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Mariano v. Borough of Dickson City

United States District Court, M.D. Pennsylvania

August 22, 2014

ANTHONY P. MARIANO, Plaintiff
v.
BOROUGH OF DICKSON CITY, ANTHONY ZALESKI, et al., Defendants

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[Copyrighted Material Omitted]

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For Anthony P Mariano, Plaintiff: Edwin A. Abrahamsen , Jr., LEAD ATTORNEY, Abrahmasen Conaboy & Abrahamsen, P.C., Scranton , PA.

For Borough of Dickson City, Anthony Zaleski, Individually and as Mayor of the Borough of Dickson City, Barbara Mecca, Individually and as the President of the Borough of Dickson City Council, Stanley Prushinski, Individually and as Council Member of the Borough of Dickson City Council, Robert Hall, Individually and as Council member of the Borough of Dickson City Council, Rose Louryk, Individually and as Council member of the Borough of Dickson City Council, Jeff Kovaleski, Individually and as Council member of the Borough of Dickson City Council, Michael Fedorka, Individually and as Council member of the Borough of Dickson City Council, Jack Horvath, Individually and as Council member of the Borough of Dickson City Council, William Bilinski, III, Individually and as Police Chief of Dickson City, Defendants: Robin B. Snyder, LEAD ATTORNEY, Mark Joseph Kozlowski, Marshall Dennehey Warner Coleman & Goggin, Scranton , PA.

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MEMORANDUM

MALACHY E. MANNION, United States District Judge.

Plaintiff Anthony Mariano was a part-time police officer in the Borough of Dickson

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City. Believing that he had rights under the collective bargaining agreement between the police department and the borough, he began to look into the agreement. Around the same time, he also wrote a letter to the chief of police expressing that he felt singled-out and unfairly treated by the chief. Soon thereafter, plaintiff was removed from the police department work schedule. The police department chief and the borough claim that plaintiff was removed from the schedule for problems with his work performance, problems which plaintiff alleges are either " trumped up" and/or are violations of rules that other police officers routinely transgressed without punishment and that were not enforced with regularity. Plaintiff alleges that he was removed from the schedule for seeking to take advantage of his rights under the collective bargaining agreement. Plaintiff further alleges that he was removed from the schedule without the procedure he was due, and that his reputation was harmed in the community as a result of the wrongful employment action. In light of the dispute, plaintiff sued the borough, its chief of police, its mayor, and its council members.

I. BACKGROUND[1]

Plaintiff was hired by the Dickson City Police Department in 2004 as a 32 hour a week part-time patrolman, but alleges that he routinely worked in excess of 32 hours a week. Years later, in 2009, defendant William Bilinski III was appointed as Police Chief by the borough. After Bilinski became Chief, plaintiff did not work in excess of 32 hours as often. (Doc. 34-1, at 24). Plaintiff, because he had worked many hours, inquired into whether he could be considered a full-time officer and whether he had rights under the Collective Bargaining Agreement (" CBA" ) in January 2012. Soon after, plaintiff says he was informed by another officer, Christopher Tully, that Chief Bilinski was unhappy because a part-time officer was asking for information about the CBA. Plaintiff believed that part-time officer to be him, while Chief Bilinski testified that he did not know that Officer Mariano was requesting information about the contract, but that he was aware that Katie Fallon, another part-time Officer, had been looking into the contract. (Doc. 34-6, at 15). Officer Tully, who is not a defendant in this matter, denies telling plaintiff that the chief was unhappy about part-timers asking questions about the CBA. (Doc. 34-8, at 9).

The next month, plaintiff wrote a letter to Chief Bilinski indicating that he felt he was being singled out inappropriately and harassed by the chief. The chief did not respond to this letter. Then, on April 1, 2012, Chief Bilinski asked plaintiff to come in and meet with him. The events of the April 1 meeting are disputed. Chief Bilinski states that he fully discussed with plaintiff the reasons that he was being removed from the schedule. Bilinski further states that at the meeting, plaintiff explained that he was having problems at home and had been sick, and that the chief removed him from the schedule because his problems at home were adversely affecting his job performance, giving him a letter detailing the reasons he was taken off of the schedule. (Doc. 34-6, at 12-13).

