Symonies v. McAndrew

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN SYMONIES,

Plaintiff, NO. 3:19-CV-0707

v.

(JUDGE CAPUTO)

MARK McANDREW, JOHN TIGUE,

AND LACKAWANNA COUNTY,

Defendants.

MEMORANDUM

Presently before me is the Motion for Judgment on the Pleadings (Doc. 12) filed

by Defendants Mark McAndrew (“McAndrew”), John Tigue (“Tigue”), and

Lackawanna County (the “County”) (collectively, where appropriate, “Defendants”).

In his one-Count Complaint, Plaintiff John Symonies (“Symonies”) claims that

Defendants deprived him of his protected property interest in his employment as a

County deputy sheriff without due process of law. Specifically, Symonies contends

that he was constructively discharged from his employment following a “sham”

pretermination due process hearing where the outcome was predetermined. Because

Symonies was not deprived of a protected property interest without due process of

law, Defendants’ motion for judgment on the pleadings will be granted.

I. Background

Symonies served as a County deputy sheriff for over thirty-three (33) years, i.e.,

from 1984 until his employment ended in 2018. (See Compl., ¶ 7). Symonies was a

union member. (See id. at ¶ 8).

On or about December 19, 2017, Symonies received a letter from Justin

MacGregor (“MacGregor”), the County’s human resource director, advising of a due

process hearing concerning his alleged misconduct. (See id. at ¶ 10). That letter stated

in part:

Sheriff McAndrew recently received a letter from

Chief Guy Salerno of the Blakely Police Department,

outlining several concerns his officers have raised about

your conduct as a Deputy Sheriff. In the letter, Chief

Salerno alleges that you often exhibit unprofessional

behavior when his officers transport a prisoner to the

processing center, including “snide comments” and tearing

up officers’ business cards. The practice of handing

business cards to prisoners is a tool used by law enforcement

officers to encourage cooperation in criminal investigations.

After receiving the letter from Chief Salerno, the

Sheriff began an internal investigation and interviewed two

Deputy Sheriffs with knowledge of these incidents

occurring.

Deputy A stated that they have witnessed you urge

prisoners not to cooperate with law enforcement, refer to

charges for DUI and paraphernalia as “stupid charges,” and

throw away police officers’ business cards.

Deputy B stated that they have witnessed you throw

away police officers’ business cards and tell prisoners not to

cooperate with law enforcement. Deputy B also stated that

they have witnessed you tell prisoners, “your arrest is not

lawful and you should sue the officer.”

(Defs.’ Answer, Ex. “B”).1 The letter further advised that at the due process hearing,

scheduled for December 22, 2017, Symonies would be “provided any and all

evidence” supporting the County’s contention that he committed misconduct and

violated Sheriff’s Office policy. (Id.). Symonies was informed that if the County’s

1 The December 19, 2017 due process hearing notice is attached to Defendants’

Answer and Affirmative Defenses to the Complaint. (See Defs.’ Answer, Ex.

“B”). Symonies did not object to the consideration of this document on the

present motion, (see Doc. 17, generally), and other cases in this District have

found such due process letters to be properly considered on a Rule 12(c) motion.

See, e.g., Calpin v. Lackawanna Cty., No. 16-2013, 2017 WL 590277, at *6 (M.D.

Pa. Feb. 14, 2017) (Mannion, J.) (finding due process letter to be a “written

instrument” in accordance with Rule 10(c), so it could be utilized in ruling on the

defendants’ motion for judgment on the pleadings); see also Fed. R. Civ. P. 10(c)

(“[a] copy of a written instrument that is an exhibit to a pleading is a part of the

pleading for all purposes.”); Rose v. Bartle, 871 F.2d 331, 340 n.3 (3d Cir.1989)

(exhibits that are considered “written instruments” and are “incorporated within

the pleadings by Rule 10(c) consist largely of documentary evidence, specifically,

contracts, notes, and other ‘writing[s] on which [a party's] action or defense is

based.’”).

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information was accurate, he could be subject to “discipline, up to and including

termination.” (Id.). He was further told that he would “be given a full opportunity to

give your side of the story and to clarify any inaccuracy. You are entitled to union

representation at this hearing.” (Id.).

On or about the same day he received the due process notice, Symonies

contacted his union representative, deputy sheriff Joseph George (“George”),

requesting his attendance at the due process hearing. (See Compl., ¶ 15).

Prior to the hearing, George met with Tigue. (See id. at ¶ 16). At that time,

Tigue advised George that McAndrew would not be in attendance at the hearing, but

that McAndrew instructed him how to handle the hearing. (See id. at ¶¶ 17-18).

George inquired what this meant, and Tigue explained that he was told by McAndrew

to give Symonies the option to retire or be terminated. (See id. at ¶ 19).2

Prior to the hearing, Symonies prepared a letter directed to McAndrew stating

that he “would like to respond to the allegation and the Loudermill Hearing. I did Not

commit those acts that’s alleged.” (Defs.’ Answer, Ex. “C”). Symonies also requested

that George be kept informed of the outcome of the investigation, and also that George

conduct his own investigation into the allegations. (See id.).

At the due process hearing, George objected on the basis that the hearing was

a sham because its outcome was predetermined. (See id. at ¶¶ 20-21). The County

2 Defendants deny that McAndrew instructed Tigue to give Symonies the option to

retire or be terminated, and they also deny that this option was communicated to

George. (See Defs.’ Answer, ¶ 19). Of course, since a Rule 12(c) motion is

evaluated under the same standard as a Rule 12(b)(6) motion, I accept the

averments in the Complaint as true for purposes of ruling on the motion before

me. See, e.g., Kaite v. Altoona Student Transp., Inc., 296 F.3d 736, 741 n.3 (W.D.

Pa. 2017); accord Allen v. Eckard, No. 17-996, 2018 WL 2113234, at *1 (M.D.

