The opinion of the court was delivered by: Goldberg, J.
This lawsuit arose after Plaintiff, Stephen Ruder, was terminated from his employment with Pequea Valley School District (Pequea Valley). Ruder has filed suit against his former employer, Pequea Valley, his former medical provider, Regional Gastroenterology Associates of Lancaster (RGAL), and numerous individuals. Ruder's ten count amended complaint alleges civil rights violations pursuant to 28 U.S.C. § 1983 (Count I); violations of the Americans with Disabilities Act (ADA) (Count II); violations of the Family Medical Leave Act (FMLA) (Count III); violations of the Pennsylvania Human Relations Act (Count IV); interference with contractual relations (Count V); intentional infliction of emotional distress (Count VI) ; negligence (Count VII); defamation (Count VIII); invasion of privacy (Count IX); and civil conspiracy (Count X).
Presently before the Court are the motions to dismiss of the Pequea
Valley School District Defendants' (PVSD Defendants)*fn1
and the Regional Gastroenterology Defendants' (RGALDefendants).*fn2 Upon consideration of the respective
briefs and for the reasons expressed below, Defendants' motions will
be granted in part and denied in part.
Based upon the averments in the amended complaint, the pertinent facts, viewed in the light most favorable to Ruder, are as follows:
Stephen Ruder was hired by Pequea Valley in 2000, became the art teacher at Pequea Valley High School in 2002 and was thereafter promoted to the Chair of the Art Department for Pequea Valley in 2005. Ruder was employed pursuant to employment contracts corresponding to each academic year. (Am. Compl. ¶¶ 6, 24-26.)
In March 2004, Ruder was diagnosed with Crohn's disease, an autoimmune disorder which causes extreme abdominal pains, diarrhea and fevers, and is associated with internal infections and abscesses that form in the pelvic cavity. Chron's is exacerbated by stress and can occur through "relapsing remitting" episodes that are unpredictable. The disease is a chronic condition that requires life-long medical management, medication and hospitalizations. (Am. Compl. ¶¶ 27-28.)
Ruder informed Pequea Valley that he was diagnosed with Crohn's disease in March 2004. While he was able to continue to perform his essential job duties, Ruder alleges that he made numerous requests for accommodations that were ignored. (Am. Compl. ¶¶ 29-31.)
Defendant Jason Marin became the principal of Pequea Valley High School, and Ruder's immediate supervisor, in 2007. (Am. Compl. ¶¶ 33-35.) Ruder alleges that Marin maintained a "surveillance record" of him because his Crohn's disease required intermittent leave from work. On October 31, 2008, Marin issued a three day suspension to Ruder for attending a medical appointment on October 6, 2008. Marin informed Ruder that in the future he had to personally inform him or the assistant principal when he expected to be late or leave work early. According to Ruder, this directive was not placed in writing, was more stringent than published school policy, and only applied to him. Thereafter, Ruder followed this directive and there were no attendance issues through February 5, 2009. (Am. Compl. ¶¶ 36, 38-40.)
Ruder also contends that he was treated "differently and disparately" because of his disability in that Marin disciplined him "for counseling a student and exercising his rights of free speech by membership in a comedy website that was unrelated to school and outside work hours." Ruder points out that Defendant John Bowden, Pequea Valley's Business Administrator, maintained a Facebook account with his picture taken in a public bar and Marin maintained a Facebook account through which he communicated with students. (Am. Compl. ¶ 37.) Ruder alleges this disparate treatment violated his First Amendment rights.
On February 2 and 3, 2009, Ruder notified Marin, Bowden, and Defendant Patrick Hallock, the Superintendent of Pequea Valley, that his Crohn's condition had deteriorated and that he was to be hospitalized. Ruder requested information regarding medical leave from work, but contends that Defendant employers failed to respond. (Am. Compl. ¶ 40.)
According to Ruder, because he had received no response about his need for hospitalization, on February 5, 2009, he attempted to travel to work. While en route, he had a severe flare up that caused him to stop at the nearest lavatory for relief and care. Ruder avers that his Crohn's caused him severe pain and disorientation and that he had attempted to call Marin or the assistant principal, as required by Marin, but inadvertently pressed the wrong button on his phone which mistakenly connected him to the library. Ruder claims he left school almost immediately after arriving and was admitted to Hershey Medical Center. (Am. Compl. ¶ 40.)
