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Fernandes v. Borough of West Pittston

August 30, 2010


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

(Judge Munley)


Before the court are plaintiff's objections to the report and recommendation of Magistrate Judge Martin C. Carlson, which proposes that the court grant defendants' motion for summary judgment.


This case arises out of plaintiff's employment as a police officer with Defendant Borough of West Pittston, Pennsylvania. The parties disagree about the nature of plaintiff's employment. The defendants contend that plaintiff worked as a part-time police officer, while plaintiff insists that, pursuant to Pennsylvania law, he served as a full-time officer. (Compare Defendants' Statement of Material Facts (Doc. 42) (hereinafter "Defendants' Statement") at ¶ 2; Plaintiff's Answer to Defendants' Statement of Material Facts (Doc. 47) (hereinafter "Plaintiff's Statement") at ¶ 2).

Plaintiff began working for the Borough in 2004. (Defendants' Statement at ¶ 4). His schedule consisted of a thirty-two-hour week beginning in December 2005. (Id. at ¶ 6). The parties disagree about whether this schedule constituted a full-time job. (Id.; Plaintiff's Statement at ¶ 6). Plaintiff became the subject of several disciplinary actions during the course of his employment. On December 9, 2005, Defendant Mayor William Goldsworthy wrote plaintiff to inform him that a complaint had been received that he had taken a police car outside of the Borough while on duty. (Defendants' Statement at ¶ 5). Plaintiff was suspended from December 13, 2005 until the next regularly scheduled city council meeting. (Id.). On December 17, 2005 plaintiff received a thirty-day suspension for misuse of a Pennsylvania state identification system. (Id. at ¶ 7).

The Borough council majority changed in late 2005. (Id. at ¶ 8). After this change in council membership, members extended his suspension for an additional thirty days. (Id.). The parties disagree about the reasons for this extended suspension. Defendants allege that the council used the additional time to review the suspension. (Id.). Plaintiff insists that these additional days came as retaliation for his support of council candidates who had challenged the members who determined his suspension. (Plaintiffs' Statement at ¶ 8). The council formally acted to remove plaintiff's suspension and reinstate him to his position in February 2006. (Defendants' Statement at ¶ 9). Plaintiff insists that the Borough never allowed him to resume his duties, despite this reinstatement. (Plaintiff's Statement at ¶ 9).

In March 2006, Defendants Brian Thornton and Pete Musinski investigated an incident that involved a trip by plaintiff to the Wyoming Borough Police Department in the middle of the night. (Defendants' Statement at ¶ 10). Plaintiff had allegedly made that trip to confront West Pittston Police Officer Kenneth Burkhardt about bringing a West Pittston police vehicle outside borough while on duty. (Id.). Defendants insist that plaintiff was under the influence of alcohol when he made this trip. (Id.). Plaintiff contends that he made the trip to Wyoming Borough to investigate a telephone report that a West Pittston police cruiser was parked in Wyoming. (Plaintiff's Statement at ¶ 10). Plaintiff claims that he was not under the influence of alcohol, but had consumed perhaps one or two beers. (Id.). The Borough terminated plaintiff's employment on March 14, 2006. (Defendants' Statement at ¶ 11). Plaintiff was not subject to a collective bargaining agreement when he lost his job. (Id. at ¶ 12).

Plaintiff contends that Defendant Musinski offered several reasons for plaintiff's termination. (Plaintiff's Counterstatement of Material Facts (hereinafter "Plaintiff's Counterstatement") at ¶ 12).*fn1 Among these reasons were plaintiff's alleged misuse of a police computer database, improper materials related to plaintiff found on MySpace, a social networking website, and the incident at the Wyoming Borough Police Department. (Id.). Defendants insist that the report also contained references to a pattern of insubordination by the plaintiff, as well as conduct unbecoming a police officer. (Defendants' Response to Plaintiff's Counterstatement of Material Facts (hereinafter "Defendants' Response") (Doc. 49) at ¶ 12). Plaintiff never disscussed his use of the computer system or MySpace with any officials prior to his termination. (Plaintiff's Counterstatement at ¶ 13)

Much of the dispute in this case centers around plaintiff's employment status. Plaintiff contends that he was expected to be available to work when called, even if he was not scheduled to work those hours. (Plaintiff's Counterstatement at ¶ 1). Plaintiff had often been called to duty by the Borough during hours for which he was not scheduled. (Id. at ¶ 2). Plaintiff insists that he reported for duty whenever called, and never refused to work because of responsibilities from another job. (Id. at ¶ 3). Plaintiff also asserts that he served as part of the Pennsylvania Attorney General's Drug Task Force while working for the Borough. (Id. at ¶ 5). That work frequently led to calls for plaintiff to come to work on short notice. (Id.). Defendants contend that plaintiff had simultaneous employment in several different jurisdictions and was expected to work only when not engaged somewhere else. (Defendant's Response at ¶ 1). The parties dispute whether plaintiff was available to work in the Borough every day of the week. (Compare Plaintiff's Counterstatement at ¶ 6; Defendants' Response at ¶ 6). When plaintiff worked for the police department, he performed his regular duties. (Plaintiff's Counterstatement at ¶ 7).*fn2 The parties dispute whether plaintiff's work for the Borough's Police Department was his main source of income. (Id. at ¶ 8; Defendants' Response at ¶ 8). Defendants contend that plaintiff regularly supplemented his employment with income from other jurisdictions. (Defendants' Response at ¶ 8). The parties likewise disagree over whether plaintiff's work with defendants was his primary employment. (Plaintiff's Counterstatement at ¶ 9; Defendants' Response at ¶ 9).

Plaintiff also contends that he engaged in regular police duties while working for the defendants, including answering 911 calls and conducting criminal and drug investigations. (Plaintiff's Counterstatement at ¶ 10). Defendants point out that plaintiff engaged in some unauthorized behavior while at work. (Defendants' Response at ¶ 10). Plaintiff also received a uniform allowance from the Borough. (Plaintiff's Counterstatement at ¶ 11).

Also in dispute in this case is the level of political activity in which plaintiff was involved before his termination. Plaintiff contends that he supported the election of defendants' political opponents to the West Pittston Borough Council. (Id. at ¶ 15). Defendant Goldsworthy ran for Borough of West Pittston Mayor in 2005 and was joined on the ticket by Defendants Thornton, Bugelholl, Musinski and Lescavage. (Id. at ¶ 22). They all ran as Republicans. (Id.). Plaintiff attended various functions, including breakfasts and parties held by the defendants' political opponents, and spoke in those candidates' favor with many people. (Id. at ¶ 15).

He urged others not to vote for defendants. (Id. at ¶ 16). Defendants deny they were aware of plaintiffs' support for their opponents. (Defendants' Response at ¶¶ 15-16). Plaintiff disputes this. (Plaintiff's Counterstatement at ¶¶ 17-19). He contends that the firing of Police Officer Joseph Campbell became an issue in the campaign, and that he did not support the defendants' position. (Id. at ¶ 17). According to plaintiff, Defendant Musinski knew that plaintiff did not attend political activities in support of the defendants' preferred candidates. (Id. at ¶ 18). Defendants contend that Musinski's recollections of these events were more equivocal. (Id.).

Plaintiff alleges that Defendant Goldsworthy never took or recommended any adverse employment activity against him until after the 2005 primary election. (Id. at ΒΆ 20). Defendants respond to this allegation by stating that Mayor Goldsworthy suspended plaintiff in December 2005, but does not address the allegation that the mayor took no ...

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