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JAKOMAS v. MCFALLS

October 31, 2002

JOHN J. JAKOMAS, PLAINTIFF,
V.
THE HONORABLE H. PATRICK MCFALLS, JR., AND THE COUNTY OF ALLEGHENY, PENNSYLVANIA, DEFENDANTS. JAMES JOSEPH AND BARBARA JOSEPH, PLAINTIFFS, V. THE HONORABLE H. PATRICK MCFALLS, JR., AND THE COUNTY OF ALLEGHENY, PENNSYLVANIA, DEFENDANTS.



The opinion of the court was delivered by: Maurice B. Cohill, Senior United States District Judge

      OPINION

Plaintiffs in this action are the former tipstaff, law clerk, and secretary for Judge Patrick H. McFalls, Jr., of the Court of Common Pleas of Allegheny County, Pennsylvania. Judge McFalls discharged them in mid-November of 2001. In two separate but related lawsuits, they have filed claims against Judge McFalls in both his official and individual capacities, and against Allegheny County ("the County").*fn1 The Amended Complaints allege that Judge McFalls and Allegheny County have violated 42 U.S.C. § 1983 and the Pennsylvania Whistleblower Law, 43 Pa.Const.Stat.Ann. § 1421 et seq.

Before the Court are motions to dismiss filed by both of the defendants in this matter. We have had the benefit of oral argument on these motions, and have thoroughly considered the submissions of the parties as well as the applicable law. For the reasons set forth below, we will grant Judge McFalls' motions to dismiss the claims brought against him in his individual capacity in part, and deny them in part. We will dismiss the claims brought under the Pennsylvania Whistleblower Law, but will deny his motions to dismiss the § 1983 claims. Judge McFalls' motions to dismiss the claims brought against him in his official capacity will be granted. We will also grant Allegheny County's motions to dismiss in their entirety.

Background

On a motion to dismiss, we accept facts as alleged in the Amended Complaints (Doc. 14, Doc. 12). Since the Amended Complaints include allegations specific to the individual plaintiffs, we turn first to the facts alleged by Barbara Joseph and her husband, James Joseph. Defendant H. Patrick McFalls, Jr., was a Judge of the Court of Common Pleas of Allegheny County, Pennsylvania. Plaintiff Barbara Joseph became Judge McFalls' legal secretary on October 7, 1996. Plaintiff James Joseph became the Judge's judicial law clerk on August 14, 1998.

For over three years, plaintiffs had observed that the Judge was addicted to alcohol and had been treated for alcoholism. They also observed that this abuse of alcohol was affecting the Judge's ability to perform his duties. During October and November of 2001, the plaintiffs observed behavior indicating that Judge McFalls was under the influence of alcohol and/or drugs while performing his official duties.

Judge McFalls was scheduled to return from a vacation in the Cayman Islands on October 22, 2001, to begin three days of pretrial conciliations. When he failed to return, his staff was forced to cancel the conciliations. Judge McFalls had also scheduled arguments for his General Argument List for October 25, 2001. Due to his abuse of alcohol, he instructed Barbara Joseph to reschedule these and to tell the lawyers that he had developed an illness in the islands.

The defendant returned on the evening of October 29, 2001, and spent the night at a hotel near the airport because he was inebriated. The next day he arrived late to court, dressed in vacation clothes and sandals and still under the influence of alcohol. He was scheduled to hear argument in two cases that day, and he was also conducting a jury trial. During the course of the jury trial, a bottle of vodka dropped out of his pocket in front of people.

On October 31, 2001, Judge McFalls instructed Barbara Joseph to cancel his December bench trials and to alert the court's Calendar Control office that he would be unavailable for arguments in December or January. He also instructed his secretary to invite several of his acquaintances to join him as guests in the Cayman Islands for Thanksgiving, and to enter onto his calendar a series of weeks from November through April when he planned to return to the Cayman Islands. Defendant also requested that the plaintiffs help him "get rid" of his jury trial because he planned to return to the Cayman Islands on Thursday November 8 and return on Monday evening, November 12.

