Keslosky v. Borough of Old Forge et al

Filing 38

MEMORANDUM and ORDER GRANTING in part and DENYING in part 18 26 MOTIONS to Dismiss; GRANTED re pltf's claims againstt individual dfts in their official capacities; GRANTED re Borough of Old Forge Council, Borough of OF Police Dept, Borough of OF Civil Service Commision; GRANTED re pltf's punitive claims against the Borough of Old Forge; GRANTED re due process claims; DENIED in all other respects. Signed by Honorable James M. Munley on 8/25/09. (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHAEL B. KESLOSKY, III, Plaintiff : No. 3:08cv1240 : : (Judge Munley) : v. : : BOROUGH OF OLD FORGE, : BOROUGH OF OLD FORGE : COUNCIL, : BOROUGH OF OLD FORGE POLICE : DEPARTMENT, : LAWARENCE A. SMENZA, : ANTHONY J. TORQUATO, JR., : DAVID SCARNATO, : JAMES J. PEPERNO, JR. : ALAN HEYEN, : SHIRLEY HELBING, : JAMES P. MINELLA, : OLD FORGE BOROUGH CIVIL : SERVICE COMMISSION, and : OLD FORGE BOROUGH POLICE : OFFICERS' ASSOCIATION, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are defendants' motions (Docs. 18, 26) to dismiss the plaintiff's complaint. Having been fully briefed, the matter is ripe for disposition. B a c k g ro u n d 1 T h is case arises out of plaintiff's employment as a police officer with The court takes the facts related here from the plaintiff's amended complaint, but adopts no position on their veracity.
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D e fe n d a n t Borough of Old Forge. (Amended Complaint (Doc. 35) (hereinafter "A m e n d . Complt.") at ¶ 20). Plaintiff began working for the Borough as a police o ffic e r in 1979. (Id. at ¶ 23). In 1992 and 1993, he brought two federal court actions a g a in s t the Borough, alleging discrimination. (Id. at ¶ 24). In the first of those cases, p la in tiff gained partial summary judgment on a wrongful termination claim. (Id. at ¶ 2 5 ). The second case ended with an agreement that plaintiff could retain his status a s a Borough police officer, and that no notice of his previous suspension or te rm in a tio n would remain in his file. (Id. at ¶ 26). Plaintiff's return to the police force was not easy, however. Borough officials m a d e it difficult for plaintiff to obtain the training necessary to resume working, and u n io n officials refused to let plaintiff pay back dues and then filed a grievance that a tte m p te d to remove him from the force for failing to pay dues. (Id. at ¶¶ 27-28). The union also prevented plaintiff from becoming a member of the local Police A s s o c ia tio n , which meant that he could not join the Fraternal Order of Police. (Id. at ¶ 29). Plaintiff finally returned to work in September 1997. (Id. at ¶ 30). Plaintiff was n o t given the duties of other police officers, however, and did not receive a key to the d e p a rtm e n t as other officers did. (Id. at ¶ 31). Instead, he was assigned clerical ta s k s . (Id.). Plaintiff could not respond to calls unless called by another officer. (Id. a t ¶ 32). He was required to work alone. (Id. at ¶ 36). He was told not to provide b a c k u p for any other departments in the area, and was not allowed to call for backup

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h im s e lf. (Id. at ¶ 34). Other officers were restricted in their communications with p la in tiff. (Id. at ¶ 35). The mayor and the Chief of Police told plaintiff that rank and s e n io rity rules applied to everyone in the department but him. (Id. at ¶ 33). Plaintiff also suffered other forms of mistreatment and harassment from the p o lic e department. After his return to work, police officers issued plaintiff numerous tra ffic citations, including 42 separate citations for driving a police vehicle while his lic e n s e was suspended for failing to respond to an earlier citation. (Id. at ¶ 37). Defendants also denied plaintiff promotion to sergeant. (Id. ¶ 38). Previous to p la in tiff's application for the position, the Borough had always employed three s e r g e a n ts . (Id.). Though the Borough's code requires a written exam for such p ro m o tio n , two officers promoted previous to plaintiff were not required to take the te s t. (Id.). Plaintiff challenged these officers' promotions to the Borough Council and th e Borough Civil Service Commission, arguing that the officers should be required to take a written exam, and that he be allowed to sit for the exam as well. (Id.). The B o ro u g h responded to plaintiff's request by eliminating the third sergeant's position. (Id.). In March 1998, plaintiff responded to a domestic call in Old Forge. (Id. at ¶ 3 9 ). At the scene, the victim informed plaintiff that her husband had been taken from th e scene by members of the Old Forge Police Department. (Id.). They took her h u s b a n d to the police station, where he had a meeting with members of the d e p a rtm e n t, including Defendant Officer Semenza. (Id.). The officers solicited a

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fa ls e criminal charge against the plaintiff from this person. (Id.). When he learned of th is attempt to file false criminal charges against him, plaintiff became violently ill. (Id.). He was forced to go to the emergency room at Wilkes-Barre General Hospital. (Id.). Plaintiff did not return to work after this incident for several years, contending th a t he had suffered an injury in the form of "abnormal working conditions." (Id. at ¶ 4 0 ). In March 2001, plaintiff received a release from his doctor to return to work. (Id.). Plaintiff provided a copy of this release to his employer. (Id.). Plaintiff had file d a workers' compensation claim, and defendants did not call plaintiff back to w o rk while that claim was pending. (Id.). Instead, they kept plaintiff on the payroll as a n employee with paid benefits. (Id.). Defendants did not pay plaintiff a salary d u rin g this period, however. (Id.). On June 17, 2003, the Borough of Old Forge notified plaintiff that it had in s titu te d written charges against him for failing to report to work since May 10, 1998. (Id. at ¶ 41). The complaint alleged that plaintiff had exhausted all of his approved le a ve time and had not provided a release from a health care provider that e s ta b lis h e d he was fit to return to work as a police officer. (Id.). The Borough held "pre-determination" hearings in the plaintiff's case on A u g u s t 19, 2003 and December 9, 2003. (Id. at ¶ 42). On December 18, 2003, the B o r o u g h council voted to return plaintiff to work unconditionally. (Id. at ¶ 43). The B o r o u g h based its decision on plaintiff's March 2, 2001 release to return to work and

