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Bryan N. Kubic v. Stephen Allen

September 12, 2012

BRYAN N. KUBIC,
PLAINTIFF
v.
STEPHEN ALLEN, JOHN BIONDO, AND TAMMY FERGUSON,
DEFENDANTS



The opinion of the court was delivered by: Judge Sylvia H. Rambo

MEMORANDUM

Before the court is Defendants' Partial Motion to Dismiss the Amended Complaint. (Doc. 11.) Plaintiff's amended complaint (Doc. 9) asserts claims of retaliation, false arrest, malicious prosecution, and violations of procedural due process pursuant to 42 U.S.C. § 1983 (Counts I, II, III, & VI); violations of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4311 (Counts IV & V); and a state law malicious prosecution claim (Count

VII). Defendants move to dismiss Plaintiff's Fourteenth Amendment procedural due process claim. For the reasons that follow, the motion will be denied.

I. Background*fn1

a. Parties

Plaintiff, Bryan N. Kubic, is a 23-year veteran of the United States Army who, during all relevant times, held the rank of Master Sergeant in the Army Reserves. (Doc. 9, Amended Compl., ¶ 4.) Kubic was employed by the Pennsylvania Department of Corrections ("DOC"). (Id.) That employment was terminated following the filing of criminal charges against Kubic. (Id.)

Defendant Tammy Ferguson was employed by DOC as Chief of Security in the Department of Security Division. (Id. at ¶ 7.) Ferguson was Kubic's supervisor during the relevant time period. (Id. at ¶ 14.)

Defendant Stephen C. Allen was employed by DOC as an investigator in the Office of Special Investigations and Intelligence. (Id. at ¶ 5.) Allen was authorized to file criminal charges against Kubic on behalf of the Commonwealth of Pennsylvania. (Id.)

Defendant John Biondo was employed by the DOC as a Human Resources Analyst in the Labor Relations Division. (Id. at ¶ 6.)

b. Facts

The DOC has a military leave policy set forth in DOC Management Directive 530.26 ("Directive 530.26"). (Id. at ¶ 9.) Directive 530.26 provides, in part:

Documentation is required to determine eligibility for the use of paid leave, continuation of benefits, payment of a monthly stipend and the right to return to work within the time frames allowed by the [USERRA].

Documentation may be provided in the form of military orders, written communication from the employee's military unit or Form DD-214. [D]ocumentation supporting military leaves of absence is to be maintained permanently in Official Personnel Folders. (Id. at ¶ 10-12.)

In 2010, Ferguson became Plaintiff's supervisor. (Id. at ¶ 14.) Ferguson is a military verteran who, according to the amended complaint, "harbors ill will toward the military because . . . she did not enjoy the level of respect and career opportunities that male members of the military received." (Id. at ¶ 16.) Consequently, Ferguson implemented practices that were designed to harass military personnel. (Id. at ¶ 17.) For example, in January, 2011, Plaintiff requested to be transferred back to his original position at the DOC Training Academy. (Id. at ¶ 18.) Immediately following that request, Ferguson called Plaintiff into her office and allegedly called him a "coward" and said "if you keep bugging me about this military stuff, I will send you to Camp Hill Prison. You've been out of jail too long; you need some jail time." (Id. at 20.)

Ferguson routinely told Plaintiff that military leave requests were not approved because the "[m]ilitary does not trump the DOC." (Id. at ¶ 21-22.) On one occasion, Plaintiff was informed by the military on a Friday that he was to report for duty the following Monday. (Id. at ¶ 23.) Plaintiff promptly submitted a military leave request in accordance with DOC's policy, which was denied by Ferguson because ...


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