Gilson v. Pa. State Police

• Decision Date: 30 March 2016
• Docket Number: Civil Action No. 1:12-cv-002
• Citation: 175 F.Supp.3d 528
• Parties: William Gilson, Plaintiff, v. The Pennsylvania State Police, an Agency of the Commonwealth of Pennsylvania, et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

175 F.Supp.3d 528

William Gilson, Plaintiff,

v.The Pennsylvania State Police, an Agency of the Commonwealth of Pennsylvania, et al., Defendants.

Civil Action No. 1:12-cv-002

United States District Court, W.D. Pennsylvania.

Signed March 30, 2016

James B. Lieber, Jacob M. Simon, Thomas M. Huber, Lieber Hammer Huber & Bennington, P.C., Pittsburgh, PA, for Plaintiff.

Robert A. Willig, Office of Attorney General, Pittsburgh, PA, for Defendants.

OPINION

Mark R. Hornak, United States District Judge

Plaintiff William Gilson filed this civil action against the Pennsylvania State Police and certain of its present or former officers and officials¹ after he was terminated from his position as a Pennsylvania State Trooper. In this lawsuit, Gilson alleges that the Defendants violated his rights under the U.S. Constitution, federal and state employment discrimination laws, and the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). This Court has subject matter jurisdiction over Plaintiff's claims pursuant to 28 U.S.C. §§ 1331, 1334(b), and 1367.

Presently pending before the Court is Defendants' motion for summary judgment on all counts in Plaintiff's Fourth Amended Complaint (ECF No. 74), the operative pleading in this case. For the reasons that follow, Defendants' motion will be granted.

I. FACTUAL BACKGROUND

Plaintiff is a former Pennsylvania State Trooper who was employed by the Pennsylvania State Police (hereafter, “PSP”) from 1994 to 2011. (PSAF ¶1.)² During his tenure with PSP, Plaintiff served at the Troop E Headquarters in Erie, Pennsylvania under his commanding officer, Captain Mark Schau (later Major Schau). (Id. ¶3.) Defendant William Sibbald, Jr. also served as a Pennsylvania State Trooper in Troop E, along with Plaintiff. (Id ¶2.)

According to Plaintiff, Trooper Sibbald harbored a personal animosity toward him as a result of Plaintiff having previously inquired into Sibbald's relationship with a female high school informant. (PSAF ¶24.) Plaintiff claims that Sibbald referred to him as a “freak” and a “pervert” in the presence of others and commented that Plaintiff “didn't belong on this job.” (Id.)

A. The August 17, 2009 Incident

On August 17, 2009, various PSP Troopers, including Plaintiff and Trooper Sibbald, were dispatched to assist in an incident involving the involuntary mental health commitment of a twenty-year old male who was acting erratically and threatening to harm himself. (PSAF ¶13.) Also present at the scene was a female crisis service worker by the name of Sandra Grgic. (Id. ¶14.) After the subject of the call was successfully handcuffed, Plaintiff and Grgic exited the premises. (Id. ¶¶17-18.)

What happened next is hotly disputed by the parties. Plaintiff maintains that he tapped the elbow of Grgic, who was walking in front of him, and inquired to which hospital the individual was being taken. (Declaration of William Gilson at ¶13, ECF No. 99-1.) Grgic told Plaintiff the name of the hospital, and Plaintiff then entered his vehicle and departed the scene. (Id. ¶¶14-15.) While Plaintiff acknowledges touching Grgic's elbow in order to get her attention, he denies any further physical contact between the two. (Id. ¶¶16-17.) According to Defendants, however, Plaintiff touched Grgic inappropriately during their brief verbal exchange by placing his left arm around Grgic's waist and pulling her toward himself. (See Pl.'s Ex. 26, ECF No. 99-3; PSAF ¶35.)

Following this incident, Sibbald twice attempted, unsuccessfully, to reach Grgic at her place of employment. (PSAF ¶¶ 23, 29.) When the two subsequently spoke, Sibbald told Grgic that he had witnessed the incident, and he informed her that she could file a complaint about it if she wished to do so. (PSAF ¶30.) On August 24, 2009, Grgic called PSP to complain about Gilson's conduct. (Id. ¶34.)

B. The Internal Affairs Division Investigation

Sergeant Mark Noce, an investigator in PSP's Internal Affairs Division (IAD), was subsequently assigned to investigate the incident. (PSAF ¶47.) In the course of his investigation, Noce twice interviewed Grgic, who (according to Noce) “related that the contact was not appropriate, [was] unwanted, and [occurred] on a personal area of her body (above her left hip on her waist).” (Pl.'s Ex. 26, Attachment 10, ECF No. 99-3; Def.s' Resp. to PSAF ¶35, ECF No. 104.)

Noce also interviewed Plaintiff on two occasions—October 26 and November 18, 2009. (PSAF ¶52.) During the course of his interviews, Noce repeatedly asked Plaintiff about the incident in question and Plaintiff repeatedly denied any wrongdoing, consistently maintaining that he had only touched Grgic on the elbow. (PSAF ¶¶ 59-60.) Noce described these exchanges in his report as follows:

• “You didn't touch her on the left waist area?” Trooper GILSON said he at “no time” touched Ms. GRGIC on her left waist area and at no time did he move her in towards his body at all. (Pl.'s Ex. 26, p. 9 of 22.)

