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Smith v. City of Philadelphia

March 25, 2009


The opinion of the court was delivered by: Schiller, J.


Plaintiff Tanya Smith brings this action against Defendants the City of Philadelphia; Michael Nutter, the Mayor of Philadelphia; Amy Kurland, the City's Inspector General; and Celia O'Leary, the City's Acting Personnel Director, alleging that Defendants constructively terminated her and defamed her. Plaintiff asserts three claims: defamation, pursuant to 42 U.S.C. § 1983; violation of her procedural due process rights, pursuant to Section 1983; and intentional infliction of emotional distress. Currently before the Court is Defendants' motion to dismiss. For the reasons below, the motion is granted in part and denied in part.


Plaintiff began working for the City of Philadelphia in 1998 and became the City Director of Personnel on November 28, 2006. (Compl. ¶ 6.) The City Inspector General's Office investigated Plaintiff's office while Plaintiff was out on extended medical leave.*fn1 (Id. ¶¶ 7, 8.) On May 14, 2008, Plaintiff was constructively terminated from the Department of Personnel. (Id. ¶ 12.)

According to a May 15, 2008 mayoral press release, the Inspector General's investigation revealed that Plaintiff, after learning that another Personnel Department employee failed a civil service examination, illegally cancelled part of the test to benefit that employee. (Id. ¶ 18(i).) The City cited the Inspector General's report as the basis for taking action against Plaintiff. (Id. ¶ 13.) Plaintiff alleges that she was never informed of the nature of the investigation, that the Inspector General's Office denied her request to secure a copy of the report, and that she was never given an opportunity to rebut the report's charges. (Id. ¶¶ 9-10, 14.)

Plaintiff further alleges that Defendants informed the news media that she was terminated for dishonesty. (Id. ¶ 15.) She cites to a mayoral press release and a Philadelphia Daily News article, in which Defendants accused Plaintiff of improperly canceling the examination so as to aid her friend and impeding the Inspector General's investigation, and made other allegedly false statements about her. (Id. ¶¶ 18a-18c, 18f-18i.) Defendants also allegedly published false and defamatory statements about Plaintiff on the internet and the radio. (Id. ¶¶ 18d, 18e, 18j.) Plaintiff, who alleges that she maintained a good reputation "generally and in her occupation as Personnel Director" prior to that point, alleges that Defendants' statements were false and that they impugned her honesty, integrity, virtue and reputation. (Id. ¶¶ 20, 22-23.)


A court reviewing a motion to dismiss, pursuant to Rule 12(b)(6), must accept the complaint's allegations as true, read those allegations in the light most favorable to the plaintiff, and determine whether a reasonable reading indicates that relief may be warranted. Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64 (3d Cir. 2008). Although the federal rules impose no probability requirement at the pleading stage, a plaintiff must present "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a cause of action. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2007); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). Simply reciting the elements will not suffice. Phillips, 515 F.3d at 231. Furthermore, a court need not accept "unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation." Baraka v. McGreevy, 481 F.3d 187, 195 (3d Cir. 2007) (internal quotations and citation omitted). When faced with a motion to dismiss for failure to state a claim, courts may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004).


A. Plaintiff has Stated a Section 1983 Claim for Deprivation of a Liberty Interest

To state a claim under Section 1983, a plaintiff must allege that a person acting under color of state law deprived him of a federally protected right. See 42 U.S.C. § 1983; see also West v. Atkins, 487 U.S. 42, 49 (1988). Defendants move to dismiss Count One of Plaintiff's Complaint, titled "Defamation 42 U.S.C. § 1983," arguing that "Section 1983only provides redress for violations of federal constitutional law or statutory law, not state law claims such as defamation." (Defs.' Mem. of Law in Supp. of Mot. to Dismiss at 4.) Plaintiff counters that her claim is properly brought pursuant to Section 1983 because it is based on a deprivation of procedural due process, specifically, a deprivation of her Fourteenth Amendment liberty interest.

To state a claim under § 1983 for deprivation of procedural due process rights, a plaintiff must allege that: (1) he was deprived of an individual interest that is encompassed within the Fourteenth Amendment's protection of "life, liberty or property;" and (2) the procedures available to him did not provide "due process of law." Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). Since reputation alone is not a protected liberty interest under the Fourteenth Amendment, "to make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." Id. at 236; see also Dee v. Borough of Dunmore, 549 F.3d 225, 233 (3d Cir. 2008). This test, known as the "stigma-plus" test, is satisfied "when an employer 'creates and disseminates a false and defamatory impression about the employee in connection with his termination.'" Hill, 455 F.3d at 236 (quoting Codd v. Velger, 429 U.S. 624 (1977)). The defamatory impression constitutes the "stigma," while the termination constitutes the "plus." Id.

In Hill, the plaintiff, the Borough Manager of Kutztown, alleged that he was forced to resign from his position because the Mayor harassed him and falsely accused him of improperly handling Borough funds. The plaintiff brought several claims, including one for deprivation of procedural due process based on his liberty interest in his reputation. The Third Circuit reversed the dismissal of this claim, holding that "a public employee who is defamed in the course of being terminated or constructively discharged satisfies the 'stigma-plus' test even if, as a matter of state law, he lacks a property interest in the job he lost." Hill, 455 F.3d at 238.

In her Complaint, Plaintiff points to several publications in which the Defendants made statements that she was terminated as a result of unethical behavior revealed by the Inspector General's investigation. (Compl. ¶¶ 18a-18j.) Plaintiff alleges these statements were false and impugned her previously good reputation. (Id. ¶¶ 17, 22-25); see Hill, 455 F.3d at 236 ("To satisfy the 'stigma' prong of the test, it must be alleged that the purportedly stigmatizing statement(s) (1) were made publicly, and (2) were false.") (internal citations omitted). She also alleges that she was never informed of the investigation into ...

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