United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge
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
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.
the close of discovery, Defendants filed a Motion for Summary
Judgment.(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
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).
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).
Standard of Review
motion to alter or amend judgment under Federal Rule of Civil
Procedure 59(e) is akin to a motion for
reconsideration. 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)).
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