227. "In making this
determination we examine the surrounding circumstances to test the ability of the
employee to exercise free choice." Id. Rusnak does not allege that his retirement was
procured by a misrepresentation of a material fact. Therefore, in order for Rusnak to
overcome the presumption that his retirement was voluntary, he must prove that his
employer forced him into retirement by coercion or duress and, thereby, abrogated his
ability to exercise free choice.
Viewing the evidence in the light most favorable to Rusnak, the facts of this case

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demonstrate that Rusnak’s retirement was neither coerced nor made under duress. First,
Rusnak was not denied any promotion in rank and was not subject to any employment
reprimand or disciplinary action nor was he ever threatened with such action. In
addition, he always retained the right of continued employment at his rank and pay. In
fact, Rusnak stated that his eventual retirement was a matter long contemplated and had
been determined more than three years before he actually quit. Rusnak Affidavit, 21;
App. at 48. Finally, Rusnak chose the date of his retirement in October 1998. See Stone
v. University of Md. Medical Sys. Corp., 855 F.2d 167, 174 (4thCir. 1988) (indicating
that whether a plaintiff is permitted to select his effective date of retirement is one of the
factors to be considered in determining whether retirement was voluntary).
In addition, the rumors that Rusnak alleged had forced him into retirement
occurred between 1987 and the Spring of 1998. The fact that Rusnak chose to retire in
October 1998, many months after the rumors had ended, also indicates an absence of
duress or coercion and that Rusnak exercised free choice in his retirement decision.
Furthermore, those same rumors occurred during the course of an eleven-year span and
any events connected with them were few and far between. In such a situation, we agree
with the District Court that the Defendants did not subject the Plaintiff to the type of
constant and intolerable conditions that characterize a legitimate claim for constructive
discharge. See Rusnak, 4:CV-00-1741 at 12.
Therefore, we agree with the District Court that there are no triable issues of
material fact and the Plaintiff has not adduced evidence from which a reasonable jury
could conclude that he was constructively discharged. Accordingly, we will affirm the
Order of the District Court, granting Defendants’ motion for summary judgment, and
dismissing Rusnak’s claim in full.
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TO THE CLERK OF THE COURT:
Kindly file the foregoing opinion.
/s/ Julio M. Fuentes
Circuit Judg

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