From October 31 until November 8, 2001, the Josephs observed that the Judge was conducting court business while under the influence of either alcohol and/or drugs. Judge McFalls was assigned to conduct a jury trial beginning on November 5, 2001. According to the Amended Complaints, the jury trial was delayed in substantial part because Judge McFalls would arrive late in the morning and was generally under the influence of alcohol.

Judge McFalls instructed Barbara Joseph to cancel argument on a motion for summary judgment which had been previously postponed.

On November 9, 2001, Barbara Joseph confronted Judge McFalls about his use of alcohol. According to the Amended Complaint, the Judge replied "Are you threatening me?"

Judge James and President Judge Robert Kelly scheduled a meeting with Judge McFalls to be held upon his return from the Cayman Islands. Judge James told the plaintiffs that he would confront Judge McFalls and give him the opportunity to go to alcohol rehabilitation. If he refused, then Judge James would report the conduct to the Supreme Court.

On November 13, 2001, the plaintiffs telephoned Judge McFalls in the Cayman Islands, and told him that Judge James wanted to see him as soon as he returned. James Joseph told the Judge that he should be prepared because the meeting was called to discuss his drinking behavior.

On the morning of November 14, 2001, an Allegheny County Deputy Sheriff handed Barbara Joseph two envelopes — one for herself and one for her husband James. The letters, dated November 13, 2001, stated: "Effective immediately, you are discharged from your position."

The deputy sheriff then escorted Barbara Joseph from the building, telling her that he had been "instructed to deposit [her] on the sidewalk outside the building." According to the Amended Complaint, Judge McFalls later called James Joseph and told him: "I had to carpet bomb you, because you wanted to send me to rehabilitation."

John Jakomas' Amended Complaint includes the following additional allegations: Plaintiff John J. Jakomas became Judge McFalls' courtroom deputy, or tipstaff, on March 2, 1998.

During October and November, 2001, Jakomas observed a pattern of behavior indicating that Judge McFalls was under the influence of alcohol while performing his official duties and while driving. On the night of October 5, 2001, Judge McFalls called Jakomas at his home from his car, and told the tipstaff he was driving to College Park, Maryland, and that he was drinking and driving. Judge McFalls' abuse of alcohol affected his ability to perform his duties. He failed to return from a vacation in the Cayman Islands and missed his entire General Argument list for October 25, 2001.

Due to his abuse of alcohol, Judge McFalls also missed his assigned settlement conferences on October 22, 23, and 24, 2001. Jakomas handled some of the settlement conferences himself, and completed the conciliation reports.

Judge McFalls was assigned to conduct a jury trial on November 5, 2001. During that trial, the Judge was rarely available because of his abuse of alcohol and his planning for a return trip to the Cayman Islands as soon as the trial could be completed. On November 8, 2001, during the trial, Jakomas had a conversation with Judge Robert Gallo, of the Civil Division of the Court of Common Pleas, concerning Judge McFalls' drunkenness.

On November 9, 2001, Jakomas reported McFalls' conduct to Clair Beckwith, the Court of Common Pleas Calendar Control Supervisor. Jakomas told Beckwith that the Judge was conducting judicial business and trials while under the influence of alcohol. Beckwith relayed Jakomas' comments to Judge Joseph James, Administrative Judge of the Civil Division of the Court of Common Pleas of Allegheny County. Jakomas spoke with Judge James on November 13, 2001. Judge James said he was aware that Judge McFalls was abusing alcohol, and that he would not be permitted to try cases or sign orders. Judge James told Jakomas to alert him when Judge McFalls arrived, but not to be around the following morning to avoid any problems when Judge James confronted Judge McFalls.

On November 13, 2001, Judge McFalls left a voice mail message for Jakomas informing him that there was no reason for him to come into work the next morning. The next day, Judge McFalls fired Jakomas by letter. The letter was given to Judge James' staff and mailed to the tipstaff. It said: "Effective immediately, you are discharged from your position as my Court tipstaff. Please remove all your personal belongings as soon as possible." The letter was also sent to the President Judge of the Court of Common Pleas, to Judge James, and to the Court Administrator.

