Duff v. Sherlock

• Decision Date: 29 April 1977
• Docket Number: Civ. A. No. 76-1628.
• Citation: 432 F. Supp. 423
• Parties: Thomas H. DUFF v. William H. SHERLOCK, Secretary of Transportation of the Commonwealth of Pennsylvania, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

432 F. Supp. 423

Thomas H. DUFF v. William H. SHERLOCK, Secretary of Transportation of the Commonwealth of Pennsylvania, et al.

Civ. A. No. 76-1628.

United States District Court, E. D. Pennsylvania.

April 29, 1977.

Perry S. Bechtle, Alan M. Lerner, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for plaintiff.

Shirley Rae Don, John T. Kalita, Jr., Frank A. Fisher, Jr., Asst. Attys. Gen., Commonwealth of Penna., Harrisburg, Pa., John M. Cleary, Philadelphia, Pa., for defendants.

MEMORANDUM

GORBEY, District Judge.

Plaintiff, in December of 1973, was appointed to the position of Superintendent of Delaware County Maintenance District of the Pennsylvania Department of Transportation. Such is a non-civil service, non-union position involving policy-making decisions as shown by the affidavits of defendants Pulakos and Harhigh, attached to defendants' motion for summary judgment or motion to dismiss. The aforementioned affidavits state that it is the policy of the Commonwealth of Pennsylvania to consider that its non-civil, non-union employees have no property right to employment by the Commonwealth. This conclusion is supported by American Federation of State, C. & M. Emp. v. Shapp, 443 Pa. 527, 280 A.2d 375 (1971); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

Plaintiff's contention is that while a person in a policy-making "patronage" position may be discharged for no reason at all, due process of law requires that if such an employee is to be discharged for reasons which may attach a "badge of infamy" to him as "where a person's name, reputation, honor or integrity is at stake because of what the government is doing to him", notice and an opportunity to be heard are essential. Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed. 216 (1954); Wisconsin v. Constantineu, 400 U.S. 433, 437, 91 S.Ct. 507, 510, 27 L.Ed.2d 515 (1971).

The complaint alleges that on or about May 1, 1975, plaintiff was asked to meet with defendants Garzia, Pulakos and Christopher, in Harrisburg. At the meeting it is alleged that Mr. Pulakos asked the plaintiff whether he believed he had a drinking problem, and plaintiff answered in the negative. Plaintiff was then informed that Pulakos was in possession of a report based upon a secret investigation and which indicated a drinking problem. Subsequently, on or about July 13, 1975, plaintiff was informed by defendant Garzia, by telephone, that he had saved plaintiff's job but that the plaintiff would have to submit to an evaluation at the State Vocational Rehabilitation Center, or he would lose his job.

On or about July 15, 1975, plaintiff was called to the district engineer's office in St. David's, Pennsylvania, where he was told by defendant Synkonis that an appointment had been made for plaintiff with defendant Mau at the Rosemont Vocational Rehabilitation Center at nine A.M. on July 17, 1975. At this meeting defendant Mau asked plaintiff if he would speak with Mr. Dan Miller at Chit Chat Farms in Reading, Pennsylvania; plaintiff agreed to do so, and an appointment was made for July 31, 1975. Complaint, paragraphs 11 and 12.

On July 19, 1975, defendant Mau called the plaintiff, informed him that the drinking problem was larger than he realized and that plaintiff was to be hospitalized at once. Plaintiff then alleges that Mau stated he would make arrangements for the hospitalization and contact the plaintiff on July 21, 1975, but did not contact him. Complaint, paragraph 13.

In his answer to the complaint defendant Mau denied in part the allegations in paragraphs 12 and 13; he admitted the telephone call but denied that he told plaintiff he was to be hospitalized or that defendant would make arrangements for such hospitalization or that he would contact the plaintiff as alleged or at any other time. Defendant asserts that he informed plaintiff that his position was in danger by reason of the alleged alcoholism and offered to make available to plaintiff immediate, diagnostic services, and if appropriate, treatment, and requested that plaintiff telephone defendant on July 21, 1975, to convey plaintiff's decision to accept or reject the offer. He denied that he did not thereafter contact the plaintiff, supporting such denial by Exhibits 1 and 2 attached to his answer. More significantly his denials are supported by his answer to interrogatory number 7 as follows:

". . . defendant Mau in the presence of the plaintiff telephoned Richard Miller, Director of Therapy, Chit Chat Farms on July 17, 1975 for the purpose of arranging a meeting between the plaintiff and Mr. Miller at Chit Chat Farms; such meeting was set for July 31, 1975. Defendant made a second telephone call to Mr. Miller's office for the purpose of cancelling on July 21, 1975; Mr. Miller being absent, defendant Mau at that time stated without comment to his representative that Plaintiff did not wish the meeting to take place and denied having a drinking problem."

