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Ross v. Borough of Dormont

United States District Court, W.D. Pennsylvania

March 29, 2013

PHILLIP ROSS and MICHELLE ROSS, Plaintiffs,
v.
BOROUGH OF DORMONT; GINO RIZZA, individually and as Borough Manager; KIM LUSARDI; LAURIE MALKA; EUGENE BARILLA; DREW LEHMAN and HEATHER SCHMIDT, Individually and as Council, Defendants

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For PHILLIP ROSS, MICHELLE ROSS, Plaintiffs: D. Scott Lautner, The Law Offices of D. Scott Lautner, P.C., Pittsburgh, PA.

For BOROUGH OF DORMONT, HEATHER SCHMIDT, Individually and as Borough Council, DREW LEHMAN, EUGENE BARILLA, LAURIE MALKA, KIM LUSARDI, GINO RIZZA, individually and as Borough Manager, Defendants: Thomas P. McGinnis, LEAD ATTORNEY, Karin M. Romano, Thomas, Thomas & Hafer, Pittsburgh, PA; Jeffrey D. Truitt, Thomas, Thomas & Hafer, LLP, Pittsburgh, PA.

OPINION

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MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.

Plaintiffs, Phillip Ross (" Plaintiff" ), the former Chief of Police of the Borough of Dormont, and his wife, Michelle Ross, brought this lawsuit against Defendants Borough of Dormont (" the Borough" ), Gino Rizza (" Rizza" ), individually and as Borough Manager, Kim Lusardi (" Lusardi" ), Laurie Malka (" Malka" ), Eugene Barilla (" Barilla" ), Drew Lehman (" Lehman" ), and Heather Schmidt (" Schmidt" ) (collectively, " Defendants" ),[1] alleging that Defendants violated Plaintiff's civil rights relative to several Loudermill hearings to which Plaintiff was subjected and his eventual demotion to patrolman.

Presently before the Court is a Motion to Dismiss (" the Motion" ), ECF No. 33, submitted on behalf of Defendants. For the reasons that follow, the Motion will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to the Complaint, Plaintiff had been employed by the Borough as a police officer for more than 25 years when he was promoted to the Chief of Police in May of 2009. ECF No. 22, ¶ 9.

On July 27, 2010, Plaintiff received a letter from Defendant Lusardi, the President of Dormont Council (" Council" ), informing him that Council had revised the job description for the Chief of Police so as to employ a " working chief" in conformity with Borough Ordinance No. 1420, which had been adopted in 1993. Plaintiff was directed to include himself on the department's work schedule for 5 shifts per week, and perform regular patrol duties. Id. at ¶ 11. See ECF No. 22-1. Plaintiff was also directed to submit a copy of the work schedule to Defendant Rizza in order for Council to verify his compliance with the duties required of him as the Chief of Police. In addition, Plaintiff was advised that failure to fulfill these requirements would be considered as neglect of official duty and/or disobedience of orders which would result in appropriate disciplinary action. Id. Plaintiff alleges that the " working chief" requirement was contrary to past practice.

On August 25, 2010, Plaintiff received another letter from Lusardi advising him that Council had received a communication from the Borough's Mayor stating that the directive requiring Plaintiff to become a " working chief" constituted an " unreasonable demand" on Plaintiff's time. ECF No. 22, ¶ 12. See ECF No. 22-1. Council consequently ordered Plaintiff to meet with Defendant Rizza on September 1, 2010, to explain what duties put unreasonable demands on his time, and what tasks he performed that interfered with his performing patrol duties; the information provided would then be reviewed by Council. Id.

In a letter addressed to Plaintiff dated November 17, 2010, Rizza noted that a recent arbitration decision had voided a term of the police contract which required the Borough to have a minimum number of officers per shift as well as a supervisory officer on each shift, and advised Plaintiff that, in accordance with that decision, Council had issued a directive, effective immediately, that no overtime was to be scheduled without his prior approval. ECF No. 22, ¶ 13. See ECF No. 22-3.

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Although not clear from the Amended Complaint, sometime in the interim, Rizza allegedly called Plaintiff into his office and conducted a Loudermill hearing. ECF No. 22, ¶ 14. Plaintiff alleges that he was not informed that the meeting would be a Loudermill hearing in which he would be disciplined, and that, immediately after the meeting, he was handed a copy of a letter signed by Rizza in which he outlined a series of alleged deficiencies in Plaintiff's performance and indicated that he was recommending to Council that Plaintiff be demoted to the rank of Sergeant. Id. at ¶ ¶ 15, 16. See ECF No. 22-4. Because the letter was given to Plaintiff immediately following the meeting, he contends that not only had it been prepared prior to the meeting but that the determination to discipline Plaintiff had already been made as well. ECF No. 22, ¶ ¶ 17, 18.

