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Jacquelyn B. N‟Jai v. Pittsburgh Board of Public Education


July 28, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer


I. Introduction

This matter is before the Court on Defendant Pittsburgh Board of Public Education‟s (the "Board") Motion to Dismiss (Docket No. 116) Plaintiff‟s Amended Complaint (Docket No. 106). The Board argues that Plaintiff has failed to allege facts sufficient to set forth a claim upon which relief can be granted. This matter has been fully briefed and is ripe for disposition. For the reasons discussed herein, the Board‟s motion (Docket No. [13]) is GRANTED.

II. Procedural History

On October 8, 2010, N‟Jai filed a Complaint against the Board, among other defendants. (Docket No. 4). Because N‟Jai referred to several of the defendants as "Defendants" throughout her Complaint, it was unclear which claims she asserted against each defendant. Although N‟Jai‟s claims were not well articulated, her claims against the Board seemed to be primarily for invasion of privacy and retaliation. On December 21, 2010, the Board filed a Motion to Dismiss (Docket No. 10) and a supporting brief (Docket No. 11).*fn1 Plaintiff filed a brief in opposition to the Board‟s motion on January 3, 2011 (Docket No. 18). On May 2, 2011, N‟Jai filed an Amended Complaint wherein she attempted to clarify her claims against the Board. (Docket No. 106). The Board‟s Motion to Dismiss was denied without prejudice on May 4, 2011 as a result of the filing of the Amended Complaint which rendered the motion moot.

In the Amended Complaint, Plaintiff‟s claims against the Board are narrowed to Count VIII for the Board‟s alleged violation of the Privacy Act, 5 U.S.C. § 552a, and Count IX for the state law tort cause of action of intentional infliction of emotional distress. (Docket No. 106 at 72-81). Subsequently, the Board filed the present Motion to Dismiss Plaintiff‟s Amended Complaint. (Docket No. 115) and supporting brief (Docket No. 116). Plaintiff filed a response to the motion. (Docket No. 121). The matter is now fully briefed and ripe for decision.

III. Factual Background

Jacquelyn B. N‟Jai was employed as a teacher by the Board from 1990 to 2001. (Docket No. 104-5 ¶ 1). After her termination on Oct. 25, 2001, N‟Jai applied for retirement benefits from the Public School Employees‟ Retirement System*fn2 ("PSERS") and was granted a pension benefit in December, 2001. (Docket No. 104-3 ¶¶ 13, 23-25, 27). From that point onward, N‟Jai began receiving a monthly pension payment (Docket No. 104-3 ¶ 27). At the time of her discharge, N‟Jai had a mailing address of P.O. Box 10133, Pittsburgh, PA 15232 ("P.O. Box"). This address had been her mailing address since 1990, and was the address provided to PSERS in 2001. (Docket No. 104-5 ¶¶ 7, 12, 17).

In 2001, inaccurate information attached to N‟Jai‟s PSERS account resulted in her receiving reduced benefits for that year, and in 2001-2003 the Board withheld a "substantial" portion of her pay due to the reduction. (Docket No. 104-3 ¶¶ 30-31). In 2003, PSERS sent a faxed request to the Board asking for N‟Jai‟s salary information for January, and February of 2000 and an explanation for why she received a 34% pay increase at the start of the 1997-98 school year. (Docket No. 116 at 12).*fn3 A Board employee provided two handwritten notes explaining the pay increase was a result of N‟Jai‟s advancement to step 10 on the teacher‟s salary scale, and that her salary in January and February was lower than originally reported due to absences. (Id.).

N‟Jai worked part-time for the Wilkinsburg School District for the 2004-05 school year, and one deduction was taken from her pay for her PSERS retirement account but was later refunded to her. (Docket No. 104-5 ¶¶ 7, 9-11). In November, 2004, N‟Jai also obtained employment at the Imani Christian Academy, a private school. (Docket No. 99 ¶¶ 5); (Docket No. 106 ¶ 53). By 2006, N‟Jai was no longer employed by Wilkinsburg. (Docket No. 99 ¶ 6).

