JONES II, District Judge.
Pending before the court is a motion to dismiss filed by defendants Bucks County Board of Commissioners Charles Martin, Diane Ellis-Marseglia, and Robert Loughery and defendant police officers Edward Donnelly, Dennis Shook, and Thomas Waltman, seeking dismissal of Count I (First Amendment), Count II (Pennsylvania Whistleblower Law) and Count III (wrongful discharge) of the complaint. (Doc. No. 4.) After a thorough review of the record, the court will
This case arises out of plaintiff's multiple complaints to his superiors about corruption and wrongdoing in the Bucks County Sheriff's Office, action which plaintiff alleges caused the county to terminate his employment in violation of the First Amendment, the Pennsylvania Whistleblower Law, and state wrongful discharge law. The complaint begins in June 2010, when plaintiff discovered that defendant George Spice, a sergeant at the sheriff's office, had "rigged bids with an auto-body repair shop." (Doc. No. 1, at 4.) Plaintiff reported this information to his superior, Thomas Waltman, a lieutenant at the sheriff's office, but plaintiff claims that defendant Waltman failed to investigate the allegations and took no action to confront defendant Spice about the bid system. (Doc. No. 1, at 4.) In late 2010, plaintiff learned that Ollie Groman, the Bucks County Sheriff's weapons trainer, had falsely certified that certain deputy sheriffs had received gun training when they had not in fact received training. (Doc. No. 1, at 4.) Plaintiff also notified defendant Waltman about this incident, but the lieutenant again took no action to investigate or correct the certification process or discipline Mr. Groman. (Doc. No. 1, at 4.)
In November 2010, plaintiff brought these incidents to the attention of Diane M. Ellis-Marseglia, a Bucks County Commissioner, and she referred the complaint to David Rouland, an investigator with the Bucks County Controller's office with instructions to commence an investigation into the complaint. (Doc. No. 1, at 4-5.) In early 2011, Mr. Rouland interviewed plaintiff and Deputy Klein,
Plaintiff alleges that in late 2010 he was present during an interview between Lieutenant Waltman and Sergeant Browndorf, another officer of the Bucks County Sheriff's Office. (Doc. No. 1, at 5.) Plaintiff overheard Sergeant Browndorf ask defendant Waltman how he could be disciplined when none of the complaints against him had been investigated, and defendant Waltman responded, "It doesn't matter what I find out in an investigation, the Sheriff told me to find you guilty." (Doc. No. 1, at 5.) Plaintiff testified to these facts on February 14, 2011, at Sergeant Browndorf's grievance hearing and claims that Sergeant Browndorf and other officers retaliated against and harassed him in the following ways:
On August 24, 2011, Plaintiff informed Sergeant White that he would be filing a retaliation complaint with human resources because he believed that Lieutenant Waltman had retaliated against him for reporting wrongdoing in the Sheriff's Office. (Doc. No. 1, at 8.) Within several hours of informing Sergeant White of his intention, defendants Donnelly and Waltman removed plaintiff from the "warrant unit," assigned him to the less desirable "holding cell," and rescinded his right to choose his shift. (Doc. No. 1, at 8.)
The events leading up to plaintiff's termination began on May 25, 2011, when plaintiff testified before a grand jury about the alleged corruption and wrongdoing in the Bucks County Sheriff Department. (Doc. No. 1, at 8.) Several months later, on July 28, 2011, while plaintiff was assigned to "warrant detail," he was directed to assist Deputy Klein, Deputy Daniel Boyle, Corporal David Prudish and Sergeant Browndorf, in the arrest of a man named Philip Romanek. (Doc. No. 1, at 8-9.) After the arrest, Mr. Romanek claimed that Sergeant Browndorf had punched him in the chest while he was being taken into custody. (Doc. No. 1, at 9.) Sergeant Browndorf denied the allegation and contended that Mr. Romanek had kicked him. (Doc. No. 1, at 9.) Plaintiff did not witness the alleged incident but was later informed by Sergeant Browndorf that Mr. Romanek had kicked him while he was helping Mr. Romanek down from the attic of the house. (Doc. No. 1, at 9.) Mr. Romanek subsequently filed a complaint regarding the incident, and, after the district attorney determined that his complaint had merit, a warrant was issued for Sergeant Browndorf's arrest. (Doc. No. 1, at 9.) In addition, defendant Donnelly ordered defendant Shook to investigate plaintiff's knowledge of and involvement in the incident. (Doc. No. 1, at 9.) On February 10, 2012, defendant Shook questioned plaintiff as to why he did not report Sergeant Browndorf's assault on Mr. Romanek, and plaintiff replied that he had not witnessed the alleged assault, that he had no knowledge of Mr. Browndorf's alleged assault on Mr. Romanek, and that he had been told Mr. Romanek had assaulted Browndorf. (Doc. No. 1, at 10.) Nevertheless, plaintiff was terminated for "violating the oath of a law enforcement officer" by failing to report that Sergeant Browndorf had punched Mr. Romanek in the chest. (Doc. No. 1, at 10.)
