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Keslosky v. Borough of Old Forge

August 25, 2009

MICHAEL B. KESLOSKY, III, PLAINTIFF
v.
BOROUGH OF OLD FORGE, BOROUGH OF OLD FORGE COUNCIL, BOROUGH OF OLD FORGE POLICE DEPARTMENT, LAWARENCE A. SMENZA, ANTHONY J. TORQUATO, JR., DAVID SCARNATO, JAMES J. PEPERNO, JR. ALAN HEYEN, : SHIRLEY HELBING, JAMES P. MINELLA, OLD FORGE BOROUGH CIVIL SERVICE COMMISSION, AND OLD FORGE BOROUGH POLICE OFFICERS' ASSOCIATION, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

(Judge Munley)

MEMORANDUM

Before the court are defendants' motions (Docs. 18, 26) to dismiss the plaintiff's complaint. Having been fully briefed, the matter is ripe for disposition.

Background*fn1

This case arises out of plaintiff's employment as a police officer with Defendant Borough of Old Forge. (Amended Complaint (Doc. 35) (hereinafter "Amend. Complt.") at ¶ 20). Plaintiff began working for the Borough as a police officer in 1979. (Id. at ¶ 23). In 1992 and 1993, he brought two federal court actions against the Borough, alleging discrimination. (Id. at ¶ 24). In the first of those cases, plaintiff gained partial summary judgment on a wrongful termination claim. (Id. at ¶ 25). The second case ended with an agreement that plaintiff could retain his status as a Borough police officer, and that no notice of his previous suspension or termination would remain in his file. (Id. at ¶ 26).

Plaintiff's return to the police force was not easy, however. Borough officials made it difficult for plaintiff to obtain the training necessary to resume working, and union officials refused to let plaintiff pay back dues and then filed a grievance that attempted to remove him from the force for failing to pay dues. (Id. at ¶¶ 27-28). The union also prevented plaintiff from becoming a member of the local Police Association, which meant that he could not join the Fraternal Order of Police. (Id. at ¶ 29).

Plaintiff finally returned to work in September 1997. (Id. at ¶ 30). Plaintiff was not given the duties of other police officers, however, and did not receive a key to the department as other officers did. (Id. at ¶ 31). Instead, he was assigned clerical tasks. (Id.). Plaintiff could not respond to calls unless called by another officer. (Id. at ¶ 32). He was required to work alone. (Id. at ¶ 36). He was told not to provide backup for any other departments in the area, and was not allowed to call for backup himself. (Id. at ¶ 34). Other officers were restricted in their communications with plaintiff. (Id. at ¶ 35). The mayor and the Chief of Police told plaintiff that rank and seniority rules applied to everyone in the department but him. (Id. at ¶ 33).

Plaintiff also suffered other forms of mistreatment and harassment from the police department. After his return to work, police officers issued plaintiff numerous traffic citations, including 42 separate citations for driving a police vehicle while his license was suspended for failing to respond to an earlier citation. (Id. at ¶ 37). Defendants also denied plaintiff promotion to sergeant. (Id. ¶ 38). Previous to plaintiff's application for the position, the Borough had always employed three sergeants. (Id.). Though the Borough's code requires a written exam for such promotion, two officers promoted previous to plaintiff were not required to take the test. (Id.). Plaintiff challenged these officers' promotions to the Borough Council and the Borough Civil Service Commission, arguing that the officers should be required to take a written exam, and that he be allowed to sit for the exam as well. (Id.). The Borough responded to plaintiff's request by eliminating the third sergeant's position. (Id.).

In March 1998, plaintiff responded to a domestic call in Old Forge. (Id. at ¶ 39). At the scene, the victim informed plaintiff that her husband had been taken from the scene by members of the Old Forge Police Department. (Id.). They took her husband to the police station, where he had a meeting with members of the department, including Defendant Officer Semenza. (Id.). The officers solicited a false criminal charge against the plaintiff from this person. (Id.). When he learned of this attempt to file false criminal charges against him, plaintiff became violently ill. (Id.). He was forced to go to the emergency room at Wilkes-Barre General Hospital. (Id.).

