employment - due process - suspension - prior hearing

Schmidt v. Creedon - 3d Cir. - March 29, 2011

http://www.ca3.uscourts.gov/opinarch/092051p.pdf

Under Pennsylvania law, 53 Pa. Stat. § 46190, policemen [sic] and fireman [sic] cannot be suspended or terminated without just cause. This recognition of this property interest in their positions has been applied both to terminations and to suspensions. See, e.g., Dee v. Borough of Dunmore, 549 F.3d 225, 230 (3d Cir. 2008). Absent extraordinary circumstances, the statute has been interpreted as creating a property interest requiring at least a brief and informal pre-termination or pre-suspension hearing.

The District Court held that, despite plaintiff'‘s property interest in his position, because there was a post-suspension hearing provided by the Collective Bargaining Agreement, no pre-suspension hearing was necessary.

The Third Circuit reversed, holding that, except for extraordinary situations, under Pennsylvania law, even when union grievance procedures permit a policeman to challenge his suspension after the fact, a brief and informal pre-termination or pre-suspension hearing is necessary. However, because this rule was not clearly established at the time of plaintiff‘s suspension, it held that appellees were entitled to qualified immunity.

Sec. 1983 - police involvement in private property dispute

Harvey v. Plains Twp. Police Dept - 3d Cir. March 29, 2011

http://www.ca3.uscourts.gov/opinarch/091170p.pdf

To prevail on a § 1983 claim, plaintiff had to show, first, that she was deprived of a constitutional right and, second, that the alleged deprivation was "committed by a person acting under color of state law." Harvey I, 421 F.3d at 189 (quoting West v. Atkins, 487 U.S. 42, 48 (1988)). The first element was not in dispute. The case turned on whether plaintiff could prove that the police officer acted "under color of state law." 42 U.S.C. § 1983.

Action under color of state law "requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir. 1998) (internal quotation marks and citations omitted). We have considered state action in the context of private repossessions before. The test is whether the officer maintains neutrality or takes an active role in the repossession resulting in an unconstitutional deprivation. Id. at 147. "The mere presence of police at the scene of a private repossession does not, alone, constitute state action." Id.

An officer‟s presence may be requested to maintain the peace, and the officer appropriately does so by remaining neutral. An officer abandons neutrality once he takes an active role and assists in the repossession. The relevant inquiry, then, is whether an officer affirmatively aided a repossession such that he can be said to have caused the constitutional deprivation. Such aid may take the form of facilitation, encouragement, direction, compulsion, or other affirmative assistance in the repossession.3 See Marcus v. McCollum, 394 F.3d 813, 819 (10th Cir. 2004). However, liability will only attach when an officer plays a "principal role" in the seizure. Abbott, 164 F.3d at 147. In short, an officer may be liable for causing a constitutional deprivation if he "aid[s] the repossessor in such a way that the repossession would not have occurred but for [his] assistance." Marcus, 394 F.3d at 819.

The distinction between maintaining neutrality and taking an active role is not to be answered in the abstract. There is no precise formula, and the distinction lies in the particular facts and circumstances of the case. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961) ("Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance."). To determine whether a police officer acted under the color of state law, the facts and circumstances of the police officer‟s role in the private repossession must be examined in their totality. See Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983).

disability - remand - post-hearing psych. report - duty to consider

Boyd v. Astrue - ED Pa. - March 18, 2011

http://www.paed.uscourts.gov/documents/opinions/11D0289P.pdf

Remand based on newly introduced evidence is authorized by the sixth sentence of 42U.S.C. § 405(g), which states that a court may remand a case when there is new, material evidence, and there is good cause for its absence from the administrative record. Id.; see also Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2000). Evidence is “new” if it is not “merely cumulative of what is already on the record.” Szubak v. Sec’y of HHS, 745 F.2d 831, 833 (3d Cir. 1984). Evidence is “material” if it is “relevant and probative . . . [and] there is a reasonable possibility that the new evidence would have changed the outcome” of the administrative decision. Id. To be material, the evidencemust also be relevant to the time period considered by theALJ, and not simply demonstrate a later-acquired disability or deterioration of a previously non-disabling condition. Id.

Here, the Magistrate Judge found the post-hearing mental evaluation was new. The ALJ did not order a mental examination to address Boyd’s claims of brain damage and learning disabilities, relying instead on an erroneous interpretation of Boyd’s school records, which the ALJ incorrectly asserted did not include special education classes.

The Magistrate Judge found the mental evaluation was material because it reflects a life-long learning disability which existed during the time period considered by the ALJ, and found there is a reasonable possibility Boyd’s mental disability could qualify Boyd as disabled by meeting or equaling a listed impairment, or could otherwise affect his RFC.

The Magistrate Judge further found Boyd could not have introduced the post-hearing examination report before the ALJ’s denial of benefits, which occurred several months before the examination was conducted. Accordingly, the Magistrate Judge recommended this case be remanded.