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a n opinion from Dr. Michael Church issued on September 11, 2003. (Id.). Dr. C h u rc h 's opinion confirmed that plaintiff could return to work. (Id.). Though plaintiff c o n te n d s that the Borough Council's decision on his case was favorable, he a p p e a le d that decision to the Old Forge Civil Service Commission on January 14, 2 0 0 4 . (Id. at ¶ 44). Plaintiff alleges that the written decision signed by the council p re s id e n t, Defendant Heyden, did not accurately record the Council's vote, and the fin d in g s of fact as recorded in the decision had adversely impacted plaintiff's future e m p lo ym e n t and his back wages claim. (Id.). The Civil Service Commission­also a d e fe n d a n t in this case­did not address plaintiff's appeal for almost two years. (Id. at ¶ 45). Finally, on December 22, 2005, the Commission addressed plaintiff's appeal b y opening the record in response to plaintiff's appeal of another employmentre la te d decision by the Council. (Id.). On December 19, 2003, the day after the Borough Council decided to return p la in tiff to active duty, the United States Army National Guard activated plaintiff for d u ty and deployed him outside the jurisdiction of Pennsylvania. (Id. at ¶ 46). Plaintiff returned from the active duty assignment on July 1, 2004. (Id. at ¶ 47). He re tu rn e d to Old Forge and provided a timely written request for placement on the p o lic e department's active duty roster. (Id.). On August 1, 2004, plaintiff notified the C h ie f of Police that he had been released from active duty and requested immediate p la c e m e n t on the active duty roster. (Id. at ¶ 48). The defendants refused these re q u e s ts and instead required plaintiff to undergo the physical and mental

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e x a m in a t io n s required of new hires. (Id. at ¶ 49). Plaintiff maintains that these re q u ire m e n ts were unnecessary, and that he needed only to update certain c e rtific a tio n s to be eligible to work. (Id.). The Borough refused to schedule updates fo r these certifications for plaintiff, and this refusal caused another certification re q u ire d by the plaintiff to expire. (Id. at ¶ 50). The Borough refused to allow plaintiff to return to work without this certification. (Id.). The Borough's refusal to forward p la in tiff's request for this certification unless plaintiff submitted to mental and p h ys ic a l examination, plaintiff alleges, violated the law. (Id. at ¶ 51). O n February 16, 2005, the Borough's manager, Margaret Mazza, notified the p la in tiff that written charges had been filed seeking his removal as a police officer. (Id. at ¶ 52). The charges asserted that plaintiff had failed to comply with a state p o lic e training and education law and failed to attend scheduled physical and p s yc h o lo g ic a l exams necessary for certification. (Id.). The Borough Council held "p re -d e te rm in a tio n " hearings about this matter on March 15, 2005 and April 19, 2 0 0 5 . (Id. at ¶ 53). On June 15, 2005, the Council, at a hearing, adopted the c h a rg e s against the plaintiff and voted to suspend plaintiff without pay and benefits u n til he complied with legal training and certification requirements. (Id.). At that s a m e meeting, the Council voted to make Defendant Semenza Chief of Police. (Id.). P la in tiff appealed this decision by the Borough Council as well. (Id. at ¶ 54). The Old Forge Civil Service Commission held hearings on August 18, 2005 and D e c e m b e r 22, 2005. (Id.). On July 31, 2006, the Commission issued a decision

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a ffirm in g the Borough Council's decision to suspend plaintiff without pay or benefits. (Id.). Plaintiff appealed this decision to the Lackawanna County Court of Common P le a s . (Id. at ¶ 55). As of the date of plaintiff's complaint, the Commission had re fu s e d to file the certified record with that court. (Id. at ¶ 56). The Commission finally heard plaintiff's civil service appeal regarding p ro m o tio n s on October 22, 2007. (Id. at ¶ 57). This hearing came nearly ten years a fte r plaintiff first complained about these promotions to chief and sergeant. (Id.). Though Old Forge regulations require a decision to be issued within thirty days of th e hearing, the Commission has not yet done so. (Id.). The Commission's C h a irm a n , Defendant James P. Minella, informed the plaintiff that he would never be p ro m o te d , and plaintiff alleges that these actions indicate that Minella supported a tte m p ts to prevent plaintiff from working as a police officer. (Id. at ¶ 58). Defendant Peperno, Chairman of the Police Pension fund, allegedly m is h a n d le d police pension funds, using those funds to fund buyouts of a former C h ie f and Captain. (Id. at ¶ 61). Plaintiff complained "continually" in public forums a b o u t what he considered a mishandling of pension funds. (Id. at ¶ 62). Plaintiff c o n te n d s that these complaints led Pepero to use his influence with the Old Forge M a y o r, Chief of Police and members of the Police Officers' Association and Police P e n s io n Fund to engineer the removal of plaintiff from his position as police officer. (Id. at ¶ 63). The plaintiff alleges that Defendant Peperno mislead the Borough C o u n c il about the need for these buyouts, perhaps in an effort to ensure that

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D e fen d a n t Semenza became Chief of Police. (Id. at ¶¶ 67-70). P la in tiff filed his initial complaint on June 30, 2008. (Doc. 1). He filed an a m e n d e d complaint on December 29, 2008. The instant amended complaint c o n s is ts of nine counts. Court I alleges that defendants violated plaintiff's c o n s titu tio n a l right to due process by failing to provide him with pre- and postte rm in a tio n hearings before removing him from his job. Court II alleges that d e fe n d a n ts violated plaintiff's rights by retaliating against him for speaking publicly a b o u t the misuse of police pension funds and wrongdoing by the individual d e fe n d a n ts . Count III, brought pursuant to 42 U.S.C. § 1983, repeats these a c c u s a tio n s that defendants violated plaintiff's due process and First Amendment rig h ts . Count IV, brought pursuant to 38 U.S.C. § 4301, asserts that defendants vio la ted plaintiff's right to re-employment as a member of the Army National Guard w h e n they prevented him from returning to officer duty after his deployment by m a n ip u la tin g training requirements. Count V alleges that defendants discriminated a g a in s t plaintiff because of his absence for military service, in violation of 51 P.S. § 7 1 0 1 . Count VI contends that defendants discriminated against plaintiff because of h is Russian ancestry in violation of the Pennsylvania Human Relations Act ("P H R A " ), 43 P.S. § 955(a).2 Count VII alleges that defendants discriminated

The court applies the same legal standards to claims brought under the Pennsylvania Human Relations Act as to claims brought under federal anti-discrimination laws that address the same subject matter. See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996) (finding that "While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or 8

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a g a in s t plaintiff because of his Russian Orthodox religious faith in violation of the PHRA. Count VIII insists that defendants violated the PHRA by retaliating against

h im after he complained of ethnic discrimination. Count IX alleges ethnic origin d is c rim in a tio n in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e. After the plaintiff served his initial complaint, the defendants filed motions to d is m is s (Doc.18, 26). After the parties briefed the issue, plaintiff filed a motion to file a n amended complaint that added Count IX. (Doc. 33). The motion represented th a t plaintiff had only recently received a right-to-sue letter from the Equal E m p lo ym e n t Opportunity Commission on that issue. The parties agreed that the c la im should be added to the complaint, and that the previously filed motion to d is m is s should apply to all of the claims. The court granted this motion (Doc. 34), b rin g in g the case to its present posture. Jurisdiction A s this case is brought pursuant to 42 U.S.C. § 1983 the court has jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil a c tio n s arising under the Constitution, laws, or treaties of the United States."). The c o u rt has supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U .S .C . § 1367.

