The opinion of the court was delivered by: Judge Kane
Before the Court is Defendants' Motion to Dismiss the Amended Complaint. (Doc. No. 20.) Defendants contend that the Amended Complaint should be dismissed for lack of jurisdiction and for failure to state a claim upon which relief can be granted. (Id.) Plaintiff filed a timely brief in opposition on November 16, 2005. (Doc. No. 24.) Because the Court finds that Plaintiff failed to allege actionable conduct falling within the two-year statute of limitations period applicable to this case, Defendants' motion will be granted and the case will be dismissed.
This is the second time the Court has considered a motion by the Defendants to dismiss this action. In the Court's prior Order granting Defendants' first motion to dismiss, the Court allowed Plaintiff twenty days to amend the Complaint to cure various deficiencies, principally to provide further allegations regarding personal involvement of each of the Defendants within the applicable two-year statute of limitations period. (Doc. No. 18.) Specifically, although Plaintiff made certain allegations regarding intentional tortious conduct on the part of the Defendants that allegedly resulted in First Amendment violations and Plaintiff's constructive discharge from her employment with the Pennsylvania Office of the Attorney General ("OAG"), the Complaint lacked any allegation of Defendants' conduct that fell within the two-year statute of limitations period applicable to all of Plaintiff's related claims. As noted in the Court's previous Order, Plaintiff commenced this litigation on January 17, 2005 -- exactly two years after she officially terminated her employment with the OAG. Prior to leaving the OAG, Plaintiff had been out of work on medical leave since September 17, 2000. Although the Court acknowledged that Plaintiff's claims could theoretically fall within the two-year statute of limitations period applicable to all of Plaintiff's claims, the Court also underscored that such claims could be considered timely only if Plaintiff could demonstrate that some or all of the Defendants actually did something to contribute to Plaintiff's alleged constructive discharge within the limitations period. Because Plaintiff failed to include such an allegation, the Court granted the motion to dismiss, but also afforded Plaintiff leave to amend the Complaint to cure the pleading deficiencies identified.
On October 18, 2005, Plaintiff filed an Amended Complaint. (Doc. No. 19.) Despite the Court's specific discussion regarding the deficiencies in the original Complaint, Plaintiff offered essentially no new substance or detail. Only in one paragraph does Plaintiff attempt to offer any specificity regarding conduct of the Defendants occurring on or after January 17, 2003: "the continuous unabated threat to reinsert her in [the] hostile retaliatory environment constituted a continuous violation of her federally guaranteed rights under the First Amendment from 1998 through January 17, 2003 culminating in the constructive discharge complained of herein."
(Am. Compl. ¶ 27.)*fn1 This limited and conclusory addition is, essentially, nothing more than a rhetorical restatement of Plaintiff's general allegation running throughout the Complaint: that she was subjected to workplace retaliation beginning in 1998 after she spoke out on matters of public concern, and such retaliation eventually led to her ultimate departure from the OAG in January 2003. Plaintiff hints that Defendants continued to maintain the threat of harassment or retaliation up until January 17, 2003, yet the Amended Complaint provides no allegations to this effect. Plaintiff vaguely references a"continuous unabated threat" but provides no factual allegations regarding actual conduct of the Defendants. The Court finds Plaintiff has failed to allege facts -- other than her decision not to return to her employment with the OAG nearly two and one-half years after she went out on medical leave -- that support her claim that the Defendants individually or collectively caused her constructive discharge by their allegedly retaliatory conduct towards her while she was working in the OAG.
Plaintiff's failure to provide any detail regarding alleged conduct that fell within the limitations period appears to be a tacit acknowledgment that no such conduct actually occurred on January 17, 2003. This possibility is amplified by Plaintiff's new suggestion that she is claiming Defendants' conduct represents continuing violations sufficient to overcome the manifest statute of limitations problem presented: "Plaintiff alleges that the constructive discharge she suffered was the culmination of a series of continuing violations that led to and caused the constructive discharge of [January 17, 2003]." (Am. Compl. ¶ 1.) After a careful reading of the Amended Complaint, the Court finds that Plaintiff has failed to demonstrate that the continued violations doctrine applies to this case.
"The continuing violations doctrine is an 'equitable exception to the timely filing requirement.'" Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir. 2001) (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). The doctrine is most frequently applied in the Title VII context, but has been applied in other contexts as well, including claims brought under 42 U.S.C. § 1983. Cowell, 263 F.3d at 292. To proceed under the doctrine, a plaintiff must establish both: (1) that "the last act evidencing the continuing practice falls within the limitations period"; and (2) that "the defendant's conduct is more than the occurrence of isolated or sporadic acts." Id. "The focus of the continuing violations doctrine is on affirmative acts of the defendants." Id. at 293.
