Opinion
Civil Action 20-234
03-09-2021
MAUREEN BEAUMONT, Plaintiff, v. ALLEGHENY COUNTY EMERGENCY SERVICES, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss the Second Amended Complaint (ECF No. 37) be denied.
II. Report
Plaintiff Maureen Beaumont brings this civil rights action pursuant to 42 U.S.C. § 1983 arising out of the termination of her employment as a 911 dispatcher for “Allegheny County Emergency Services” on January 8, 2019. She raises a claims of retaliation under the First Amendment and violation of the Pennsylvania Whistleblower Law, 43 P.S. §§ 1421-28. In addition to Allegheny County Emergency Services, she has also named as defendants Matthew J. Brown, the Chief of Allegheny County Emergency Services; Rebecca Frazier, the Assistant Chief; Tom McDonough, Communications Manager; Steve Pilarski, Deputy County Manager of Allegheny County; and Donald Sand, the 911 Division Chief.
Allegheny County notes that it has been improperly identified as “Allegheny County Emergency Services.”
Currently pending before the Court is Defendants' motion to dismiss the Second Amended Complaint (“SAC”) (ECF No. 37).
A. Relevant Procedural History
Plaintiff commenced this action in the Court of Common Pleas of Allegheny County in July 2019, in which she named Allegheny County Emergency Services (the “County”) only as a defendant. The County removed the case to this Court on the basis of federal question jurisdiction, 28 U.S.C. § 1331. In Count I of the Complaint, Plaintiff alleged that the County violated her rights under the First Amendment by terminating her employment in retaliation for her reporting that a co-worker was sleeping on the job and acting in a hostile manner toward her. She alleged in Count II that her termination violated the Whistleblower Law.
Plaintiff originally filed a notice of removal on July 26, 2019 that was docketed as Civil Action No. 19-918. Defendant objected that on the ground that pursuant to 28 U.S.C. § 1441(a), only a defendant may remove an action to federal court, and the case was later remanded to state court upon the joint motion of the parties. The County then timely removed this case. The case was assigned a new case number and randomly assigned to the undersigned.
The Court has supplemental jurisdiction over the state law claim, 28 U.S.C. § 1367(a).
After the County moved to dismiss the Complaint, Plaintiff moved for and was granted leave to amend the Complaint, and the County's motion was dismissed as moot. Plaintiff then filed an Amended Complaint. (ECF No. 20.)
After the County again filed a motion to dismiss the Amended Complaint (ECF No. 21), Plaintiff again was granted leave to amend over the County's objection that amendment would be futile. (ECF Nos. 24, 25, 29.)
In Plaintiff's SAC (ECF No. 30), she names the five individual defendants, but otherwise alleges the same claims that were asserted in the original Complaint and the Amended Complaint. On November 16, 2020, Defendants filed a motion to dismiss (ECF No. 37), which has been fully briefed (ECF Nos. 38, 40).
Count II is alleged only against the County, not the individual defendants.
B. Facts Alleged in Second Amended Complaint
Plaintiff has been employed by the County as a dispatcher at the Allegheny County 9-1-1 Center since in or about May of 2015. On or about September 25, 2018, Plaintiff made what she alleges was a good-faith report of wrongdoing on the part of another dispatcher, Jessica Bayton (“Bayton”). Plaintiff reported to various shift commanders that Ms. Bayton regularly slept during her shift as a dispatcher. Shortly thereafter, Plaintiff repeated her good-faith report of wrongdoing on the part of Ms. Bayton to Defendant McDonough. Plaintiff did not hold a supervisory role at the County and her report of Ms. Bayton's wrongdoing did not fall within the scope of her job responsibilities. (SAC ¶¶ 12-15.)
Plaintiff alleges that she made this report in her capacity as a concerned citizen, not as an employee of Allegheny County. She contends that Ms. Bayton's habit of sleeping while on duty was a matter of public concern because it happened while Ms. Bayton was responsible for taking 9-1-1 calls, and that Ms. Bayton's actions also created a public safety issue for members of Plaintiff's community. Plaintiff also believes that Ms. Bayton's actions also violated the County's code of conduct and/or internal operating procedures designed to safeguard its employees and the public at large. (Id. ¶¶ 16-18.)
