Keslosky v. Borough of Old Forge

Citation66 F.Supp.3d 592
Decision Date11 December 2014
Docket NumberNo. 3:08–CV–1240.,3:08–CV–1240.
PartiesMichael KESLOSKY, Plaintiff v. BOROUGH OF OLD FORGE, et al., Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania

Scott E. Schermerhorn, Law Office of Scott E. Schermerhorn, Scranton, PA, for Plaintiff.

Lawrence A. Durkin, Durkin MacDonald, LLC, Harry P. McGrath, O'Malley Harris Durkin & Perry PC, William J. Rinaldi, Scranton, PA, David J. Solfanelli, Old Forge, PA, for Defendants.

MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

Presently before the Court is Old Forge Borough Defendants' (collectively hereinafter Old Forge)1 Motion for Summary Judgment (Doc. 104). Defendant James Peperno and Third–Party Defendant Municipal Police Officers Education and Training Commission (“MPOETC”) also moved for summary judgment (Docs. 101, 108). The Court will address MPOETC and Pepemo's motions in separate opinions. The issues have been fully briefed and the parties have submitted extensive documentary evidence in support of their respective positions. For the reasons that follow, the Court will grant Old Forge's motion for summary judgment on all of Plaintiff's claims except those that the Court has recognized herein under §§ 4311, 4312, and 4313 of the Uniformed Services Employment & Reemployment Rights of Members and the Pennsylvania Department of Military and Veterans Affairs Act.

II. Procedural History

Plaintiff, Michael Keslosky, filed his Complaint (Doc. 1) with this Court on June 30, 2008. On December 29, 2008, he filed an Amended Complaint (Doc. 35) against Defendants Borough of Old Forge, Borough of Old Forge Council, Borough of Old Forge Police Department, Old Forge Borough Police Officers' Association, Old Forge Civil Service Commission, Lawrence Semenza, Anthony Torquato, Jr., David Scarnato, Alan Heyen, Shirley Helbing, James Peperno, Jr., and James Minella. The Amended Complaint set forth nine counts: Count I, against all defendants, asserted a violation of Plaintiffs constitutional right to due process in the form of pre- and post-deprivation hearings; Count II, against all defendants, asserted a First Amendment retaliation claim; Count III, against all defendants, for violation of 42 U.S.C. § 1983 ; Count IV, against all defendants, for violation of the Uniformed Services Employment & Re-employment Rights of Members (“USERRA”) under 38 U.S.C. § 4301 et seq.; Count V, against all defendants, for violation of Pennsylvania Department of Military and Veterans Affairs Act (“PMAA”) under 51 Pa.C.S. § 7101 et seq.; Count VI, against Borough of Old Forge and Old Forge Borough Police Department, for violation of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 955(a), specifically, discrimination on account of national origin/ancestry; Count VII, against Borough of Old Forge and Old Forge Borough Police Department, for violation of the PHRA, 43 P.S. § 955(a), specifically, discrimination on account of religion; Count VIII, against Borough of Old Forge and Old Forge Borough Police Department, for violation of the PHRA, 43 P.S. § 955(d), specifically, retaliation; and Count IX, against the Borough of Old Forge and Old Forge Borough Police Department, for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Doc. 35).

Judge Munley addressed Defendants' Motions to Dismiss (Docs. 18, 26) by dismissing: (1) Plaintiff's procedural due process claims, including Count I in its entirety; (2) all claims against individual defendants in their official capacities; (3) Defendants Borough of Old Forge Council, Borough of Old Forge Police Department, and Borough of Old Forge Civil Service Commission; and (4) the claim for punitive damages against the Borough of Old Forge. Judge Munley denied the motions to dismiss in all other respects. (Doc. 38).

In May 2012, following the completion of discovery, the remaining defendants filed Motions for Summary Judgment. (Docs. 101, 104, 106, 108).

On March 5, 2013, this Court issued an Order staying the case pending the resolution of Plaintiff's appeal to the Pennsylvania Commonwealth Court of the Old Forge Borough Council's decision on June 15, 2005 to suspend Plaintiff without pay or benefits until he obtained a current Municipal Police Officers Education and Training Commission certification. (Doc. 159). On July 23, 2013, the Commonwealth Court issued its Opinion in the matter of Keslosky v. Old Forge Civil Serv. Comm'n and Old Forge Borough, 73 A.3d 665 (Pa.Commw.Ct.2013), affirming the decision of the Court of Common Pleas of Lackawanna County, which had previously denied Plaintiff's Petition for Review of the Old Forge Civil Service Commission's decision affirming Plaintiff's suspension. (Doc. 157, Ex. 2; Doc. 160).

Plaintiff's case was re-opened by this Court on October 8, 2013, and upon the request of both Old Forge and Keslosky (Doc. 160), the Court held oral argument on Defendants' motions for summary judgment. During oral arguments, with the consent of Plaintiff, the Court dismissed the Old Forge Borough Police Officers' Association with respect to all causes of action in the case. (Unoff. Tr., at 52–53, 71).

