Probation officer loses wrongful termination case; He was golfing on the job

By Nicholas Malfitano | Apr 10, 2019


HARRISBURG – Clarion County was within its rights to fire a Juvenile Probation Officer caught golfing on the job and did not illegally terminate him through reasons of age discrimination, the Commonwealth Court of Pennsylvania recently decided.

Commonwealth Court judges Patricia A. McCullough, Michael J. Wojcik and Ellen Ceisler ruled in the case on March 18, with McCullough authoring the Court’s decision.

Larry Bowser began working as a Juvenile Probation Officer in 1993, after being hired by Clarion County Judge Charles R. Alexander. As a Juvenile Probation Officer, Bowser’s work was done for the Court, with Clarion County Judge James G. Arner acting as “head boss” over the probation officers.

Probation Officers were subject to a Collective Bargaining Agreement (CBA) which indicated that they were court-appointed employees, as well as the Unified Judicial System (UJS) Code of Conduct for Employees, which Bowser received a copy of upon hiring.

The President Judge handled all discipline, hiring, and termination decisions of probation officers, and that later became Judge Arner. During that time, now-Probation Director Jayne Smail and her Deputy Director Mike Blum would interview candidates for job openings and would pick one or two applicants to interview with Judge Arner. Judge Arner would then make the decision to hire. If there were disciplinary issues, Smail or Blum would discuss it with Judge Arner, and he made all disciplinary decisions.

In May 2013, Blum learned Bowser was golfing during the workday, though Bowser initially denied the allegation. However, Bowser later admitted that he golfed “on a few days,” but maintained that he completed the required number of work hours.

After reviewing Bowser’s field notes, Blum discovered that on May 17, 2013, Bowser did not have any face-to-face contact with his juvenile supervisees and went golfing. On June 14, 2013, Judge Arner met with Bowser to “obtain his explanation why he went golfing twice when he was supposed to be working and visiting juveniles and why he lied to Deputy Director Blum about it.” During the meeting, Bowser stated that he had an obsession with golf, had lied to Blum, and had violated policy by not seeking permission to golf or indicating in his schedule that he was going to golf.

“On June 26, 2013, Bowser, then 54 years old, was terminated and issued a letter stating that his actions violated the UJS Code of Conduct for Employees by ‘making false official statements and abusing Court time and resources.’ The termination letter was signed by President Judge Arner and Trisha Douglas, Human Resources Director of the County,” McCullough said.

“At the time of his termination, Bowser occupied the position of Intensive Probationary Officer, but the position was eliminated after his termination due to lack of funding. On Aug. 14, 2013, Judge Arner hired a 24-year-old male to fill a vacant position in the juvenile probation office; on June 25, 2014, Judge Arner hired a 45-year-old male as an Adult Probation Officer and, on Dec. 2, 2014, Judge Arner hired a 25-year-old male as an Adult Probation Officer.”

On April 25, 2015, Bowser filed a complaint against Clarion County, averring that he was terminated from his position as a probation officer and alleging that the County violated Pennsylvania Human Relations Act (PHRA).

On Jan. 2, 2018, after the close of discovery, the County filed a motion for summary judgment, asserting that Bowser failed to produce evidence to sustain a claim against it because the County and the Court of Common Pleas were separate governmental entities and the CCP was Bowser’s sole employer. On April 25, 2018, the trial court granted the County’s motion for summary judgment.

The trial court concluded that Bowser was employed solely by the Court of Common Pleas and that the County could not be considered a joint employer, that even if the County was an employer subject to liability under the PHRA, it had a legitimate basis to terminate Bowser and that Bowser failed to submit sufficient evidence to demonstrate that the County’s proffered reasons were a pretext for age discrimination.

Bowser then appealed to the Commonwealth Court.

“While the County provided Bowser with equipment…human resource and administrative support of this nature do not militate toward a finding of a joint employment relationship. Further, the termination letter stated that Bowser was ‘hereby terminated from County employment as a regular full time Probation Officer,” McCullough said.

McCullough also pointed out that Clarion County did not exercise authority over the decision to hire Bowser or control over his job duties.

“Moreover, although the County approved the decision to hire Bowser, the actual decision to hire was made solely by Judge Alexander. The President Judge in effect at the time handled all discipline, hiring, and termination decisions of probation officers, who were subject to the UJS Code of Conduct for employees,” McCullough said.

“Equally significant, there is no evidence that the County exercised (or had the right to exercise) control over the day-to-day operations of the Probation Office or direct the activities of which Bowser was to complete and/or the manner in which he was to conduct those 17 activities and his job duties.”

McCullough then concluded the trial court did not err in granting summary judgment in favor of Clarion County.

Commonwealth Court of Pennsylvania case 653 C.D. 2018

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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