The opinion of the court was delivered by: Ambrose, Chief District Judge.
OPINION and ORDER OF COURT
Plaintiff is a former employee of Defendant Borough of Avonmore. Plaintiff claims that Defendant failed to pay her compensation for accrued sick days, vacation days, and personal days, and then terminated her employment when she demanded payment. Plaintiff asserts that Defendant's failure to pay her this compensation violates her procedural and substantive due process rights under 42 U.S.C. § 1983, that Defendant wrongfully discharged her for requesting payment, and that Defendant has been unjustly enriched as a result of its refusal to pay the compensation.
Defendant has moved to dismiss the Complaint in its entirety. For the reasons set for below, I grant Defendant's Motion to Dismiss.
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Haspel v. State Farm Mut. Auto. Ins. Co., 2007 WL 2030272, at *1 (3d Cir. July 16, 2007). However, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. V. Twombly, -- U.S. --, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). In order to survive a motion to dismiss, the complaint must "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Id., at 1969.
Plaintiff was employed by Defendant beginning in July 1996 and continuing until her discharge on June 5, 2006. During that period, her position as Borough Secretary was expanded to include the titles and responsibilities of Treasurer and Wage Tax and Occupational Tax Collector. Plaintiff has not alleged the existence of an employment contract with Defendant.
On November 8, 2001, the Avonmore Borough Council adopted and published a Personnel Policy providing, in relevant part, that: "All vacation days, sick days, and personal days must be used by your individual annual start date or the remaining time is lost with no compensation. Exception to this rule applies to secretary due to the difficulty in taking time off. The secretary's time may roll over without penalty." In December 2005, Plaintiff was paid for an unspecified portion of her accrued vacation, sick and personal days.
On April 11, 2006, the Borough Council adopted an Employee Handbook which purported to revise the Defendant's policy with respect to payment of accrued vacation, sick and personal days. The handbook provided that vacation pay could not be carried over from one year to the next, sick pay could "go back" one year beginning January 1, 2005 to January 1, 2006, with no responsibility for sick days prior to January 1, 2005, and that any accumulated compensatory time may be carried over to the first 90 days of the next calendar year. An employee could not accumulate more than 60 total hours of compensatory time.
Plaintiff alleges that she is entitled to payment for an additional 164 vacation days, sick days, compensatory days, and "Treasurer days off," for a total of $21,593.47. Despite Plaintiff's request, Defendant has refused to pay Plaintiff any additional sum with respect to this accrued time.
On or about June 5, 2006, Defendant terminated Plaintiff's employment. While Defendant offered no explanation for the termination, Plaintiff believes she was terminated as a result of her request for payment for the accrued time.
C. DEFENDANT'S MOTION TO DISMISS
Defendant argues that Plaintiff's procedural and due process claims fail as a matter of law. Specifically, Defendant argues that Plaintiff's claim for procedural due process fails because Plaintiff does not have a protected property interest in payment for accrued sick, vacation and other compensatory days. With respect to Plaintiff's substantive due process claims, Defendant argues that the right to payment for accrued sick, vacation and ...