Pa. May 8, 2018) (“As a result of the obligation to view the facts and reasonable

inferences in favor of the nonmovant, however, a court should treat any

allegations in the answer that contradict the complaint as false.”). The same holds

true for other facts alleged in the Complaint that are denied by Defendants in their

Answer. (See, e.g., Defs.’ Answer, ¶¶ 20-21).

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proceeded with the hearing over George’s objection. (See id. at ¶ 22). Symonies

denied the allegations at the hearing. (See id. at ¶ 23). George also argued at the

hearing that the allegations against Symonies were vague as they did not include the

dates, times, or names of the complaining Blakely police officers. (See id. at ¶ 25).

When asked for that information, MacGregor indicated that he could not provide those

details and only stated that the alleged misconduct occurred within the past year. (See

id. at ¶¶ 26-27). MacGregor explained at the hearing that the internal investigation

involved interviewing two unidentified deputy sheriffs who observed Symonies

throwing a business card in the trash. (See id. at ¶ 28). George also requested the date

of that incident so he could review surveillance video to check if Symonies was

working that day, but MacGregor could not provide specific information regarding the

date and time of that alleged misconduct. (See id. at ¶¶ 29-30). At the conclusion of

the hearing, George requested that no disciplinary action be taken against Symonies.

(See id. at ¶ 31).

One hour after the hearing concluded, MacGregor phoned George and advised

that after speaking with McAndrew, the outcome of the hearing was the same as what

George had been told earlier - Symonies could either retire that day or be fired. (See

id. at ¶ 32). In response, George told MacGregor it was not his place to inform

Symonies of the County’s decision. (See id. at ¶ 33).

On or about January 2, 2018, Tigue informed Symonies that he could either

retire or he would be terminated. (See id. at ¶ 35). Symonies submitted a letter of

resignation and retirement the next day. (See id. at ¶ 36; see also Defs.’ Answer, Ex.

“A”).

Based on the foregoing, Symonies filed the instant action on April 26, 2019.

(See Compl., generally). In his one-Count Complaint, Symomies contends that

Defendants deprived him of his property interest in his employment as a County

deputy sheriff without due process of law. (See id., generally). More particularly,

Symonies alleges that he was “constructively discharged” and that the due process

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hearing he was provided was a “sham.” (See id., generally).

Defendants filed their Answer and Affirmative Defenses to the Complaint on

July 1, 2019. (See Defs.’ Answer, generally). Two days later, Defendants filed the

instant motion for judgment on the pleadings. (See Doc. 12, generally). That motion

has now been fully briefed, so it is ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(c) provides: “[a]fter the pleadings are closed

-- but early enough not to delay trial -- a party may move for judgment on the

pleadings.” Fed. R. Civ. P. 12(c). Judgment on the pleadings is appropriate “if the

movant clearly establishes that there are no material issues of fact, and he is entitled

to judgment as a matter of law.” Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220

(3d Cir. 2005). “‘A motion for judgment on the pleadings based on the defense that

the plaintiff has failed to state a claim is analyzed under the same standards that apply

to a Rule 12(b)(6) motion.’” Zimmerman v. Corbett, 873 F.3d 414, 417 (3d Cir. 2017)

(quoting Revel v. Port Auth. of NY, NJ, 598 F.3d 128, 134 (3d Cir. 2010)). “In

considering a motion for judgment on the pleadings, a court must accept all of the

allegations in the pleadings of the party against whom the motion is addressed as true

and draw all reasonable inferences in favor of the non-moving party.” Id. at 417-18

(citing Allah v. Al–Hafeez, 226 F.3d 247, 249 (3d Cir. 2000)). “In ruling on a motion

for judgment on the pleadings, ‘the court reviews not only the complaint but also the

answer and written instruments attached to the pleadings.’” Barnard v. Lackawanna

Cnty., 194 F. Supp. 3d 337, 340 (M.D. Pa. 2016) (quoting Brautigam v. Fraley, 684

F. Supp. 2d 589, 591 (M.D. Pa. 2010)); see also L-7 Designs, Inc. v. Old Navy, LLC,

647 F.3d 419, 422 (2d Cir. 2011) (“On a 12(c) motion, the court considers the

complaint, the answer, any written documents attached to them, and any matter of

which the court can take judicial notice for the factual background of the case.”).

III. Discussion

Symonies’ sole claim in this action is for an alleged deprivation of a protected

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property interest in his County employment as a deputy sheriff without due process of

law, i.e., a procedural due process claim. The Due Process Clause of the Fourteenth

Amendment provides that “[n]o state shall .. . deprive any person of life, liberty, or

property without due process of law[.]” U.S. Const. amend XIV, § 1. “To state a claim

under § 1983 for deprivation of procedural due process rights, a plaintiff must allege

that (1) he was deprived of an individual interest that is encompassed within the

Fourteenth Amendment's protection of ‘life, liberty, or property,’ and (2) the

procedures available to him did not provide ‘due process of law.’” Hill v. Borough of

Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (citing Alvin v. Suzuki, 227 F.3d 107,

116 (3d Cir. 2000)). Defendants challenge both elements of Symonies’ procedural due

process claim.

A. Property Interest.

Defendants first contend that Symonies lacked a property interest in his

continued employment with the County as a deputy sheriff. “Whether a person has a

legitimate entitlement to - and hence a property interest in - his government job is a

question answered by state law.” Hill, 455 F.3d at 234. “To have a property interest

in a job, however, a person must have more than a unilateral expectation of continued

employment; rather, she must have a legitimate entitlement to such continued

employment.” Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citing Bd. of

Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548

(1972)).

