LAWRENCE F. STENGEL, J.
Northampton County suspended, then terminated, the employment of a caseworker. The caseworker is alleging violations of the Family and Medical Leave Act (FMLA) and his procedural due process rights. The defendant has moved for summary judgment. For the reasons stated below, I will grant the defendant's motion for summary judgment in its entirety.
Stefano Kiniropoulos was employed by Northampton County Child Welfare Service as a caseworker from October of 2005 until his termination in October of 2010.
On Friday, May 21, 2010, the plaintiff called Schienholz to say he would not be in work because he had injured his leg the day before while mowing his lawn.
The plaintiff then reported to work on both Monday and Tuesday of the following week but informed Schienholz that he was having difficulty walking and could not perform his three scheduled court hearings on May 26, 2010.
On Thursday, May 27, 2010, the plaintiff began a scheduled vacation he had requested several weeks earlier, to coincide with the Memorial Day holiday.
While the plaintiff was away on vacation Schienholz temporarily took over his caseload.
After reviewing the plaintiff's travel forms, time reports, and daily attendance sheets from January until May, Schienholz found numerous discrepancies.
On June 10, 2014, the plaintiff called Ruschman to update him on his injury and notify him of an orthopedist appointment he had scheduled for June 11, 2010 to seek further treatment for his injury.
The plaintiff then attended his scheduled appointment with the orthopedist, who ordered him not to return to work until June 29, 2010.
The plaintiff did not attend the June 14, 2010 meeting regarding the inconsistencies in his caseload.
In that letter, the plaintiff explained that he was sending Broubalow as his union representative so that he could "gather a better understanding of the allegations made against [him]" so that he could "seek legal representation in order to fully comprehend and deal with the matter at hand."
The plaintiff was suspended on June 14, 2010 without pay, pending an investigation of the charges against him.
On September 21, 2010, the defendant sent the plaintiff a letter with its specific findings of misconduct, including falsification of mileage records and time reports and fabrication of work that was never completed.
The plaintiff remained on suspension until he was terminated on October 18, 2010.
The plaintiff filed this action against the defendant on October 21, 2011.
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A factual dispute is "material" only if it might affect the outcome of the case.
A party moving for summary judgment always bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact.
Under Rule 56, the court must draw "all justifiable inferences" in favor of the non-moving party.
The plaintiff only disputes two material facts: 1) that the plaintiff never advised the defendant that he might seek FMLA benefits until after there were serious concerns about the plaintiff's job performance, and 2) that the plaintiff failed to attend the June 14
The defendant argues that the plaintiff is precluded from bringing his FMLA claim because it has already been adjudicated by State Civil Service Commission and reviewed by the Pennsylvania Commonwealth Court.
Preclusion may be available to bar subsequent court proceedings under two principles: issue preclusion and claim preclusion. With issue preclusion, or collateral estoppel, "the earlier judgment forecloses only a matter actually litigated and essential to the decision."
The defendant does not specify which of the two doctrines bars re-litigation. The plaintiff did raise his FMLA claim during his Commission hearing; the Commission then found that his request for FMLA leave was not causally related to his removal.
Given that the Commonwealth Court did not review the plaintiff's claims of discrimination, issue preclusion would not apply because the plaintiff did not present his FMLA claim to this court.
State law determines whether the previous state court action has preclusive effect.
Because the plaintiff could have raised his FMLA claim in the Commonwealth Court, res judicata under Pennsylvania law could preclude his FMLA claim if the following elements are the same in both his state case and this case: 1) the thing being sued on; 2) the cause of action; 3) the persons and parties to the action; and 4) quality or capacity of the parties suing or sued.
I find these elements to be the same in both cases. In both, the plaintiff is suing for wrongful suspension and then termination under FMLA. The facts and parties in both cases are identical.
The plaintiff argues that preclusion would not apply because he "specifically excluded his federal claims from the State Civil Service claim."
Because the plaintiff's FMLA claim is precluded by res judicata, I will grant the defendant's motion for summary judgment as to Count I.
The plaintiff's procedural due process claim is premised on his contention that he was not provided due process before being suspended without pay.
Procedural due process claims under § 1983 typically require a two-stage analysis of: 1) whether the interest of which the plaintiff was deprived one that is protected by the Fourteenth Amendment as life, liberty, or property; and then 2) whether the process afforded the plaintiff in the deprivation of that interest is adequate.
Though not an absolute rule, "a public employee is generally entitled to notice and an opportunity to be heard prior to being deprived of his or her property interest in employment."
In this case, the plaintiff was notified of the charges of misconduct against him when he spoke to Ruschman on the phone on June 10, 2010.
The facts developed in discovery show the plaintiff was afforded both notice of the charges against him and an opportunity to be heard on June 14, 2010. He was given the opportunity to be heard orally at the meeting; he instead voiced his objections in writing to his employer through the letter submitted by his union representative.
The plaintiff claims that this meeting violated his due process rights because it was "inadequate." He believes he should have been permitted to bring legal counsel because of the possibility of criminal charges such as fraud or theft of mileage. "Supreme Court precedent firmly establishes there is no Due Process right to counsel unless the individual may be incarcerated as a result of the litigation."
