By Emily Nelson
In Mariano v. Borough of Dickson City, a Pennsylvania Federal District Court held that the City was not entitled to dismissal of a terminated police officer’s claim that his right to due process was violated when he was fired shortly after filing grievances.
Plaintiff Anthony Mariano, a police officer for Dickson City, began inquiring into his rights under the CBA in January 2012. A week later, defendant Police Chief William Bilinski told Mariano that he was “displeased with the inquiries, and that asking further questions would jeopardize [Mariano’s] job.” Then, in February 2012, Chief Bilinski accused Mariano of “improperly making personal use of borough dumpsters.”
Later that month, Mariano wrote to Chief Bilinski indicating that he felt harassed and singled out, and requested a grievance hearing. Bilinski did not respond. Instead, he sent Mariano a letter in April 2012, taking him off of the schedule for the exceptionally vague reason of “violating policies and procedures.” Prior to receiving the letter, Mariano had never been charged with any disciplinary actions. Mariano was never reinstated onto the schedule. Mariano brought suit, claiming the failure to schedule him was an effective termination in violation of his constitutional right to due process.
The Court evaluated his claim, indicating that in order for there to be a violation of due process, a plaintiff must show that: (1) he has a protected interest in continued employment; and (2) the available process does not comport with all constitutional requirements. It noted that under a Pennsylvania statute, “no police officer or fireman…shall be removed or discharged, except for cause, upon written charges, and after an opportunity to be heard in his own defense.” It concluded that the statutory “just cause” requirement “confers a constitutionally protected entitlement to continued employment for Pennsylvania municipal police officers.”
Despite the fact that Mariano was removed without an opportunity to defend himself at a grievance hearing, the City moved to have the due process claim dismissed. However, the court found that Mariano’s claim could proceed:
Under the facts set forth in the complaint, it is premature to dismiss plaintiff’s procedural due process claim as it relates to his termination from employment as a police officer. Plaintiff has alleged that he has been effectively terminated. It is plausible that plaintiff has a protected property interest, and he has alleged adequately that he was not provided proper due process by the police chief, borough mayor, and borough council before his employment was terminated.
Editor’s Note (Jim Cline): The right to due process depends on the existence of a “property right.” As described by the court, here it was unclear whether his CBA provided a just cause standard, but state law clearly did and that is sufficient to create a “property right.” The circumstances here are unusual in that it appears the City didn’t formally discharge the officer, but simply quit scheduling him for work and thereby cut off his salary. Whether or not the City intended to consider this a discharge, any loss of economic is sufficient to state a cause of action for a lost “property right.”
