PITTSBURGH – Litigation between the Borough of Donora and its longtime Superintendent of Police has been stayed, pending the completion of mediation that the parties anticipate will end with the resolution of the case.
James Brice first filed suit in the U.S. District Court for the Western District of Pennsylvania on Sept. 7 versus the Borough of Donora.
“Plaintiff was a longtime employee of the defendant and spent approximately 40 years serving his community in various positions within the defendant’s police department, until his unlawful termination on or about Aug. 22, 2022. At the time of the plaintiff’s termination, he held the position of Superintendent of Police and had maintained that position since 1989. During his many years of service, plaintiff received no counseling or other progressive discipline, nor was he the subject of any complaints regarding his job performance. On or about Aug. 22, 2022, defendant’s council voted to terminate the plaintiff’s employment,” the suit stated.
“Plaintiff and defendant’s Councilmember Joseph Greco have a long history, both serving as police officers throughout the 1980s and early 1990s. Mr. Greco was elected to the defendant’s council and was sworn in sometime in or about early January of 2020. Almost immediately upon his installation to the defendant’s council, Mr. Greco took steps to oust the plaintiff from his leadership role within the defendant’s police department.”
The suit continued that starting in 2020, the defendant allegedly engaged in a course of conduct meant to harass and discriminate against the plaintiff because of his age – with one example being that in January 2020, Mr. Greco presented the plaintiff with a retirement package, despite the plaintiff never having expressed any interest in retirement.
At a much later appeal hearing for Brice before the defendant’s Civil Service Commission in January of 2023, Mr. Greco testified that he presented the aforementioned retirement package to the plaintiff because “counsel was looking to take some type of action against Officer Brice.”
“In or about April of 2020, defendant’s Mayor at that time, James McDonough II, and Mr. Greco met with the plaintiff and informed him that the plaintiff was required to retire due to his age, 66, in accordance with defendant’s Ordinance 1181, which required the defendant’s police officers to retire once they reached 65 years of age. However, on or about May 15, 2020, defendant’s council voted to repeal Ordinance 1181. Notably, that ordinance was classified at that meeting as ‘age discrimination.’ Nevertheless, on or about May 29, 2020, Mayor McDonough sent the plaintiff a letter informing him that he would be forced to submit a letter of resignation, as he had reached the compulsory retirement age, pursuant to Ordinance 1181. In the same letter, Mayor McDonough stated that the plaintiff’s service was admirable and thanked the plaintiff for his service. That letter stated that the plaintiff was required to submit his resignation within 14 days,” the suit said.
“However, because of the aforementioned action of defendant’s council in which it repealed the above-described ordinance, defendant was not able to enforce a compulsory retirement age requirement. Therefore, the plaintiff refused to resign at that time and objected to defendant’s attempt to force retirement as age discrimination in violation of the ADEA. After the plaintiff refused to resign, and until his unlawful termination, defendant continued to engage in a course of conduct meant to harass and discriminate against the plaintiff because of his age and/or in retaliation for refusing to resign and invoking his rights under the ADEA, as well as further attempt by the defendant to force the plaintiff to retire and/or resign. During that time, plaintiff faced unfair scrutiny from the defendant. Plaintiff believes, and therefore avers, that the defendant’s unfair scrutiny was in retaliation for his refusal to resign and his invocation of his rights under the ADEA, as well as a further attempt by the defendant to force the plaintiff to retire and/or resign.”
In July 2021, the defendant presented the plaintiff with a new employment contract, which significantly reduced his benefits, allowed the defendant to terminate him at any time, without reason, required the plaintiff to get a physical and sign a release for the defendant to access his medical records.
Brice refused to sign that contract.
10 months later, in May 2022, Brice filed a lawsuit against the defendant for claims under the Pennsylvania Wage Payment and Collections Act.
At a subsequent Loudermill hearing meant to address his employment status in August 2022, Brice maintains that he was “not provided with specific allegations against him or an explanation of the evidence against him attendant to those allegations, and was not even provided specific dates that these alleged violations occurred”, nor was he permitted to respond to the charges against him.
These included Brice allegedly “submitting erroneous monthly reports of police activity to Council” and “failing to respond to 911 calls and/or calls to provide backup on at least Nov. 15, 2021 and March 2, 2022,” without further specification or accompanying evidence presented.
The charges also contended that Brice had improperly allowed his son, a Borough employee, to access internal computer systems without authorization and had performed his duties while under the influence, accusations which Brice said are “patently false.”