Here, Symonies alleges that as a union member, he had a protected property

interest in his employment as a deputy sheriff. (See Compl., §§ 8-9). While

Defendants observe that the Collective Bargaining Agreement (the “CBA”) governing

Symonies’ employment does not contain a “just cause” termination provision, (see

Doc. 14, 7 n.1; see also Defs.’ Answer, Ex. “D”), they opine that this is “immaterial

to the instant analysis[.]” (Doc. 14, 7n.1). Rather, Defendants contend that Symonies

lacked a protected interest in his continued employment in light of Section 1620 of the

Pennsylvania County Code, 16 P.S. § 1620. (See id. at 7-16).

Section 1620 states:

The salaries and compensation of county officers shall be as

now or hereafter fixed by law. The salaries and

compensation of all appointed officers and employes who

are paid from the county treasury shall be fixed by the salary

board created by this act for such purposes: Provided,

however, That with respect to representation proceedings

before the Pennsylvania Labor Relations Board or collective

bargaining negotiations involving any or all employes paid

from the county treasury, the board of county commissioners

shall have the sole power and responsibility to represent

judges of the court of common pleas, the county and all

elected or appointed county officers having any employment

powers over the affected employes. The exercise of such

responsibilities by the county commissioners shall in no way

affect the hiring, discharging and supervising rights and

obligations with respect to such employes as may be vested

in the judges or other county officers.

16 P.S. § 1620. Under Pennsylvania law, the county sheriff is a “county officer.” See,

e.g., Erie Cty. v. Pa. Labor Relations Bd., 908 A.2d 369, 373-74 (Pa. Commw. 2006);

see also Pa. Const. art. IX, § 4 (“County officers shall consist of commissioners,

controllers or auditors, district attorneys, public defenders, treasurers, sheriffs,

registers of wills, recorders of deeds, prothonotaries, clerks of the courts, and such

others as may from time to time be provided by law.”).

Defendants argue that pursuant to § 1620, McAndrew had unqualified authority

regarding personnel decisions in his office as Sheriff. (See Doc. 14, 9). Moreover, to

the extent that the pertinent CBA arguably infringed upon those rights, Defendants

insist that McAndrew properly objected to those provisions in order to preserve his §

1620 rights. (See id. at 10). As to that, Defendants point to an April 16, 2015 letter

from the Sheriff’s Solicitor in which McAndrew took “issue with th[e] non-economic

contract provisions that infringe upon his rights under the Pennsylvania Constitution

and Section 1620 of the County Code.” (Defs.’ Answer, Ex. “E”). This, say

Defendants, demonstrates that McAndrew retained discretion to discharge deputy

sheriffs such as Symonies, thereby preventing Symonies from demonstrating that he

had a constitutionally protected property interest in his continued County employment.

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(See Doc. 14, 8-16). Specifically, Defendants point to the Pennsylvania

Commonwealth Court’s decision in Troutman v. AFSCME, 87 A.3d 954 (Pa. Commw.

Ct. 2014) as support for their view that McAndrew’s objection to the purported

infringement on his § 1620 rights cannot be construed as a concession to those

infringing terms. (See Doc. 14, 10-11).

Symonies in opposition insists that Defendants reliance on Troutman is

misplaced. Instead, Symonies is of the view that the Commonwealth Court’s more

recent decision in Schuylkill County v. Pennsylvania Labor Relations Bd., 197 A.3d

1256 (Pa. Commw. Ct. 2018) distinguished Troutman and is directly applicable to the

matter sub judice. (See Doc. 17, 8-11). Symonies also acknowledges that McAndrew

objected to the CBA in April 2015, but emphasizes that “McAndrew tacitly consented

to the county commissioners negotiating his rights away by not appealing the

collective bargaining agreements or interest arbitration award.” (Id. at 11 n.1).

In Troutman, various Berks County row officers filed a declaratory judgment

action claiming that certain provisions of a collective bargaining agreement relating

to discharge and discipline of county employees and the procedures for filling vacant

positions violated their statutory rights under § 1620 of the County Code. See

Troutman, 87 A.3d at 955. With respect to a collective bargaining agreement that was

being negotiated in 1998, the county’s clerk of courts sent a letter to the Berks County

Commissioners indicating that he did not authorize them to negotiate on his behalf

with respect to hiring, termination, or supervision of employees in his office. See id.

at 956. Several other row officers sent similar letters thereafter. See id. at 957.

Nonetheless, despite these objections, the County Commissioners negotiated an

agreement containing provisions disputed by the row officers. See id. The row

officers commenced litigation, and the trial court held that they were bound by the

disputed provisions until they were amended through collective bargaining. See id.

at 958.

On appeal, the Commonwealth Court reversed the decision of the trial court and

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remanded with instructions to the trial court to enter declaratory judgment in favor of

the row officers. See id. at 965. The Commonwealth Court explained:

[T]he County Commissioners are the sole representatives of

Row Officers for purposes of bargaining under PERA. In

fulfilling that responsibility, the County Commissioners may

enter into a CBA that limits the hiring, discharge and

supervision rights of a Row Officer, but only where Row

Officers have tacitly or expressly consented. Here, because

Row Officers have expressly asserted their Section 1620

rights and objected to the Disputed Provisions of the CBA,

the County Commissioners lacked authority to bargain those

rights away. They should have submitted the Disputed

Provisions to interest arbitration. Had this been done and a

Row Officer objected to the award, it would have become

incumbent upon the County Commissioners or the Row

Officer to appeal the interest arbitration award in order to

preserve Section 1620 rights.

Id. at 964. Citing its prior precedent, the Commonwealth Court made clear that

“where a row officer has tacitly acquiesced to a limit on his Section 1620 rights, the

county commissioners have the authority to bargain them away. If there is no such

acquiescence, the county commissioners lack authority to bind a row officer to a

provision that limits his hiring, discharge, and supervision rights.” Id. at 965. And,

on the facts of the case, the Commonwealth Court concluded that it could not be held

that the row officers tacitly acquiesced to the disputed provisions. See id.

