United States District Court, E.D. Pennsylvania
Austin McHugh United States District Judge
case concerns a suit by Plaintiff El Shafiyq Asad Ali against
his former employers, Defendants Pennsylvania House of
Representatives and Representative Joanna McClinton. Ali
maintains that Defendants violated the First Amendment and
Pennsylvania's Whistleblower Law when they fired him for
reporting McClinton's use of state resources to promote
her church. The primary legal issue before me now is whether
Ali's claims are barred by statutory and Eleventh
Amendment immunity. I conclude that his claims against the
House of Representatives and against McClinton in her
official capacity must be dismissed. But because
Pennsylvania's Whistleblower Law waives statutory
immunity, and because Eleventh Amendment immunity does not
bar suits against individual state officers in their personal
capacity, Ali may proceed with his First Amendment and
whistleblower claims against McClinton in her personal
roughly nine months, from September 2015 until June 2016, El
Shafiyq Asad Ali worked as Director of Constituent Services
for Joanna McClinton, a member of the Pennsylvania House of
Representatives. Ali, who describes himself as an
"American-Indian" and a practicing Muslim, claims
that his ethnicity and religious beliefs set him apart from
his African-American, Christian boss and co-workers. For
instance, Ali claims that "McClinton and members of her
staff asked [him] on multiple occasions how he became an
American-Indian, " Compl. ¶ 10, and that his
coworkers (though apparently not McClinton herself)
"repeatedly asked [him] whether he was a practicing
Muslim, " ¶ 11. Ali further maintains that
McClinton invited her staff members to worship with her at
the Open Door Mission True Light Church (Church), where she
served as a minister. Ali never accepted McClinton's
invitation and contends that he was treated less favorably
than staff members who did. ¶ 12.
events giving rise to this case occurred in the spring of
2016, when McClinton asked Ali to organize an event at the
Philadelphia Housing Authority's Bartram Village site.
According to Ali, the purpose of the event was to promote a
"facility" that the Church planned to open nearby.
¶ 14. Ali claims that McClinton told him to "ensure
that only Christian music, and not any 'worldly'
music would be played at the event, " ¶ 15, and
further directed him to work closely with her mother, Rachel,
who was also a minister at the Church, ¶ 13. Ali
maintains that the Church held a similar event at Bartram
Village the year before, which it paid for itself. By
contrast, the event that he was asked to organize was to be
paid for using Housing Authority funds. ¶ 16.
with what he perceived to be state-sponsored religious
advocacy, Ali expressed doubts to McClinton about the
propriety of the Bartram Village event, but was told to
proceed with planning. Ali next raised his concerns in an
e-mail to Eric Fillman, Ethics Counselor for the Pennsylvania
House of Representatives. Fillman replied the following day,
and told Ali that he had spoken to McClinton and concluded
that the Bartram Village event did not present "any
ethical conflicts of interest." ¶ 19.
"Approximately a week later, " McClinton allegedly
told Ali that he "had been doing things without her
approval, " and instructed him "to write daily logs
detailing his work activity." ¶ 20. Roughly two
weeks after that conversation, Ali claims that McClinton
falsely accused him of failing to schedule a meeting with two
of her constituents and then fired him without further
filed suit against McClinton and the Pennsylvania House of
Representatives under 42 U.S.C. § 1983 and
Pennsylvania's Whistleblower Law, 43 Pa. Stat, and Cons.
Stat. Ann. §§ 1421-1428. Before me now is
Defendants' Motion to Dismiss pursuant to Rule 12(b)(6).
For the following reasons, that motion will be granted in
part and denied in part.
motion is governed by the well-established standards of
Fed.R.Civ.P. 12(b)(6), as amplified by Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Claims under Pennsylvania's Whistleblower Law
brings claims under Pennsylvania's Whistleblower Law
against the House of Representatives and against McClinton in
her official and personal capacity. The Whistleblower Law
provides that "[n]o employer may discharge, threaten or
otherwise discriminate or retaliate against an employee ...
because the employee .. . makes a good faith report or is
about to report ... an instance of [(1)] wrongdoing or [(2)]
waste by a public body." § 1423. Employers covered
by the law include "state officer[s], " like
McClinton, as well as the "General Assembly and its
agencies." § 1422. The law empowers a "person
who alleges a violation of this act [to] bring a civil action
... for appropriate injunctive relief or damages, or
both." § 1424. Ali characterizes his e-mail to Eric
Fillman, the House Ethics Counselor, as a good faith report
of both waste and of wrongdoing. He argues that McClinton and
the House of Representatives violated the Whistleblower Law
when they fired him for making this report.
threshold question is whether Defendants enjoy immunity from
Ali's whistleblower suit. In support of immunity, they
point to 1 Pa. Cons. Stat. Ann. § 2310, which provides
Commonwealth, and its officials and employees acting within
the scope of their duties, shall continue to enjoy sovereign
immunity and official immunity and remain immune from suit
except as ...