Plaintiff filed a complaint in the United States District Court for the Eastern District of Pennsylvania on August 16, 2012,
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678, 129 S.Ct. 1937; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009) ("All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation omitted).
Defendants first move to dismiss plaintiff's complaint on the ground that plaintiff has failed to state a First Amendment claim for which relief can be granted. More specifically, defendants argue that the speech for which plaintiff claims he was disciplined and ultimately terminated was unprotected speech because plaintiff was speaking pursuant to his official duties
The guarantee of free speech afforded to citizens under the First Amendment presents a unique concern in the context of public employment. Garcetti v. Ceballos, 547 U.S. 410, 417-20, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (detailing the Court's balancing of First Amendment rights with government's interest as an employer). It is well settled that people do not "surrender all their First Amendment rights by reason of their [government] employment." Id. at 417, 126 S.Ct. 1951. Nonetheless, "[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations." Id.; Waters v. Churchill, 511 U.S. 661, 671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ("The government as employer indeed has far broader powers than does the government as sovereign."). In light of these competing concerns, the Supreme Court has created a three-part test for use in determining when speech is protected. Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.2006) (citing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951). "A public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made." Id.
The crux of defendants' motion to dismiss is that plaintiff was speaking as a government employee when he reported wrongdoing and corruption to his superiors and therefore his speech was not protected by the First Amendment. (Doc. No. 4, at 23-26.) The question of whether a civil servant is speaking as a citizen or a government employee is not a question that lends itself to categorical rules or bright line tests. Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). For instance, the Supreme Court has cautioned that an employee's First Amendment rights are not restricted merely because the employee speaks in the workplace. Id. at 420-21, 126 S.Ct. 1951 ("Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like any member of the general public, to hold that all speech within the office is automatically exposed to restriction."). Furthermore, speech is not unprotected simply because it concerns the subject matter of the employee's employment. Id. Neither are the contours of protected speech conditioned on an employee's formal job description. Id. at 424-25, 126 S.Ct. 1951 ("We reject, however, the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions."). Finally, as for internal reporting, speech is not unprotected merely because the employee complains internally through an official "chain of command." Dougherty v. School Dist. of Philadelphia, 12-CV-1001, 2013 WL 5525642, *10 (E.D.Pa. Oct. 4, 2013). Speech is unprotected, however, to the extent it was "pursuant to [an employee's] duties as a public employee," which has been interpreted to include speech "derived from special knowledge or experience acquired on the job." Id. at *9 (citing Foraker v. Chaffinch, 501 F.3d 231, 243 (3d Cir.2007)).
Squarely at issue in this case are the following statements made by plaintiff during
The Third Circuit has categorically found that testimony, even voluntary testimony, at a grand jury hearing is protected speech. Klein v. County of Bucks, 12-CV-4809, 2013 WL 1310877, *6 (E.D.Pa.
