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Rex Rosiji v. the City of Philadelphia

May 9, 2012

REX ROSIJI,
PLAINTIFF,
v.
THE CITY OF PHILADELPHIA, CHARLES H. RAMSEY, ARIANE M. THOMAS, PSY.D., AND ANDREW T. WOLANIN, PSY.D., : DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is Defendants City of Philadelphia ("City") and Commissioner Charles Ramsey's ("Ramsey") (collectively, "City Defendants") Motion to Dismiss the Amended Complaint, Defendant Andrew T. Wolanin, PSY.D.'s ("Wolanin") Motion to Dismiss Plaintiff's Amended Complaint, Defendant Ariane M. Thomas, PSY.D.'s ("Thomas") Motion to Dismiss Plaintiff's Amended Complaint, and the Responses and Replies thereto. For the reasons set forth below, we will deny all of Defendants' Motions to Dismiss.

I. FACTS

In June 2006, Plaintiff Rex Rosiji ("Rosiji"), a Philadelphia Police detective, was fired by the City for allegedly requesting and using military leave instead of vacation time for an absence from work in January 2006. (Am. Compl. ¶ 1.) In July 2006, in connection with the alleged use of military leave time, Rosiji was arrested and charged with the following: (1) theft by unlawful taking, 18 Pa.C.S.A. § 3921; (2) theft by deception, 18 Pa.C.S.A. § 3922; (3) receiving stolen property, 18 Pa.C.S.A. § 3925; (4) securing the execution of documents by deception, 18 Pa.C.S.A. § 4111; and (5) unsworn falsification to authorities, and tampering with public records, 18 Pa.C.S.A. § 4911. (Id. ¶ 12.)

On October 23, 2006, in the state court, the Honorable Marsha H. Neifield dismissed the charges of theft by unlawful taking and receiving stolen property for lack of evidence. (Id. ¶ 13.) On December 7, 2007, a jury found Rosiji not guilty of the charges of theft by deception, unsworn falsification to authorities, and tampering with public records. (Id. ¶ 14.) The charge of securing the execution of documents by deception was nolle prossed. (Id.)

Following the acquittal of all of the charges, and the City's refusal to reinstate him to his prior position, Rosiji filed a grievance pursuant to the Collective Bargaining Agreement between the City and the Fraternal Order of Police ("FOP").*fn1 (Id. ¶ 17.) In October 2008, Rosiji, the FOP and the City settled the grievance by entering into a Settlement Agreement that Rosiji would be reinstated as a Police Officer without back pay, "[p]rovided that the Grievant [Rosiji] is certified under Municipal Police Officers' Education & Training Commission (MPOETC) rules and regulations (including, but not limited to having any disqualifying criminal activity in the intervening period) and is able to meet all other conditions of employment, including certification by the medical evaluation unit." (Id. ¶ 18.) According to the Amended Complaint, the MPOETC conditions that Rosiji had to satisfy were that he pass a certification examination administered by MPOETC and be found to be psychologically capable to exercise appropriate judgment or restraint in performing the duties of a police officer by a Pennsylvania licensed psychologist after a personal interview.

(Id. ¶ 20.)

After the effective date of the Settlement Agreement, but prior to Rosiji satisfying the required MPOETC conditions, he was employed by the City at a desk job at the 39th Police District with an annual base salary of $55,603.00. (Id. ¶ 19.) In January 2009, Rosiji took and passed the MPOETC certification examination. (Id. ¶ 21.) MPOETC requires that the results of the applicant's psychological evaluation be reported on a form supplied by MPOETC. (Id. ¶ 22.) The first section of the MPOETC form is entitled "Interview and History" and directs the psychologist to provide a brief synopsis of the applicant's personal, educational, employment and criminal history. (Id. ¶ 23.)

As part of the psychological evaluation, MPOETC mandates that the applicant take the Minnesota Personality Inventory-2 ("MMPI-2"). (Id. ¶ 24.) MPOETC requires the scores of certain standard MMPI-2 scales and other supplemental scales considered relevant by the examining psychologist to be recorded in the section of the MPOETC form entitled "M.M.P.I. Personality Test." (Id. ¶ 25.) The section of the MPOETC entitled "Additional Test(s)" is used to report the results of any additional tests administered by the examining psychologist to the applicant. (Id. ¶ 27.)

