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Holt v. Commonwealth

United States District Court, E.D. Pennsylvania

May 23, 2018

DAVID HOLT II, Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.

          MEMORANDUM

          Goldberg, J.

         Plaintiff David Holt brings the current action under Title VII, 42 U.S.C. §§ 1981 and 1983, and the Pennsylvania Human Relations Act, 43 P.S. § 951, et seq., alleging discrimination and retaliation during his continuing tenure of employment with the Pennsylvania State Police. By way of two separate Motions, the various Defendants seek dismissal of the First Amended Complaint. For the following reasons, I will grant the Motions in part and deny them in part.

         I. FACTUAL BACKGROUND

         The following facts are taken from Plaintiff's Amended Complaint:[1]

         Defendant Commonwealth of Pennsylvania (“Commonwealth”) hired Plaintiff on November 6, 1994, as a member of the Pennsylvania State Police Department (“PSP”). Plaintiff was promoted to corporal in May 2005, and then to sergeant in November of 2006. Plaintiff was assigned as the Station Commander of the PSP Pocono Station. The rank of Station Commander provides a degree of authority, prestige, and increased career opportunities within the PSP, in contrast to other assigned sergeant positions. (Am. Compl. ¶¶. 21-26.)

         On April 6, 2009, Plaintiff filed a formal internal Equal Employment Opportunity (“EEO”) complaint, against the PSP, alleging racial discrimination. Thereafter, on May 21, 2009, Plaintiff filed a racial discrimination charge against the PSP with the Pennsylvania Human Relations Commission (“PHRC”), which was cross-filed with the EEOC. Plaintiff filed a second PHRC charge of racial discrimination against the PSP on July 21, 2009, which charge was then cross-filed with the EEOC. Finally, on October 19, 2010, Plaintiff filed a civil lawsuit in the United States District Court for the Eastern District of Pennsylvania against the Commonwealth, the PSP, and others, alleging First Amendment retaliation, race discrimination, and employment discrimination and retaliation. (Id. ¶¶ 27-31.)

         On September 27, 2011, Plaintiff sent an email to Defendant Commissioner Frank Noonan, a supervisor at the PSP, regarding both the discrimination and retaliation charges and the pending federal lawsuit. In October 2011, Corporal Jeffrey Taylor met with Defendant Lieutenant Colonel George Bivens, Joseph Kovel-Union President of the Pennsylvania State Troopers Association-and Human Resources representative Richard Achey regarding Plaintiff's claims of discrimination and retaliation. Despite the meeting, neither the Commonwealth nor any of the individuals took action to investigate or remedy the Plaintiff's complaints. (Id. ¶¶ 33-35.)

         In October 2013, Plaintiff's federal race discrimination/retaliation trial commenced against PSP and other defendants. A jury rendered a verdict against the Commonwealth and the PSP in favor of Plaintiff on some of his claims for $50, 000 damages. Plaintiff advised his Commanding Officer, Defendant Captain Gregory Bacher, of the outcome of the trial and the fact that the NBC News 10 was going to interview him about the trial, verdict, and ongoing discrimination. Captain Bacher warned Plaintiff not to say anything negative that would put the PSP in a “bad light.” NBC News 10 subsequently aired Plaintiff's interview in the area where PSP headquarters is located. (Id. ¶¶ 37, 39-42.)

         On March 29, 2014, Plaintiff became eligible for promotion. Despite the fact that Plaintiff scored a 94% on the promotional exam for lieutenant, he was skipped over for any promotion. Instead, Commissioner Noonan and Lieutenant Colonel Bivens chose allegedly less qualified, lower-scoring whites who were ranked lower on the promotional list. Noonan and Bivens again skipped over Plaintiff for promotion in July 2014. In August and September 2014, Plaintiff received stellar reviews and evaluations about his work as Station Commander. (Id. ¶¶ 36, 43-50.)

         In October 2014, Plaintiff received a citizen complaint concerning a serious crash involving lead investigator Trooper Randall Hart, Trooper Joel Cikowski, and supervising Corporal Francis Aigeldinger, all of whom are white males. The complaint indicated that Hart failed to arrest a DUI suspect for crashing his vehicle into another vehicle causing significant damage and injuring an eighteen-year-old woman. Under PSP practice and regulation, Plaintiff reported the incident to the Internal Affairs (“IA”) Investigative Unit. Plaintiff subsequently informed the Pocono Station members of the citizen complaint and the IA investigation. Some members of the Station, including Trooper Lisa Girman, “belligerent[ly]” challenged Plaintiff's decision to report the incident. Plaintiff asked Girman to leave roll call and stated, “I could be like how the old sergeants were back in the day, when they would tell you ‘we could just take our shirts off and go out in to the garage and settle this like men.'” (Id. ¶¶ 52-58.)

