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Liban v. McCarty

United States District Court, E.D. Pennsylvania

September 8, 2017

BRUCE LIBAN, Plaintiff,
DEBRA MCCARTY, ET AL., Defendants.


          SLOMSKY, J.


         Plaintiff 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.[1] (Doc. No. 6.)


         From 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.[2] Plaintiff was discharged approximately one month after starting his employment at PWD. The events that led to his termination follow.

         Plaintiff 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.[3] 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 it).
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: 215-702-1402.”
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 actions.

(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.)

         On 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.

         On 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.)

         The following day, Plaintiff was informed that his probationary period of employment was terminated.[4] (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 . . . .”[5] On October 20, 2016, Plaintiff received a formal termination letter ending his brief employment at PWD. (Doc. No. 1 ¶ 66.)

         On 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.[6]


         The 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).

         A 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 sense.” Id.

         When 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)).

         IV. ANALYSIS

         The 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.[7]

         A. Plaintiff Has Not Plausibly Alleged a § 1983 Claim Against Defendants

         Plaintiff 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.

         1. Plaintiff Has Failed to State an Underlying ...

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