Plaintiff alleges that he used vacation time from mid-November 2010 through January 2011, to care for his wife during an illness and that, in January 2011, the purported " personality conflict" between himself and Rizza " came to a head." Id. at ¶ ¶ 19-20. According to Plaintiff, Rizza had other conflicts with the Police Department including allegedly having " withheld evidence from the Police," and conducting his own investigation of an event that occurred in the Borough. Id. at ¶ ¶ 21, 22. Plaintiff also alleges that various Borough employees signed a letter in which they state their lack of confidence and/or trust in Rizza's ability to manage the Borough and that Rizza had created a " hostile work environment." Id. at ¶ ¶ 23, 24. See ECF No. 22-5.

Plaintiff further alleges in the Amended Complaint that at a February 2011 executive session, Counsel for the Borough, Christopher Gabriel, " strongly recommend[ed]" that Plaintiff be fired, and " devised a plan to get rid of [Plaintiff]." ECF No. 22, ¶ ¶ 25, 26.

Plaintiff also contends that he received a letter on February 9, 2011, from Council, directing him to improve certain areas of his performance within 60 days. Id. at ¶ 28. See ECF No. 22-6. Plaintiff was also informed in the letter that Council would monitor his progress over the following two months via reports from Rizza and that if Plaintiff did not exhibit substantial improvement, Council would consider discipline, including suspension, demotion, or termination. Id.

On February 14, 2011, Plaintiff sent an e-mail to Council and Mayor Tom Lloyd in which he addressed each area of concern set forth in Council's February 9th letter. ECF No. 22, ¶ ¶ 29, 30. See ECF No. 22-7. Plaintiff stated that officers will continue to walk a beat, although it " might not be as often as some would like," and maintained that he had adhered to the Borough's policy on purchase orders over the past several months. Id.

With respect to vehicle maintenance, Plaintiff stated in the e-mail that the issue of the police car cameras had not been brought to his attention earlier, but that he " take[s] responsibility" for it. Id. He further asserted that he and Sgt. Burke had discussed the camera repair issue with Rizza two months earlier, and that Rizza allegedly ordered them not to contact the company to arrange for the repairs stating that he would take care of it. Plaintiff also reported that the cameras were still non-operational as of the date of his e-mail, and that Rizza had not informed him of the status of any arrangements to have them repaired. Id.

With respect to the scheduling issue, Plaintiff stated that he and the Mayor have always scheduled officers so as to provide sufficient manpower to ensure public safety, and asserted that Council

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was using the above-referenced arbitration decision as authority to " reduce manpower to dangerous levels in the name of saving money." Id. Plaintiff allowed that he met with Rizza to discuss scheduling following the arbitration decision, at which time Rizza conveyed that only two officers should be scheduled per shift and that, due to safety concerns, Plaintiff subsequently implemented a schedule where he reduced the daylight shift by one officer, so that three officers could be scheduled for the 3:00-11:00 shift. Id.

Plaintiff further stated in the e-mail that he had been threatened with discipline on at least three occasions " because I choose to resist the constant interference by the Borough Manager under the name of Council." Id. He concluded the e-mail by stating that he will discuss the above issues with the Mayor upon the Mayor's return to work in the next several days. Id.

On that same date, February 14, 2011, Rizza sent a reply e-mail to Plaintiff. ECF No. 22, ¶ 31. See ECF No. 22-8. Rizza referenced several of the comments allegedly made by Plaintiff during a meeting held on February 11, 2011, including Plaintiff's alleged assertion that the Mayor, not Council, was his " boss; " that Plaintiff " did not care what Council says regarding [his] job duties; " that Council did not have the right to terminate Plaintiff's employment; and that Council's February 9 letter was " bullshit." Id. Rizza stated that he would convey this information to Council, along with Plaintiff's alleged stated intention not to comply with the instructions set forth by Council in the February 9th letter. Rizza also noted that " Council did not ask you to discuss this matter with the Mayor, but instead gave you very specific instructions that it intended for you to follow. You have made it clear that you have no intention of doing that, and I will convey that to the Council." Id.[2] Plaintiff sent another e-mail to Council and the Mayor, apparently in response to Rizza's e-mail, later that same day in which he largely repeats the statements he made in his first e-mail. ECF No. 22, ¶ 32. See ECF Nos. 7, 9.

