United States District Court, M.D. Pennsylvania
SCOTT A. HAUSE, Plaintiff
CITY OF SUNBURY and DAVID PERSING, Defendants
Kane, District Judge
the Court are Defendants City of Sunbury, Pennsylvania
(“Defendant Sunbury”) and David Persing
(“Defendant Persing”)'s motion to dismiss
Plaintiff Scott A. Hause (“Plaintiff”)'s
first amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) (Doc. No. 15), or, in the alternative, to
compel arbitration (Doc. No. 16), and Defendants' motion
to take judicial notice (Doc. No. 17). For the reasons
provided herein, the Court will deny Defendants' motion
to take judicial notice and grant Defendants' motion to
December 5, 2017, Plaintiff initiated the above-captioned
action by filing a complaint with this Court, alleging one
count of age discrimination under the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621
et seq. (“Count I”), and a violation of
Plaintiff's First Amendment right to freedom of
association (“Count II”). (Doc. No. 1
¶¶ 13, 29.) On May 31, 2018, Defendants filed a
motion to dismiss all of Plaintiff's claims pursuant to
Federal Rule of Civil Procedure 12(b)(6) (Doc. No. 8), and a
brief in support thereof (Doc. No. 10). Defendants also filed
a motion to take judicial notice on May 31, 2018 (Doc. No.
7), and a brief in support thereof (Doc. No. 9). The Court
issued a Memorandum (Doc. No. 13) and Order (Doc. No. 14) on
March 31, 2019 denying Defendants' motion to take
judicial notice and granting Defendants' motion to
dismiss without prejudice to Plaintiff's right to file an
amended complaint. Plaintiff then filed an amended complaint
on April 30, 2019. (Doc. No. 15.) Defendants subsequently
filed the instant motion to dismiss Plaintiff's first
amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (Doc. No. 16) and a renewed motion to take judicial
notice (Doc. No. 17). Having been fully briefed (Doc. Nos.
16, 17, 19, 20), the motions are ripe for disposition.
Factual Background 
is a former law enforcement officer with Defendant
Sunbury's police department. (Doc. No. 15 ¶ 6.)
Plaintiff alleges that his employment with Defendant Sunbury
was terminated on September 1, 2016 because of his
(Id. ¶¶ 12-13.) Plaintiff further alleges
that Defendant Sunbury “engaged in a course of conduct
designed to intimidate all of its law enforcement officers
over the age of 40” for the purpose of
“effect[ing] the severance of all law enforcement
officers from employment” with Defendant Sunbury.
(Id. ¶ 9-10.) According to Plaintiff, he was
replaced by part-time personnel under the age of forty (40),
“namely, Keifer Bathgate, a person in his 20s, and
Officer (first name unknown) Vognetz, a person in his
30s.” (Id. ¶ 14.)
avers that in January 2014, he was elected president of the
SPOA, a collective bargaining unit that represents law
enforcement officers employed by Defendant Sunbury, and
served as its president until he was terminated in 2016.
(Id. ¶¶ 18-20.) In his role as president
of the SPOA, Plaintiff was responsible for negotiating a
collective bargaining agreement (“CBA”) with
Defendant Sunbury. (Id. ¶ 21.) In 2013, the
SPOA and Defendant Sunbury agreed to a CBA under which
officers with service of twenty (20) or more years would
receive certain longevity bonuses and other benefits.
(Id. ¶ 22.)
2015, the SPOA and Defendant Sunbury began negotiating a new
CBA. (Id. ¶ 24.) Defendant Persing, as mayor of
Sunbury, negotiated the new CBA on behalf of Defendant
Sunbury. (Id. ¶ 25.) Plaintiff alleges that,
during the negotiations for the new CBA, Defendant Persing
“and other representatives of [Defendant]
Sunbury” expressed a desire to eliminate the longevity
bonuses and other benefits that had been included in the
previous CBA. (Id. ¶ 26.) According to
Plaintiff, Defendant Persing complained publicly that the
benefits at issue were too costly and were putting Defendant
Sunbury in financial jeopardy. (Id. ¶ 27.)
Plaintiff states that the SPOA opposed the elimination of the
longevity bonuses and other benefits. (Id. ¶
28.) The SPOA and Defendant Sunbury proceeded to binding
arbitration to resolve their impasse as to the longevity
bonuses and other benefits, and an arbitration hearing took
place before a private arbitrator on June 1, 2016.
(Id. ¶ 29.)
avers that, subsequent to the June 1, 2016 arbitration
hearing, Defendants “embarked on a policy and course of
conduct to terminate, harass and intimidate every bargaining
unit member over the age of 40.” (Id. ¶
30.) Plaintiff was terminated on September 1, 2016.
(Id. ¶ 12.) Plaintiff alleges that Defendants
retaliated against Plaintiff for his association with the
SPOA and that Defendants interfered with his exercise of his
First Amendment right to freedom of association as a member
of the SPOA. (Id. ¶¶ 31-32.) Plaintiff
avers that as a result of Defendants' acts, he has
suffered lost earnings and benefits, humiliation, and
emotional distress. (Id. ¶¶ 16, 33.)
12(b)(6) of the Federal Rules of Civil Procedure permits a
defendant to move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). When reviewing the sufficiency of a
complaint pursuant to a motion to dismiss under Rule
12(b)(6), the Court must accept as true all material
allegations in the complaint and all reasonable inferences
that can be drawn from them, viewed in the light most
favorable to the plaintiff. See In re Ins. Brokerage
Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010).
