The opinion of the court was delivered by: Judge Nora Barry Fischer
Plaintiff, Leonard L. Haney, filed the instant employment discrimination action against Defendant Clinton Township, allegingdiscrimination and retaliation in violation of the Pennsylvania Human Relations Act (PHRA), and also claiming First Amendment violations for engaging in protected speech, political activity and association, as well as Fourteenth Amendment due process violations made actionable by 42 U.S.C. § 1983. (See Docket No. 16). Plaintiff's claims are based upon several alleged wrongful layoffs from Clinton Township and his alleged forced resignation from his elected position as Clinton Township's auditor.*fn1 (Id.).
Pending before the Court is Defendant Clinton Township's (hereinafter "Defendant") Partial Motion to Dismiss.*fn2 (Docket No. 18). Defendant contends that Plaintiff's PHRA and Section 1983 claims are time barred, and that Plaintiff's procedural due process claim fails to allege a protected property interest. (Docket No. 19). For the reasons outlined in the following Memorandum Opinion, Defendant's Partial Motion to Dismiss is GRANTED, IN PART and DENIED, IN PART.
II.FACTUAL AND PROCEDURAL BACKGROUND*fn3
A.Early Employment/Elected Positions with Clinton Township
Plaintiff is an Army Veteran who is over the age of seventy-seven. (Docket No. 16 at ¶ 12). He began working for Defendant in 1976 as a road equipment operator, and in 1984, he became roadmaster for Defendant. (Id. at ¶¶ 16; 17). In 1985, he was elected township supervisor and board member and served in these roles until he resigned in 2005. (Id. at ¶¶ 18; 19).
The next year, in 2006, Plaintiff returned to his previously held equipment operator position. (Id. at ¶ 20). Plaintiff avers that he performed well, but was laid off in 2007, with benefits, at the age of seventy-three. (Id. at ¶¶ 21-24). Plaintiff contends that he was the only employee laid off at this time, and township representatives told him that the township laid him off to save money. (Id. at ¶¶ 26; 27). Plaintiff asserts that said reason for his discharge is merely pretext for discrimination because younger employees, who had less experience, received raises in pay. (Id. at ¶ 28). Plaintiff claims that the reason for his discharge was his involvement in a Pennsylvania State Ethics Commission Investigation. (Id. at ¶ 31). To this end, he alleges that in the summer of 2007, agents of the Pennsylvania State Ethics Commission interviewed him multiple times regarding Defendant supervisor Blaine Martin. (Id. at ¶ 33). Plaintiff states that he cooperated and answered the Commission's questions truthfully and thus, the Commission found Blaine Martin guilty of nepotism and imposed a fine. (Id. at ¶ 34).
C.Layoff without Benefits
Then, on January 1, 2008, Defendant eliminated Plaintiff's benefits and pension, demoted him to "as needed" and kept him on "layoff" to allegedly save money. (Id. at ¶ 35; 106). Plaintiff claims that supervisors James Halstead and Blaine Martin retained their pensions as employees, while Plaintiff (an employee, but no longer a supervisor) did not retain his pension. (Id. at ¶ 38). He further contends that other, unnamed employees received favorable pension treatment. (Id. at ¶ 45). Defendant did not acquire auditor approval to make changes to the pension or to eliminate Plaintiff from the pension plan. (Id. at ¶ 39). Plaintiff asserts that Defendant violated Pennsylvania law when it terminated his pension. (Id. at ¶ 37). In support of this contention, he cites Pennsylvania State Statute, Second Class Township Code, Section 515 Compensation to Supervisors (b)(1), which provides that "such [pension] plans shall not improperly discriminate in favor of a supervisoremployee." (Id.). As a result of the layoffs, beginning in 2008, Plaintiff began to file charges of age discrimination with the EEOC and the PHRC. (Id. at ¶ 41).
D.Alleged Retaliation for OSHA Complaints
Plaintiff was apparently given additional work later in 2008. However, during the summer of 2008, Plaintiff complained to OSHA about exposed electrical wires and OSHA subsequently ordered Defendant to correct the problem. (Id. at ¶ 43). In response to Plaintiff's OSHA complaint, the Defendant allegedly retaliated against him by laying him off for one month, beginning on June 6, 2008. (Id. at ¶ 44).
During 2009, Plaintiff worked as an equipment operator on an "as needed" basis. (Id. at ¶ 47). He avers that it had been James Halstead's custom to ask Plaintiff to substitute for him. (Id.). In 2009, James Halstead, the current board member and roadmaster, asked a younger, less experienced employee (Mike Sutij) to substitute for him (James Halstead) instead of Plaintiff. (Id.).
Then, James Halstead publically announced that Mike Sutij would
replace Plaintiff in his "as needed" role. (Id. at ¶ 59). Plaintiff's
PHRC Charge states that on October 13, 2009 James Halstead told him
that he was laid off to save money. (Docket No. 19-1).*fn4
Plaintiff discovered that he was replaced by four younger
individuals five months later. (Id.).
As a consequence of the October 2009 layoff, Plaintiff publically spoke on matters of public concern, complained about the Defendant's policies and procedures and objected to the Defendant's wasteful spending.*fn5 (Docket No. 16 at ¶ 50). Then, Plaintiff publically informed the board that he intended to file more age discrimination charges. (Id. at ¶ 62). Plaintiff next complained that the equipment operator job for which Mike Sutij was hired was never posted, he was the only person who was interviewed, and he was not drug tested. (Id. at ¶ 63). A month later, Defendant allegedly placed an ad in the newspaper for the equipment operator position and hired a pool of younger individuals to use as needed. (Id. at ¶¶ 48, 64).
F.Plaintiff's Election as Auditor and Alleged Forced Resignation
On January 1, 2010 Plaintiff was elected auditor. (Id at ¶ 54). He was rehired as an employee in June 2010, but claims that he was intentionally not assigned work. (Id. at ¶ 65). Plaintiff personally asked James Halstead for work and Halstead informed him that because he had filed charges of discrimination, he would not be assigned work and was instead permanently discharged. (Id. at ¶¶ 67; 68). In addition, township representatives informed Plaintiff that he, as an elected official, could not also serve as an employee. (Id. at ¶ 56). As a result, in 2010, Plaintiff was allegedly forced to resign as auditor without due process of law. (Id. at ¶¶ 55; 109). Plaintiff maintains that the Township's decision as ...