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Fizz v. Allen

United States District Court, M.D. Pennsylvania

May 10, 2018

LAUREN FIZZ, Plaintiff
v.
ROBERT ALLEN, et al., Defendants

          Carlson, Magistrate Judge

          REPORT AND RECOMMENDATION

          Martin C. Carlson United States Magistrate Judge

         I. Statement of Fact and of the Case

         This 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.

         With 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., ¶¶15-19.)

         In 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. (Id., ¶¶25-6.)

         The 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.)

         Further, 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. (Id., ¶38.)

         By the 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.)

         The 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., ¶47.)

         On the 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);[1] (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. (Id., ¶¶50-51.)

         The 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.

         II. Discussion

         A. Motion to Dismiss-Standard of Review

         A 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.

         In 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).

         Following 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).

         As the 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 relief.'”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

         In 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).

         Guided 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.

         B. The Plaintiff's Stigma-Plus Due Process Claim is Not Subject to Dismissal on the Pleadings

         Turning 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.” Id.

         In 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, ...


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