The next significant act alleged by plaintiff is that by letter dated August 6, 1975, and signed by defendant Harhigh, plaintiff was informed that effective August 8, 1975, he was being placed on thirty-day leave without pay because plaintiff's alleged drinking problem during working hours interfered with his duties; that plaintiff had refused certain counseling and/or rehabilitation services and that the thirty-day leave without pay was to be used by plaintiff to seek professional treatment. He was further advised to forward written certification to the department that he was undergoing treatment within fifteen days, or face further disciplinary action. The complaint alleges that a true and accurate copy of said letter is "attached hereto, marked Exhibit `A' and incorporated by reference herein". No such letter was, however, attached to the complaint.

Next follows paragraph 15 in which plaintiff avers that one or more of the defendants is responsible for a newspaper article describing plaintiff's suspension for "chronic alcoholism" and inability to perform his work-related duties, which appeared on the front page of The Delaware County Daily Times on Monday, August 11, 1975.

In paragraph 16 it is alleged that by a letter dated September 24, 1975, signed by defendant Pulakos, plaintiff was informed that as of September 12, 1975, he was dismissed from his position for failure to comply with the conditions of the August 6th letter referred to in paragraph 14, in that he did not seek help for alcoholism and provide written certification of that fact within fifteen days.

The plaintiff in paragraph 17 of the complaint alleged that he "was never given a hearing or other reasonable opportunity to refute the charge of alcoholism or improper performance of his duties by reason of alcoholism."

Since plaintiff's position was a "patronage" policy-making one, he could as previously shown, be discharged under normal circumstances even if he was performing his duties with all efficiency; only if he is to be discharged for improper performance of duties due to alcoholism is notice and hearing essential for due process. Logically, it would appear that the first requirement would be notice and hearing to establish or refute the charge of being an alcoholic. If, after a hearing, it is shown that the person was not an alcoholic, he as previously indicated, could be discharged summarily with no hearing as to the quality of his performance. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); See also Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).

If it is established that a person is an alcoholic, and that fact is to be published in connection with a possible discharge, it would then be necessary to provide for a hearing on the question whether the alcoholism had interfered with the proper performance of his duties. The plaintiff denies both the alcoholism and improper performance of his duties.

Plaintiff's claim for relief rests upon 42 U.S.C. §§ 1981 and 1983, with jurisdiction conferred upon the court by 28 U.S.C. §§ 1331 and 1343(3). His complaint alleges that his job was terminated as a result of a conspiracy and without due process of law.

Plaintiff cannot rest upon his bare allegations to the extent that they have been controverted by affidavit or answers to interrogatories. Rule 56, Fed.R.Civ.Proc.

Thus, plaintiff's allegation that he was never given a reasonable opportunity to refute the charge of alcoholism is negatived not only by paragraphs 8, 9, and 10 of plaintiff's complaint, but also by defendant Mau's response to interrogatory number 1, in which he states that, pursuant to the request of Elizabeth Salayar, Personnel Director of the Pennsylvania Department of Transportation at St. David's, he fixed July 17, 1975, at 9:00 A.M. at the Rosemont District Office, as the time and place to meet the plaintiff to discuss the problem; a drinking problem which, according to paragraphs 8 and 9 of the complaint was brought to plaintiff's attention by defendant Garzia, Pulakos and Christopher on May 1, 1975.

In defendant Mau's answer to interrogatory number 7, he states that he "in the presence of the plaintiff telephoned Richard Miller, Director of Therapy, Chit Chat Farms on July 17, 1975, for the purpose of arranging a meeting between the plaintiff and Mr. Miller at Chit Chat Farms; such meeting was set for July 31, 1975. Defendant made a second telephone call to Mr. Miller's office for the purpose of cancelling the meeting on July 21, 1975; Mr. Miller being absent, defendant Mau at that time stated without comment to his representative that plaintiff did not wish the meeting to take place and denied having a drinking problem."

The purpose of the proposed conference of July 31, 1975, is explained and is significantly shown by Exhibit 1, to defendant Mau's...