United States District Court, M.D. Pennsylvania
MALACHY E. MANNION, United States District Judge
before the court is a motion to dismiss, (Doc. 8),
filed by defendant Waymart Borough located in Wayne County,
Pennsylvania (“the Borough”) and defendant
Frederick J. Glavich (“Police Chief Glavich”).
The defendants seek dismissal of all of the claims in the
complaint, (Doc. 1), filed by plaintiff Joseph
Bifano (“Corporal Bifano”) and plaintiff Keith
Rynearson (“Sergeant Rynearson”). Corporal Bifano
and Sergeant Rynearson were former employees of the
Borough's police department. The plaintiffs'
complaint alleges that the Borough and Police Chief Glavich
violated Pennsylvania's whistleblower law (Count I) and
the First Amendment of the United States Constitution (Count
II). The complaint also alleges that Police Chief Glavich
defamed the plaintiffs under Pennsylvania law (Count III).
For the reasons that follow, the defendants' motion to
dismiss is GRANTED IN PART and DENIED IN PART.
Bifano began working for the Borough's police department
in 2007. Sergeant Rynearson joined the department in 2009.
Both possessed full-time jobs in addition to their time spent
with the department. In October 2010, Police Chief Glavich
accepted the role of chief of police; the plaintiffs had been
offered this position first but turned it down. Unlike the
previous police chief, Police Chief Glavich frequently sat in
the office “on duty” (1) “in plain
clothing”; (2) “with his personal vehicle outside
and/or without [a] police vehicle available”; (3)
“avoid[ing] telephone calls”; and (4) “at
times, would avoid citizen complaints attempted in
person.” (Doc. 1, at ¶¶16-17).
Police Chief Glavich was billing the Borough during those
times he was in the office and allegedly “on
duty.” Police Chief Glavich also used department funds
to purchase equipment “sparingly, and unreasonably,
” including the purchase of less expensive radios for
the department. These less expensive radios lost connectivity
after a few hundred yards. (Id. ¶¶18-19).
Police Chief Glavich would also criticize the plaintiffs
about their enthusiasm for enforcing the law. (Id.
March 2015, the plaintiffs met with the Borough's mayor
at the time, Jack Millard (“Mayor Millard”); the
Borough's councilman, Doug Bayly (“Councilman
Bayly”); and the Borough's councilwoman, Lillian
Rollinson (“Councilwoman Rollinson”). Another
police department employee, Harry Shaffer (“Patrolman
Shaffer”), was also in attendance. During this meeting,
the plaintiffs were asked about Police Chief Glavich's
work performance. (Id. ¶¶21-22). The
plaintiffs told Mayor Millard, Councilman Bayly, and
Councilwoman Rollinson about Police Chief Glavich's
conduct in the office and his “wrongdoing and/or waste
of public money and funding.” (Id. ¶23).
Job descriptions for officers and the chief of police were
drafted for the department as a result of this meeting. The
newly implemented job description included a requirement that
Police Chief Glavich record all hours he claimed to be
“on duty.” Police Chief Glavich signed this job
description on April 17, 2015. However, the plaintiffs later
spoke to the Borough's treasurer, Shelly Gologski
(“Treasurer Gogolski”), and she said that Police
Chief Glavich was “billing a lot, ” despite never
seeing him. (Id. ¶¶24-28).
end of the 2015 summer Mayor Millard and Councilman Bayly
asked Corporal Bifano about Police Chief Glavich's
performance since the meeting; Corporal Bifano responded that
things were “status quo.” (Id.
¶¶29-30). After this encounter, Mayor Millard
planned to confront Police Chief Glavich during a meeting.
Before the meeting was to be held, however, Councilman Bayly
told Police Chief Glavich about the meeting's underlying
purpose. The meeting was cancelled and Mayor Millard
subsequently resigned as mayor because he was “so upset
by this turn of events.” (See Id.
the Labor Day weekend, a fireman approached Corporal Bifano
and told him that he did not have authority to break up
gatherings. Corporal Bifano called Police Chief Glavich about
the matter and Police Chief Glavich accused Corporal Bifano
of “talking behind his back.” (Id.
