The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Debra A. Olsen, a police officer for Camp Hill Borough, filed this 42 U.S.C. § 1983 action alleging a First Amendment retaliation claim and a Fourteenth Amendment substantive due process claim. The suit arises from the Borough's unsuccessful attempt to return Olsen to a rotating work schedule as opposed to the fixed schedule she was working for years because of a health condition. The defendants are the Borough; Lou Thieblemont, Camp Hill's mayor; Gregory J. Ammons, Camp Hill's police chief; and Michael Hope and James McNaughton, Camp Hill police officers.
We are considering the defendants' motion to dismiss Plaintiff's amended complaint under Fed. R. Civ. P. 12(b)(6).
In considering a motion to dismiss, we must accept as true the factual allegations in the complaint and construe any inferences to be drawn from the allegations in Plaintiff's favor. See Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). The court is not limited to evaluating the complaint alone. It may consider documents that form the basis of a claim. Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). It may also consider "documents whose contents are alleged in the complaint and whose authenticity no party questions," even though they "are not physically attached to the pleading...." Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).
A complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007). Detailed factual allegations are not required, id. at 570, 127 S.Ct. at 1964-65; Pryor, supra, 288 F.3d at 564, only a "short and plain statement" showing the right to relief. Pryor, supra, 288 F.3d at 564 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) and quoting Fed. R. Civ. P. 8(a)(2)). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, U.S.,, 129 S.Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[M]ore than labels and conclusions" are required. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65.
The amended complaint alleges the following. The Borough hired Plaintiff in or about January 1990. (Am. Compl. ¶ 10). She was hired over the objections of defendant Ammons, the chief of police, who did not want a female police officer in the Borough, fought against the plaintiff's hiring, and in response to that hiring, "exclaimed that no one tells him what or who runs his police department...." (Id. ¶¶ 13 and 5). From the beginning of Plaintiff's employment, Defendants Ammons, McNaughton and Hope treated her in a hostile, demeaning and disrespectful way. (Id. ¶¶ 16 and 17). Ammons would frequently ridicule Plaintiff in front of her fellow officers. (Id. ¶ 18). McNaughton sexually harassed her on a number of occasions. (Id. ¶ 19). More specifically, in March 2008 Ammons and Hope harassed her over a Vehicle Code, a pager and a speed timing device. (Id.). In July 2008, McNaughton secretly disclosed to third parties that the Borough had a secret policy that the Police department would not back Plaintiff up in a dangerous situation. (Id.). In February 2008, Hope harassed Plaintiff over a misspelling in a report. (Id. ¶ 20). The defendants' unlawful conduct has been on a recurring basis for over ten years, including the two years preceding the filing of the complaint. (Id. ¶ 21).
In or about February 1998, "the plaintiff suffered a debilitating seizure while performing her appointed duties as a police officer...." (Id. ¶ 11). She suffered "serious injuries as a result of her collapse" following the seizure but was able to return to work within six months under an agreement with the Borough. (Id. ¶ 12).
Although not specified in the complaint, this agreement allowed Plaintiff to work a fixed schedule, and thereby avoid sleep deprivation, as Ammons and Thieblemont knew. (Id. ¶ 23). However, in or about October 2006, Ammons issued a memo which would have required Plaintiff to work beyond the end of her shift and to work a double shift. Plaintiff objected and after she contacted her doctor, he objected to her working a double shift. (Id. ¶ 22). Ammons admitted under oath either in the subsequent workers'-compensation hearing or the union-grievance proceedings that there was no pressing need to discontinue the agreement. (Id. ¶ 24).
Ammons and Thieblemont ordered Plaintiff to appear at a meeting where the memo was given to her. It read: "effective March 1, 2007, you will be returning to a rotating shift schedule." At the meeting, Plaintiff was also ordered to desk duty and not to drive an official car, but was permitted to use her own car for police business. (Id.). These decisions were not based on medical information but were instead retaliatory for Plaintiff's invocation of the "ongoing 10 year agreement" and for contacting her doctor. (Id.).
At the October 2006, meeting, she was told, "We want a separate opinion," meaning an opinion from another doctor concerning her medical condition and the double shift. (Id. ¶ 25). The "directive" for another opinion was also in retaliation for Plaintiff's objecting to the changes in her working conditions and submitting her doctor's opinion. (Id.).
Plaintiff learned at the end of February 2007, she was going to be placed on rotating shifts in early March 2007, and she filed a written grievance with Ammons on February 28, 2007. On March 1, 2007, she was placed on rotating shifts, and Ammons denied the grievance. (Id. ¶ 28). "The arbitrator commented that the testimony of the defendant's expert was found to be 'not credible' for a variety of obvious reasons.*fn1 Further, the Arbitrator had issued a January 16, 2007 decision where he found plaintiff fit for a return to regular duty," (id.),*fn2 but based on discovery in the ...