Deivert v. Zartman and Borough of Northumberland, 2025 WL 83747 (M.D.Pa. 2025)
(Neither a municipality nor a municipal manager had immunity under the Pennsylvania Political Subdivision Tort Claims Act (“PPSTCA”) for the claim by Plaintiff that he was wrongfully discharged under Pennsylvania’s Criminal History Record Information Act (CHIRA).
BACKGROUND
Plaintiff was hired by Defendant Borough after he answered truthfully that he had never been convicted of a felony. When, at the end of his Probationary period, the Plaintiff attempted to join the Union, he was denied permanent employment, discharged, and told the reason was he had a history of misdemeanors and summary offenses.
The Plaintiff Employee claims the true reason for his discharge was his Union activity and attempt to join the Union, which is protected by his First Amendment right to free expression and free association. His lawsuit alleges that the municipality and the municipal manager are liable under §1983 for violating his constitutional rights. The lawsuit also included a pendent state claim that he had been wrongfully denied permanent employment and discharged in violation of Pennsylvania’s Criminal History Record Information Act (CHIRA).
The District Court refused to dismiss the Plaintiff’s federal claims because a discharge or failure to hire based on Union activity or Union membership is a violation of the First Amendment. With respect to the state law claim, Defendants requested the suit be dismissed because they had immunity under the Pennsylvania Political Subdivision Tort Claims Act (“PPSTCA”). Although the Court conceded that the Plaintiff’s claims did not fit within any of the Tort Claims Act’s eight exceptions that allow local agencies and their employees to be liable for damages, the Court went on to apply several precedents and to conclude that the Criminal History Record Information Act demonstrates a clear legislative intent to hold government entities liable for violations. Therefore, the Court refused to dismiss the state claim against the two Defendants.
DISCUSSION
Ironically, the reason given by the employer as a defense to the claim it violated the Plaintiff’s Constitutional right to join a Union, his criminal record of misdemeanors and summary offenses, is the basis of the Plaintiff’s claim that his rights were violated under state law. The Court noted that the Defendants failed to raise the argument that the statute was inapplicable because it involved a termination of employment rather than a failure to hire. The Defendants relied solely on the Political Subdivision Torts Act, which the Court concluded was not a valid defense under numerous precedents.
PRACTICAL ADVICE
It appears that regardless of the true reason for the employer’s decision to terminate the Plaintiff’s probationary employment and deny him a permanent full-time job, its explanation and justification are not compelling and give rise to an inference of pretextual discharge. The Complaint alleges the employer and supervisor were well aware of Plaintiff’s record of misdemeanors and summary offenses and did not consider them disqualifying at the time he was originally hired. Moreover, although the Court questioned whether CHIRA applies in a case of termination, the Plaintiff could argue as well that the termination at the end of the probationary period was a denial of permanent employment and, therefore, CHIRA applies.
The dilemma the employer created for itself in this case is a clear reminder to employers that the safest course of action is to monitor an employee’s job performance and make employment decisions based on relevant job-related characteristics and performance. This applies to probationary employees as well as regular full-time employees covered by a Union contract, because probationary employees have all the protections of state and federal law, and can challenge a discharge on those grounds, even if they are only “probationary.” In addition, employers should exercise care in considering an employee’s criminal record history with respect to any employment decision, given that CHIRA specifically prohibits an employer from relying on criminal history convictions unless they directly relate to suitability for a specific job.