Between 2005 and 2010, the Board accessed N‟Jai‟s PSERS account on multiple occasions, presumably using her name, address, and social security number to do so, and updated it without her knowledge or consent, changing her mailing address from the P.O. Box address to the Rebecca Avenue address. (Docket No. 104-3 ¶¶ 33, 37, 40-41). The first unauthorized address change occurred in 2005. (Docket No. 116 at 10). Sometime between 2005 and 2007, N‟Jai moved from her Rebecca Avenue residence without informing the Board of her change in address. (Docket No. 99 ¶¶ 8-9); (Docket No. 104-5 ¶¶ 12-13).

In January of 2007, PSERS attempted to mail several documents to N‟Jai‟s Rebecca Avenue address but they were returned to sender. (Docket No. 104-5 ¶ 16). In January or February of 2007, PSERS attempted to mail an envelope to N‟Jai‟s Rebecca Avenue address but the envelope was undeliverable. Since PSERS had requested "address service," the U.S. Postal Service sent PSERS a form listing N‟Jai‟s P.O. Box address as her current mailing address. (Docket No. 99 ¶ 12). On April 4, 2007, PSERS sent a letter to N‟Jai‟s P.O. Box address notifying her that PSERS may have important information for her, but that it needed a confirmation of her current mailing address. (Docket No. 99 ¶ 13). The letter required N‟Jai to fill out a form before PSERS could update N‟Jai‟s address, and the form required her social security number, date of birth, current address, telephone number, and signature. N‟Jai completed the form and PSERS received it on April 19, 2007. (Id.). That same year, PSERS changed N‟Jai‟s mailing address back to the P.O. Box address. (Docket No. 104-5 ¶ 17).

In February, 2008, PSERS sent a letter to N‟Jai‟s Rebecca Avenue address informing her that PSERS had deducted contributions from her wages for the 2004-2005 school year due to her employment with the Wilkinsburg School District. (Docket No. 99 ¶ 14). It further stated that since she did not meet the minimum employment requirements for the 2004-05 school year, her contributions totaling $512.37 were to be returned to her. The letter was returned to PSERS as undeliverable on March 7, 2008. (Id.). On two separate occasions, in or around February, 2009 and January, 2010, PSERS mailed a 1099 Federal Income Tax Form to N‟Jai‟s Rebecca Avenue address, but they were returned to sender as undeliverable. (Docket No. 99 ¶¶ 15-16).

On or about February, 2010, a Board employee once again accessed N‟Jai‟s PSERS account without her permission and updated it with erroneous mailing address information, resulting in two of her monthly pension payments being delayed. (Docket No. 104-3 ¶¶ 36, 40). The payments were withheld because PSERS suspected it had not had N‟Jai‟s current mailing address for over a fifteen month period. (Docket No. 99 ¶¶ 10, 17-19). When N‟Jai discovered the payments had not been deposited into her account she contacted PSERS and communicated with several employees via telephone and e-mail, including Sandra J. Boyle and Evelyn Tatovski. (Docket No. 99 ¶ 20). Boyle informed N‟Jai that the Board had updated her address information. (Docket No. 121 at 11). After her conversation with Boyle, N‟Jai filled out and submitted a "change of address for PSERS retirees" form on March 1, 2010. (Docket No. 99 ¶ 21).

On March 3, 2010, N‟Jai e-mailed PSERS through ("PS, Contact"), informing them she had not received her direct deposit check on February, 26, 2010. In turn, she received a response explaining her 1099 tax form had been returned to PSERS and that payment would be delayed by 3-4 weeks. (Docket No. 99 ¶ 22). The following day, PSERS employee Carol*fn4 sent N‟Jai an e-mail explaining that PSERS policy is to suspend a direct deposit when it has an invalid mailing address. (Docket No. 99 ¶ 23).

