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Little v. Borough of Greenville

United States District Court, Third Circuit

December 26, 2013

NANCY LITTLE, Plaintiff,
THE BOROUGH OF GREENVILLE, et al., Defendants.


ROBERT C. MITCHELL, Magistrate Judge.

Presently before the Court is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the Defendants. For the reasons that follow, the motion will be granted with respect to Counts II, III, IV, V, VI and VII of the Complaint and denied with respect to Count I.

Plaintiff, Nancy Little, brings this action alleging civil rights claims pursuant to 42 U.S.C. § 1983 and related state law claims arising out of her termination from employment as the Greenville Borough Secretary on September 12, 2012. She names as defendants the Borough of Greenville, Pennsylvania, the Borough Manager (Jasson Urey) and seven members of the Borough Council (Brian W. Whipley, Pamela S. Auchter, Donald B. Shaw, Anthony D'Alfonso, Alfred Peden, Theodore Jones and Megan Heathcote).


Plaintiff indicates that she began her employment with the Borough in June 2009 in the position of Borough/Code Secretary and performed those duties at all relevant times thereafter. (Compl. ¶ 6.)[1] At the regularly scheduled meeting on September 11, 2012, Borough Council appointed Megan Heathcote to fill a vacancy on Borough Council, allegedly without public discussion or participation in violation of 65 Pa. C.S. § 710.1, Pennsylvania's Sunshine Act. (Compl. ¶ 7.) Heathcote then participated in the meeting and voted on all remaining agenda items and participated in an executive session which was held at the end of the meeting and then voted with all other Council members to terminate Plaintiff's employment. (Compl. ¶ 8.)

On September 12, 2012, a prepared statement was read to Plaintiff by Borough Manager Urey with Borough Solicitor James Douglas present, informing her of Council's decision to terminate her employment and citing "breach of confidentiality" but no further explanation was offered, no written copy of the accusations or termination was provided to her and she was given only 15 minutes to vacate the building. (Compl. ¶ 9.) Plaintiff asserts that she never engaged in any act in her capacity as a municipal employee wherein she breached confidentiality and that her only communications with third parties, in her employment capacity, involved matters of public concern relative to information needed or of appropriate concern to the community, which constituted constitutionally protected free speech. (Compl. ¶¶ 10-11.)

She further states that:

It is the duly adopted policy of the Borough of Greenville that all employees who are subject to discipline and/or termination have the right to appeal, that they are to be informed of that right, and that an Acknowledgment of same is to be obtained and appended to the employee's personnel file.

(Compl. ¶ 12 & Ex. 1.)[2] She contends that, by adopting this appellate right procedure, the Borough thereby altered her relationship from at-will employment to create an expectation of continuing employment subject to a progressive disciplinary scheme which necessitates the establishment of a just cause determination before an employee can be disciplined and/or terminated. (Compl. ¶ 13.) She further contends that this procedure "vested [her] with a property interest in her public employment by way of an implied contract of employment created by the facts as averred herein." (Compl. ¶ 14.) She states that she was never given a pre-disciplinary notice, process or procedure, was denied any type of hearing pre or post her termination, was never informed of her appeal rights and was denied an opportunity for a necessary and proper notice, hearing and record before the local agency in violation of 2 Pa. C.S. § 551, the "Local Agency Law." (Compl. ¶¶ 16-19.)

Plaintiff alleges that on October 9, 2012, Ms. Heathcote resigned as a Council member, followed by Council voting to hire her to replace Plaintiff as Borough/Code Secretary. Ms. Heathcote was quoted publicly as saying that if she had known that the position was becoming available she would not have applied to be on Council. Finally, she alleges that when the vacant position was posted, it was advertised in a local newspaper for one (1) day instead of the customary three (3) days. (Compl. ¶¶ 20-22.)

Procedural History

Plaintiff filed this complaint on August 30, 2013. Federal question jurisdiction is asserted over the civil rights claims, 28 U.S.C. § 1331, and supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367(a). Count I alleges that Defendants violated Plaintiff's right to freedom of expression in violation of the First Amendment. Count II alleges that they denied her due process rights based upon her property interest in her employment. Count III alleges that her discharge constituted a breach of her employment contract. Count IV alleges that she was subjected to a wrongful termination. Count V alleges a claim of detrimental reliance. Count VI alleges that Defendants violated Local Agency Law by denying her reasonable notice and opportunity to be heard in that no hearing nor record thereto was empaneled or conducted. Count VII alleges a violation of the Pennsylvania Ethics Act, 65 Pa. C.S. § 1103(a).

On November 19, 2013, Defendants filed a motion to dismiss (ECF No. 2). Plaintiff filed her brief in opposition on December 11, 2013 (ECF No. 7).

Standard of Review

The Supreme Court has issued two decisions that pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only fair notice' but also the grounds' on which the claim rests." Phillips v. County of Allegheny , 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;" "labels and conclusions;" and "naked assertion[s]' devoid of further factual enhancement.'" Iqbal , 556 U.S. at 678 (citations omitted). Mere "possibilities" of misconduct are insufficient. Id. at 679. District courts are required to engage in a two part inquiry:

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 the plaintiff has a "plausible claim for relief."... In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts.

Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009) (citations omitted).

Defendants argue that: 1) the Borough has governmental immunity with respect to the state law claims in Counts III, IV and V because they allege intentional torts; 2) Plaintiff has not stated § 1983 claims in Counts I and II because she has not identified a speech act or a property interest in her employment, which was at-will, and she has not identified a public policy pursuant to which the Borough may be held liable; 3) because Pennsylvania has at-will employment, her claims for breach of employment contract (Count III), wrongful termination (Count IV) and detrimental reliance (Count V) must be dismissed; 4) the claims as asserted against the Borough Manager and Council members are redundant of the claims against the Borough because they arise out of acts taken by these individuals in their official capacities (voting to terminate her employment, reading a statement to that effect); 5) the individuals are entitled to qualified immunity because they did not violate her rights; 6) under Pennsylvania law, the individuals are entitled to immunity except for willful misconduct, so Counts VI and VII should be dismissed; 7) Plaintiff has not stated a claim under Local Agency Law; and 8) the alleged claim for violation of the Ethics Act (Count VII) is to be presented to an "independent commission, " 65 Pa. C.S. § 1101.1.

Plaintiff responds that: 1) governmental immunity does not bar liability for constitutional violations and local immunity applies to torts, not claims of breach of contract; 2) she has stated claims for freedom of expression and for denial of a property interest; 3) her employment was not at-will but was modified by the disciplinary appeal policy adopted by Borough; 4-6) the Borough Manager and Council members may be held personally liable for their actions, so these claims are not redundant or barred by immunity doctrines; 7) the Borough's disciplinary appeal policy removed her employment from at-will status with respect to Local Agency Law as well; and 8) the Court can exercise supplemental jurisdiction over the Ethics Act claim. The Court need not reach all of these arguments.

Section 1983 Claims

In Counts I and II, Plaintiff invokes the civil rights statute to state two claims. It is ...

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