Plaintiff did not return to work after this incident for several years, contending that he had suffered an injury in the form of "abnormal working conditions." (Id. at ¶ 40). In March 2001, plaintiff received a release from his doctor to return to work. (Id.). Plaintiff provided a copy of this release to his employer. (Id.). Plaintiff had filed a workers' compensation claim, and defendants did not call plaintiff back to work while that claim was pending. (Id.). Instead, they kept plaintiff on the payroll as an employee with paid benefits. (Id.). Defendants did not pay plaintiff a salary during this period, however. (Id.).

On June 17, 2003, the Borough of Old Forge notified plaintiff that it had instituted written charges against him for failing to report to work since May 10, 1998. (Id. at ¶ 41). The complaint alleged that plaintiff had exhausted all of his approved leave time and had not provided a release from a health care provider that established he was fit to return to work as a police officer. (Id.).

The Borough held "pre-determination" hearings in the plaintiff's case on August 19, 2003 and December 9, 2003. (Id. at ¶ 42). On December 18, 2003, the Borough council voted to return plaintiff to work unconditionally. (Id. at ¶ 43). The Borough based its decision on plaintiff's March 2, 2001 release to return to work and an opinion from Dr. Michael Church issued on September 11, 2003. (Id.). Dr. Church's opinion confirmed that plaintiff could return to work. (Id.). Though plaintiff contends that the Borough Council's decision on his case was favorable, he appealed that decision to the Old Forge Civil Service Commission on January 14, 2004. (Id. at ¶ 44). Plaintiff alleges that the written decision signed by the council president, Defendant Heyden, did not accurately record the Council's vote, and the findings of fact as recorded in the decision had adversely impacted plaintiff's future employment and his back wages claim. (Id.). The Civil Service Commission--also a defendant in this case--did not address plaintiff's appeal for almost two years. (Id. at ¶ 45). Finally, on December 22, 2005, the Commission addressed plaintiff's appeal by opening the record in response to plaintiff's appeal of another employment-related decision by the Council. (Id.).

On December 19, 2003, the day after the Borough Council decided to return plaintiff to active duty, the United States Army National Guard activated plaintiff for duty and deployed him outside the jurisdiction of Pennsylvania. (Id. at ¶ 46). Plaintiff returned from the active duty assignment on July 1, 2004. (Id. at ¶ 47). He returned to Old Forge and provided a timely written request for placement on the police department's active duty roster. (Id.). On August 1, 2004, plaintiff notified the Chief of Police that he had been released from active duty and requested immediate placement on the active duty roster. (Id. at ¶ 48). The defendants refused these requests and instead required plaintiff to undergo the physical and mental examinations required of new hires. (Id. at ¶ 49). Plaintiff maintains that these requirements were unnecessary, and that he needed only to update certain certifications to be eligible to work. (Id.). The Borough refused to schedule updates for these certifications for plaintiff, and this refusal caused another certification required by the plaintiff to expire. (Id. at ¶ 50). The Borough refused to allow plaintiff to return to work without this certification. (Id.). The Borough's refusal to forward plaintiff's request for this certification unless plaintiff submitted to mental and physical examination, plaintiff alleges, violated the law. (Id. at ¶ 51).

On February 16, 2005, the Borough's manager, Margaret Mazza, notified the plaintiff that written charges had been filed seeking his removal as a police officer. (Id. at ¶ 52). The charges asserted that plaintiff had failed to comply with a state police training and education law and failed to attend scheduled physical and psychological exams necessary for certification. (Id.). The Borough Council held "pre-determination" hearings about this matter on March 15, 2005 and April 19, 2005. (Id. at ¶ 53). On June 15, 2005, the Council, at a hearing, adopted the charges against the plaintiff and voted to suspend plaintiff without pay and benefits until he complied with legal training and certification requirements. (Id.). At that same meeting, the Council voted to make Defendant Semenza Chief of Police. (Id.).