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UC - failure of both parties to appear

R.E.G. Investment Properties v. UCBR - unreported - March 8, 2011

http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case

UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.

There is a presumption that one who performs services for wages is an employee and not an independent contractor.

This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).

In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.

UC - indpt. contractor v. employee - presumption

http://www.pacourts.us/OpPosting/Cwealth/out/1685CD10_3-8-11.pdf - unreported case - March 2011


UCSC determination that claimant was employee and not indpt. contractor upheld on appeal, where neither party appeared at hearing and referee made decision based on documents.


There is a presumption that one who performs services for wages is an employee and not an independent contractor.

This presumption can be overcome if an employer sustains its burden in proving that a claimant was (a) free from control and direction in the performance of the work, where the ability to control and not actual control is determinative; and (b) as to such services, [claimant] was customarily engaged in an independent trade or business. Schneider v. Unemployment Comp. Bd. of Review, ____ A.3d ____ (Pa. Cmwlth. No.
2238 C.D. 2009, filed June 18, 2010), slip op. at 2 (citation and quotation marks omitted) (emphasis added).


In addition, “[i]f a party notified of the date, hour and place of a hearing fails to attend a hearing without proper cause, the hearing may be held in his absence. In the absence of all parties, the decision may be based upon the pertinent available records.” 34 Pa. Code § 101.51.

UC - voluntary quit - retirement package - likelihood of layoff

Wright-Swygert v. UCBR - March 3, 2011 - Cmwlth. Court

http://www.pacourts.us/OpPosting/Cwealth/out/930CD10_3-3-11.pdf


In this case, the circumstances surrounding Claimant leaving her employment gave her the reasonable belief that she was going to be laid off; were as if she had been specifically told that she was going to lose her job; and were of a necessitous and compelling nature to accept the volutary early retirement package (VERP) and leave her employment.

First, Claimant alone was called into the Director’s office on two different occasions just weeks before the deadline for accepting the VERP. Each time was at the behest of the senior director telling the Director to speak to Claimant and question her as to whether she was going to accept the VERP. The discussion was a one-on-one discussion, not a general letter to all employees of the company, letting Claimant know that she should seriously consider accepting the VERP.

At the second meeting, when Claimant asked the Director if her job was going to be eliminated, he said “It doesn’t look good.” Claimant further testified regarding the Director: Claimant: ….. [H]e felt bad that he had to talk to me. He said…I didn’t feel comfortable talking to you about it. But the senior director said talk to her now. He then went on to give her the name of his financial person. Under those circumstances, Claimant was justified in believing that her layoff was likely to materialize and that her job was imminently threatened .


In determining whether a necessitous and compelling cause exists in the context of corporate downsizing, this Court in Renda v. UCBR, 837 A.2d 685 (Pa. Cmwlth. 2003), held that the relevant inquiry is whether “the circumstances surrounding a claimant’s voluntary quit indicated a likelihood that fear about the employee’s employment would materialize, that serious impending threats to her job would be realized, and that her belief her job is imminently threatened is well-founded.” Id., 837 A.2d at 692. Citing Staub v. UCBR, 673 A.2d 434, 437 (Pa. Cmwlth. 1996), we went on to state:

“[S]peculation pertaining to an employer’s financial condition and future layoffs, however disconcerting, does not establish the requisite necessitous and compelling cause.” Staub, 673 A.2d at 437.4 [W]here at the time of retirement suitable continuing work is available, the employer states that a layoff is possible but not likely, and no other factors are found … that remove an employee’s beliefs from the realm of speculation, a claim for unemployment benefits fails despite the offer to leave. Id.

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n.4 - We stated in Renda: [T]his court denied benefits where a claimant’s speculative concerns over future employment prompted her voluntary termination. Mansberg v. UCBR, 829 A.2d 1266 (Pa. Cmwlth. 2003) (claimant voluntarily quit despite employer’s statement that lost jobs would be “filtered” to other sections of company); PECO Energy Co. v. UCBR, 682 A.2d 49 (Pa. Cmwlth. 1996) (claimant accepted early retirement package based on “postulations” of “what he felt could happen”); Staub (claimant accepted early retirement incentive based on his belief that employer’s “poor financial condition” would result in layoff); Dep’t of Navy v. UCBR,650 A.2d 1138 (Pa. Cmwlth 1994) (claimant “believed” his job would be eliminated); Peoples First Nat’l Bank v. UCBR, 632 A.2d 1014 (Pa. Cmwlth. 1993) (employer indicated a layoff was “possible,” but employer “didn’t think so”); Flannery v. UCBR, 557 A.2d 52 (Pa. Cmwlth. 1989) (claimant accepted advanced retirement package based on his belief layoff was “inevitable,” despite availability of continuing work). Renda, 837 A.2d at 692. In both Renda and Staub, the Referees found that the employers made continuing work available to the claimants.

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