the ADEA [citations omitted], its courts nevertheless generally interpret the PHRA in accord with its federal counterparts."). 9

L e g a l Standard D e fe n d a n ts have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). W h e n a defendant files such a motion, all well-pleaded a lle g a tio n s of the complaint must be viewed as true and in the light most favorable to th e non-movant to determine whether "under any reasonable reading of the p le a d in g s , the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 8 3 8 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of Y o rk , 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 5 6 4 , 565 (3d Cir. 1977) (per curium)). The court may also consider "matters of p u b lic record, orders, exhibits attached to the complaint and items appearing in the re c o rd of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1 3 8 4 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal c o n c lu s io n s or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. o f W ilm in g to n , Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower M e rio n Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The federal rules require only th a t plaintiff provide "`a short and plain statement of the claim showing that the p le a d e r is entitled to relief,'" a standard which "does not require `detailed factual a lle g a tio n s ,'" but a plaintiff must make "`a showing, rather than a blanket assertion, of e n title m e n t to relief' that rises `above the speculative level.'" McTernan v. City of Y o rk , 564 F.3d 636, 646 (3d Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U .S . 544, 555-56 (2007)). The court will apply this standard when addressing

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D e fe n d a n t Carbon County's motion. D i s c u s s io n A. County Defendants' Motion D e fe n d a n ts Borough of Old Forge, Borough of Old Forge Council, Borough of O ld Forge Police Department, Lawrence A. Semenza, Anthony J. Torquato, David S c a rn a to , James J. Peperno in his official capacity as former Chairman of Old Forge B o ro u g h Police Pension Fund, Alan Heyen, Shirley Helbing, and James P. Minella ("C o u n ty Defendants") provide several grounds for granting their motion to dismiss. The court will address each in turn. i. Individual Defendants in their Official Capacities D e fe n d a n ts argue that claims brought by the plaintiff against the individual d e fe n d a n ts in their official capacities should be dismissed. A suit against individual d e fe n d a n ts in their official capacities is equivalent to a suit against the municipality. Since the municipality is a named defendant, an action against individuals in their o ffic ia l capacities is unwarranted. The court agrees. An official-capacity suit is g e n e ra lly merely another way of pleading an action against an entity of which an o ffic e r is an agent. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Such a suit is p ro p e rly treated as a suit against the entity. Id. at 166. The court will therefore d is m is s the claims against the individual defendants in their official capacities. ii. Claims Against the Borough Council, Old Forge Police D e p a rtm e n t and Civil Service Commission 11

D e fe n d a n ts argue that claims against the Borough Council, Old Forge Police D e p a rtm e n t and the Old Forge Civil Service Commission should be dismissed. Under Pennsylvania law, the Council, Police Department and Civil Service C o m m is s io n cannot be sued. They are subdivisions of the municipality, which is the o n ly entity liable for suit in this instance. In any case, the municipality would be lia b le for any damages awarded against those entities, and the entities are therefore re d u n d a n t. The court agrees that the claims against these subdivisions of the Borough a re redundant of the claims against the Borough. The Borough would ultimately be re s p o n s ib le for any damages assigned these entities. Because of this redundancy, th e court will follow the lead of other courts in this circuit and grant the motion to d is m is s on this point. See, e.g., Satterfield v. Borough of Schuylkill Haven, 12 F. S u p . 2d 423, 432 (E.D. Pa. 1998); Marburger v. Upper Hanover Twp., 225 F. Supp. 2 d 503, 506 n.2 (E.D. Pa. 2002). iii. Claims Against the Borough D e fe n d a n ts contend that plaintiff's claims against the Borough in Counts I th ro u g h V should likewise be dismissed. They argue that plaintiff has not alleged th a t any official policy or custom caused the deprivation of his rights. Plaintiff re s p o n d s that establishing liability under Section 1983 requires only that a plaintiff e s ta b lis h that "the conduct complained of [was] committed by a person acting under c o lo r of state law . . . [and that] conduct must deprive the complainant of rights

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s e c u r e d under the Constitution or federal law." (Plaintiff's Brief in Opposition (Doc. 2 7 ) at 8). The plaintiff misapprehends the applicable legal standard. Under the law, a municipality cannot be liable for civil rights violations on a respondeat superior b a s is . Instead, a plaintiff must establish that the violation occurred pursuant to the m u n ic ip a lity 's policy or custom. Monell v. Department of Social Svcs., 436 U.S. 658, 6 9 4 (1978). The Court finds, however, that plaintiff has stated a claim that the deprivation o f his rights occurred pursuant to an official policy or custom. In Count III of p la in tiff's complaint3 , he alleges that the conduct of the defendants in this case, in c lu d in g that of the Borough, "constituted a policy, custom and/or pattern of s u b je c tin g police officers, such as the Plaintiff herein, to differential treatment thus d e p rivin g him of his constitutional rights to equal protection under the law." (Amend. C o m p lt. at ¶ 104). After discussing the alleged retaliation he faced, in that count p la in tiff also alleges that "[d]efendants deprived the Plaintiff of his constitutional rig h ts , as aforementioned, acting under color of ordinance, regulation, statute, c u s to m , and/or usage of the Commonwealth of Pennsylvania." (Id. at ¶ 111). W h ile n o t artfully pleaded, the court finds that these allegations constitute a claim that the D e fe n d a n t Borough deprived plaintiff of his rights pursuant to an official policy or

Counts I, II and III of the complaint appear largely redundant. The first two counts allege violations of plaintiff's rights pursuant to the United States Constitution, and Count III uses 42 U.S.C. § 1983 to seek damages for those violations. Since Section 1983 is the means by which Congress allows persons to sue for violations of their constitutional rights, those three counts raise essentially the same claims. 13

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c u s to m . The court will deny the defendants' motion on these grounds. iv. Punitive Damages D e fe n d a n ts seek dismissal of the punitive damages claims raised by the p la in tiff against the municipality in Counts I, II and III of his action. They argue that s u c h damages cannot be obtained against a municipality in such an action. Similarly, a plaintiff cannot obtain punitive damages, defendants argue, under the P H R A . Plaintiff agrees that he cannot obtain punitive damages under the PHRA and a g a in s t a municipality under Section 1983. As such, the court will grant the motion a s it applies to punitive damages against the municipality and against all defendants u n d e r the PHRA. v . Municipal law and police certification requirements D e fe n d a n ts argue that the borough was required to employ only those police officers who complied with state-mandated training requirements. They contend that p la in tiff's police certification had lapsed, and he could not be returned to work until h e completed the required training. Because plaintiff's claims in counts I, III, IV and V rely on plaintiff's ability to return to work and plaintiff did not obtain the required tra in in g , he could not prevail on those claims. Here, plaintiff has alleged that the Borough denied him re-employment in part b e c a u s e he lacked the proper certifications. He also claims, however, that the d e fe n d a n ts ' actions prevented him from returning to work because he could not gain a c c e s s to certification classes. Plaintiff alleges that he attempted to obtain required 14

