By Borys Krawczeniuk
The Times-Tribune
SCRANTON, Pa. — Lackawanna County Prison officials illegally fired three guards and punished three others, all because their doctors said they couldn’t work overtime because of medical conditions, the guards alleged in a federal lawsuit filed against the county Thursday.
Their suit says fired correctional officers Allen P. Joyce of Scranton, William Ferrario of Scranton and Matthew Besecker of Moosic and still-employed guards Anthony P. Mariano of Scranton, Jeremy McClemens of Scranton and Justin Kopa of Jermyn all had satisfactory job performance ratings, but claim prison officials and co-workers labeled them “lazy” or harassed them with derogatory names, fliers and posters for refusing to work overtime.
Warden Robert McMillan and other county officials tried to harass and intimidate them into working overtime, the suit alleges.
Attempts to reach Mr. McMillan and five of the six plaintiffs and their lawyer, Philadelphia attorney Sidney Gold, were unsuccessful.
Mr. Joyce declined to comment.
The suit accuses prison officials of violating the federal Americans with Disabilities and Family and Medical Leave acts and a state anti-discrimination law by failing to accommodate their disabilities, retaliating against them for refusing overtime and creating a hostile work environment.
County solicitor Don Frederickson called the suit “frivolous” and said the federal Equal Employment Opportunity Commission has already dismissed the guards’ claims that the Americans with Disabilities Act was violated. He said the guards’ union contract allows prison officials to require guards to work overtime.
“They just don’t want to work overtime,” Mr. Frederickson said. “The action is frivolous and we’ll defend against it to the fullest extent.”
At various times and for differing medical conditions, each guard obtained a doctor’s excuse that limited their work week to no more than 40 hours.
After 40 hours, employees are required to receive overtime under federal law.
Prison officials repeatedly wanted the six to work overtime, but each time the men were scheduled to work overtime, they invoked the Family and Medical Leave Act (FMLA), according to the lawsuit. The act, enacted in 1993, allows employees to take up to 12 weeks of unpaid leave for specific family or medical reasons. The leave can be taken as a continuous block of time or used intermittently as necessary for recurring medical appointments or chronic conditions.
When the guard invoked the FMLA, prison officials allowed co-workers to harass them and fired them or deducted dozens of days from the six months of allowed unpaid medical leave annually, the suit says.
According to the suit:
¦ Mr. Joyce, former president of the guards’ union, worked for the county since June 1989 and was fired Nov. 13. He suffers from epilepsy and high blood pressure, the suit says.
¦ Mr. Besecker was hired May 2, 2012, and fired March 21. He suffers from Crohn’s Disease, a degenerative disease that affects a person’s digestive system.
¦ Mr. Ferrario, who was hired in October 1995, was fired May 5. He suffers from diabetes and kidney failure.
¦ Mr. Mariano, who was hired May 2, 2012 and still works at the prison, suffers from Tourette’s syndrome, a disorder featuring nervous tics and anxiety.
¦ Mr. McClemens was hired Nov. 25, 2013, and still works at the prison. He suffers from high blood pressure and tension headaches.
¦ Mr. Kopa was hired May 2, 2012, and still works at the prison. He suffers from a herniated disk in his back.
In common parlance, the Family and Medical Leave Act and its FMLA abbreviation found its way into the insults suffered by the six, according to the lawsuit. For example, co-workers wrote graffiti on prison walls that used phrases such as “FMLA: Fire My Lazy Ass,” and “losers have FMLA,” causing the six “significant and unremitting emotional distress,” according to the suit.
In another instance, another prison guard circulated a poster captioned “LCP’s Most wanted.”
The poster included photos of the six guards relying on medical leave and the “retaliatory and threatening message: ‘Stay away from these officers, they have FMLA and are bringing the morale down in this place,’” the suit says.
The targeted guards contend they complained to Warden McMillan or human resources department officials, who did nothing to stop the behavior, according to the suit.
The suit even points to the warden’s comments in a Feb. 26 Times-Tribune article. In the story, Mr. McMillan complained about the overtime expense FMLA leave is causing. Almost a quarter of the prison’s 174 uniformed staff members were approved for the leave at the time.
The warden’s comments confirm the county has a motive to retaliate against the guards, the suit says.
The fired guards do not seek reinstatement specifically. Rather, all six ask for any lost wages, the future pay they would receive before they retire and an unspecified amount of money for pain, suffering, inconvenience and mental anguish.
Copyright 2016 The Times-Tribune