United States District Court, M.D. Pennsylvania
September 16, 2005.
KAREN EVANCHO, Plaintiff
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.
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.)
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)).
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
of constructive discharge under Pennsylvania state law. Accordingly, the Court finds that Plaintiff's section 1983 and
constructive discharge claims cannot be dismissed on the basis
that they are time-barred.
B. Sufficiency of Plaintiff's Claims
Defendants further argue that these claims should be dismissed
because Plaintiff has failed to allege facts sufficient to
support the claims. The Court will consider each claim in turn.
1. Retaliation for Engaging in Protected Speech
To prevail in a 42 U.S.C. § 1983 suit for retaliation under the
First Amendment, a plaintiff must show the following: (1) she was
engaged in a protected activity; (2) the government responded
with retaliation; and (3) the protected activity was the cause of
the retaliation. Estate of Smith v. Marasco, 318 F.3d 497, 512
(3d Cir. 2003). Plaintiff alleges that Defendants acted under
color of law to violate Plaintiff's right to freedom of speech
under the First Amendment. Plaintiff appears to contend that
Defendants retaliated against her by forcing her to retire
because she spoke out about and cooperated in the investigations
of evidence room theft. Defendants argue that Plaintiff has
failed to state a claim upon which relief can be granted.
In order to state a claim of retaliation for engaging in
protected speech, a plaintiff must first establish that the
activity in question is protected under the First Amendment. San
Filippo v. Bongiovanni, 30 F.3d 424, 434 (3d Cir. 1994). "A
public employee has a constitutional right to speak on matters of
public concern without fear of retaliation." Baldassare v. New
Jersey, 250 F.3d 188, 194 (3d Cir. 2001). Speech about the way
government is serving the public or discharging its
responsibilities is of public concern. See O'Donnell v.
Yanchulis, 875 F.2d 1059, 1062 (3d Cir. 1989) (holding that
speech alleging corrupt practices by government officials was of
the utmost public concern); Czurlanis v. Albanese, 721 F.2d 98, 100 (3d Cir.
1983) (holding that speech critical of the Division of Motor
Vehicles was of public concern because the comments were
motivated by a desire to spotlight potential governmental
In this case, Plaintiff alleges that she spoke out about and
cooperated in the investigations of thefts in the evidence room.
The Court finds that, if proven as alleged, Plaintiff's speech
and cooperation with the internal investigation would be
manifestly of "public concern," and therefore would constitute a
protected activity. O'Donnell, 875 F.2d at 1062. Furthermore,
Plaintiff has alleged she was constructively discharged in
retaliation for her cooperation with the investigation. If
proven, such conduct on the part of Defendants may constitute an
adverse employment action motivated by Plaintiff's participation
in the investigation.
Although Plaintiff has generally alleged that she was subjected
to retaliation for engaging in protected speech, it is
fundamental under section 1983 jurisprudence that in order to be
held liable, an individual defendant must have had personal
involvement in the acts alleged. Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d. Cir. 1988). Defendants argue that the
complaint fails to allege personal involvement by any Defendant
in Plaintiff's alleged constructive discharge and as a result,
the section 1983 claim should be dismissed.
Plaintiff requests damages from all Defendants; however, her
claim lacks specific allegations against any of the individual
Defendants of personal involvement in the alleged tort of
constructive discharge. Although Plaintiff claims she wanted to
return to work and that the OAG refused to accommodate her
return, Plaintiff has failed to allege any conduct on the part of
any individual Defendant on or after January 17, 2003, having any relationship
to her alleged constructive discharge.*fn2 Therefore,
Defendants motion to dismiss on this basis will be granted with
respect to this claim. However, the Court will grant Plaintiff
leave to amend her complaint to provide greater specificity
regarding her claim of retaliation for engaging in protected
speech in accordance with Rule 8(a)(2) of the Federal Rules of
2. Intentional Infliction of Emotional Distress
In her complaint, Plaintiff asserts that Defendants caused her
to suffer intentional infliction of emotional distress and, as a
result, was forced to take medical leave on September 17, 2000.
(Doc. No. 1 at ¶ 14.) An action for intentional infliction of
emotional distress requires a plaintiff to establish four
elements: (1) extreme and outrageous conduct; (2) the conduct
must be intentional or reckless; (3) it must cause emotional
distress; and (4) the distress must be severe. Bruffett v.