tra in in g to return to work after he resolved earlier lawsuits against the Borough, only to have the Borough act to prevent him from obtaining this training. (Amend. C o m p lt. at ¶ 27). The Borough would not schedule the plaintiff for required update c la s s e s , causing him to miss the only classes offered in Lackawanna and Luzerne C o u n tie s . (Id.). Plaintiff was forced to have the Borough Manager intervene with the M u n icip a l Police Training Commission in an attempt to secure such training. (Id.). Eventually, plaintiff had to "go on his own to obtain these qualifications." (Id.). Once p la in tiff actually scheduled a time to qualify with his service weapon, "he was told the w ro n g place and time to appear." (Id.). Later, after plaintiff returned form active m ilita ry duty, he sought immediate placement on the active roster of the Old Forge P o lic e Department. (Id. at ¶ 48). The Borough would not allow plaintiff to return im m e d ia te ly to work, insisting that he was a new hire and needed to undergo the p h ys ica l and psychological examinations required of a new hire. (Id. at ¶ 49). Plaintiff insists that such examinations were unnecessary and he needed only to u p d a te his certifications for municipal police officer updates, CPR, First Aid and w e a p o n s qualifications. (Id.). The plaintiff alleges that the Borough refused to s c h e d u le him for his needed updates and went to "extraordinary lengths" to prevent h im from taking the required courses. (Id. at ¶ 50). The Borough then allegedly re fu s e d to return plaintiff to active duty, contending that he lacked the required c e rtific a tio n s and refusing to forward a request for recertification to state agencies u n le s s he participated in unnecessary examinations. (Id. at ¶¶ 50-51). The Borough

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s o u g h t to have plaintiff removed from the police force for failing to meet training re q u ire m e n ts . (Id. at ¶ 52). The court finds that plaintiff has alleged that defendants acted to prevent him fro m being employed with the police department. Defendants are correct to contend th a t under Pennsylvania law they could not employ a police officer who lacked the p ro p e r certifications. See, e.g., 53 Pa. C.S. § 2161(b); 37 Pa. Code § 203.11. A p o lic e officer who has not received the appropriate training and certifications is "in e lig ib le to receive any salary, compensation or other consideration for the p e r fo r m a n c e of duties as a police officer." 53 Pa. C.S. § 2167(b). Plaintiff alleges, h o w e ve r, that he lacked these certifications because of the defendants' actions. If p la in tiff could prove that defendants acted deliberately to prevent him from receiving th e training he needed to be eligible to receive compensation, plaintiff would not be p re c lu d e d from prevailing on his claims due to his lack of certification. The court will d e n y defendants' motion on this point. vi. Identical claims pending in state court D e fe n d a n ts also argue that plaintiff pled many of the same claims in a statec o u rt petition for review. Since plaintiff must choose his forum, he is precluded from b rin g in g counts I-V in this court. Defendants also argue that plaintiff pled all of the fa c ts before a workers' compensation judge, who issued a final decision on the m e rits. As such, he is collaterally estopped from bringing those claims in this court. In any case, defendants argue that the court should stay this case pending the

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o u tc o m e of the state-court proceedings because the issues are the same in both p ro c e e d in g s and thus the court would be collaterally estopped from issuing decision c o n tra ry to those of the state court. As part of their motion, defendants include copies of various state-court and a d m in is tra tiv e documents. Plaintiff argues in part that the court should not consider a n y information outside the complaint in determining whether to grant defendants' m o tio n s , and thus should not evaluate the defendants' motion using this information. Federal law makes clear, however, that the court may consider "matters of public re c o rd , orders, exhibits attached to the complaint and items appearing in the record o f the case" when evaluating a motion to dismiss pursuant to Federal Rule of Civil P r o c e d u re 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1 3 8 4 n.2 (3d Cir. 1994) (citations omitted). The court will therefore use those d o c u m e n ts supplied by the defendants which are indisputably matters of public re c o rd in evaluating this motion. D e fe n d a n ts argue that plaintiff should be collaterally estopped from bringing c la im s I-V in this proceeding because he has already litigated the factual issues at q u e s tio n here in a workers' compensation proceeding which was resolved on the m e rits . "The doctrine of collateral estoppel, which is sometimes referred to as issue p r e c lu s io n , operates to prevent questions of law or issues of fact which have once b e e n litigated and adjudicated finally in a court of common jurisdiction from being re litig a te d in a subsequent suit." Nelson v. Heslin, 806 A.2d 873, 876-77 (Pa. Super.

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C t. 2002). Collateral estoppel applies when: "[1] an issue decided in a prior action is id e n tic a l to one presented in a later action; [2] the prior action resulted in a final ju d g m e n t on the merits; [3] the party against whom collateral estoppel is asserted w a s a party to the prior action, or is in privity with a party to the prior action; and [4] th e party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action." Frederick v. Action Tire Co., 744 A.2d 762, 7 6 6 (Pa. Super. Ct. 1999). Defendants argue that the issues plaintiff litigated in an e a rlie r workers' compensation proceeding are identical to factual issues which form th e basis of plaintiff's claim in this court, and plaintiff is thus barred from relitigating th e m here. W o rk e rs ' Compensation Judge W illia m J. Hall issued the decision here in q u e s tio n on October 15, 2002. (See Exh. 1 to Defendants' Brief (Doc. 25-3) (h e re in a fte r "W C J Opinion")). A judge on the Pennsylvania Commonwealth Court a ffirm e d that opinion on February 25, 2004. (See Exh. 2 to Defendants' Brief (Doc. 2 5 -4 )). The Pennsylvania Supreme Court declined review of this decision on D e c e m b e r 29, 2004. (See Exh. 3 to Defendants' Brief (Doc. 25-4)). Judge Hall's d e c is io n addressed a claim petition plaintiff filed with the Pennsylvania Bureau of W o rk e rs ' Compensation on March 5, 2001. (W C J Opinion at 1). In his petition, p la in tiff complained that he had sustained and/or aggravated a work-related mental a n d /o r physical injury on March 3, 1998. (Id.). He alleged that this injury had left h im disabled since he provided notice to his employer of his injuries on March 13,

