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August 18, 1995

EARL WAGNER, Plaintiff

The opinion of the court was delivered by: MCLAUGHLIN


 This action arises out of Plaintiff's employment at the Soldiers and Sailors Home operated in Erie, Pennsylvania by Defendant Commonwealth of Pennsylvania, Department of Military Affairs ("DMA"). Plaintiff alleges that Defendants violated 42 U.S.C. §§ 1983 and 1985 by depriving him of his civil rights under the First and Fourteenth Amendments to the U.S. Constitution. He alleges that he was harassed by other DMA workers and eventually terminated from his position at the Soldiers and Sailors Home ("Home") because he reported theft of the Home's resources by Defendant Carideo. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331, 1343 and 1441. *fn1" Defendants have moved for summary judgment. For the reasons that follow, this Court will deny the motion.


 Plaintiff was hired by the DMA as a Maintenance Repairman II at the Home on November 20, 1989. Plaintiff's Appendix to Brief in Response to Defendants' Motion for Summary Judgment ("Plaintiff's App.") at 7; Defendants' Statement of Material Facts Not in Dispute ("Defs.' Statement") at P 1. Defendant Carideo was Plaintiff's supervisor at the Home.

 On August 22, 1990, Plaintiff made allegations of theft of state property and misuse of time against Defendant Carideo to Defendants Snyder, Skarupski, and Wright. Plaintiff's App. at 14. Defendant Snyder reported these allegation in a memorandum to the director of the state Bureau of Veterans' Affairs. See Ex. A to Complaint. Defendant Carideo received a one-day suspension from work as a result of the ensuing investigation. Plaintiff's App. at 144-45.

 Plaintiff alleges that, in the wake of the investigation, Defendant Carideo and others working under his supervision began a course of harassment against Plaintiff that continued from Fall 1990 through late May 1991. He alleges that he was shunned and assigned only to jobs in which he would work alone. Plaintiff's App. at 63-67. He also alleges that his property was vandalized or stolen on several occasions during that period and that he was unfairly reprimanded by Defendant Carideo. Id. at 71-83, 91-92. Defendant Carideo stated that he had avoided personal contact with Plaintiff after Plaintiff's allegations of theft. Plaintiff's App. at 69.

 Plaintiff alleges that he reported these incidents to Defendant Skarupski, who was acting as commandant. *fn2" Defendant Skarupski acknowledged that Plaintiff raised these incidents but stated that he did not feel that they merited investigation. Plaintiff's App. at 96-99.

 Plaintiff also alleges that Defendant Wright was aware of his problems and told Plaintiff's wife in late March or early April 1991 that Plaintiff's situation would not improve "unless he loses that snitch personality." Plaintiff's App. at 105. Defendant Wright admits telling Plaintiff's wife that Plaintiff "was like Don Quixote." Plaintiff's App. at 106.

 On May 29, 1991, while at work, Plaintiff found an injured pigeon and placed it in a box so that he could later take it home. Plaintiff's App. at 197. He alleges that Clyde Zappitella, a co-worker in the maintenance division, made several threats against the pigeon that day. Plaintiff's App. at 84-85. When Plaintiff returned at the end of the work day to where he had left the pigeon, it was not there. Plaintiff's App. at 86. Plaintiff then sought out and confronted Zappitella and Michael Mazur, another co-worker. Plaintiff's App. at 86-88. Shortly thereafter, Plaintiff and Zappitella fought. Plaintiff's App. at 88-90. Plaintiff alleges that he struck Zappitella in self-defense. Plaintiff's App. at 88-89. Zappitella and other witnesses allege that Plaintiff instigated the fight. Appendices C, D to Ex. C to Affidavit of Linda Leese. Two of the Home's security guards intervened, and the fight ended. Plaintiff's App. at 90.

 Paragraph 2 of Section III of the DMA Discipline Manual describes the procedure to be followed when an employee's suspension or termination is sought:

2. RECOMMENDATIONS - All recommendations for suspension and termination WILL BE SENT to the Bureau of Administrative Service, ATTN: Linda Leese, as expeditiously as possible. Coordination may be made with Administrative Services concerning the incident and appropriate degree of discipline to recommend. It is imperative that proper documentation accompany the request for disciplinary action, along with your recommendation of the degree of disciplinary action to be taken. This request should be sent to Administrative Services within seven (7) days of the occurrence unless approval has been received from Administrative Services for additional time to conduct the investigation.

 Ex. A to Leese Aff. The Bureau of Administrative Services is then to prepare a final report to the Adjutant General of the DMA, who must personally approve the decision to suspend or terminate. A letter identifying the action to be taken is then forwarded to the DMA facility to be signed by the appropriate on-site official and delivered to the employee. Id.

 Table V-10 of the Discipline Manual identifies "Maximum Disciplinary/Corrective Actions that May be Imposed." Ex. B. to Leese Aff. For a first offense of fighting at the work site that occurs after an employee has completed his probationary period, the identified penalty is "discharge unless considerable provocation or other mitigating circumstances are present." "Matters to be Considered in Mitigation or Extenuation" include "Employee's length of service and general record. Amount of provocation, if any was present, and the degree and extent of the conduct including the extent of any physical damages done to another person." Id.

 On May 30, 1991, the day after the fight, Defendant Wright placed both Plaintiff and Zappitella on suspension and began her investigation of the fight. The following day, Defendant Skarupski, in his capacity as acting commandant, forwarded to the DMA's Director of Administrative Services a memorandum "strongly" recommending Plaintiff's termination. App. A to Ex. C to Leese Aff. It noted in part, "This is a serious matter that must be disposed of quickly. . . . [Plaintiff's] presence at this facility presents a threat not only to the employees of this facility, but to the residents as well. Residents who witnessed this event have expressed their concern and fear for their safety." Id. The initials "gw" appear at the bottom of the memorandum. The memorandum was also signed with a short note concurring in the recommendation by the Deputy Director of the DMA's Veterans Homes Division. Id. The memorandum was accompanied by Defendant Wright's reports of her interviews with Plaintiff and Zappitella and written statements from them and several other Home employees who had witnessed the fight. See Apps. B-E to Ex. C to Leese Aff.

 On June 4, Linda Leese, DMA's personnel officer, forwarded this packet of information to the Adjutant General and other superiors. Leese Aff. at Ex. C. She also recommended that Plaintiff be terminated. Id. All addressees concurred in this recommendation. Plaintiff was terminated on June 10, 1991.

 In an affidavit given for this action, Leese stated that the recommendation of Defendants Wright and Skarupski was immaterial to her decision. Leese Aff. at P 12. She averred that, regardless of that recommendation, she would have recommended Plaintiff's termination on the basis of the witness statements included in the packet submitted to her. Id. at P 13.

 Plaintiff filed a grievance protesting this decision on June 17, 1991. This grievance was denied. Leese Aff. at Ex. C. Plaintiff's application for unemployment compensation benefits was also denied.

 Plaintiff filed a praecipe for a writ of summons with the prothonotary of the Erie County, Pennsylvania Court of Common Pleas on March 26, 1993. Plaintiff's App. at 170. Plaintiff's counsel avers that he then investigated how to serve all Defendants and that, during the course of this investigation, he communicated on several occasions with two attorneys from the Office of the Pennsylvania Attorney General, including Defendants' counsel here. Plaintiff's App. at 169-72. The writ of summons was reissued on June 4, 1993. Defs.' Statement at P 10. It was served on all Defendants other than Defendant Snyder on June 10, 1993 and on Defendant Snyder on June 30, 1993. Id.

 The Complaint was filed on April 4, 1994 and served on Defendants the following day. This action was removed to ...

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