Finley v. Pa. Dep't of Corr.
| Decision Date | 30 April 2015 |
| Docket Number | 3:12-CV-2194 |
| Court | U.S. District Court — Middle District of Pennsylvania |
| Parties | KENNETH FINLEY Plaintiff v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al. Defendants |
(JUDGE MARIANI)
On November 2, 2012, Plaintiff, Kenneth Finley, brought suit against the Commonwealth of Pennsylvania, Department of Corrections, SCI Waymart and Captain Patrick Herbert, individually and in his official capacity, and Superintendent Joseph Nish, individually and in his official capacity, claiming that the Defendants discriminated against him in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count I); that Defendants interfered with Plaintiff's right to leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq.; and retaliated against him by disciplining him for having taken leave which he alleges Defendants should have designated and treated as protected leave under the FMLA (Count III). Plaintiff, in Count IV, alleges a violation by Defendants of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq.Plaintiff also argues that he was constructively discharged by the Commonwealth. (Compl., Doc. 1).
Before the Court is Defendants' Motion for Summary Judgment (Doc. 21) on all of Plaintiff's claims. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion.
The Defendants have submitted, pursuant to Middle District Local Rule 56.1, a Statement of Material Facts as to which they submit there is no issue to be tried. (Def s' Statement of Material Facts ("DSOF"), Doc. 22). The Plaintiffs have submitted a Response to Defendants' Statement of Material Facts. (Pl.'s Statement of Material Facts ("PSOF"), Doc. 30-2). Based on a review of the parties' submissions, the following facts, unless otherwise noted, are undisputed:
Plaintiff, Kenneth Finley, was hired by the Commonwealth of Pennsylvania, Department of Corrections, in or around 1991 as a Corrections Officer assigned to SCI Waymart. (DSOF, at ¶ 1; PSOF, at ¶ 1). The Defendant, Commonwealth of Pennsylvania, Department of Corrections, is an agency of the Commonwealth of Pennsylvania. (Id. at ¶ 2). Defendant, State Correctional Institution at Waymart ("SCI-Waymart) is a correctional institution operated by the Department, located in Waymart, PA. (Id. at ¶ 3).
Defendant, Patrick Herbert, was formerly employed by the Department at SCI-Waymart. He retired in 2012 with the rank of Captain. (Id. at ¶ 4).
Defendant, Joseph Nish, was formerly employed by the Department at SCI-Waymart as a Superintendent. He retired in 2011. (Id. at ¶ 5).
In 2007, Plaintiff Finley was promoted to the rank of Sergeant. (Id. at ¶ 6).
A Lieutenant is considered a management level employee and is no longer covered by the Union. Lieutenants are supervisors and do performance evaluations, assign and approve sick leave and vacation, and make the schedules for the running of the institution and enforce the policies and procedures of the institution. (DSOF, at ¶ 7; PSOF, at ¶ 7).
On January 28, 2011, Plaintiff Finley was working in the Control Center of the facility. (Id. at ¶ 8). The Control Center is a critical area because it covers the entire function of the institution. It is the security of the institution where inmate counts are conducted, line movements are controlled and those in the Control Center are responsible for the number of inmates at the jail. (Id. at ¶ 9).
Plaintiff Finley was working the six to two shift, as the Shift Lieutenant on January 28, 2011. (Id. at ¶ 10). As the Shift Lieutenant, Finley was charged with ensuring all officers get fed, the inmates go out to the yard, the meals get served, no inmates escape from the institution, and the overall orderly running of the institution on his shift. (Id. at ¶ 11).
It is undisputed that on January 28, 2011, Finley left work after telling Lt. Merkel "he was going home SPF." (DSOF, at ¶ 31; PSOF, at ¶ 31). The code SPF is used by the Department of Corrections as an acronym for "sick parental family" leave. (Id. at ¶ 33). Finley never returned from his SPF leave. (Id. at ¶ 95).
The circumstances surrounding Plaintiff Finley's departure from SCI-Waymart on January 28, 2011 are factually in dispute. The Defendants in paragraphs 14 through 23 of their Statement of Material Facts assert that Cpt. Herbert was conducting an investigation into an allegation of staff/inmate abuse that required that several staff members be relieved from their assignments to be interviewed. (DSOF, at ¶ 14). They further assert that when asked to arrange for these officers and sergeants to be relieved so that they could be interviewed, Finley resisted, arguing that he did not have enough staff to allow for the release of the officers who had been requested by Cpt. Herbert. Defendants assert that "Finley's voice was raised" and Cpt. Herbert felt he was being "difficult". (Id. at ¶ 19). Eventually, according to Defendants, Cpt. Herbert called Finley's Supervisor, Cpt. Mushensky, and informed him that "Finley was very unprofessional" and that Herbert needed two officers to leave for an interview. (Id. at ¶ 21).
