United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
Introduction and Procedural History
before the Court is a wrongful termination action brought by
Plaintiff, Donna Davis Javitz, against Defendants Luzerne
County, Robert Lawton, and David Parsnik. Plaintiff
originally filed her Complaint in this matter on December 21,
2015. (Doc. 1). After this Court resolved Defendants'
Motion to Dismiss, (Doc. 23), and Plaintiff amended her
complaint, the following counts remain outstanding: a 42
U.S.C. § 1983 claim against all Defendants for violation
of Plaintiffs Fourteenth Amendment due process rights (Count
I), a section 1983 claim against all Defendants for
retaliation in violation of Plaintiffs First Amendment rights
(Count II), a state law claim against Defendant Luzerne
County for breach of legislative enactments (Count III), and
a state law claim against all Defendants for violation of the
Pennsylvania Whistleblower Law, 43 P.S. § 1423(a),
(Count IV). (Doc. 58).
before the Court is Plaintiffs Motion for Partial Summary
Judgement, (Doc. 62), and Defendants' Motion for Summary
Judgment, (Doc. 66). For the reasons that follow, the Court
will deny Plaintiffs Motion, grant Defendants' Motion
with respect to Plaintiffs federal claims, and decline to
exercise supplemental jurisdiction over the remaining state
Statement of Undisputed Facts
following facts are undisputed unless specifically noted
On August 4, 2014, Plaintiff began her employment for the
County of Luzerne as the Director of Human Resources. (Doc.
67 at ¶¶ 22-23; Doc. 92 at ¶¶ 22-23; Doc.
69-4). Her supervisor was Defendant David Parsnik, Director
of Administrative Services. (Dep. of Donna Davis Javitz, Doc.
69-6 at 84; Doc. 69-4). The County Manager at the time was
Defendant Robert Lawton. (Dep. of Donna Davis Javitz, Doc.
69-6 at 33; Doc. 67 at ¶ 34; Doc. 92 at ¶ 34).
Director of Human Resources, Plaintiffs job duties included
negotiating contracts, dealing with employee complaints,
responding to grievances, conducting investigations, and
attending meetings. (Doc. 67 at ¶ 27; Doc. 92 at ¶
27). Plaintiff was also involved with union related matters
and participated in two investigatory meetings with the
American Federation of State, County, and Municipal Employees
("AFSCME"). (Dep. of Donna Davis Javitz, Doc. 69-6
at 39, 65-66). In March of 2015, after the investigatory
meetings with AFSCME took place, the union filed an unfair
labor practice charge against the County. (Doc. 67 at ¶
30; Doc. 92 at ¶ 30). As part of the unfair labor
practice charge, AFSCME had included a document that appeared
to be a transcript of the meetings. (Dep. of Donna Davis
Javitz, Doc. 69-6 at 65-66). Upon reading the unfair labor
practice charge, Plaintiff was concerned that Paula Schnelly,
a County employee who was at the meetings as an AFSCME union
representative, created the transcript by recording the
meeting without the consent of those present. (Dep. of Donna
Davis Javitz, Doc. 69-6 at 55, 59, 66, 75; Doc. 69-8 at 14).
brought her concern to the attention of Defendant Parsnik,
and Defendant Parsnik agreed that the transcript may have
been the product of an illegal recording. (Doc. 67 at ¶
31; Doc. 92 at ¶ 31). Plaintiff and Defendant Parsnik
then met with the District Attorney, Stefanie Salavantis, to
discuss the matter. (Doc. 67 at ¶ 32; Doc. 92 at ¶
32). The District Attorney indicated that she would refer the
matter to the Office of Attorney General due to a conflict of
interests. (Doc. 67 at ¶ 33; Doc. 92 at ¶ 33).
According to Plaintiff, Defendant Lawton went to the District
Attorney after this point and instructed her not to
investigate the matter. (Dep. of Donna Davis Javitz, Doc.
