United States District Court, M.D. Pennsylvania
Carlson, Magistrate Judge
REPORT AND RECOMMENDATION
C. Carlson United States Magistrate Judge
Statement of Fact and of the Case
case comes before the court for consideration of three
motions to dismiss the amended complaint lodged by the
defendants. (Docs. 27, 28, and 29.) These motions to dismiss,
which challenge the legal sufficiency of Fizz's amended
complaint, invite us to consider the well-pleaded facts set
forth by the plaintiff and determine whether those
well-pleaded facts state a plausible claim for relief.
our task defined in this fashion, we turn to an examination
of the well-pleaded facts set forth in Fizz's amended
complaint. (Doc. 25.) That amended complaint describes a
tawdry tale of misconduct in the Monroe County Coroner's
Office. According to Fizz, she was employed as a deputy
coroner in Monroe County from August 2015 through July 2017.
(Id., ¶13.) At that time Robert Allen was the
elected coroner for Monroe County, and his wife, Kathleen
“Traci” Allen served as either the office manager
or the chief deputy coroner. (Id.,
¶¶15-16.) Fizz alleges that Kathleen Allen had no
training. experience or education which qualified her to
serve as a deputy coroner, but with the acquiescence of her
spouse exercised a substantial, and corrosive, influence over
the operations of the office. (Id.,
fact, the amended complaint recites a catalogue of misdeeds
that Kathleen Allen allegedly engaged in with Robert
Allen's acquiescence. Thus, according to Fizz, Kathleen
Allen created a sexually hostile workplace, recounting
matters of an intimate nature relating to her husband, the
coroner; displaying sexually explicit imagery to staff;
describing extra-marital affairs; and leaving work to engage
in sexual assignations. (Id., ¶20.) It is
further alleged that Kathleen Allen would be inexplicably
absent from work for extended periods of time while
collecting her salary, and that Ms. Allen manipulated payroll
and overtime records to her financial advantage, conduct
which allegedly defrauded the citizens of Monroe County and
constituted violations of state and federal wage laws.
(Id., ¶¶21-24.) In addition, it is alleged
that by acquiescing in this conduct, Robert Allen abandoned
his duties as coroner, allowed Kathleen Allen to usurp those
duties, and defrauded the citizens of Monroe County.
complaint then asserts that Kathleen Allen, with her
husband's acquiescence or willful blindness, indulged in
a series of misdeeds involving property and pharmaceuticals
that came into the possession, custody and control of the
coroner's office. (Id., ¶¶27-33.) This
misconduct included an instance in which it is alleged that
Ms. Allen damaged county property while under the influence
of alcohol, as well as episodes in which she failed to
properly account for property and drugs found on decedents
whose remains came into the custody and control of the
coroner's office. (Id.) The misappropriation and
mishandling of decedents' property and prescription drugs
not only constituted misconduct according to Fizz; this
behavior also allegedly violated state law. (Id.)
Fizz's amended complaint links some of this misuse of
decedents' prescription drugs and personal property to
the allegations that Kathleen Allen maintained a sexually
hostile workplace environment, in that the amended complaint
asserts that Ms. Allen allowed another deputy coroner, who
was her paramour, to have access to these decedents'
drugs even though he had previously been accused of stealing
medication in another public health position. (Id.,
¶32.) According to Fizz, Allen concealed this misconduct
by the other deputy coroner with whom she was having an
affair, undertaking all of these actions with the
“knowledge or willful ignorance” of Robert Allen.
Summer of 2017, Ms. Allen and her paramour had developed a
hostility towards the plaintiff, according to her amended
complaint. Acting upon this hostility, Kathleen Allen leveled
a false accusation of profound misconduct against Fizz,
accusing the plaintiff of having a sexual encounter with a
police officer while on duty as a deputy coroner at a death
scene in April of 2016. (Id., ¶¶39, 46.)
first of these allegedly false accusations was made by
Kathleen Allen and her paramour to the Human Resources office
for Monroe County on June 13, 2017. (Id., ¶39.)
As a result of this false allegation, Fizz was suspended,
(id., ¶40), and Allen commandeered her
paychecks. (Id., ¶41.) Fizz then responded to
the false allegations leveled against her by reporting
Allen's inappropriate and unlawful activities to county
officials on June 17, 2017. (Id.,
¶¶43-44.) Allen, in turn, is then alleged to have
made several disparaging public statements between June 13
and July 26, 2017, repeating her defamatory claim that Fizz
indulged in a sexual encounter while on duty at a death
scene. (Id., ¶46.) Ultimately, Fizz was then
fired by Robert Allen on July 26, 2017. (Id.,
basis of these factual averments Fizz now brings four legal
claims against Robert and Kathleen Allen, as well as Monroe
County, asserting: (1) a due process “stigma
plus” claim arising out her discharge coupled with the
false defamatory allegations made against her, (id.,
¶¶43-55); (2) a First Amendment retaliation claim
which alleges that the defendants wrongfully terminated her
employment in retaliation for reporting on matters of public
concern, namely the misconduct which had taken place at the
coroner's office, (id., ¶¶52-59); (3) a state law
claim for judicial review of the county agency termination
decision, (id., ¶¶43-49); and (4) a state
law claim under the Pennsylvania whistleblower statute.
defendants have now moved to dismiss all of these claims.
(Docs. 27, 28 and 29.) These motions are fully briefed and
are therefore ripe for resolution. For the reasons set forth
below, with the exception of Fizz's state law claim for
judicial review of the county agency termination decision,
which all parties concede should be dismissed, these motions
should otherwise be denied.
