BRYAN HILLS, et. al., Plaintiffs,
BOROUGH OF COLWYN, et. al., Defendants.
ANITA B. BRODY, J.
Plaintiffs Bryan Hills (“Hills”), Aaron Ockimey, Sr. (“Ockimey”), and John Cizmarik (“Cizmarik”) (collectively “plaintiffs”) bring suit against their employer, Defendant Borough of Colwyn (“Borough” or “Colwyn”); the President of the Colwyn Borough Council, Tonette Pray (“Pray”), in her official and individual capacity; and nine additional members of the Colwyn Borough Council (collectively “Council Members”), in their official and individual capacities. Plaintiffs allege that defendants discriminated against them in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. Ann. § 951 et seq.; and 42 U.S.C. § 1981 (“§ 1981”), brought via 42 U.S.C. § 1983 (“§ 1983”). Additionally, Plaintiff Cizmarik alleges that defendants discriminated against him in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
Three motions are currently pending before the court. First, Defendant Mueser moves to dismiss plaintiffs’ PHRA and § 1981 claims against him in his individual capacity. Second, Defendants Borough, Pray, and the eight remaining Council Members (collectively “Colwyn Defendants”) move to dismiss: (1) plaintiffs’ § 1981 claims against all defendants, (2) plaintiffs’ PHRA claims against Defendants Pray and Council Members in their individual capacities, and (3) Cizmarik’s PHRA, Title VII, and ADA claims against the Borough. Third, Colwyn Defendants move to strike punitive damages as to plaintiffs’ § 1981 and PHRA claims. I will grant in part and deny in part each of these three motions for the reasons discussed below.
I. BACKGROUND 
Hills and Cizmarik are white male Borough employees. Ockimey is an African-American Borough employee. Pray, an African-American Council Member, has been president of the council since on or about November 2007. Plaintiffs allege that Pray made employment decisions based on race and enlisted other Council Members to terminate employees on the same basis. Pray has said that Borough employment should “be like UPS—all brown” and, regarding Borough employees (“employees”), “If it’s white, it ain’t right.” Plaintiffs contend that, between June 2008 and the present, Pray and Borough Council took adverse employment actions against them as a result of this race-based campaign.
A. Plaintiff Hills
In 1998, Hills began working for Colwyn Borough as Sergeant-in-charge. In 2001, he became Chief of Police. Beginning in June 2008 and continuing to the present, Pray has withheld his overtime pay, his healthcare reimbursement and his pay for unused vacation time. Pray did this by reducing, delaying, intercepting, or failing to deliver checks. Hills further contends that Pray referred to the Police Department as a “White Boys’ Club, ” stated that “Black communities should be policed by black officers and run by black supervisors, ” and stated to employees, including Ockimey, that she and Borough Council wanted to remove Hills from his position because of his race. About August 2009, Pray also met with African-American members of the Colwyn Police force and made racially-charged derogatory remarks about Hills. Pray instructed African-American Officers Parham, Robinson, and Reed, as well as Ockimey, to scrutinize Hills’ work and to report information to her that would assist her in terminating Hills’ employment.
Starting in 2009, Borough Council approved several disciplinary actions against Hills, including suspending him without pay in March 2009 and June 2009, and terminating him in September 2009. Subsequent arbitrations overturned all three of these disciplinary actions as unwarranted. The March 2009 action suspended Hills for two days for alleged insubordination for not following the Borough Council’s directive to avoid scheduling officers to work overtime. In September 2009, an arbitrator overturned the March 2009 suspension as unwarranted and not for just cause. The Council again suspended Hills—this time for ten days—in June 2009 for “‘neglect or violation of [his] duties’ and ‘inefficiency[, ] neglect, disobedience of orders and/or conduct unbecoming an officer.’” The dispute again centered around the Council’s directive to avoid scheduling officers for overtime. In March 2010, a different arbitrator overturned the June 2009 suspension and concluded that “faced with limited manpower” Hills had “managed the police department admirably.” Hills claims that the Borough Council “deliberately created an impossible situation for [him] by failing to adequately budget the manpower necessary to conduct police functions, …in order to build an unfair case against [him].” A part of this effort “was council members’ decision to penalize Hills for unplanned overtime which was necessary to meet the Borough’s policing requirements.” On September 22, 2009, at a meeting broadcast on local television news, the Borough Council terminated Hills without notice to either Hills or the Mayor of Colwyn. In May 2011, a third arbitrator overturned Hills’ termination and ordered Hills’ reinstatement with back-pay, finding that many of the Borough’s rationales for Hills’ termination were the same issues raised to justify Hills’ previous suspensions. The Borough appealed the final arbitration decision to the Delaware County Court of Common Pleas, which affirmed the arbitration award. The Borough then appealed the affirmation to the Commonwealth Court, which affirmed the lower court’s decision. Since the decision, Borough Council has failed to pay Hills’ back-pay, and has not yet reinstated him. Borough Council advised Hills that he must undergo psychological and medical testing before returning to work. Finally, around the time of the issuance of a notice of right to sue to Hills, Borough Council ceased paying Hills’ medical insurance premium.