Later, on November 3, 2018, Plaintiff made another good-faith report to her shift commander that Ms. Bayton was behaving in a hostile manner toward Plaintiff and other employees of the County. As was the case with her previous report, Plaintiff did not hold a supervisory role and her report of Ms. Bayton's wrongdoing did not fall within the scope of her job responsibilities. Rather, she alleges that she made this report in her capacity as a concerned citizen. (Id. ¶¶ 19-21.) According to Plaintiff, Ms. Bayton's behavior was a matter of public concern as her hostility in the workplace affected other employees' ability to perform their job duties, thus creating a public safety risk, and her actions also violated the County's code of conduct and/or internal operating procedures designed to safeguard its employees and the public at large. (Id. ¶¶ 22-23.)
On November 13, 2018, Plaintiff was called to a pre-disciplinary hearing but neither she nor her union representative were properly informed of its purpose. Plaintiff was told by Defendants Frazier and/or Sand during the hearing that she had been accused of stealing some of Ms. Bayton's personal belongings on October 26, 2018. Plaintiff states that these allegations were false. (Id. ¶¶ 24-27.) Plaintiff was not informed of the identity of the witness to her alleged wrongdoing.
Plaintiff was suspended by Defendant Frazier pending termination as a direct result of these false claims. She alleges that in doing so, Defendant Frazier purported to act as a policymaker who possessed final authority regarding personnel issues. The reason provided by Defendants for her suspension was pretextual and her suspension was imposed in retaliation for her reports of Ms. Bayton's wrongdoing. (Id. ¶¶ 28-32.) Plaintiff had not received any disciplinary action by the County prior to this incident.
Plaintiff did not work with Ms. Bayton on the date she was accused of stealing some of her belongings. Multiple witnesses provided written statements to the County that they did not observe any wrongdoing on the part of the Plaintiff on the date in question, and no evidence of the accusations against her was provided to her. A human resources employee informed other employees that management was targeting Plaintiff. (Id. ¶¶ 33-37.)
Plaintiff filed a grievance with her union in accordance with the collective bargaining agreement. After she told her union representative that she did not work with Ms. Bayton on the date that she was accused of stealing some of her belongings, a representative of the County altered the date of this alleged wrongdoing. At a hearing on November 27, 2018, the County's representative again changed the date of Plaintiff's alleged wrongdoing. The County's representative informed Plaintiff at this hearing that Ms. Bayton's items were no longer alleged to have been stolen. Again, Plaintiff was not told who had made the allegations against her. (Id. ¶¶ 38-42.) Defendants Brown, Frazier, Sand and McDonough attended Plaintiff's termination hearing on behalf of the County and according to Plaintiff, acted as policymakers with final authority regarding personnel issues when they made decisions about Plaintiff's employment status. (Id. ¶¶ 43-44.)
At a later hearing on December 17, 2018, it was falsely alleged that Plaintiff went through Ms. Bayton's notebook. Defendants Brown, Frazier and Pilarski attended on behalf of Defendant County and acted as policymakers with final authority regarding personnel issues when they made decisions about Plaintiff's employment status. (Id. ¶¶ 45-47.)
On January 8, 2019, Plaintiff was terminated by Pilarski, who was acting as a policymaker who possessed final authority regarding personnel issues, for allegedly harassing Ms. Bayton. Plaintiff had not been accused of harassing Ms. Bayton prior to the date that she was terminated. According to Plaintiff, as this harassment claim was false, the reason provided by Defendants for her termination was pretextual and taken in retaliation for Plaintiff's good faith reports of Ms. Bayton's wrongdoing. (Id. ¶¶ 48-52.)
