Appeals court sides with county
An appeals court has affirmed a decision dismissing a former Washington County juvenile probation officer’s First Amendment whistleblower lawsuit against the county and three former officials from federal court.
In an opinion filed Tuesday, Third Circuit Judge D. Brooks Smith, part of a three-member panel considering the appeal, agreed with a lower court’s decision to nix former county juvenile probation officer David Scrip’s claim his freedom of speech was violated when county officials allegedly fired him in retaliation for reporting what he considered a conflict of interest in the juvenile probation office.
Smith wrote the panel affirmed the lower court’s decision because the appeal failed to show a “causal connection” between Scrip’s firing in February 2014 and letters he anonymously sent to former Washington County President Judge Debbie O’Dell Seneca and other members of the state judiciary that raised concerns about a relationship between juvenile probation chief Daniel Clements, Scrip’s direct supervisor, and a woman who worked at Abraxas Youth and Family Services, which Scrip considered a conflict of interest.
Noah Geary, the Washington attorney representing Scrip, called the ruling “disturbing.”
“The complaint absolutely complied with federal pleading requirements,” Geary said. “No plaintiff could have pled more facts establishing cause than David Scrip did.”
Robert J. Grimm – the Pittsburgh attorney representing Washington County; Thomas Jess, the former director of county probation services; and Clements – was unavailable for comment on the ruling Wednesday. Michael Daley, an attorney with the Administrative Office of Pennsylvania Courts who is representing O’Dell Seneca, also couldn’t be reached.
Grimm and Daley had asked the appellate court to affirm a ruling last year by the U.S. District Court in Pittsburgh that dismissed the First Amendment claim.
The district court’s decision also remanded two claims under state law – involving the whistleblower law and public policy exception to the at-will employee doctrine – to state court.
Geary said he plans to file a “petition for reargument en banc” within 14 days to ask the judges of the circuit court to reconsider this week’s ruling in a bid to proceed with the case in federal court.
Scrip alleged in the lawsuit O’Dell Seneca and Jess fired Scrip because he reported the relationship between Clements and the Abraxas employee – a relationship Scrip said prompted Clements to coerce recommendations from subordinates to place children at Abraxas facilities.
Scrip alleged he became the target of discipline for “pretextual reasons” when Jess and O’Dell Seneca learned he was responsible for the letters.
In the appeal, Geary argued the lower court should have allowed him to file an amended complaint to bolster the argument that Scrip was retaliated against.
The circuit judges, however, agreed with the lower court’s decision not to allow the amended complaint, saying the move would have been “futile.”
While it provided additional details about disciplinary actions against Scrip, it didn’t show a “pattern of antagonism” that would have helped Scrip’s claims of retaliation, Smith wrote.
Geary said he believes the original complaint was adequate and disagrees with the decision not to allow the amended complaint. He likened the court’s decision to “telling me (the original complaint) is not sufficient and then not permitting Scrip to file an amended complaint.”
An investigation by an AOPC contractor concluded no one in the county courts or juvenile probation department “gained personally or financially by placing youth in Abraxas.”
Geary called the investigation a “sham” in court filings and said it didn’t address Scrip’s initial allegations.
Secondary findings of the report included that juvenile probation officers were “generally unhappy” with a lack of transparency in management decisions, low office morale and “poor organizational communication” in the department.
O’Dell Seneca retired as the county’s president judge in January 2015 after being removed from her administrative duties by the AOPC months earlier.
Clements pleaded guilty in May 2015 to charges of theft by deception and tampering with evidence that stemmed stemming from an allegation he pocketed funds that were supposed to be used for mixed-martial arts training.
Jess’ position was eliminated in February 2015 by the county salary board.