In Schuylkill County, prior to the execution of the 2011-2015 collective

bargaining agreement, the solicitor for the county was its chief negotiator. See

Schuylkill Cty., 197 A.3d at 1258. At that time, the solicitor did not seek the input of

elected row officers regarding their willingness to be governed by the agreement, nor

did the union or the county obtain the clerk of court’s consent to be governed by the

agreement. See id. at 1259. None of the row officers, including the clerk of court,

inquired with the county about their § 1620 rights. See id. The 2011-2015 agreement

contained limits on row officers’ rights to suspend, discharge, or discipline an

employee. See id. at 1258. On January 4, 2016, a new clerk of court took office, and

the next day she notified the county and the union by letter of her view that several

provisions infringed on her § 1620 rights. See id. at 1259. She also objected to the

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continuation of any provision that was contrary to those rights. See id. The new clerk

of court dismissed two employees shortly thereafter, prompting the union to file

grievances challenging those terminations. See id. The county refused to engage in

arbitration on the grounds that the provisions in the collective bargaining agreement

infringed upon the clerk of court’s rights under § 1620. See id. The hearing examiner

issued a proposed decision finding that the county unlawfully refused to bargain in

good faith by refusing to arbitrate and that it committed an unfair labor practice. See

id. The Pennsylvania Labor Relations Board made the proposed decision final, and

the county petitioned the Commonwealth Court for review relying on Troutman. See

id. at 1260.

The Commonwealth Court affirmed the order of the Pennsylvania Labor

Relations Board. See id. at 1264. Troutman, explained the Schuylkill County court,

“established that once a row officer asserts Section 1620 rights, the county may not

bargain them away. Troutman did not hold that a county can refuse to follow the

terms of an existing collective bargaining agreement, to which the row officer did not

object at the time the contract was negotiated.” Id. at 1262. So, even though the

2011-2015 collective bargaining agreement was negotiated prior to the clerk of court

taking office, that agreement remained in effect until a new one is reached. See id. at

1263.

Also instructive to the matter sub judice is Rebert v. York County Detectives

Association, 909 A.2d 906 (Pa. Commw. Ct. 2006). There, following the submission

of a bargaining impasse to interest arbitration between the York County

Commissioners on behalf of the District Attorney’s office and the union representing

county detectives in that office, the parties entered into an award in the form of an

agreement. See id. at 908. The agreement contained, among other items, a provision

governing “hours of work.” Id. The District Attorney’s office subsequently hired a

detective to a work schedule that deviated from that set forth in the collective

bargaining agreement. See id. The union filed a grievance, and the arbitrator ruled

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in favor of the union. See id. at 909. The District Attorney appealed the award to the

Court of Common Pleas, which affirmed the award and noted that if the District

Attorney believed a § 1620 violation occurred, “he should have appealed the interest

arbitration award. The Court could have properly addressed the claim at that point.”

Id. The District Attorney appealed the trial court’s decision to the Commonwealth

Court. See id.

On appeal, the Commonwealth Court addressed the District Attorney’s claim

that the arbitrator exceeded his authority by entering an award which violated his

rights under § 1620. See id. at 911. Specifically, the District Attorney argued that

“the CBA is unenforceable in this particular case because the county commissioners

lacked the authority to bargain away his Section 1620 rights.” Id. The

Commonwealth Court disagreed, explaining:

[T]he Commissioners were obligated to submit, as they did,

the proposal regarding the regular work schedule to interest

arbitration and the District Attorney was obliged to appeal

the interest arbitration consent award in order to assert the

challenge based on Section 1620 that he presses in the

current appeal. There having been no challenge to the

legality of the interest arbitration award, the District

Attorney is powerless now to repudiate its terms. Hence, in

interpreting the CBA and enforcing the work schedule

provision, the arbitrator did not exceed the scope of his

authority.

Id. at 912.

Based on the present record, the County and the Lackawanna County Deputy

Sheriffs Association bargained to an impasse regarding a successor agreement that

expired on December 31, 2013. (See Defs.’ Answer, Ex. “D”, 11). The dispute was

submitted to interest arbitration and evidentiary hearings were held in September

2013. (See id.). Thereafter, McAndrew was elected County Sheriff. (See Defs.’

Answer, Ex. “E”). And, before the interest arbitration award was finalized,

McAndrew, through the Sheriff’s Office solicitor, advised at least one of the

arbitrators, i.e., the County-appointed arbitrator, of his “objections to [the] newly

proposed collective bargaining agreement” with respect to the “non-economic contract

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provisions that infringe upon his rights under the Pennsylvania Constitution and

Section 1620 of the County Code.” (Id.). The Sheriff’s Office solicitor was

subsequently advised by the County-appointed arbitrator that he did “not believe that

any of the Award or changes in the collective bargaining agreement have infringed on

the Sheriff’s rights,” but he welcomed the solicitor’s “suggested text” if he wanted

filed a “concurring opinion concerning the 1620 rights[.]” (Defs.’ Answer, Ex. “D”,

17). No concurring opinion appears in the record. (See id., generally). The interest

arbitration award between the County and the Deputy Sheriff’s Association was

ratified by the County Board of Commissioners at a regular meeting held on July 1,

2015. (See id. at 10).

Defendants argue that given these facts, McAndrew objected to the provisions

that purportedly infringed on his § 1620 rights, so the collective bargaining agreement

is unenforceable to the extent that it impairs his power to supervise, hire, and fire

personnel. (See Doc. 14, 6-16). But, the above-cited case law indicates that objecting

to an interest arbitration award, by itself, is generally insufficient to preserve § 1620

rights. Rather, an appeal of the interest arbitration award is required to protect such

rights. See Troutman, 87 A.3d at 964; Schuylkill Cty., 197 A.3d at 1262; Rebert, 909

A.2d at 912.3 While McAndrew advised the County-appointed arbitrator of his

objection to the award, (see Defs.’ Answer, Ex. “E”), it is not clear from the present

3 The Commonwealth Court has also recognized that a failure to appeal an interest

arbitration award does not foreclose a subsequent challenge based on § 1620

where the collective bargaining agreement at issue contains a reopener provision.

