United States District Court, E.D. Pennsylvania
Bruce Liban worked for the City of Philadelphia Water
Department (“PWD” or the
“Department”) for approximately one month. After
being denied further employment, Plaintiff, proceeding pro
se, initiated this action against Debra McCarty, Commissioner
of PWD, and Anthony Erace, an investigator at the
Philadelphia Office of the Inspector General. (Doc. No. 1.)
Plaintiff raises several claims against Defendants. First,
Plaintiff asserts that his termination violated his right to
procedural due process under the Fourteenth Amendment of the
United States Constitution. Second, Plaintiff alleges an
unlawful termination claim in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”). Last,
Plaintiff alleges that Pennsylvania's Whistleblower Law
should have protected him from being discharged. Defendants
filed a Motion to Dismiss the Complaint under Federal Rule of
Civil Procedure 12(b)(6), which is now before the Court for
disposition. (Doc. No. 6.)
September 19, 2016 to October 20, 2016, Plaintiff worked at
PWD as a Graduate Electrical Engineer. (Doc. No. 1
¶¶ 1, 66-67.) Plaintiff was initially placed on
Philadelphia's mandatory six-month probationary period
for certain civil service employees. Plaintiff was discharged
approximately one month after starting his employment at PWD.
The events that led to his termination follow.
began having problems almost immediately after starting his
new position. His first assignment was to work on an
electrical improvement project at the Torresdale Raw Water
Pumping Station in Philadelphia. (Doc. No. 1 ¶ 4.)
During his first week, he raised a complaint about one of the
contractors with whom he was working. (Doc. No. 2 at 3-4.) It
stated as follows:
It has come to my attention from Ed Zalewski that in order to
save money a contractor is trying to use a cheaper 500
horsepower motor on the Torresdale Raw Water Pumping Station
Project without doing the required balancing. This may result
in an unstable condition when the shaft is spinning that
results in the rotating assembly breaking apart. When the
rotating assembly breaks apart it can fill the room with
flying steel killing many people. This letter is being
written to prevent this possibility and prevent another
tragedy similar to what happened on June 5, 2013 at 22nd and
Market Streets. This event (if it were to happen) could be
much worse. As a registered professional engineer I know that
safety comes first. I know that the pump base costs 1.1 to 2
million dollars. Clearly the pump is destroyed if the
rotating assembly breaks apart. I obviously don't want
1.1 to 2 million dollars [sic] worth of damage. The problem
is that I cannot tolerate the loss of life associated with
this failure (it can be as bad as a building with bodies in
This problem can be solved as a purchasing problem because of
the way the contract is written. To do this the city will
need to enforce the contract. If the contractor does not
agree, the city has to figure out how to take this part of
the contract away from the contractor and give it to the
proper entity specified in the contract. This is one way to
solve the problem. There may be other ways, but I don't
know enough about how the city does business to even suggest
the proper method.
Addendum No. 1, Bid Nos.: 2046, opening Dated: December 17,
2015 says, “Motors are to be provided by Patterson Pump
as noted. Sherwood & Logan is local Patterson Pump
representative. Contact: Ed Zalewski - (215)702-1402.”
This is under number 3.
Note 3 under 500 HP Pump Motors on P.W.D. Work # 64060 says,
“The existing pumps were manufactured by Patterson Pump
Company and shall remain. Patterson Pump Company: 2129
Ayersville Road, Tocca, GA 30577; Tel 706-886-2101.”
Note 4 says, “Contractor shall provide turnkey
installation, testing and commissioning of new 500 HP motors
using Patterson Pump Company to provide design, motors,
shafts, mounting hardware, site installation support and
testing for a complete installation. Contractor shall
contract with Sherwood Logan & Associates (SLA), local
manufacturer's representative for Patterson Pump Company.
Contact: Ed Zalewski, Sherwood Logan & Associates; Tel:
Ed tells me that he has not seen the purchase order yet.
Since only his company, by contract, may supply the pumps, he
should eventually see the purchase order. Motors from anyone
else should be rejected by inspection when they arrive.
Patterson Pump Company can only balance the motors they
supply for liability reasons. Unbalanced motors may not be
turned on for safety reasons. Please take all necessary
actions to prevent the possible loss of life due to improper
(Id.) Plaintiff caused alarm among PWD staff by
sending e-mails and printed copies of his complaint to
several employees in various units of PWD. (Id.)
September 28, 2016, Plaintiff was asked to attend a meeting
with his supervisors to discuss his complaint, as well as
Plaintiff's irrational behavior, which was brought to the
supervisors' attention. (Doc. No. 1 ¶¶ 32-33,
36-37; Doc. No. 6 at 3-4.) At this meeting, Plaintiff was
advised that there were “several layers of [safety]
protocol and procedures already established” that he
did not follow. (Doc. No. 2 at 7.) Although his safety
concerns were appreciated, his complaints dealt with the
design and redesign of equipment, which was monitored by the
Operations Unit of PWD, not the Construction Unit to which he
was assigned. (Id.) Plaintiff's supervisors
suggested that he should focus on learning his job
responsibilities as a Graduate Electrical Engineer in the
Construction Unit of PWD, and should avoid interfering with
the job responsibilities of other PWD Units. (Id.)
