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Javitz v. Luzerne County

United States District Court, M.D. Pennsylvania

March 31, 2017

DONNA DAVIS JAVITZ, Plaintiff,
v.
LUZERNE COUNTY, et al., Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge

         I. Introduction and Procedural History

         Presently before the Court is a civil rights action brought by Plaintiff, Donna Davis Javitz, against Luzerne County, Robert Lawton, and David Parsnik (collectively "Defendants"). Plaintiff originally filed her Complaint, (Doc. 1), in this matter on December 21, 2015. The Complaint brings forward two Section 1983 actions under the Fourteenth Amendment for violation of "straight due process" (Count I), and "stigma plus" (Count I), and a Section 1983 action under the First Amendment for retaliation (Count II), along with several state law actions for breach of contract (Count III), violation of the Pennsylvania Whistlebiower Law (Count IV), and wrongful termination in violation of public policy (Count IV).

         Defendants filed a motion to dismiss on January 11, 2016. (Doc. 10). After the parties partially briefed the motion, Plaintiff filed an Amended Complaint on February 19, 2016. (Doc. 18). Defendants subsequently consented to the filing of the Amended Complaint, (Doc. 19), which rendered their original motion moot, (Doc. 21), and filed the present Motion to Dismiss Plaintiffs Amended Complaint and to Strike Impertinent and Scandalous Matter. (Doc. 23). The Motion is fully briefed and ripe for decision. For the reasons that follow, the Court will grant in part and deny in part Defendants' Motion to Dismiss and grant in part and deny in part Defendants' Motion to Strike.

         II. Factual Allegations

         Plaintiffs Complaint alleges the following facts:

         Plaintiff, Donna Davis Javitz, was hired by Luzerne County as the Director of Human Resources on August 4, 2014. (Doc. 18 at ¶¶ 33, 39). In that capacity, Plaintiff often conducted investigatory hearings and Loudermill hearings. (Id. at ¶ 48). In March of 2015, after one such investigatory hearing, Plaintiff was informed that the American Federation of State, County and Municipal Employees-whose representative was present at the hearing along with union members employed by Luzerne County-was filing an unfair labor practice charge against Luzerne County. (Id. at ¶¶ 54, 55, 58). The unfair labor practice charge contained "verbatim notes, " in transcript form, of the conversations that took place at the hearing. [Id. at ¶ 55). Plaintiff believed that the only way these notes could have come about is if she was recorded during the meeting by an employee of Luzerne County. (Id. at ¶¶ 56-58). Plaintiff never consented to being recorded. (Id. at ¶ 56).

         Plaintiff believed that the recording was a violation of Pennsylvania's Wiretap Law, and reported the illegal activity to her supervisor, the Division Head for Administrative Services, Defendant David Parsnik, (Id. at ¶¶ 4, 33, 59). Plaintiff also reported the illegal activity to the County Solicitor, David Pedri, and the District Attorney Stefanie Salavantis. (Id. at ¶¶ 19, 59, 61). On March 20, 2015, Plaintiff set up a meeting with District Attorney Salavantis to discuss the recording and invited Defendant Parsnik to attend. (Id. at ¶ 61). At the meeting, the District Attorney informed Plaintiff that, due to a conflict, she would refer the investigation to the Attorney General. (Id. at ¶ 63).

         After making the report to the District Attorney, Plaintiff began noticing that she was being treated differently by her supervisor, Defendant Parsnik. Specifically, she alleges: Defendant Parsnik stopped including her in work discussions and instead went directly to her subordinates; he became extremely disrespectful to her in front of her staff; she was removed from talks with human resources consultants and vendors; her key to the filing room with the personnel files was taken away; she was no longer allowed to lead contract negotiations; she was, for the first time, told to do the filing for the office; she was no longer included in meetings; and she was no longer allowed input on the human resources budget. (Doc. 18 at¶¶68, 72-74, 77-80).

