KLEIN v. COUNTY OF BUCKS et al

Filing 23

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 3/19/2013. 4/1/2013 ENTERED AND COPIES E-MAILED.(sg, )

IN TIIE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM KLEIN,
Plaintiff,

CIVIL ACTION

NO. 12-4809

v.
COUNTY OF BUCKS, et aI.,
Defendants.

MEMORANDUM

Jones, II, J.

March 19, 2013

William Klein, a former Bucks County Deputy Sheriff, brings this action against the
County of Bucks, Bucks County Commissioners Robert G. Loughery, Charles H. Martin, and
Diane M. Ellis-Marseglia, LCSW (collectively "the Commissioners"), Sheriff Edward Donnelly,
Chief Deputy Sheriff Dennis Shook and Lieutenant Thomas WaItman. His Amended Complaint
asserts claims of retaliation under the Pennsylvania Whistleblower Law ("PWL"), retaliation
under the First Amendment pursuant to 42 U.S.C. § 1983, and a violation of the Family and
Medical Leave Act ("FMLA"). Presently before this Court is Defendants' Motion to Dismiss
the PWL and § 1983 claims, as well as the request for punitive damages in the FMLA claim. For
the reasons that follow, the Motion is granted in part.

I.

LEGAL STANDARD
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all factual

allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief." Phillips v. Cnty. ofAllegheny, SIS F.3d 224, 233 (3d Cir. 2008). Mer the Supreme

Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "threadbare
recitals of a cause of action's elements, supported by mere conclusory statements" do not suffice.

Ashcroft v. Iqbal, 556 U.S. 662,663 (2009). "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable of the alleged misconduct." Id. (citing Twombly, 550 U.S. at 556). This standard, which
applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted
unlawfully." Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203,210 (3d Cir. 2009)
("All civil complaints must contain more than an unadorned the-defendant-unlawfully-harmed­
me accusation."). Moreover, "the factual detail in a complaint [must not be] so undeveloped that
it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule
8 [of the Federal Rules of Civil Procedure]." Villegas v. Weinstein & Riley, P.s.., 723 F. Supp.
2d 755, 756 (M.D. Pa. 2010) (quoting Phillips, 515 F.3d at 232).

II.

FACTS
Klein began working as a Bucks County Deputy Sheriff on June 12, 2006. (Am. Compl.

~

15.) In 2010, Klein reported to Deputy Oliver Groman that Lt. French, a firearms instructor

and armorer for the Sheriffs Department ("Department") was not certified for this position. (Id.
~

18.) Also in 201 0, due to his concern for the safety of officers and citizens, as well as legal

liability for the County, Klein made complaints to Defendants Commissioner Diane M. Ellis­
Marseglia and Sheriff Edward Donnelly that the Department did not have policies and
procedures related to the use of force, detention, and other procedures. (Id.
made these complaints, Klein was assigned to the open warrants unit. (Id.

~

~

28.) At the time he

31.) He alleges that

two other members of this unit, Deputy James McAndrew and Sergeant Gary Browndorf, also
made complaints about corruption. (Id.

~

32.) Shortly after making his complaints, the software

2

Klein used in his work was discontinued by Defendants, making his work more difficult, and
when his computer malfunctioned it was neither repaired nor replaced. (Id.

~

35.) When the

vehicle he used for work was damaged it was not repaired and he had difficulty obtaining
gasoline. (Id.

~

37.) He was criticized for failing to sign in and out and other minor issues which

had never before been raised. (Id.

~

39.) He also alleges that a private investigator began a

yearlong investigation into his activities, which was paid for by a Bucks County political
fundraiser and the girlfriend of "Defendant French.,,1 (Id. ~ 40.)
On October 15, 2010, Klein was stabbed by a criminal while attempting to serve a
warrant. (Id.
heart. (Id.

~

~

42.) He alleges he was recommended for, but denied, the law enforcement purple

43.) He also alleges that Defendants chose to challenge whether his injury was

work related for purposes of worker's compensation benefits. (Id.

~

44.)

In February 2011, Klein gave testimony on behalf of Sgt. Browndorf, who was brought

up on disciplinary charges, and thereafter filed a grievance against the County. (Id.

~~

45-46.)

He alleges that Defendant Lt. Waltman screamed at him that he would not be compensated for
his time testifying at the hearing. (/d.

~

47.) In March 2011, upon learning that Lt. French was

not a certified armorer, Klein inspected a number of weapons and determined that they were not
properly maintained, repaired or inspected. (Id.

~

50.) He informed Sheriff Donnelly of his

findings, but was told "don't worry about it, it's in the past." (/d.
response, he notified a County investigator. (Id.

~

~

51.) Not satisfied with this

52.) Sheriff Donnelly thereafter sent Klein an

email advising him not to send out any documents, reports or memos to any person or agency
outside the Department without his approval. (Id.