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1 9 9 8 . (Id.). The opinion considered testimony provided in two hearings in N o ve m b e r 2001 and April 2002, as well as other evidence submitted by the plaintiff a n d his employer/insurer. (Id.). The W o rk e rs ' Compensation Judge ("W C J ") concluded that plaintiff failed to p r o v e either that he had been exposed to abnormal working conditions as police o ffic e r in the Borough of Old Forge, or that he suffered from any mental injury or a g g ra va tio n of a previous injury as a result of his work conditions. (Id. at 22). The J u d g e reviewed testimony from a variety of witnesses about plaintiff's experiences w o rk in g for the Borough's Police Department, addressing particularly complaints that p la in tiff was prevented from working specific jobs in the department, was not given a c c e s s to department facilities, was harassed by facing numerous traffic citations a n d was given particularly odious duties. (Id. at 25). In the end, the W C J concluded th a t plaintiff's "working conditions were normal for a Police Officer working in a small m u n ic ip a lity . The incidents in which the [plaintiff] became involved were brought a b o u t by the [plaintiff's] actions and activities and were not instigated or controlled by th e Borough or the [plaintiff's] supervisors in the Police Department." (Id. at 26). Moreover, the W C J found that plaintiff did not face "any disabling psychological c o n d itio n ." (Id.). Though he suffered from a "personality disorder," his work did not c a u s e or exacerbate the condition. (Id.). As such, the W C J denied plaintiff's appeal. D e fe n d a n ts argue that the W C J 's decision precludes plaintiff from raising any o f the "factual issues which were necessary for the W C J to make his decision that

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P la in tiff did not suffer a psychic injury at work." (Defendants' Brief at 40-41). The fa c tu a l issues surrounding those alleged psychic injuries "form the basis of Plaintiff's c la im s in District Court." (Id. at 41). Since, defendants insist, the W C J found that m o s t of the incidents in question did not occur, the court must give those findings "p re c lu s iv e effect." (Id.). Defendants do not point to any particular incidents that are th e subject of this lawsuit that did not occur, however, and in any case the question th a t the W C J addressed was whether the incidents in question caused a psychic in ju ry to the plaintiff, not whether they occurred altogether. In this case plaintiff need n o t prove that he was mentally or physically disabled in order to prevail. Instead, he m u s t prove that defendants' actions violated his federal constitutional and statutory rig h ts . The counts which defendants seek to dismiss on these grounds allege vio la tio n s of plaintiff's due process and First Amendment rights in suspending him fro m employment; the workers' compensation judge did not address the suspension fro m employment about which plaintiff complains or the events leading to it. As s u c h , there is no identity of facts or issues here, and no collateral estoppel. Moreover, the W o rk e rs ' Compensation opinion covered events that occurred before 2 0 0 2 , and Counts IV and V address specifically events that occurred after that date. Preclusion could not apply there. The court will deny the motion on those grounds. The defendants also argue, however, that plaintiff should be barred from b rin g in g his claims in counts I, III, IV and V because he has filed a claim in state c o u rt that addresses events after the W C J 's decision. The doctrine of res judicata,

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d e fe n d a n ts insist, bars plaintiff from bringing such claims in this court. "Res judicata, o r claim preclusion, prohibits parties involved in prior, concluded litigation from s u b s e q u e n tly asserting claims in a later action that were raised, or could have been ra is e d , in the previous adjudication." Wilkes v. Phoenix Home Life Mut. Ins. Co., 902 A .2 d 366, 376 (Pa. 2006). "For the doctrine of res judicata to prevail, Pennsylvania c o u rts require that the two actions share the following four conditions: (1) the thing s u e d upon or for; (2) the cause of action; (3) the persons and parties to the action; a n d (4) the capacity of the parties to sue or be sued." Turner v. Crawford Square A p ts . III, L.P., 449 F.3d 542, 549 (3d Cir. 2006). Plaintiff filed a petition for review in the Court of Common Pleas of L a c k a w a n n a County on August 30, 2006. (See Defendants' Exhibit 4 (Doc. 25-5)). The petition appealed decisions of the Old Forge Civil Service Commission made on J u ly 31 and August 14, 2006. (Id. at ¶ 3). The July 31, 2006 decision upheld a B o r o u g h decision that suspended plaintiff without pay until he completed required tra in in g . (Id. at ¶ 24). The August 14, 2006 opinion upheld a Borough decision to re tu rn plaintiff to work. (Id. at ¶¶ 6, 11). Plaintiff had appealed that decision b e c a u s e the findings of fact and conclusions of law allegedly failed to match those in th e Borough's actual ruling on his case. (Id. at ¶ 24). The Commission also denied p la in tiff's request for back pay. (Id.). In his petition, plaintiff argued that the C o m m iss io n erred in its interpretation of Pennsylvania law related to police training. (Id. at ¶ 27). Plaintiff also contended that the Commission erred in relying on certain

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m a te ria ls collected in plaintiff's workers' compensation case in assessing his mental s ta te . (See, e.g., ¶ 35). Res judicata cannot apply here, since the litigation in the Court of Common P le a s has not been completed. Moreover, though the petition references an alleged "ve n d e tta by the former Mayor Torquato, the Borough Council or its members and/or th e Police Department and/or its members," the petition does not address any d is c rim in a tio n on the basis of plaintiff's military service or retaliation because of p la in tiff's attempts to protect his rights against discrimination. (Id. at ¶ 26). P e n n s ylv a n ia courts have found that "`res judicata generally is thought to turn on the e s s e n tia l similarity of the underlying events giving rise to the various legal claims'" a n d courts should consider "`the identity of the acts complained of, the demand for re c o ve ry , the identity of witnesses, documents and facts alleged[.]'" McArdle v. T ro n e tti, 627 A.2d 1219, (Pa. Super. Ct. 1993) (quoting In re Jones & Laughlin Steel C o rp ., 477 A.2d 527, 531 (Pa. Super. Ct. 1984)). Thus, even if the litigation in state c o u rt had been completed, the lack of "essential similarity" between the claims in this c o u rt and state court would prevent the court from precluding plaintiff's claims here.4 T h e court will also deny the defendant's request that the case be stayed Defendants do not raise the Rooker-Feldman doctrine, which "deprives a federal district court of jurisdiction in some circumstances to review a state court adjudication" and is limited to those "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.'" Turner, 449 F.3d at 547 (quoting Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005)). If they had, the court would find it did not apply, since plaintiff is not seeking review of any state-court decision, but is raising separate federal causes of action. 22
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p e n d in g the outcome of the state court proceedings. "[T]he power to stay p ro c e e d in g s is incidental to the power inherent in every court to control disposition of th e causes on its docket with economy of time and effort for itself, for counsel, and fo r litigants." Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 737 (3d C ir. 1983). Defendants point to United Sweetner USA, Inc. v. Nutrasweet, 766 F. S u p p . 212 (D. Del. 1991), to argue that a district court, in determining whether to g ra n t a stay, should "`evaluate the possible damage, hardship and inequities to the p a rtie s to the lawsuit and the relationship of the stay to the fulfillment fo the judicial o b je c tiv e s of simplification of the issues in question and the trial of the case.'" United S w e e tn e r, 766 F. Supp. at 217 (quoting United Merchants & Mfrs., Inc. v. H e n d e rs o n , 495 F. Supp. 444, 447 (N.D. Ill. 1980)). Here, the court has found that the issues raised in the state court proceeding do not implicate the case in this court a n d therefore have no preclusive effect. As such, delaying the litigation on this m a tte r would not create any judicial efficiency. A decision in state court would not s im p lify matters in this court; the same issues would remain in the case and the s a m e discovery would be necessary. As such, the court will deny the defendants' re q u e s t to stay the case. vii. Due Process Claims in Counts I and III D e fe n d a n ts argue that the court should dismiss counts I and III of the c o m p la in t, which contend that defendants denied plaintiff his due process rights. They admit that plaintiff had a property right to his employment, but insist that he

