United States District Court, W.D. Pennsylvania
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For CATHERINE MCNEILLY, Plaintiff: Timothy P. O'Brien, LEAD ATTORNEY, Pittsburgh, PA; Margaret Schuetz Coleman, Law Office of Timothy P. O'Brien, Pittsburgh, PA.
For THE CITY OF PITTSBURGH, LUKE RAVENSTAHL in his individual capacity, NATHAN HARPER in his individual capacity, REGINA MCDONALD in her individual capacity, MAURITA BRYANT in her individual capacity and, DEPUTY CHIEF PAUL DONALDSON in his individual capacity, Defendants: Brendan Delaney, LEAD ATTORNEY, City of Pittsburgh Department of Law, Pittsburgh, PA; Lourdes Sanchez Ridge, Wendy Kobee, City of Pittsburgh Department of Law, Pittsburgh, PA.
For MICHAEL HUSS in his official capacity, Defendant: Wendy Kobee, LEAD ATTORNEY, City of Pittsburgh Department of Law, Pittsburgh, PA; Brendan Delaney, City of Pittsburgh Department of Law, Pittsburgh, PA.
MEMORANDUM OPINION AND ORDER
Cynthia Reed Eddy, Magistrate Judge.
Plaintiff Catherine McNeilly is a Commander with the City of Pittsburgh Bureau of Police. She filed this suit for breach of contract, retaliation for protected conduct under the First Amendment, and retaliation for protected conduct under the Civil Rights Act of 1866, made actionable by 42 U.S.C. § 1983, against Defendants the City of Pittsburgh, Luke Ravenstahl, Nathan Harper, Michael Huss, Regina McDonald, Maurita Bryant, and Paul Donaldson. Presently pending is Defendants' Motion to Dismiss for Failure to State a Claim, Motion to Dismiss for Lack of Jurisdiction, and Motion for More Definite Statement (hereafter " Motion to Dismiss" ). ECF No. 24. For the
reasons set forth below, this motion will be denied.
II. Factual Background
According to the facts set forth in the Amended Complaint, Commander McNeilly has been a " dedicated and decorated police officer" for the City of Pittsburgh Bureau of Police for 36 years. Amended Complaint, ECF No. 19, ¶ 1. Defendants named in Counts I and II are Luke Ravenstahl, the former Mayor of the City of Pittsburgh, and Nathan Harper, the Police Chief of the Pittsburgh Bureau of Police from October 31, 2006 until February 20, 2012. Defendants named in Count III are Michael Huss, the Director of the City of Pittsburgh's Department of Public Safety, Regina McDonald, the Acting Police Chief of the Pittsburgh Bureau of Police since February 20, 2013, Paul Donaldson, the Deputy Chief of the Pittsburgh Bureau of Police, and Maurita Bryant, the Assistant Chief of the Operations Division of the City of Pittsburgh Bureau of Police.
A. Counts I and II
Count I alleges defendants Ravenstahl and Harper breached a 2007 settlement agreement Commander McNeilly entered into in a prior retaliation suit against Ravenstahl, Harper and the City of Pittsburgh, when in August 2012, they failed to interview her or consider her in good faith for an Assistant Chief position. Count II alleges that in response to Plaintiff's protected conduct under the First Amendment, defendants Ravenstahl and Harper engaged in retaliatory conduct by failing to interview Plaintiff or give her good faith consideration for the Assistant Chief position. Plaintiff's protected First Amendment conduct included " petitioning the government for redress of grievances based upon the lawsuit she filed against these defendants in 2006 and the underlying protected speech which was the subject of that lawsuit." Amended Complaint, ECF No. 19, ¶ 49.
Plaintiff states that on or about December 6, 2006, she was demoted from her position as a Commander to a Lieutenant in retaliation for exposing corruption within the City of Pittsburgh Bureau of Police. Id. at ¶ 12. She initiated a lawsuit in the United States District Court for the Western District of Pennsylvania seeking equitable relief from defendants for retaliating against her in violation of her rights under the First Amendment to the United States Constitution and under Pennsylvania's Whistleblower Law. The parties reached a settlement agreement, which includes the provision that " [i]n the event that any Assistant Chief, Deputy Chief, Chief of Police position becomes open . . . defendants agree that Commander McNeilly shall be given good faith consideration and interviewed for any such position." Id. at ¶ 18; ECF No. 19-1, Exhibit 1, at ¶ 3. McNeilly states she included this provision because she was concerned defendants Harper and Ravenstahl would retaliate against her by hindering her promotional opportunities.
Defendants attach to their Motion to Dismiss court documents from the prior case, including the orders closing that case after the parties negotiated a settlement agreement. On August 27, 2007, then Chief Judge Donetta W. Ambrose entered an Order for Statistical Closing in which she, having been advised that the parties has reached a settlement and would be
filing a stipulation of dismissal, acknowledged the settlement agreement, in relevant part stating:
It appears that there is no further action required by the court at this time.
IT IS HEREBY ORDERED that the above-captioned case be marked closed; that nothing contained in this order shall be considered a dismissal or disposition of this action; and that should further proceedings therein become necessary or desirable, either party may initiate the same in the same manner as if this order had not been entered.
Exhibit A, Motion to Dismiss, ECF No. 24-1; Order of August 27, 2007 at ECF No. 18, Civil Action No. 06-1685.
On October 25, 2007, Chief Judge Ambrose issued an Order Entering Judgment for Plaintiff on Attorneys' Fees and directed the case closed. Id., Exhibit B; Order at ECF No. 20, Civil Action No. 06-1685. In its entirety, this Order states: " The binding arbitration agreed to by the parties in their Settlement Agreement having been concluded with an Award on October 19, 2007, it is on this 25th day of October, 2007, hereby ORDERED that based on the Arbitration Award judgment is entered for Plaintiff and against Defendant in the amount of $142,735 in attorney fees and $4,833 in costs. The Clerk's Office is directed to mark this case closed and discontinued."
In or about August 2012, George Trosky was promoted to the rank of Assistant Chief. Plaintiff states that despite her seniority over Trosky, she was not interviewed for this position or given good faith consideration, in violation of her settlement agreement. Plaintiff alleges that this failure to consider her for the position of Assistant Chief is part of an " ongoing pattern of retaliation directed at McNeilly" that has " persisted through to the present date." Id. at ¶ ¶ 23-24. This retaliation " has included providing her with less favorable training opportunities and work assignments, poor performance reviews and general ostracization by other members of the Senior Command Staff." Id. at ¶ 24.
B. Count III
Count III alleges that in response to Plaintiff's protected conduct under the Civil Rights Act of 1866, actionable under 42 U.S.C. § 1983, defendants Huss, McDonald, Donaldson, and Bryant engaged in retaliatory conduct by filing a Disciplinary Action Report (DAR) and written reprimand against Plaintiff for " false allegations that she was insubordinate and/or that she permitted a ...