Plaintiff was given a warning that any other abrupt actions
would lead to termination of his employment. (Id.)
Despite being given a warning, Plaintiff continued to have
problems at work.
October 18, 2016, Plaintiff was asked by his supervisor to
take minutes at a meeting concerning an electrical
improvement project. (Doc. No. 1 ¶¶ 54-59.)
Plaintiff took the meeting minutes, but also inappropriately
included some of his personal beliefs in the minutes
(Id. ¶ 58), “again insulting and
questioning the competency of a colleague.” (Doc. No. 6
at 4.) For example, he wrote that discussions at the meeting
made “it clear that there is a lack of understanding of
what is going on” as to one of his coworkers. (Doc. No.
2-1 at 29.)
following day, Plaintiff was informed that his probationary
period of employment was terminated. (Doc. No. 1 ¶ 61.)
Later that evening, Plaintiff sent an e-mail to McCarty, who
serves as the Commissioner of PWD, entitled
“termination, murder, retaliation . . .
.” On October 20, 2016, Plaintiff received a
formal termination letter ending his brief employment at PWD.
(Doc. No. 1 ¶ 66.)
February 28, 2017, Plaintiff initiated this action against
Defendants. (Doc. No. 1.) First, Plaintiff alleges that his
termination violated his due process rights under the
Fourteenth Amendment of the United States Constitution.
Second, he raises a Title VII claim in connection with his
termination. Third, Plaintiff asserts that Pennsylvania's
Whistleblower Law should have protected him from being fired.
On April 28, 2017, Defendants filed a Motion to Dismiss the
Complaint. (Doc. No. 6.) Plaintiff filed a Response in
Opposition to the Motion. (Doc. No. 8.) On July 13, 2017, a
hearing was held on the Motion. (Doc. No. 13.) The Motion is
now ripe for a decision.
STANDARD OF REVIEW
motion to dismiss standard under Federal Rule of Civil
Procedure 12(b)(6) is set forth in Ashcroft v.
Iqbal, 556 U.S. 662 (2009). After Iqbal it is
clear that “threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do
not suffice” to defeat a Rule 12(b)(6) motion to
dismiss. Id. at 663; see also Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007). “To survive a motion
to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ethypharm S.A. France v.
Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013)
(citing Sheridan v. NGK Metals Corp., 609
F.3d 239, 262 n.27 (3d Cir. 2010)). “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.”
Id. Applying the principles of Iqbal and
Twombly, the Third Circuit in Santiago v.
Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth
a three-part analysis that a district court in this Circuit
must conduct in evaluating whether allegations in a complaint
survive a 12(b)(6) motion to dismiss:
First, the court must “tak[e] 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.”
Id. at 130 (quoting Iqbal, 556 U.S. at 675,
679). “This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim,
(2) reviewing the complaint to strike conclusory allegations,
and then (3) looking at the well-pleaded components of the
complaint and evaluating whether all of the elements
identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563
(3d Cir. 2011).
complaint must do more than allege a plaintiff's
entitlement to relief, it must “show” such an
entitlement with its facts. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210-11 (citing Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir.
2008)). “[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
‘shown'-‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679. The
“plausibility” determination is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
determining a motion to dismiss, the court must “accept
all factual allegations in the complaint as true and view
them in the light most favorable to the plaintiff.”
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260
(3d Cir. 2006). Where, as here, the complaint is filed pro
se, the “complaint, ‘however inartfully
pleaded' must be held to ‘less stringent standards
than formal pleadings drafted by lawyers.'”
Fatone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015)
(quoting Haines v. Kerner, 404 U.S. 519, 520-21
(1972)). It should be dismissed only if it appears
“beyond doubt that the plaintiff can prove no set of
facts in support of [his] claim that would entitle [him] to
relief.” Olaniyi v. Alexa Cab Co., 239 F.
App'x 698, 699 (3d Cir. 2007) (citing McDowell v.
Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996)).
Complaint raises several claims against Defendants. First, it
alleges a claim pursuant to 42 U.S.C. § 1983 for an
alleged violation of Plaintiff's procedural due process
right under the Fourteenth Amendment. (Doc. No. 1 at 1-2, 5.)
Second, the Complaint asserts an unlawful termination claim
in violation of Title VII. Third, the Complaint raises a
claim of retaliatory termination in violation of
Pennsylvania's Whistleblower Law. Pursuant to Federal
Rule of Civil Procedure 12(b)(6), Defendants seek to dismiss
the Complaint in its entirety. (Doc. No. 6.) The Court will
address each of Plaintiff's claims in turn.
Plaintiff Has Not Plausibly Alleged a § 1983 Claim
alleges that his procedural due process right was violated
when he was terminated from PWD. A plaintiff raising a claim
under § 1983 must allege a violation of a right secured
by the Constitution or the laws of the United States, and
must show that the alleged deprivation was committed by a
person acting under color of state law. West v.
Adkins, 487 U.S. 42, 48 (1988). Defendants argue that no
underlying constitutional violation is alleged in the
Complaint. Additionally, Defendants assert that Plaintiff
failed to allege that they had any personal involvement in
the firing decision.
Plaintiff Has Failed to State an Underlying ...