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John Devore v. Cheney University of Pennsylvania

January 3, 2012


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


In this employment discrimination case brought by John DeVore, a former employee of both Cheyney University and Colwyn Borough, Mr. DeVore charges his former employers and several of their employees with discriminating against him because of his race, First Amendment activities, political affiliation, gender, and age, in violation of Title VII, the PHRA, and the First and Fourteenth Amendments. Defendants have filed seven motions to dismiss Mr. DeVore's First Amended Complaint.*fn1 The Court heard oral argument on the motions on October 27, 2011, and the matter is now ripe for decision.

I. Factual and Procedural History

Because none of the Cheyney Defendants have filed a motion to dismiss, the Court only briefly sets forth the allegations against Cheyney University, Thomas Flagg, and Lawrence Richards, and instead focuses on the events relating to Mr. DeVore's employment by Colwyn Borough, accepting as true, for the purposes of this opinion, the factual allegations in Mr. DeVore's First Amended Complaint.

As background, some years ago, Mr. DeVore was a Philadelphia police officer who successfully sued the City of Philadelphia for retaliating against him for exercising his First Amendment rights. He generally alleges that each of the Defendants in this case knew of his civil rights lawsuits and his "prior and current opposition to racism and reporting illegal conduct about police." First Amended Complaint ("FAC") ¶ 12.

Mr. DeVore was hired by Cheyney University in August of 2006 as a law enforcement officer. While employed there, he "opposed racism in the employment that included all or some of the hiring, disciplining, and scheduling process . . . [and] used the process of Cheyney University . . . to oppose such." FAC ¶ 14. Because of this opposition and because Defendants knew of his history of pursuing violations of his civil rights in court, the Defendants discriminated and retaliated against him, creating a "hostile work environment." This harassment extended to the Cheyney Defendants and the Colwyn Defendants somehow using Defendant Richards's "girlfriend," the former mayor of Darby Borough, to spread rumors to the Mayor of Colwyn Borough. Eventually, in October 2008, Mr. DeVore filed an EEOC complaint, which was dual-filed with the PHRC, alleging employment discrimination because of "race, color, sex, age and retaliation." FAC ¶ 35.

On June 11, 2009, Mr. DeVore sought and gained supplemental employment with Colwyn Borough and was slated to work the midnight shift. Then, a month later, Cheyney changed Mr. DeVore's shift so that he could not work at both places at the same time. Because of the hostile work environment and shift change, Mr. DeVore alleges that he was constructively discharged and resigned from Cheyney in August 2009. He later tried to rescind his resignation but was not allowed to do so, even though similarly situated female employees and an employee who had not made EEOC complaints were allowed to resume duties after either resigning or being terminated.

In July 2009, Defendants Bryan Hills and James Hazelton, white male police officers employed by Colwyn Borough, each met with Mr. DeVore separately to tell him "he [was] making a poor choice to seek employment with Colwyn Borough, and that he[ Plaintiff DeVore] [sic] did not have a future with Colwyn Borough in its Police Department." FAC ¶ 42. Then, Mr. DeVore alleges, Defendants Richards (who worked at Cheyney, not for the Borough), Fitzgerald, Hazelton, Sibbett, Robinson,*fn2 Rutland, Hills, and Gallahan*fn3 entered into an agreement to keep Mr. DeVore from maintaining his employment at Colwyn. Specifically, Mr. DeVore alleges that Paula Brown*fn4 told Colwyn Mayor John Fitzgerald about Mr. DeVore's retaliation charge against Cheyney and about his attempts to help others bring anti-discrimination charges against Cheyney. She allegedly also told him that Mr. DeVore was arrested in Philadelphia and fired by the Philadelphia Police Department for stealing evidence, knowing that this was untrue. Mayor Fitzgerald then passed this information on to Bryan Hills. Mr. DeVore does not allege that Defendants Bryan Hills and John Fitzgerald knew that the statements about Mr. DeVore's issues with the Philadelphia police were untrue.

Mr. DeVore also alleges that John Gallahan knowingly lied to Defendants John Fitzgerald and James Hazelton by telling them that Mr. DeVore had an arrest record and was not qualified to be recertified as a law enforcement officer. Again, Mr. DeVore does not allege that Defendants John Fitzgerald and James Hazelton knew that this information was false.