See Lackawanna Cty. v. Lackawanna Cty. Deputy Sheriff’s Ass’n, No. 487 C.D.

2007, 2008 WL 9405103, at *13 (Pa. Commw. Ct. May 13, 2008) (distinguishing

Rebert and stating that “[u]nlike the district attorney in Rebert, the Sheriff here

challenged the legality of the interest arbitration award by pursuing the specific

remedy available to him under that award. Unlike the terms of the CBA at issue

in Rebert, here the disputed provision contained a reopener, which stated that

either party retained the ability to request reopening of the provision . . . .”). No

such provision - or invocation of same - has been pointed to by Defendants in the

matter sub judice.

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record that the County Commissioners were informed of McAndrew’s objections to

the interest arbitration award. Moreover, Troutman, Schuylkill County, and Rebert all

similarly indicate that to preserve § 1620 rights, the County Commissioners, or if they

refused, McAndrew, should have appealed the interest arbitration award. See

Troutman, 87 A.3d at 964 (“They should have submitted the Disputed Provisions to

interest arbitration. Had this been done and a Row Officer objected to the award, it

would have been incumbent upon the County Commissioners or the Row Officer to

appeal the interest arbitration award in order to preserve Section 1620 rights.”);

Schuylkill Cty., 197 A.3d at 1262 (“Where the row officers objected to the interest

arbitration award, then the county commissioners had to appeal the award or allow the

row officers to appeal.”); Rebert, 909 A.2d at 912 (“the District Attorney was obliged

to appeal the interest arbitration consent award in order to assert the challenge based

on Section 1620 that he presses in the current appeal.”). The record as it stands,

though, does not reflect an appeal of the interest arbitration award by either the County

Commissioners or McAndrew. At this point then, I cannot find that McAndrew

preserved his § 1620 rights.4 Because this is the only challenge advanced by

Defendants in their motion regarding Symonies’ alleged property interest in continued

County employment, judgment on the pleadings is not warranted on this ground.

B. Due Process of Law.

Second, Defendants argue that the procedural due process claim fails because

the process afforded Symonies was constitutionally adequate. “‘[D]ue process is

4 Defendants also point to the CBA as support for its claim that the Sheriff’s

authority under § 1620 was specifically preserved by the agreement. (See Doc.

18, 7 (citing Defs.’ Answer, Ex. “D”, 22 (“shall be exercised consistent with

statutory authority, including, but not limited to Section 1620 of the County Code,

and controlling case law.”))). Because the record is not sufficiently developed for

me to resolve this issue, I decline to pass on it here. I simply note, however, that

there is authority finding similar language insufficient by itself to preserve § 1620

rights. See, e.g., Rebert, 909 A.2d at 909-122 & n.5; Cty. of Lehigh v. Lehigh Cty.

Deputy Sheriffs’ Ass’n, 52 A.3d 376, 379, 383-84 (Pa. Commw. 2012)

13

flexible and calls for such procedural protections as the particular situation demands.’”

Biliski v. Red Clay Consol. Sch. Dist. Bd. of Educ., 574 F.3d 214, 220 (3d Cir. 2009)

(quoting Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 138 L.Ed. 2d 120

(1997) ). “A plaintiff claiming a due process violation while relying upon state law

to establish his property right, looks to federal law to define procedural due process.”

Perri v. Aytch, 724 F.2d 362, 366 (3d Cir. 1983) (quotation and citation omitted). At

a minimum, a deprivation must “be preceded by notice and an opportunity for a

hearing.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S. Ct. 1487,

84 L. Ed. 2d 494 (1985).

Prior to termination, Loudermill requires “a pretermination

opportunity to respond, coupled with post-termination

administrative [or judicial] procedures.” Morton v. Beyer,

822 F.2d 364, 367 (3d Cir. 1987) (quoting Loudermill, 470

U.S. at 546, 105 S. Ct. 1487). The pretermination hearing,

“though necessary, need not be elaborate,” and it must at

least entail: 1) “oral or written notice of the charges,” 2) “an

explanation of the employer's evidence,” and 3) “an

opportunity for the employee to tell his side of the story.”

Loudermill, 470 U.S. at 545, 105 S.Ct. 1487.

Moffitt v. Tunkhannock Area Sch. Dist., 160 F. Supp. 3d 786, 793 (M.D. Pa. 2016).

It is clear from the Complaint that Symonies received predeprivation notice and

an opportunity to be heard. (See Compl., generally). In particular, Symonies alleges

that on December 19, 2017, he was advised of a due process hearing regarding his

alleged misconduct that was scheduled for December 22, 2017. (See id. at ¶ 10; see

also Defs. Answer, Ex. “B”). Symonies does not argue that the timing of this notice

was insufficient, (see Doc. 17, 11-13), nor could he. Cf. Gniotek v. City of

Philadelphia, 808 F.2d 241, 244 (3d Cir. 1986) (“in the employee termination context,

notice served at the predeprivation hearing satisfies the demands of due process.”).

Similarly, while Symonies was not provided the identity of the complaining Blakely

police officers or the deputy sheriffs interviewed, (see Compl, ¶¶ 11, 14), he alleges

that he was given - both before and at the December 22, 2017 hearing - an explanation

of the County’s evidence against him. (See id. at ¶¶ 10-14, 26-28; see also Defs.’