A neutral arbiter subsequently determined that Plaintiff had been wrongfully terminated and the County was ordered to reinstate the Plaintiff to her previous position as a dispatcher. (Id. ¶ 53.)
C. Discussion
1. Standard of Review
Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). “This requires a plaintiff to plead “sufficient factual matter to show that the claim is facially plausible, ” thus enabling “the court to draw the reasonable inference that the defendant is liable for misconduct alleged.” Id. (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)). While the complaint “does not need detailed factual allegations ... a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. See also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
As noted by the Court of Appeals for the Third Circuit in Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011), a 12(b)(6) inquiry includes identifying the elements of a claim, disregarding any allegations that are no more than conclusions and then reviewing the well-pleaded allegations of the complaint to evaluate whether the elements of the claim are sufficiently alleged. If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (citation omitted).
2. Plaintiff's First Amendment Claim
Plaintiff asserts in Count I that her First Amendment rights were violated. As provided in 42 U.S.C. § 1983:
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 any 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....42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). “The first step in any such claim is to identify the specific constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. 266, 271 (1994). See also Baker, 443 U.S. at 140; Graham v. Connor, 490 U.S. 386, 394 (1989).
The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech.” U.S. Const. Amend. 1. “First Amendment freedoms are protected by the Fourteenth Amendment from invasion by the States.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n.43 (1982).
A public employee's statement is protected from retaliation by the employer under 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.” Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). In Garcetti, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution will not insulate their communications from employer discipline.” 547 U.S. at 421.
Subsequently, the Supreme Court clarified that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.” Lane v. Franks, 573 U.S. 228, 240 (2014) (emphasis added). The Court held that a public employee could not be terminated for providing truthful, sworn testimony under subpoena to a grand jury, even though the testimony concerned matters related to the employee's job. Id. at 238-39. According to the Court, the term “official responsibilities, ” means the responsibilities an employee undertook when he “went to work and performed the tasks he was paid to perform.” Id. at 239. And, the Court cautioned, there is “considerable value” in “encouraging, rather than inhibiting, speech by public employees. For, [they] are often in the best position to know what ails the agencies for which they work.” Id. at 236. The Supreme Court concluded that giving grand jury testimony was not part of that employee's “ordinary job responsibilities” even though the testimony “relate[d] to [the employee's] public employment or concern[ed] information learned during that employment.” Id. at 238.
As held by the Court of Appeals for the Third Circuit:
“‘Whether a particular incident of speech is made within a particular plaintiff's job duties is a mixed question of fact and law.'” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 988 (3d Cir. 2014) (brackets omitted) (quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007), abrogated on other grounds by Borough of Duryea, Pa. v. Guarnieri, ___U.S.___, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011)). Specifically, the scope and content of a plaintiff's job responsibilities is a question of fact, but the ultimate constitutional significance of those facts is a question of law. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1058 (9th Cir. 2013).Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015). See also Hagan v. City of New York, 39 F.Supp.3d 481, 513 (S.D.N.Y. 2014) (refusing to dismiss terminated employee's retaliation claim based on employer's argument that reporting corruption or misconduct was part of her “core” or “ordinary” job responsibilities, concluding that the issue would have to be resolved once the record was complete).
“Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations omitted). While “in one sense the public may always be interested in how government officers are performing their duties, ” that does not transform an employee's issue with his supervisors into a matter of public concern. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 399 (2011).
As stated by the Court of Appeals, “speech that relates solely to mundane employment grievances does not implicate a matter of public concern. In determining whether the speech at issue satisfies this element, courts should take into account the employee's motivation as well as whether it is important to our system of self-government that the expression take place.” Munroe v. Central Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015) (citation omitted). In Munroe, the Court of Appeals affirmed the district court's grant of summary judgment to a teacher who was terminated based on a blog in which she criticized students, holding that it likely did not raise issues of public concern but even if it did, the school district's interest in promoting efficiency and avoiding workplace disruption outweighed the teacher's and public's interest in the speech.