         On June 8, 2015, Plaintiff was meeting with District Attorney Salavantis on an unrelated matter and asked what became of the investigation. (Id. at ¶ 75). District Attorney Salavantis told Plaintiff that after the meeting, County Manager Robert Lawton came to her office and told her not to investigate the illegal recording. (Id. at ¶ 76). On several occasions, Plaintiff asked Defendant Parsnik what became of the investigation, but never received an answer. (Id. at ¶ 83). On September 23, 2015, Plaintiff sent both Defendant Parsnik and Solicitor Pedri an email in which she inquired about the status of the investigation, (/c/. at ¶ 84). She never received a response. (Id.).

         On October 19, 2015, Defendant Parsnik scheduled a meeting for the stated purpose of discussing a Loudermill hearing with Plaintiff. [Id. at ¶ 87). When she arrived at the meeting with Solicitor Pedri on October 26, 2015, Defendant Parsnik told her to resign. (Id.). Plaintiff refused to resign and told Defendant Parsnik that she was entitled to a Loudermill hearing. (Id. at ¶ 88). Despite asking, Plaintiff was never given a reason why she should resign. (Id. at ¶¶ 89-91). Defendant Parsnik then terminated Plaintiffs employment. (Id. at ¶ 93). Two days after her termination, a newspaper article appeared in the Times Leader that announced that Luzerne County terminated Plaintiffs employment. (Id. at ¶ 94).

         III. Standard of Review

         A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbai, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).

         "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and fqbaf require [a court] to take the following three steps to determine the sufficiency of a complaint: 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 Sen. Dist, 706 F.3d 209, 212 (3d Cir. 2013).

         "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

         IV. Analysis

         Defendants have put forth a variety of arguments as to why they contend this Court should dismiss Plaintiffs Amended Complaint. Additionally, Defendants ask this Court to strike certain material in Plaintiffs Amended Complaint that they claim is impertinent and scandalous. The Court will address each argument in turn.

         A. Count I - Procedural Due Process

         Defendants first seek dismissal of Plaintiffs procedural due process claim. (Doc, 28 at 6). In short, Defendants argue that Plaintiff was an at-will employee and thus had no legitimate claim of entitlement to continued employment with the County. (Id. at 7-9).

         The Fourteenth Amendment provides, in pertinent part, that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV § 1. "The first step in analyzing a due process claim is to determine whether the 'asserted individual interest... [is] encompassed within the [F]ourteenth [A]mendment's protection of life, liberty, or property.'" Elmore v. deary, 399 F.3d 279, 282 (3d Cir. 2005) (alterations original) (quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)). "To have a property interest in a job... a person must have more than a unilateral expectation of continued employment; rather, she must have a legitimate entitlement to such continued employment." Id. "Whether a person has a legitimate entitlement to-and hence a property interest in- his government job is a question answered by state law, " Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006).

         In Pennsylvania, in the absence of a contract or legislation to the contrary, an employee is employed at-will and can be terminated without cause. See Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333, 335 (Pa. 1995); Elmore, 399 F.3d at 283. "In order to rebut the presumption of at-will employment, a party must establish one of the following: (1) an agreement for a definite duration; (2) an agreement specifying that the employee will be discharged for just cause only; (3) sufficient additional consideration; or (4) an applicable recognized public policy exception." Luteran v. Loral Fairchild Corp., 688 A.2d 211, 214 (Pa. Super. Ct. 1997). In Luzerne County, Article VII of the Home Rule Charter states, in pertinent part:

Section 7.01-Personnel Code. There shall be a Personnel Code that shall establish and maintain the means to recruit, select, develop, and maintain a qualified, ethical, efficient, effective, productive, and responsive work force in order to best meet the needs of Luzerne County.
Section 7.03-Scope of Personnel CodeConsistent with all applicable contracts and laws, the Personnel Code shall provide, but not be limited to, policies, procedures, rules, and regulations governing employee . . . discipline, force reduction, and discharge Section 7.04-Career Service, Exempt Service, and State Civil Service. Each elective County official and employee of Luzerne County shall be a member of the career service, exempt service, or part of the state civil service system.
A. The Personnel Code shall define the County positions to be included in the career service
B. The exempt service shall consist of all elective County officials and certain policy-making and other positions filled outside the career service provisions as defined in the Personnel Code. Except for elective officials and any other serving fixed terms, those appointed to these positions ...

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