         Shortly thereafter, Plaintiff was advised that some members were “offended” by his comment. Despite Plaintiff's immediate open apology email to all station members, Corporals Frances Aigeldinger and Jeremy Franklin, white males, circumvented the chain-of-command by reporting the roll call incident directly to Captain Bacher, claiming that Plaintiff threatened Trooper Girman with physical violence. Although circumvention of the chain-of-command is a punishable work rule violation, Captain Bacher did not discipline Corporals Aigeldinger and Franklin. On October 20, 2014, Captain Bacher contacted the PSP's EEO Director, Captain Wendell Morris, and notified him of the Corporals' complaint. Captain Morris advised that no EEO violations occurred in reference to that complaint. The next day, Captain Bacher contacted Corporal Aigeldinger and asked him to obtain signed letters from all of Plaintiff's subordinates identifying any misconduct they knew about Plaintiff. (Id. ¶¶ 59-71.)

         On October 27, 2014, Plaintiff was scheduled to attend the second phase of his jury trial on the federal discrimination/retaliation claims. He named Corporal Aigeldinger as the “Acting Station Commander” in his absence. (Id.) Following the second jury trial, Plaintiff was awarded damages against PSP in the amount of $1.9 million. Plaintiff immediately texted the verdict award to several members of Pocono Station. Randell Henzes of the Office of the Attorney General for the Commonwealth of Pennsylvania was present for the verdict. Plaintiff avers that, as of January 1, 2016, Defendants Noonan, Brown, and Blocker were informed by Henzes of the judgments. Plaintiff also believes that, before November 6, 2014, Defendant Captain Bacher knew of these judgments. (Id. ¶¶ 72-76, 79-81.)

         At a meeting with Plaintiff on November 6, 2014, Captain Bacher produced a thick manila folder containing what Bacher called “station complaints” against Plaintiff. Plaintiff then became the subject of an IA investigation initiated by Bacher, who claimed that Plaintiff threatened Trooper Girman at roll call on October 16, 2014. This investigation was contrary to how Bacher treated complaints received against white sergeants. (Id. ¶¶ 83, 85-89.)

         On December 6, 2014 and January 14, 2015, Commissioner Noonan and Lieutenant Colonel Bivens again passed over Plaintiff for promotion to lieutenant. (Id. ¶¶ 90, 99.)

         On January 28, 2015, Plaintiff received written correspondence from Captain Bacher indicating that Bacher cleared Hart of all of the administrative charges relating to the IA investigation originating from the DUI crash. Shortly thereafter, on February 17, 2015, Plaintiff received a “sustained” PSP Disciplinary Action Report from Captain Bacher based on Plaintiff's alleged creation of a hostile work environment and disparate treatment of employees. Plaintiff was placed on “Restricted Duty” and Captain Bacher ordered Plaintiff's immediate supervisor, Lieutenant Dance, to drive to the Pocono Station every day to physically supervise Plaintiff. (Id. ¶¶ 100-102, 104.)

         On February 26, 2015, Plaintiff filed an EEO complaint against Captain Bacher. Captain Bacher “un-expectantly” retired from the PSP two weeks later. (Id. ¶¶ 106-108.)

         On April 13, 2015, while driving his PSP-assigned vehicle to work, Plaintiff encountered and followed a DUI driver, but was unable to stop the driver because Plaintiff's vehicle's emergency lights and sirens were “purposely disabled by the PSP and Captain Bacher.” As a result, Plaintiff received a twenty-day suspension without pay from PSP's Disciplinary Officer Captain Troxell and his assistant, Lieutenant O'Hara. Thereafter, Captain Cain and Major Hoke involuntarily transferred Plaintiff from the Pocono Station to Highspire, Pa. The suspension resulted in a loss of wages of $10, 000 and precluded Plaintiff from being eligible for promotion or transfer for one year. The transfer further resulted in approximately $32, 000 in lost construction zone overtime wages, deprived Plaintiff of the use of a Department vehicle, and changed the nature of Plaintiff's duties. (Id. ¶¶ 109-110, 112-117.)

         On April 25, 2015, Plaintiff filed an internal EEO complaint against Captain Cain, Lieutenant Colonel Bivens, and Major Hoke. On the same date, he sent an e-mail to PSP Commissioner Brown concerning his complaints of discrimination and retaliation by high-ranking PSP officers. EEO Director Captain Morris responded, on June 9, 2015, that he would not investigate Colonel Bivens. (Id. ¶¶ 118, 120, 121, 123.)

         Plaintiff received his yearly evaluation from Lieutenant Dance in June 2015, rating him as “outstanding.” Captain Cain, however, changed Lieutenant Dance's ratings and listed Plaintiff as “unsatisfactory” in every category, despite the fact that Cain was not Plaintiff's direct supervisor. (Id. ¶¶ 124, 126.)