“At the conclusion of the Loudermill hearing, plaintiff was informed by Attorney Gabriel that he was suspended by the defendant. However, defendant did not have the authority to suspend the plaintiff, as its council did not vote to take any action against the plaintiff at that time. Plaintiff received a Statement of Charges, dated Aug. 22, 2022, wherein he was informed of his termination and the allegations against him. The reasons given for plaintiff’s termination are pre-textual and unworthy of belief. Plaintiff believes, and therefore avers, for the reasons stated hereinbefore above, that he was not terminated for cause. Plaintiff further believes, and therefore avers, that he was terminated based on his age, 69, and/or in retaliation for engaging in a protected activity, to wit, invoking his rights under the Age Discrimination in Employment Act,” the suit said.
“Plaintiff believes that the actions taken against him by the defendant…were done in retaliation for plaintiff exercising his right to file a lawsuit against the defendant. As a result of the defendant’s actions, plaintiff has been adversely affected, both financially and professionally. Plaintiff appealed his termination to the defendant’s Civil Service Commission. Several of the defendant’s council members, including Mr. Greco, voted to terminate the plaintiff. In addition to his role as a councilman, Mr. Greco also serves on the defendant’s Civil Service Commission. Plaintiff’s appeal hearing was held over 2 days: Jan. 26, 2023, and Feb. 8, 2023. During the plaintiff’s appeal hearing, the defendant again failed to present sufficient evidence to support the charges against the plaintiff. Additionally, Mr. Greco sat as a member of the commission and was called to testify during the hearing as a witness regarding the facts and circumstances surrounding the plaintiff’s termination. Apart from the plaintiff and Mr. Greco, all other witnesses at that hearing were sequestered. Mr. Greco did eventually recuse himself from this matter, but not until after the record was closed. On or about May 25, 2023, defendant’s Civil Service Commission issued its final adjudication affirming the plaintiff’s termination and dismissing his appeal.”
UPDATE
Counsel for all parties mutually filed a joint motion to stay all deadlines in the case on Nov. 8.
“Plaintiff James Brice filed this action on Sept. 7, 2023. Since the filing of plaintiff's complaint, the parties have agreed to mediate this claim and a related claim involving the parties. The parties believe that mediation has the likelihood of resolving all claims between the parties, including the instant action. Mediation is currently scheduled for Jan. 24, 2024,” the stipulation read.
“Due to the likelihood of mediation resolving this claim, the parties would like to focus their resources on mediation and as such the parties are requesting a stay of all litigation deadlines, including defendant's responsive pleading deadline, until after mediation. The parties request that this Honorable Court enter an order, in the form attached hereto, establishing defendant’s responsive pleading deadline as Feb. 23, 2024. Defendant additionally requests that this Court enter an order stating that defendant has not waived any applicable defenses through this extension. Local Rule 7(E) which allows for the parties to file a stipulation extending a deadline no more than 45 days for a responsive pleading would not allow for enough time to mediate based on the parties’ and mediator’s schedule, so the parties are requesting the Court enter the order attached.”
Five days later, U.S. Magistrate Judge Patricia L. Dodge granted the motion.
“This matter is stayed and administratively closed pending the completion of the mediation scheduled for Jan. 24, 2024. All deadlines are stayed. The parties shall promptly notify the Court after the mediation if the matter has been resolved. If it is not resolved, defendant’s responsive pleading shall be filed no later than Feb. 23, 2024. Defendant has not waived any defenses by jointly moving for a stay,” Dodge said.
For counts of violating the Age Discrimination in Employment Act through age discrimination and retaliation, violating the Fourteenth Amendment to the U.S. Constitution through deprivation of due process and retaliation, violation of the Pennsylvania Human Relations Act and breach of contract, the plaintiff is seeking compensatory general damages against the defendant in the amount proven at trial, compensatory special damages, costs of suit, reasonable attorney’s fees as permitted by law, pre- and post-judgment interest as permitted by law and such other relief, including injunctive and/or declaratory relief, as this Court may deem proper.
The plaintiff is represented by Joel S. Sansone, Elizabeth Tuttle and Massimo A. Terzigni of the Law Offices of Joel Sansone, in Pittsburgh.
The defendant is represented by Rolf E. Kroll of Margolis Edelstein, in Camp Hill.
U.S. District Court for the Western District of Pennsylvania case 2:23-cv-01611
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com