Warner Communications, Inc., 692 F.2d 910, 914 (3d Cir. 1982)
(citing Chuy v. Philadelphia Eagles Football Club,
595 F.2d 1265, 1273 (3d Cir. 1979) (en banc)). As discussed above, the
statute of limitations precludes the Court from considering any
allegations that occurred prior to January 17, 2003. A thorough
review of the complaint reveals that Plaintiff has failed to
allege any specific conduct outrageous or otherwise on the
part of Defendants on or after January 17, 2003. Therefore,
Plaintiff's claim for intentional infliction of emotional
distress must be dismissed because the claim is time-barred. 3. Constructive Discharge
In her complaint, Plaintiff asserts that "she suffered a
wrongful discharge, in the form of a constructive
discharge."*fn3 (Doc. No. 1 at ¶ 14.) To establish a claim
for constructive discharge, a plaintiff must demonstrate that the
employer permitted conditions so intolerable that a reasonable
person would have felt compelled to resign. Duffy v. Paper Magic
Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001); see also
Berger v. Edgewater Steel Co., 911 F.2d 911, 922-23 (3d Cir.
1990) ("a court must find that an employer knowingly permitted
conditions . . . so intolerable that a reasonable person subject
to them would resign"). Thus, a plaintiff must allege that the
employment situation reached a "threshold of intolerable
conditions." Id. at 169. Factors commonly cited by employees
who claim to have been constructively discharged include: (1) a
threat of discharge; (2) an urge or suggestion that the employee
resign or retire; (3) a demotion; (4) a reduction in pay or
benefits; (5) an involuntary transfer to a less desirable
position; (6) an alteration of job responsibilities; and (7) the
receipt of unsatisfactory job evaluations. Clowes v. Allegheny
Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993).
Plaintiff alleges that she was transferred by Defendants Kwait
and Caggiano against her will to the position of supervisor of
the Financial Investigative Unit. Plaintiff further alleges that
during this time she was subject to persistent harassment by
Defendants Serge and Maioli "at the behest of their superiors
including [D]efendants Caggiano and Kwait." (Doc. No. 1 at ¶ 30.)
However, these events are all alleged to have occurred prior to January 17, 2003.
Starting September 17, 2000, and continuing until her
resignation, Plaintiff had been on medical leave and had not
attended a day of work in nearly three years when she submitted
her resignation. Although it may be theoretically possible for a
plaintiff to claim constructive discharge based on acts occurring
almost entirely outside the workplace, Plaintiff has not
sufficiently alleged the existence of "intolerable conditions"
since the time she went on medical leave, September 17, 2000,
such that a "reasonable person would have felt compelled to
resign." Duffy, 265 F.3d at 169.
The apparent precipitating act to Plaintiff's constructive
discharge was the "refusal of the Attorney General's office [OAG]
to accommodate her so that she could return to work, making it
clear that she was unwanted." (Doc. No. 1 at ¶ 38.) The only
allegation suggesting that her working conditions would be
affected if she returned is Plaintiff's claim that Defendant
Kress made it clear "that she would be subject to more
intimidation should she return from her medical leave." (Id. at
¶ 36.) Although the manner and timing of Defendant Kress's
expression is unknown, when taken in a light most favorable to
Plaintiff, such an allegation may suggest that the OAG permitted
conditions so unpleasant or difficult that a reasonable person
would have felt compelled to resign. However, Plaintiff has
failed to name OAG as a Defendant in the case before the Court
and therefore has failed to state a claim upon which relief could
be granted. Accordingly, Defendants motion to dismiss will be
granted with respect to this claim. However, the Court will grant
Plaintiff leave to amend her complaint to provide sufficient
allegations supporting her claim of constructive discharge in
accordance with Rule 8(a)(2) of the Federal Rules of Civil
Procedure. IV. CONCLUSION
Based on the foregoing, the Court concludes that Defendants'
motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure will be granted and Plaintiff will be granted
leave of court to amend her complaint within twenty (20) days of
the date of this Order. V. ORDER
AND NOW, on this 16th day of September, 2005, upon
consideration of the foregoing, IT IS HEREBY ORDERED THAT
Defendants' motion to dismiss (Doc. No. 6) is GRANTED as
1. Plaintiff's common-law claim for intentional
infliction of emotional distress is DISMISSED with
prejudice as untimely.
2. Plaintiff's First Amendment claim of retaliation
brought pursuant to 42 U.S.C. § 1983 is DISMISSED
for failure to adequately state a claim. Plaintiff is
granted leave to amend her complaint with respect to
this claim within twenty (20) days of the date of
3. Plaintiff's common-law claim of constructive
discharge is DISMISSED for failure to adequately
state a claim. Plaintiff is granted leave to amend
her complaint with respect to this claim within
twenty (20) days of the date of this Order.
Any failure to amend the complaint in accordance with this
Order will result in this action being dismissed without further
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