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McNamee v. County of Allegheny

August 13, 2007


The opinion of the court was delivered by: Magistrate Judge Hay


HAY, Magistrate Judge

Plaintiff, Mary McNamee ("plaintiff"), commenced this action against defendant, County of Allegheny, after it terminated her employment at the John J. Kane Regional Center -Glen Hazel ("the Center"), in July of 2005.

The record demonstrates that plaintiff was employed at the Center, a Long Term Care Facility, as the Director of Nursing starting in December of 2002. Defendant's Statement of Undisputed Facts ("SOF"), ¶¶ 1, 2 (Doc. 29).*fn1 On June 17, 2005, a resident was found dead lying face down in a bathtub full of water in a shower room on Unit 3-B. SOF ¶ 3. The Department of Health was contacted shortly thereafter and conducted an investigation. SOF ¶ 4. The investigator, or "surveyor," noted in his report that while he initially observed that there were no locks on any of the three shower rooms located on Unit 3-B, he later observed the maintenance staff putting pad locks on each of the three doors. SOF ¶ 5; Survey Report, p. 6 (Doc. 27-2). It also appears that plaintiff was interviewed during the investigation and indicated that locks had been requested for the doors on February 23, 2005, when the same resident fell in the bathroom, and again when the resident was found alone in the shower room. SOF ¶ 6; Survey Report, p. 6. Plaintiff's employment at the center was subsequently terminated on July 21, 2005. SOF ¶ 1.

Plaintiff filed the instant complaint on November 2, 2005, alleging that defendant terminated her employment in violation of her right to due process under the Fourteenth Amendment to the United States Constitution (Count I), the Pennsylvania Whistleblower Law, 43 P.S. § 1421, et seq. (Count II), and the First Amendment to the United States Constitution (Count III). Defendant has now filed a motion for summary judgment arguing that all of plaintiff's claims are properly dismissed.

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ. P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial ... or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Electric Industrial Corp. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). Thus, it must be determined "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 251-52.

Defendant first contends that Count I of the complaint, wherein plaintiff has alleged that defendant violated her right to procedural due process when it terminated her employment without first giving her a hearing, is properly dismissed since the Fourteenth Amendment only requires notice and an opportunity to be heard when a person is deprived of a property interest. Defendant argues that a property interest in employment only arises when there is an expectation of continued employment based on some contractual obligation under state law and because plaintiff has not identified a contractual right that would have given her an expectation of continued employment she had no such property interest and, thus, was not entitled to a pre-termination hearing.

It appears undisputed that procedural due process is required only when a person is deprived of property or another substantive right. Thomas v. Town of Hammonton, 351 F.3d 108, 113 (3d Cir. 2003). It is also undisputed that not all employees have a property interest in their jobs. Swinehart v. McAndrews, 221 F. Supp. 2d 552, 557 (E.D. Pa. 2002), aff'd, 69 Fed. Appx. 60 (3d Cir. 2003). An abstract need or desire to be employed or a "unilateral expectation" of continued employment is insufficient to create a property interest. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). Such an interest will be found, however, where "a 'legitimate claim of entitlement' to work exists." Swinehart v. McAndrews, 221 F. Supp. 2d at 557, quoting Board of Regents of State Colleges v. Roth, 408 U.S. 577. Although a contract of employment, either express or implied, may create such an interest, it can also be created by statute, regulation or government policy. Id. at 557-58, citing Larsen v. Senate of Commonwealth of Pennsylvania, 154 F.3d 82, 92 (3d Cir. 1998), cert. denied, 525 U.S. 1144 (1999), and Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1256 (3d Cir. 1994). See Board of Regents v. Roth, 408 U.S. at 577 ("Property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits"). Whether or not a property interest exists is governed by state law. Swinehart v. McAndrews, 221 F. Supp. 2d at 558.