The court further concludes that plaintiff's reporting of corruption and wrongdoing also implicate the First Amendment because, based on the limited information before the court, it appears that these statements were made in plaintiff's capacity as a citizen, not as a government employee. Plaintiff was a deputy at the Bucks County Sheriffs Office, and the complaint alleges that he complained to his superiors about rigged auto-repair bids, false gun-training certifications, the office's use-of-force policy, corruption, and retaliation for his whistleblowing activities. While the parties have provided only limited information from which the court may infer the boundaries of plaintiff's job responsibilities, the reporting of corruption and wrongdoing does not appear to fall within the ambit of the responsibilities of a deputy sheriff. Furthermore, it is not dispositive that plaintiff learned about the alleged wrongdoing by nature of his position with the Sheriff's Department; indeed "courts have found that public officials are uniquely qualified to comment on issues of public concern, precisely because of the access to information their positions afford them." Dougherty v. School Dist. of Philadelphia, 12-CV-1001, 2013 WL 5525642, *10 (E.D.Pa. Oct. 4, 2013). After carefully examining the allegations of the complaint and considering the inferences that flow therefrom, the court has determined that plaintiff has stated a plausible First Amendment claim for which relief can be granted, one which discovery may further substantiate. Greco v. Senchak, 12-CV-2576, 2013 WL 4520847, *9 (M.D.Pa. Aug. 26, 2013) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); see also Fed.R.Civ.P. 8(a)(2) (requiring "short and plain statement of the claim showing that the pleader is entitled to relief").
To properly state a § 1983 claim, a plaintiff must allege the personal involvement of each and every defendant. Tilli v. Ford, 13-CV-4435, 2013 WL 5567701, *6 (E.D.Pa. Oct. 9, 2013) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). Therefore, § 1983 liability cannot be predicated on a theory of respondeat superior. Id. "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence which must be made with appropriate particularity." Id. Furthermore, "a supervisor may be liable [under § 1983] for her failure to train or supervise employees," so long as the failure amounts to "deliberate indifference to the rights of persons with whom the untrained employees came into contact." Bennett v. Washington, 11-CV-176, 2013 WL 3716520, *5 (E.D.Pa. July 15, 2013).
Defendants move for dismissal of plaintiff's First Amendment claim against the Bucks County Board of Commissioners, Robert G. Loughery, Diane M. Ellis-Marseglia, and Charles H. Martin, on the ground that plaintiff has failed to allege their personal involvement in any of the unconstitutional conduct set forth in the complaint. (Doc. No. 4, at 13.) In response, plaintiff argues, "Defendant Commissioners
Plaintiff mentions the Commissioners only twice in the complaint, and neither of these references suffices to state a claim under the federal pleadings standards. The complaint's first reference to the Commissioners appears in paragraph 51:
Paragraph 51 amounts to a threadbare recital of failure to train/supervise liability and does not suffice to meet the federal pleading standards for personal involvement under § 1983. As for paragraph 52, these allegations formulaically repeat the standard for supervisor "knowledge and acquiescence" liability and are therefore insufficient. Next, plaintiff alleges:
These allegations, while they do not suffer from the same defect as paragraphs 51 and 52, simply fail to allege liability on the part of Commissioner Ellis-Marseglia in the first place. In fact, they demonstrate rather compellingly that the Commissioner took plaintiff's complaint seriously and undertook an investigation into its veracity. Finally, it should be noted that plaintiff's general references to all defendants do not suffice to allege liability on the part of the County Commissioners. At one point, plaintiff states:
Such general allegations of personal involvement constitute conclusory allegations and do not withstand the federal pleading requirements. Wood v. Bethlehem Area Vocational Technical School, 12-CV-4624, 2013 WL 2983672, *11 (E.D.Pa. June 17, 2013).
Qualified immunity "shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Behrens v. Pelletier, 516 U.S. 299, 305, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). In order to overcome a qualified immunity defense, "the right allegedly violated must be established, not as a general proposition, but in a particularized sense so that the contours of the right are clear to a reasonable official." Reichle v. Howards, ___ U.S. ___, 132 S.Ct. 2088, 2094, 182 L.Ed.2d 985 (2012).