Mr. DeVore alleges that the "conspiracy" he has described prevented him from being timely sworn in as Colwyn police officer. Defendant Fitzgerald, in furtherance of the conspiracy, refused to swear him in when he was originally scheduled to be sworn in. Mayor Fitzgerald "and others of the agreement" prevented Mr. DeVore's "MPO certification" from being issued and provided to Colwyn Borough council, which prevented Mr. DeVore "from being paid as a police officer but not to be a police officer." FAC ¶ 43(e). In November 2010, he was finally sent to municipal police officer education and training for recertification, but even after receiving his certificate, Mayor Fitzgerald refused to provide a copy to the Borough Council. Mr. DeVore seems to allege that Caucasian officers, such as Defendants Hills, Hazelton, and Sibbett, were not treated similarly; however, his comment about the treatment of white officers just trails off without conclusion, and he makes no allegation that they were situated similarly to him. See FAC ¶ 44(c).

Mr. DeVore also claims that Defendants Steve Sibbett, Franko Robinson, and James Hazelton conspired to interfere with his swearing in on November 12, 2010 by calling to find out from which direction he would be driving and what time he planned to arrive for his swearing in, and then giving him a bogus traffic citation on his way there. Defendant Robinson allegedly called him, and Defendant Sibbett is identified as actually making the stop after receiving a text from Defendant Robinson. Hazelton also allegedly received a text about the stop from some unidentified person and stepped outside Borough Hall to yell to Sibbett not to give DeVore "any police courtesy." FAC ¶ 43d(2).*fn5

Mr. DeVore alleges that in July 2010 he and two other unnamed African-American officers were singled out and not placed on the Colwyn work schedule.*fn6 He claims that no Caucasian officers were denied placement on the work schedule. The two other officers filed PHRA charges and were eventually placed back on the schedule, while Mr. DeVore was not. He claims that Colwyn Borough Mayors Fitzgerald and Rutland*fn7 and Council President Tonette Pray continued to exclude him from the schedule.

In December 2010, Mr. DeVore was assigned to "training" but not placed on the official police schedule, "intended so that the other officers and the Mayor would not be aware when Plaintiff was working." FAC ¶ 44(d). Later that month, on December 29, 2010, Lt. Reed asked Mr. DeVore about his political affiliations and the status of his EEOC complaint. Council President Tonette Pray, an African-American woman, also asked him about his political affiliations, and responded to his answer by saying, "Guess you're going to climb in bed with those 'cracker' [sic] and other house niggas?" FAC ¶ 44(e).

A few weeks later, on January 14, 2011, Mr. DeVore was placed on midnight shift alone, requiring him to work without backup despite still being in training. The next day, Lt. Reed and an unnamed Philadelphia police sergeant went to Mr. DeVore's house and terminated him without warning and without prior discipline. Lt. Reed said that Mr. DeVore was late for his shift on January 1, 2011 and did not show up or call in for his shift on January 5, 2011. Mr. DeVore noted in his First Amended Complaint that he was always verbally told when to come in for training, rather than his name being put on the schedule, but he does not deny that he missed a shift and was late for another shift, nor does he allege that he was not accurately told when to report for duty.

Mr. DeVore claims that he was discharged by Defendant Mayor Daniel Rutland, who had commented on his prior civil rights suits, and that Mayor Rutland discharged him because of those suits and/or because of his political affiliation. He also alleges that Mayor Rutland scheduled or approved of the schedule when Mr. DeVore was forced to work alone for the same reasons.*fn8 Mr. DeVore claims that Colwyn Borough Council President Tonette Pray voted to affirm his dismissal because of his political affiliation and that she said that he "would side with republicans in proximity to the decision support Rutland's discharge of DeVore [sic]." FAC ¶ 45.

Mr. DeVore alleges that he has exhausted all administrative remedies by dual-filing charges with the EEOC and the PHRC and incorporates by reference EEOC right-to-sue letters attached to his original complaint. However, those right to sue letters are dated October 22, 2010, a point of some contention with the Colwyn Defendants, the offending actions of whom largely occurred after that date according to the First Amended Complaint.*fn9

On January 18, 2011, Mr. DeVore filed a Complaint alleging several causes of action against a host of defendants. In late February, 2011, Colwyn Borough filed a motion to dismiss that Complaint. Rather than responding directly to that motion, Mr. DeVore opted to file a First Amended Complaint on March 7, 2011.*fn10

The first count of Mr. DeVore's First Amended Complaint is titled "Title VII Race Discrimination and Retaliation." He claims that in addition to being an African American man, he has spoken out against racism and other types of employment discrimination and criminal behavior in the workplace. He claims that he was subject to different treatment because of his race, sex, petition clause and free speech activities by Cheyney University, and because of his political affiliation*fn11 by Colwyn Borough and the Borough Defendants. However, he goes on to allege racial discrimination against Colwyn and the Borough Defendants as well, and to generally allege that all Defendants treated him unfairly because of his race, political affiliation, sex, age, and "activities protected by law." FAC ¶ 51.