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Answer, Ex. “B”). The description of the evidence against Symonies forming the

basis of the misconduct allegations was sufficient to satisfy the requirements of due

process. See McDaniels v. Flick, 59 F.3d 446, 457 (3d Cir. 1995) (“pretermination

notice of the charges and evidence against an employee need not be in great detail as

long as it allows the employee the opportunity to determine what facts, if any, within

his knowledge might be presented in mitigation of or in denial of the charges.”); cf.

Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74, 80 (3d Cir. 1989)

(holding that, although the discharged police officers were sufficiently informed of

disciplinary action against them and given an opportunity to state their objections, they

were nevertheless deprived of a “meaningful” pre-termination hearing because “they

were not told anything specific about . . . the allegations being investigated or the

evidence regarding the allegation”). Finally, Symonies asserts that he was given the

opportunity to respond to the claimed misconduct. (See Compl., ¶ 23). This was

constitutionally adequate. See Loudermill, 470 U.S. at 545-46, 105 S. Ct. 1487

(pretermination hearing “need not be elaborate” and the “the pretermination hearing

need not definitively resolve the propriety of the discharge. It 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.”).

Symonies’ claim is instead centered on the allegation that the due process

hearing was a “sham” because its outcome was predetermined. (See Compl., ¶¶ 19-22,

32, 34). Symonies points to the fact that his union representative was informed in

advance of the hearing that Symonies would be given the option to retire or be

terminated. (See id. at ¶ 19). At the conclusion of the hearing, Symonies was advised

that the predetermined outcome remained the County’s decision: he could retire or be

terminated. (See id. at ¶ 32). As a result, Symonies “submitted to the Defendants’

compelled retirement determination.” (Id. at ¶ 36). In other words, Symonies claims

he was constructively discharged as a result of the sham due process proceeding. (See

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id. at background (“Sham due process hearing and constructive discharge”)).

Although Symonies argues these theories as one, they implicate different issues and

standards, so I address them separately.

With respect to his claim that the pretermination hearing was a sham, the Third

Circuit has stated that “in the case of an employment termination case, due process

does not require the state to provide an impartial decisionmaker at the pre-termination

hearing. The state is obliged only to make available the means by which the employee

can receive redress for the deprivations.” McDaniels, 59 F.3d at 459 (3d Cir. 1995)

(quotation, citations, and alterations omitted); see also Heneghan v. Northampton

Cmty. Coll., 493 F. App’x 257, 259-260 (3d Cir. 2012) (“Generally, due process does

not require an impartial decisionmaker at the pretermination hearing provided the state

affords a neutral tribunal at the post-termination stage.”); Deluzio v. Monroe Cnty.,

No. 00-1220, 2006 WL 3098033, at *16 (M.D. Pa. Oct. 30, 2006) ([d]ue process does

not require a neutral, impartial decision-maker during the pre-termination hearing,

provided the terminated employee has adequate post-termination proceedings before

an impartial decision-maker.”). Thus, “a discharged employee cannot claim in federal

court that he has been denied due process because his pretermination hearing was held

by a biased individual where he has not taken advantage of his right to a post-

deprivation hearing before an impartial tribunal that can rectify any possible wrong

committed by the initial decisionmaker.” McDaniels, 59 F.3d at 460. The McDaniels

court explained:

Usually, an employment termination decision is made

initially by the employee's direct supervisor or someone

working in the same organization as the employee - a

sensible approach given that such person often is already

familiar with the employee's abilities and shortcomings as

well as the needs and interests of the employer organization.

Yet, these individuals are also likely targets for claims of

bias or improper motive simply because of their positions.

For example, personality discord may lead to charges that a

direct supervisor was biased. . . . While these charges may

have merit in certain cases, to require that the state ensure an

impartial pretermination hearing in every instance would as

a practical matter require that termination decisions initially

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be made by an outside party rather than the employer as

charges of bias always could be made following an in-house

discharge. Not only is this procedure unduly cumbersome,

but it also may be unreasonably invasive for the employee,

who may want to keep the circumstances of his discharge

private. On the whole, we do not think that such excessive

pretermination precaution is necessary where the state

provides a neutral tribunal at the post-termination stage that

can resolve charges of improper motives.

Id.

Symonies presents a relative straightforward application of McDaniels. As

explained above, Symonies was provided notice of the allegations against him, was

provided a hearing, and was given an opportunity to be heard. So long as Defendants

afforded him the right to a post-deprivation hearing before an impartial tribunal, an

issue discussed below, Symonies does not present a plausible claim for relief based

on the alleged bias in the “sham” pre-deprivation hearing.

This is the case even accepting as true, as I must on the present motion, that the

outcome of the December 22, 2017 hearing was predetermined. On that point, I am

aware of out-of-circuit authority finding that a Loudermill hearing with a

predetermined or preordained outcome can violate an employee’s due process rights.

See, e.g., Ryan v. Illinois Dep’t of Children & Family Servs., 185 F.3d 751, 762 (7th

Cir. 1999) (“Due process requires that, prior to termination, an employee be given the

chance to tell her side of the story, and that the agency be willing to listen. Otherwise,

the opportunity to respond required by Loudermill is no opportunity at all. . . . A

plaintiff who can introduce evidence that the decision has already been made and any

hearing would be a sham is entitled to go forward with a procedural due process

claim.”); Matthews v. Harney Cty., 819 F.2d 889, 893 (9th Cir. 1987) (“Due process

of law [is not present] where the [employer] has gone through the mechanics of

providing a hearing, but the hearing is totally devoid of a meaningful opportunity to

be heard.”); Levesque v. Town of Vernon, 341 F. Supp. 2d 126, 134 (D. Conn. 2004).

