SHEILA A. WOOD
BETHELEHEM AREA VOCATIONAL TECHNICAL SCHOOL, et al.
Stewart Dalzell, J.
We consider here defendants’ motion to dismiss Sheila Wood’s complaint. Wood alleges that her former employer, Bethlehem Area Vocational Technical School (“BAVTS”), as well as several individual and institutional defendants, violated her rights under the First and Fourteenth Amendments by changing her conditions of work and then firing her in retaliation for her public comments about potential asbestos exposure in BAVTS. Comp. ¶¶ 17 - 36.
Wood’s complaint includes eight counts: five counts brought under 42 U.S.C. § 1983, one for wrongful termination, one for intentional infliction of emotional distress, and one for civil conspiracy. We have jurisdiction over Wood’s § 1983 claims pursuant to 28 U.S.C. § 1331 and over Wood’s supplemental jurisdiction state law claims pursuant to 28 U.S.C. § 1367.
I. Standard of Review
Under Fed.R.Civ.P. 12(b)(6), a defendant may move the Court to dismiss a complaint on the ground that it fails to “ state a claim upon which relief can be granted ” . A moving defendant bears the burden of proving that the plaintiff has failed to state a claim for relief, see Fed.R.Civ.P. 12(b)(6), see also
Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005).
As the Supreme Court held in Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007) and Ashcroft v. Iqbal , 556 U.S. 662 (2009), in order to survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’ ”, Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged ”, Iqbal, 556 U.S. at 678.
As our Court of Appeals has explained post-Twombly and Iqbal, when considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the district courts must engage in a two-part analysis:
First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). We thus begin by reciting the facts as Wood has pled them.
According to her complaint, Wood worked for BAVTS from October 2, 2006 until November 4, 2010. Comp. ¶¶ 17-18. Wood avers that before she raised concerns about asbestos exposure at BAVTS, she received the same treatment as other employees. Id. at 23.
The potential asbestos exposure at BAVTS allegedly raised significant public concern, causing “many members of the public to attend meetings of the BAVTS’ Joint Operating Committee” and spurring substantial media coverage. Id. at ¶ 22. Plaintiff says that she was active in the effort to address asbestos exposure: she “appeared at numerous meetings of Defendant BAVTS’ Joint Operating Committee and made statements to staff and members of the public regarding the asbestos exposure problem at BAVTS, ” and she “associated with . . . other persons to effectuate a response to the concerns raised by the asbestos exposure.” Id. at ¶¶ 24, 26. She alleges that Richard Crosby, a fellow staff member, joined her in these efforts. Id. at ¶¶ 25-27.
According to Wood, “[d]isciplinary actions were taken against both the Plaintiff as well as Mr. Crosby, including, with respect to the Plaintiff, a ten day suspension without pay from February 17, 2010 to March 2, 2010.” Id. at ¶ 28. After her suspension, Wood says “her duties [were] significantly altered” in that “[h]er access to equipment was made more restrictive, she was precluded from access to a master key which was crucial for her to perform her job, and she was provided with inferior equipment.” Id. at ¶ 29. She alleges that she “was set up to fail”, and thus “[i]n June of 2010, [Wood] was given an unsatisfactory job performance evaluation.” Id. at ¶¶ 29-30.
Some time after July 2, 2010 Wood received a hearing pursuant to
Cleveland Board of Educ. v. Loudermill , 470 U.S. 532 (1985). Wood alleges that at this hearing “none of the administrators present including Defendant Kline [sic] and Defendant Williams could articulate one single instance of misconduct”, Id. at ¶ 32. She also claims that “[n]o documentation was provided by the Administration to support the nebulous charges made at the ‘Loudermill’ hearing, and, in fact, much of the purported ‘documentation’ was physically produced after the purported ‘Loudermill’ hearing”, Id. at ¶ 33.
BAVTS suspended Wood on August 16, 2010, Id. at ¶ 35, and the school fired her on November 4, 2010, Id. at ¶ 18. BAVTS employees said the school fired Wood because she violated the Internet use policy and performed her job unsatisfactorily. Comp. ¶ 19.
In pleading the facts in her complaint, Wood mentions only two individual defendants by name -- Brian Williams and Sandra Klein. Williams was the Executive Director for BAVTS, and Klein was the “Supervisor of Lifelong Learning -Technology”. Id. at ¶¶ 4, 6. Wood also brings this action against individual defendants Dr. Irene Gavin, the “Supervisor of Instruction - Principal” at the school; John Haney, the technology coordinator; and Sharon Stack, the chair of the Joint Operating Committee for BAVTS, a committee Wood alleges is responsible for the day to day operations at BAVTS. Id. at ¶¶ 5, 7-8. Wood also sues “John/Jane Does 1-X, ” who are “employees or officials of one or more of the” institutional defendants.
Wood sues five institutional defendants: Bethlehem Area Vocational Technical School, Bethlehem Area Vocational Technical School Authority, Bethlehem Area School District, Northampton Area School District, and Saucon Valley School District. Id. at ¶¶ 11-15.