Plaintiff's account is that he asked why the meeting was taking place, but Chief Bilinski would not tell him. Plaintiff then asked to have Officer Phil Davitt, the union representative for the police officers, at

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the meeting with him, because he feared that it was some type of disciplinary action. That request was denied. Plaintiff states that Chief Bilinski began to ask him about an incident regarding plaintiff's logging of evidence, which the Chief believed had been done incorrectly. Plaintiff explained the cause of the incident, stating that he had been called away on another matter per the Chief's orders. The Chief then began to question him about violating a direct order, which plaintiff denied. Chief Bilinski then began to question plaintiff about a third incident, at which time plaintiff became upset and said he no longer wanted to discuss the issues because he was becoming " stressed out" and felt that this was a continuation of the Chief " targeting" him since the beginning of Chief Bilinski's tenure. At that point, Chief Bilinski told plaintiff that he was removed from the schedule, handed plaintiff a letter detailing the reasons for the action, and told plaintiff to leave. (Doc. 34-1, at 6-7). The letter from Chief Bilinski focuses on four incidents: the improper evidence logging, errors on an incident log report provided by the Lackawanna County Communication Center and plaintiff having dinner at a local establishment during some calls, plaintiff failing to file charges against a perpetrator of retail theft, and the improper handling of paperwork for another retail theft arrest. (Doc. 34-2).

Defendant Mayor Zaleski testified that the Chief of Police reports to him and that as mayor, he is ultimately in charge of the police department. Mayor Zaleski stated that Chief Bilinski had provided the police officers in the department with a binder of policies and procedures. He noted that Chief Bilinski spoke with him before making decisions to reprimand part-time officers in any way. He was not sure if it was a written policy in Chief Bilinski's manual that required the Chief to consult with him before disciplining officers, but believed that it was a verbal agreement he had with the Chief. (Doc. 41-1, at 10-11). Mayor Zaleski reviewed the letter Chief Bilinski wrote to Officer Mariano and discussed it with the chief before the April 1 meeting between plaintiff and Bilinski. (Id., at 17). He agreed with the chief's decision to remove plaintiff from the schedule. (Id., at 19). Plaintiff alleges that he spoke to the mayor within a day or two of receiving the letter, but the mayor denies this. (Doc. 41-1, at 27).

A few days after his meeting with Chief Bilinski, Officer Mariano wrote a letter in response to the charges detailed in the April 1 letter. Plaintiff's letter denies that he defied a direct order, and argues that he was reprimanded and removed from the schedule for minor infractions which were committed routinely by many of the other officers in the police department. He argued that enforcement of these infractions was being directed at him, but not at other officers who violated them. The letter also lists some problems that plaintiff had with Chief Bilinski and asked that he be placed back on the schedule immediately. The letter was copied to Mayor Zaleski and Borough Council members. (Doc. 34-3).

Plaintiff also prepared four grievances. He gave them to the union representative, Officer Davitt. Officer Davitt testified that he presented the grievances to the other members of the bargaining unit and recommended that they be submitted to the Chief of Police as the first step of the grievance process. However, only one of the other members of the unit wanted to even discuss or consider the grievances, and so the group did not agree to submit them. Officer Davitt verbally informed plaintiff of this, and suggested that he file them with the chief without the bargaining unit representation. (Doc. 34-10, at 3). Plaintiff then attempted to give the grievances

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to Chief Bilinski, who refused to accept them because he had not received notice from the bargaining unit that there would be grievances, and because he did not believe that part-time officers had the right to grieve issues like the ones plaintiff was raising. (Doc. 34-6, at 16). Chief Bilinski did not look at or review the grievances before refusing them, and did not discuss with plaintiff whether he had attempted to submit them to the bargaining unit. Officer Davitt did testify that part-time officers were members of the bargaining unit in the borough. (Doc. 34-10, at 3).

Plaintiff next submitted his grievances to the Borough Council. He also attended several borough council meetings to ask for an opportunity to speak with them and be put back on the schedule. The borough council President, defendant Barbara Mecca, stated that the council does not have much of a role in overseeing the police department. However, the council is in charge of approving hires and officially firing officers. (Doc. 34-11, at 10-11, 18).

President Mecca does not recall receiving or reviewing Officer Mariano's grievances, but testified that it was her understanding that the grievance procedure had not been followed. (Id., at 21-22). She stated that if she had received them, she would have forwarded them to the borough's labor attorney. (Id., at 24-25). She testified that the borough did not investigate any of the charges that led to plaintiff's removal from the schedule, and that the borough council had not taken any official action to terminate plaintiff's employment as a police officer. The council also did not take action to adopt Chief Bilinski's policy manual. (Id., at 27-29). Further, council did not give Chief Bilinski approval to remove plaintiff from the schedule. (Id., at 29).

Defendants previously filed a motion to dismiss, which was granted in part and denied in part. Plaintiff was allowed leave to amend his complaint as to certain claims, but did not file an amended complaint. Following the decision on the motion to dismiss, (Docs. 25, 26), the claims remaining are 42 U.S.C. ยง 1983 claims for violation of the 14th Amendment due process clause for terminating plaintiff's employment against Chief Bilinski, the borough, Mayor Zaleski, and all of the members of the Dickson City Council, for violation of the ...


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