Here, defendants argue that plaintiff has failed to allege a constitutional right that has been violated and that plaintiff has failed to plead that defendants knew that the alleged conduct violated plaintiff's constitutional rights. (Doc. No. 4, at 20-23.) As to the first argument, the court has already determined that plaintiff has pled violations of his constitutional rights. Furthermore, defendants' arguments as to their actual knowledge of constitutional protections is inapposite. The qualified immunity inquiry focuses on whether the right is clearly established such that a "reasonable person" would have known that the person's actions violated the constitution or a statute. As such, defendants' subjective knowledge of the constitutionality of their conduct is completely irrelevant. Crawford-El v. Britton, 523 U.S. 574, 574-75, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (finding that qualified immunity test embraces objective standard and that defendant's subject intent is irrelevant).
Furthermore, the court believes that the Supreme Court's decision in Garcetti v. Ceballos as well as a long line of Third Circuit cases addressing the free speech rights of government employees have settled the issue of when a government employee's speech is entitled to First Amendment Protection. Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (speech is protected if employee spoke as citizen on matter of public concern); Baldassare v. State of N.J., 250 F.3d 188, 201 (3rd Cir.2001) ("Some years ago, we recognized that as of 1982 the law was clearly established that a
In Count II, plaintiff alleges that defendants violated the Pennsylvania Whistleblower Law, by, inter alia, demoting, harassing, and ultimately terminating him. (Doc. No. 1.) Pennsylvania's Whistleblower Law provides, "[n]o employer may discharge, threaten or otherwise discriminate or retaliate against an employee ... because the employee ... makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste." 43 P.S. § 1423(a) (1986). In order to make out a case of retaliatory termination, a plaintiff must plead: (1) wrongdoing and (2) a causal connection between the report of wrongdoing and adverse employment action. Golaschevsky v. Dep't of Envtl. Protection, 554 Pa. 157, 720 A.2d 757, 758-59 (1998). "Wrongdoing includes not only violations of statutes or regulations that are of the type that the employer is charged to enforce, but violations of any federal or state statute or regulation, other than violations that are of a merely technical or minimal nature." Id. (citing 43 P.S. § 1422 (1986)).
For the purpose of their motion to dismiss, defendants effectively concede that plaintiff has pled sufficient facts to establish "wrongdoing."
Plaintiff alleges that he reported wrongdoing on several occasions while he was employed at the Bucks County Sheriff's Office:
Plaintiff further alleges that, after he reported the foregoing acts of wrongdoing, defendants refused to pay plaintiff for overtime work, made plaintiff redo his daily logs for "incorrectly preparing" them, rejected plaintiff's request for a new vehicle "because he failed to take care of his present vehicle," "investigat[ed] Plaintiff's unit history" despite never doing so before, spied on his whereabouts "in the hope of catching Plaintiff doing something wrong," requested information about plaintiff and made "false accusations" about him, provided plaintiff with a problematic vehicle, deactivated plaintiff's gas and Mobile Data Terminal cards, rescinded an already approved vacation request, and assigned plaintiff and another officer to "holding cell duty," one of the least desirable jobs. (Doc. No. 1, at 8-11.) In addition, plaintiff claims defendants retaliated against him on numerous other occasions but offers no dates or specific factual allegations as to the nature of the retaliation. (Doc. No. 1, at 11.)
Plaintiff also alleges that he informed Sergeant White on one occasion that he was planning to file a retaliation complaint. (Doc. No. 1, at 11.) Almost immediately after this conversation, he was removed from the "warrant unit," was "assigned to a holding cell[,] and [lost his] right to choose [his] shift." (Doc. No. 1, at 11.) The culmination of defendants alleged retaliatory actions occurred on February 21, 2012, when plaintiff's employment with the Sheriff's Office was terminated. (Doc. No. 1, at 13.)
It is defendants' position that the allegations linking plaintiff's whistleblowing activities with the aforementioned adverse employment actions are either too temporally remote to infer retaliation or too
In analyzing whether the motive for an adverse employment action is retaliatory, courts in the Third Circuit have looked at two factors: "(1) the temporal proximity between the protected activity and the alleged discrimination and (2) the existence of a pattern of antagonism in the intervening period." Hussein v. UPMC Mercy Hosp., 466 Fed.Appx. 108, 112 (3d Cir.2012). In the absence of either of these factors, courts may consider the record as a whole to determine whether a retaliatory motive can be inferred. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir.2000). Indeed, case law in this circuit "has set forth no limits on what [courts] have been willing to consider." Id. With that in mind, it is worth emphasizing that "it is causation, not temporal proximity or evidence of antagonism, that is an element of plaintiff's prima facie case, and temporal proximity or antagonism merely provides an evidentiary basis from which an inference can be drawn." Id.