The defendants move to dismiss the complaint in its entirety.
Because Wood brings most of her claims under 42 U.S.C. § 1983, we note at the outset that under § 1983, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . 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 . . . .” 42 U.S.C. § 1983. Thus, in order to state a § 1983 claim, a plaintiff must allege facts sufficient to allow the court to draw a reasonable inference that a person acting under color of state law has violated a right secured by the Constitution or the laws of the United States. See, e.g.,
Nicini v. Morra , 212 F.3d 798, 806 (3d Cir. 2000).
Before considering the defendants’ arguments that all claims should be dismissed against all defendants, we will first consider the validity of Wood’s claim that her constitutional rights under the First and Fourteenth Amendments were violated. Because we will hold that Wood has pled facts sufficient to state a plausible claim that some defendants violated these rights, we will consider whether the action should nevertheless be dismissed against some defendants.
A. Count I - 42 U.S.C. § 1983, Violations of Plaintiff's Rights Under the First and Fourteenth Amendments
1. First Amendment Rights
Wood alleges that the defendants “depriv[ed] her [of her] Constitutionally protected right to free speech, to petition the government for a redress of grievances, freedom of association . . . and other rights as guaranteed by the First . . . Amendment.” Comp. ¶ 48.
In Watters v. City of Philadelphia , 55 F.3d 886 (3d Cir. 1995), our Court of Appeals laid out the standard for a public employee’s claim that she was fired in retaliation for engaging in protected First Amendment activity:
First, plaintiff must show that the activity in question was protected . . . Second, plaintiff must show that the protected activity was a substantial or motivating factor in the alleged retaliatory action . . . Finally, defendant may defeat plaintiff’s claim by demonstrating by a preponderance of the evidence that the same action would have been taken even in the absence of the protected conduct.
Id. at 892.
The defendants argue that Wood has failed to claim a First Amendment violation because “the complaint fails to allege facts that would establish a causal connection between any purported protected speech and negative employment action.” Def. MTD at 6. They thus argue both that Wood’s speech was not protected and that there was no causal link between her speech and her firing.
The Supreme Court has explained that in order for a public employee’s speech to be protected under the First Amendment that speech “must be on a matter of public concern” and “the employee’s interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
Waters v. Churchill, 511 U.S. 661, 668 (1994) (internal quotations omitted). See also, e.g., Watters, 55 F.3d at 892 (quoting Waters). Furthermore, the speech must not be made as part of an employee’s job duties.
Garcetti v. Ceballos, 547 U.S. 410, 423 (2006).
The defendants do not contend that the BAVTS’s interests as an employer outweighed Wood’s interest in speaking out about asbestos exposure. Instead, they argue that Wood’s speech was not “on a matter of public concern” because it did not reach beyond BAVTS. Def. MTD at 6-7.
In Baldassare v. State of New Jersey, 250 F.3d 188, 195 (3d Cir. 2001), our Court of Appeals relied on
Connick v. Myers , 561 U.S. 138 (1983), in explaining that “[a] public employee’s speech involves a matter of public concern if it can be fairly considered as relating to any matter of political, social or other concern to the community”, and this analysis requires a consideration of “the content, form, and context of the activity in question.” Id. at 195 (internal quotations omitted). I n Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993), our Court of Appeals reasoned that “[t]he form and context of the speech may help to characterize it as relating to a matter of social or political concern to the community if, for example, the forum where the speech activity takes place is not confined merely to the public office where the speaker is employed”, Id. at 195.
Here, Wood argues that the content of her speech --the danger of asbestos contamination in a public school -- was a matter of public concern, Pl. Resp. at 11, and we agree. Judge Rambo reached a similar conclusion in denying a motion to dismiss in
Smith v. Central Dauphin School Dist. , 419 F.Supp.2d 639 (E.D. Pa. 2005), where she found “speech involv[ing] allegations of health and safety problems with Defendant School District’s buildings” to be “a topic of great concern to the community”. Id. at 647. Moreover, we reject defendants’ argument that “there is no specific allegation that the speech reached beyond BAVTS”, Def. MTD at 7. The complaint alleges that “many members of the public” attended “meetings of the BAVTS’ Joint Operating Committee”, and that the issue received “substantial coverage in the local and regional media.” Comp. ¶ 22. According to the complaint, Wood “appeared at numerous meetings of Defendant BAVTS’ Joint Operating Committee and made statements to staff and members of the public regarding the asbestos exposure problem at BAVTS”, Id. at ¶ 24.
Wood's speech was thus not “confined merely to the public office where the speaker is employed” under Holder. It is also clear that discussing asbestos exposure fell outside of Wood’s duties as a technology assistant, and she has alleged as much. See Comp. ¶ 27 (“The advocacy by Plaintiff and Mr. Crosby was well beyond their scope of their job responsibilities and was motivated by a genuine concern for the students, staff, and members of the public who may have been exposed to ...