However, the Court need not accept legal conclusions set
forth as factual allegations. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Rather, a civil
complaint must “set out ‘sufficient factual
matter' to show that the claim is facially
plausible.” See Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
with the Supreme Court's ruling in Twombly and
Ibqal, the Third Circuit has identified three steps
a district court must take when determining the sufficiency
of a complaint under Rule 12(b)(6): (1) identify the elements
a plaintiff must plead to state a claim; (2) identify any
conclusory allegations contained in the complaint “not
entitled” to the assumption of truth; and (3) determine
whether any “well-pleaded factual allegations”
contained in the complaint “plausibly give rise to an
entitlement to relief.” See Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and
quotation marks omitted). A complaint is properly dismissed
where the factual content in the complaint does not allow a
court “to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
See Iqbal, 556 U.S. at 678. Additionally, a court
may not assume that a plaintiff can prove facts that the
plaintiff has not alleged. See Associated Gen.
Contractors of Cal. v. Cal. State Council of Carpenters,
459 U.S. 519, 526 (1983).
noted, supra, Defendants have filed both a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)
(Doc. No. 16) and a motion to take judicial notice of an
arbitration opinion and award (Doc. No. 17). The Court will
first address Defendants' motion to take judicial notice.
Defendants' Motion to Take Judicial Notice
Applicable Legal Standard
Rule of Evidence 201(b) permits a district court to take
judicial notice of facts that are “generally known
within the territorial jurisdiction of the trial court,
” or facts that “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” See Fed.R.Evid. 201(b). The Third
Circuit has held that judicial notice “should be done
sparingly at the pleadings stage.” See Victaulic
Co. v. Tieman, 499 F.3d 227, 236 (3d Cir. 2007). In the
context of an arbitration award, judicial notice is
appropriate where a plaintiff includes references to the
arbitration award in a complaint, even where the plaintiff
has failed to attach the arbitration award to the complaint.
See Brody v. Hankin, 145 Fed.Appx. 768, 772 (3d Cir.
2005) (holding that the district court impermissibly noticed
the existence of an arbitration award because the plaintiff
did not rely on the award in the complaint). Further, at the
motion to dismiss stage, when a court takes judicial notice
of an arbitration award, it may do so only as to the
existence of the arbitration award, and not with respect to
the substance of the award. See Id. at 772-73.
Arguments of the Parties
support of their motion to take judicial notice, Defendants
argue that “[w]here the defenses of res judicata or
collateral estoppel are raised for adjudication on a motion
to dismiss, the Court can take notice of all facts necessary
for the decision and adjudicate that defense.” (Doc.
No. 17 at 4) (citing Toscano v. Conn. Gen. Life Ins.
Co., 288 Fed.Appx. 36, 38 (3d Cir. 2008)). Defendants
acknowledge that even when a court can take judicial notice
of the existence of an arbitration award, a court cannot
typically take notice of the facts contained therein, but
argue that the Court may do so in this case because
“the arbitration award is integral to Plaintiff's
FAC” and Plaintiff, therefore, “opened the door
to consideration of the arbitration opinion and its factual
content by referencing his ‘one instance of
discipline,' his ‘satisfactory performance,'
his ‘wrongful termination' and that his employment
was terminated based on his age.” (Id. at 6.)
In opposition, Plaintiff argues that taking judicial notice
of the arbitration award is unwarranted because he has not
referenced the arbitration award in his complaint. (Doc. No.
19 at 2.) Furthermore, Plaintiff maintains that none of the
factual averments added to his amended complaint implicate
the arbitration award and refers to the Court's prior
ruling on the matter. (Id.) Plaintiff requests that
the Court again decline to take judicial notice of the
arbitration award at the pleading stage. (Id.)
Whether Defendants' Motion to Take Judicial Notice Should
threshold matter, the Court notes that it thoroughly
considered Defendants' arguments in support of their
motion to take judicial notice in its prior ruling declining
to take judicial notice of the arbitration award. (Doc. No.
13 at 6-9.) Defendants' most recent motion (Doc. No. 17),
however, fails to address the Court's analysis of the
matter and, instead, recites arguments nearly identical to
those raised to the Court previously (Doc. No. 7). Indeed,
Defendants' only new argument is that the arbitration
award is “integral” to Plaintiff's complaint.
(Doc. No. 17 at 6.) This argument does not persuade the Court
to alter its earlier analysis.Plaintiff does not reference the
arbitration decision at issue in his amended complaint, nor
is there anything in the record to suggest that
Plaintiff's claims under the ADEA and First Amendment
would not exist but for the existence of the arbitration
decision. See Dix v. Total Petrochemicals USA, Inc.,
No. 10-cv-3196, 2011 WL 2474215, at *1 (D.N.J. June 20, 2011)
(“The rule [permitting judicial notice of integral
documents] is applied when the claim would not exist but-for
the existence of the document.”) (collecting cases).
Therefore, the Court finds the arbitration decision does not
rise to the level of an integral document and once more
declines to take judicial notice of the award. Accordingly,
Defendants' motion to take judicial notice (Doc. No. 17)
is denied. The Court will next consider
Defendants' motion to dismiss.
Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P.
light of the Court's determination that it will not
undertake a collateral estoppel analysis at this stage
because it will not take judicial notice of the arbitration
award, the Court will proceed in evaluating the sufficiency
of Count I of Plaintiff's complaint pursuant to Rule
I - Age Discrimination in ...