EVERETT K. TERRY, Plaintiff
YEADON BOROUGH, et al., Defendants.
CYNTHIA M. RUFE, J.
Plaintiff alleges that he was terminated from his employment as a police officer for Yeadon Borough because Borough Council members, the Individual Defendants in this action, disapproved of his interracial marriage. The Amended Complaint alleges the following facts. In 2005, the Borough Finance Director instructed Plaintiff to include his now-wife on the Borough’s health insurance plan. When Plaintiff explained that the couple was not legally married, the Finance Director replied that they had been in a relationship long enough to qualify for common-law marriage. In July 2010, Defendant Jones-Butler, Yeadon Borough’s mayor, saw photographs of Plaintiff’s recent wedding ceremony that Plaintiff had posted on Facebook. In August 2010, Jones-Butler told Plaintiff that employees could not add partners to their insurance plan before they were formally married, and that if he did not resign and repay the amount of overpaid benefits received, he would be terminated and prosecuted. Plaintiff objected and was granted a hearing, and the Council voted to allow him to remain at his job, subject to repayment of the benefits. Less than two weeks later, Jones-Butler shouted at the Police Chief who had supported Plaintiff, “Don’t think this is over!” Three days later, Plaintiff was informed that the Council had met for an unannounced re-vote and decided to terminate his employment. At the time of his termination, Plaintiff was the only Borough employee in an interracial relationship, and two other employees who were overpaid benefits, including the Council President, Defendant Kemp, were allowed to merely repay the amount and were not terminated. Plaintiff filed suit, and Defendants have moved to dismiss the Amended Complaint.
II. Standard of Review
Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure to state a claim upon which relief can be granted is appropriate where a plaintiff’s “plain statement” lacks enough substance to show that he is entitled to relief. In determining whether a motion to dismiss should be granted, the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. Courts are not, however, bound to accept as true legal conclusions couched as factual allegations. Something more than a mere possibility of a claim must be alleged; rather plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”The complaint must set forth “direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” The court has no duty to “conjure up unpleaded facts that might turn a frivolous . . . action into a substantial one.” Legal questions that depend upon a developed factual record are not properly the subject of a motion to dismiss.
A. Claims against Yeadon Borough and Yeadon Borough Council
In order to hold a municipal liable in the absence of an official edict, Plaintiff must allege facts to support the inference that there exists a “well-settled and permanent” practice.Although municipal liability can be triggered by the intentional actions of officials with relevant final policy-making authority, such as the mayor, the policy-maker must be implementing a well-settled and permanent custom. Here, Plaintiff alleges a single instance of racial discrimination. Although Plaintiff alleges that the Borough and Council are liable because of an unspoken Borough policy against interracial relationships, he has not pleaded facts that would allow an inference rising above the level of “sheer possibility, ” that discouragement of interracial relationships was so established. The claim against the municipal defendants will be dismissed and leave will be granted to file a second amended complaint.
B. Claims against the Individual Defendants
1. Equal Protection
Discrimination against an individual because he is in an interracial relationship violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Allegations of “departures from the normal procedural sequence, ” or disparate treatment of those otherwise “similarly situated” may support an equal protection claim. Plaintiff alleges that his termination followed a secret re-vote by the Council and that he was treated differently than employees not in interracial relationships, who were overpaid benefits but not terminated. These facts state a claim. Although Defendants argue that racial discrimination is not plausible here because most of the Individual Defendants are African-American, like Plaintiff, an equal protection claim cannot be dismissed merely because the defendant and plaintiff belong to the same race.
2. Procedural Due Process
Plaintiff had a constitutionally protected property interest in his job as Pennsylvania police officer,  and due process therefore required his employer to provide him with a hearing, an explanation of the evidence in support of the charges, and an opportunity to respond with a defense. Plaintiff alleges that at the hearing that complied with these requirements he was informed that he would not be terminated. However, Plaintiff alleges that he was not provided notice of, or a hearing before or after, the Council’s re-vote, nor was he informed of any new information, evidence, or considerations that led the Council members to change their minds and decide to hold a second ...