In support of their motion to dismiss, Defendants rely upon Morris v. Philadelphia Housing Authority, 487 Fed.Appx. 37 (3d Cir. 2012), in which the court stated that it had “consistently held that complaints up the chain of command about issues related to an employee's workplace duties-for example, possible safety issues or misconduct by other employees-are within an employee's official duties” Id. at 39. Notably, however, Morris acknowledged that his duties included “the supervision and oversight of various troubled departments at PHA.” Id. at 40. In addition, Morris was decided on a motion for summary judgment with a fully developed record and prior to Lane, which qualified Garcetti by focusing on an employee's “ordinary” job duties.
According to the SAC, Plaintiff reported to Defendant McDonough, and others, that Ms. Bayton, a 9-1-1 dispatcher, regularly slept during her shift. This was not part of Plaintiff's job duties. She asserts that this was a matter of public concern and she made this report as a concerned citizen because Ms. Bayton's responsibilities included responding to 9-1-1 emergency calls. Accepting Plaintiff's allegation as true for purposes of the motion to dismiss, reporting this misconduct was not within her ordinary job duties. Flora, 776 F.3d at 175.
Furthermore, the Supreme Court has recognized that: “Exposing governmental inefficiency and misconduct is a matter of considerable significance.” Garcetti, 547 U.S. at 425. Taking her allegations as true, Plaintiff's report was not a “mundane employment grievance” about her own position, but rather raised a matter of public concern. See also Sassone v. Quartararo, 598 F.Supp.2d 459, 465 (S.D.N.Y. 2009) (teacher's aides who reported co-workers engaged in inappropriate behavior in classrooms spoke on a matter of public concern); Holland v. Board of Cty. Commissioners for Cty. of Bernalillo, 2011 WL 13284606, at *9-10 (D.N.M. Sept. 30, 2011) (plaintiff's reports of a co-worker working and interacting with clients while under the influence of drugs, sleeping on the job, and stealing medication from clients raised an issue of public concern).
By contrast, however, Plaintiff's report that Ms. Bayton was acting in a hostile manner towards her does not raise an issue of public concern and therefore, cannot represent or otherwise support a basis for her First Amendment claim.
3. Qualified Immunity
The individual defendants alternatively assert that they are entitled to qualified immunity. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity is an objective decision to be decided by the court as a matter of law. Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004). The burden of pleading a qualified immunity defense rests with the defendant, not the plaintiff. Thomas v. Independence Township, 463 F.3d 285, 293 (3d Cir. 2006).
“A Government official's conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear' that every ‘reasonable official would have understood that what he is doing violates that right.'” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The ultimate question is whether the state of the law when the offense occurred gave Defendants “fair warning” that their acts were unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002).
In conducting this analysis, the Court should look first to applicable Supreme Court precedent. “Even if none exists, it may be possible that a ‘robust consensus of cases of persuasive authority' in the Court[s] of Appeals could clearly establish a right for purposes of qualified immunity.” Mammaro v. New Jersey Div. Child Protection & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015)).
Defining the right at issue is critical to this inquiry. The court must frame the right “in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201 (2001). “The dispositive question is whether the violative nature of particular conduct is clearly established.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation omitted). But this does not mean that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. The Supreme Court has explained that, “[a]lthough earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Hope, 536 U.S. at 741. Indeed, the Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Id.
As Plaintiff argues, it was clearly established when these events occurred in 2019 that she could not be fired for exercising her First Amendment rights. Moreover, her allegations are not limited to Pilarski's termination of her employment, which she contends was retaliatory as a direct result of her good-faith report of Ms. Bayton's conduct. She also alleges that Brown, Frazier, Sand and McDonough attended her termination hearing (SAC ¶ 43), during which false accusations were made, and that at a pre-disciplinary hearing, she was suspended by Frazier after Sand and Frazier falsely accused her of stealing Ms. Bayton's personal belongings. (SAC ¶¶ 26-27, 29.) All of this conduct is alleged to have been done as a direct result of Plaintiff's exercise of her First Amendment rights, and Plaintiff asserts that Defendants had no adequate justification for the improper, unwarranted and unlawful actions directed toward her.