¶¶35-36). On September 8, 2016, the Borough held a
monthly meeting with Police Chief Glavich and Patrolman
Shaffer in attendance. During that monthly meeting Police
Chief Glavich held an executive, closed-door meeting with the
Borough's councilmembers. The next day, the plaintiffs
were placed on unpaid suspension due to an alleged lack of
funding, despite there being sufficient funding for their
continued service. (Id. ¶¶38-45).
meeting was scheduled for October 20, 2015 to discuss the
plaintiffs' suspension. This meeting turned into a
hostile confrontation between the plaintiffs and the
Borough's councilmembers where the councilmembers accused
the plaintiffs of violating the chain of command. Afterwards,
the plaintiffs were not placed back on the schedule and they
declined to attend any more meetings. (Id.
¶¶46-53). Instead, they sought a return to duty
“upon the acceptance of a few requests, ” which
the defendants denied. (Id. ¶¶54-55).
After this, the defendants took a series of actions in
addition to the suspension. In October 2015, the
Borough's new mayor, Chip Norella (“Mayor
Norella”), implemented a policy of single person
patrols which would have prevented the plaintiffs from
working together while on duty. On November 18, 2015, the
plaintiffs were required to return all of their equipment. On
December 8, 2015, the plaintiffs' ranks and titles were
eliminated. On January 5, 2016, the plaintiffs were
officially terminated. (Id. ¶¶57-60).
point during this series of events, Police Chief Glavich told
the Borough's councilmembers that the plaintiffs had
“violated the [c]hain of [c]ommand.”
(Id. ¶62). Meanwhile, the plaintiffs were
seeking employment in police departments located in
neighboring municipalities. The Forest City police department
was a neighboring municipality. At some unspecified time,
Police Chief Glavich also told the chief of police of the
Forest City police department that Sergeant Rynearson
violated the chain of command. (Id.
¶¶62-64). Police Chief Glavich's statement to
the Forest City chief of police was made voluntarily and not
as a result of any request. (Id. ¶111).
February 11, 2016, the plaintiffs initiated this civil rights
action. In Count I, the plaintiffs alleged that the
defendants violated Pennsylvania's Whistleblower Law, 43
Pa. Stat. Ann. §1421 et seq. by retaliating
against them after they spoke out against Police Chief
Glavich. In Count II, the plaintiffs alleged that the
defendants' retaliatory actions violated the First
Amendment. This claim was brought under Title 42, Section
1983 of the United States Code. In Count III, the plaintiffs
alleged that Police Chief Glavich's statements to others
that the plaintiffs violated the chain of command was
March 16, 2016, the defendants filed the current motion to
dismiss based on Federal Rule of Civil Procedure 12(b)(6) and
the plaintiffs' purported failure to state any claims.
(Doc. 8). Attached to their motion as an exhibit was
a letter from the plaintiffs' attorney to the solicitor
of the Borough. (Doc. 8, Ex. B). This letter
detailed the “requests” the plaintiffs made to
the Borough before they would agree to return to the police
department. This letter was referenced in the plaintiffs'
complaint but was not attached. (See Doc.
1, at ¶54). The defendants request that the
court consider the letter in deciding the motion. The motion
has been fully briefed and is now ripe for review.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6)
12(b)(6) provides for the dismissal of a complaint, in whole
or in part, if the plaintiff fails to state a claim upon
which relief can be granted. In reviewing such a motion, the
court must “accept all factual allegations as true,
construe the [c]omplaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable
reading of the [c]omplaint, the plaintiff may be entitled to
relief.” Fleisher v. Standard Ins. Co., 679
F.3d 116, 120 (3d Cir. 2012) (internal quotation marks and
citation omitted). It is the moving party that bears the
burden of showing that no claim has been stated. Hedges
v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
is appropriate only if, accepting all of the facts alleged in
the complaint as true, the plaintiff has failed to plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007). This
“plausibility” determination is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). Ultimately, the plaintiff must be able to
“provide the grounds of his entitlement to relief,
” requiring more than bold-faced labels and
conclusions. Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir. 2008) (brackets and internal quotation
marks omitted) (quoting Twombly, 550 U.S. at 555).
“[A] formulaic recitation of the elements of a cause of
action will not do.” Id.
Third Circuit Court of Appeal has announced a three part
inquiry to apply the pleading principles announced in
Iqbal and Twombly.
First, the court must take note of the elements a plaintiff
must plead to state a claim. Second, the court should
identify allegations that, because they are no more than
conclusions, are not entitled to the assumption of truth.
Finally, where there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209,
212 (3d Cir. 2013). Lastly, the court should grant leave to
amend a complaint before dismissing it as merely deficient.
