Gaus v. Mounta (In re in Reg'l Police Comm'n), CIVIL ACTION NO. 3:17-1053
| Decision Date | 03 November 2017 |
| Docket Number | CIVIL ACTION NO. 3:17-1053 |
| Parties | GARY GAUS, Plaintiff v. POCONO MOUNTAIN REGIONAL POLICE COMMISSION, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MANNION)
Before the court is the partial motion to dismiss the amended complaint of plaintiff Gary Gaus, a former police officer with the Pocono Mountain Regional Police Department who was terminated, filed by defendants, Pocono Mountain Regional Police Commission ("PMRPC"), David Moyer, Francis DePiano, Frederick Courtright, Juan Adams, John Jablowski, Michael Oser, Brandon Igdalsky, Alma Ruiz-Smith, Lynn Kelly, Ralph Megliola, Anne Lamberton (the "Individual Commissioners"), Barrett Township, Mount Pocono Borough, Coolbaugh Township, Tobyhanna Township, Tunkhannock Township ( the "'Member Municipalities"), Pocono Mountain Regional Police Department ("PMRPD"), and Chief Christopher Wagner ("moving defendants"). Plaintiff raises procedural due process claims alleging that he had a protected property interest in his job and that defendants failed to give him a post-termination hearing, as well as state law claims, including violation of the Pennsylvania Sunshine Act, and a Pennsylvania common law claim.
Based on the following analysis, defendants' motion will be GRANTED IN ITS ENTIRETY.
In 1993, Tobyhanna and Mount Pocono entered into an "Agreement of Pocono Mountain Regional Police" (the "Agreement"), which created PMRPC and PMRPD, with the purpose of providing police services in the two municipalities. The Agreement was later modified to include the municipalities of Tunkhannock, Coolbaugh and Barrett. As such, PMRPC and PMRPD provide law enforcement coverage to Tobyhanna, Mount Pocono, Tunkhannock, Coolbaugh and Barrett, i.e., the Member Municipalities. The Agreement also provides that PMRPC is governed by a joint commission of people who represent the Member Municipalities. The 11 Individual Commissioners are defendants Moyer, Depiano, Courtright, Adams, Jablowski, Oser, Igdalsky, Ruiz-Smith, Kelly, Megliola, and Lamberton. The Agreement gives the PMRPC authority to provide police services to the Member Municipalities as well as the power to hire, fire, suspend, promote, demote, discipline, set salaries, and deal with other matters involvingemployees. The Agreement also gives the PMRPC authority to delegate powers to the Chief of Police and, it has delegated its authority to discipline, suspend and fire employees to the Chief. Further, disciplinary action under the PMRPD's Code of Conduct is determined by the Chief.
Plaintiff became a police officer with PMRPD in 1992. He was later promoted to patrolman, and he continued to work as such until January 2017. Wagner became PMRPD's Chief of Police in 2014 having previously worked as a police officer for the department. Plaintiff and Wagner had personal differences and did not get along with each other. In fact, after Wagner became Chief, he stated to other officers that plaintiff "had no future" with PMRPD.
PMRPD had a timekeeping policy which included a requirement that each officer had to complete a daily patrol log detailing the tasks and services he/she performed during the day's shift, the time spent in performing such tasks and services, and for which Member Municipality the services were performed. Plaintiff alleges that PMRPD also had an illegal quota system that required its officers to issue a certain number of traffic citations per month and, that he was disciplined in 2015 and 2016 for not writing enough citations. Plaintiff also alleges that although his supervisors knew he took his breaks at home and acquiesced to this practice, provided that he respond to service calls in his zone, Chief Wagner commenced an investigation into him for taking breaks at home while he was on duty.
Following the investigation, Wagner suspended plaintiff and placed him on paid administrative leave on December 28, 2016, based on the following charges: failure to stay in the assigned zone and engage in "proactive policing" during his shifts; departure from the assigned zone without permission; neglecting duties by engaging in personal matters while working; inaccurately documented activities in patrol logs; and failure to follow orders. Plaintiff alleges that "proactive policing" referred to PMRPD's and Chief Wagner's "euphemism for their illegal quota system."
On January 5, 2017, Chief Wagner conducted a pre-termination hearing regarding the charges against plaintiff, i.e., a "Loudermill" hearing. See Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487 (1985). Plaintiff testified at the hearing and explained that his patrol logs were correct and made pursuant to Lieutenant Laverty's timekeeping directive and, that he took breaks at his home to administer medication to his dog, which his superiors knew about and approved. In fact, plaintiff was never disciplined regarding his timekeeping and his breaks at home.
