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Javitz v. Luzerne County

United States District Court, M.D. Pennsylvania

May 24, 2018

DONNA DAVIS JAVITZ, Plaintiff,
v.
LUZERNE COUNTY, et al. Defendants.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge

         I. Introduction

         Presently before the Court is Plaintiff Donna Davis Javitz's "Motion for Reconsideration Under Federal Rule of Civil Procedure 59" (Doc. 113). The Motion asks this Court to reconsider its Memorandum Opinion and accompanying Order of March 29, 2018, (Docs. 108, 109), which granted Defendants' Motion for Summary Judgment with respect to Plaintiffs federal claims and declined to exercise supplemental jurisdiction over Plaintiffs remaining state law claims. For the reasons that follow, the Court will deny Plaintiffs Motion.

         II. Procedural History

         Plaintiff initiated this wrongful termination action against Defendants Luzerne County, Robert Lawton, and David Parsnikon December 21, 2015. (Doc. 1). After this Court resolved Defendants' Motion to Dismiss and Plaintiff amended her complaint, the following counts remained: 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). In short, Plaintiff claimed that she was terminated from her position as Director of Human Resources for Luzerne County without cause and in retaliation for a report she made to the District Attorney about suspected criminal activity of another County employee.

         After the close of discovery, Defendants filed a Motion for Summary Judgment.[1](Doc. 66). The Court issued a ruling on the Motion on March 29, 2018. (Docs. 108, 109). Addressing Plaintiffs Fourteenth Amendment claim, the Court first found that under the terms of the Luzerne County Home Rule Charter and Personnel Code, career service employees could only be terminated for just cause while exempt service employees were employed at-will and could be fired without cause. (Doc. 108 at 7-10). The Court then determined that the language of those documents was circular and that the Director of Human Resources was neither categorically a career service employee nor an exempt service employee. (Id. at 10-12). Turning to the offer of employment that Plaintiff signed when she was hired by the County, the Court held that it was a fully integrated contract that unambiguously classified Plaintiff as an at-will, exempt service employee. (Id. at 12-16). Thus, because Plaintiff was an at-will employee who had no property interest in her continued employment, the Court ruled that her Fourteenth Amendment claim failed as a matter of law. (Id. at 16-17).

         Turning next to Plaintiffs First Amendment retaliation claim, the Court summarized the undisputed facts as follows:

under the County Ethics Code, Plaintiff was "encouraged to disclose any information which ... she believe[d] evidences a violation of any law, rule or regulation." When Plaintiff first became concerned that another County employee had recorded her in violation of Pennsylvania law, she reported it to her supervisor, Defendant Parsnik, and the County Solicitor, David Pedri. Defendant Parsnik and Solicitor Pedri agreed that it appeared that Plaintiff was recorded without her consent. Plaintiff recommended taking the information to another County employee, the District Attorney, and Defendant Parsnik agreed. Plaintiff then emailed someone at the District Attorney's Office to set up a meeting and notified Defendant Parsnik of the meeting. Plaintiff then went with Defendant Parsnik to discuss the matter with District Attorney Salavantis and, in the meeting, Defendant Parsnik did all or most of the talking.

(Id. at 21-22) (alterations in original) (citations omitted). Based on the undisputed facts that "Plaintiff became aware of the information through her employment, was encouraged to report the information by the policies of her employer, and reported the information only to other County employees, " the Court held that Plaintiff was not acting as a citizen when she made the report to the District Attorney. (Id. at 22). Further, the Court ruled that Plaintiffs subsequent inquiries into the status of the District Attorney's investigation were not made as a citizen and were not matters of public concern. (Id. at 23-26). Thus, because the undisputed facts showed that Plaintiff did not speak as a citizen on a matter of public concern, the Court held that her retaliation claim failed as a matter of law. (Id. at 26).

         Finally, as all the federal causes of action were dismissed, the Court declined to retain jurisdiction over Plaintiffs remaining state law claims. [Id. at 27-28).

         III. Standard of Review

         A motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) is akin to a motion for reconsideration.[2] See McDowell Oil Serv., Inc., v. Interstate Fire & Cas. Co., 817 F.Supp. 538, 541 (M.D. Pa. 1993). "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Specifically, the motion is generally permitted only (1) if there is an intervening change in the controlling law; (2) if new evidence becomes available that was not previously available at the time the Court issued its decision; or (3) to correct clear errors of law or fact or prevent manifest injustice. Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Moreover, "motions for reconsideration should not be used to put forward arguments which the movant... could have made but neglected to make before judgment." United States v. Jasin, 292 F.Supp.2d 670, 677 (E.D. Pa. 2003) (internal quotation marks and alterations omitted) (quoting Reich v. Compton, 834 F.Supp.2d 753, 755 (E.D. Pa. 1993) rev'd in part and aff'd in part on other grounds, 57 F.3d 270 (3d Cir. 1995)). Nor should they "be used as a means to reargue matters already argued and disposed of or as an attempt to relitigate a point of disagreement between the Court and the litigant." Donegan v. Livingston, 877 F.Supp.2d 212, 226 (M.D. Pa. 2012) (quoting Ogden v. Keystone Residence, 226 F.Supp.2d 588, 606 (M.D. Pa. 2002)).

         IV. Analysis

         Plaintiff first argues that this Court committed a clear error of fact when it ruled that the Home Rule Charter and Personnel Code do not establish that Plaintiff was a career service employee. (Doc. 114 at 3-6). Plaintiff agrees with the Court that "the language defining career and exempt service positions between the Charter and the Code was circular." (Id. at 3). Nevertheless, Plaintiff argues that the Court erred by failing to look at the provisions under which Plaintiff was hired. That is, Plaintiff argues that those hired in the exempt service are "appointed" pursuant to section 4.08 of the Home Rule Charter. Plaintiff contends that the record is undisputed that she was not "appointed." Plaintiff ...


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