On March 9, 2010, N‟Jai sent "PS, Contact" an e-mail requesting any written policy that states PSERS can suspend a direct deposit when it has incorrect address information, and informing them that PSERS had her P.O. Box address since 2001. (Docket No. 99 ¶ 25). N‟Jai‟s March 9 e-mail was forwarded to PSERS employee, Sandra Colantuono and on March 12, after an exchange of e-mails, Colantuono informed N‟Jai payment would be sent to her bank on March 22, 2010. (Docket No. 99 ¶¶ 26-27). Also, on March 31, 2010, Sandra Boyle sent N‟Jai a letter explaining PSERS had made an error and was in the process of reinstating her monthly direct deposit payments. (Docket No. 99 ¶ 28). Soon after, the delayed payments were deposited into N‟Jai‟s bank account. (Docket No. 99 ¶ 29). On April 12, 2010, N‟Jai requested her PSERS records, including all records regarding a change in her address, and on April 16, 2010, PSERS provided her with relevant records. (Docket No. 99 ¶¶ 30-31).

N‟Jai claims that her 1099 tax information was withheld from her over a fifteen month period due to the Board changing her mailing address (Docket No. 104-3 ¶ 35). While she does not provide start and end dates for the fifteen month period, N‟Jai asserts that PSERS changed her mailing address to the invalid Rebecca Avenue address in February, 2010. (Docket No. 104-3 ¶¶ 36). If the February, 2010 date for the erroneous address change is presumed to be accurate and the first direct deposit check was withheld on February, 26, 2010, then less than a month could have elapsed before PSERS decided to suspend payment. (Docket No. 99 ¶ 22).

N‟Jai is alleging that an unnamed Board employee used her name, social security number, and other confidential information twenty-one times over a period of approximately fifteen months without her knowledge or consent. (Docket No. 106 ¶¶ 532-33); (Docket No. 116 at 4). It is not readily apparent to the Court when this fifteen month period began and ended, or how she arrived at the number twenty-one.

IV. Legal Standard

On a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the Court must " "accept all factual allegations as true, construe the complaint in the light most favorable to Plaintiff, and determine whether, under any reasonable reading of the complaint, Plaintiff may be entitled to relief.‟ Phillips, at 231. 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 (citing Twombly, 550 U.S. at 544); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); and FED. R. CIV. P. 8(a)(2)

(providing that a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief). The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for "all civil actions.‟" Iqbal, 129 S.Ct. at 1953; Fowler, 578 F.3d at 210-11. The Court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal, 129 S.Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Fowler, 578 F.3d at 210; and Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).

The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950 (citing Twombly, 550 U.S. at 556); see also Fowler, 578 F.3d at 210-11 (holding that in light of Iqbal, a district court should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true," "determine whether the facts" pled are sufficient to show a "plausible claim for relief."). Ultimately, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556).

V. Discussion

Although N‟Jai‟s claims were not well articulated, she continuously stated throughout her pleadings that her claims against the Board in the Complaint are "invasion of privacy" and "retaliation." (Docket No. 104-3 at 2). On May 2, 2011, N‟Jai filed an Amended Complaint wherein she clarified her claims against the Board to some degree. (Docket No. 106). Plaintiff‟s claims against the Board now appear to be narrowed to Count VIII for the Board‟s alleged violation of the Privacy Act, 5 U.S.C. § 552a, and Count IX for intentional infliction of emotional distress. (Docket No. 106 at 72-81). The Court will address each claim, in turn.

a.Privacy Act

Plaintiff asserts in Count VIII of the Amended Complaint that her rights under 5 U.S.C. § 552a (the Privacy Act) have been violated by the alleged disclosure by the Board of personal information, specifically her address, to PSERS without her consent. While N‟Jai sets forth a spirited argument that her privacy has been violated, her claim must fail because, simply put, the Privacy Act does not apply to the Board. Section 3 of the Privacy Act provides, in relevant part, that unless an enumerated exception applies, "no agency shall disclose any record which is contained in a system of records by any means . . . except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." 5 U.S.C. § 552a(b). Walsch v. Krantz, 386 Fed. Appx. 334, 336 (3d Cir. 2010); see also Schwier v. Cox, 340 F. 3d 1284, 1287-88 (11th Cir, 2003).

