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Kymberley Best v. County of Northumberland

August 16, 2012


The opinion of the court was delivered by: Chief Judge Kane

(Magistrate Judge Blewitt)


Before the Court is Magistrate Judge Blewitt's June 29, 2012 Report and Recommendation, recommending that Plaintiff's amended complaint be dismissed in part. (Doc. No. 38.) For the reasons that follow, the Court will adopt the Report and Recommendation and will dismiss Plaintiff's amended complaint in part.


The background of this matter is set forth in more detail in Magistrate Judge Blewitt's Report and Recommendation, as well as the Court's memorandum issued on November 30, 2011; however, the Court will briefly summarize the pertinent details.*fn1 On December 19, 2011, Plaintiff Kymberley Best filed an amended complaint against the County of Northumberland, Vinny Clausi, and Merle Phillips, alleging two constitutional violations, an Equal Pay Act violation, and two state-law claims. (Doc. No. 22.) Plaintiff alleges that Defendants engaged in unlawful conduct leading up to and including her termination as assistant solicitor and chief clerk of the County. (Id.)

According to her amended complaint, Plaintiff worked for the County from January 2009 until her termination on March 18, 2011. (Id. ¶¶ 7, 26.) During the entirety of Plaintiff's tenure as assistant solicitor and chief clerk, Defendants Clausi and Phillips worked as County Commissioners. (Id. ¶¶ 3, 4.)

In October 2010, Plaintiff reported that Defendant Clausi obtained a deficient air quality test in his investigation of an illness at the Northumberland County Courthouse. (Id. ¶ 8.) Plaintiff alleges that Defendant Clausi was angered by Plaintiff obtaining her own air quality test and dissatisfied with Plaintiff's recommendation that the courthouse employees file workers' compensation claims. (Id. ¶¶ 8-9.) Also that month, Defendant Clausi allegedly chose to ignore a contractor's warning that the panes of the courthouse's glass dome would cave in. (Id. ¶ 10.) In response to Plaintiff's report regarding this hazard, Defendant Clausi left Plaintiff a threatening voicemail message. (Id.) Plaintiff alleges that there were other instances of intimidating and harassing behavior, including one that she reported to the Human Resources Director and another to a District Attorney, which resulted in a state police investigation. (Id. ¶¶ 14-21.) She further alleges that Defendant Clausi stated to the news media that he would seek Plaintiff's termination. (Id. ¶ 18.)

On March 15, 2011, during a public meeting of the County Commissioners, Plaintiff encouraged the Commissioners to adopt her proposed Code of Civility, which set forth policies and duties intended to promote respect, courtesy, and civility within the County government. (Id. ¶ 22; see also Doc. No. 22-1.) At this meeting, Defendant Clausi urged for the termination of Plaintiff. (Doc. No. 22 ¶ 25.) Defendants Clausi and Phillips voted to terminate Plaintiff, and Plaintiff was fired on March 18, 2011. (Id. ¶ 26.) Defendants indicated that Plaintiff was terminated for failing to communicate with Defendant Clausi after she made her police complaint, for providing poor legal advice on a matter involving the sale of County-owned land, and for proposing the Code of Civility at the public meeting. (Id. ¶ 27.) Following Plaintiff's termination, two men were hired to replace her. (Id. ¶ 28.)

On November 30, 2011, the Court dismissed Plaintiff's original complaint without prejudice. (Doc. No. 21.) Plaintiff filed her amended complaint on December 19, 2011. (Doc. No. 22.) Defendants jointly filed a motion to dismiss the amended complaint on January 16, 2012. (Doc. No. 26.) On June 29, 2012, Magistrate Judge Blewitt recommended that the complaint be dismissed in part with prejudice. (Doc. No. 38.) Plaintiff filed an objection to the Report and Recommendation on July 9, 2012. (Doc. No. 39.)


The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify a Report and Recommendation, a Court must make a de novo determination of those portions of the Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).

Dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is proper when the defendants are entitled to judgment as a matter of law. See Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). To avoid dismissal, the complaint must contain allegations sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Essentially, a plaintiff must "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).


In her amended complaint, Plaintiff has asserted the following causes of action: (1) a First Amendment retaliation claim raised pursuant to 42 U.S.C. § 1983 against Defendants Clausi and Phillips (Count I); (2) a claim pursuant to the Fourteenth Amendment's Due Process Clause against all Defendants (Count II); (3) an Equal Pay Act claim against all Defendants (Count III); (4) a conspiracy claim raised pursuant to 42 U.S.C. § 1985 against Defendants Clausi and Phillips (Count IV); (5) a claim under the Pennsylvania Whistleblower Law, 43. P.S. § 1421, against all Defendants (Count V); and (6) a wrongful termination claim, which Plaintiff voluntarily dismissed in her brief in opposition to Defendants' motion to dismiss the amended complaint (Count VI). (Doc. No. 22; Doc No. 32 at 13.) In his Report and Recommendation, Magistrate Judge Blewitt recommended that Defendants' motion to dismiss be granted in part. (Doc. No. 38 at 44.) Specifically, Magistrate Judge Blewitt recommended that Defendants' motion be: (1) denied with respect to Plaintiff's First Amendment retaliation claim; (2) granted with respect to Plaintiff's due process claim; (3) granted with respect to Plaintiff's Equal Pay Act claim; (4) granted with respect to Plaintiff's conspiracy claim; (5) granted in part with respect to Plaintiff's Pennsylvania Whistleblower Law claim, to the extent that her claim relates to her complaints of harassment; and (6) ...

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