After the evidentiary hearing, and on the same day, Chief Wagner met with the PMRPC in a closed executive session before its regularly-scheduled monthly public meeting, and Wagner advised the Individual Commissioners about the details of plaintiff's Loudermill hearing. Wagner then informed the Individual Commissioners that he was terminating plaintiff's employment. Wagner had to notify the Individual Commissioners about his decision sincePMRPC had a policy requiring the advice and consent of the Individual Commissioners prior to any termination of a police officer. During the executive session, none of the Individual Commissioners objected to Chief Wagner's decision to terminate plaintiff's employment. As such, Plaintiff alleges that the Individual Commissioners took official action to confirm Chief Wagner's decision to terminate him in the closed executive session, and that they failed to vote on his termination in public session in violation of the Pennsylvania Sunshine Act.
Subsequently, on January 5, 2017, when PMRPC conducted its public meeting, Chief Wagner announced that "there was a termination of an officer due to disciplinary reasons." (Doc. 9, Ex. D), (Doc. 14-1 at 74). Further, when PMRPC held the public meeting on January 5, 2017, there was no notice or announcement made or any information provided that indicated plaintiff was the officer being terminated. Nor was there any discussion or vote regarding plaintiff's termination at the public meeting. However, on January 6, 2017, Chief Wagner wrote a letter to plaintiff and informed him that his employment with PMRPD had been terminated. Despite having received the letter, plaintiff alleges that he did not learn of the Sunshine Act violation until March 2, 2017, when Chief Wagner testified at his unemployment compensation hearing. (Doc. 9, Ex. C). Chief Wagner also testified at plaintiff's unemployment compensation hearing that PMRPC typically tries not to name the officer who is being terminated for personnel reasons during its public meeting. (Id.).
On February 6, 2017, plaintiff's counsel wrote letters to PMRPC and Chief Wagner requesting a statement of charges against plaintiff and a post-termination hearing before a neutral factfinder. (Doc. 9, Ex. E). Despite these letters, plaintiff was not given a post-termination hearing by Chief Wagner, PMRPD, PMRPC, or by the Individual Commissioners.
Additionally, PMRPC and the Association entered into a Collective Bargaining Agreement ("CBA") that delegates all disciplinary authority to the Chief of Police. (Doc. 9, Ex. F). The CBA also provides that all disciplinary action shall be grievable and governed by the CBA's three-tiered grievance procedure. Soon after his termination, plaintiff requested the Association to file grievance with PMRPD and, the Association filed a grievance within ten days of his termination. The next day, Chief Wagner issued a written denial of the grievance. Plaintiff then asked the Association to arbitrate PMRPD's decision to terminate his employment pursuant to the final step of the grievance procedure. Nonetheless, the Association did not hold a vote among its members to determine whether it would arbitrate the decision to terminate plaintiff's employment. Plaintiff made repeated requests to the Association for an explanation why it did not hold a vote and why it opted not to arbitrate his termination but the Association failed to provide one. Rather, the Association's members told him that his grievance was "not going anywhere." Thus, plaintiff alleges that the Association failed to investigate the propriety of his termination or the veracity of the misconduct charges asserted againsthim.
On March 30, 2017, plaintiff filed a praecipe for writ of summons in the Monroe County Court of Common Pleas commencing his civil action against moving defendants. (Doc. 18-1). On June 5, 2017, plaintiff filed his original complaint in the Monroe County Court of Common Pleas against the 20 moving defendants. (Doc. 2-1). On June 15, 2017, moving defendants filed a notice of removal of this case to federal court, pursuant to 28 U.S.C. §1446(b), based on federal question jurisdiction under 28 U.S.C. §1331. (Doc. 1). On June 23, 2017, moving defendants filed a partial motion to dismiss plaintiff's original complaint, (Doc. 5), and a brief in support, (Doc. 6).
On July 7, 2017, plaintiff filed an amended complaint, (Doc. 9), again raising due process claims against moving defendants pursuant to 42 U.S.C. §1983. On July 21, 2017, moving defendants filed a partial motion to dismiss with prejudice regarding Counts I, III, IV, V, VI, and VII of plaintiff's amended complaint for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 14). They submitted exhibits with their motion. (Doc. 14-1). Moving defendants simultaneously filed their brief in support of their motion. (Doc. 15). On August 3, 2017, plaintiff filed his brief in opposition to moving defendants' motion to dismiss...
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