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re c e ive d all of the process he was due under the circumstances. The state cannot deprive a person of a property right "without due process of la w ." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). "The first step in analyzing a due process claim is to determine whether the `asserted individual in te re s t . . . [is] encompassed within the Fourteenth Amendment's protection of life, lib e rty, or property." Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (quoting A lvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Here, the parties agree that p la in tiff has been conferred a protected property interest in his employment and was e n title d to due process. Still, "`the question remains what process is due.'" Id. at 5 4 1 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). A court must d e te rm in e "whether . . . the procedures available provided the plaintiff with `due p ro c e s s of law.'" Alvin, 227 F.3d at 116. There is no rote formula for sufficient p ro te c tio n s under the Due Process Clause." Wilson v. MVM, Inc., 475 F.3d 166, 178 (3 d Cir. 2007). Instead, "`due process is flexible and calls for such procedural p ro te c tio n s as the particular situation demands.'" Id. (quoting Mathews v. Eldridge, 4 2 4 U.S. 319, 334 (1976)). At the least, "due process requires notice and a h e a rin g ." Id. "[W ]h e n that notice and hearing must be provided and how intensive th e hearing must be is a determination that depends on the balancing of three in te re s ts : (1) the private interest at stake, (2) the risk of error in the procedure used c o m p a re d with the degree of improved accuracy that additional procedures would p ro vid e , and (3) the government's interest." Id.

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P la in tiff alleges that Pennsylvania law required defendants to provide him with p ro c e s s both prior to and after his termination. (Amend. Complt. at ¶ 81). Plaintiff a lle g e s that defendants attempted to terminate him in July 2003 for failing to report to work after exhausting his sick leave. (Id. at ¶ 41). He received a hearing before th e Borough's council, and the council agreed that he should be returned to work in D e c e m b e r 2003. (Id. at ¶¶ 42-43). Before plaintiff could enjoy his reinstatement, h o w e ve r, he was called to active duty by the United States Army National Guard. (Id. at ¶ 46). Plaintiff nevertheless appealed this decision to the Old Forge Civil S e r vic e Commission because of inconsistencies between the written opinion and the e vid e n c e on the record of his hearing. (Id. at ¶ 44). When plaintiff returned from a c tive duty in August 2004, he applied for reinstatement to active duty, but the d e fe n d a n ts , insisting that he undergo examinations and testing, refused to allow him to return to work. (Id. at ¶¶ 48-51). In February 2005, the Borough, through its m a n a g e r, notified plaintiff that it intended to remove him from the police force for fa ilin g to obtain proper certifications and training. (Id. at ¶ 52). The Borough C o u n c il, after a hearing, voted to suspend the plaintiff without pay and benefits until h e received the proper certifications and training. (Id. at ¶ 53). Plaintiff appealed th is decision to the Old Forge Civil Service Commission, which affirmed the Borough C o u n c il and upheld plaintiff's suspension. (Id. at ¶ 54). Plaintiff appealed the d e c is io n on July 31, 2006 to the Court of Common Pleas of Lackawanna County, P e n n s ylv a n ia . (Id. at ¶¶ 55-56). Defendants have not filed the required certified

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re c o rd in that court. (Id. ¶ 56). Plaintiff alleges that defendants took these actions fo r the purpose of preventing him from exercising his legal right to challenge his te rm in a tio n . (Id. ¶ 81). Though this suspension allegedly exceeds the maximum u n d e r civil service rules and regulations, plaintiff's civil service appeal is stalled by d e fe n d a n ts ' refusal to file a certified record. (Id.). The court will grant the defendants' motion to dismiss plaintiff's procedural due p ro c e s s claims as they relate to plaintiff's suspension and/or termination. Plaintiff's a lle g a tio n s demonstrate that he was given notice and an opportunity to be heard in re la tio n to his complaints about this termination and later suspension. He alleges th a t he brought his complaint about the allegedly pretextual basis for his suspension b y the Borough Council, Borough Civil Service Commission and Court of Common P le a s of Lackawanna County. He does not allege that he was unaware of the re a s o n s for his suspension or that those adjudicatory bodies refused to hear his c o m p la in t. Instead, his complaint appears to be that the Borough has refused to p a rtic ip a te fully in legal proceedings in Lackawanna County Court and that the re a s o n s for his suspension were inadequate. Plaintiff's allegations, then, are not th a t he did not receive the process that he was due, but that the defendants have not m e t procedural obligations in state court. He does not allege that the procedures a va ila b le to him were inadequate. Defendants' alleged failure to comply with d is c o ve ry obligations in state court does not create a procedural due process claim, e s p e c ia lly when plaintiff does not allege that he sought any remedies available in

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s ta te court for these failings. See Alvin, 227 F.3d at 116 (finding that "a procedural d u e process violation cannot have occurred when the governmental actor provides a p p a re n tly adequate procedural remedies and the plaintiff has not availed himself of th o s e remedies."). The court will therefore dismiss plaintiff's procedural due process c la im s . viii. Retaliation Claims in Count II D e fe n d a n ts argue that plaintiff cannot prevail on his First Amendment retaliation claim in Count II, since he has not alleged that he engaged in any p ro te c te d activity, suffered any retaliatory action, or that there was a causal link b e tw e e n the retaliation and the protected activity. "`A public employee has a c o n s titu tio n a l right to speak on matters of public concern without fear of retaliation.'" B r e n n a n v. Norton, 350 F.3d 399, 412 (3d Cir. 2003) (quoting Baldassare v. New J e rs e y , 250 F.3d 188, 194 (3d Cir. 2001)). Courts limit this right to speech by public e m p lo y e e s , however; they employ a three-part test to determine whether such s p e e c h enjoys First Amendment protection against retaliation. First, they determine w h e th e r the speech is "protected." Id. "Purely personal" speech does not qualify for s u c h protection. Id. Instead, "the speech in question `must involve a matter of public c o n c e rn .'" Id. (quoting Connick v. Meyers, 461 U.S. 138, 147 (1983)). Second, if the s p e e c h in question involves a matter of public concern, "the plaintiff must then `d e m o n s tra te his[/her] interest in the speech outweighs the state's countervailing in te re s t as an employer in promoting the efficiency of the public services it provides

