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Henry v. City of Allentown

United States District Court, Third Circuit

December 5, 2013

LEIF HENRY, Plaintiff,


Jeffrey L. Schmehl, J.

This action grows out of multiple aspects of Plaintiff’s experience as a police officer employee of Defendants. Plaintiff’s second amended complaint asserts four counts: a race discrimination claim, a procedural due process claim, a claim for violation of the Rehabilitation Act (RA), 29 U.S.C. §701 et seq., and a claim for RA-related retaliation. Defendants have moved to dismiss, and for the reasons that follow, the Court will grant the motion, partly with and partly without prejudice.

Factual and Procedural Background

Plaintiff Leif Henry entered the employ of Defendant City of Allentown as a police officer in 1998. At some point he was assigned to the K-9 unit and worked with a dog named Falko; Plaintiff alleges that as of September 2010, he was “in charge of supervising and running the day to day operations and training of the k-9 unit.” Second Amended Complaint at ¶18. Sadly, over the remainder of 2010, Falko suffered a series of medical problems and was euthanized in early December.

Later in December, a local businessman donated a dog to the union with the understanding that it would be assigned to Plaintiff to replace his previous dog. According to Plaintiff, he then took possession of the dog and left a message regarding the donation for his superior, who did not respond. Plaintiff then contacted the union president, told Plaintiff that, according to Defendant Chief of Police Roger MacLean, he was to hold onto the dog while the department sorted things out. On December 23, Plaintiff was told that an investigation was underway and that he was to report for an interview on December 27, which he did. Plaintiff avers he then spoke with Chief MacLean on December 30; according to Plaintiff, Chief MacLean was angry about how the donation transpired, either because he was not directly involved or because the donation was supposed to be to the City rather than to the union, or some combination thereof. Although Plaintiff was initially informed that he could begin working with the new dog in early January, he was subsequently barred from several K-9 training sessions during that month, and on January 27, Plaintiff’s superior instructed him to turn over the dog for assignment to another officer. According to Plaintiff, the investigation that occurred surrounding the dog donation in December 2010 has never been officially closed. Though without a dog, Plaintiff remained technically assigned to the same unit until May 26, 2011, when he was reassigned to a new platoon and steady night shifts effective June 1, 2011, purportedly because his presence might undermine the new dog’s obedience to his assigned officer.

On June 4, 2011, after Plaintiff’s reassignment to night shift, he began to suffer from medical issues including migraines, fatigue, delays in cognition and dexterity, weakness on his right side, elevated blood pressure, and disorientation. Plaintiff’s doctor evidently concluded that he was unable to work night shift because of these ailments, and on August 15, 2011, Plaintiff submitted a doctor’s recommendation that he be reassigned to day shift. Plaintiff avers that on several occasions later that month, Chief MacLean made comments to third parties both verbally and by text message to the general effect that he was extremely reluctant to accommodate the medical needs of Plaintiff and others because he viewed these medical requests as merely an attempt to shirk duty that make it difficult for him to supervise and schedule the department. Beyond the animus these comments display, Plaintiff alleges Chief MacLean’s discussion of his medical request with third parties constitutes disclosure of his confidential medical information. As of October 17, 2011, Plaintiff was reassigned to day and middle shifts to accommodate his medical issues.

In September 2011, Plaintiff was the subject of an unrelated internal affairs investigation related to supplemental employment outside the department. According to Plaintiff, other employees with outside work were not investigated, and the investigation was intended to harass him.

Plaintiff filed this suit March 19, 2012, and filed a first amended complaint four days later, before any response by Defendants. Defendants filed a motion to dismiss, and the Honorable Lawrence F. Stengel, to whom this case was previously assigned, granted the motion, dismissing Counts I and II without prejudice, Count III with prejudice as to Defendant MacLean, and Count IV with prejudice as to MacLean but without prejudice as to the City.[1] In accordance with Judge Stengel’s order, Plaintiff filed a second amended complaint on January 18, 2013, and Defendants again moved to dismiss. The case was reassigned to the underDated: July 30, 2013.[2]


Plaintiff’s second amended complaint has four counts. Count I states a claim for race discrimination under 42 U.S.C. §1981. Count II alleges a procedural due process claim regarding Plaintiff’s reassignment out of the K-9 unit. Count III asserts a violation of the RA, focusing on discrimination but conceivably including failure to accommodate. Count IV presents an RA retaliation claim. Defendants have moved to dismiss all counts for failure to state a claim.

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must determine whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although the grant of a motion to dismiss is usually without prejudice, a District Court may exercise its discretion and refuse leave to amend if such amendment would be futile, particularly when a plaintiff has had multiple opportunities to improve the pleadings. See In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1434-35 (3d Cir. 1997).

Count I

Plaintiff has the initial burden of establishing a prima facie case for his race discrimination claim under 42 U.S.C. §1981. Coleman v. City of Philadelphia, 80 F.App'x 279, 283 (3d Cir. 2003). To meet that burden, he must show: “(1) [he] is a member of a protected class; (2) [he] satisfactorily performed the duties required by [his] position; (3) [he] suffered an adverse employment action; and (4) either similarly-situated non-members of the protected class were treated more favorably or the adverse job action occurred under circumstances that give rise to an inference of discrimination.” Langley v. Merck & Co., Inc., 186 F.App'x 258, 259 (3d Cir. 2006). The motion to dismiss centers on the fourth element, and Plaintiff fails to satisfy it as he did in the previous version of his complaint.[3]

First, Plaintiff maintains allegations that his superiors instructed him to perform menial or demeaning tasks and serve as a translator when dealing with Spanish speakers. Judge Stengel rightly ...

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