The opinion of the court was delivered by: (Judge Munley)
(Magistrate Judge Smyser)
Before the court are plaintiff's objections (Doc. 48) to the report and recommendation of Magistrate Judge J. Andrew Smyser (Doc. 47) in this case. Having been fully briefed, the matter is ripe for disposition.
This case arises out of the plaintiff's experiences as an employee at the Luzerne County Correctional Facility (LCCF).
On January 9, 2006, plaintiff filed an amended complaint, alleging discrimination and retaliation under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq., the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601, et seq., the Pennsylvania Human Relations Act, 43 P.S. § 955(a) et seq., and violations of the plaintiff's constitutional rights under 42 U.S.C. §§ 1983 and 1985. (See Amended Complaint (Doc. 9) at ¶ 1).
Plaintiff began working for Defendant Luzerene County Correctional Facility as a Correctional Officer in May 1991. (Id. at ¶ 19). On March 1, 1994, he suffered an injury while restraining a prisoner. (Id. at ¶ 20). That injury required surgery, and plaintiff suffered permanent damage which limited major life activities and caused him to become disabled. (Id. at ¶ 21). He returned to work on October 10, 2000. (Id. at ¶ 22). Upon this return to work, plaintiff assumed a job as a Control Booth Guard, which the defendants defined as "a sedentary-light duty position." (Id.). Plaintiff's co-workers, resentful of this assignment, began harassing him verbally (Id. at ¶ 23). On June 4, 2002, these co-workers filed a grievance against the plaintiff. (Id. at ¶ 24). A week later, plaintiff met with his supervisor, Defendant Gene Fischi, and complained of discrimination and a hostile work environment. (Id. at ¶ 25).
Plaintiff's lawyer sent a letter to Fischi on June 12, 2002, seeking accommodations for plaintiff's disability under the ADA. (Id. at ¶ 26). Subsequent to receiving this letter, defendants on November 15, 2002 suspended plaintiff from employment for three days, running from December 2, 2002 to December 4, 2002. (Id. at ¶ 27). Such discipline was not a normal practice at the LCCF. (Id. at ¶ 28). The facility also denied plaintiff emergency vacation time, though others not in the same "protected class" were granted such leave. (Id. at ¶ 29). Plaintiff's attorney on December 6, 2002, again complained to warden Fischi of retaliation and harassment for his previous complaints. (Id. at ¶ 30). These complaints did not end the harassment of the plaintiff. (Id. at ¶ 31). In fact, plaintiff's supervisors "participated in and encouraged" this behavior. (Id.).
Plaintiff alleges that on August 12, 2003, Defendant Roberts issued a letter to plaintiff's supervisors, ordering that plaintiff be docked an entire day's pay if he arrived as little as fifteen (15) minutes late for work. (Id. at ¶ 32). Others were not disciplined in the same way. (Id.). On December 7, 2004, two supervisors ordered plaintiff to take a breathalyzer examination at the workplace. (Id. at ¶ 33). Supervisors administered the test six to eight times, eventually receiving a positive result. (Id. at ¶ 34). The machine supervisors used to administer this test was known to be inaccurate. (Id. at ¶ 35). Plaintiff contends that defendants had no workplace policy on drinking or breathalyzer testing, and that other workers who were obviously intoxicated were treated differently from the plaintiff. (Id. at ¶¶ 36-37). To avoid termination after this positive test, plaintiff underwent alcohol rehabilitation treatment. (Id. at ¶ 38). He completed the program successfully. (Id.)
Plaintiff also alleges that the defendant union, through its agent Defendant Seiwell, failed to provide the plaintiff with representation in various disciplinary actions. (Id. at ¶ 39). The union had represented other, non-disabled, members in similar proceedings. (Id.). On January 5, 2005, plaintiff took medical leave, requesting a ninety-day absence. (Id. at ¶¶ 40-41). The Defendant Warden and Correctional Institution attempted to place plaintiff on medical leave retroactive to December 7, 2004, a date when the plaintiff had been suspended from work. (Id. at ¶ 42). Sometime after that date, defendants gave plaintiff notice of a "last chance" agreement, and told him to sign the agreement or face termination. (Id. at ¶ 43).
