SCRANTON – A Wilkes-Barre school police officer contends that after defusing an incident with a violent student who was attempting to strangle her, she was later suspended and dismissed from her duties by the school district without a hearing, an opportunity to respond or any type of proper due process.
Erika Oswald of Kingston filed suit in the U.S. District Court for the Middle District of Pennsylvania on April 2 versus Wilkes-Barre Area School District, its Superintendent Dr. Brian Costello and its Director of Human Resources Frank Castano, all of Wilkes-Barre.
“Plaintiff Oswald was employed as a police officer by the defendant since, on or about Jan. 6, 2023, until she was terminated in the summer of 2023 without required procedural due process. Oswald was employed locally as a police officer since 1994, and is a retiree of the Wilkes-Barre City Police Department. Oswald holds a Bachelor’s Degree in Criminal Justice/Sociology and completed the Lackawanna College Police Academy, including yearly updates. She is a firearms instructor and accident reconstructionist. She has completed specialized training in drug enforcement, DUI field sobriety testing and is a certified breath test operator. Oswald successfully completed Act 67 School Police Officer Training to begin her duties at the District. On or about May 18, 2023, Oswald was an employee of the District assigned to the Solomon Elementary and Middle School Complex as a police officer,” the suit states.
“At approximately 1:25 p.m. on May 18, 2023, Oswald was sent to Room 200 by Middle School Principal [Anthony] Khalife for a report of a disruptive student that was threatening a teacher. Khalife sent Oswald to this disturbance call alone, and without a District administrator, in violation of District policy. Khalife advised Oswald that he would come up to the room once he was done with a student issue in his office. Based upon information and belief, Khalife knew the identity of the student that was the subject of the disturbance call and knew of his aggressive tendencies. Oswald was not aware of the student’s identity. Based upon information and belief, the student had dozens of disciplinary referrals for, but not limited to, threatening teachers and students and being combative. The student is estimated to weigh approximately 350 pounds.”
The suit continues that Oswald “proceeded to the room and was met by the classroom teacher who requested Khalife’s presence, [who] advised Oswald that the disruptive student was in the rear of the classroom.”
When Oswald asked the student to step out of the classroom, he refused to do so. After students in the classroom began hollering to the student [in question] that he was in trouble, that student told Oswald that “she cannot touch him, threatened her and began calling her names.”
“Oswald, a veteran police officer with nearly three decades of experience, attempted to calm the student advising him they were just going to talk to ‘Mr. K,’ referring to Khalife. Oswald advised the student not to make more of this than it was, they were going to talk and get him home. The student continued to demean Oswald and threatened to ‘snap’ her in half and became more agitated with students in the classroom egging him on. There were approximately 25 students present. Oswald requested that Khalife respond to the classroom, because the student was becoming more agitated, hostile and threatening. When the student heard Oswald requesting assistance from Khalife, he stood up, threw his backpack towards the front of the room and charged at Officer Oswald,” the suit says.
“Oswald was pushed up against a shelf and the student began to strangle her. Oswald attempted to escape the strangulation and was becoming lightheaded, nearly losing consciousness due to the attack. After several minutes of being strangled, a male student came to her aid with Khalife entering the room at approximately the same time. Oswald and the student fell to the floor. Oswald was injured and directed that the student be placed on his side. She wanted him to remain on the floor and announced that he was under arrest. Oswald placed a radio call for emergency assistance from the Plains Township Police Department. Officers from the Plains Township Police Department arrived within minutes of Oswald’s call and placed the student in custody.”
The suit explains that a petition was later filed in Luzerne County Juvenile Court charging the student with strangulation, aggravated assault, simple assault, disorderly conduct and harassment. After the incident, the student was released to the custody of his mother.