Defendants note that “for protected conduct to be a substantial or motiving factor in a decision, the decisionmakers must be aware of the protected conduct.” Ambrose v. Township of Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002). They contend that Plaintiff alleges that she was fired by Pilarski, but points to no facts indicating that he was aware of her allegedly protected speech at the time. However, as noted above, this case is at the motion to dismiss stage (unlike Ambrose, which was decided on a post-verdict motion) and the record has not been developed to indicate what any of the Defendants knew. For purposes of a motion to dismiss, Plaintiff has sufficiently alleged a claim agains the individual defendants. If the developed record demonstrates that the individual defendants were unaware of Plaintiff's report at the time they took the actions she challenges, then this issue can be revisited.
In fact, even when qualified immunity is raised in a motion for summary judgment, “the court must ‘adop[t] ... the plaintiff's version of the facts' unless “no reasonable jury could believe it.” Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 259 (2014) (quoting Scott v. Harris, 550 U.S. 372, 378-80 (2007)).
4. Municipal Liability
Defendants argue that to the extent Plaintiff is basing her claim on a theory of vicarious liability, her claim against the County fails as a matter of law because the County cannot be vicariously liable for the unconstitutional acts of its employees. Monell v. Department of Social Servs. of N.Y., 436 U.S. 658, 694 (1978); Groman v. City of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995). Rather, it can only be liable under § 1983 if it maintained a policy, practice or custom that harmed Plaintiffs. Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996).
The Court of Appeals for the Third Circuit has held that a municipality may be liable for the actions of its employees if any of the following is established:
First, the municipality will be liable if its employee acted pursuant to a formal government policy or a standard operating procedure long accepted within the government entity, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989); second, liability will attach when the individual has policy making authority rendering his or her behavior an act of official government policy, Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); third, the municipality will be liable if an official with authority has ratified the unconstitutional actions of a subordinate, rendering such a behavior official for liability purposes, City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005).
Here, Plaintiff alleges that Frazier, Brown, Sand, McDonough and Pilarski acted as policy-making officials within the County with final authority over personnel issues when they made decisions regarding Plaintiff's employment status. (SAC ¶¶ 30, 44, 47, 49.) As such, the allegations of the SAC sufficient plead that their behavior was an act of official government policy, thereby stating a claim against the County.
Defendants also argue that because the five individual defendants are entitled to qualified immunity, Plaintiff cannot state a claim against the County. See Beckinger v. Twp. of Elizabeth, 697 F.Supp.2d 610, 631 (W.D. Pa. 2010) (because if individual defendants were entitled to qualified immunity, the Township likewise could not be liable for their conduct). For the reasons explained above, however, the individual defendants are not entitled to dismissal of the claims against them based upon qualified immunity at this juncture.
Plaintiff has alleged that supervisory personnel retaliated against her for exercising her First Amendment rights by making or supporting the assertion of false claims, suspending her and then terminating her employment. Accepting these allegations as true, as the Court must for purposes of a motion to dismiss, Plaintiff has adequately pleaded a basis for imposing municipal liability on Allegheny County.
For these reasons, with respect to Count I, the motion to dismiss should be denied.
5. Whistleblower Law
Defendants contend that in Count II of the SAC, Plaintiff has failed to state a claim upon which relief can be granted regarding her contention that that the County violated the Whistleblower Law.
The Pennsylvania Whistleblower Law precludes an employer from discharging, threatening or otherwise discriminating or retaliating against an employee in retaliation for the employee's intention to make or past act of making a good faith report, verbally or in writing, to the employer or appropriate authority of an instance of wrongdoing or waste by a public body or another employee or when the employee is requested by an appropriate authority to participate in an investigation, hearing or inquiry held by an appropriate authority or in a court action. 43 P.S. § 1423(a, b). “Wrongdoing” is defined in the statute as: “A violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.” 43 P.S. § 1422.