Plaintiff subsequently received an unsigned letter dated February 17, 2011 advising him that Council had learned of his statements that he did not view Council as his " boss" and that he did not intend to follow the directives set forth by Council. ECF No. 22, ¶ ¶ 33-34. See ECF No. 22-10. The letter also referenced Plaintiff's February 14th e-mail to Council, in which Plaintiff indicated that he viewed Council's attempts to correct his performance deficiencies as " interference" with the Police Department. Id. Plaintiff was then directed to attend a Loudermill meeting with Rizza on February 18, 2011, " to discuss [Plaintiff's] response to Council's February 9 letter, and related issues." Id.

Plaintiff alleges in the Amended Complaint that he informed Council that he did not state that " council was not his boss," and that Rizza's assertion that Plaintiff made the statement was " plainly not true." ECF No. 22, ¶ 34. Plaintiff claims, however, that Council later shared the allegedly false information with three news outlets which immediately published the false information in news articles. Id.

According to the Amended Complaint, a Loudermill hearing was held on February 18, 2011, which was attended by Chris Gabriel, labor counsel for the Borough, Rizza, and the Borough's Assistant Manager,

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Ian McMeans. Id. Plaintiff alleges that the same issues raised by Council in its letter to Plaintiff dated February 9, 2011, were addressed at the hearing and that Rizza and Messrs. Gabriel and McMeans all recommended that Plaintiff be demoted. ECF No. 22, ¶ 36. Plaintiff complains that the hearing was held only nine days after he received Council's February 9th letter even though the letter stated that he had 60 days to correct any deficiencies, and that he did not have the assistance of a union representative or private counsel. Id. He further asserts that Rizza did not have authority to conduct a Loudermill hearing, which he claims could only be done by Council, and that Rizza, Mr. Gabriel and Council all conspired to set him up to ensure that he would fail. Id. at ¶ ¶ 37, 38. Nevertheless, Plaintiff also alleges that he stopped the meeting because he " experienced chest pains almost immediately," that he was taken to the hospital by ambulance, and that thereafter he, consequently, thereafter took a leave of absence. Id. at ¶ ¶ 40-42.

During his absence, on March 7, 2011, Plaintiff asserts that Council voted to demote him to the position of Sergeant, effective immediately. Id. at ¶ 43. See ECF No. 22-11. In the letter Plaintiff received informing him of the demotion, Plaintiff was advised that he was being demoted was due to his ineffectiveness as a manager and insubordination toward Council. ECF No. 22, ¶ 44. See ECF No. 22-11. The letter specifically referenced the purported deficiencies in Plaintiff's performance as well as the budgetary impact of such deficiencies; Council's attempts to correct his performance; Plaintiff's insubordination to Council's authority in that regard; and his contradictory statements, lack of adequate explanation, and refusal to discuss issues raised at the February 18 Loudermill hearing. Id.

Plaintiff subsequently appealed the demotion to the Borough's Civil Service Commission. A hearing was held on April 26, 2011, at which time Rizza, Assistant Manager McMeans, and Defendant Lusardi testified on behalf of the Borough. ECF No. 22, ¶ ¶ 45-48. Plaintiff alleges that Lusardi's testimony indicated that each of the directives Council had issued to Plaintiff were being handled appropriately by the " interim chief" following Plaintiff's demotions. Plaintiff claims that, unbeknownst to Defendant Lusardi, he had been acting as the interim chief because " he was the most senior sergeant, as reinstated by the Mayor." Id. at ¶ ¶ 49-51.

Plaintiff further alleges that, in May 2011, Rizza received a parking ticket and subsequently entered the " Police Only" entrance of the Police Department, which he had previously been told not to use, to contest the ticket. Id. at ¶ ¶ 54-55. Rizza, consequently, was charged with defiant trespass which Plaintiff and Sgt. Burke reported to the Mayor and the District Attorney. Plaintiff alleges that as a result of reporting Rizza's wrongdoing, Sgt. Burke was demoted to patrolman and Plaintiff was " reprimanded and a Loudermill hearing was to follow." Id. at ¶ ¶ 56-58.

Plaintiff also alleges that Mayor Lloyd directed him and Sgt. Zawischa to remove the GPS units from the police vehicles because members of the public had gained access to the GPS system and were able to track the officers positions. Id. at ΒΆ 59. Plaintiff alleges that he was ...


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