Judge grants summary judgment to Pa. state police in case of job applicant's lawsuit over tattoo policy

By Jon Campisi | Dec 16, 2011

A federal judge in Harrisburg last week granted summary judgment to the Pennsylvania State Police in a case in which an applicant seeking a job as a Liquor Enforcement Officer claimed he was discriminated against because of a tattoo.

Ronald Scavone had sued the law enforcement agency two summers ago alleging that his refusal to get a small tattoo removed from his body cost him an opportunity to land a job with the state police.

In his August 2009 complaint, which had been filed at the U.S. District Court for the Middle District of Pennsylvania by Pittston, Pa. attorney Cynthia L. Pollick, Scavone, of Luzerne County, Pa., had argued that despite passing a background check and successfully completing the selection process, he was not hired by the agency because he refused to get a jester tattoo removed.

Scavone claimed that his constitutional rights were violated, specifically that his First Amendment free speech rights were violated when he questioned the anti-tattoo policy, which doesn’t ask employees to cover up their tattoos, but rather remove them, which the lawsuit claims is an “extremely painful and costly process and has no guarantee of success in erasing the tattoo 100 percent.”

Scavone had sought compensatory and punitive damages, attorney’s fees and declaratory judgment that the tattoo removal policy is unconstitutional.

In his ruling, dated Dec. 7, U.S. District Judge A. Richard Caputo ruled in favor of the defendants, writing that Scavone’s First Amendment retaliation claim fails because there is “no causal link between Mr. Scavone’s speech and the decision not to hire him,” and that a “class of one equal protection claim cannot be brought in the public employment context.”

On the first point, Caputo wrote that the state police informed Scavone in June 2008 that he would not be considered for employment as a Liquor Enforcement Officer until his jester tattoo was removed, which it never was.

The judge went on to say that Scavone didn’t question the policy or seek a lawyer until several months after the agency’s determination not to hire Scavone was made.

“The court fails to see how the PSP’s decision to deny Mr. Scavone employment for questioning the tattoo policy could be conceptualized as retaliatory when the decision was made before he questioned it,” Caputo wrote.

On the Fourteenth Amendment Equal Protection claim in the suit, Caputo cited a U.S. Supreme Court ruling that stated that the “class-of-one theory of equal protection has no application in the public employment context.”

Scavone argued that he was not bringing an equal protection class-of-one claim, but he failed to allege the protected class of which he purports to be a member, the judge’s ruling stated.

Scavone had also claimed that the “public employment” exception didn’t apply to him since he was never hired.

The judge, however, noted that the U.S. Supreme Court case cited extends to “hiring and firing decisions.”

The judge ruled that because he was granting summary judgment to the defendants, the state police’s qualified immunity arguments would now be moot.

The case was ordered closed.

Pennsylvania has a state-operated liquor store system, of which the Pennsylvania Liquor Control Board handles administrative matters, such as awarding licenses to establishments.

The Pennsylvania State Police handles enforcement of the state liquor code through its Bureau of Liquor Control Enforcement, which employs Liquor Enforcement Officers.

The LEOs primarily conduct undercover investigations at bars and restaurants, and this is one of the reasons why the agency stated it has a no-tattoo policy.

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