affected Plaintiff's property right in his employment," Plaintiff's Brief in Opposition to Motion to Dismiss, at 18, should be dismissed. They argue first that no action taken by Defendants adversely affected Plaintiff's property right. In particular, Defendants allege that Plaintiff had no property interest in employment as an assistant supervisor for the LCB. Reply Brief, at 1. Plaintiff responds by arguing that 1) his suspension and 2) his transfer to Punxsutawney, were each deprivations of his property rights.
Property interests arise out of state, and not federal, law. Board of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
Therefore, any interest Plaintiff may have with respect to continued employment with the LCB must be found in Pennsylvania law. Under Pennsylvania statutory law, an employee of the LCB may be removed or suspended only for "just cause." 71 P.S. §§ 741.803 and 741.807. A "just cause" statute has been interpreted by federal courts sitting in Pennsylvania, and elsewhere, to "imply a right not to suffer from governmental action without due process guarantees." Bagby v. Beal, 439 F. Supp. 1257, 1260 (M.D. Pa. 1977). See also Thurston v. Dekle, 531 F.2d 1264 (5th Cir. 1976); Riddick v. Cuyler, 523 F. Supp. 258 (E.D. Pa. 1981). We, therefore, agree with Plaintiff that he had a right not to be suspended or removed, except for "just cause."
Additionally, 71 P.S. § 741.803 provides that any disciplinary suspension "shall not exceed in the aggregate thirty working days in one calendar year," and that a copy of a report as to the reasons for suspension shall be given to the suspended employee. 71 P.S. § 741.803. These provisions clearly and unequivocally grant an employee additional rights.
Defendants' argument that they are entitled to qualified immunity because the recent Pennsylvania Supreme Court decision in Sterling v. Commomwealth, 504 Pa. 7, 470 A.2d 101 (1983), creates an ambiguity as to the property rights created by Pennsylvania, is without merit. In that decision, the Supreme Court observed that no per se property interest in public employment exists, but that the legislature must define such rights. Here, the legislature has unambiguously spoken through statutes and has affirmatively set forth certain rights possessed by Pennsylvania government employees. The clarity of the sections at issue are not in dispute and we do not believe that the Defendants could have, based upon the Sterling decision, questioned the sections' applicability. They are not, therefore, entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727.
Our determination that the Plaintiff possessed certain property interests under Pennsylvania law does not completely resolve the issue. The Defendants have also argued that, even if Plaintiff did possess property rights, none were improperly taken through the Defendants' conduct. To resolve this issue, we must examine each of the incidents in which Plaintiff has alleged that his property interests were infringed upon by Defendants.
Plaintiff's suspension lasted approximately two months. At its end, Plaintiff was reinstated with full back pay. Defendants argue that this payment of wages remedied any deprivation caused by the suspension. We cannot agree. An initial issue raised by Defendant is whether the suspension was for good cause. If it was, and a suspension during the pendency of an investigation is allowed if good cause exists to justify an investigation, Jacobs v. Dept. of Public Welfare, 32 Pa. Commw. Ct. 101, 104, 377 A.2d 1289, 1291 (1977), then § 741.803 is applicable. If the suspension was not for good cause, but occurred for the purpose of disciplining Plaintiff for exercising his Fifth Amendment rights, then a constitutional violation has occurred.
Even if the suspension was for good cause, however, Plaintiff's claim for violations of due process may survive. Plaintiff states that he was never notified of the reason for his suspension. This is in clear violation of the procedural requirement of § 741.803. Additionally, Plaintiff was suspended for more than thirty consecutive days in one year, again in clear violation of § 741.803. We believe that the thirty-day limitation provided Plaintiff with the legitimate expectation that he would not be suspended for a longer length of time. Such an expectation was intruded upon by Defendants apparently without due process of any type. The lack of notice clearly violates any contemporary standards with respect to due process requirements.
These violations of state law, if proven, amount to a taking of a property interest without due process of law. The subsequent payment of back wages cannot negate what had already occurred. The violation had already taken place and an appropriate remedy may or may not be limited to back wages. Regardless, we do not believe Plaintiff's claim under Count II, for his suspension, should be dismissed.
The Plaintiff's second claim with respect to a property deprivation without due process of law concerns Plaintiff's transfer away from the Philadelphia District. The Defendants argue that this claim should be dismissed since Plaintiff possessed no property interest in remaining in the Philadelphia District.