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th ro u g h its employees.'" Id at 413 (quoting Baldassare, 250 F.3d at 195). Third, a p la in tiff who meets the first two elements of this test "`must then show that the p ro tec te d activity was a substantial or motivating factor in the alleged retaliatory a c tio n .'" Id. at 414 (quoting Baldassare, 250 F.3d at 195). An employer can rebut th is element by demonstrating that the employment decision would have been the s a m e even without the protected speech. Id. The court will deny the motion. In his complaint, plaintiff alleges that he "c o n tin u a lly" spoke in public forums regarding misuse of public funds and public c o rr u p tio n , and that the Borough's decisions to deny him employment and block his a c c e s s to train were motivated by a desire to punish him for this speech. (See C o m p lt. at ¶¶ 87-90). The speech in which the plaintiff allegedly engaged involved m a tte rs of public concern, addressed a matter of sufficient importance to outweigh a n y public interest promoted by silence as a means of promoting efficiency of public s e rvic e , and served as a motivating factor in the decision to deny plaintiff e m p lo ym e n t. As such, plaintiff has stated a retaliation claim and the court will deny th e motion on this point. ix. National Origin/Ancestry Claims in Count VI D e fe n d a n ts contend that plaintiff cannot prevail on his claims that he was the vic tim of discrimination based on his Russian ancestry. They insist that plaintiff's c la im s are based on the fact that he was not promoted to sergeant in 1997. No s e rg e a n t's position was open in 1997, and thus plaintiff is "collaterally estopped"

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fro m making such a claim. Since plaintiff did not make any claim before the W C J th a t he had been denied union membership because of his ancestry, defendants a ls o argue that he cannot now make that argument in this setting. Moreover, being d e n ie d membership in the bargaining unit is not a tangible employment action for w h ic h the court could provide relief. Plaintiff has also not pled that his working c o n d itio n s were altered because of his ethnicity, nor has alleged the elements of a n a tio n origin/ancestry discrimination claim under federal law. "T itle VII prohibits employment discrimination based on national origin or re lig io n ." Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 762 (3d Cir. 2004) (citing 4 2 U.S.C. § 2000e-2(a)(1)). At this initial stage of the proceedings, "the plaintiff need o n ly set forth `a short and plain statement of the claim showing that the pleader is e n title d to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)). Still, "only a person `claiming to be aggrieved' may bring an action under Title VII." Id. (quoting 42 U.S.C. § 2 0 0 0 e - 5 ). Defendants' argument here is that plaintiff has not claimed any adverse e m p lo ym e n t action connected to his ancestry that would entitle him to relief. Under T itle VII, "`an adverse employment action'" is "an action by an employer that is `s e r io u s and tangible enough to alter an employee's compensation, terms, c o n d itio n s , or privileges of employment.'" Storey, 390 F.3d at 764 (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). "The Supreme Court has defined a ta n g ib le , adverse employment action as a `significant change in employment status, s u c h as hiring, firing, failing to promote, reassignment, or a decision causing a

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s ig n ific a n t change in benefits.'" W e s to n v. Pennsylvania, 251 F.3d 420, 430-31 (3d. C ir. 2001) (quoting Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 749 (1998)). Plaintiff alleges that he is of Russian ancestry, and faced frequent "derogatory" la n g u a g e in reference to this heritage in the workplace. (Amend. Complt. at ¶ 143). Coworkers and superiors referred to him as a "roundhead" or a "hard-headed R u s s ia n ," especially after he applied for promotion to sergeant. (Id. at ¶ 144). Employees who were not of Russian ancestry did not face the same harassment and m is tre a tm e n t that plaintiff did. (Id. at ¶ 147). Borough officials knew of this h a ra s s m e n t, and did nothing to stop it. (Id. at ¶¶ 145-46). Moreover, plaintiff was d e n ie d membership in the bargaining unit of the Borough Police Department by the d e fe n d a n ts . (Id. at ¶ 148). Plaintiff avers that defendants acted in this fashion b e c a u s e of his national origin and ancestry. (Id. at ¶ 150). Plaintiff was the only m e m b e r of the force who was not a member of the Police Association and the F r a te rn a l Order of Police, and he thus had no representation in those bodies and n o n e of the grievances he has filed have been accepted by the Police Association or th e Fraternal Order. (Id. at ¶ 29). The Mayor and Chief of Police also told plaintiff th a t rank structure and seniority applied to every officer but him. (Id. at ¶ 33). The court finds these allegations sufficient to support plaintiff's claim. Plaintiff a lle g e s that he was discriminated against because of his Russian ancestry by fellow o ffic e rs and supervisors. Other employees who were not of Russian heritage did not fa c e the same discrimination. Plaintiff claims to have been denied important benefits

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o f employment because of his ancestry, and also alleges that "unlawful employment p ra c tic e s ," described elsewhere in the complaint, were motivated by his heritage. (Id. at ¶ 149). Plaintiff has therefore alleged that he was the victim of discrimination o n the basis of his ethnic heritage and the court will deny the motion on this point. x. Religious Discrimination in Count VII D e fe n d a n ts argue that plaintiff's claim for religious discrimination must fail b e c a u s e he does not allege that he held a sincere religious belief that conflicted with a job requirement, told his employer about the conflict, or suffered any discipline as a re s u lt of a conflict between the job requirement and his belief. T h e parties agree that in order to prevail on this claim plaintiff must d e m o n s tra te "(1) a sincere religious belief that conflicts with a job requirement; (2) s h e told the employer about the conflict; and (3) she was disciplined for failing to c o m p ly with the conflicting requirement." W ilk e rs o n v. New Media Tech. Carter Sch., 5 2 2 F.3d 315, 319 (3d Cir. 2008). In his complaint, plaintiff alleges that he s u b s c rib e s to the Russian Orthodox religious faith. (Amend. Complt. at ¶ 152). At th e time of his hire, he requested not to be scheduled to work on any Orthodox h o lid a y s . (Id. at ¶ 153). Despite this request, defendants scheduled plaintiff to work o n all of the Orthodox holidays. (Id. at ¶ 154). The court finds that the plaintiff has s ta te d a claim on this matter. Plaintiff alleges that he informed his employer of his re lig io u s belief and the requirement of that belief that he be excused from work on re lig io u s holidays. In response, the defendants allegedly scheduled him to work on