As for the first method of proving causation, plaintiff simply fails to create a plausible inference of retaliation by way of temporal proximity alone. The complaint indicates that plaintiff's last whistleblowing activity occurred on August 24, 2011, when he informed Sgt. White that he would be filing a retaliation claim with the human resources department. (Doc. No. 1, at 11.) This event occurred almost six months before plaintiff's termination, the only adverse employment action for which plaintiff seeks damages.
Neither does there exist a pattern of antagonism linking plaintiff's whistleblowing activities and his termination. The last date on which plaintiff alleges antagonistic conduct by defendants was August 24, 2011, the date that defendants Donnelly and Waltman removed plaintiff from the warrant unit for filing a retaliation complaint with the human resources department. As stated above, plaintiff's employment was terminated on February 21, 2012. Therefore, nearly six months passed during which time defendants engaged in no antagonistic conduct vis-a-vis plaintiff. This factual scenario can hardly be described as a pattern of antagonism.
Nevertheless, the court believes that the complaint, when viewed as a whole, contains
Plaintiff also claims that soon after the hearing defendant Waltman began accusing him of improperly preparing his daily log despite his having prepared it the same way for six years. (Doc. No. 1, at 9.) On March 3, 2011, plaintiff claims that the department ordered five new vehicles, but that he was not assigned to one because he "failed to take care of his present vehicle," something plaintiff vehemently denies. (Doc. No. 1, at 9.) The complaint also indicates that in July plaintiff's gas cards and Mobile Data Terminal (MDT) card were deactivated for no reason. (Doc. No. 1, at 10.) On August 2, 2011, defendant Waltman allegedly rescinded plaintiff's vacation request even though it had already been approved and on August 19, 2011, and assigned plaintiff and Deputy Klein to "holding cell duty, the least desirable duty," instead of patrol duty. (Doc. No. 1, at 10.) Defendant Waltman's stated reason was that there were no patrol cars available, but plaintiff claims that was a lie. (Doc. No. 1, at 10.)
Finally, plaintiff alleges that defendants began closely scrutinizing him after he testified at the February 14, 2011 hearing. For instance, defendant Waltman investigated plaintiff's unit history on multiple occasions after the hearing even though he had never checked his unit history before. (Doc. No. 1, at 9.) Furthermore, defendant Waltman "spied on Plaintiff's whereabouts" by tracking his location with the county GPS system, something he did not do to any other officers. (Doc. No. 1, at 9.) Finally, on June 16, 2011, defendant Waltman again requested plaintiff's unit history, along with Deputy Klein's, without giving a reason and accused him of making invalid transmissions.
These allegations, when viewed in the aggregate, demonstrate a plausible claim under the PWL. It is true that plaintiff did not suffer an adverse employment action or antagonistic activity for almost six months after his last whistleblowing activity. Nonetheless, temporal proximity is simply a proxy for more compelling evidence of retaliatory motive. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir.2000) ("it is important to emphasize that it is causation, not temporal proximity or evidence of antagonism, that is an element of plaintiff's prima facie case, and temporal proximity or antagonism merely provides an evidentiary basis from which an inference can be drawn."). The allegations in plaintiff's complaint evidence
In response to defendants' motion to dismiss Count III, plaintiff requests that the court allow him to withdraw his wrongful discharge claim without prejudice. (Doc. No. 5, at 3 n. 1.) The Federal Rules provide, "the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared." Fed.R.Civ.P. 41(a)(1)(A). A dismissal pursuant to this provisions is deemed to be without prejudice. Id. Because defendants have not yet filed an answer or a motion for summary judgment, the court will
In light of the foregoing, the court will
The district court dismissed Count III of the complaint, finding that the plaintiff's allegations, as laid out above, failed to meet the particularity requirements of the federal pleading standards.
