United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Introduction and Procedural History
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).
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.
Complaint alleges the following facts:
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).
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).
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).
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
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).
Standard of Review
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).
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
Connelly v. Steel Valley Sen. Dist, 706 F.3d 209,
212 (3d Cir. 2013).
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."
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.
Count I - Procedural Due Process
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).
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).
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