To determine what sort of pre-suspension hearing is required, a court must examine and balance: 1) the private interest of the employee to be suspended; 2) the risk of an erroneous suspension by the procedures used, as compared to the probable value additional procedural safeguards may provide; and 3) the government's interest in suspending the individual.
It is difficult to quantify the plaintiff's "interest" in having counsel at the hearing. In hindsight, of course, his interest is very high. To be realistic, his liberty interest was not involved and the possibility of criminal sanctions was low. The plaintiff could have been temporarily suspended without pay as a result of the hearing, creating some heightened interest in adequate process.
It is equally difficult to quantify the defendant's interest in having counsel available at a pre-suspension hearing. The plaintiff was afforded a pre-suspension meeting, with his union representative. There is no case law to say that a government employee is entitled to an attorney at a pre-suspension hearing. The plaintiff was not even entitled to a hearing before he was suspended without pay, yet he was provided a hearing.
The facts of the plaintiff's misconduct would be the same whether a pre-suspension hearing with counsel were held or not. Those facts and the evidence offered to the plaintiff at that June 14, 2010 meeting could be given to law enforcement if the County chose to prosecute the plaintiff on theft or fraud charges. The County's decision whether or not to charge Mr. Kiniropoulos had nothing to do with whether he had counsel at his pre-suspension hearing. All this is, of course, academic because the County never pursued criminal charges.
Weighing these factors together, I do not find that the plaintiff's due process rights were violated by his not being able to have counsel present at the pre-suspension meeting on June 14, 2010. A hearing regarding the termination of a public employee's employment "need not definitively resolve the propriety of the discharge" but instead "should be an initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action."
"The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement."
For the forgoing reasons, I will grant the defendant's motion for summary judgment and enter judgment in the defendant's favor on all counts.
An appropriate Order follows.
The Clerk of Court is directed to
Under this rubric, the cause of action would be identical because: 1) the plaintiff complains that his suspension and termination were really the result of discrimination related to his request for sick leave, just as he claimed in his Commission proceedings; 2) the theory of recovery under both actions is essentially wrongful discharge as a result of discrimination; 3) the witnesses and documents needed for trial in this case would be the same as those used at the Commission's hearing; and 4) the materials facts alleged in this case are the same as those shown in the Commission's findings of fact which were then reviewed by the Commonwealth Court.
I will note though that in his response in opposition to the motion for summary judgment, the plaintiff makes an argument that his due process rights were violated under Section 803 of the Pennsylvania Civil Service Act, 71 P.S. ¶ 741.803—though he did not plead this violation in his second amended complaint. This argument was one raised to the Pennsylvania Commonwealth Court; that court found that this issue was waived because it was not preserved for appeal. The plaintiff himself even points out how Judge Jubelirer disagreed with the majority's finding that this issue had been waived and not preserved for appeal. The plaintiff now tries to use this dissent to create some sort of genuine issue of material fact in this case. This issue has already been decided by the state court and is clearly precluded by the Commonwealth Court's decision.
I previously dismissed without prejudice the plaintiff's procedural due process claim under § 1983 because it did not appear that the plaintiff had exhausted all available remedies under his collective bargaining agreement. I allowed the plaintiff to amend these pleadings to show "what steps, if any, he and/or his union took in challenging his suspension and dismissal through administrative or grievance procedures." I also requested that a copy of the collective bargaining agreement or excerpts from the agreement outlining the appropriate procedure be submitted. Doc. No. 17. The plaintiff failed to include this information in his second amended complaint; he claims he was never given a copy of the collective bargaining agreement so doesn't know what the grievance procedure should entail. Second Am. Compl., Doc. No. 19 at ¶ 45. He simply contends that Broubalow should have advocated on his behalf or attempted to file a grievance for him.
This argument by the plaintiff has no merit. The plaintiff was given the option to appeal his suspension to the State Civil Service Commission OR through the union grievance procedure. He chose the former. Because the plaintiff chose not to use the union's grievance procedure, he cannot claim his due process rights were violated by it.
Even if there was some other obligation via the collective bargaining agreement that Broubalow was supposed to carry out on the plaintiff's behalf, Broubalow testified that the plaintiff never discussed the charges with him and simply gave him the letter to give to the defendant on June 14, 2010. Broubalow Dep., Doc. No. 28, App. Part 3 at 150-51. Broubalow could not be expected to advocate for the plaintiff and rebut the charges against him if he was not given information by the plaintiff, which would aid him in doing so.
The Court explained in
Whether the Sixth Amendment right to counsel attaches to a pre-suspension employment hearing would be a very different question with a different test. There is nothing from the facts presented or legal precedent presented by the parties to show that the Sixth Amendment right to counsel would attach in this situation.
Pre-termination of employment only requires that the employee be given "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story."
The plaintiff was given a notice of the charges along with the basis for those charges sent him before he was terminated; he then was given an opportunity to respond to those charges, which he did in writing. This is all the process the plaintiff was due before he was terminated, especially since he was able to appeal the decision to the Commission and then to the Commonwealth Court.
