Jim Cline and Geoff Kiernan
In Mariano v. Borough of Dickson City, the Court held that the Borough may have violated an officer’s right to due process when the police chief removed him from the work schedule without a proper hearing. The Court disagreed with the City’s assertion that since the Officer was a part time employee he did not have a protected interest in his employment. The Officer had raised questions about his contract rights which was then followed by a meeting with the Police Chief in which the officer was accused of misconduct and then told he was being removed from the schedule.
Plaintiff, Officer Anthony Mariano, was hired as a part-time officer in 2004, but he alleged that he generally worked in excess of 32 hours in a given week. In 2009, after the defendant was appointed Police Chief, Mariano’s hours were reduced below 32 hours a week. Mariano began inquiring to employees about the CBA in order to figure out if as a part-time officer he was entitled to any rights. The Officer then sent a letter to the Chief, who allegedly was harassing him, asking him questions about the CBA.
One month after the letter was sent, the Chief asked the Officer into his office. The Officer alleged that the Chief asked him about several incidents of misconduct, then told the Officer that he was removing him from the schedule and handed him a letter detailing the action. Days later, the Officer prepared several grievances against the City, but the Chief refused to respond because he did not believe that part-time employees had the right to grieve issues under the CBA.
The Officer then filed suit against the City, claiming amongst other things, that the City fired him without giving him a fair chance to defend himself from the charges. The City filed a motion to dismiss the claim. They held that since the Officer was not a full-time employee he did not have a property interest in his position, and thus was not entitled to due-process in his termination proceedings.
In order to file a due process claim, the Court explained, a plaintiff must show two different things. “(1), that the complaining party has a protected liberty or property interest, and if so, (2) does the available process comport with all constitutional requirements.” To have a property interest in a job “a person must have more than the unilateral expectation of continued employment, rather she must have a legitimate entitlement to such continued employment”.
The Court held that that Officer had a protected property interest in his employment as a Pennsylvania state statute conferred this status upon all police officers. While the City argued that this did not apply to part-time officers, the Court found the language used in the statute was broad enough that it could not be read to exclude part-time employees. The Pennsylvania statute specified cause protection for any “person employed in the police or fire force of any borough.”
The Court then looked to see if the defendant was afforded his right to due process. Initially the City attempted to argue that the Officer was not terminated, he was only suspended, and thus he was not owed due process. However, the Court dismissed this argument explaining:
A municipality cannot avoid liability by removing an employee from a work schedule permanently without terminating them officially, and then arguing that the employee was never technically fired. It is clear that the plaintiff was effectively terminated from his position.
The Court went on to find that even if the CBA did not apply, “under Pennsylvania law a brief and informal pre-termination, or pre-suspension hearing is necessary”. The Court found since the Officer was handed a letter detailing his suspension at the same meeting in which he was notified about the suspension, there is at least a question as to if he was afforded an appropriate pre-termination process. The Court determined that this likely indicated that the Officer did not have an opportunity to respond to the allegations against him before he was terminated.
The Court also held that there were legitimate questions as to whether the Officer’s post-termination procedure was adequate under the law as well. The Court found that the Officer made every attempt to receive a post-termination hearing, but was denied at every turn by the City. The Court held:
Plaintiff has thus made a sufficient showing that whatever opportunity he had for a post-deprivation process was blocked, as he was effectively ignored at every attempt to be heard. None of this amounts to minimal constitutionally acceptable requirements for post-termination process, because plaintiff was not given a meaningful opportunity respond and be heard by any impartial decision makers.
Thus the City’s motion for summary judgment against the Officer was denied and case continued to trial.
This appears to be the clearly correct result. To have a property right subject to due process one must have a basis for it in law. Apparently, it was unclear whether this officer was covered by the CBA, which could be the basis for such a property right, the Pennsylvania statute appears quite clear – it provided cause protection for all officers without regard to whether they were full time or part time.
The Court also correctly rejected the argument that the City did not fire the Officer, but merely cut off his hours of work. To the extent that the Officer worked a regular part time schedule, an interruption in the that schedule would have effectively have been at least a suspension if not an outright termination. Due process rights are implicated by any economic loss, including time off. Had this officer worked only an a casual or on call basis there could have been a different result. But here, where he routinely was scheduled to work, the Chief’s actions removing him from the schedule entirely constituted a loss of “property.”
Clearly these were not good facts for the City. But the principles applied by the Court appear to be consistent with how most courts would have ruled, even in the absence of the possible retaliation issues involved here.
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