In Count II of his current complaint, Mr. DeVore brings a 42 U.S.C. § 1983 claim against Defendants Lawrence Richards, Bryan Hills, John Fitzgerald, James Hazelton, Steve Sibbett, Franko Robinson, Daniel Rutland, and Tonette Pray.*fn12 He claims that the named defendants violated his civil rights because he engaged in First Amendment activities, such as filing a discrimination charge, successfully suing the City of Philadelphia and others, and speaking out against employment discrimination. He specifically alleges that the Defendants named in this count, because of his race, First Amendment activities, or political affiliation, changed his work shifts, failed to pay him what he was due, denied and delayed his MPO recertification, delayed his swearing in, issued a false traffic citation, delayed the criminal process of the citation and thereby denied him prompt access to the courts, knowingly lied about his past employment and arrest record, terminated him, and/or constructively discharged him and refused to let him rescind his resignation. He also alleges that these Defendants acted maliciously, with "hatred for his race and protected activities," and with deliberate indifference or reckless disregard for his rights. FAC ¶ 62. As to Defendant Rutland, Mr. DeVore alleges that Mayor Rutland terminated him "without prior notice and hearing, or pre-termination notice and opportunity to present a response to the termination." FAC ¶ 63.

In Count III, Mr. DeVore alleges that Defendants John Fitzgerald, James Hazelton, Steve Sibbett, Franko Robinson, and Daniel Rutland denied his due process and equal protection rights. Specifically, he claims that Fitzgerald, Hazelton, Sibbett, and Robinson delayed sending his traffic citation to the court, which then delayed a hearing and resulted in preventing Mr. DeVore's witnesses from "having fresh memories of the event in their mind to aid in the defense of the stop sign citation." FAC ¶ 66. He also claims that Defendant Sibbett refused to give him cell phone numbers and provider names so that Mr. DeVore could obtain evidence. He alleges that Defendant Fitzgerald refused to swear Mr. DeVore in and suspended him without pay, a pre-suspension hearing, notice, or due process of law--all because of Mr. DeVore's race. Finally, he alleges that Defendant Rutland terminated him without a hearing or an opportunity to discuss the termination after he had passed a six-month probationary period.

In Count IV, Mr. DeVore asserts a Monell claim against Cheyney and Colwyn, alleging that they have a policy or practice of discrimination, and do not train against, retaliation and race, sex, age, and political affiliation discrimination, as well as a policy or practice to condone due process and equal protection violations. He claims that Colwyn Borough knew from a 2008 or 2009 charge by an African-American police officer that its policy or practice of discrimination would repeat itself and did nothing to correct it.

In Count V, Mr. DeVore alleges discrimination and retaliation in violation of the PHRA. In addition to employers Cheyney University and Colwyn Borough, he specifically names Lawrence Richards, Mayors Fitzgerald and Rutland, Council President Pray, Police Chief Bryan Hills, Sgt. James Hazelton, and John Gallahan as supervisors who aided and abetted such violations. He claims that all of these named defendants, plus Defendant Franko Robinson denied him equal employment opportunities due to his race, sex, age, and protected activities.

For all of these violations, Mr. DeVore seeks back pay, front pay, an order reinstating him as sergeant at Cheyney and police officer at Colwyn, compensatory damages, and attorneys' fees. His prayer for relief does not list punitive damages, but he does state in paragraph 2 of his First Amended Complaint that he seeks punitive damages against the individual defendants.*fn13

Mr. DeVore filed his original complaint on January 18, 2011, just a few days after he was terminated by Colwyn Borough. After Colwyn Borough filed a motion to dismiss, he filed his First Amended Complaint on March 7, 2011. Thereafter, the Colwyn Defendants filed seven motions to dismiss.


A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45--46 (1957). Although Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted) (alteration in original) (quoting Conley, 355 U.S. at 47), the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citation omitted).

To survive a motion to dismiss, the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); see also Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323 (2011). Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555(citations omitted). The question is not whether the claimant will ultimately prevail but whether the complaint is "sufficient to cross the federal court's threshold." Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (citation omitted). An assessment of the sufficiency of a complaint is thus "a context-dependent exercise" because "[s]ome claims require more factual explication than others to state a plausible claim for relief." West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85 (3d Cir. 2010) (citations omitted).

In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized parameters. For one, the Court "must only consider those facts alleged in the complaint and accept all of those allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Twombly, 550 U.S. at 555 (stating that courts must assume that "all the allegations in the complaint are true (even if doubtful in fact)"); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) ("[A] court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents."). Concomitantly, the Court must also accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). Nonetheless, the Court need not accept as true "unsupported conclusions and unwarranted inferences," ...

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