Judge McFalls later said that he had to "carpet bomb" his staff on November 14 because they were trying to get him into rehabilitation.

We take judicial notice of the fact that the Judicial Conduct Board ("the Board") filed formal charges against Judge McFalls with the Court of Judicial Discipline.*fn2 Trial was set for September 25, 2002. Prior to trial, the parties reached an agreement whereby Judge McFalls resigned his judicial office as of September 16, 2002, and was disqualified from future service in any judicial capacity in the Commonwealth of Pennsylvania. (Letter to the Court from A. Taylor Williams, Legal Counsel to the Court Administrator of Pennsylvania, dated September 23, 2002). As part of the agreement, the Board withdrew its complaints against Judge McFalls. (Motion to Withdraw Complaints dated September 23, 2002).

Legal Standard

Fed.R.Civ.P. 12(b)(6) provides that a court may dismiss a complaint "for failure to state a claim upon which relief may be granted." Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). In considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint, and must draw all reasonable inferences in favor of the plaintiff. Doe v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). Dismissal of claims under Rule 12(b)(6) is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim upon which relief may be granted. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). Where the Eleventh Amendment to the United States Constitution is raised as a jurisdictional bar to the court's subject matter jurisdiction, these objections must be considered as a motion to dismiss under Fed.R.Civ.P. 12(b)(1). Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir. 1996).

Analysis

A. Defendant McFalls' Motion to Dismiss Counts I and III in his Personal Capacity (CA 01-2294 Doc. 10, CA 01-2329 Doc. 9)

42 U.S.C. § 1983

Plaintiffs assert that Judge McFalls fired them because they reported his abuse of alcohol. They contend that this speech was protected by the First Amendment, and that their discharge violated § 1983. Judge McFalls argues that these claims must be dismissed because the plaintiffs' speech was not protected.

A prima facie case of retaliation for engaging in speech protected by the First Amendment requires a showing that (1) the plaintiff engaged in constitutionally protected speech; (2) the plaintiff was subjected to adverse action or deprived of some benefit; and (3) the protected speech was a "substantial" or "motivating factor" in the adverse action. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977). To determine the first element, whether an employee's speech is protected by the First Amendment, courts use the balancing test set out in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) to weigh the interests of the government employer and the public employee. Under Pickering, the court must first decide whether the speech at issue addressed a matter of public concern. If so, the court must weigh the employee's interest in speaking out against the government's interest in promoting the efficiency of the services it performs through its employees. Pickering, 391 U.S. at 568. The employee bears the burden of proving that his speech was protected under the particular circumstances. Connick v. Myers, 461 U.S. 138, 148, n. 7 & 150, n. 10 (1983). Whether the speech at issue is protected by the First Amendment is a question of law for the court.*fn3

The defendant contends that we should dismiss these claims under Sprague v. Fitzpatrick, 546 F.2d 560 (3d Cir. 1976) and Roseman v. Indiana University, 520 F.2d 1364 (3d Cir. 1975), cases where the Court of Appeals considered whether the nature of the employment relationship was seriously undermined by the employee's comments, and whether the employee's speech was entitled to First Amendment protection. We agree with the defendant that the relationship between a judge and his staff is highly confidential. We recognize that, under Pickering, the nature of the working relationship, whether personal loyalty and confidentiality were necessary to that relationship, and whether the employee's comments were disruptive or had the potential for disruption, are all highly relevant to deciding whether an employee's speech is protected. In addition, public employees, such as the plaintiffs in this case, have a limited right under the First Amendment to speak out on matters of pubic concern. Connick, 461 U.S. at 146. It is well settled that although "a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of public employment[,]" nevertheless the government has a broader authority to regulate the speech of its employees than it has over private citizens. Id. at 140.

However, we conclude that the factors we must balance under Pickering are not sufficiently developed at this stage in the litigation for us to make that determination. The Amended Complaints do not establish facts that would allow us to balance the employer's interests. Therefore we find that the plaintiffs have alleged the appropriate facts to survive a motion to dismiss, and we ...


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