In Walsch, Appellant brought suit against a school district, alleging that school employees eavesdropped on a private telephone conversation. The Third Circuit dismissed Appellant‟s Privacy Act claim against the school district, holding that section three of the Privacy Act only protects an individual against a federal agency‟s disclosure of his or her confidential information. Id., at 336. (citing 5 U.S.C. § 552a(b); 5 U.S.C. § 552(e)). In Schwier, Appellants brought a Privacy Act claim against the Secretary of the State of Georgia, alleging that Georgia‟s Voter Registration Form and social security number requirement for voter registration violated the Privacy Act. The court held that section 3 of the Privacy Act, which delineates the "right to be protected from [the] disclosure of records," only applies to federal agencies. Id. at 1287. Because the Board is not a federal agency, no remedy for the alleged disclosure of N‟Jai‟s personal information arises under section 3 of the Privacy Act.

Plaintiff‟s Privacy Act claim is therefore dismissed, with prejudice.

b.Intentional Infliction of Emotional Distress

Plaintiff claims that she is entitled to damages for the cause of action of intentional infliction of emotional distress. Defendant asserts that it is immune from liability for this claim pursuant to the Pennsylvania Political Subdivision Tort Claims Act (PSTCA), 42 Pa. C. S. § 8542(b)(1)-(8) and, in the alternative, that N‟Jai has failed to allege any evidence of physical harm resulting from the emotional impact of the purportedly outrageous conduct of the defendants. The Court agrees.

The PSTCA permits legal action against a political subdivision only if the matter arises out of one of eight specific exceptions to political subdivision immunity. They are: (1) Motor Vehicles; (2) Care, custody or control of personal property; (3) Real Property; (4) Trees, traffic controls and street lighting; (5) Utility service facilities; (6) Streets; (7) Sidewalks; and (8) Care, custody or control of animals. 42 Pa.C.S. § 8542(b)(1)-(8). It is clear that a claim of intentional infliction of emotional distress is not among the eight and so the claim must be denied.

The Third Circuit recently dealt with such a claim in Reedy v. Evanson, 615 F.3d 197, 231-32 (3d. Cir. 2010) and stated as follows:

While the Pennsylvania Supreme Court has yet to formally recognize a cause of action for intentional infliction of emotional distress, see Taylor v. Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (2000), the Pennsylvania Superior Court has recognized the cause of action and has held that, "in order for a plaintiff to prevail on such a claim, he or she must, at the least, demonstrate intentional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff." Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa.Super.Ct.2005) (discussing how the Pennsylvania Supreme Court has indicated that, were it to recognize a cause of action for intentional infliction of emotional distress, these would be the requirements necessary for a plaintiff to prevail on such a claim). In addition, "a plaintiff must suffer some type of resulting physical harm due to the defendant's outrageous conduct." Id.

Id. In this case, Plaintiff has offered no evidence of any type of physical harm resulting from the Board‟s purportedly outrageous conduct. For this reason, Plaintiff‟s claim for intentional infliction of emotional distress fails.