On April 29, 2014, the Pennsylvania Supreme Court denied Keslosky's Petition for Allowance of Appeal from the Order of the Commonwealth Court. (See Doc. 165).

III. Statement of Undisputed Facts

In addition to the Commonwealth Court's findings, which are entitled to collateral estoppel such as to limit the scope of this Court's identification of disputed triable issues of fact,2 the following is a statement of the material facts which the parties agree are undisputed.

On September 1, 1979, Michael Keslosky began working for Old Forge Borough as a Patrolman. (Doc. 105, ¶ 1). Following his termination in 1990, Keslosky filed Complaints in 1992 and 1993 in the U.S. District Court for the Middle District of Pennsylvania against Old Forge Borough and others, alleging violations of his civil rights. (Id. at ¶¶ 3–5). As a result of a settlement in the second action, Keslosky returned to work in September, 1997. (Id. at ¶¶ 7–10). Upon his return, Keslosky received a card from MPOETC (Id. at ¶ 11), which Plaintiff characterizes as his “MPOTEC certification” (Doc. 139, ¶ 11).

Keslosky worked as a Patrolman from September 1997 through March 13, 1998 when he ceased to work, claiming to be suffering a stress related work injury due to harassment at work. (Doc. 105, ¶¶ 12–13; Doc. 139, ¶ 13). Because of the alleged hostile work environment from September 1997 through March 1998, Keslosky received treatment from a family doctor, Richard Lazar; a psychologist, Michael Church; and a psychiatrist, David Liskov, for the job-related stress. (Doc. 105, ¶ 35). Dr. Liskov last saw Keslosky on November 5, 1999. (Id. at ¶ 36). In the treatment note from November 5, 1999, Dr. Liskov opined that he [w]ould be very reluctant to psychiatrically clear this individual to continue in the capacity of a Police Officer if paranoid symptoms are indeed pathological (which they appear at this time). (Id. at ¶ 37). On March 2, 2000, Dr. Lazar released Keslosky to work, stating that “Michael may return to work when released by Dr. Liskov and Dr. Church.” (Id. at ¶ 39).

On March 5, 2001, Keslosky filed a Claim Petition with the Bureau of Workers' Compensation, stating that due to this harassment, he “has been disabled from performing his pre-injury job.” (Oct. 15, 2002, Opinion of William Hall, Doc. 105, Ex. 5, at 4). Workers' Compensation Judge William Hall denied Keslosky's claim for workers' compensation benefits, and the Commonwealth Court upheld Judge Hall's decision on February 25, 2004. (Doc. 105, ¶¶ 14, 16).

On January 28, 2002, Keslosky filed a Complaint with the Pennsylvania Human Relations Commission (“PHRC”), which was cross-filed with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Id. at ¶ 17).

On May 9, 2002, William J. Rinaldi, Solicitor for Old Forge, wrote a letter to Keslosky's counsel regarding whether Keslosky intended to return to work and requesting a medical release from his treating physicians indicating that he was physically and mentally able to return to work as a Police Officer. (Doc. 105, ¶ 41). On May 15, 2002, Keslosky's attorney wrote to Plaintiff:

Dear Mike:

Enclosed herein please find a copy of correspondence received from William Rinaldi, Esquire inquiring as to your intentions respecting returning to work as an Old Forge Police Officer. Please advise if you are able to do so at this time and whether you will be able to obtain a note from your doctor setting forth your physical and mental ability to return to work. Upon review please call my office and advise your position regarding same.

(Id. at ¶ 42). The parties dispute whether the Borough Solicitor and the Borough received a response to their May 9, 2002, letter. (Doc. 105, ¶ 43; Doc. 139, ¶ 43).

Since Keslosky had not returned to work since March, 1998 (Doc. 105, ¶ 21; Doc. 139, ¶ 21), on August 19, 2003, the Borough held a Pre–Determination Hearing regarding Keslosky and the record remained open until December 9, 2003. (Doc. 105, ¶¶ 44, 46).

On September 11, 2003, Dr. Church provided a letter to Plaintiff's counsel in which he stated that [i]t is my understanding that you need information regarding whether or not Mr. Keslosky was psychologically fit to return to work during my last professional contact with him. Mr. Keslosky was last evaluated and seen by this clinician/examiner during April 2001. He was given psychological assessments and interviewed at that time. It was this clinician's opinion that he was capable of returning to work at that time, as he showed no evidence of gross effective or thought disturbance. I have not seen Mr. Keslosky on a professional basis since this time.” (Id. at ¶ 40).

On December 18, 2003, the Borough issued a written conclusion regarding the Pre–Determination hearing, writing that:

Based on the ... Findings of Fact, the Borough Council has decided to allow you to return to work
...

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