B. Plaintiff Ockimey
The Borough hired Ockimey as a Colwyn Highway Department laborer in January 2008. In late 2008, the Borough promoted him to foreman—a post previously held by Cizmarik. Around the time of Ockimey’s promotion, Pray told Ockimey that the Borough Council was “going after” the white police department, including Hills. Pray also referred to African-American police officers who supported Hills as “Uncle Toms.” Pray told Ockimey that if he supported her efforts he would be “fine.” In early 2009, Ockimey observed Pray and Hills in some kind of dispute. Pray demanded that Ockimey write an inaccurate statement about what happened and dictated its contents. Ockimey wrote the statement, because he feared that both he and his son (also a Borough employee) would lose their jobs. Subsequently, during Hills’ first arbitration, Ockimey testified truthfully about the dispute, violating Pray’s instructions to testify in accordance with his previous written statement. After Ockimey testified, Pray and the Council targeted him by not allowing him to make up time on the weekends for work he missed due to his wife’s cancer treatments, not paying him for overtime he worked, and not properly reimbursing him for medical expenses correctly submitted.
C. Plaintiff Cizmarik
The Borough hired Cizmarik as a Colwyn Highway Department highwayman in 1986 and later promoted him to foreman. Cizmarik states that he is disabled within the meaning of the ADA, because he has suffered multiple organ failures, received a double organ transplant in 2009, and takes life-sustaining medication. Cizmarik was injured on the job in August 2008, but the Borough did not allow him to return to work until August 2009, although his physician cleared him for work in June 2009. When Cizmarik returned to work, Pray instructed one of Cizmarik’s co-workers to “work him until he drops or quits.” She also referred to Cizmarik as “the disabled white guy.” Furthermore, after Cizmarik’s return, the Borough demoted him from foreman to laborer and docked his pay for work-related injuries. Subsequent to the issuance of a notice of right to sue to Cizmarik, Borough Council ceased paying for Cizmarik’s health insurance coverage without notice to Cizmarik.
II. LEGAL STANDARD
In deciding a motion to dismiss under Rule 12(b)(6), a court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks omitted).
To survive dismissal, a complaint must allege facts sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
A. § 1981 Claims
Plaintiffs allege that Defendant Borough and Defendants Pray and Council Members, in their individual capacities, violated plaintiffs’ rights under 42 U.S.C. § 1981 by discriminating against them on the basis of race. Plaintiffs bring their § 1981 claims via § 1983 because § 1981 does not provide a cause of action against state actors. Section 1981 claims against state actors must therefore be brought through the cause of action provided by § 1983. McGovern v. City of Philadelphia, 554 F.3d 114, 120-121 (3d Cir. 2009) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)). Defendants argue that plaintiffs’ § 1981, via § 1983 claims should be dismissed because they are time-barred under the two-year statute of limitations applied to § 1983 claims. Indeed, § 1983 claims are typically subject to the statute of limitations for state tort personal injury claims, which is two years in Pennsylvania. See DiBartolo v. City of Philadelphia, No. 99-CV-1734, 2000 WL 217746, at *4 (E.D. Pa. Feb. 15, 2000) (citing Wilson v. Garcia, 471 U.S. 261, 266–67 (1985)); 42 Pa. Cons. Stat. Ann. § 5524 (statute of limitations for personal injury in Pennsylvania is two years). Plaintiffs contest, however, that the four-year statute of limitations provided by 28 U.S.C. § 1658 applies to their § 1981 claims.
In 1990, Congress enacted 28 U.S.C. § 1658, which is a catch-all statute of limitations providing that a “civil action arising under an Act of Congress enacted after” Dec. 1, 1990 is subject to a four-year statute of limitations. Although the original version of § 1981 was enacted by the Civil Rights Act of 1866, the statute was amended by the Civil Rights Act of 1991. The parties do not dispute that plaintiffs’ § 1981 claims—which involve harassing and discriminatory conduct that occurred post-contract formation—were not available under the original § 1981 that existed prior to the 1991 Amendments. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 372-373 (2004) (noting that under Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the original § 1981 “statutory right ‘to make and enforce contracts’ did not protect against harassing conduct that occurred after the formation of the contract. Under that holding, it is clear that petitioners' hostile work environment, wrongful discharge, and refusal to transfer claims do not state violations of the original version of § 1981”). Rather, the 1991 Amendments extended the protections of § 1981 to post-contract formation conduct, and it is this type of conduct by defendants that plaintiffs claim has violated their rights. Unlike § 1981, however, Congress did not amend § 1983 after 1990. The central question is thus whether plaintiffs’ § 1981 actions “arise under” the Civil Rights Act of 1991—which postdates § 1658’s catch-all statute of limitations—even though plaintiffs bring those claims via § 1983.
In Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), the Supreme Court considered the question of whether a § 1981 claim against a private actor should be subject to the two-year statute of limitations that had traditionally applied to § 1981 claims, or whether the four-year statute of limitations created by § 1658 should control. The Court first considered whether plaintiff’s specific § 1981 claims existed prior to 1990, or whether the Civil Rights Act of 1991 enabled the claims. The Court found that the claims—like those raised by plaintiffs in this case—were post-formation contract claims that had not existed prior to 1990, and thus alleged violations of the statute as amended in 1991. ...