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Baltimore v. Harrisburg Parking Authority

June 15, 2010


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)


Pending before the Court are two separate motions for summary judgment. The first motion has been filed by Defendants Harrisburg Parking Authority, Mark Yobbi, Gail Lewis, and Nancy Keim. (Doc. No. 54.) The second motion has been filed by Defendants Richard Gibney and Jason Brinker. (Doc. No. 59.) The motions have been fully briefed and are ripe for disposition. For the reasons that follow, the Court will grant the motions for summary judgment.


Plaintiff Donna Baltimore has asserted a number of civil rights claims against Defendants under the First, Fourth, and Fourteenth Amendment as well as state law. Plaintiff was employed by Defendant Harrisburg Parking Authority ("the Authority"). (Doc. No. 60 ¶ 1.) The Authority maintained a computer system to track day-to-day activities and ran random audits of ticket transactions for each work shift at least four times per month. (Doc. No. 55 ¶ 17.) Defendant Gail Lewis ("Lewis") was employed by the Authority as a Senior Audit Analyst and also served as the union steward for the American Federation of State, County and Municipal Employees ("AFSCME"). (Doc. No. 55 ¶¶ 7, 22; Doc. No. 60 ¶ 9.)

Plaintiff began her employment with the Authority as a cashier on August 8, 2001. (Doc. No. 60 ¶ 1.) As an employee of the Authority, Plaintiff was a member of AFSCME, District Council 90. (Doc. No. 55 ¶ 7.) Plaintiff's duties as a cashier included taking tickets and collecting parking fees. (Doc. No. 55 ¶ 10; Doc. No. 60 ¶ 3.) To perform these duties, Plaintiff would sign into the Authority's computer system. (Doc. No. 55 ¶¶ 11-12.) When a ticket was taken, Plaintiff would place the ticket in the scanner and the computer would display how much the customer owed. (Doc. No. 60 ¶ 5.) At the end of each shift, the money and tickets that had been collected were deposited with a deposit slip into a safe located in the parking garage. (Doc. No. 55 ¶¶ 15-16.) However, $250 was placed in a bank bag for the next shift. (Id.)

During Plaintiff's employment with the Authority, a random audit on one of her shifts indicated that two tickets were missing. (Doc. No. 55 ¶ 27.)The audit showed that parking fee tickets had been read by the computer and were then substituted with a blank parking fee ticket without any cash being tendered. (Doc. No. 60 ¶¶ 17-18.) However, the gate was raised without payment and both the ticket read and the substitute ticket were missing. (Id.) These "unusual transactions" were reported to Lewis who then recorded the results in her notes on February 3, 2003. (Doc. No. 55 ¶¶ 28-29.) Lewis instructed the auditor to continue to audit Plaintiff's work to determine if there were ongoing "unusual transactions." (Id. ¶ 30.)Further investigation by the auditor found that not all of the tickets processed during six of Plaintiff's shifts were turned in.(Id. ¶¶ 31-32.)

During the time period under investigation by auditors, Plaintiff failed to attend work or to call in on two scheduled work days.*fn2 (Doc. No. 55 ¶¶ 19-20, 34.)Plaintiff was notified in writing that she was suspended from her employment, effective February 12, 2003, based on her failure to "report or call [her] immediate supervisor to report that [she] would not be available for [her] regular[ly] scheduled shift." (Id. ¶ 21; Ex. H.) Lewis filed a grievance on Plaintiff's behalf in accordance with her duties as union steward. (Doc. No. 55 ¶ 22.) After a grievance committee meeting on February 27, 2003, Plaintiff was reinstated to her position effective as of March 10, 2003. (Id. ¶¶ 23-25.) Plaintiff was notified upon reinstatement that any further violation of the Authority's policies would result in termination without the possibility of a hearing. (Id. ¶ 26; Ex. I.) At that time, Lewis did not share with the grievance committee or any supervisory personnel of the Authority that she was conducting an audit investigation of Plaintiff's shifts. (Id. ¶ 35.)

