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Nicholas Saullo v. Borough of Nesquehoing

January 28, 2011

NICHOLAS SAULLO, PLAINTIFF,
v.
BOROUGH OF NESQUEHOING, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

The plaintiff, a former Nesquehoing police officer, was terminated from his position on July 22, 2009. Subsequently, he filed an amended complaint against the borough, its council members, and the police chief pursuant to 42 U.S.C. § 1983. Presently before the Court is the defendants' motion to dismiss for failure to state a claim upon which relief can be granted. (Doc. 14.) For the reasons explained below, the motion will be granted in part and denied in part.

I. BACKGROUND*fn1

Plaintiff Nicholas Saullo was hired in July of 2007 as a part-time police officer. Following his hire, he was trained by Chief Sean Smith. He trained for about six weeks, and then worked for about six months. In January of 2008, the Borough of Nesquehoing advertised an opening for a full-time officer position. A written and physical exam were given in February, Saullo ranked first, and he was hired on July 23, 2008. He was required to begin his term with a six month probationary period, which would have ended on January 23,2009. He completed six months without incident, and his probation was not extended.

In February of 2009, Chief Smith accused Saullo of violating a standard operating procedure because he did not take a fellow officer for a blood alcohol test following a collision. However, the plaintiff maintains that no standard procedure existed, and that pursuing a blood alcohol test was entirely within his discretion. Saullo received a written warning,*fn2 which did not reference any standard operating procedure that had been violated.

In June of 2009, Saullo was on duty and a deer ran into the side of his police vehicle around midnight. He tried to contact Chief Smith, but could not reach him. Saullo then contacted Mayor Walck, who advised him to prepare an incident report before the end of his shift. The following morning, Saullo picked Chief Smith up to take him to work, told him about the accident, and pointed out the damage on the vehicle. Chief Smith said that he never would have noticed the damage had Saullo not pointed it out.

Nevertheless, Chief Smith ordered Saullo to go for a blood test at the insistence of borough council member Frank DiMicelli. The test results were negative for alcohol and controlled substances.

The following month Saullo received another evaluation, which Saullo avers was "for the purposing [sic] of removing Plaintiff from probation as a full time borough officer." Chief Smith reviewed the evaluation with Saullo, and promised to give him a copy on his next shift; however, he did not supply a copy for over a week. Saullo eventually obtained a copy from the borough secretary. During this time, the chief had added a reference to the previous incident in which Saullo did not require a fellow officer to get a blood alcohol test.

On July 22, 2009, the borough council met in an executive session. The mayor was barred from attending. During the meeting, it was represented that Saullo had never been evaluated for removal from his initial probationary status. In fact, his probation had expired. The council then voted to terminate Saullo's employment. The purported reasons for terminating Saullo included his alleged failure to comply with a quota system by writing traffic tickets. Saullo contends that the quota system is illegal, and that he had acted in accordance with Chief Smith's direct instructions. Additionally, Saullo was falsely accused of not answering radio calls or patrolling adequately.

Later that evening, Saullo was called back the station and terminated by Chief Smith and council member Sniscak.

Saullo alleges "upon information and belief" that council members DeMarco, Zabroski, DeMicelli, and Sniscak voted to terminate Saullo "in order to replace him with a political favorite, Jeffrey Ohl." Additionally, Saullo avers that these four council members and Chief Smith perceived Saullo "as aligned with their political rival, Mayor Walck." Mayor Walck advised Saullo that he thought Saullo's rights had been violated because the mayor was barred from the meeting, and that Saullo was entitled to a written explanation of his termination within ten days. However, Saullo has never received such an explanation. The following Monday, defendant DeMarco tried to find a way to "get around the civil service commission" to replace Saullo with Jeffrey Ohl, the alleged "political favorite" of the borough council members.

Saullo filed an amended complaint on May 19, 2010 against the borough, the four council members who allegedly voted to terminate him, and Chief Smith. At Count I of the amended complaint, he brings a claim under 42 U.S.C. § 1983. He asserts that the defendants violated his rights "by depriving him of his constitutionally protected right to political association and tenured public employment as guaranteed by the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, in that Plaintiff was terminated from his position based upon her [sic] political affiliation or the perception thereof."

Saullo further claims that the defendants' termination of Saullo's employment and "the subsequent false and stigmatizing allegations" deprived him of his constitutional rights under the First and Fourteenth Amendments.

The defendants move to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. ...


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