• Sergeant NOCE: I said to Trooper GILSON that at no time did he reach with his left hand or arm and put it around her left waist area and pull her towards him, so they were touching body to body as Ms. GRGIC alleged. Trooper GILSON said that was correct. (Id. at p. 13 of 22.)

• Sergeant NOCE: I asked Trooper GILSON what his answer was ... If he did not remember doing it or he did not do it. Trooper GILSON stated, “I did not do it.” He said he did not touch her as far as putting his arm around her waist and he did not pull her into him under any circumstances. (Id. at p. 14. of 22.)

• I asked Trooper GILSON if he was denying touching Ms. GRGIC anywhere other than the elbow. Trooper GILSON advised he did not remember pulling Ms. GRGIC to him or reaching around her waist. (Id. at p. 17 of 22.)

• I asked Trooper GILSON if there was any physical contact of Ms. GRGIC other than the right elbow that he had previously said. Trooper GILSON stated, “No Sir, I do not, I do not, recall her, her side of the story (unintelligible) at all Sir.” (Id. at p. 18 of 22.)

• I asked Trooper GILSON if he grabbed Ms. GRGIC by the left side of her body and pull her into his body. Trooper GILSON stated, “No I did not.” (Id. at pp. 18-19 of 22.)

• After further discussion, I asked Trooper GILSON if he disagreed with how it was alleged he touched Ms. GRGIC. Trooper GILSON said, “That is correct Sir.” (Id. at pp. 20-21 of 22.)

Noce also interviewed others present on the scene or nearby, including the parents and neighbors of the individual who was involuntarily committed and other PSP Troopers who had been dispatched to assist in the incident. (PSAF ¶52.) None of these other individuals witnessed contact between Plaintiff and Grgic. (Pl.'s Ex. 26.) The only other witness to the incident was Sibbald, who generally corroborated Grgic's version of the incident, except that Sibbald claimed that Grgic “quickly pushed herself away” from Plaintiff, whereas Grgic indicated in her verified statement that she merely “walked away.” (See Pl.'s Ex. 26 at Attachment 3 and Attachment 10.)

C. The December 2009 Summary Report and Disciplinary Action Report

On November 23, 2009, Noce generated a report of his investigation which was forwarded to Schau in his capacity as Plaintiff's commanding officer. (PSAF ¶63.) Schau then prepared a summary of the investigation, entitled “Summary Report,” which he issued to Plaintiff on December 8, 2009. (Pl.'s Ex. 27, ECF No. 99-3; Schau Dep. 90:7-25, ECF No. 99-4.) In his Summary Report, Schau noted that the “crux of the investigation focuse[d] around a complaint that TFC GILSON while on-duty had inappropriate physical contact with a female crisis services worker.” (Pl.'s Ex. 27, ECF No. 99-3.) The Summary Report included Schau's determination that the allegation against Plaintiff had merit and that, as a result, Schau was considering the issuance of a Disciplinary Action Report. (Id.; PSAF ¶64.)

As Schau explained, the purpose of the Summary Report was to put Plaintiff on notice that he was the subject of a complaint that might result in discipline. (Schau Dep. 90:21-25.) When Schau met with Plaintiff on December 8, 2009, he provided Plaintiff a copy of the IAD investigatory file, including any attachments, interviews and CDs, along with the Summary Report. (Schau Dep. 90:8-14; 91:1-5.) Pursuant to PSP procedure, a Trooper under investigation is given a chance to review the Summary Report and accompanying investigatory file and must then indicate, within a three-day period, whether he or she wants an opportunity to be heard at a pre-disciplinary conference or “PDC.” (Id. at 91: 8-13.) At the PDC, the Trooper can ask questions and/or point out inconsistencies in the evidence or mitigating factors to the PSP Captain, who then makes the final determination whether the allegation of misconduct will be sustained. (Id. at 91:16-25.) In Plaintiff's case, Schau met with Plaintiff briefly on December 8, 2009 in order to provide him a copy of the Summary Report and Noce's investigative file. (Arbitration Hr'g Tr. 91:15-25, Jan. 6, 2011, Defs. Ex. D, ECF No. 83-2.) During this meeting, Schau asked Plaintiff if he wished to have a union representative present and Plaintiff indicated he did not, because he wanted to keep the incident quiet. (Id.)

Schau then scheduled a pre-disciplinary conference for December 11, 2009. Because he had to be out of town on that date, Schau arranged for Operations Lieutenant Bradley Allen to meet with Plaintiff for his PDC. (PSAF ¶70; Schau Dep. 92:1-5.) Although not personally present, Schau had authored a Disciplinary Action Report (“DAR”) to be issued against Plaintiff in the event that Plaintiff “did not bring anything forward” at his PDC. (PSAF ¶71; Schau Dep. 92:6-93:7.) Schau instructed Allen that, if Plaintiff had “something to offer,” then the DAR should not be issued, and Schau would consider “whatever [Plaintiff] brought forward” upon his return. (Schau Dep. 92:16-23.) According to Schau, Allen issued the DAR to Plaintiff on December 11 after determining that Plai...