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<p>SCRANTON &#8212; From what he&#8217;s read so far, a federal judge doubted two Wilkes-Barre police officers would prevail in their retaliation lawsuit.</p><p>But the judge allowed their case to proceed and develop further before reconsidering whether to dismiss it completely.</p><p>Sgt. Phil Myers and Officer Dan Duffy can pursue their claim that Mayor Tony George&#8217;s administration disciplined them for engaging in speech and union activity protected by the First Amendment.</p><p>The officers have been leaders in the Wilkes-Barre Police Benevolent Association and often sparred with the administration over the management of the department by former police chief Marcella Lendacky and former Commander Ron Foy.</p><p>Myers, PBA president, was suspended without pay multiple times and Duffy, union vice president, was terminated in October 2017, only to be brought back nearly a year later and his record cleared in an grievance arbitration settlement.</p><p>The issue before U.S. District Judge Robert Mariani was whether the speech was constitutionally protected, as the officers claimed, or the equivalent of airing personal grievances, a position taken by the attorneys for the defendants.</p><p><strong>Protected speech?</strong></p><p>The judge cited case law that said speech is protected if it involves &#8220;a matter of political, social or other concern to the community.&#8221;</p><p>The defendants&#8217; attorneys argued the officers claims &#8220;are a transparent attempt to constitutionalize their employee grievances regarding the managerial directives of their superiors.&#8221;</p><p>&#8220;Although the court remains skeptical that the plaintiffs will ultimately succeed on their First Amendment claims in light of plaintiffs&#8217; factual pleadings and the applicable case law, plaintiffs&#8217; allegations sufficiently &#8216;nudge their claims across the line from conceivable to plausible,&#8217;&#8221; Mariani said in his opinion Tuesday that denied the defendants&#8217; motion to dismiss in part.</p><p>However, Mariani dismissed the city from the suit, saying it was immune from damages. Likewise, he added, the mayor and Lendacky &#8212; in their official capacities &#8212; were immune and dismissed the claims against them as &#8220;duplicative&#8221; of the claim against the city.</p><p>The judge acknowledged the &#8220;prudent&#8221; course to take at this point was to let the case proceed &#8220;so as to establish a fully developed record such that a full evaluation can be made in light of the evidence&#8221; presented in the discovery process. He decided against a complete dismissal and permitting the plaintiffs to amend their complaint, saying it would not serve the interests of those involved and would cause unnecessary delay.</p><p>The suit was originally filed against the city, mayor, Lendacky and ex-Commander Foy. With the dismissal of the city, the mayor, Lendacky and Foy remain as individual defendants.</p><style>
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<div class="neFile"><img class="neImage" src="https://www.timesleader.com/wp-content/uploads/2019/01/web1_web1_Duffy.cropped-3-4.jpg">
<div class="neCaption">Duffy </div></div><div class="metaInfo"><photo0>https://www.timesleader.com/wp-content/uploads/2019/01/web1_web1_Duffy.cropped-3-4.jpg</photo0><caption0>Duffy </caption0><photoCredit0></photoCredit0></div><div class="neFile"><img class="neImage" src="https://www.timesleader.com/wp-content/uploads/2019/01/web1_Myers.cropped-4.jpg">
<div class="neCaption">Myers </div></div><div class="metaInfo"><photo1>https://www.timesleader.com/wp-content/uploads/2019/01/web1_Myers.cropped-4.jpg</photo1><caption1>Myers </caption1><photoCredit1></photoCredit1></div></div>
<div class="metaInfo"><bylineMeta><p>By Jerry Lynott</p><p>jlynott@www.timesleader.com</p></bylineMeta></div><div class="metaInfo"><shirttailMeta><p>Reach Jerry Lynott at 570-991-6120 or on Twitter @TLJerryLynott.</p></shirttailMeta></div>

Federal judge’s order moves along retaliation suit filed by Wilkes-Barre police officers