After receiving this notification, plaintiff on February 16 and 24, 2005 submitted doctor's notes to his employer that indicated he could return to work. (Id. at ¶ 44). Plaintiff was not able to return to work, however, and began to receive Workmen's Compensation on March 10, 2005. (Id. at ¶ 46). Shortly thereafter he filed a complaint with the Equal Employment Opportunity Commission. (Id. at ¶ 47). On April 13, 2005, the plaintiff filed union grievances with Defendant Seiwell. (Id. at ¶ 48). Though these grievances eventually resulted in a hearing conducted by Defendant Hyder, plaintiff's union did not provide him with representation at the hearing, and plaintiff was not allowed to bring his own attorney to the hearing. (Id. at ¶¶ 49-51). The plaintiff did not have an opportunity to rebut the evidence against him at this hearing. (Id. at ¶ 52). The Prison Board scheduled a subsequent hearing, but cancelled it. (Id. at ¶ 53). The Union and Defendant Seiwell continued to urge plaintiff to sign a last chance agreement, but plaintiff did not do so. (Id. at ¶ 54). On August 31, 2005, plaintiff received a letter from Defendant Fischi recommending his termination. (Id. at ¶ 55). Plaintiff lost his job on September 19, 2005, without an opportunity for a hearing either before or after his termination. (Id. at ¶¶ 56-57).
On January 9, 2006, plaintiff filed an amended complaint (See Amended complaint (Doc. 9)). The complaint raises eight counts. (Id.). First, plaintiff raises a claim under 42 U.S.C. § 1983, alleging that the defendants violated his First, Fifth and Fourteenth Amendment rights. (Id. at ¶ 58). Plaintiff also alleges that the defendants conspired to deprive him of these constitutional rights and to retaliate against him for engaging in protected activity, in violation of 42 U.S.C. § 1985. (Id. at ¶¶ 59-60). The alleged conspiracy includes both coordinated efforts to force plaintiff to quit his job and a later effort to "manufacture" untrue grounds for plaintiff's termination. (Id. at ¶¶ 62-63, 69-71).*fn1 Plaintiff's complaint includes claims under the Americans with Disabilities Act. (Id. at ¶ 65). Plaintiff alleges that his termination came as a result of his disabilities and in retaliation for filing complaints under federal and state law. (Id. at ¶¶ 66, 67).*fn2 The plaintiff also brought a complaint under the Pennsylvania Human Relations Act for a hostile work environment, disability discrimination and retaliation. (Id. at ¶ 68). The seventh count of the complaint alleges violations of the Family Medical Leave Act (FMLA) against Defendants Fischi, Hyder and Morris. (Id. at ¶ 72). The final count of the complaint raises a claim of intentional infliction of emotional distress against all of the defendants. (Id. at ¶ 73).
On March 17 and May 8, 2006 defendants filed motions to dismiss plaintiff's complaint on behalf of the various defendants. (See Doc. 28). After a full briefing of the issues raised in defendants' motions, Magistrate Judge J. Andrew Smyser on August 8, 2006 issued a report and recommendation that proposed we dismiss portions of the plaintiff's complaint and then remand the case for further proceedings. (See Doc. 47). Magistrate Judge Smyseer proposed that we dismiss plaintiff's Fifth Amendment, procedural due process and substantive due process complaints in Count I of the amended complaint. (Id. at 53). He also proposed that plaintiff's conspiracy complaint under 42 U.S.C. ¶ 1985(3), stated in Count II of the Amended Complaint, be dismissed. (Id.). The Magistrate Judge also found that plaintiff's requests for punitive damages in Counts III and IV should be dismissed, as well as the claim for intentional infliction of emotional distress in Count X. (Id.). The motions to dismiss all other claims in the complaint should, Magistrate Judge Smyser found, be denied. (Id.). Plaintiff thereafter filed objections to the report and recommendation. Having now been fully briefed, those objections are ripe for disposition.
As this case is brought pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C. ¶¶ 12101, et seq., 42 U.S.C. ¶¶ 1983 and 1985 and the Family Medical Leave Act (FMLA), 29 U.S.C. ¶¶ 2601, et seq., we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
In disposing of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district court judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
For those portions of the report and recommendation to which no objections have been filed, we must determine whether a review of the record evidences plain error or manifest injustice. See, e.g., Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983); Fed. R. Civ. P. 72(b)1983 Advisory Committee Notes ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record to accept the recommendation"); 28 U.S.C. § 636(b)(1).
The Magistrate Judge issued his report and recommendation in response to defendants' motions to dismiss the complaint for failure to state a claim upon which relief could be granted pursuant to Federal Rule of Civil Procedure 12 (b)(6). When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
As the Magistrate Judge's decision addressed a number of different grounds for defendants' motions to dismiss, we will address each of Magistrate Judge Smyser's recommendations in turn, applying the appropriate legal standard.
A. Plaintiff's Claims Under 42 U.S.C. § 1983 for Violations of the First, Fifth and Fourteenth Amendments
i. Allegations that Plaintiffs Acted Under Color of State Law
The magistrate judge found that plaintiff had sufficiently alleged that the defendants acted under color of state law to state a claim under 42 U.S.C. § 1983. Neither side objects to this recommendation. We find neither clear error of law nor manifest injustice in ...