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Davis-Heep v. City of Philadelphia

April 19, 2010

DARLENE DAVIS-HEEP, PLAINTIFF,
v.
CITY OF PHILADELPHIA; SHELLY R. SMITH AND KATHLEEN TIA BURKE, DEFENDANTS.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is Defendants City of Philadelphia (the "City") and Shelly R. Smith's ("Smith") (collectively, "Defendants") Motion to Dismiss the Complaint of Plaintiff Darlene Davis-Heep ("Plaintiff"). For the reasons set forth below, this Motion will be granted in part and denied in part.

I. BACKGROUND

Plaintiff is a former Senior Attorney for the City's Law Department ("Law Department"). Smith was appointed as the City Solicitor for the City of Philadelphia in January 2007, and was Plaintiff's direct supervisor. Defendant Kathleen Tia Burke ("Burke") was hired by Smith as an attorney in the Law Department and is alleged to have been in a "supervisory position" over Plaintiff. (Compl. ¶ 7.) Plaintiff asserts that Burke was having an extramarital affair with Plaintiff's then husband Jeremy Heep. (Compl. ¶¶ 8-9.) In February 2008, Plaintiff commenced a defamation suit against Burke in the Court of Common Pleas of Philadelphia County (the "Heep-Burke Lawsuit"). That suit was based on allegations that Burke, in her capacity as a supervisor, made false statements about Plaintiff in the course and scope of Burke's employment with the Law Department. (Compl. ¶ 10.) Plaintiff asserts that the Heep-Burke Lawsuit was settled in September of 2008 in exchange for a written concession by Burke that she had made misrepresentations about her. (Compl. ¶ 11.)

In an unrelated suit against the City, McKenna/Carnation v. City of Philadelphia (the "McKenna Lawsuit"),*fn1 counsel for plaintiffs McKenna and Carnation, Brian Puricelli, Esquire ("Puricelli")*fn2 requested that the City provide a copy of the settlement agreement in the Heep-Burke Lawsuit. Plaintiff asserts that the McKenna Lawsuit resulted in a jury verdict against the City in the amount of ten million dollars. Plaintiff alleges that Burke was the supervising attorney for the City during post-trial activities in the McKenna Lawsuit, and that during a settlement conference in another case against the City (Speck v. City of Philadelphia) Burke "threatened to paper to death Puricelli in the McKenna/Carnation suit if he did not settle the case." (Resp. Mot. Dismiss at 2.) Plaintiff states that this threat was reported to the court, but Burke denied making the threat. (Id.) The City asserts that in addition to seeking a copy of the Heep-Burke settlement agreement, Puricelli also sought information regarding the status of Burke's maternity leave which was a Law Department matter wholly unrelated to the McKenna Lawsuit. (Mot. Dismiss, Ex. B.) The City maintains that upon learning that Plaintiff had communicated internal personnel matters to Puricelli, she was terminated on December 4, 2008. (Mot. Dismiss, Ex. C.)

Plaintiff filed the instant Complaint on November 25, 2009, and asserts claims for "42 U.S.C. § 1983: Retaliation for First Amendment free speech and petition clause Protected Activities" (Count I); "42 U.S.C. [§] 1983- Monell/Conspiracy & Equal Protection" (Count II); "Wrongful Termination- Pendant State Claim" (Count III); and "Civil Conspiracy - Pendent State Claim" (Count IV). (Mot. Dismiss, Ex. A.)

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544, 555 (2007). Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that [they do] not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).

Notwithstanding Twombly, the basic tenets of the Rule 12(b)(6) have not changed. The Knit With v. Knitting Fever, Inc., No. 08-4221, 2009 U.S. Dist. LEXIS 30230, at *6 (E.D. Pa. Apr. 8, 2009). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

III. DISCUSSION

1. First Amendment Retaliation Claims

Plaintiff contends that the Defendants retaliated against her by terminating her employment because she: (1) reported alleged misconduct by Burke; (2) was perceived to have cooperated in a federal civil rights lawsuit against the City; and (3) made a complaint against Burke. (Compl. ¶ 17.) Plaintiff asserts that because she engaged in these protected First Amendment activities, she was wrongfully terminated from her employment. (Compl. ¶ 18.)

We follow a well-established three-step test to evaluate a public employee's claim of retaliation for engaging in activity protected under the First Amendment. See Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006); Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005); Baldassare v. New Jersey, 50 F.3d 188, 195-96 (3d Cir. 2001). First, the employee must show that the activity is in fact protected. Pickering v. Bd. of Educ., 391 U.S. 563, 573 (1968). Second, the employee must show that the protected activity "was a substantial factor in the alleged retaliatory action." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Third, the employer may defeat the employee's claim by demonstrating that the same adverse action would have taken place in the absence of the protected conduct. Id.

A public employee has a constitutional right to speak on matters of public concern without fear of retaliation. Rankin v. McPherson, 483 U.S. 378, 383-84 (1987); Baldassare, 250 F.3d at 194; Feldman v. Phila. Hous. Auth., 43 F.3d 823, 829 (3d Cir. 1994) ("A state cannot lawfully discharge an employee for reasons that infringe upon that employee's constitutionally protected interest in freedom of speech."). Public employers cannot silence their employees simply because they disapprove of the content of their speech. Rankin, 483 U.S. at 384.

A public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have "an adequate justification for treating the employee differently from any other member of the general public" as a result of the statement she made. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

Once the plaintiff meets the threshold that the speech is protected, the plaintiff must demonstrate that her interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees. Pickering, 391 U.S. at 568 (requiring courts to strike "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees").

Defendants assert that Plaintiff's Complaint is devoid of any of the elements of a First Amendment claim, "i.e. that she was acting as a citizen and/or that her speech involved an issue of public concern." (Mot. Dismiss at 8-9.)

A. Reported Misconduct by Burke

Plaintiff claims that her report of Burke's misconduct to her superiors is protected First Amendment activity. Defendants argue, however, that such action is not protected under the First Amendment. We agree with the Defendants.

First, Plaintiff is precluded from asserting First Amendment claims arising out of statements made pursuant to her official duties. Garcetti, 547 U.S. at 413. A public employee does not speak "as a citizen" when she makes a statement "pursuant to [her] official duties." Id. Here, Plaintiff made her report to the Law Department supervisors concerning Burke's alleged misconduct in the course of Burke's official duties as an attorney in the Law Department. There is no allegation in the Complaint or any other assertion by Plaintiff that such complaints about Burke were made as an individual citizen and not as an attorney in that office.

Moreover, Plaintiff's complaints about Burke are not statements of public concern. A public employee's speech involves a matter of public concern if it can "be fairly considered as relating to any matter of political, social or other concern to the community." Connick v. Myers, 461 U.S. 138, 146 (1983). The content of the speech may involve a matter of public concern if it attempts "to bring to light actual or potential wrongdoing or breach of public trust on the part of government officials." Baldassare, 250 F.3d at 195. When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior. Connick, 461 U.S. at 147; see also Miller v. Clinton County, 544 F.3d 542, 548 (3d Cir. 2008).

In Bell v. City of Philadelphia, the Third Circuit determined that a public employee's complaints against the Philadelphia District Attorney's Office sought not to expose discriminatory or harassing practices or policies, but were solely about his own abuse and mistreatment by superiors and co-workers, and thus, were not on a "matter of public concern" protected by the First Amendment from retaliation. 275 Fed. Appx. 157 (3d Cir. 2008). Here, Plaintiff's report to the City supervisors consisted of statements allegedly made by Burke regarding Plaintiff, in the context of a "physically romantic affair" between Burke and Jeremy Heep. (Compl. ...


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