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John Tatum v. Philadelphia Housing Authority

May 26, 2011

JOHN TATUM
v.
PHILADELPHIA HOUSING AUTHORITY, ET AL.



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

MEMORANDUM RE: MOTIONS TO DISMISS

I. Introduction

This lawsuit arises from the alleged retaliation against a former assistant manager at the Philadelphia Housing Authority ("PHA"), who was demoted and later fired after he complained about PHA officials' theft and fraud. Plaintiff John Tatum filed suit for violations of 42 U.S.C. §§ 1983, 1981,*fn1 the First Amendment, and the Fourteenth Amendment against PHA and PHA employees Carl Greene, Daniel Quimby, and Diane Rosenthal (collectively, "Defendants"). Defendants have filed Motions to Dismiss the Complaint for failure to state a claim. Following a careful review of the complaint and the motions to dismiss, and having heard oral argument on the motions, the Court will grant the motions to dismiss with leave to amend.

II. Factual and Procedural History

According to the Complaint (ECF No. 1), Plaintiff worked for PHA from 1982 until January 5, 2009. Compl. ¶ 8. In his highest-ranking position, Plaintiff was Assistant General Manager, Scattered Sites, supervising more than 400 PHA employees working in over 22,000 units. Compl. ¶ 4. Defendant Greene was the Executive Director of PHA from 1998 until 2010. Compl. ¶¶ 2, 10. Defendant Quimby is PHA's General Manager of Maintenance. Compl. ¶ 11. Defendant Rosenthal is PHA's Assistant Executive Director of Finance. Compl. ¶ 12.

At some unspecified time, Greene directed Plaintiff to instruct his workers to complete maintenance repairs on PHA units, known as "service orders," that required lead and asbestos remediation. Compl. ¶¶ 15, 21-22. Plaintiff refused because his workers were not qualified to perform work involving hazardous materials. Compl. ¶ 23. In 2007, Greene instructed staff not to enter service orders for pest control, which Plaintiff complained about at a Service Order Committee meeting with Quimby and Rosenthal. Compl. ¶¶ 25-27.

Greene issued Home Depot credit cards to certain PHA employees, including Plaintiff and Quimby, to purchase goods not in stock in PHA's warehouse. Compl. ¶ 31. Quimby asked Plaintiff to order materials from Home Depot. Compl. ¶ 32. Plaintiff refused to do so unless the request was in writing and identified the work and properties that required the material. Compl. ¶ 33. Quimby later took all the Home Depot credit cards and directed that all materials requests go through PHA employee Richard Perri. Compl. ¶ 33. In December 2007 or January 2008, Plaintiff suspected some employees who reported to Quimby were stealing. Compl. ¶ 34. Plaintiff told Quimby of his suspicion and left an anonymous message on the PHA's Inspector General's tip line. Compl. ¶ 34. Plaintiff instructed his staff to make materials requests from him rather than Perri, and set up a spreadsheet to track orders. Compl. ¶ 35.

In July 2008, Philadelphia Police seized allegedly stolen PHA building materials, which were then stored in PHA Maintenance headquarters as evidence. Compl. ¶¶ 37-39. In December 2008, Quimby took Plaintiff to the headquarters and ordered Plaintiff to use the stored material in PHA units, which Plaintiff refused to do because the material was being held as evidence. Compl. ¶¶ 40-41.

One week later, Quimby instructed Plaintiff and three other PHA employees to attend a meeting regarding the thefts with attorneys, whom PHA hired at Greene's direction. Compl. ¶ 42. Plaintiff told the attorneys he had information and documents that implicated Quimby. Compl. ¶ 43. After the meeting, Plaintiff was isolated from his subordinates and demoted to Maintenance Superintendent of PHA's Blumberg Apartments. Compl. ¶ 44. While working at Blumberg, Plaintiff discovered allegedly stolen building materials. Compl. ¶ 45. Plaintiff told his supervisor about the material, which Quimby later removed. Compl. ¶ 46. On January 5, 2009, Quimby issued a Notice of Termination to Plaintiff, stating Plaintiff was suspended for ten days with intent to discharge due to failure to supervise. Compl. ¶ 47. Plaintiff believes he was terminated because he spoke out against the waste and theft. Compl. ¶ 48.

Plaintiff filed his Complaint on December 30, 2010. Count One, against Greene, Quimby, and Rosenthal in their individual capacities, alleges that Plaintiff engaged in protected speech by reporting and opposing wrongdoing at PHA, resulting in his termination. Count Two, against PHA, Greene, Quimby, and Rosenthal in their official capacities, alleges that PHA had a policy, practice, or custom of failing to properly sanction or discipline its officials for violations of PHA employees' constitutional rights, including retaliating against employees who exercise their First Amendment rights.

PHA and Quimby filed a Motion to Dismiss and in the Alternative a Motion to Strike on March 4, 2011. (ECF No. 17) Rosenthal filed a Motion to Dismiss on March 4, 2011. (ECF No. 18) Greene filed a Motion to Dismiss on March 30, 2011. (ECF No. 27) Plaintiff filed an Omnibus Response to the PHA/Quimby and Rosenthal Motions (ECF No. 23), and separately responded to Greene's Motion (ECF No. 35). PHA and Quimby filed a reply brief (ECF No. 25), in which Rosenthal joined (ECF No. 30). Quimby also filed a motion for joinder in Greene's argument regarding qualified immunity. (ECF No. 40) The Court held oral argument on the motions on May 24, 2011.

III. The Parties' Contentions

A. PHA and Quimby

Defendants PHA and Quimby contend that Plaintiff fails to state a First Amendment retaliation claim in Count One as a matter of law, because Plaintiff's alleged speech was made pursuant to his employment duties and was not protected under the First Amendment. Even if Plaintiff's speech was protected, Plaintiff did not allege a causal connection between the speech and the alleged retaliation. Defendants contend that Count Two of the Complaint fails to state a claim because Plaintiff makes legally ...


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