See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.
2007); Grayson v. Mayview State Hosp., 293 F.3d 103,
108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113,
116-17 (3d Cir. 2000). "Dismissal without leave to amend
is justified only on the grounds of bad faith, undue delay,
prejudice, or futility." Alston v. Parker, 363
F.3d 229, 236 (3d Cir. 2004).
The Defendants' Attached Exhibit
initial matter, the court must determine if the exhibit
attached to the defendants' motion to dismiss should be
taken into consideration. The parties spent considerable time
briefing this issue, relative to other arguments. The court
will not consider the letter as it is improper and
unnecessary to the court's finding under Rule 12(b)(6).
considering a motion to dismiss, the court generally relies
on the complaint, attached exhibits, and matters of public
record. See Sands v. McCormick, 502 F.3d 263 (3d
Cir. 2007). The court may, however, consider
"undisputedly authentic document[s] that a defendant
attaches as an exhibit to a motion to dismiss if the
plaintiff's claims are based on the [attached]
documents." Pension Benefit Guar. Corp. v. White
Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
Moreover, "documents whose contents are alleged in the
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered." Pryor v. Nat'l Collegiate
Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002)
(quoting 62 Fed. Proc., L. Ed., §62:508). The court may
not rely on other parts of the record in determining a motion
to dismiss. See Jordan v. Fox, Rothschild, O'Brien
& Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
defendant attaches a document to a motion to dismiss the
court must decide if it may properly consider the document in
a Rule 12(b)(6) motion or if it converts the motion into a
motion for summary judgment under Federal Rule of Civil
Procedure 56. See Miller v. Clinton County, 544
F.3d 542, 550 (3d Cir. 2008). In Miller, the Third
Circuit determined that a letter attached to the
defendant's motion to dismiss should have been considered
in analyzing the sufficiency of the plaintiff's First
Amendment retaliation claim. Id. The letter formed
the basis of the speech that the plaintiff sought protection
for, thus the plaintiff's claims “were undisputably
based on her . . . letter.” Id.
letter attached to the defendants motion does not form the
basis of the plaintiffs' claims. The plaintiffs seek (1)
First Amendment and state law protection for oral statements
made to Mayor Millard and the Borough's councilmembers
regarding Police Chief Glavich's performance and (2)
protection against alleged defamatory statements made by
Police Chief Glavich to others about the plaintiffs. The
attached letter lists the “requests” made by the
plaintiffs after their suspension but before they would
return to the police department. (See Doc.
1, at ¶54). Unlike the document in
Miller, the requests detailed in the letter do not
form the basis of the plaintiffs' defamation or
retaliation claims and may not be considered in a Rule
12(b)(6) motion to dismiss.
letter is also unnecessary to the court's analysis. The
letter may speak to the underlying motives for the
defendants' actions in ultimately terminating the
plaintiffs. Thus, the letter is evidence supporting a likely
defense to this retaliation action-indicating a possible lack
of retaliatory motive. The letter does not, however, speak to
the issue of whether the plaintiffs have stated a claim in
the first instance. The defendants seem to recognize as much
because, although they devote considerable time briefing this
issue, the defendants' legal arguments for dismissal do
not actually reference or make use of the letter. Therefore,
not only would it be improper under Rule 12(b)(6)'s
standard of review to consider the attached letter, it is
unnecessary to do so in light of the defendants'
substantive arguments before the court.
The Plaintiffs' First Amendment Retaliation Claim-Count
Count II of the complaint the plaintiffs allege that the
Borough and Police Chief Glavich retaliated against them in
violation of the First Amendment for speaking to Mayor
Millard and the Borough councilmembers about Police Chief
Glavich's performance as chief of police. Specifically,
the plaintiffs allege that the defendants actions in
suspending them, removing their rank, removing their ability
to work together, and terminating them constituted
retaliation for their protected speech. The defendants argue
that the statements made by the plaintiffs were related to
their official duties, were not made as private citizens, and
are, therefore, not protected. In addition, the defendants
argue that the complaint has not established causation
between the defendants' acts and the plaintiffs'
speech. Lastly, the defendants argue that Police Chief
Glavich is entitled to qualified immunity. The court agrees,
in part. Particularly, the plaintiffs' allegation that
Police Chief Glavich purchased less expensive equipment does
not state a valid First Amendment retaliation claim. The
court also agrees that Police Chief Glavich is entitled to
qualified immunity. The defendants' motion is granted in
this respect. The defendants' motion is denied with
respect to the plaintiffs remaining allegations against the
Supreme Court has long established that a citizen's
ability to participate in free debate on matters of public
importance is “the core value of the Free Speech Clause
of the First Amendment.” Pickering v. Bd. of
Educ., 391 U.S. 563, 573 (1968); see also Connick v.