But cases likes these, as two district courts in this Circuit have recognized, are at odds

with the Third Circuit’s decision in McDaniels, see Barnett v. Penn Hills Sch. Dist.,

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No. 16-274, 2016 WL 2895136, at *8 (W.D. Pa. May 18, 2016) (McVerry, J.) (finding

Ryan’s “holding runs headlong into the reasoning in McDaniels”); Luciani v. City of

Philadelphia, No. 10-2918, 2013 WL 5468000, at *11 (E.D. Pa. Oct. 1, 2013)

(O’Neill, J.), which rejected the argument that the district court erred “in refusing to

allow [the plaintiff] to show at trial that the pretermination procedure afforded him

was a sham.” McDaniels, 59 F.3d at 458; see also id. at 461 n.8 (“Of course, the fact

that they did not accept his responses is irrelevant for purposes of determining whether

his procedural due process rights were offended.”). Indeed, in affirming the district

court in Luciani, the Third Circuit observed - albeit in a divided, non-precedential

opinion - that so long as adequate post-termination proceedings are provided, the fact

that “the pre-termination hearing to which [the plaintiff] was subjected had a

predetermined outcome is ultimately immaterial to his procedural due process claim.”

Luciani v. City of Philadelphia, 643 F. App’x 109, 112 (3d Cir. 2016); see also id. at

113 (“Merely rejecting an employee’s claim at a pre-termination proceeding is not a

constitutional violation, so long as adequate post-termination remedies exist to satisfy

procedural due process.”); accord Barnett v. Penn Hills Sch. Dist., 705 F. App’x 71,

73-74 (3d Cir. 2017) (affirming dismissal of employee’s procedural due process claim

alleging, inter alia, that his hearing was prejudged and noting that “once some process

is provided, we have held that de novo review can cure any claimed bias in appropriate

cases.”).

That leads to the requirement that Symonies must have availed himself of

available post-deprivation proceedings or he cannot sustain a procedural due process

claim arising from the purported flaws in his pre-deprivation hearing. “In order to

state a claim for failure to provide due process, a plaintiff must have taken advantage

of the processes that are available to him or her, unless those processes are unavailable

or patently inadequate.” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

Defendants contend, in accordance with McDaniels, that Symonies had the

opportunity for a post-termination hearing, namely, by way of the grievance/arbitration

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procedures provided for in the CBA or pursuant to Pennsylvania’s Local Agency Law,

2 Pa. C.S.A. §§ 553-554, 752-754. (See Doc. 14, 20-26; see also Defs.’ Answer, Ex.

“D”, 56-58). While Symonies disputes Defendants’ claim that he could have sought

relief under Pennsylvania’s Local Agency Law on the basis that his “constructive

discharge” was not an adjudication under that law, (see Doc. 17, 11-13), he puts forth

no opposition to Defendants’ reference to the CBA’s provision setting forth a

grievance/arbitration process. (See id., generally).

“A public employer may discharge its due process obligations by providing for

facially adequate post-deprivation grievance procedures, even if the initial

determination resulting in the deprivation was biased.” Skrutski v. Marut, 288 F.

App’x 803, 809 (3d Cir. 2008) (citing Dykes v. Se. Pa. Transp. Auth., 68 F.3d 1564,

1571 (3d Cir. 1995); Jackson v. Temple Univ., 721 F.2d 931, 933 (3d Cir. 1983)). As

a result, when “there is a process on the books that appears to provide due process, the

plaintiff cannot skip that process and use the federal courts as a means to get back

what he wants.” Alvin, 227 F.3d at 116. Because there was an adequate post-

deprivation grievance/arbitration procedure provided for in the CBA, (see Defs.’

Answer, Ex. “D”, 56-58), that was not alleged to have been utilized by Symonies, he

has not presented a plausible due process claim. See, e.g., Dykes, 68 F.3d at 1572

(finding failure to state a claim for due process violation where plaintiff failed to

request arbitration that was available to him, even when the “plaintiff alleged that the

defendants acted in concert to deprive him both of a meaningful hearing and of

arbitration” because the arbitration process had safeguards to protect against a

diminishment of process that the alleged bias might result in); Companiony v. Murphy,

658 F. App’x 118, 122 (“Because Companiony failed to take advantage of available

post-termination processes, and has also not shown that such processes were

inadequate, she cannot bring a claim for failure to provide procedural due process

relating to her post-termination proceedings.”); Luciani, 643 F. App’x at 112 (due

process claims failed where the plaintiff failed to file a union grievance after the pre-

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termination proceeding found against him because that provided a “constitutionally

sufficient avenue[ ] for relief”).

Nor, for two reasons, can Symonies save his claim by calling his resignation a

“constructive discharge.”5 For one, he has not pled facts to support such a theory. To

determine whether Symonies retired voluntarily or was constructively discharged

requires consideration of the “‘surrounding circumstances to test the ability of the

employee to exercise free choice.’” Leheny v. City of Pittsburgh, 183 F.3d 220, 227

(3d Cir. 1999) (quoting Scharf v. Dep’t of the Air Force, 710 F.2d 1572, 1574 (Fed.

Cir. 1983)). “Employee resignations and retirements are presumed to be voluntary.”

Id. (citing Angarita v. St. Louis Cty., 981 F.2d 1537, 1544 (8th Cir. 1992)).

This presumption remains intact until the employee presents

evidence to establish that the resignation or retirement was

involuntarily procured. If an employee retires of his own

free will, even though prompted to do so by some action of

his employer, he is deemed to have relinquished his property

interest in his continued employment for the government,

and cannot contend that he was deprived of his due process

rights.

Id. (citation and internal citation omitted). In Lenehy, the Third Circuit pointed to

“two circumstances in which an employee's resignation or retirement will be deemed

involuntary for due process purposes: (1) when the employer forces the resignation or

retirement by coercion or duress, or (2) when the employer obtains the resignation or

retirement by deceiving or misrepresenting a material fact to the employee.” Id. at 228

(citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995)).

