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Lopresti v. County of Lehigh

United States District Court, Third Circuit

June 6, 2013

KATHLEEN LOPRESTI
v.
COUNTY OF LEHIGH, et al.

MEMORANDUM

Juan R. Sánchez, J.

Plaintiff Kathleen Lopresti sues her former employer, Lehigh County, and former employee union, American Federation of State, County and Municipal Employees District Council 88, Local 543, AFL-CIO (AFSCME), for breach of contract and breach of duty of fair representation respectively. Lopresti alleges the County breached her employment contract by terminating her without just cause, and AFSCME breached its duty of fair representation by withdrawing the grievance concerning her termination. Defendants have each filed a motion for summary judgment. For the following reasons, Defendants’ motions will be granted.

FACTS[1]

The County hired Lopresti to work as a Corrections Officer (CO) at the Leigh County Prison in 2002. On August 18, 2011, Lopresti was assigned to work in Unit 2C, a violent offender housing unit. During her shift, Lopresti was positioned at a podium in the center of the room where inmates continually approached her. The inmates were agitated that evening because an inmate on the cell block, inmate Hurdle, was assisting police in an investigation. Lopresti attempted to distract the inmates by handing out permitted items such as napkins, soap, and toilet paper. At approximately 9:00 p.m., Lopresti received a telephone call from her supervisor, Sergeant Brooke Loane, who asked her to make arrangements to isolate inmate Hurdle. During the call, Lopresti also asked Loane about moving another inmate. Lopresti did not want the other inmates to hear this conversation out of concern for the safety of the inmates being moved, so she waved her hands in an attempt to keep nearby inmates away from the podium.

During the phone conversation Lopresti told Loane, “the inmates are acting stupid. Something is wrong over here.” Lopresti claims this statement was not directed at any specific inmate and at no point did she did call anyone stupid. One inmate was particularly agitated and making complaints, so Lopresti approached this inmate to give him a complaint slip. Upon Loane’s arrival at the cellblock, Loane relieved Lopresti of her duties and ordered her to turn over her wand, keys, and radio.

Loane filed an incident report about the events of August 18, 2011. In the report, Loane stated she heard Lopresti call inmates on the housing unit “stupid” in an amplified voice, directing the statements toward the inmates. She also reported that when she arrived at the cell block she observed Lopresti yell at an inmate, “you are so freaking stupid how many times do I need to tell you to leave, you never listen, why don’t you run the pod if you know everything?” Finally, Loane described seeing Lopresti approach an inmate in an “aggressive manner, ” while removing her radio from her belt, holding it out in front of her, and telling the inmate to take it and run the housing unit for her. County’s Mot. for Summ. J. Ex. A-1. As noted, Lopresti disputes Loane’s account of the August 18, 2011, incident.

The incident was also captured by a video camera stationed in the ceiling of the cellblock. The video, which has no sound, is of poor quality. It shows Lopresti standing at the podium in the center of the room. With approximately three inmates standing around the podium, Lopresti appears to lift both of her arms in such a way as to suggest she is directing the inmates to move away. At approximately 9:03 p.m., the video shows Lopresti holding her arm out in front of her gesturing toward an inmate who is standing against a wall. There are no inmates standing near the podium when she does this. Lopresti then steps away from the podium and approaches the inmate; however, it is unclear from the video whether she unclips something from her belt, or has anything in her hand. Loane can be seen entering the frame of the video prior to Lopresti leaving the podium.

On September 6, 2011, the County held an administrative hearing before Director of Corrections Edward Sweeny regarding the August 18, 2011, incident. At the conclusion of the hearing Sweeny terminated Lopresti stating there was “a repeated pattern of [her] being belligerent to other people . . . several repeated prior incidents where [she] ha[d] used words like dumb and stupid towards [her] interaction with inmates.” Pl.’s Aff. in Opp’n to Defs.’ Mot. for Summ J. Ex. B, at 8. The following day the County issued a formal termination letter to Lopresti explaining she was being terminated because of her: (1) “failure to comply with the requirements of County policy directives as well as Department of Corrections and/or facility policy directives, ” and (2) “conduct in violation of Developmental policy relating to ‘Contacts with Inmate/Residents and Ex-Offenders.” County’s Mot. for Summ. J. Ex. B-5. The letter further noted Lopresti’s repeated history of volatile, disrespectful behavior toward both staff and inmates, her ongoing refusal to accept responsibility for her behavior, and her ongoing failure to address self-control problems. The letter also stated Lopresti’s continued employment as a corrections officer posed a threat to herself, other staff, and inmates.