Plaintiff appealed this decision by the Borough Council as well. (Id. at ¶ 54). The Old Forge Civil Service Commission held hearings on August 18, 2005 and December 22, 2005. (Id.). On July 31, 2006, the Commission issued a decision affirming the Borough Council's decision to suspend plaintiff without pay or benefits. (Id.). Plaintiff appealed this decision to the Lackawanna County Court of Common Pleas. (Id. at ¶ 55). As of the date of plaintiff's complaint, the Commission had refused to file the certified record with that court. (Id. at ¶ 56).

The Commission finally heard plaintiff's civil service appeal regarding promotions on October 22, 2007. (Id. at ¶ 57). This hearing came nearly ten years after plaintiff first complained about these promotions to chief and sergeant. (Id.). Though Old Forge regulations require a decision to be issued within thirty days of the hearing, the Commission has not yet done so. (Id.). The Commission's Chairman, Defendant James P. Minella, informed the plaintiff that he would never be promoted, and plaintiff alleges that these actions indicate that Minella supported attempts to prevent plaintiff from working as a police officer. (Id. at ¶ 58).

Defendant Peperno, Chairman of the Police Pension fund, allegedly mishandled police pension funds, using those funds to fund buyouts of a former Chief and Captain. (Id. at ¶ 61). Plaintiff complained "continually" in public forums about what he considered a mishandling of pension funds. (Id. at ¶ 62). Plaintiff contends that these complaints led Pepero to use his influence with the Old Forge Mayor, Chief of Police and members of the Police Officers' Association and Police Pension Fund to engineer the removal of plaintiff from his position as police officer. (Id. at ¶ 63). The plaintiff alleges that Defendant Peperno mislead the Borough Council about the need for these buyouts, perhaps in an effort to ensure that Defendant Semenza became Chief of Police. (Id. at ¶¶ 67-70).

Plaintiff filed his initial complaint on June 30, 2008. (Doc. 1). He filed an amended complaint on December 29, 2008. The instant amended complaint consists of nine counts. Court I alleges that defendants violated plaintiff's constitutional right to due process by failing to provide him with pre- and post-termination hearings before removing him from his job. Court II alleges that defendants violated plaintiff's rights by retaliating against him for speaking publicly about the misuse of police pension funds and wrongdoing by the individual defendants. Count III, brought pursuant to 42 U.S.C. § 1983, repeats these accusations that defendants violated plaintiff's due process and First Amendment rights. Count IV, brought pursuant to 38 U.S.C. § 4301, asserts that defendants violated plaintiff's right to re-employment as a member of the Army National Guard when they prevented him from returning to officer duty after his deployment by manipulating training requirements. Count V alleges that defendants discriminated against plaintiff because of his absence for military service, in violation of 51 P.S. §7101. Count VI contends that defendants discriminated against plaintiff because of his Russian ancestry in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 955(a).*fn2 Count VII alleges that defendants discriminated against plaintiff because of his Russian Orthodox religious faith in violation of the PHRA. Count VIII insists that defendants violated the PHRA by retaliating against him after he complained of ethnic discrimination. Count IX alleges ethnic origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e.

After the plaintiff served his initial complaint, the defendants filed motions to dismiss (Doc.18, 26). After the parties briefed the issue, plaintiff filed a motion to file an amended complaint that added Count IX. (Doc. 33). The motion represented that plaintiff had only recently received a right-to-sue letter from the Equal Employment Opportunity Commission on that issue. The parties agreed that the claim should be added to the complaint, and that the previously filed motion to dismiss should apply to all of the claims. The court granted this motion (Doc. 34), bringing the case to its present posture.

Jurisdiction

As this case is brought pursuant to 42 U.S.C. § 1983 the court has jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

Legal Standard

Defendants have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). When a defendant files such a motion, all well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether "under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 564, 565 (3d Cir. 1977) (per curium)). The court may also consider "matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The federal rules require only that plaintiff provide "'a short and plain statement of the claim showing that the pleader is entitled to relief,'" a standard which "does not require 'detailed factual allegations,'" but a plaintiff must make "'a showing, rather than a blanket assertion, of entitlement to relief' that rises 'above the speculative level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).The court will apply this standard when addressing Defendant Carbon County's motion.

Discussion

A. County Defendants' ...


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