Symonies does not allege that Defendants misrepresented or deceived him as

to any material facts which led him to resign. (See Compl., generally). Instead, his

contention is that he was forced to retire under the threat of termination, i.e., his

resignation was coerced. (See id. at ¶ 36 (submitting to the “compelled retirement

5 While he characterizes his resignation as a “constructive discharge,” Symonies

reaches this legal conclusion without application or analysis of any case law

governing such a claim. (See Doc. 17, generally).

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determination”)).

This claim is viewed under an “objective standard,” meaning “the ultimate issue

is not what [Symonies himself] felt or believed, but whether a reasonable person under

the circumstances ‘would have felt compelled to resign.’” Judge v. Shikellamy Sch.

Dist., 905 F.3d 122, 125 (3d Cir. 2018) (quoting Colwell v. Rite Aid Corp., 602 F.3d

495, 502 (3d Cir. 2010)). The Third Circuit has identified a “non-exhaustive list of

factors” that provide “a useful framework” for determining whether a resignation was

obtained by coercion or duress:

(1) whether the employee was given some alternative to

resignation; (2) whether the employee understood the nature

of the choice he was given; (3) whether the employee was

given a reasonable time in which to choose; (4) whether the

employee was permitted to select the effective date of the

resignation; and (5) whether the employee had the advice of

counsel.

Id. (alteration omitted) (quoting Hargray, 57 F. 3d at 1598).

The facts here do not reflect that the retirement decision was obtained by

coercion. First, Symonies was given an alternative to retirement - proceeding to a

Loudermill hearing (which he did) and face discipline or termination. (See Compl.,

¶¶ 10, 19; Defs.’ Answer, Ex. “B”). Following the hearing, Symonies was again given

the option to retire or be terminated. (See Compl., ¶¶ 32, 35). Symonies ultimately

submitted his resignation. (See id. at ¶ 36). “[R]esignations can be voluntary even

where the only alternative to resignation is facing possible termination for cause . . .

.” Hargray, 57 F.3d at 1568; see also Palka v. Shelton, 623 F.3d 447, 453 (7th Cir.

2010) (“He could retire with full benefits or appear before the Board and potentially

be vindicated; the latter option, however, obviously risked termination and loss of his

benefits if the charges were substantiated. But this is not the kind of choice that makes

an otherwise voluntary resignation involuntary. . . . That Palka decided to resign rather

than risk an unfavorable Merit Board decision does not make his resignation

involuntary. The district court was right to dismiss his procedural due-process

claim.”); Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 174 (4th Cir.

21

1988) (“the mere fact that the choice is between comparably unpleasant alternatives -

e.g., resignation or facing disciplinary charges - does not of itself establish that a

resignation was induced by duress or coercion, hence was involuntary. This is so even

where the only alternative to resignation is facing possible termination for cause,

unless the employer actually lacked good cause to believe that grounds for termination

existed.”).

Second, Symonies offered his resignation letter (1) over a week after his hearing

where it was “predetermined” that he would be terminated if he did not retire, and (2)

a day after he spoke with Tigue. This was a reasonable time for Symonies to make an

informed decision. See, e.g., Rhoads v. Bd. of Educ. of Mad River Local Sch. Dist.,

103 F. App’x 888, 895 (6th Cir. 2004) (seven hours to make decision was sufficient);

Young v. Annarino, 123 F. Supp. 2d 915, 926 (W.D.N.C. 2000) (weekend was

adequate time to decide whether to resign); Venero v. City of Tampa, 830 F. Supp.

1457, 1460 (M.D. Fla. 1993) (two days was enough time “to think and reason before

making the decision to resign”). And third, the facts indicate that Symonies

understood the choice he was given. While nothing indicates that Symonies had the

advice of counsel or that he was permitted to choose his effective retirement date, the

pertinent factors do not plausibly show that Symonies’ retirement was the product of

coercion or duress.

Finally, even if Symonies had a property interest in his deputy sheriff position

and accepting he was compelled by Defendants to retire, he still did not utilize the

grievance process available to him. Symonies is therefore unable to prove a due

process violation when he was allegedly “forced to retire.” See Turinski v. Local 104

Int’l Ass’n of Fire Fighters, 269 F. App’x 184, 188 (3d Cir. 2008) (rejecting “forced

to retire” argument where the employees “failed to exhaust the grievance process

available to them. Neither appellant took his grievance to the mayor, and even if they

perceived this step as futile because they felt the mayor was behind their demotions,

neither pursued the grievance to arbitration despite being entitled to do so under the

22

CBA.”); see also Leheny, 183 F.3d at 227-29; Parks v. Terrebonne Parish

Consolidated Gov’t, 759 F. App’x 220, 226 (5th Cir. 2019) Meyers v. City of

Cincinnati, 934 F.2d 726, 731 (6th Cir. 1991) (“It is true that the municipal civil

service commission refused to allow plaintiff to be heard because it interpreted the

plaintiff's retirement as voluntary, but this refusal does not constitute a due process

violation because an adequate state corrective judicial process exists.”). The due

process claim based on a constructive discharge theory fails for this reason as well.

Symonies, therefore, has not pled a plausible basis to conclude that the

procedures available to him failed to satisfy the requirements of due process.

Defendants are entitled to judgment on the pleadings pursuant to Rule 12(c).

IV. Conclusion

For the above stated reasons, Defendants’ motion for judgment on the pleadings

will be granted. In granting “a motion for judgment on the pleadings pursuant to Fed.

R. Civ .P. 12(c), the [Court's] order should enter judgment in favor of [the movant]

instead of dismissing [the non-movant's] claims.” Dukes v. Lancer Ins. Co., 390 F.

App’x 159, 163 (3d Cir. 2010) (footnote omitted). As such, judgment in favor of

Defendants will be entered on Count One of the Complaint.

An appropriate order follows.

September 16, 2019 /s/ A. Richard Caputo

Date A. Richard Caputo

United States District Judge

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