# Symonies v. McAndrew

> District Court, M.D. Pennsylvania · September 16, 2019

URL: https://www.frixlaw.com/law-library/cases/10407705

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 16, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.’”).
2
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).
3
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
4
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
5
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.
7
(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
8
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
9
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
10
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
11
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.
12
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.’
14
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407705. Public record. Not legal advice.