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EVANCHO v. KWAIT

September 16, 2005.

KAREN EVANCHO, Plaintiff
v.
DAVID KWAIT; ROBERT VONSCIO; JAMES CAGGIANO; LETTY KRESS; LEWIS GENTILE; MARK SERGE; and THOMAS MAIOLI, Defendants.



The opinion of the court was delivered by: YVETTE KANE, District Judge

MEMORANDUM AND ORDER

Before the Court is Defendants' motion to dismiss Plaintiff's complaint. (Doc. No. 6.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted, and Plaintiff will be granted leave to amend.

I. BACKGROUND

  Plaintiff initiated this civil action by a complaint filed January 17, 2005. (Doc. No. 1.) In the complaint, Plaintiff names as Defendants the following employees and former employees of the Office of Attorney General for the Commonwealth of Pennsylvania ("OAG"): Deputy Attorney General David Kwait; Robert Vonscio, Plaintiff's former immediate supervisor; Eastern Zone Commander James Caggiano; Attorney Letty Kress; Western Zone Commander Lewis Gentile; Deputy Attorney General Mark Serge; and Thomas Maioli, Plaintiff's former supervisor. The following facts are taken from Plaintiffs complaint and are accepted as true for purposes of the instant motion. See Fed.R.Civ.P. 12(b)(6); United States Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). Plaintiff was employed as a Bureau of Narcotics Investigation and Drug Control Officer and as a supervisor for the OAG from approximately 1984 until 1997. (Doc. No. 1 at ¶ 15.) In 1997, Plaintiff was transferred to the position of custodian for the regional evidence room located in Greensburg, Pennsylvania. (Id. at ¶ 16.) Plaintiff discovered that money and drugs had been stolen from the evidence room, and the thefts appeared to be inside jobs. (Id. at ¶ 17.) Plaintiff claims that she requested assistance from Defendants Gentile and Vonscio but they refused to respond to Plaintiff's request for an internal investigation. (Id. at ¶ 19.) Plaintiff was later relieved of her position as custodian of the evidence room. (Id. at ¶ 21.)

  Following Plaintiff's removal as custodian, an internal investigation was conducted. Plaintiff claims she cooperated fully with the investigation, which allegedly lead to the forced retirement of a number of OAG officials, including Defendants Gentile and Vonscio. (Id. at ¶¶ 23-24.) Plaintiff alleges that shortly thereafter she "became the object of ridicule and demeaning mistreatment by her colleagues and this mistreatment was . . . encouraged and allowed by her superiors." (Id. at ¶ 25.) Plaintiff further alleges that she was nicknamed the "office rat" and that the captioned Defendants engaged in a retaliatory effort to ostracize and punish Plaintiff for speaking out. (Id. at ¶¶ 25-26.)

  Plaintiff was subsequently transferred to the position of supervising agent of the Financial Investigation Unit where she was responsible for two agents. Plaintiff claims that this transfer was against her will, and "was carried out by the Defendants Kwait and Caggiano as a way to retaliate against her for speaking out." (Id. at ¶ 28.) Plaintiff claims that following her transfer, she was subject to "persistent harassment carried out by [D]efendants Serge and Maioli at the behest of their superiors including [D]efendants Caggiano and Kwait." (Id. at ¶ 30.) Plaintiff claims that she became emotionally and mentally ill as a result of the alleged harassment and on September 17, 2000, Plaintiff went on medical leave. (Id. at ¶ 35.) Plaintiff alleges that at some unspecified time Defendant Kress made it clear that Plaintiff would be subject to additional harassment and retaliation if she returned to work. (Id. at ¶ 36.) Plaintiff claims she was forced to end her employment with OAG on January 17, 2003, after exhausting her medical leave. (Id. at ¶ 38.)

  Exactly two years later, on January 17, 2005, Plaintiff filed her complaint in which she asserts the following claims: violation of her First Amendment right to speak out on matters of public concern free of unlawful retaliation; intentional infliction of emotional distress; and constructive discharge under Pennsylvania state law. (Doc. No. 1.) Defendants have moved to dismiss the claims against them for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 6.)

  II. STANDARD OF REVIEW

  A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, the court accepts as true all factual allegations contained in the complaint and views them in the light most favorable to the plaintiff. United States Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, "a court need not credit a complaint's `bald assertions' or `legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)).

  III. DISCUSSION

  In support of their motion to dismiss, Defendants assert the following arguments: (a) all of Plaintiff's claims are time-barred; and (b) Plaintiff has failed to state claims of retaliation for protected speech, intentional infliction of emotional distress, and wrongful discharge.*fn1 (Doc. No. 7.)

  A. Statute of Limitations In Pennsylvania, civil rights claims brought under 42 U.S.C. § 1983 are subject to the Commonwealth's two-year statute of limitations governing personal injury actions. See Wilson v. Garcia, 471 U.S. 261, 279 (1985) (holding that state statutes of limitations governing personal injuries are applicable to causes of action under 42 U.S.C. § 1983); Reitz v. County of Bucks, 125 F.3d 139, 143 (3d Cir. 1997); 42 Pa. Cons. Stat. Ann. § 5524 (two year statute of limitation on personal injury actions and proceedings). A claim brought pursuant to 42 U.S.C. § 1983 accrues when the plaintiff knows, or has reason to know, of the injury that constitutes the basis of the action. Smith v. Holtz, 856 F. Supp. 227, 231 (M.D. Pa. 1994) (citing Deary v. Three Un-Named Police Officers, 746 F.2d 185, 197 (3d Cir. 1984) and Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982)).

  Plaintiff filed her complaint alleging personal injury on January 17, 2005. Accordingly, in order for her claims to be timely, the injury that constitutes the basis of the action must have occurred on or after January 17, 2003. Therefore, the only allegations that the Court will consider are those that occurred on or after January 17, 2003.

  The only allegation Plaintiff makes in her complaint that arguably falls within the statute of limitations is her claim that she was constructively discharged on January 17, 2003, in retaliation for speaking out about and cooperating in the investigations of evidence room theft. The limitations period on a claim of constructive discharge does not accrue until the loss of employment occurs. Armington v. Sch. Dist. of Philadelphia, 767 F. Supp. 661, 665 (E.D. Pa. 1991) (citing Centifanti v. Nix, 865 F.2d 1422, 1433 (3d Cir. 1989)). The Court finds that, when taken in a light most favorable to Plaintiff, constructive discharge could support Plaintiff's claim of retaliation for engaging in protected speech under 42 U.S.C. § 1983 and her claim of ...


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