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