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Joanne Palazzolo v. David C. Damsker

June 30, 2011


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


Presently pending before this Court is the Motion for Dismissal of the Plaintiff's Complaint filed by the Defendants, David C. Damsker ("Damsker"), Bucks County Pennsylvania (the "County"), Bucks County Pennsylvania Health Department (the "Health Department"), John Doe, Rita Roe, and all others acting in concert with them and/or on their behalf (Doc. No. 3) pursuant to Fed. R. Civ P. 12(b)(6). For the reasons outlined in the following paragraphs, the Motion shall be granted.

Factual Background

According to the allegations in the Complaint,*fn1 Plaintiff Joanne Palazzolo, was employed as the Business Manager in the Health Department from January 2007 until August 18, 2010. The Health Department is a department within Bucks County, financed and operated by Bucks County. The County is a political subdivision of the Commonwealth of Pennsylvania. Defendant David C. Damsker is the Director of the Health Department and is responsible for the overall day-to-day operation and management of the Health Department, and was Mrs. Palazzolo's immediate supervisor. As the Health Department Business Manager, Plaintiff served as an advisor to Defendant Damsker. Plaintiff was responsible for budget preparation, fiscal and grants management, and participation in the development of both long and short term plans relating to public health programs. She was also responsible for assisting Damsker in the maintenance of internal fiscal controls and monitoring capital equipment purchases, serving as a liaison on behalf of Damsker with other Bucks County departments and row offices on fiscal matters, as well as with federal and state grant and fiscal administrators, and for developing and implementing departmental fiscal policies and procedures for the Health Department in accordance with government guidelines.

The current litigation arises out of Plaintiff's termination from the Health Department on August 18, 2010. Throughout her employment, Plaintiff alleges that she observed incidents of fraud and waste in connection with the time-keeping practices of the Health Department which allowed employees to falsely report their hours in order to obtain compensation. Plaintiff repeatedly reported the continuous theft of time in the Health Department to Damsker and Damsker's supervisors including Joseph Funk, the Director of Human Services, and Brian Hessenthaler, acting Chief Operating Officer, but Damsker and his supervisors did not take any action in response to these reports.

On August 8th, 2010, Plaintiff reported to Mr. Hessenthaler various instances of fraudulent time theft in the Health Department; on August 9th she received a phone call from Mr. Funk concerning her report from the previous day. As a result of the phone call, Funk visited the offices and met with Damsker. That same afternoon, Damsker sent an email to all the department employees regarding the need for them to accurately sign-in and sign-out of work for time record-keeping purposes.

On August 10th, Plaintiff received a call from the Assistant County Controller, Kimberly Doran, requesting that Plaintiff meet with her and the County Investigator, David Rouland, the next day. Plaintiff agreed to the meeting. Before she left the office on August 11th, Plaintiff signed out on the white board in the Health Department office and stated she was on County business. At the meeting, Plaintiff answered questions about the theft of time that she reported at the Health Department and about an hourly employee in the Department who was permitted to work from home, contrary to County policy. At the end of the meeting, Ms. Doran instructed Plaintiff not to disclose to anyone the fact that they had met or the substance of their meeting.

Upon her return to the office, Damsker repeatedly questioned Plaintiff about her whereabouts that afternoon; this questioning continued the following day. Ultimately, Plaintiff told Damsker that she was out of the office on County business and would have the person with whom she had met contact him and confirm. Plaintiff was very upset by Damsker's persistent questioning.

On the way home from work that day, Plaintiff got in a car accident. She was examined by her physician and was told that she should not return to work until August 18th. In the meantime, Ms. Doran sent Damsker an email confirming that she met with Plaintiff on August 11th on County business.

While at home, Plaintiff emailed Ms. Doran and Mr. Hessenthaler requesting their protection from retaliation by Dr. Damsker under the Pennsylvania Whistleblower Law. Plaintiff sent another email to Ms. Doran to the same effect a few days later. However, when Plaintiff returned to work on August 18th, she was fired by Ms. Doran, who explained the reason she was being fired was because she lied to Dr. Damsker about her whereabouts on August 11th, 2010.

On December 21, 2010, Plaintiff initiated this lawsuit seeking to recover damages under the theories of common law wrongful discharge (Count I), the Pennsylvania Whistleblower Law, 43 P.S. § 1421 et seq.("PWL") (Count II), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et. seq. ("ADEA") (Count III). Plaintiff filed her Amended Complaint, which asserts the same counts, on February 8, 2011. Defendants move to dismiss the wrongful discharge complaint against them (Count I) on the grounds that the County and Damsker are entitled to immunity under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C. S. §8541, et. seq., and on the grounds that Plaintiff's claim for wrongful discharge is preempted by the PWL. Defendants also move to dismiss Plaintiff's claim for age discrimination under the ADEA (Count III) for failure to state a claim. Finally, Defendants move to dismiss Plaintiff's claims for punitive damages as to the County in Count I and as to the County and Dr. Damsker in Count II on the grounds that punitive damages are unavailable to the Plaintiff.

Standards for Ruling on 12(b)(6) Motions

Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff's complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). Under this Rule, a pleading "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949, 173 L. Ed 2d 868, 883 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964, 167 L. Ed. 2d 929, 940 (2007)). Although detailed factual allegations are not required, a complaint that "tenders 'naked assertion[s]' devoid of 'further factual enhancement"' is not sufficient. Id. (citing Twombly, 550 U.S. at 555).

Federal Rule of Civil Procedure 12(b)(6) states that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12 (b)(6). In order to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). In Iqbal, the Supreme Court outlined a two-part analysis that district courts must conduct when reviewing a complaint challenged under 12(b)(6). Flower v. UPMC Shadyside, 578 F. 3d 203, 210-11 (3rd Cir. 2009). The district court must first separate the "factual and legal elements of a claim" and "accept all of the complaint's well pleaded facts as true, but may disregard any legal conclusions." Id. (quoting Iqbal, 129 S. Ct. at 1949). Second, the district court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." Id. (quoting Iqbal, 129 S. Ct. at 1950). A complaint must do more than allege the plaintiff's entitlement to relief, but instead must "show" such entitlement with its facts in order to survive a motion to dismiss. Id. Therefore, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the court to draw on its judicial experience and common sense." McTernan v. City of York, 577 F. 3d 521, 530 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1950). Furthermore, in Wilkerson v. New Media Technology Charter School, Inc., 522 F.3d 315 (3d Cir. 2008), the court made it clear that the paradigm announced in Twombly applies with equal force to analyzing the adequacy of claims of employment discrimination. Wilkerson, 522 F. 3d at 322.


1. Plaintiff's Claim for Wrongful Discharge - Count I Count I of the Plaintiff's complaint is for wrongful discharge, claiming that the defendants violated the public policy of the Commonwealth of Pennsylvania by terminating her employment. Plaintiff alleges that the Defendants terminated her because she reported and opposed the practice of employees in the Health Department failing to sign-in and sign-out of work in accordance with County policy, which resulted in their being compensated for hours they did not work and stealing time from the County. As well, the complaint alleges that Defendants terminated Plaintiff's employment because she participated in an investigation ...

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