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e ve ry religious holiday. See, e.g., Abramson v. W illia m Paterson College, 260 F.3d 2 6 5 , 285 (3d Cir. 2001) (finding summary judgment for the defendant inappropriate w h e n plaintiff claimed religious discrimination when employer refused to allow p la in tiff days off for religious holidays). xi. Retaliation Claim in Count VIII D e fe n d a n ts argue that plaintiff has not stated a claim for retaliation based on c o m p la in ts about discrimination due to his Russian ancestry. Plaintiff does not a lle g e that he engaged in any protected activity in relation to his ancestry or that any re ta lia to ry action he faced was due to his ancestry, and has thus failed to state a c la im . Under Title VII, an employer may not retaliate against an employee for o p p o s in g a discriminatory employment practice. 42 U.S.C. § 2000e(3)(a). A plaintiff m a k e s out a prima facie case for retaliation by showing "that `(1) she engaged in a c tivity protected by Title VII; (2) the employer took an adverse employment action a g a in s t her; and (3) there was a causal connection between the protected activity a n d the adverse employment action.'" Moore v. City of Philadelphia, 461 F.3d 331, 3 4 1 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). "[W ]h e re unlawful retaliation is claimed, the plaintiff need only show that an action is `m a te ria lly adverse' in that it `well might have dissuaded a reasonable worker from m a k in g or supporting a charge of discrimination.'" Id. at 348 (quoting Burlington N. & S a n te Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

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In his amended complaint, plaintiff alleges that on December 2, 1997, he "in fo rm e d the Borough Council that the Borough was discriminating against him on th e basis of his Russian ancestry" by refusing to administer the Sergeant's exam and re fu s in g to address plaintiff's demands that he be given an opportunity to be p ro m o te d . (Amend. Complt. at ¶ 161). On December 27, 1997, plaintiff avers, the B o r o u g h Council eliminated an open sergeant's position for which plaintiff had a p p lie d . (Id. at ¶ 162). Plaintiff then informed the Borough of his desire to apply for o n e of the remaining open sergeant's positions. (Id. at ¶ 163). In late July 2001, J a m e s Minella, Chairman of the Borough Civil Service Commission, advised the p la in tiff that he would not be promoted, that the promotion test would not be offered, a n d that he should simply sue the Borough. (Id. at ¶ 165). Borough officials did n o th in g when plaintiff complained about this process. (Id. at ¶ 166). The court finds that these allegations are sufficient to survive a motion to d is m is s . Plaintiff alleges that he suffered discrimination on the basis of his Russian a n c e s try, and that he complained to Borough officials about this discrimination. After m a k in g these complaints, plaintiff was denied an opportunity at promotion when the B o r o u g h made it impossible for him to apply for the job he sought. The Borough a lle g e d ly eliminated a position to prevent the plaintiff from obtaining it. Assuming, as th e plaintiff alleges, that the Borough prevented the plaintiff from obtaining the p o s itio n for which he applied as retaliation for plaintiff's complaints about d is c rim in a tio n , a reasonable person could have been dissuaded from making future

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c o m p la in ts by the Borough's actions. B. Defendant James J. Peperno's Motion D e fe n d a n t James J. Peperno also filed a motion to dismiss (Doc. 26). Defendant Peperno's brief in support of this motion (Doc. 31) indicates that he a d o p ts the arguments made by the other defendants, and the court will adopt the s a m e reasoning on those issues. Defendant offers the additional argument, h o w e ve r, that he cannot be liable because plaintiff does not allege that he acted u n d e r color of state law. The allegations in the complaint merely aver that Peperno a c te d in his role as chair of the police pension fund and a consult to the police o ffic e r's association. Section 1983 applies only to parties who act under color of state law. See W e s t v. Atkins, 487 U.S. 42, 48 (1988) (holding that "[t]o state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a p e rs o n acting under color of state law.").5 Private individuals may be liable under S e c tio n 1983, but a plaintiff must allege conduct that "involves an activity that is s ig n ifica n tly encouraged by the state or in which the state acts as a joint participant"

Section 1983 establishes that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." 34

5

o r "involves an actor that is controlled by the state, performs a function delegated by the state, or is entwined with governmental policies or management." Leshko v. S e rvis , 423 F.3d 337, 340 (3d Cir. 2005). The allegations against Defendant Peperno are that he acted as a member of th e Old Forge Police Pension Fund, using "his influence with the members of C o u n c il, the Mayor, the Chief of Police, and police officers . . . to have the Plaintiff re m o ve d from his employment as a police officer in the Borough of Old Forge." (Amend. Complt. at ¶ 63). Plaintiff alleges that this action was part of a larger s c h e m e to remove the Chief of Police and replace him with Defendant Semenza by u s in g an "orchestrated buyout." (Id. at ¶ 64). Part of the money that funded this b u yo u t came from funds that would have been used to pay the plaintiff if he s u c c e e d e d in litigating his way to a return to work. (Id. at ¶ 68). The court reads the p la in tiff's allegations to be that plaintiff lost his job as part of a scheme involving the d e fe n d a n ts , including defendant Peperno, to financially orchestrate his firing and that o f the previous police chief. In this respect, Defendant Peperno was allegedly in tim a te ly involved in the state action that gave rise to the complaint. As such, P e p e r n o could be a state actor and thus can be liable under Section 1983. The c o u rt will deny Defendant Peperno's motion to dismiss on this point. C o n c l u s io n F o r the reasons stated above, the court will grant the motions to dismiss in p a rt and deny them in part. The plaintiff's claims against the individual defendants in

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the ir official capacities will be dismissed, as well as plaintiff's claim for punitive d a m a g e s against the municipality. The Old Forge Borough Council, Borough Police D e p a rtm e n t and Civil Service Commission will be dismissed from the case. Plaintiff's procedural due process claims will also be dismissed. The motions will be d e n ie d in all other respects. As a result, plaintiff's claims against the Borough of Old F o rg e and against the individual defendants for retaliation under Title VII and the F irs t Amendment and religious and ethic discrimination shall remain in the case. An a p p ro p r ia te order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MICHAEL B. KESLOSKY, III, Plaintiff : No. 3:08cv1240 : : (Judge Munley) : v. : : BOROUGH OF OLD FORGE, : BOROUGH OF OLD FORGE : COUNCIL, : BOROUGH OF OLD FORGE POLICE : DEPARTMENT, : LAWARENCE A. SMENZA, : ANTHONY J. TORQUATO, JR., : DAVID SCARNATO, : JAMES J. PEPERNO, JR. : ALAN HEYEN, : SHIRLEY HELBING, : JAMES P. MINELLA, : OLD FORGE BOROUGH CIVIL : SERVICE COMMISSION, and : OLD FORGE BOROUGH POLICE : OFFICERS' ASSOCIATION, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 25th day of August 2009, the defendants' motions to d is m is s (Docs. 18, 26) are hereby GRANTED in part and DENIED in part, as follows: 1 . The motions are GRANTED with respect to plaintiff's claims against the in d ivid u a l defendants in their official capacities;

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2 . The motions are GRANTED with respect to all claims against the Borough o f Old Forge Council, Borough of Old Forge Police Department, and Borough o f Old Forge Civil Service Commission, and the Clerk of Court is dismiss th e s e parties from the case; 3 . The motions are GRANTED with respect to plaintiff's claims for punitive d a m a g e s against the Borough of Old Forge; 4 . The motions are GRANTED with respect to plaintiff's due process claims; and 5. The motions are DENIED in all other respects. B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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