The elements required to establish a retaliatory termination in violation of the Whistleblower Law are: (1) wrongdoing; (2) a report of wrongdoing; (3) an adverse employment action; and (4) a causal connection between the report of wrongdoing and the adverse employment action. See O'Rourke v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001).
Defendants note that the Whistleblower Law “does not protect every critical or damaging report that an employee may make to or about her employer-only those reports of wrongdoing or waste within a narrower meaning of the statute are protected.” Johnson v. Resources for Human Dev., Inc., 789 F.Supp.2d 595, 601 (E.D. Pa. 2011). In order to state a prima facie case, a plaintiff must point to defendants' violation of a specific statute, regulation, ordinance, or code of conduct or ethics. McAndrew v. Bucks County Bd. of Commissioners, 183 F.Supp.3d 713, 743 (E.D. Pa. 2016); Golaschevsky v. Department of Envt'l Protection, 720 A.2d 757, 759 (Pa. 1998). “The report must provide information that is sufficient to identify the law allegedly violated; reports of vague or subjectively wrong conduct are not considered wrongdoing under the Whistleblower Law.” Sukenik v. Township of Elizabeth, 131 A.3d 550, 555-56 (Pa. Commw. 2016) (citing Riggio v. Burns, 711 A.2d 497, 501 (Pa. Super. 1998)).
According to Defendants, this test is objective. It is irrelevant whether an employee believes the employer's conduct constitutes wrongdoing; an actual violation is required. See Kimes v. University of Scranton, 126 F.Supp.3d 477, 505 (M.D. Pa. 2015). The law that the employer violated must specifically define some prohibited conduct or it cannot be violated in a way that constitutes a “wrongdoing.” Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1072 (Pa. Commw. 2013); Riggio, 711 A.2d at 501-03.
As it relates to the facts in this case, Defendants argue that Plaintiff's report that a co-worker was sleeping on the job does not constitute “wrongdoing” under a specific statute, regulation, ordinance, or code of conduct or ethics. See McAndrew, 183 F.Supp.3d at 744 (plaintiff's complaints included a guard “sleeping on the job” but did not present a reference to a violation of a specific statute, regulation, ordinance, or code of conduct or ethics that would allow the court to identify a law or code specifically violated).
As Plaintiff notes, however, she is not required to cite to a specific statute, code or regulation in order to state a claim under the Whistleblower Law. See Bielewicz v. Penn-Trafford Sch. Dist., 2011 WL 1486017, at *6 (W.D. Pa. Feb. 9, 2011), report and recommendation adopted, 2011 WL 1399839 (W.D. Pa. Apr. 13, 2011) (distinguishing Golaschevsky because case was at the pleading stage and the plaintiff alleged in the complaint that she was retaliated against for questioning the propriety of the defendants' actions, much as Golaschevsky did in his complaint); see also Stoneback v. ArtsQuest, 2012 WL 4963624, at *2 (E.D. Pa. Oct. 17, 2012) (when a store clerk was fired after she reported that certain products were being improperly advertised as having been made in one country when they were in fact made in another, the court held that this was sufficient to state a claim).
Indeed, the court in Golaschevsky noted that he alleged in the complaint only that “he was the victim of improper retaliatory termination because he reported alleged copyright violations by DER employees.” 720 A.2d at 758.
Moreover, all of the cases that Defendants cite in support of their position were decided at the summary judgment stage with a fully developed record. See Golaschevsky, 720 A.2d at 759 (dismissed on summary judgment based on the plaintiff's failure to present sufficient evidence following discovery to connect his report of wrongdoing to his dismissal).
For these reasons, Plaintiff has adequately stated a claim against the County in Count II. Therefore, Defendants' motion to dismiss should be denied.
III. Conclusion
For the reasons cited above, it is recommended that the motion to dismiss filed by the Defendants (ECF No. 37) be denied.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by March 23, 2021. Any party opposing the objections shall file a response by April 6, 2021. Failure to file timely objections will waive the right of appeal.