The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the Defendants' Amended Motion for Partial Dismissal of Plaintiff's Amended Complaint. (Doc. 18). Plaintiff Deborah Rearick alleges that after having exercised her First Amendment right to petition and her Second Amendment right to bear arms, she was subjected to retaliatory employment actions as a result. In its motion to dismiss, Defendants argue: (1) that Defendant Rearick fails to state a claim under the Petition Clause; (2) that Defendant Rearick fails to allege any facts as to a Petition Clause claim against Defendants Spanier, Horvath and Doncsecz; and (3) that any allegedly adverse employment actions taken in April and May of 2009 are barred by the doctrine of claim preclusion. For the reasons stated below, the Court will grant Defendants' Motion for Dismissal on the Petition Clause claim.
Plaintiff Deborah Rearick ("Rearick") is an employee of the Pennsylvania State University ("PSU"). Plaintiff brought an initial action against PSU on June 24, 2008, alleging retaliation in response to prior sexual harassment allegations and an action for breach of contract. Rearick v. Pennsylvania State University, No. 1:08-cv-1195 (M.D Pa. 2008). Summary judgment was entered in favor of the University, and the Third Circuit affirmed on March 4, 2011. Rearick v. Pennsylvania State University, No. 10-3041, 2011 WL 754785 (3d Cir. Mar. 4, 2011). Plaintiff alleges that as punishment for bringing that prior action, she was unlawfully denied promotional opportunities in violation of her rights under the First Amendment's Petition Clause. (Doc. 8 at ¶ 1).
Defendants Susan Wiedemer, Joseph Doncsecz, and Al Horvath are apparently "Trustees" for the Pennsylvania State University. (Doc. 8 at ¶ 7). Plaintiff alleges these three "are members of an inside group of top level 'front office' officials euphemistically described along with the President of the University as 'Old Main.'" (Doc. 8 at ¶ 7). Defendant Graham Spanier, the President of the University, is also referred to as "Old Main" and the "front office." (Doc. 8 at ¶ 8). Defendant James Mattern was Rearick's immediate superior, as was Defendant Robert Maney. (Doc. 8 at ¶ 9).
The first alleged act of retaliation occurred on approximately April 2, 2009. Rearick had been temporarily assigned to the open role of Accountant I at PSU. Plaintiff alleges that as "[s]he was working and performing extremely well in the position," and that she decided to bid for a permanent appointment to the position as she "had a clear inside track" and was encouraged to do so. (Doc. 8 at ¶¶ 13-17). Rearick was very disappointed to learn that she was ultimately not selected for the job.
Plaintiff believes the decision not to hire her came from the highest levels at PSU, denying her the job that she "had performed so well and for which she was the most qualified . . . in retaliation for complaining and filing suit." (Doc. 8 at ¶ 29). This was partially based on a statement made by Defendant Killian, allegedly informing Rearick that while such a decision would normally be left to him and a third-party, that "Old Main made the decision" and that "Old Main has the power." (Doc. 8 at ¶¶ 24-25). Furthermore, Defendant James Mattern also informed Rearick that Defendant Sue Wiedemer had taken over the hiring process. (Doc. 8 at ¶ 9). Plaintiff believes that "Wiedemer would not act . . . without the approval and direction of Graham Spanier particularly since the litigation referred to above was pending." (Doc. 8 at ¶ 28). Finally, about a month later, Defendant Richard Killian explained to Rearick that she had been denied the position due to her "re-occurring pattern of questioning authority." (Doc. 8 at ¶ 30).
On May 10, 2010, Plaintiff applied for another position--Assistant Supervisor of the Property Inventory Department. However, Plaintiff was again disappointed to learn that this position was ultimately given to an apparently less qualified applicant. Additionally, on July 26, Rearick applied for the position of "Grants and Contracts Accountant I." She was also rejected for that position, citing her lack of a college degree, an action Plaintiff characterizes as "an inexcusable and unjustifiable denial of her rights done in retaliation for her seeking a redress of her grievances." (Doc. 8 at ¶ 49). These grievances refer to Rearick's federal court action against PSU, then pending before the Third Circuit, and an additional grievance directed to the PSU Affirmative Action Office regarding the alleged "good old boy" culture at the University. (Doc. 8 at ¶ 48). Plaintiff also received an apparently unwarranted disciplinary letter on October 15, 2010, acknowledging Plaintiff's pending lawsuit and advising her not to approach or harass her co-workers in regard to that suit. (Doc. 2).
On May 5, 2011, Plaintiff was ordered to attend a meeting with Defendants Maney and Wiedemer where she was asked to turn over her keys, questioned about her "conceal and carry" firearms permit, and was eventually sent to meet with a PSU in-house mental counselor. Plaintiff was told not to return to work until summoned, and appears to still be on leave.
As a result of being questioned about her gun permit, Plaintiff further argues that the aforementioned promotional opportunities were also denied in retaliation for her exercising her Second Amendment rights. (Doc. 8 at ¶ 6). Plaintiff claims that she has had her permit for "many many years, for protection due to business activities" but "that the defendants are using her lawful and proper possession of a carry and conceal gun permit . . . as a way to harm and injure the plaintiff in violation of her 1st and 2nd Amendment rights." (Doc. 8 at ¶¶ 57, 64). As such, Plaintiff brings claims against all Plaintiffs for the violation of her First Amendment Petition Clause Rights and against Defendants Maney and Wiedemer for the violation of her Second Amendment Right to bear arms.
As an initial matter, Defendants argue that Plaintiff fails to state a claim based on the Petition Clause. Specifically, in light of the Supreme Court's holding in Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011), they point out that a public employee is precluded from brining a Petition Clause claim on a matter not of public concern. Further, Defendants argue that Rearick fails to state a claim against Defendants Spainer, Horvath and Doncsecz. Finally, Defendants contend that the alleged actions of retaliation that occurred in April and May of 2009 should be barred as claim precluded as these allegations should have been raised in the prior action. Plaintiff counters that she attempted to amend her complaint, but was denied the opportunity to do so and is thus not precluded.
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. When considering a Rule 12(b)(6) motion, the Court's role is limited to determining if a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of ...