         On August 25, 2015, Plaintiff became the subject of another PSP IA investigation, initiated by Captain Cain, concerning Plaintiff's “off duty” conduct when he accidentally left his personal handgun in a bathroom stall at a Pennsylvania Turnpike building. As a result, in December, Plaintiff received a “sustained” Disciplinary Action Report from Captain Maurice Tomlinson, a black male. Thereafter, Lieutenant O'Hara and Captain Troxell imposed a seven-day suspension without pay. (Id. ¶¶ 128, 130, 132.)

         Plaintiff filed another internal EEO Complaint, on January 28, 2016, against Lieutenant O'Hara and Captain Troxell for retaliation/excessive discipline. The following month, Captain Troxell retired from the PSP. On May 20, 2016, Plaintiff sent a certified letter to Governor Thomas Wolf complaining of systemic racism and discrimination inside the PSP because all of his internal EEO complaints and appeals were met with negative outcomes. His appeal to the Governor's office was fruitless. (Id. ¶¶ 134-137.)

         Plaintiff alleges that neither the Commonwealth nor PSP has satisfied Plaintiff's judgments against them. (Id. ¶¶ 141-45.)

         Following his exhaustion of administrative remedies, Plaintiff initiated this lawsuit on June 6, 2017, against Defendants Commonwealth, PSP, Marcus Brown, Frank Noonan, George Bivens, Edward Hoke, Wendell Morris, Gregory Bacher, Michael Troxell, David Cain, Anthony O'Hara, and Tyree Blocker. His Amended Complaint, filed on September 14, 2017, sets forth five causes of action: (1) First Amendment retaliation under 42 U.S.C. § 1983, (2) race discrimination under § 1983, (3) employment discrimination/retaliation under Title VII, 42 U.S.C. § 2000e, (4) employment discrimination/hostile work environment, under Title VII, and (5) employment discrimination/retaliation under the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951, et seq.

         On November 1, 2017, Defendant Frank Noonan filed a Motion to Dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The same day, the remaining Defendants (collectively, the “Commonwealth Defendants”) filed a Motion to Dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(1), 12(b)(3), and 12(b)(6). Plaintiff responded to both Motions on November 13, 2017.

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1)

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the power of a federal court to hear a claim or a case. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). When presented with a Rule 12(b)(1) motion, the plaintiff “will have the burden of proof that jurisdiction does in fact exist.” Id. at 302 n.3 (quotation omitted).

         There are two types of Rule 12(b)(1) motions. A “facial” attack assumes that the allegations of the complaint are true, but contends that the pleadings fail to present an action within the court's jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A “factual” attack, on the other hand, argues that, while the pleadings themselves facially establish jurisdiction, one or more of the factual allegations is untrue, causing the case to fall outside the court's jurisdiction. Mortensen, 549 F.2d at 891. In such a case, “no presumptive truthfulness attaches to plaintiff's allegations” and the court must evaluate the merits of the disputed allegations because “the trial court's . . . very power to hear the case” is at issue. Id.

         B. Rule 12(b)(3)

         Under Federal Rule of Civil Procedure 12(b)(3), a defendant may seek to dismiss a case on the basis of improper venue. This rule is designed “to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.” Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994) (emphasis added) (quoting Leroy v. Great W. United Corp., 443 U.S. 173, 183-184 (1979)). When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(3), a court must accept as true the allegations in the complaint, unless contradicted by the defendant's affidavits. Baker v. Berman, No. 09-1061, 2009 WL 3400941 at *2 (W.D. Pa. Oct. 21, 2009) (citing Campanini v. Studsvik, Inc., No. 08-5910, 2009 WL 926975 (E.D. Pa. Apr. 6, 2009)). While the court may consider facts outside the complaint to determine the proper venue, all reasonable inferences must be drawn in the plaintiff's favor. Id. (citing Fellner v. Phila. Toboggan Coasters, Inc., No. 05-2052, 2005 WL 2660351 (E.D. Pa. Oct. 18, 2005)).

         C. Rule 12(b)(6)

         Under Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). The United States Supreme Court has recognized that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotations omitted). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” and “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “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. A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.

         The United States Court of Appeals for the Third Circuit has detailed a three-step process to determine whether a complaint meets the pleadings standard. Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2014). First, the court outlines the elements a plaintiff must plead to state a claim for relief. Id. at 365. Next, the court must “peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth.” Id. Finally, the court “look[s] for well-pled factual allegations, assume[s] their veracity, and then ‘determine[s] whether they plausibly give rise to an entitlement to relief.'” Id. (quoting Iqbal, 556 U.S. at 679). The last step is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (quoting Iqbal, 556 U.S. at 679).

         III. ...


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