At the time she was terminated, Lopresti had three formal disciplinary actions in her personnel file in addition to the August 18, 2011, incident. Each action was issued following the filing of an Employee Offense Report by a supervisor and a hearing before Prison Warden Dale Meisel. On June 21, 2006, Lopresti received a reprimand letter from Meisel for acting in an insubordinate fashion toward her supervisor and for being provocative to an inmate during an unclothed search procedure. On December 5, 2008, she was suspended for one day without pay for using inappropriate, pejorative, and obscene language toward a fellow employee. On August 4, 2009, she was suspended for five days without pay as the result of to two separate instances where she made racially charged comments to a fellow CO. The letter relaying Lopresti’s punishment for this last incident acknowledged it was her third incident of disrespectful behavior toward a co-worker in as many years and stated her behavior was unprofessional and inappropriate. The letter also stated any future incidents of unprofessional interactions with her co-workers would result in termination. In addition to these formal disciplinary letters, Lopresti’s personnel file contained notes from supervisors regarding other incidents of unprofessional behavior. The prison grievance file also contained numerous inmate complaints about Lopresti, alleging she acted in an unprofessional manner by yelling or cursing at inmates, called inmates names, and directed racial epithets at inmates.

As a County employee, Lopresti was also a member of the employee union, AFSCME. The collective bargaining agreement (CBA) between the County and AFSCME establishes a grievance and arbitration procedure for employee terminations. Pursuant to the CBA, AFSCME filed a grievance on Lopresti’s behalf regarding her termination on September 12, 2011. On September 14, 2011, the County denied the grievance. On October 13, 2011, AFSCME’s local staff representative, Walter Francis, initiated grievance arbitration proceedings with the American Arbitration Association (AAA). As a staff representative, Francis was responsible for processing grievances for Lehigh County Prison employees. Part of his job was to evaluate the merits of each grievance he handled. In order to prepare for arbitration, Francis typically met with the grievant, prepared a witness list, met with witnesses, and discussed the hearing with the union executive board or the chief steward at the local union.

In addition to filing a grievance, Lopresti filed a claim for unemployment compensation benefits, which the County opposed. On November 23, 2011, a Notice of Determination was issued, denying Lopresti’s unemployment compensation claim and advising her she had until December 6, 2011, to file an appeal. On November 29, 2011, the County, through Sweeny, sent an email to Francis proposing to resolve Lopresti’s grievance by agreeing not to contest Lopresti’s receipt of unemployment compensation benefits in exchange for a waiver of rights, including AFSCME’s withdrawal of the grievance. The County also offered to convert Lopresti’s termination to a voluntary separation. Francis responded a day later, advising Sweeny he would consider the settlement proposal.

On December 1, 2011, Francis informed Lopresti the arbitration hearing regarding her grievance was scheduled for January 19, 2012. Lopresti and Francis met in person on January 5, 2012, at which time Francis did not have Lopresti’s full personnel file, and had not seen the videotape of the incident. Francis did have some familiarity with Lopresti’s past personnel problems, as evidenced by his comment to Lopresti that she had a history of similar behavior. During the January 5 meeting, Francis advised Lopresti he believed there was a 50/50 chance of succeeding at the arbitration hearing. On the evening of January 5, Lopresti left a voicemail for Francis informing him she would accept the County’s proposed settlement offer. On January 6, 2012, Francis informed the County that Lopresti would accept the settlement, and also requested a neutral employment reference. After informing the County of Lopresti’s intention to accept the settlement offer, Francis received a voicemail from Lopresti’s attorney, Richard Orloski, in which Orlaski stated he had failed to timely submit Lopresti’s appeal of the denial of unemployment compensation benefits. Because Lopresti had no pending appeal it was impossible for the County to perform its obligations under the settlement. On January 9, 2012, Lopresti left Francis a voicemail informing him that because unemployment compensation benefits were no longer available to her, she wanted to proceed with the scheduled arbitration.

On January 11, 2012, Francis emailed Sweeny informing him Lopresti had missed the deadline for filing an appeal from the denial of unemployment compensation benefits and that the arbitration was going forward. Francis also requested a copy of the surveillance videotape. In preparation for the arbitration hearing, Francis reviewed the initial incident report and videotape, and spoke with the Local 543 Shop Steward, Glenn Good, and Sweeny, about Lopresti’s past disciplinary write-ups and suspensions. On or about January 18, 2012, Francis watched the videotape with his director, Thomas Tosti, and another colleague.

After reviewing the videotape, Francis informed Lopresti by phone on January 18 that he was withdrawing the grievance.[2] He told her he had viewed the videotape and he believed it was consistent with Sergeant Loane’s incident report, showing Lopresti making arm gestures, extending her arm out, and putting her radio on the podium. He also told Lopresti he believed the grievance lacked merit based on Sergeant Loane’s incident report and videotape, and after speaking with Lopresti and assessing her credibility. Following this phone conversation Francis sent ...


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