Here, relying on Keefer v. Durkos, 371 F. Supp. 2d 686 (W.D. Pa. 2005) ("Keefer"), plaintiff argues that her right to employment in this case is derived by statute --specifically, Pennsylvania's Whistleblower Law. Indeed, in Keefer, like here, the plaintiff brought a claim under the Fourteenth Amendment, as well as Pennsylvania's Whistleblower Law, alleging that her right to due process was violated when she was terminated without a hearing after she "blew the whistle" on a school board member for taking food from the school cafeteria for non-school activities. Id. at 690, 693. The defendants filed a motion to dismiss arguing, much as the instant defendant has, that because plaintiff was an at-will employee and was not employed pursuant to a contract or government action that created a property interest, her employment was not protected by the Fourteenth Amendment. Id. at 692. The Court, however, rejected the defendants' argument finding that the Court's analysis in Brominski v. County of Luzerne, 289 F. Supp. 2d 591, 596 (M.D. Pa. 2003) ("Brominski"), applied and that, under Brominski, the plaintiff had alleged sufficient facts to state a claim for a violation of her procedural due process rights. Id. at 693-94. Although this Court finds Brominski to be unhelpful, if not inapplicable to this precise issue,*fn2 the Keefer Court subsequently clarified its ruling in a memorandum opinion issued pursuant to defendants' motion for summary judgment wherein the Court was apparently asked to revisit the issue. There, the Court stated that, Plaintiff, although an at-will employee, did have an expectation in continued employment to the extent she has protection against retaliation for protected conduct under the Whistleblower Law, and thus could be entitled to the protections of procedural due process. This is consistent with the Weaver case cited by the Plaintiff in that an exception exists to the general "at-will" employment law in the Commonwealth of Pennsylvania for purposes of "public policy." Weaver [v. Harpster, 885 A.2d 1073, 1076 (Pa. Super. 2005)]. The Court believes that the Pennsylvania Whistleblower Law creates such a public policy exception to the general rule of law that employment contracts are "at-will" in the state of Pennsylvania. To not follow the public policy of the Whistleblower Law would allow for an "at-will" state or local government employee to be terminated for the good-faith reporting of "wrongdoing" or "waste" within the Commonwealth's governmental bodies and this would clearly frustrate the intent of the Pennsylvania Whistleblower Law.

Keefer v. Durkos, 2006 WL 2773247 *16 (W.D. Pa. September 25, 2006). Thus, the Court found that because the very purpose of the Whistleblower Law is to protect employees from retaliation when they report wrongdoing or waste within the Commonwealth's governmental bodies, it follows that they can expect not to be terminated when such reports are made. The statute therefore creates an expectation of continued employment and, hence a property interest, when an employee engages in protected conduct which, in turn, entitles the employee to notice and an opportunity to be heard before being deprived of that interest.

Because the instant plaintiff has alleged that she, too, engaged in precisely the activity that the Whistleblower Law was designed to protect, it appears that she also had an expectation not to be terminated as a result. Thus, to the extent that plaintiff has presented a viable claim under the Whistleblower Law, she had a property interest in her continued employment and was entitled to notice and an opportunity to be heard before she was deprived of that interest.

Defendant has argued, however, that plaintiff's claim under the Whistleblower Law should also be dismissed because even if plaintiff reported that she and/or the staff had requested locks for the bathroom doors prior to the resident's death in June of 2005, such a report does not constitute the type of report of "wrongdoing" contemplated under the statute. We agree.

Under the Pennsylvania Whistleblower Law, No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste. 43 P.S. § 1423 (a). "Wrongdoing," in turn, is defined as: "[a] violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer." 43 P.S. § 1422. See Golaschevsky v. Department of Environmental Protection, 554 Pa. 157, 162, 720 A.2d 757, 759 (1998) ("'[W]rongdoing' includes . . . violations of any federal or state statute or regulation, other than violations that are 'of a merely technical or minimal nature'").

Here, citing to her complaint, plaintiff argues simply that she has adequately alleged that she was terminated in retaliation for reporting to the Department of Health that she had requested the installation of locks on the shower room doors and that because defendant's failure to install the locks jeopardized the safety of residents she has alleged "wrongdoing" within the meaning of the Whistleblower Law. In so arguing, plaintiff cites to Podgurski v. Pennsylvania State University, 722 A.2d 730 (Pa. Super. 1998), in which the plaintiff brought a claim under the Pennsylvania Whistleblower Law alleging that her employer retaliated against her for reporting various incidents of wrongdoing including expenditures of unnecessary funds, dismissal of workers absent any reason, hiring of workers without proper ...

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