After Plaintiff was reinstated, the audit investigation continued. Lewis concluded that a total of $33 was unaccounted for; Lewis believed that Plaintiff "was manipulating the system and taking money that should have been the Parking Authority's." (Doc. No. 55 ¶¶ 36-37.) On March 14, 2003, Plaintiff was terminated based on charges of "theft, failure to follow procedures and conduct prejudicial to the good working order and reputation" of the Authority. (Id. ¶¶ 39-40.) Plaintiff was notified of the termination by mail. (Id. ¶ 40; Doc. No. 68 ¶ 40.)In accordance with her duties as union steward, Lewis then filed a grievance on Plaintiff's behalf. (Doc. No. 55 ¶ 41.)

Defendant Mark Yobbi ("Yobbi"), an Authority director, notified the Harrisburg Police Department of the findings of the audit investigation. (Doc. No. 68 ¶¶43, 93.) Defendant Officer Richard Gibney ("Officer Gibney") met and questioned Lewis. (Doc. No. 55 ¶ 44.) Lewis provided Officer Gibney with the printouts that indicated that tickets were missing and the audit reports that sparked her investigation. (Id. ¶ 45; Doc. No. 60 ¶ 14.) On or about May 2, 2003, Officer Gibney charged Plaintiff with Theft by Unlawful Taking. (Doc. No. 60 ¶ 20.)

Plaintiff appeared before a District Justice for a preliminary hearing where Officer Gibney appeared on the State's behalf. (Doc. No. 55 ¶¶ 51-52.) Yobbi and Don Hunley, an employee of the Authority, were called to testify. (Id. ¶ 52.) The criminal charges were dismissed by the District Justice. (Id. ¶ 53.) Officer Gibney contends that the charges were dismissed because the auditor was not present to testify. (Id. ¶ 56.)

In July 2003, Defendant Detective Jason Brinker ("Detective Brinker") was assigned to Plaintiff's criminal case in order to re-file the charges. (Doc. No. 55 ¶ 55; Doc. No. 60 ¶¶ 24-25.) Detective Brinker examined the paperwork and obtained information from Yobbi and Lewis. (Doc. No. 60 ¶¶ 26-27.) Detective Brinker consulted with the Assistant District Attorney, as was required by Dauphin County policy, before refiling the charges. (Doc. No. 55 ¶ 65; Doc. No. 60 ¶ 30.) On or about October 21, 2003, Detective Brinker charged Plaintiff with Theft by Unlawful Taking and an additional charge of Access Device Fraud. (Doc. No 55 ¶ 68; Doc. No. 60 ¶¶ 29- 30.)When charges were re-filed, Detective Brinker was unaware that Plaintiff had filed a termination grievance against the Authority. (Doc. No. 55 ¶¶ 61-62.) In addition, Detective Brinker had not had any discussions with anyone concerning Plaintiff's employment history. (Id. ¶¶ 60-62.)

Plaintiff appeared in the Dauphin County Court of Common Pleas for a jury trial on the re-filed charges. (Doc. No. 55 ¶ 70.) The trial resulted in a hung jury. (Id. ¶ 71.) On June 15, 2004, Plaintiff again appeared in the Dauphin Country Court of Common Pleas where she agreed to participate in the Accelerated Rehabilitative Disposition ("ADR") program. (Id. ¶¶ 72-75.) In addition, Plaintiff signed a grievance form acknowledging that she did not want to "persist" with her grievance against the Authority and informed Defendant Nancy Keim, an Authority employee, that she was not going to proceed with her grievance. (Id. ¶¶ 76-77.) Plaintiff subsequently chose not to participate in the ADR program because she believed participation would be admitting guilt. (Id. ¶ 78; Doc. No. 60 ¶ 33.) Plaintiff then appeared at a bench trial in July 2005 in the Dauphin County Court of Common Pleas which resulted in a verdict of not guilty on July 7, 2005. (Doc. No. 55 ¶¶ 79-80.)

The parties dispute whether Plaintiff contacted the Director of AFSCMEregarding reinstatement to her position following her acquittal.*fn3 In any case, she was not reinstated.

On July 9, 2007,Plaintiff filed the present action. (Doc. No. 1.) Plaintiff alleges violations of her First, Fourth, and Fourteenth Amendment rights under 42 U.S.C. § 1983.

Plaintiff also alleges state law claims of wrongful discharge and intentional infliction of emotional distress. On October 5, 2009, Defendants filed their motions for summary judgment, statements of uncontested facts, and briefs in support of the motions. (See Doc. Nos. 54-61.) On November 23, 2009, Plaintiff filed her ...

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