The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Pending before this Court is a Motion to Dismiss Counts II, IV, and V of Plaintiff's Amended Complaint ("the Motion"), filed by two of the Defendants to this action, the Pennsylvania Department of Education and Linda Rhen, on December 22, 2006. (Rec. Doc. 21). For the reasons that follow, the Motion will be granted in part and denied in part.
On September 27, 2006, Plaintiff Linda Stengle ("Plaintiff" or "Stengle") filed her first Complaint in the instant action. (Rec. Doc. 1). Prior to the filing of any responsive pleadings, on October 31, 2006, Plaintiff filed an Amended Complaint. (Rec. Doc. 12).
Subsequently, on December 22, 2006, Defendants PDE and Rhen filed the instant Motion. As the Motion has been fully briefed, it is ripe for disposition.
As is required by the standard of review applicable to the Motion, the following recitation of the facts is based on the averments in Plaintiff's Amended Complaint. (Rec. Doc. 12).
One of the Defendants to this action, the Office of Dispute Resolution ("ODR"), is an independent agency responsible for coordinating and managing Pennsylvania's statewide special education dispute resolution system, at least in part via the use of hearing officers. (Rec. Doc. 12, ¶ 6). However, ODR is administered by an Intermediate Unit under contract with one of the Defendants that filed the instant Motion, the Pennsylvania Department of Education ("PDE"). (Rec. Doc. 12, ¶ 6).
The instant action arose out of Plaintiff's service as a special education due process hearing officer. (Rec. Doc. 12, ¶ 11). Beginning as of July 1, 1998, Plaintiff and various Intermediate Units entered into eight (8) consecutive one-year contracts. (Rec. Doc. 12, ¶ 13). Plaintiff's final contract, with a term of July 1, 2005, through June 30, 2006, was with Intermediate Unit 13. (Rec. Doc. 12, ¶ 14).
The contract stated that Plaintiff's subsequent reappointment as a hearing officer was contingent on satisfactory performance of all hearing officer duties, with satisfaction to be determined by the ODR Director, Kerry Smith ("Smith"). (Rec. Doc. 12, ¶¶ 8, 14).
Prior to Plaintiff's reappointment for the term of July 1, 2006, through June 30, 2007, Plaintiff questioned the directives being provided by ODR. (Rec. Doc. 12, ¶¶ 19, 23, 28, 31, 35). She did so during a June 2005 training session for hearing officers, and on other occasions as well. (Rec. Doc. 12, ¶¶ 19, 23, 28, 31, 35).
In October of 2005, Plaintiff was appointed to serve on the "Gaskin Advisory Panel" ("the Panel").*fn1 (Rec. Doc. 12, ¶ 36). While serving on the Panel, Plaintiff made many statements that she alleges were of public concern, including, inter alia, that the Gaskin settlement agreement should be fully implemented, "that the agendas prevented the [P]anel from fulfilling its obligations under the settlement agreement," and that "the minutes of the [A]dvisory [P]anel's meetings had been written in a way that was misleading and benefitted PDE." (Rec. Doc. 12, ¶ 39).
Plaintiff further alleges that PDE learned of her aforesaid comments and became alarmed. (Rec. Doc. 12, ¶ 40). Accordingly, in December of 2005, PDE allegedly researched the legality of presenting an ultimatum to Plaintiff and a second hearing officer who had been appointed to the Panel, which would have required them to choose ...