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DOURIS v. SCHWEIKER

October 23, 2002

JAMES GEORGE DOURIS, PLAINTIFF
V.
MARK S. SCHWEIKER, GOVERNOR, COMMONWEALTH OF PENNSYLVANIA; COUNTY OF BUCKS; BUCKS COUNTY DISTRICT ATTORNEY'S OFFICE; DIANE GIBBONS; MICHELLE A. HENRY; ANNE SCHEETZ DAMON; TIMOTHY RAUCH; ALL BUT DEFENDANT SCHWEIKER SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY. HELD JOINTLY AND SEVERALLY LIABLE DEFENDANTS



The opinion of the court was delivered by: Baylson, Judge

      MEMORANDUM

This civil rights case was commenced by plaintiff James George Douris ("Plaintiff" or "Douris") against the following defendants: Mark S. Schweiker, Governor of the Commonwealth of Pennsylvania ("Schweiker"); the County of Bucks ("Bucks County"); the Bucks County District Attorney's Office ("DA's Office"); Bucks County District Attorney Diane Gibbons, ("Gibbons"); Bucks County Assistant District Attorney Michelle A. Henry ("Henry"); Bucks County Assistant District Attorney Anne Scheetz Damon ("Damon"); and Timothy Rauch, a Bucks County police officer ("Rauch") (collectively "Defendants"). The Complaint contains six counts alleging violations and retaliation under the First Amendment and Americans with Disabilities Act ("ADA"), 42 U.S.C § 12101 et seq., 42 U.S.C. § 1983, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et seq. The Complaint also alleges violations of the Pennsylvania Constitution, malicious prosecution, abuse of process, conspiracy, and a constitutionally inadequate state appeals process. Defendants all have filed Motions to Dismiss. For the reasons which follow, Defendants' Motions will be granted in part and denied in part.

I. Background

In March 1998, Bucks County publicly posted a notice for a county park supervisor position. (Pl.'s Compl. ¶ 11). Plaintiff alleged that he was discriminated against when he went to the Bucks County Department of Human Resources Office to apply for the position because Bucks County allegedly failed to provide him an accommodation for his disability. Id. at ¶ 12. Plaintiff later filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Resources Commission ("PHRC"). Id.

On May 6, 1999, Plaintiff returned to the Bucks County Human Resources Office stating that he wanted to apply for a position. Commonwealth v. Douris, 766 A.2d 1276, 1277-78 (Pa. 2001). The receptionist handed him an application and told him that he was required to fill it out in the office. Id. at 1278. He then took the application, walked to the elevator, and when the receptionist tried to stop him, he pushed her against the wall, injuring her arm and neck. Id.

Douris was charged with harassment and prosecuted by the Bucks County DA's Office, represented by Gibbons and Henry. (Pl.'s Compl. ¶ 14). After a state district court justice convicted Douris of harassment, he appealed to the Court of Common Pleas, where the matter was heard de novo, the receptionist and a co-worker who witnessed the incident testified, and Douris was again found guilty of harassment. Douris, 766 A.2d at 1277. Douris alleges that in May 2000, he discovered that Defendants Bucks County, the DA's Office, Gibbons, and Henry withheld exculpatory information from him during his harassment prosecution in Bucks County. (Pl.'s Compl. ¶ 16). Douris appealed to the Superior Court, and his conviction was affirmed. Douris, 766 A.2d at 1277. He also appealed the denial of his motion for a new trial and post-conviction relief, which the Superior Court affirmed. Commonwealth v. Douris, No. 694 EDA 2001, slip op. (Pa.Super.Ct. Nov. 5, 2001). The Pennsylvania Supreme Court denied Plaintiff's petition for allowance of appeal. Commonwealth v. Douris, No. 986 MAL 2001, slip op. (Pa. Mar. 27, 2002).

Plaintiff's prior federal lawsuit resulted in a dismissal against two defendants, Douris v. County of Bucks, C.A. No. 99-3357, 2001 U.S. Dist. LEXIS 9282, at *43 (E.D.Pa. 2001 July 3, 2001); Douris v. Brobst, C.A. No. 99-3357, 2000 U.S. Dist. LEXIS 1579, at *1 (E.D.Pa. Feb. 14, 2000), and a jury verdict and entry of judgment in favor of the remaining defendant, Bucks County, and against Plaintiff. Douris v. County of Bucks, No. 99-3357, slip op. (E.D.Pa. Aug. 2, 2001).

At some point in 2001, Douris was charged with impersonating a police officer, making terrorist threats, disorderly conduct, harassment, and duty to give information and render aid. (Pl.'s Compl. ¶ 18). Douris alleges that during the prosecution on these charges, Defendants Bucks County, the DA's Office, Gibbons, Damon, and Rauch destroyed and failed to provide exculpatory evidence to Douris. Id. at ¶ 19. Douris was not convicted of any of these charges. Id. at ¶ 20.

Plaintiff's Complaint contains six counts. Counts I-V are brought against all Defendants, in their individual and official capacities, except Defendant Schweiker. Count VI is brought only against Defendant Schweiker. The Counts follow:

1. Retaliation in violation of the First Amendment and the ADA (Count I);

2. Violation of 42 U.S.C. § 1983 (Count II);

3. Retaliation under the Pennsylvania Human Relations Act ("PHRA") (Count III);

4. Malicious prosecution, abuse of criminal process, and conspiracy (Count IV);

5. Violation of the Pennsylvania Constitution and conspiracy (Count V); and

6. Unconstitutionally inadequate state appeals procedure in violation of 42 U.S.C. § 1983 (Count VI).

II. Legal Standard and Jurisdiction

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

This Court has jurisdiction pursuant to 28 U.S.C. § 1331, and venue is appropriate under 28 U.S.C. § 1391(b).