Secondarily, the Court notes that the conduct N‟Jai alleges as supporting this cause of action is the providing of an incorrect address to PSERS, resulting in a delay in receipt by N‟Jai of two pension checks. These allegations are insufficient to set forth a prima facie case for intentional infliction of emotional distress because the challenged conduct cannot under any view be considered outrageous. Walsch v. Krantz, 386 Fed. Appx. 334, 337 (3d Cir. 2010). The Walsch court dismissed an intentional infliction of emotional distress count pursuant to Rule 12(b)(6) because the conduct alleged-belittling insults, heated emails, demands for educational testing, attempts to restrict a child from being taught at his grade level, threats to have a parent arrested-was not outrageous and extreme. (citing Swisher v. Pitz, 868 A.2d 1228, 1231 (Pa.Super.Ct.2005) (for tort of intentional infliction of emotional distress to proceed conduct alleged must be extreme and outrageous)). Given same, the actions of the Board clearly do not rise to the level of extreme and outrageous conduct necessary to establish intentional infliction of emotional distress.

The Court does note that N‟Jai is preceding pro se. Accordingly, the Court must consider whether it is appropriate to provide N‟Jai leave to amend before dismissing the action. See Dist. Council 47 v. Bradley, 795 F.2d 310, 316 (3d Cir.1986); Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir.1985); Borelli v. City of Reading, 532 F.2d 950, 951 n. 1 (3d Cir.1976); see also Shane v. Fauver, 213 F.3d 113, 116 (3d Cir.2000). The court should grant leave to amend unless the amendment would be inequitable or futile. See Shane, 213 F.3d at 116; see also Dist. Council 47, 795 F.2d at 316; Darr, 767 F.2d at 81; Borelli, 532 F.2d at 951 n. 1. The Court does believe that in the context of this case the filing of an Amended Complaint in this case would be futile. Specifically, the Privacy Act claim, N‟Jai‟s only Federal claim, has been dismissed with prejudice. In this Court‟s estimation, there is no way for N‟Jai to re-plead her intentional infliction of emotional distress claim such that this Court would have jurisdiction over such claim. When a federal district court dismisses all of the claims over which it has primary jurisdiction, it has the discretion as to whether it will relinquish the supplemental jurisdiction it had over state law claims arising out of the same set of facts so that such claims may be addressed by the appropriate state court. Cindrich v. Fisher, 341 Fed.Appx. 780, 789 (3d Cir.2009). The determination is based on considerations of judicial economy, convenience and fairness to the litigants. Id., citing New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1505 (3d Cir.1996), and United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966). This case has not yet proceeded to the close of pleadings. If N‟Jai has any claim against the Board, it must be pursued in state court, as this Court declines to retain jurisdiction.

N‟Jai‟s intentional infliction of emotional distress claim is therefore dismissed, without prejudice to her refilling same in state court, if she can meet the filing requirements for pleading such a cause of action in state court.

c.De Minimis Non Curat LeX

".[T]he venerable maxim de minimis non curat lex ("the law cares not for trifles") is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept." Wisconsin Dept. of Revenue v. William Wrigley, Jr., Co., 505 U.S. 214, 232 (1992). In the context of this case, N‟Jai‟s injury, if any, is negligible. Her claim against the Board is that two pension checks were mailed to an incorrect address because the Board provided PSERS with the incorrect address. Plaintiff admits that she ultimately received the checks. (Docket No. 18-1, p.23). Her loss would amount to the interest she might have earned if she had deposited the checks in some sort of investment. The Federal courts are not intended to be the forum for such small claims, particularly, as here, there is no federal question before this Court after the dismissal of the Privacy Act claim dismissal. Simply put, this Court has no jurisdiction of such de minimis claims. 28 U.S.C. §1332(a).

VI. Conclusion

For the foregoing reasons, the BOARD‟s Motion to Dismiss Plaintiff‟s Amended Complaint (Docket No. [115]) is GRANTED. An appropriate Order follows. s/Nora Barry Fischer

Nora Barry Fischer United States District Judge

Case 2:10-cv-01323-NBF Document 141 Filed 07/28/11 Page 13 of 13

cc/ecf: All counsel of record.

Jacqueline B. N‟Jai

P.O. Box 10133 Pittsburgh, PA 15232 (Regular & Certified Mail)

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