The final section of the MPOETC form asks the examining psychologist to express his or her professional opinion as to whether the applicant is or is not capable of exercising appropriate judgment and restraint to be certified as a Police Officer in Pennsylvania. (Id. ¶ 28.) It does not prescribe how the examining psychologist is to conduct the interview, what conclusions are to be drawn from any particular combination of MMPI-2 scores or under what circumstances the examining psychologist should administer additional tests. (Id. ¶ 29.) The City requires the examining psychologist to use the same standardized process and methodology to evaluate all Police Officer applicants, whether applicants are a new hire or have previously served as a sworn Police Officer. (Id. ¶ 30.)

The examining psychologist must assign a numerical value between 1 and 5 to the results of the applicant's MMPI-2 by completing an "MMPI Evaluation Sheet" according to guidelines contained in the "MMPI Interpretation Guide." (Id. ¶ 31.) For the interview, the examining psychologist must ask the applicant the series of questions set forth in a document entitled "Police Applicant Standardized Interview Format," record the answers on that form and assign a numerical value between 1 and 5 to each answer. (Id. ¶ 32.) The examining psychologist is required to assign a numerical value between 1 and 5 to eight specific traits listed on a document entitled "Psychological Evaluation Summary Sheet," divide the total value assigned to the eight traits by four and add the result of the value of the MMPI-2 calculated on the MMPI Evaluation Sheet. (Id. ¶ 33.) In the event that the resulting number is eight or higher, the examining psychologist is to indicate on the MPOETC form that the applicant is capable of exercising appropriate judgment and restraint to be certified as a Police Officer; otherwise the examining psychologist is to indicate that the applicant is not capable of exercising the appropriate judgment and restraint to be certified as a Police Officer. (Id. ¶ 34.)

On February 4, 2009, Thomas interviewed Rosiji using the Police Applicant Standardized Interview Format. (Id. ¶ 35.) She evaluated the results of Rosiji's MMPI-2 according to the City's methodology for evaluating MMPIs. (Id. ¶ 36.) In response to questioning by Thomas from the Police Applicant Standardized Interview Format, Rosiji related details of the events that led to the criminal charges previously brought against him which resulted in Thomas reducing the numerical value assigned to the trait of "Judgment/Common Sense." (Id. ¶¶ 37-38.) This reduction in numerical value resulted in a final value calculation of 7.75, a finding by Thomas that Rosiji is psychologically unfit to be a Police Officer. (Id. ¶ 39.)

On March 9, 2009, Wolanin interviewed Rosiji following the same process and methodology employed by Thomas. (Id. ¶¶ 40-41.) During the interview, Rosiji told Wolanin of the events leading to his criminal charges resulting in Wolanin reducing the numerical value assigned to the traits of "Judgment/Common Sense" and "Decision Making/Problem Solving." (Id. ¶¶ 42-43.) The final value calculated by Wolanin was 6.25; therefore, he also found Rosiji to be psychologically unfit to be a Police Officer. (Id. ¶ 44.)

By letter dated October 14, 2009, Ramsey notified Rosiji that MPOETC would not certify him as a Police Officer and he could no longer be employed as a Philadelphia Police Officer. (Id. ¶ 45.) On October 29, 2009, Ramsey demoted Rosiji from the Police Officer position to the position of Police Reports Control Clerk at an annual salary of $27,809, which is $27,749 per year less than he had been earning as a Police Officer. (Id. ¶ 46.)

On October 17, 2011, Rosiji filed a Complaint in this matter. After Motions to Dismiss were filed by some of the Defendants, Rosiji filed an Amended Complaint on December 8, 2011, alleging the following: Count I - 42 U.S.C. § 1983 - Denial of Property Without Due Process of Law against the City and Ramsey; Count II - Breach of Contract against the City; Count III -Breach of Contract against Thomas; Count IV - Breach of Contract against Wolanin; and Count V - 18 Pa. C.S.A. § 9125 - Misuse of Criminal History Record Information against the City. In light of the filing of the Amended Complaint, the outstanding Motions to Dismiss were denied as moot on January 6, 2012. All Defendants have moved to dismiss the Amended Complaint. The Motions to Dismiss will be denied.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corporation v. Twombly, the Supreme Court of the United States stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544, 555 (2007).

Following Twombly, the United States Court of Appeals for the Third Circuit ("Third Circuit") has explained that the factual allegations in the complaint may not be "so undeveloped that it does not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a ...


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