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Cromyak v. Conewago Pottsviflle

United States District Court, M.D. Pennsylvania

October 25, 2017

JON ANN CROMYAK, Plaintiff
v.
CONEWAGO POTTSVILLE, and FIRETREE, LTD, and CHARLES FRITZ, Defendants

          MEMORANDUM

          JAMES M. MUNLEY JUDGE.

         Before the court is a motion to dismiss filed by Defendant Conewago Pottsville, Defendant Firetree, LTD, and Defendant Charles Fritz. Defendants' motion has been fully briefed and is ripe for disposition.

         Background

         Plaintiff filed the instant complaint on June 20, 2017. (Doc. 1, Compl.). Plaintiff avers in her complaint that on December 23, 2013, she began working for Defendant Conewago Pottsville as a program monitor. (Id. ¶ 6). Plaintiff had various job responsibilities including taking care of clients, teaching life skills, transporting clients, providing medications and treatment, surveillance of clients, providing security measures, and escorting clients to meetings. (Id. ¶ 8). Throughout her employment, plaintiff maintained a discipline-free record at Conewago Pottsville and was never written up for misconduct of any sort. (Id. ¶ 17).

         Plaintiff alleges that at some point during her employment, she began observing a fellow employee by the name of Nick Nastasee “taking numerous long breaks, not doing his job, taking numerous smoke breaks, and sleeping while on the job.” (Id. ¶ 8). Plaintiff brought Nastasee's behavior as well as complaints of alleged harassment by Nastasee to the attention of her supervisor, Shanda Potter. (Id. ¶ 9). When no action was taken against Nastasee by Potter, plaintiff began trying to contact Defendant Charles Fritz, the Facility Director. (Id. ¶ 12). After numerous attempts, plaintiff finally spoke to Defendant Fritz on June 18, 2015 about Nastasee's behavior. (Id.) Defendant Fritz stated to the plaintiff that “he did not want to hear about it and he did not need people tattling on other employees.” (Id. ¶ 13). Again, no action was taken against Nastasee. (Id.)

         The following day, on June 19, 2015, plaintiff received a text message that she was terminated from her employment with Conewago Pottsville and Firetree. (Id. ¶ 14). Plaintiff retained new employment in August of 2015 with the Department of Homeland Security, but was terminated after her security and background check was processed. (Id. ¶ 16). She alleges that Defendant Conewago Pottsville falsely informed the Department of Homeland Security that Plaintiff was terminated from her employment with Conewago Pottsville due to “allegations of misconduct in employment, general behavior and conduct violations, and unprofessional behaviors.” (Id.)

         Based upon these facts, plaintiff filed the instant complaint. The causes of action she asserts are: Count I -- violation of the Pennsylvania Whistleblower Law, 43 P.S. § 142 and violation of the Whistleblower Protection Act of 1989, 5 U.S.C.S. § 2302(b)(8); Count II -- wrongful discharge; and Count III -- breach of employment contract. Under the title “Count IV, ” plaintiff alleges a respondeat superior claim.

         Defendants have filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a legally valid claim. (Doc. 5). Plaintiff filed a brief in opposition to this motion (Doc. 8) in which she withdraws all of the abovementioned claims with the exception of wrongful discharge, bringing this case to its present posture.

         Jurisdiction

         Count I of plaintiff's complaint asserts a cause of action for a violation of the Whistleblower Protection Act of 1989, 5 U.S.C.S. § 2302(b)(8). Because this cause of action falls under the United States Constitution, plaintiff invokes this court's federal question jurisdiction. See 28 U.S.C. § 1331. Federal question jurisdiction provides that “the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Id.

         Because we have original jurisdiction over plaintiff's Whistleblower Protection Act of 1989 claim, we have supplemental jurisdiction over plaintiff's state law claims. The law provides that, “in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).

         Legal Standard

         This case is before the court pursuant to defendants' motion to dismiss for failure to state a claim upon which relief can be granted filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. When a 12(b)(6) motion is filed, the sufficiency of the allegations in the complaint is tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face, ” or put another way, “nudged [his or her] claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Third Circuit interprets Twombly to require the plaintiff to describe “enough facts to raise a reasonable expectation that discovery will reveal evidence of” each necessary element of the claims alleged in the complaint. Phillips ...


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