Cpt. Mushensky then called Finley and Defendants assert that Finley, when asked what was going on, "explained the conversation and asked where Herbert wanted him to pull the officers from, "out of his ass?" (Id. at ¶ 22). Defendants assert that Cpt. Mushensky told Finley to get it done. (Id. at ¶ 23).
Finley disputes this account of his communications with Cpt. Herbert and Cpt. Mushensky. (PSOF, ¶¶ 14-23). Finley maintains that he asked Cpt. Herbert for advice, saying to him, (Id.). Finley further asserts that after asking Cpt. Herbert for guidance, Cpt. Herbert "became angry, started yelling 'well maybe I should just call your shift commander,'" to which Finley states he responded, "Well, maybe you should." (Id.). Finley further states that after being told by Cpt. Mushensky that "whatever Herbert wants, he needs to make it happen," he closed an entire housing unit within SCI-Waymart and locked all the inmates in their cells. After he ordered that done, he left one officer on the cellblock and relieved all the other officers requested by Herbert and told them to report to Cpt. Herbert and provide their interviews. (Id.).
Nonetheless, it is undisputed that Finley made the arrangements to get the officers relieved and they were relieved five minutes prior to their appointment time. (DSOF, at ¶ 24; PSOF, at ¶ 24). The Defendants and Plaintiff Finley agree that pulling officers from their posts is complicated and involves a safety factor. Any officer taken from their area has to be replaced with another which requires coordination and can be very stressful. (Id. at ¶ 27).
Lt. Merkel, after doing rounds, returned to the Control Center to relieve Finley for his meal and see if he needed any help. (Id. at ¶ 28). Finley was very upset and mad and informed Merkel of his phone calls with Cpts. Herbert and Mushensky. (Id. at ¶ 29). Lt. Merkel told Finley to take an hour or more to eat and do rounds. Finley said, "Thanks," and exited the control room. (Id. at ¶ 30).
As noted, 10 or 15 minutes later, Finley returned to the control room and told Merkel he was going home SPF. (Id. at ¶ 31).
The parties' dispute whether Lt. Merkel had authority to grant Finley leave to go home and further dispute whether he actually granted Finley leave to go home. (DSOF, at ¶ 32; PSOF, at ¶ 32).
It is further undisputed that when Cpt. Mushensky returned to the control room, Finley was no longer there. (Id. at ¶ 38).
Mushensky spoke with Lt. DeLucy, who was working in the control room, and DeLucy informed Mushensky that Finley had gone home. Mushensky reported Finley's absence to Major Kosciuk and filed an incident report with Major Kosciuk detailing what had occurred with Finley on the morning of January 28, 2011. (Id. at ¶¶ 39-41).
Cpt. Mushensky was not told that Finley was having a medical emergency or that he was having a panic attack. (Id. at ¶ 43). Cpt. Herbert learned later that morning that Finley had left the institution. (Id. at ¶ 44). Supt. Nish was also informed on January 28, 2011 that Finley had left the facility without proper authorization. (DSOF, at ¶ 45). Plaintiff's response to this paragraph is to characterize it as a "conclusion of law to which no response is required". (PSOF, at ¶ 45). While the question of whether Finley left the facility "without proper authorization" may be a conclusion of law, the statement that Supt. Nish was informed on January 28, 2011 that Finley had left the facility is not a conclusion of law and Plaintiff's failure to deny that assertion requires that it be deemed admitted. It is undisputed that Nish was never informed that Finley suffered any type of panic attack, anxiety attack or medical emergency. (DSOF, at ¶ 46; PSOF, at ¶ 46).
Major Kosciuk and Deputy Gavin informed Finley that he was suspended without pay although Supt. Nish never called Finley to discuss the incident. (Id. at ¶¶ 64-65).
Kosciuk and Gavin asked Finley "who authorized you to leave the institution?" Finley responded that Lt. Merkel did. Gavin and Kosciuk informed Finley that Capt. Mushensky had to be the one to give him authorization to leave. (Id. at ¶ 66).
Nish signed a certified letter to Finley indicating that he was suspended without pay and a fact finding would be conducted. (Id. at ¶ 69).
A fact finding is a review of the incident in which statements of various people are taken to determine what occurred. It is not an automatic indication of discipline or firing. (Id. at ¶ 70). The fact finding was scheduled for Wednesday, February 2, 2011, at 9:00 a.m. with Cpt. Herbert. (Id. at ¶ 71).
Finley did not attend the...
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