Motion to Dismiss-Standard of Review
motion to dismiss tests the legal sufficiency of a complaint.
It is proper for the court to dismiss a complaint in
accordance with Rule 12(b)(6) of the Federal Rules of Civil
Procedure only if the complaint fails to state a claim upon
which relief can be granted. Fed.R.Civ.P. 12(b)(6). When
reviewing a motion to dismiss, the court “must accept
all factual allegations in the complaint as true, construe
the complaint in the light favorable to the plaintiff, and
ultimately determine whether plaintiff may be entitled to
relief under any reasonable reading of the complaint."
Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir.
2010). In reviewing a motion to dismiss, a court must
"consider only the complaint, exhibits attached to the
complaint, matters of public record, as well as undisputedly
authentic documents if the [plaintiff's] claims are based
upon these documents." Id. at 230.
deciding whether a complaint fails to state a claim upon
which relief can be granted, the court is required to accept
as true all factual allegations in the complaint as well as
all reasonable inferences that can be drawn from the
complaint. Jordan v. Fox Rothschild, O'Brien &
Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). These
allegations and inferences are to be construed in the light
most favorable to the plaintiff. Id. However, the
court "need not credit a complaint's bald assertions
or legal conclusions when deciding a motion to dismiss."
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Further, it is not proper to "assume
that [the plaintiff] can prove facts that [he] has not
alleged . . . .” Associated Gen. Contractors of
Cal. v. California State Council of Carpenters, 459 U.S.
519, 526 (1983).
the rule announced in Ashcroft v. Iqbal, “a
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not
do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Rather, a complaint must recite factual allegations
sufficient to raise the plaintiff's claimed right to
relief beyond the level of mere speculation. Id. To
determine the sufficiency of a complaint under the pleading
regime established by the Supreme Court, the court must
engage in a three step analysis:
First, the court must take 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.
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d
Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679).
"In other words, a complaint must do more than allege
the plaintiff's entitlement to relief" and instead
must “‘show' such an entitlement with its
facts.” Fowler v. UPMC Shadyside, 578 F.3d
203, 211 (3d Cir. 2009).
court of appeals has observed:
The Supreme Court in Twombly set forth the
“plausibility” standard for overcoming a motion
to dismiss and refined this approach in Iqbal. The
plausibility standard requires the complaint to allege
“enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570, 127 S.Ct. 1955. A complaint satisfies the plausibility
standard when the factual pleadings “allow[ ] the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 129 S.Ct.
at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct.
1955). This standard requires showing “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. A complaint which pleads
facts “merely consistent with” a defendant's
liability, [ ] “stops short of the line between
possibility and plausibility of ‘entitlement of
Burtch v. Milberg Factors, Inc., 662 F.3d 212,
220-21 (3d Cir. 2011).
undertaking this task, the court generally relies only on the
complaint, attached exhibits, and matters of public record.
Sands v. McCormick, 502 F.3d 263, 268 (3d Cir.
2007). The court may also consider “undisputedly
authentic document[s] that a defendant attached as an exhibit
to a motion to dismiss if the plaintiff's claims are
based on the [attached] documents.” Pension Benefit
Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196
(3d Cir. 1993). Moreover, “documents whose contents are
alleged in the complaint and whose authenticity no party
questions, but which are not physically attached to the
pleading, may be considered.” Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d
Cir. 2002); see also, U.S. Express Lines, Ltd. v.
Higgins, 281 F.3d382, 388 (3d Cir. 2002) (holding that
“[a]lthough a district court may not consider matters
extraneous to the pleadings, a document integral to or
explicitly relied upon in the complaint may be considered
without converting the motion to dismiss in one for summary
judgment.”) However, the court may not rely on other
parts of the record in determining a motion to dismiss.
Jordan v. Fox, Rothschild, O'Brien &Frankel,
20 F.3d 1250, 1261 (3d Cir. 1994).
by these legal tenets, and with our review confined to the
well-pleaded facts set forth in Fizz's amended complaint,
we find, with one exception as noted below, that the
defendants' motions to dismiss should be denied.
The Plaintiff's Stigma-Plus Due Process Claim is Not
Subject to Dismissal on the Pleadings
first to Fizz's stigma plus due process claim, the
Supreme Court has long held that an individual has a
protectable interest in her reputation. Wisconsin v.
Constantineau, 400 U.S. 433 (1971); see also Hill v.
Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006).
To make out a claim for deprivation of a liberty interest in
reputation, “a plaintiff must show a stigma to [her]
reputation plus deprivation of some additional right or
interest.” Hill v. Borough of Kutztown, 455
F.3d 225, 236 (3d Cir. 2006)(citing Paul v. Davis,
424 U.S. 693, 701 (1976)). Under this
“stigma-plus” test, “[t]he creation and
dissemination of a false and defamatory impression is the
‘stigma, ' and the termination is the
‘plus.' When such a deprivation occurs, the
employee is entitled to a name-clearing hearing.”
order to satisfy the “stigma” prong of the claim,
a plaintiff must demonstrate “(1) that the stigmatizing
statement was made publically, and (2) that the statement was
substantially and materially false.” Lockett v.
Pennsylvania Dep't of Corr.,529 Fed.Appx. 294, 296
(3d Cir. 2013). The materially false statement must
infringe upon the “reputation, honor, or
integrity” of the employee. Brown v. Montgomery
Cnty., 470 Fed.Appx. 87, 91 (3d Cir. Mar. 21, 2012)
(quoting Ersek v. Springfield, 102 F.3d 79, 73-84
(3d Cir. 1996)). “No liberty interest of constitutional
significance is implicated when the employer has alleged
merely improper or inadequate performance, ...