Because the Amended Complaint is predicated entirely on Plaintiff's allegation that Defendants retaliated against Plaintiff for speaking out on matters of public concern (thereby leading to her alleged constructive discharge), Plaintiff's initial burden is to allege some retaliatory act that falls within the limitations period. As noted, the only act alleged to have occurred on January 17, 2003 -- the only day falling within the limitations period in this case -- is the fact that on that day, Plaintiff formally ended her employment with the OAG.*fn2 Plaintiff has offered no real allegation of any act of any Defendant that is claimed to have occurred on this date, and the Court finds that the generalized allegation appearing in Paragraph 27 of the Amended Complaint does not satisfy Cowell's requirement that Plaintiff identify the last act evidencing the alleged continuing tortious conduct within the limitations period. Again, the focus of the continuing violations doctrine is on affirmative acts of the Defendants, and Plaintiff has not pointed to an affirmative act of any Defendant falling on January 17, 2003.*fn3
Even were the Court to find that Plaintiff's formal departure from the OAG satisfied the first requirement, application of the continuing violations doctrine would be inappropriate because plaintiff has not adequately alleged that the Defendants' conduct was "more than the occurrence of isolated or sporadic acts of intentional discrimination." West, 45 F.3d at 755. Regarding this inquiry, the Third Circuit has instructed courts to consider at least three factors. Of primary importance is the "degree of permanence," Cowell, 263 F.3d at 292, i.e., "whether the nature of the violations should trigger the employee's awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate." West, 45 F.3d at 755 n.9. Courts should also consider "subject matter -- whether the violations constitute the same type of discrimination, tending to connect them in a continuing violation" and "frequency-whether the acts are recurring or more in the nature of isolated incidents." Cowell, 263 F.3d at 292.
In this case, Plaintiff has failed to allege, with even a minimum of specificity, that the Defendants' alleged conduct had such a degree of permanence as to implicate the continuing violations doctrine. Indeed, aside from the vague representation contained in Paragraph 27 that "Defendants'" conduct represented a "continuous unabated threat" that Plaintiff perceived, the Amended Complaint is silent as to specific, continuous acts of Defendants occurring after September 17, 2000. Plaintiff claims that she was "driven from her employment on September 17, 2000" -- allegedly as the result of depression and emotional trauma inflicted through Defendants' "course and pattern of misconduct designed to intimidate, harass, and demean the plaintiff." (Am. Compl. ¶ 1.) Although the Amended Complaint contains no references to specific dates upon which Defendants are alleged to have engaged in retaliation and harassment, Plaintiff contends that at some unspecified time in 1998, she was subjected to ridicule by her "colleagues" and that this conduct was "encouraged and allowed by her superiors." (Id. ¶ 22.) At this point, the Amended Complaint resorts to generality and vague rhetoric that offers no clear allegations of conduct, much less conduct that could be deemed pervasive and continuing: "Plaintiff was nicknamed 'the office rat' while her integrity and skills were set aside by the aforementioned defendants in a gang mentality display of adolescent commitment to a thin blue line sort of loyalty." (Id.)
The Amended Complaint proceeds to allege that two of the named Defendants caused Plaintiff to be transferred to a new position with less responsibility, apparently at some time in 1998, although the Amended Complaint does not provide any specificity on this point. (Id. ¶¶ 24-25.) Plaintiff claims that during and after 1998, Defendants Serge, Caggiano, and Kwait caused her to be harassed by requiring that she "report tedious and unnecessary functions and activities as a way to intimidate and ostracize plaintiff." (Id. ¶ 26.) Plaintiff claims that this alleged harassment continued until September 17, 2000, when she took medical leave. (Id.) As noted, Plaintiff never returned to the OAG in any capacity and formally terminated her employment on January 17, 2003 after she had exhausted her available sick leave, vacation, and personal days. (Id. ¶ 38.) The Amended Complaint is silent regarding any conduct of Defendants after September 17, 2000.
Even assuming as true that some or all of the Defendants consistently engaged in retaliatory or harassing conduct between 1998 and September 2000, the Court can find only that Plaintiff has failed to allege any conduct on the part of Defendants for nearly two and one-half years prior to her departure from the OAG, and more than four years prior to the commencement of this action. The total absence of any alleged conduct during this time period can only lead the Court to find that Plaintiff has failed ...