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A SEPTA employee was denied due process when the transit authority failed to provide a post-termination hearing after firing him for alleged misconduct in the Hall v. SEPTA fiasco, the Philadelphia Court of Common Pleas has ruled. Judge Flora Barth Wolf also found an appearance of impropriety in SEPTA’s application of its disciplinary procedures. She issued her decision in Krenzel v. SEPTA after SEPTA appealed the matter to the Commonwealth Court. “The facts of this case mandate the conclusion that 1) [Stephen] Krenzel was constitutionally entitled to a hearing by SEPTA to address the allegations made against him; and 2) that he was not given the hearing to which he was entitled,” Wolf wrote. Though Krenzel was reinstated before initiating his suit against SEPTA, he wanted a post-termination hearing to clear his name and assess damages, attorney Geoffrey B. Gompers of Geoffrey B. Gompers & Associates said. The Krenzel case is yet another chapter in the now infamous litigation that began when 4-year-old Shareif Hall stepped onto an escalator at the Cecil B. Moore subway station of the Broad Street line. After Hall’s foot was caught in the escalator mechanism and amputated, he was awarded more than $51 million in a suit against SEPTA, according to court documents. And though the transit authority later settled with Hall and his mother for $7.4 million, its troubles were not over. Philadelphia Common Pleas President Judge Frederica Massiah-Jackson held SEPTA in contempt for failing to comply with Hall’s discovery requests by withholding documents that showed the company knew its escalators were dangerous before Hall lost his foot. Massiah-Jackson found that the agency tampered with evidence and obstructed justice in its handling of the case, court papers state. According to Wolf’s opinion, SEPTA indicated in an internal memorandum that two days after Hall’s accident, Krenzel prepared a post-accident report blaming the child’s footwear for his injury, rather than maintenance or mechanical problems. SEPTA, Wolf wrote, alleged that that analysis was highly speculative. The memorandum also charged Krenzel with inappropriate conduct during the Hall lawsuit and with improperly investigating the scene of the accident. Thus the memo provided Krenzel with formal written notice that he would be discharged pursuant to Policy/Instruction 6.6.2 of SEPTA’s disciplinary procedures. Krenzel, the opinion states, received a pre-termination hearing before SEPTA assistant general manager Patrick Nowakowski. Wolf wrote that rather than contesting the charges against him, Krenzel requested that his lawyer and the press be permitted to attend and participate in the hearing. After SEPTA denied the request, Nowakowski considered the charges without Krenzel’s participation in the process. One week later, Krenzel received notice that he was fired and that a post-termination hearing would be available to him upon written request, Wolf wrote. Krenzel requested the hearing and the transit authority appointed a retired common pleas judge to sit as hearing officer. That judge withdrew shortly before the scheduled hearing, so retired Common Pleas Judge Murray Goldman was appointed, the opinion states. Goldman received a series of motions from both parties, including one from Krenzel to compel discovery and disqualify SEPTA’s legal counsel, Wolf said. Goldman ordered SEPTA to produce the requested documents but denied the disqualification motion. The hearing was then continued. According to Wolf’s opinion, SEPTA withdrew its charges against Krenzel before the post-termination hearing got under way again. The transit authority reinstated him to his previous job title with the same compensation and benefits, and agreed to issue back pay. Krenzel’s employer also informed him that he would receive a written reprimand and be placed on probation for one year for “‘minor shortcomings’ during the Hall litigation.” Goldman subsequently ended the post-termination hearing, the opinion states. The retired judge decided that since SEPTA had withdrawn its charges and reinstated the plaintiff, the hearing became moot. Krenzel appealed to the Court of Common Pleas. When his case arrived in the Court of Common Pleas, Krenzel cited to the U.S. Supreme Court’s decision in Board of Regents v. Roth to support the proposition that he was entitled to a name-clearing procedure. Gompers said SEPTA argued that the hearing would be unnecessary since Krenzel was back at work. But Krenzel claimed he had not been placed back in his previous position, Gompers said. Further, the plaintiff claimed at trial that his back pay was short and that SEPTA’s initial check for the back pay had bounced. SEPTA has since tendered the funds, however, Gompers noted. Gino J. Benedetti and Michael A. Morse of Philadelphia-based Miller, Alfano & Raspanti represented SEPTA. Benedetti said his client believes all the issues before the Commonwealth Court have already been resolved in a federal suit presided over by U.S. District Judge Ronald L. Buckwalter. Buckwalter dismissed three of four civil rights claims at the close of Krenzel’s case: The same due process claim now before the Commonwealth Court was one of them. Wolf, however, apparently was persuaded by Roth, as she found that a protected liberty interest had been threatened. “‘Where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him,’” she wrote, citing Roth, “‘due process would accord an opportunity to refute the charge.’” Wolf ruled that though Krenzel’s termination was withdrawn, his hearing was not moot. “To the contrary,” her opinion states, “Krenzel was entitled to try to prove that any disciplinary action, whether termination or letter of reprimand, was without merit. Due process considerations still apply because Krenzel was still disciplined … was denied his full back pay and benefits, and was denied the right to return to his former position. “Moreover,” Wolf continued, “SEPTA’s unilateral decision to reinstate Krenzel with these penalties was not a settlement of all of the issues that were to be addressed before Judge Goldman. No releases were signed, no rights were waived. Also, Krenzel was still entitled to argue the question of damages before Judge Goldman.” Finally, Wolf wrote, Krenzel should have received a hearing before an impartial party. While she said the trial court did not question Goldman’s integrity, Wolf found that because his services were paid for by SEPTA, because he was selected by SEPTA and because SEPTA was a past and potential future employer, there was an appearance of impropriety that was “not overcome by the truncated proceeding provided to Krenzel.” Though Benedetti said he believes the trial court is bound by Buckwalter’s decision, Gompers speculated that Wolf’s opinion may breathe new life into Krenzel’s federal claims. Frank Finch III served as counsel for Krenzel in federal court. Benedetti and Morse represented SEPTA in both actions.

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