On this issue, we must agree with Defendants. Plaintiff has alleged no property interest in remaining with the Philadelphia District. As stated above, a property interest must be created by the state, and not by the federal courts. Here, Plaintiff has offered no evidence that he had a right to work solely in the Philadelphia District.
Absent such a right, no deprivation could have occurred when Plaintiff was transferred, at the same pay level, to Allentown, and then to Punxsutawney. Consequently, no due process was required prior to the transfer. This claim must be dismissed.
D. Count III Liberty Interest
Plaintiff has also alleged a deprivation of a liberty interest under the Fourteenth Amendment. He states that the Defendants improperly inflicted a stigma upon him and impugned his honesty, integrity, and competence. Paragraph 22 of Plaintiff's Complaint. He further alleges that this stigma, combined with his being disciplined, served to deprive him of a protected liberty interest. Plaintiff also argues that as a consequence of the Defendants' conduct, Plaintiff is unable to obtain comparable employment.
On this issue, we cannot agree with the Plaintiff. Although Plaintiff may have been disciplined through suspension, his reinstatement with full back pay served to restore any possible "change in legal status." This reinstatement provided Plaintiff with a full remedy for any possible deprivation alleged under this count. As such, we find that no protected liberty interest of Plaintiff resulted from his suspension.
Additionally, the transfer of Plaintiff to Punxsutawney, even if it were disciplinary in nature, does not constitute a change in legal status. Hughes v. Witmer, 714 F.2d 1407, 1414 (8th Cir. 1983). We have stated above that Plaintiff enjoyed no protected right to employment in the Philadelphia District or in any neighboring District. Absent such a right, a transfer without pay or rank reduction, does not constitute a change in legal status, or a loss of government employment. Absent such harm, Plaintiff cannot recover under this claim. Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).
We, therefore, find that Plaintiff cannot recover under his claim for violation of a liberty interest without due process of law. This claim is clearly inappropriate to Plaintiff's cause of action. The Defendants motion to dismiss this claim will be granted.
E. Count IV: Plaintiff's Pendent Defamation Claim
In Count IV of his Complaint, Plaintiff alleges that the Defendants defamed him by releasing false and defamatory information about Plaintiff. The Defendants now argue that this claim is brought under state law, and that it is actually directed against the Commonwealth. If so, the claim must be dismissed pursuant to the recent Supreme Court decision in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984).
In Pennhurst, the Supreme Court ruled that a Plaintiff could not sue a state in federal court to enforce a state law. While that particular case involved injunctive relief, it is clear that a Plaintiff cannot obtain damages against a state in federal court, under either a federal or state claim. See Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1971). Additionally, the Eleventh Amendment further bars any actions in federal court directly against a state for injunctive relief. Cory v. White, 457 U.S. 85, 72 L. Ed. 2d 694, 102 S. Ct. 2325 (1982).
Historically, however, Plaintiffs have been able to obtain injunctive relief against states by suing under a fiction first recognized in Ex parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). Such actions are brought against a state official to enforce a federal constitutional law. Edelman, at 664. Even then, however, when the relief sought indicates that "the state is the real, substantial party in interest," Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 89 L. Ed. 389, 65 S. Ct. 347 (1945), then the Eleventh Amendment bars even that action. Pennhurst, 104 S. Ct. at ; Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Hawaii v. Gordon, 373 U.S. 57, 58, 10 L. Ed. 2d 191, 83 S. Ct. 1052 (1963) (per curiam); Dugan v. Rank, 372 U.S. 609, 10 L. Ed. 2d 15, 83 S. Ct. 999 (1963). Pennhurst has clarified this approach by concluding that "a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when - as here - the relief sought and ordered has an impact directly on the State itself." Id., 104 S. Ct. at 917.
Here, Defendants argue that Pennhurst is specifically applicable to this case since the Plaintiff, in his Complaint, has alleged that the Defendants acted within their official capacity. Any relief would have to come from the state. Plaintiff disagrees and argues that he is suing the Defendants only in their individual capacity. Hence, the state is not involved. On this point, we agree with Plaintiff. His Complaint, while ambiguous, can be interpreted to allege claims against the Defendants in both their individual and official capacities. As such, we further believe that a defamation claim against the Defendants in their official capacity would be equivalent to a suit against the state under state law. That claim must, pursuant to Pennhurst, be dismissed. On the other hand, allegations that the Defendants acted in their individual capacities does not involve the state. That claim seeks no damages or injunctive relief from the state. It is merely a pendent defamation claim against three individuals who happen to be employed by the state. We will allow Plaintiff to proceed on this claim against the Defendants only to the degree it alleges conduct committed in their individual capacities.