“Oswald was transported by ambulance to the Geisinger Emergency Room as a Level 2 trauma patient to be treated for her injuries, including a neck sprain and bruised ribs. Later in the evening, after discharge from the hospital, Khalife attempted to contact Oswald in-person at her home and by telephone. Oswald was not able to speak to him due to her injuries. Oswald was not able to work on May 19, 2023, due to her injuries. Oswald was advised that if she did not report to work on May 22, 2023, she would need to use her own paid time off. However, Oswald reported for duty, completed an injury report and the juvenile court petition. On or about May 22, 2023, District Police Chief [Carl] Gembitski sent an email to all police officers reminding them of the District Policy requiring an administrator to respond with police for student disciplinary problems. On or about May 31, 2023, Oswald was advised by Chief Gembitski that the ‘powers that be’ wanted her to take a de-escalation course and provided a link in an email for her to access the course,” the suit states.
“As directed by the Chief, Oswald did not work on June 1, 2023 and was advised not to report for duty for the remainder of the school year. Oswald completed the course, at her own expense, on June 4, 2023. She asked the Chief why she needed the course. She was advised it was a mandate from District Administration. On June 6, 2023, Frank Castano, Human Resources Director, advised Oswald that she was being subjected to a Loudermill hearing for ‘inappropriate use of de-escalation techniques, which included inappropriate language.’ The notice did not contain a detailed statement of charges. Dr. Brian Costello conducted the Loudermill hearing in which a brief audio clip of the incident was played. Oswald explained that the audio did not capture the full incident. Costello generally complimented her work to date, including her involvement at expulsion hearings, in the presence of the Chief and human resources representatives. At the conclusion of the Loudermill hearing, Costello advised Oswald that due to the audio clip, he had to suspend her for two days. Based upon information and belief, Costello was concerned about Oswald’s use of the word ‘cuz’ when referring to the student. Oswald used that reference because the student was calling her ‘cuz.’ Oswald accepted the suspension. She had already completed the mandated training. The end of the school year was near.”
Chief Gembitski then asked for Oswald’s weapon, keys and identification, and Oswald went home to retrieve them and provided them to the Chief, who then provided a receipt. Costello also advised Oswald that he would need to notify the School Board of the incident and the two-day suspension.
“On or about June 8, 2023, Oswald received a group email from the Chief sent to all District police officers expressing his wishes that they enjoy the summer and to plan on returning to duty on Sept. 5, 2023. In response to this email, Oswald inquired about summer training opportunities. On or about June 11, 2023 Chief Gembitski and Mr. Castano advised her that the Board of Education heard the brief audio clip and voted to fire her if she did not resign. She had not been provided with any notice of this pending action, nor the opportunity to be heard, prior to the Board of Education’s decision. Oswald asked Costello for the opportunity to appear before the Board, but he refused, indicating that it was not necessary. Oswald was never provided with a notice of a hearing, the opportunity to be heard or a hearing before the school board despite her request. On Sept. 1, 2023, Oswald emailed Castano to advise him that she is ready to report for duty during the new school year,” the suit says.
“In response to Oswald’s email, Castano advised her that she was terminated over the summer by the school board. Oswald never received any written or oral notice of her termination, only learning of the termination by Castano’s Sept. 1, 2023 email. Plaintiff has a property interest in her employment pursuant to 24 Pa.C.S. Section 13-1310-c and Section 5-514. Punitive damages are warranted against the individual defendants, because the conduct was intentional, willing and done with reckless indifference to plaintiff’s rights. As a direct result of the unlawful conduct engaged in by defendants in violation of the procedural due process rights afforded by the Fourteenth Amendment of the U.S. Constitution, the plaintiff has sustained loss of earnings, severe emotional, physical, and psychological distress, loss of self-esteem, loss of future earning power, humiliation, insult and seeks front pay, back pay and interest due thereon.”
For counts of violating procedural due process and Monell liability under the Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. Section 1983, the plaintiff is seeking compensatory damages, punitive damages, attorney’s fees, expenses, costs of suit, interest, expert witness fees, past and future lost earnings, earning capacity and benefits, front and back pay plus interest and all other relief as the Court deems just and proper
The plaintiff is represented by Robert J. Boyer of the Law Office of Robert J. Boyer, in Pittston.
The defendants are represented by John E. Freund III and Shorav Kaushik of King Spry Herman Freund & Faul, in Bethlehem.
U.S. District Court for the Middle District of Pennsylvania case 3:24-cv-00561
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com