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Morozin v. Philadelphia Housing Authority

United States District Court, E.D. Pennsylvania

August 13, 2019



          JUAN R. SÁNCHEZ, C.J.

         Plaintiff John Morozin, a white former officer of Defendant Philadelphia Housing Authority's (PHA) police department, brings this employment action alleging various forms of employment discrimination and constitutional injuries by the PHA and his former African-American supervisors, Defendants PHA Police Chief Branville Bard and PHA Vice President of Human Resources, Joanne Strauss. Defendants now move to dismiss portions of the Amended Complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) and to strike two paragraphs pursuant to Federal Rule of Civil Procedure 12(f). The Court will grant Defendants' Rule 12(b)(6) motion because the challenged claims do not contain enough detail to establish Morozin's plausible right to relief, and the motion to strike pursuant to Rule 12(f) because the Amended Complaint contains two immaterial averments.


         Morozin, a white male, served as an officer in PHA's police department for an unspecified length of time (the Amended Complaint does not allege when his career with the department began or ended).[2] He was supervised by Branville Bard, the Police Chief and Public Safety Director of PHA's police department, and Joanne Strauss, PHA's Vice President of Human Relations.

         Prior to Bard's hiring, Morozin and others reported perceived employment discrimination. Two individuals, Chief Mitchell and Officer Bullock, were allegedly terminated for their participation in these reports, and another, Inspector Eskridge, was demoted.[3] It is not clear when these allegedly retaliatory actions took place, the contours of the disparate treatment opposed, or the manner of the opposition other than Morozin, Marshall, Bullock, and Eskridge having “reported” it.

         In March 2016, PHA hired Bard as the Police Chief and Public Safety Director of PHA's police department. At some point after his hiring, Bard conducted a physical inspection of PHA's police officers and is alleged to have said “more color was needed here.” Am. Compl. ¶ 41. At some time prior to this, Bard worked as a lieutenant in the Philadelphia Police Department where he is alleged to have made a similar comment about “darkening things up” in that police department. Id. ¶ 44.[4] At some point following these comments, it is not clear how soon thereafter, Bard began using the disciplinary and hiring process to reduce the ranks of white officers in PHA's police department.

         Also in March 2016, Bard initiated the termination of two white PHA Officers, Hampshire (a female) and Jablonski (a male), on the basis they violated departmental policy concerning vehicle pursuits. The Amended Complaint alleges the policy did not exist on the date of the alleged violation and the basis for Hampshire and Jablonski's respective terminations was “pretextual for discrimination, ” although the Amended Complaint does not identify the basis for the discrimination they allegedly suffered. Morozin claims he opposed Hampshire and Jablonski's termination but offers no further detail as to when or how.[5]

         At some point (the Amended Complaint alleges no date), Bard initiated Morozin's termination from the department. The Amended Complaint alleges that Bard testified in the course of different litigation that Morozin was terminated for “union activity and a loss of confidence.” Morozin alleges this rationale was pretext, and that he was really fired for opposing employment discrimination at PHA, engaging in First Amendment protected activity, and rejecting an alleged sexual advance made by Strauss.[6] Strauss is alleged to have implemented Morozin's termination.

         Prior to his termination, Morozin alleges he made an internal complaint of employment discrimination and erroneous wage calculation, and non-payment of wages owed to him.[7] The substance of this complaint also “included acts of Bard and others at PHA.” Id. ¶ 83. The Amended Complaint provides no additional detail about this alleged complaint, i.e., its substance, timing, or the manner in which it was made.

         On May 23, 2018, Morozin filed the above-captioned case. On July 31, 2018, Defendants moved to dismiss. Morozin then filed an Amended Complaint on August 22, 2018. Defendants moved to dismiss the Amended Complaint for failure to state a claim and to strike Paragraphs 96 and 97 of the Amended Complaint on September 6, 2018. On November 8, 2018, the Court heard oral argument. The matter is now ripe for decision.


         Defendants move to dismiss Counts I, III, and IV-VI of the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pleaded “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In evaluating a Rule 12(b)(6) motion, a court first must separate the legal and factual elements of the plaintiff's claims. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11. The court must then “determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Id. at 211 (quoting Iqbal, 556 U.S. at 679).

         Count I asserts a violation of 42 U.S.C. § 1983, which creates a statutory mechanism for private individuals to vindicate their constitutional rights.See 42 U.S.C. § 1983; Albright v. Oliver, 510 U.S. 266, 271 (1994) (“Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.” (internal quotations omitted)). In pertinent part, 42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

         To prevail on his § 1983 claims, Morozin must produce evidence that “a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States.” Morrow v. Balaski, 719 F.3d 160, 165-66 (3d Cir. 2013). In evaluating a § 1983 claim, a court must first “identify the exact contours of the underlying right said to have been violated.” Id. at 166 (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc)). The Court must then “determine whether the plaintiff has alleged a deprivation of a constitutional right at all.” Id.

         To hold a municipality liable under § 1983 for the conduct of its employees, the plaintiff must satisfy the standard established in Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). Under Monell, a local government may be held liable under § 1983 “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, ” causes the violation of a constitutional right.[8]Id. at 694. A Monell claim requires a plaintiff to establish “(1) she possessed a constitutional right of which she was deprived; (2) the municipality had a policy; (3) the policy ‘amounted to deliberate indifference' to the plaintiff's constitutional right; and (4) the policy was the ‘moving force behind the constitutional violation.'” Vargas v. City of Phila., 783 F.3d 962, 974 (3d Cir. 2015) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of its action.” Id. (quoting Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)).

         Here, Morozin claims PHA had a policy or custom of retaliating against PHA employees for exercising their First Amendment rights to free speech. The parties dispute whether the Amended Complaint adequately pleads a deprivation of Morozin's right to free speech under the First Amendment. To demonstrate such a deprivation, a plaintiff must allege (A) that the activity in question is protected by the First Amendment, and (B) that the protected activity was a “substantial factor” in the alleged retaliatory action. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006. Whether speech is protected is a question of law, but whether that speech motivated the retaliatory action is question of fact. Hill, F.3d at 241 (citing Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004)).

         In this Circuit, a public employee's speech is protected by the First Amendment when

(1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public' as a result of the statement he made.

Id. at 241-42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). Defendants argue the Amended Complaint fails to allege statements involving matters of public concern. Instead, they claim, Morozin's statements consisted of unactionable complaints about issues related to his work place. Morozin responds by asserting his speech is protected under Lane v. Franks, 573 U.S. 228 (2014), which held that a public employee's truthful testimony at trial was speech ...

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