The opinion of the court was delivered by: Anita B. Brody, J.
Plaintiff Christopher Machon, a former forensic registered nurse at Norristown State Hospital, brings this action against the Pennsylvania Department of Public Welfare, Gary D. Alexander (Acting Secretary of Public Welfare) and Gerald Kent (CEO, Norristown State Hospital) in their official and individual capacities. Machon also sues the following employees of Norristown State Hospital in their individual capacities: Maryann Chopyak (Supervisor), Traci Cannon (Chopyak's Supervisor), Christine Puleo (Supervisor), Richard Szczurowski (Director, Human Resources), Mary Ann Virden (Colleague), and John Miller (Employee). Machon brings the following claims: 42 U.S.C. § 1983 First Amendment retaliation (Count I); 42 U.S.C. § 1983 Fourteenth Amendment due process violation (Count II); 42 U.S.C. § 1983 Fourteenth Amendment equal protection violation (Count III); 42 U.S.C. § 1983 Fourth Amendment privacy violation (Count IV); invasion of privacy violation under Pennsylvania law (Count V); 42 U.S.C. § 1985 conspiracy (Count VI) *fn1 .
Federal question jurisdiction over Counts I-IV and VI is proper pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Supplemental jurisdiction over Count V is proper under 28 U.S.C. § 1367(a). Defendants have moved to dismiss all counts of the amended complaint. For the reasons set forth below, Defendants' motion to dismiss will be granted in part and denied in part.
Christopher Machon was a male forensic registered nurse ("FRN") at the Pennsylvania Department of Public Welfare's Norristown State Hospital ("DPW"). *fn3
* From June 2007 through June 2009, Machon received satisfactory ratings on his Employee Performance Reviews. Am. Compl. ¶¶ 101-03.
From approximately January 2007 through June 2009, FRN Supervisor Maryanne Denczi served as Machon's FRN supervisor. Mot. Dismiss Am. Compl. Ex. 2, ¶ 9 (Ex. 2, "Adjudication"). On June 20, 2009, FRN Supervisor Christine Puleo became Machon's immediate FRN supervisor.
Adjudication ¶ 12. FRN Supervisor Maryann Chopyak worked the night shifts in the same building where Machon worked the day shifts. Tracy Cannon served as Chopyak's supervisor. Adjudication ¶ 20.
* Beginning in 2008, Machon made formal and informal workplace harassment complaints to the following supervisors: Gerald Kent (CEO, Norristown State Hospital), Richard Szczurowski (Director, Human Resources), Maryann Chopyak (FRN Supervisor), and Traci Cannon (Chopyak's Supervisor). Am. Compl. ¶ 22.
In those complaints, Machon alleged that he and others were wrongfully disciplined and subjected to verbal abuse by the following DPW employees: Mary Ann Virden (Colleague), John Miller (Employee), Christine Puleo (FRN Supervisor), Chopyak (FRN Supervisor) and Cannon (Chopyak's Supervisor). Am. Compl. ¶ 22.
* In February 2009, Machon filed workplace violence/harassment
complaints against several supervisors, including Cannon, and later
invoked his Civil Service Administrative Rights. *fn4
Am. Compl.¶ 33; Adjudication ¶ 57.
Additionally, Machon reported to law enforcement officials that his workplace witnesses who had seen him getting harassed were being threatened by unspecified Defendants. Am. Compl. ¶ 33. Machon also alleges that his confidential work file was improperly revealed to co-workers. According to Machon, the release of his private information spurred Defendants Cannon, Puleo, Virden, and Miller to conspire against him. Am. Compl. ¶ 34. Machon alleges that he was subjected "to false, pretextual and retaliatory disciplines including written warnings [and] verbal reprimands." Am. Compl. ¶ 23. Defendant Miller filed false allegations of workplace violence against him. Am. Compl. ¶ 55. Moreover, in September 2009, unspecified Defendants accused Machon of "unauthorized absence," "falsification of records," and not following the proper policies regarding the handling of work keys. Am. Compl. ¶ 40. Machon alleges that the rules he broke were never previously enforced against him or other FRNs.
* On November 9, 2009, Machon received a suspension for "Failure to Follow Policy and Procedure, Falsification of Records and Unreported Absence." Adjudication ¶ 2.
* In January 2010, Machon received a three-day suspension relating to an alleged incident that took place on August 29 th and 30 th of the previous year. Am. Compl. ¶ 50.
Machon alleges that the grounds ("unreported absence," "failure to follow general instruction of procedures," and "falsification of an official document") were baseless and that similarly situated FRNs were not disciplined for committing the same infractions. Am. Compl. ¶¶ 52, 54.