III. Analysis

A. Count I: Retaliation Under the ADA, First Amendment, and 42 U.S.C. § 1983
1. ADA Claim: Defendants Bucks County, DA's Office, Gibbons, Henry, Damon, and Rauch

a. Individual Capacity

Plaintiff brings a retaliation claim under the ADA against Defendants Gibbons, Henry, Damon, and Rauch in their individual capacities. The United States Supreme Court has not addressed the issue of individual liability under the ADA. The Third Circuit recently determined that individual defendants may be liable under Title III of the ADA if they own, lease, or operate a place of public accommodation. Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002) (per curiam). In Thiel, the individual defendants did not operate the college and could not be held individually liable under Title III of the ADA. Id. at 189 ("This result comports with decisions of other courts of appeals holding that individuals are not liable under Titles I and II of the ADA, which prohibit discrimination by employers and public entities respectively" (citing Garcia v. SUNY Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir. 1999); and quoting Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000) ("the ADA addresses its rules to employers, places of public accommodation, and other organizations, not to the employees or managers of those organizations")).

Retaliation under the ADA*fn1, the claim at issue, falls under Title V, which the Third Circuit has not addressed as to individual liability. However, in considering the issue of individual liability under Title VII, the Third Circuit concluded that "Congress did not intend to hold individual employees liable under Title VII." Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996) (en banc), cert. denied, 521 U.S. 1129, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997)). The Third Circuit also has stated that "the ADA, ADEA, and Title VII all serve the same purpose — to prohibit discrimination in employment against members of certain classes. Therefore, it follows that the methods and manner of proof under one statute should inform the standards under the others as well." Newman v. GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 157 (3d Cir. 1995).

The "consensus view among district courts in this circuit is that individual liability cannot be imposed under the ADA." Douris v. County of Bucks, 2001 U.S. Dist. LEXIS 9282, at *15 (citations omitted); see, e.g., Schumacher v. Souderton Area School District, C.A. No. 99-1515, 2000 WL 72047, at *3 (E.D.Pa. Jan. 21, 2000); Metzgar v. Lehigh Valley Housing Authority, C.A. No. 98-3304, 1999 WL 310639, at *4 (E.D.Pa. July 27, 1999); Fullman v. Philadelphia Int'l Airport, 49 F. Supp.2d 434, 441 (E.D.Pa. 1999); Brannaka v. Bergey's, Inc., C.A. No. 97-6921, 1998 WL 195660, at *1-2 (E.D.Pa. Mar. 30, 1998). "`Courts of Appeals that have directly addressed the issue of individual liability under the ADA have concluded that no such liability exists.'" Douris v. Brobst, 2000 U.S. Dist. LEXIS 1579, at *7 (quoting Meara v. Bennett, 27 F. Supp.2d 288, 290 (D.Mass. 1998) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 179-82 (7th Cir. 1995)).

In light of these decisions, Plaintiff's ADA retaliation claim against Defendants Gibbons, Henry, Damon, and Rauch in their individual capacities fails as a matter of law and will be dismissed.

b. Official Capacity

The Court now considers Plaintiff's ADA retaliation claim against Defendants Bucks County and DA's Office and Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities.

Plaintiff asserts that Defendants filed and/or prosecuted criminal and traffic charges against him in retaliation for his opposition to Bucks County's "illegal practice to discriminate against persons with a disabled [sic] by failing to provide the legally required accessibility to their facilities, and knew or should have know [sic] because Plaintiff has filed discrimination charges against the Defendants with the Department of Justice and PA. Human Relations Commission." (Pl.'s Compl. ¶ 22).

Defendants contend that to bring suit under the ADA, a plaintiff must exhaust his administrative remedies before the EEOC or the PHRC. See Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir. 1999). Although Plaintiff filed complaints with the EEOC and the PHRC regarding his belief that Bucks County failed to provide him an accommodation, Pl.'s Compl. ¶ 12, Plaintiff neither alleges nor is there any indication that he filed an ADA retaliation claim with either agency. When a retaliation claim is not specifically presented to the EEOC, the test for whether that claim can be presented in district court is "`whether the acts alleged in the subsequent . . . suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.'" Douris v. Brobst, 2000 U.S. Dist. LEXIS 1579, at *9 (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)). "The legal analysis for whether a judicial complaint is within the scope of an earlier administrative charge or a reasonable investigation therefrom turns on whether `there is a close nexus between the facts supporting each claim or whether additional charges made in the judicial complaint may fairly be considered explanations of the original charge or growing out of it.'" Ivory v. Radio One, Inc., C.A. No. 01-5708, 2002 WL 501489, at *2 (E.D.Pa. Apr. 3, 2001) (quoting Fakete v. Aetna, Inc., 152 F. Supp.2d 722, 732 (E.D.Pa. 2001)).

Although the EEOC was on notice of Plaintiff's complaints against Bucks County for allegedly failing to provide him an accommodation, the EEOC would not have been expected to initiate a retaliation investigation based on Plaintiff's charge. See id. at *9-10 (citing Fieni v. Pocopson Home, C.A. No. 96-5343, 1997 WL 220280, at *5-6 (E.D.Pa. Apr. 29, 1997) (dismissing retaliation claim where not mentioned in EEOC filing)). Therefore, Plaintiff's ADA retaliation claim against Defendants Bucks County and DA's Office, and against Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities, will be dismissed.

2. First Amendment and ยง ...


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