Myers, 461 U.S. 138, 145 (1983); NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 913 (1982). While a citizen
who enters government service must forfeit the scope of some
of his freedoms, he is “nonetheless a citizen”
who deserves protection from restriction of liberties he
enjoys in his capacity as a private citizen. Garcetti v.
Ceballos, 547 U.S. 410, 419 (2006). “[A] public
employee has a constitutional right to speak on matters of
public concern without fear of retaliation.”
Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir.
2001) (citing Rankin v. McPherson, 483 U.S. 378,
383-84 (1987)). Thus, “[s]o long as employees are
speaking as citizens about matters of public concern, they
must face only those speech restrictions that are necessary
for their employers to operate efficiently and
effectively.” Garcetti, 547 U.S. at 419.
order to establish a First Amendment retaliation claim in
this circuit, a public employee must show (1) that his or her
speech is protected by the First Amendment and (2) that the
speech was a substantial or motivating factor of the
employer's retaliatory action(s). Flora v. County of
Luzerne, 776 F.3d 169, 174 (3d Cir. 2015) (citing
Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)).
“The first factor is a question of law; the second
factor is a question of fact.” Gorum, 561 F.3d
at 184 (quoting Hill v. Borough of Kutztown, 455
F.3d 225, 241 (3d Cir. 2006)). If these two elements are
established, the burden shifts to the employer to show that
it would have taken the same action regardless of the speech.
Flora, 776 F.3d at 174; id. The court finds
that the plaintiffs' have sufficiently pled the first two
required elements in their First Amendment retaliation claim
as it relates to some, but not all, of the plaintiffs'
speech against Police Chief Glavich.
The Protected Speech Requirement
public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.”
Garcetti, 547 U.S. at 421. A public employee's
speech is only protected when “(1) in making it, the
employee spoke as a citizen, (2) the statement involved a
matter of public concern, and (3) the government employer did
not have ‘an adequate justification for treating the
employee differently from any other member of the general
public' as a result of the statement he [or she]
made.” Flora, 776 F.3d at 175 (quoting
Garcetti, 547 U.S. at 418). The defendants only
challenge the first prong of this three-part inquiry, but the
court will address each in turn.
a public employee is speaking as a citizen turns upon the
question of “whether the speech at issue is itself
ordinarily within the scope of an employee's
duties.” Lane v. Franks, 134 S.Ct. 2369, 2379
(2014). Importantly, the Supreme Court and the Third Circuit
Court of Appeals have clarified that the test should not be
whether the speech “concerns” or was
“related to” those duties. Id. at 2379;
Flora, 776 F.3d at 178-79. The inquiry is a mixed
question of law and fact; “the scope and content of
[the public employees] . . . job responsibilities is a
question of fact, but the ultimate constitutional
significance of those facts is a question of law.”
Flora, 776 F.3d at 175.
is no “comprehensive framework” for defining the
scope of an employee's duties. Garcetti, 547
U.S. at 424.
The proper inquiry is a practical one. Formal job
descriptions often bear little resemblance to the duties an
employee actually is expected to perform, and the listing of
a given task in an employee's written job description is
neither necessary nor sufficient to demonstrate that
conducting the task is within the scope of the employee's
professional duties for First Amendment purposes.
Id. at 424-25. In Lane v. Franks, the
Supreme Court found that grand jury testimony given by a
supervisor about a subordinate employee who was indicted for
mail fraud and theft of receiving federal funds was citizen
speech. 134 S.Ct. at 2380. The employee's testimony
included statements that the subordinate employee performed
“virtually no services, ” “generated
virtually no work product, ” and “rarely even
appeared for work.” Id. at 2375. The Supreme
Court determined that this testimony was protected even
though the information underlying the testimony was gathered
due to the speaker's role as supervisor. Id. at
2375, 2380. In their reasoning, the Supreme Court focused on
the manner of the speech as sworn testimony and found that
such testimony fell outside the ordinary responsibilities of
the supervisor. Id. at 2379. The Supreme Court also
“recognized that ...