69-6 at 78). Defendants deny that this occurred. (Aff. of
Stefanie Salavantis, Doc. 69-29).
the next few months, Plaintiff asked Defendant Parsnik and
the County Solicitor, David Pedri, about the status of the
investigation on several occasions. (Doc. 67 at ¶ 35;
Doc. 92 at ¶ 35). She also asked District Attorney
Salavantis about the investigation at least once. (Dep. of
Donna Davis Javitz, Doc. 69-6 at 78).
making the report to the District Attorney, things began
happening at work that Plaintiff believed were done in
retaliation for her making the report to the District
Attorney. (Doc. 67 at ¶ 67; Doc. 92 at ¶ 67). For
instance, in May of 2015, the Human Resources office was
relocated from the County courthouse to another building.
(Doc. 67 at ¶ 44; Doc. 92 at ¶ 44). Defendant
Parsnik began going directly to Plaintiffs subordinates with
work instead of going through Plaintiff. (Dep. of Donna Davis
Javitz, Doc. 69-6 at 83-84). Plaintiff was kept from handling
any matters with AFSCME and no longer allowed access to the
Human Resources budget. (Id. at 85-87). Defendant
Parsnik refused to allow her to have a key to the room that
housed the filing cabinets and began to direct her do things
that had not been part of her job before, such as filing.
(Id. at 125-26). Plaintiff also believed that
Defendant Parsnik began to act in a rude manner to her. (Doc.
67 at ¶ 60; Doc. 92 at ¶ 60). Defendants' deny
that some of these occurred and also deny that any of these
actions were taken in retaliation for Plaintiffs report to
the District Attorney. (Doc. 67 at ¶ 44-46, 48-52,
October 26, 2015, Plaintiff was called into a meeting with
Defendant Parsnik and Solicitor Pedri and informed that it
would be Plaintiffs last day of work. (Dep. of Donna Davis
Javitz, Doc. 69-6 at 91-93). Defendant Parsnik offered to let
Plaintiff resign, but Plaintiff refused. (Id.).
Plaintiff asked for a Loudermill hearing but was told she
could not have one. [Id.) Defendant Parsnik then
informed Plaintiff that she had to go. (Id.).
Plaintiff was not given a reason for her termination.
Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, .... [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177,
111 L.Ed.2d 695 (1990). Therefore, the non-moving party may
not oppose summary judgment simply on the basis of the
pleadings, or on conclusory statements that a factual issue
exists. Anderson, 477 U.S. at 248. "A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by citing to particular parts of
materials in the record ... or showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact." Fed.R.Civ.P.
56(c)(1)(A)-(B). In evaluating whether summary judgment
should be granted, "[t]he court need consider only the
cited materials, but it may consider other materials in the
record." Fed.R.Civ.P. 56(c)(3). "Inferences should
be drawn in the light most favorable to the non-moving party,
and where the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true." Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert,
denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party
has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact. When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.
Id. (internal quotations, citations, and alterations
Plaintiff and Defendants have filed Motions for Summary
Judgment with respect to Plaintiffs Fourteenth Amendment due
process claim. Additionally, Defendant has moved for summary
judgment on all Plaintiff's other claims and her claim
for punitive damages.
Court will address Defendants' Motion first.
Defendants' Motion for Summary Judgment
have put forth a variety of arguments as to why they are
entitled to summary judgment on each of Plaintiff's
claims as well as on Plaintiffs claim for punitive damages.
The Court will address each claim separately.
Fourteenth Amendment Claim
first seek summary judgment on Plaintiffs claim that the
manner of her termination violated the due process clause of
the Fourteenth Amendment because she was not afforded a
pre-termination hearing. The 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 [Fourteenth [A]mendment's protection of life,
liberty, or property.'" Elmore v. Cleary,
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). Plaintiff argues that she was not an
at-will employee because, under the terms of the Luzerne
County Home Rule Charter and Personnel Code, she could only
be terminated for "just cause."
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
A. The Personnel Code shall define the County positions to be
included in the career service. The career service shall be
designed to attract, appoint, and promote the best qualified
individuals on the basis of a fair and open competitive
process. The Personnel Code shall set forth the process by
which employees in the career service shall be appointed and
promoted on the basis of merit and fitness as demonstrated by
valid and reliable examinations, other objective evidence of
competence, and/or other relevant factors.
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
others serving fixed terms, those appointed to these