Ruder returned to work on February 11, 2009. He notified Defendant employers that he remained ill but had returned because he did not receive any response regarding his outstanding requests for medical leave information and authorization. On that same day, and in response to Ruder's notice, Defendant Hallock paid Ruder for the day, sent him home, and directed that he not return until he presented a "medical release" to return to work. (Am. Compl. ¶¶ 42-43.)
On March 18, 2009, Ruder phoned RGAL, where he had been treated for his Crohn's disease, and requested a medical statement to return to work. On March 19, 2009, Ruder returned to work and placed the medical statement he had received in Defendant Marin's mailbox. Thereafter, Defendant Bowden contacted RGAL about the statement and spoke to Defendant Marcia Gephart, the RGAL Health Information Manager, who, according to Ruder, "published falsehoods that the medical statement was not authentic and accused [him] of forging the medical statement." Ruder also alleges that the RGAL Defendants admitted to deficient record keeping "including omitted 'overlooked' medical statements and failure to electronically record events." (Am. Compl. ¶¶ 44-46.)
On March 20, 2009, Ruder was placed on a ten-day suspension, and thereafter, on or about March 28, 2009, he was placed on indefinite suspension. On June 11, 2009, Defendant Pequea Valley School Board and named Defendant officers and voting members terminated Ruder's employment. (Am. Compl. ¶¶ 55-57.) According to Ruder, the PVSD Defendants "published" falsehoods and misstatements that wrongfully accused him of the following: intentionally violating the attendance policy on February 5, 2009; insubordination in failing to appear for a disciplinary meeting on February 6, 2009, while knowing that Ruder was in Hershey Medical Center; failing to provide documentation of his disability to support leave from work; improperly taking cash from students, promising to purchase art supplies; taking $60.00 from a student and never buying the supplies; and forging the RGAL medical statement dated March 18, 2009. (Am. Compl. ¶ 58.) Ruder alleges that the statements were published to the faculty, staff, students and community at large without investigation as to the truthfulness of the statements. (Am. Compl. ¶¶ 61-63.)
Rule 12 of the Federal Rules of Civil Procedure enumerates various defenses and objections a party may raise in response to a pleading. See Fed. R. Civ. P. 12.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), a court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, "'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show [n]'-'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.
Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). "[M]otions to strike are disfavored and usually will be denied 'unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.'" Druffner v. O'Neill, 2011 WL 1103647, at * 3 (E.D.Pa. March 24, 2011) (citing Kim v. Baik, 2007 WL 674715, at * 5 (D.N.J. Feb. 27, 2007) (quoting River Road Dev. Corp. v. Carlson Corp., 1990 WL 69085, at * 2 (E.D.Pa. May 23, 1990))).
The PVSD Defendants and the RGAL Defendants have filed separate motions to dismiss. The PVSD Defendants seek to dismiss Counts I, II, III, IV, V, VI and VIII under Fed. R. Civ. P 12(b)(6). The RGAL Defendants seek to strike Plaintiff's exhibits (and all references thereto) from the amended complaint pursuant to Fed. R. Civ. P. 12(f), and to dismiss Counts V, VI, VII, VIII, IX, and X (improperly labeled IX) under Fed. R. Civ. P. 12(b)(6).
A. Motion to Dismiss/Strike under Federal Rule of Civil Procedure 12(f)
The RGAL Defendants first request that the Court "dismiss Plaintiff's amended complaint pursuant to Fed.R.Civ.P 12(f) for failure to conform to law or rule of court, and for the inclusion of scandalous and impertinent matter." The RGAL Defendants point out that Ruder has attached 50 pages of exhibits to the amended complaint "consisting mostly of emails and other documents that amount to hearsay" and urge that "[g]iven the nature of the impertinent and scandalous material that Ruder seeks to place before this Honorable Court, Paragraphs 31, 36, 37, 41, 44, 46, 53, 54, 57, and 74, and Exhibits A through O should be stricken from the Amended Complaint with prejudice." (RGAL Defs.' Mot. ¶¶ 12-32.)*fn3
I find that Ruder's exhibits are related to the controversy before us. Further, I do not find them to include any matter so controversial or confusing as to cause prejudice to Defendants.
B. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)
i.Count I - PVSD Defendants
In Count I, Ruder alleges violations of his civil rights in contravention of 42 U.S.C. § 1983. Specifically, he alleges violations of his property and liberty interests; First Amendment rights; Fourteenth Amendment right to equal protection; and that he was a victim of a conspiracy.*fn4
The PVSD Defendants argue that Ruder's First Amendmentclaim should be dismissed because, while it is not entirely clear what speech Ruder is citing to, any speech described in Ruder's amended complaint is not the type protected by the First Amendment. (PVSD Defs.' Mem. 6.) Ruder responds that he was retaliated against in violation of the First Amendment for counseling a student, participating in a comedy website and for invoking his union protections. (Pl.'s Resp. PVSD Mem. 15-16.)
To state a First Amendment retaliation claim, a public employee must allege: (1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action. DeLuzio v. Monroe County, 271 Fed.Appx. 193, 196 (3d Cir. 2008). As to the first prong, the First Amendment protects a public employee's statement 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 made." Hill v. Borough of Kutztown, 455 F.3d 225, 241--42 (3d Cir. 2006) (citing Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Speech implicates matters of public concern when it involves social or political concerns of the community. Gorum v. Sessoms, 561 F.3d 179, 187 (3d Cir. 2009).
Ruder first alleges that Marin admonished and disciplined him for "counseling a student and exercising his rights of free speech over the internet in a comedy website that was unrelated to school and outside work hours," while other employees were not "disciplined and silenced" for publishing on facebook and emailing with students. (Pl.'s Resp. to PVSD Mem.15.)
After careful review of the amended complaint, I cannot determine whether this speech involved social or political concerns of the community, thus involving a matter of public concern. Further, because the activity is unclear, I cannot determine whether there was adequate justification for allegedly treating Ruder differently than other employees.
When a complaint does not contain allegations supporting each element of a plaintiff's claim, but "the deficiency is not so material that the pleading should be dismissed under Rule 12(b)(6), a more definite statement is appropriate . . . . [S]uch motions [are] preferable to dismissal under Rule 12(b)." Lada v. Deleware County Community College, 2009 WL 3217183, at * 6 (E.D.Pa. Sept. 30, 2009) (citing Moore's Federal Practice §§ 12.36,  (3d ed. 2007)). Even when a plaintiff does not seek leave to amend, if a complaint is vulnerable to 12(b)(6) dismissal, "a District Court must permit a curative amendment, unless an amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000)). "Futility" means that the "complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir.1996) (citing 3 Moore's Federal Practice ¶ 15.08, at 15-80 (2d ed.1993))). In assessing futility, the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6). Id. (citing 3 Moore's at ¶ 15.08, at 15-81).*fn5
As previously noted, I findthat Ruder's claims of being disciplined for counseling a student and participating in a comedy club are too vague to determine whether they are protected by the First Amendment. However, "because the deficiency is not so material that the pleading should be dismissed under Rule 12(b)(6)," and because I do not find that amendment would be futile, Ruder is granted fourteen days to amend his complaint to reassert his § 1983 First Amendment Retaliation claim with more specificity. See Lada, 2009 WL 3217183 at * 6.
Ruder next argues that "speaking out" to invoke his union protections and assert a claim for employment benefits was protected speech under the First Amendment, specifically, the Petition Clause. (Pl.'s Resp. to PVSD Mem.15-16). (The Petition Clause of the First Amendment provides that there shall be "no law abridging . . . the right of the people . . . to petition the Government for a redress of grievances." U.S. Const. Amend. I.).
Again, the Court must first determine whether the speech at issue was protected by the First Amendment. "Private grievances as an employee" and "speech related solely to mundane employment grievances" are not examples of speech constituting matters of public concern, and thus, are not protected by the First Amendment. Lada, 2009 WL 3217183 at * 4 (citing Miller v. Clinton County, 544 F.3d 542, 550 (3d Cir. 2008); Sanguigni v. Pittsburgh Board of Public Education, 968 F.2d 393, 399 (3d Cir.1992)). However, "a public employee who has petitioned the government through a formal mechanism [such as a lawsuit, grievance, or workers compensation claim] is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern." Id. at * 5 (citing Foraker v. Chaffinch, 501 F.3d 231, 236 (3d Cir. 2007)). Internal "complaints up the chain of command," conversely, do not implicate the right to petition under the First Amendment. Id. Neither does seeking informal assistance from a union -including by letter, phone call, or ...