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Wm. C. Plouffe, Jr. v. Michael Gambone

June 20, 2012

WM. C. PLOUFFE, JR.
v.
MICHAEL GAMBONE, ET AL.



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

MEMORANDUM

This is the second lawsuit by pro se plaintiff William C. Plouffe, Jr. ("Plouffe") arising out of his termination from employment at Kutztown University of Pennsylvania (the "University"). Plouffe brings claims under 42 U.S.C. § 1983 and various state laws against: (1) the Association of Pennsylvania State College & University Faculties ("APSCUF" or the "Union"), a labor union that represents the University faculty under a Collective Bargaining Agreement; (2) Steve Hicks and Julie Reese, who are APSCUF officials; (3) Michael Gambone, Mark Renzema, Jonathan Kremser, and Pietro Toggia, who are University professors sued in their capacity as members, representatives, employees, officers, policymakers, or agents of APSCUF; and (4) various John Does.*fn1

The defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court will grant the motion with prejudice as to all claims against defendants APSCUF, Steve Hicks, and Julie Reese. The Court will also grant the motion as to the following claims against defendants Gambone, Renzema, Kremser, and Toggia: the Pennsylvania administrative agency law claim (Count 4), the Weingarten claim (Count 6), and the duty of fair representation and fiduciary duty claims (Count 7 and the count mislabeled as Count 10, which the Court will refer to as "Count 8"). The Court will deny the motion as to the § 1983-based claims against defendants Gambone, Renzema, Kremser, and Toggia.

I. Background*fn2

The allegations in this case are, in substantial part, identical to the ones in the operative complaint in Plouffe's previously filed lawsuit, Case No. 10-cv-1502 (hereinafter the "first lawsuit"), such that it is sometimes unclear whether the term "Defendants" refers to the ones in this case or the ones in the first lawsuit. Both cases arise out of Plouffe's termination from employment following conflicts with members of the criminology department (the "Department") at Kutztown University (the "University"). The Court previously outlined the facts surrounding Plouffe's conflicts and termination in the first lawsuit and incorporates those facts here by reference. See ECF No. 180 in 10-cv-1502. Below, the Court sets forth only the facts relevant to this lawsuit.

During the first year of his employment at the University, Plouffe approached defendant Michael Gambone, then local APSCUF union president, for assistance regarding his conflicts with the Department, but Gambone refused, stating that he was friends with Professor Logan (a defendant in the first lawsuit) and would not give Plouffe any help. During his second year of employment, Plouffe again went to APSCUF for assistance, but the state office informed him through the new Union president that Plouffe could not be represented by the Union because of a conflict of interest.

Plouffe later discovered, however, that Gambone was representing the Department in its complaint against him even though the Union had previously refused to represent Plouffe against the Department. Plouffe was advised by Paul Quinn, the new local Union president, to seek guidance from other Department members. He did so, and defendants Renzema, Kremser, and Toggia agreed to fulfill that function on a confidential basis. As it turned out, Plouffe discovered that these three professors had fed confidential information to the Department Chair (a defendant in the first lawsuit), who then used the information against Plouffe. Am. Compl. ¶¶ 98-102.

Plouffe attempted to request from the Union copies of previous investigations, grievances, and arbitrations involving the University in advance of his termination hearing, but he was not allowed to access the materials. Prior to his hearing, Plouffe requested to meet with a state Union representative, but the Union refused. The Union attorney also refused to speak with Plouffe. Id. ¶¶ 104-07.

The state Union representative, defendant Julie Reese, met with Plouffe for about half an hour prior to his termination hearing at the University. Plouffe brought a lot of material to discuss, but Reese refused to listen to Plouffe explain his view of the issues or examine his materials. Plouffe asked Reese to request a continuance, but she refused and told him to just answer the University President's questions and not irritate him. At the hearing itself, Reese presented nothing, orally or in writing, in support of Plouffe, and Plouffe was terminated from the University a few days later. Id. ¶¶ 108-110.

After Plouffe's termination, he immediately filed a grievance. During the grievance process, Plouffe requested to meet with Union officers and attorneys to discuss the matter, but the requests were denied. The Union refused to provide him with an explanation of how they were going to proceed with the matter.

Id. ¶¶ 111-12.

After Plouffe's grievance went through the three pre-arbitration grievance stages, defendant Reese advised Plouffe that he was not allowed to appear at the State Grievance Committee hearing, where the Committee would decide if the case could go to arbitration. Reese told Plouffe it was Union policy that subjects not speak to the Committee and that Plouffe would only be allowed to submit two pages in support of his grievance. Plouffe later discovered that Reese advised the Committee not to take the matter to arbitration. Plouffe requested a tape recording of the hearing, but the Union never provided it. Finally, the state Union president, Steve Hicks, refused to overrule the recommendation of the Committee not to take the matter to arbitration. Id. ¶¶ 114, 116.

II. Legal Standard

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. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2008)); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The plausibility standard asks for more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 678. A complaint that pleads facts that are merely consistent with a defendant's liability stops short of the line between possibility and plausibility of entitlement to relief. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). A plaintiff must plead factual content that permits the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id.

To properly plead an unconstitutional conspiracy, a plaintiff must assert facts from which a conspiratorial agreement can be inferred. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 178 (3d Cir. 2010); see also Startzell v. City of Phila., 533 F.3d 183, 205 (3d Cir. 2008) (stating that a conspiracy requires a meeting of the minds). A plaintiff alleging conspiracy must plead enough factual matter which, if taken as true, suggests that an agreement was made or, in other words, plausible grounds to infer an agreement. Great W. Mining, 615 F.3d at 178.

III. Analysis

A. Section 1983 Claims (Counts 1, 2, 3, 5)

Section 1983 provides that "[e]very person who, under color of [state law] subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured" in an appropriate action. 42 U.S.C. § 1983. To recover under § 1983, a plaintiff must establish that the defendants acted under color of state law to deprive the plaintiff of a right secured by the Constitution or laws of the United States. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The statute of limitations for a § 1983 claim arising in Pennsylvania is two years. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009); 42 Pa. Cons. Stat. § 5524(2).

The defendants move to dismiss the § 1983 claims for failure to file within the statute of limitations, failure to plead action under color of law, and failure to allege a deprivation of a federal right. The Court addresses each argument below.

1. § 1983: Statute of Limitations

The defendants argue that since Plouffe was terminated by the University on October 9, 2009, his complaint is time-barred under the two-year statute of limitations because it was not filed until October 14, 2011.*fn3 The Court perceives no statute of limitations bar to Plouffe's § 1983 claims.

October 9, 2011 fell on a Sunday, and Monday, October 10, 2011 was a legal holiday. The last day for Plouffe to file his claims was thus October 11, 2011. See Fed. R. Civ. P. 6(a). Plouffe filed his application to proceed in forma pauperis ("IFP") along with his complaint on October 11, 2011. ECF No. 1. After the Court granted IFP status to Plouffe, his complaint was then officially docketed on October 14, 2011. For statute of limitations purposes, the date of the complaint relates back to the date of the IFP application, thus rendering his complaint timely. ...


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