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D'Altilio v. Dover Township

August 21, 2008

MICHAEL D'ALTILIO, PLAINTIFF
v.
DOVER TOWNSHIP, MADELYN SHERMEYER, DONALD L. BONSELL, AND DUANE E. HULL, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is the motion (Doc. 48) of defendants Dover Township and township supervisors Madelyn Shermeyer, Donald Bonsell, and Duane Hull to dismiss the amended complaint (Doc. 46) of plaintiff Michael D'Altilio ("D'Altilio"). For the reasons that follow, the defendants' motion will be granted in part and denied in part.

I. Factual Background*fn1

Defendant Dover Township hired D'Altilio on December 29, 2003 to serve as Director of the Department of Public Works. (Doc. 46 ¶ 15.) Township ordinances required D'Altilio to undergo a six-month probationary period. (Id. ¶ 19.) Near the end of this period, he requested a review from Township Manager Michael Morris ("Morris"), who commended D'Altilio's work. (Id. ¶ 28.) Despite this positive review, defendant township supervisor Madelyn Shermeyer ("Shermeyer") requested that Morris conduct an investigation into various unspecified deficiencies in D'Altilio's performance. (Id. ¶ 30.) The five-member board of supervisors extended D'Altilio's probationary period an additional sixty days over the objections of Shermeyer and defendant supervisor Donald Bonsell ("Bonsell"), who both desired to terminate plaintiff's employment. (Id. ¶ 29.) Morris conducted the investigation requested by Shermeyer and presented a report to the board of supervisors in June 2004 that reflected satisfactory job performance by D'Altilio. (Id. ¶ 33.) The board granted D'Altilio permanent employment status, with Shermeyer and Bonsell dissenting (Id. ¶ 34-35.)

On several instances around this time, Shermeyer allegedly made derogatory remarks about D'Altilio, referring to him as "Mafia Mike" because of his Italian ethnicity and as "Humpty-Dumpty" because of his size and weight. (Id. ¶ 38.) Bonsell made offensive comments about D'Altilio's work attire, and both supervisors commented to other township employees that D'Altilio "'[wasn't] one of us'". (Id. ¶¶ 40, 42.) Shermeyer and Bonsell disapproved of his management of the Department of Public Works and criticized his handling of various Township projects. (Id. 47.) They also objected to D'Altilio's hiring of a particular job applicant, who is not identified in the complaint, due to the applicant's gender and size. (Id. ¶ 45.)

At a board meeting held December 13, 2004, Shermeyer moved to discharge D'Altilio. (Id. ¶ 49.) Supervisors Shane Patterson ("Patterson") and Michael Husson ("Husson") expressed concern with Shermeyer's motion. Husson observed that D'Altilio's personnel file contained no warnings or disciplinary history supporting discharge. (Id. ¶¶ 50-51.) Shermeyer retorted that such documentation would be available if the discharge decision were later challenged. (Id. ¶ 52.) Patterson noted that the motion circumvented established township procedure for discharging employees, and he was unwilling to support it absent a thorough investigation into D'Altilio's conduct. (Id. ¶¶ 54-55.) Nevertheless, the motion passed with the support of Shermeyer, Bonsell, and defendant Supervisor Duane Hull ("Hull"). (Id. ¶ 56.) Husson and Patterson dissented. (Id. ¶¶ 43, 47, 49.) After his dismissal, D'Altilio received a letter stating that the board had terminated his employment. (Id. ¶ 59.) The letter provided no reason for the discharge. (Id. ¶ 60.) Shermeyer continued to refer to him as "Mafia Mike" after his dismissal. (Id. ¶ 63.)

D'Altilio filed the present action on September 28, 2006. He alleges violations of his equal protection rights under 42 U.S.C. § 1983. He also advances claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-934; and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. STAT. ANN. §§ 951--963.

Defendants filed a motion to dismiss (Doc. 48) pursuant Rule 12(b)(6) of the Federal Rules of Civil Procedure. The parties have fully briefed these issues, which are ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice pleading rules require the complaint to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, --- U.S. ---, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, ---U.S. ---, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Montville Twp. v. Woodmont Builders LLC, No. 05-4888, 2007 WL 2261567, at *2 (3d Cir. 2007) (quoting Twombly, --- U.S. at ---, 127 S.Ct. at 1969). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

D'Altilio alleges violations of his equal protection rights by all defendants under 42 U.S.C. § 1983. He asserts Title VII and PHRA claims for retaliation and disparate treatment against Dover Township, to which he appends a PHRA claim for individual liability against Shermeyer, Bonsell, and Hull (hereinafter collectively "the individual defendants"). Finally, he advances a claim against Dover Township for age discrimination under the ADEA. The court will address these issues seriatim.

A. Equal Protection Pursuant to 42 U.S.C. § 1983

D'Altilio advances a claim pursuant to 42 U.S.C. § 1983*fn2 alleging that defendants deprived him of his right to equal protection guaranteed by the Fourteenth Amendment. Section 1983 provides protection when official action causes a "deprivation of rights protected by the Constitution." Monell v. Dep't of Soc. Svcs., 436 U.S. 658, 690 (1978). However, § 1983 is not an independent source of substantive rights. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Rather, "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp, 95 F.3d at 1204; see also Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992) (Section 1983 "does not provide a remedy for abuses that do not violate federal law."). In order to establish a ยง 1983 claim, a plaintiff must demonstrate, first, ...


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