* In February 2010, Machon and other unnamed co-workers unsuccessfully tried to meet with Defendant Puleo to discuss the hostile work environment. Am. Compl. ¶ 62.
On February 19, 2010, Defendant Cannon yelled at Machon in front of doctors, staff and patients. Cannon screamed: "get out of this office," "you don't belong here!," "get back to your unit," "people are tired of your stuff!," and "for seventeen years you have been running the game!". Mot. Dismiss, ¶¶ 63, 65, 67. Cannon shouted the last two statements after following Machon into the nurse's office where he went to receive care after feeling flushed and lightheaded. Am. Compl. ¶¶ 66-67. Cannon refused to leave the nurse's office. Machon transferred to the emergency room for additional care. Am. Compl. ¶ 69. Three days later, Machon filed a workplace violence/harassment complaint against Cannon. But unspecified Defendants dismissed the complaint as unfounded without interviewing Machon's witnesses. Am. Compl. ¶¶ 71-72.
* In March 2010, Machon realized that a prior suspension that was supposed to be removed was still in his file. Am. Compl. ¶ 77.
Defendants Kent and Szczurowski informed Machon that the suspension would be removed. In September 2010, Machon checked and the suspension was still in his file. Am. Compl. ¶¶ 78, 79. That same month, Machon filed an additional workplace harassment complaint against Defendant Cannon. Am. Compl. ¶ 88.
* By September 2010, Machon had already received two additional suspensions.
On May 7, 2010, Defendants Kent, Szczurowski, Miller, Chopyak, Puleo, and Cannon "conspired and agreed to issue Plaintiff a letter of 'alternative discipline in lieu of suspension' (ADLS) falsely alleging an unreported absence." Am. Compl. ¶ 83. On August 20, 2010, the same Defendants (minus Miller) "conspired and agreed to falsely issue Plaintiff another five (5) day suspension" for being "Absent without Leave." Am. Compl. ¶ 84. The August suspension was formally changed to the ADLS equivalent of a three-day suspension. Prior to issuing the August suspension, Chopyak conducted a pre-disciplinary conference (PDC) in June to discuss the charges. Adjudication ¶ 43. Machon's union representative was also present at the conference. Adjudication ¶ 44. Chopyak then sent a PDC, without a recommendation for punishment, to the Labor Relations Coordinator. Adjudication ¶¶ 45, 47. The Coordinator and HR Director Szczurowski reviewed the report, in conjunction with statements from those involved in the dispute (Puleo, Chopyak, Cannon, and Machon), and determined the appropriate level of punishment. Adjudication ¶ 53. No one else was involved in the decision. Machon appealed to the Commonwealth of Pennsylvania's State Civil Service Commission. See Adjudication. *fn5
* On November 3, 2010, Machon's Union Representative asked unspecified Defendants to initiate a DPW Bureau of Opportunity investigation into Machon's "multiple complaints of workplace harassment, retaliation and violence." *fn6 Am. Compl. ¶ 100.
That same month, Defendants Cannon and Chopyak attempted to coerce D. Lee, a DPW FRN employee, to alter his witness statement regarding threats made against Machon in February 2009. Am. Compl. ¶ 49. Additionally, Defendants Miller, Kent, Cannon, Puleo, and Szczurowski conspired together to file false charges against Machon for being absent without leave and other unspecified infractions. Am. Compl. ¶¶ 56, 57. This conspiracy included "lodging a series of false disciplinary charges against [Machon] for behavior which had always been, and is today, a 'commonly accepted practice.'" Am. Compl. ¶ 89. Defendant Puleo also served Machon with a disciplinary counseling notice in front of patients and co-workers. Am. Compl. ¶ 96.
* In February 2011, unspecified Defendants filed three disciplinary charges against Machon. Am. Compl. ¶ 57.
Machon claims that he was treated differently than similarly situated female FRNs. He was terminated in April 2011. Am. Compl. ¶ 58.
III. SUBJECT MATTER JURISDICTION
In Counts I-IV of his amended complaint, Machon alleges that the Pennsylvania Department of Public Welfare deprived him of his constitutional rights under the First, Fourth, and Fourteenth Amendments in violation of 42 U.S.C. § 1983. Am. Compl. 17-20. In response, Defendants raise a 12(b)(1) facial attack that challenges the court's subject matter jurisdiction under the Eleventh Amendment. *fn7 Mot. Dismiss 6.
Rule 12(b)(1) allows the court to dismiss a suit for want of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In Blanciak v. Allegheny Ludlum Corp. , the Third Circuit Court of Appeals noted that '"the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction."' 77 F.3d 690, 694 n.2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). Thus, ...