~

53.) In the summer of2011, Klein alleges

he was criticized for his paperwork and complained that his work vehicle was unsafe. (Id.

~~

56­

57.) Soon after making these complaints, he was transferred from the warrant unit to the
1 There

is no defendant named "French" listed in the Amended Complaint.
3

detention unit, the least desirable unit for a deputy sheriff. (Id.
certain shift, his request was denied. (Id.

~~

~

58.) When he requested a

58-59.) He was also denied a request for vacation

time and his key to the armory was taken away. (Id.

~~

60-61.) While working in the detention

unit, he observed another armed deputy asleep in court while he was guarding prisoners. (Id.

~

63.) He reported the conduct and was told he was a troublemaker and had ratted out a fellow
union member. (Id.

~~

65-66.)

On July 28,2011, while still assigned to the warrant unit, Klein witnessed Sgt.
Browndorf assault a person he was arresting. (Id.

~~

67-71.) He alleges that at this time the

Department had no policy or procedure related to the use of force or reporting the use of force.
(Id.

~

70.) The Department did have a custom or practice that (1) the officer in charge was to

prepare all written documents related to the arrest and (2) subordinate officers did not prepare
such documents. (Id.

~~

76-77.) The incident led to a grand jury proceeding and Klein was

called to give testimony on September 22,201 L (Id.

~

82.) He alleges that "[oJutside of his

duties as an officer, and not as part of his subpoenaed testimony," he told the grand jury that the
County had no policies, procedures or written rules of conduct related to the use of force,
reporting the use of force, and other important safety matters. (Id.

~

83.)

On August 1,2011, Defendant Shook was hired as Chief Deputy Sheriff of Bucks
County. (Id.

~~

11, 88.) On Shook's first day in office, Klein met with him to discuss the

complaints he had made and the retaliation he had suffered. (Id.) On November 15, 2011,
Shook interviewed Klein about the incident that occurred on July 28, 201 L (Id.

~

90.) Klein

alleges that Shook terminated him from his employment on February 21,2012, but that he was
not notified of the termination until March 8, 2012. (Id.

~~

91-92.) The reason for his

termination was his failure to report the July 28,2011 assault by Sgt. Browndorf. (Id.

~

92.)

4

Klein alleges that this reason was a pretext for the complaints he had made and his grand jury
testimony about Department policies and procedures. (Id.

~

93.) Finally, he alleges that the

Commissioners, who had final decision-making authority for Bucks County and the Department
during the relevant time period (id.

~

9), had knowledge of his speech and the other Defendants'

acts of retaliation, but did not take any action against any of the other Defendants for their
retaliatory treatment toward him. (Id.

III.

~~

94-95.)

DISCUSSION
a.

The PWL Claim

Defendants argue that Klein's allegations that he was terminated after making complaints
about the Department must be dismissed because he fails to sufficiently plead that his acts of
whistleblowing were causally connected to his termination. Specifically, Defendants point to the
time lapse between the bulk of Klein's complaints and his termination to support their argument
that he has failed to plausibly plead causation. 2 While many of Plaintiff allegations discuss acts
of whistleblowing that are temporally remote from the date of his termination from employment,
the Amended Complaint does contain sufficient allegations of timely whistleblowing activity,
combined with a historical pattern of antagonism, to support causation under the PWL.
The PWL provides that "[n]o employer may discharge, threaten or otherwise discriminate
or retaliate against an employee ... because the employee ... makes a good faith report or is

2 This Court notes that the PWL contains a short ISO day statute of limitations period.
See 43 P.S. § 1424(a) (stating "A person who alleges a violation of this act may bring a civil
action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both,
within ISO days after the occurrence of the alleged violation."), The lSO-day period is
mandatory, and courts have no discretion to extend this time period. Jackson v. Lehigh Valley
Physicians Grp., Civ. A. No. OS-3043, 2009 WL 229756, at *7 (E.D. Pa. Jan. 30, 2009)
(collecting cases). Klein filed this action on August 20, 2012. While Defendants assert the
whistleblowing activity was too temporally remote to demonstrate causation, there is no
argument that the action, which was filed on the IS0th day following Klein's termination, is
untimely.

5

about to report, verbally or in writing, to the employer or appropriate authority an instance of
wrongdoing or waste." 43 P.S. § 1423(a). The Pennsylvania Supreme Court has held that, "to
make out a prima facie case of retaliatory termination pursuant to the Whistleblower Law, a
plaintiff must 'show by concrete facts or surrounding circumstances that the report [of
wrongdoing or waste] led to [the plaintiffs] dismissal, such as that there was specific direction
or information received not to file the report or [that] there would be adverse consequences
because the report was filed. '" Golaschevsky v. Dep't of Envt 'I Protection, 720 A.2d 757, 759
(Pa. 1998) (quoting Gray v. Hafer, 651 A.2d 221, 225 (Pa. Cmmw. Ct. 1994). Under the PWL,
"wrongdoing includes not only violations of statutes or regulations that are 'of the type that the
employer is charged to enforce,' but violations of any federal or state statute or regulation, other
than violations that are 'of a merely technical or minimal nature.'" [d. (citing 43 P.S. § 1422
(1986)).