F. Eleventh Amendment Immunity of Defendants
As stated above, individuals may not be sued for damages in federal court when the real party in interest is the state. Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974). Similarly, "an award of retroactive monetary damages or back pay against the officials in their official capacity is barred because it necessarily would be paid from the state treasury." Helfrich v. Commonwealth of Pennsylvania, 660 F.2d 88, 90 (3d Cir. 1981) (emphasis in original text). See also Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974); Skehan v. Board of Trustees, 590 F.2d 470, 485-91 (3d Cir. 1978), cert. denied, 444 U.S. 832, 62 L. Ed. 2d 41, 100 S. Ct. 61 (1979); West v. Keve, 571 F.2d 158 (3d Cir. 1978). Consequently, any claim presented here for monetary relief against the Defendants in their official capacity must and will be dismissed.
The Plaintiff, however, argues that his claims are against the Defendants in their individual capacities.
The distinction between individual and official capacities is often ambiguous or blurred. In Pennhurst, the Supreme Court offered a lengthy discussion of different approaches to the difficulty of distinguishing the two concepts. What has apparently emerged is the view that an individual state official may be sued for damages if the relief would not be paid from the state treasury; if the official acted beyond the sphere of his official responsibilities, if the official violated federal law; and, if he did not act in good faith.
Here, the Plaintiff alleges that the Defendants acted improperly in suspending and then transferring Plaintiff. While this appears to the court to be acts which occurred within the official duties of the Defendants, we can perceive of evidence and testimony being admitted to show that the Defendants acted in bad faith and beyond their authority.
In particular, the Defendants' knowledge of the law, as set forth in case and statutory form, is relevant. Pennhurst made clear the view that an individual is not personally liable for a wrong decision, if the official was empowered to make the decision. Pennhurst, 104 S. Ct. at 918, n.22. However, when that official is clearly aware that his decision is wrong, but proceeds to so decide, he cannot then hide behind his official status. While it is incorrect to assert that "an officer given the power to make decisions is only given the power to make correct decisions," Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 695, 93 L. Ed. 1628, 69 S. Ct. 1457 (1949), it is also incorrect to assert that an official with the power to decide is free to consciously disregard the correct decision. Plaintiff is, here, free to submit evidence that Defendants were informed of the law prior to their decision-making, and that they then proceeded to ignore the law. If Plaintiff does indeed prove such facts, he will have shown that the Defendants acted ultra vires and in their individual, as opposed to official capacities. Dismissal of such a claim is not appropriate at this time.
G. Pennsylvania's Statute of Limitations
The Defendants have raised the defense of the applicable statute of limitations. They argue that Pennsylvania's law providing a six-month statute of limitations for actions against public officials is applicable under 42 Pa. C.S. § 5522(b). However, the recent Third Circuit decisions in Fitzgerald v. Larson, 741 F.2d 32 (3d Cir. 1984), and Knoll v. Springfield Township School District, 699 F.2d 137 (3d Cir. 1983) make it clear that the applicable statute of limitations here is Pennsylvania's omnibus six-year statute for actions brought against public officials under 42 U.S.C. § 1983. 42 Pa. C.S. § 5527. Since Plaintiff filed his action well within this statute, we will not dismiss on this ground.
To summarize, we believe that Plaintiff should be allowed to proceed and attempt to prove most of his allegations. He may seek damages against the Defendants for conduct occurring within their individual capacities. He may further seek injunctive relief for conduct committed by the Defendants in their official capacities. However, all claims for damages caused by conduct within the Defendants' official capacities will be dismissed, as will Plaintiff's Count III, asserting a liberty interest deprivation. Additionally, Plaintiff's claim under Count II for a property interest deprivation by his transfer must be dismissed since he possessed no property interest in any particular district. The remainder of Defendants' motion to dismiss will, however, be denied.
An appropriate order will be entered.
AND NOW, this 17th day of October, 1984, in accordance with the accompanying Memorandum, IT IS ORDERED that:
1. All claims for damages against the Defendants for conduct occurring within their official capacities be and are dismissed.
2. Count II be and is dismissed.
3. The portion of Count II concerning a violation of the property interest part of the Due Process clause of the Fourteenth Amendment, as a result of Plaintiff's transfer, be and is dismissed.
4. The remainder of Defendants' Motion to Dismiss be and is denied.