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Frederick v. Barbush

United States District Court, M.D. Pennsylvania

July 15, 2015

PHILLIP FREDERICK, et al., Plaintiffs


Kane Judge

Before the Court is Defendant Anthony Barbush’s motion for summary judgment. (Doc. No. 43.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the Court will grant Defendant’s motion.


This case concerns three Plaintiffs’ separation from their employment with the Legislative Security Office of the Pennsylvania House of Representatives (“the House”). Plaintiff Frederick and Plaintiff Meskunas allege that they were forced out of their positions as Director and Assistant Director of security following allegations that they were responsible for concealing the criminal record of Plaintiff Marhon, who alleges that he was wrongfully terminated. (Doc. Nos. 43-3 ¶¶ 1-9, 51 ¶¶ 1-9.)

Defendant Anthony Barbush was employed at all relevant times as the Chief Clerk of the House, and in that capacity was ultimately responsible for the personnel within the security force. (Doc. Nos. 43-3 ¶¶ 1-9, 51 ¶¶ 1-9.) Plaintiff Philip Frederick served in multiple capacities with the House starting in 1999, becoming Sergeant-at-Arms in 2007. (Doc. No. 43-3 ¶¶ 3-4.) Plaintiff Frederick supervised Plaintiff Michael Meskunas, who was the Acting Assistant Director of Operations of Uniformed Forces at the House at the time of his resignation. (Id. ¶ 6.) Plaintiff Meskunas in turn supervised Plaintiff Brian Marhon, the Legislative Security Officer whose criminal record catalyzed these events. (Id. ¶¶ 8-9.)

Plaintiff alleges that the genesis of the terminations at issue is the 2006 policy change by the legislative committee responsible for House security, permitting security officers to carry firearms in the scope of their employment. (Doc. Nos. 43-4 ¶ 16; 51 ¶ 16.) In connection with that change, Plaintiff Frederick drafted a new code of conduct which required security officers to report any criminal investigations into their personal activities to their supervisors, and stipulated that “[a] conviction for violation of any law, other than a traffic infractions [sic], shall constitute prima facie evidence of a violation of this directive.” (Doc. Nos. 43-3 ¶¶ 17-20, 51 ¶¶ 17-20.) In addition, the code of conduct instructed that “[s]upervisory personnel are responsible for subordinates’ adherence to House, CORE, and Departmental rules, regulations, policy, orders, directives and procedures.” (Doc. Nos. 43-3 ¶ 18, 51 ¶ 18.)

On April 20, 2012, Defendant Barbush received an anonymous e-mail detailing Plaintiff Marhon’s criminal past, with the subject line, “Criminals within the House of Reps. Security Team.” (Doc. Nos. 43-3 ¶ 21; 43-12 at 2; 51 ¶ 21.) According to the e-mail and supporting state court documentation, Plaintiff Marhon received convictions in 1994 for simple assault and reckless endangerment before he was employed by the House. (Doc. No. 43-3 ¶ 23.) In addition, after Plaintiff Marhon joined the House security force in 2001, he pleaded guilty to driving under the influence of alcohol in 2004, and to simple assault and harassment in 2008. (Doc. Nos. 43-3 ¶ 23; 43-12; 43-13; 43-14.) There is no evidence that Plaintiff Marhon’s criminal history extends more recently than 2008, even though this history was not revealed until 2012.

After receiving the anonymous e-mail, Defendant called Plaintiff Frederick into his office to discuss the matter. (Doc. Nos. 43-3 ¶ 24, 51 ¶ 24.) The statements made during the meeting are disputed.[3] The parties agree, however, that Plaintiff Frederick knew of Plaintiff Marhon’s criminal history and never reported the same to Defendant until asked directly at the meeting. (Doc. Nos. 43-3 ¶ 24; 51 ¶ 24.) The parties also agree that Defendant decided that it was necessary to terminate Plaintiff Marhon’s employment. (Doc. Nos. 43-3 ¶¶ 30-32; 51 ¶¶ 30-32.)

A. Plaintiff Marhon

After Defendant and Plaintiff Frederick met with a professional from the human resources department, the human resources department drafted a letter terminating Plaintiff Marhon’s employment effective April 25, 2012. (Doc. No. 43-3 ¶¶ 33-35; 51 ¶¶ 33-35.) According to the termination letter, the House terminated Plaintiff Marhon “due to [his] criminal history during [his] employment with the House of Representatives[.]” (Doc. No. 43-15.) However, the parties dispute Defendant’s reasons for insisting upon Plaintiff Marhon’s termination. According to Defendant’s deposition, Defendant decided to terminate Plaintiff Marhon because his criminal history “posed a safety risk” to the House, “especially given that he carried a weapon, ” and because his criminal history posed a public relations problem for the organization. (Doc. No. 43-3 ¶¶ 30-32.) Plaintiffs contest Defendant’s stated motives, because even if sincerely held, Plaintiffs argue that they were uninformed and unreasonable, and hence unconstitutionally arbitrary, given the lack of investigation and Plaintiff Marhon’s otherwise incident-free employment history with the House. (Doc. No. 51 ¶¶ 30-32.)

B. Plaintiff Frederick

It is undisputed that at the initial meeting after Defendant received the anonymous e-mail, Defendant learned that Plaintiff Frederick had been aware of Plaintiff Marhon’s criminal history and had not disclosed it; the parties dispute whether or not Defendant accused Plaintiff Frederick of “covering up” Plaintiff Marhon’s criminal past. (Doc. Nos. 43-3 ¶¶ 24-26; 51 ¶¶ 24-46.) Subsequently, Defendant informed Plaintiff Frederick in a telephone call that the legislative committee responsible for the security services “no longer [had] trust and confidence” in Plaintiff Frederick’s ability to supervise his department. (Doc. Nos. 43-3 ¶ 29; 51 ¶ 29.) Plaintiff Frederick and Defendant met again on April 25, 2012, this time with intermediate supervisors who reported to Plaintiff Frederick. (Doc. Nos. 43-3 ¶¶ 36-38; 51 ¶¶ 36-38.) At this meeting, Defendant reiterated his accusations that Plaintiff Frederick “covered up” Plaintiff Marhon’s record, threatened to disband the armed security force altogether, and directed Plaintiff Frederick to withdraw the firearms from the legislative security officers.[4] (Doc. Nos. 43-3 ¶¶ 36- 38; 50-3 at 23; 51 ¶¶ 36-38.) Thereafter, the Director of Human Resources instructed Plaintiff Frederick that he would soon be terminated.[5] (See Doc. No. 43-5 at 24.) In the wake of these events, Plaintiff Frederick prepared and tendered a resignation letter, and he retired from the House’s employ effective May 15, 2012. (Doc. Nos. 43-16; 43-17.) Defendant characterizes Plaintiff Frederick’s resignation as a retirement (Doc. No. 43-4 ¶¶ 38-39), while Plaintiffs advance the theory that Plaintiff Frederick was forced from his position (Doc. No. 51 ¶¶ 38-39).

C. Plaintiff Meskunas

Plaintiff Meskunas, who had some contact with Plaintiff Marhon outside of their employment, learned of Plaintiff Marhon’s 2008 legal troubles soon after they occurred. (Doc. Nos. 43-3 ¶¶ 10-13, 49; 51 ¶¶ 10-13, 49.) Plaintiff Meskunas directly supervised Plaintiff Marhon for the duration of ...

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