In order to make out a case of retaliatory termination, a plaintiff must plead: (1)

wrongdoing, and (2) a causal connection between the report of wrongdoing and dismissal.
Forrest v. Owen J Roberts Sch. Dist., Civ. No. 09-3014, 2011 WL 1549492, at *13 (E.D. Pa.

Apr. 1,2011) (citing Golaschevsky, 720 A.2d at 759).
At first blush, Klein's allegations of wrongdoing in 2010 and 2011, and his complaints to
superiors about them during that time frame, appear too distant in time to support the causation
element of a PWL claim based upon his termination in February 2012. Specifically, his
complaints that (1) the firearms instructor and armorer lacked the necessary certification; (2) the
Department did not have policies and procedures related to the use of force, detention, and other
procedures; (3) weapons were not properly maintained, repaired or inspected; (4) his work
vehicle was unsafe; (5) he gave grand jury testimony criticizing the County for having no
policies, procedures or written rules of conduct related to the use of force, reporting the use of

6

force, and other important safety matters; and (6) he had suffered retaliation (made to Chief
Shook on Shook's first day of duty), are temporally remote from the termination of his
employment on February 21,2012. A significant lapse in time between whistleblowing activity
and an employer's adverse action can lead to a finding that there is no causation between the
two. See, e.g., Moyer v. Pa. Turnpike Comm 'n, Civ. A. No. 10-456,2010 WL 5174963, at *9
(M.D. Pa. Dec. 15,2010) (holding that eight month time span between whistleblowing and
termination was clearly insufficient to establish a causal connection); Gooden v. Pennsylvania,
Civ. A. No. 10-3792,2010 WL 5158996, at *5 (E.D. Pa. Dec. 10,2010) (speech occurring three
years before employment contract was not renewed was so distant in time from the alleged
retaliation that the amended complaint did not "suggest" causation). However, where the
plaintiff alleges a pattern of employer antagonism over time arising from the whistleblowing
activity, courts will not ignore earlier incidents. See Wise v. Pennsylvania Dep't of Transp., Civ.

A. No. 07-1701, 2010 WL 3809858, at *15 (W.D. Pa. Sept. 23,2010) (holding in a § 1983 claim
that retaliatory action nine months after employee report of waste was not itself suggestive of a
causal link between the two events; however, defendants' pattern of antagonism spanning the
nine-month time period after plaintiffs initial report of wrongdoing was sufficient for a
reasonable jury to find causation (citing Malone v. Economy Borough Mun. Auth., 669 F. Supp.
2d 582, 603-04 (W.D. Pa. 2009) (finding seven-month time span alone was not unusually
suggestive oftemporal proximity between protected activity and an alleged retaliatory act, but
holding that a pattern of antagonism coupled with a seven-month period between the protected
activity and retaliatory act satisfied the causation element»). Accepting as true Klein's
allegations that he was consistently subjected to adverse treatment once he began raising
complaints of impropriety within the Department, this Court finds that the pattern of antagonism,

7

coupled with the timing of his tennination approximately three months after his grand jury
testimony, is sufficient to raise a plausible inference of causation based upon the entire record.
b.

3

The Section 1983 Claim

Defendants raise several arguments concerning Klein's § 1983 claim that he suffered
retaliation at the hands of state actors as a result of exercising his free speech rights pursuant to
the First and Fourteenth Amendments. Specifically, they assert (1) that he was not engaged in
protected speech~ (2) that even ifhe were engaged in protected speech, he has failed to
sufficiently assert facts to establish municipal liability or that the Commissioner Defendants or
Lt. Waltman were personally involved in the alleged constitutional violation; and (3) that the
individual defendants are entitled to qualified immunity.
1.

Protected Speech

The United States Court of Appeals for the Third Circuit recently had occasion to
reiterate the law governing First Amendment retaliation claims:
Our jurisprudence governing political association retaliation claims under
the First Amendment has its origins in the Supreme Court's "trilogy" of "political
patronage cases." Goodman v. Pa. Tpk. Comm 'n, 293 F.3d 655, 663 (3d CiT.
2002) (citing Elrod v. Burns, 427 U.S. 347 (1976); Branti v. Finkel, 445 U.S. 507
(1980); Rutan v. Republican Party ofIll., 497 U.S. 62 (1990)). From these cases
and their progeny, "we have derived a three-part test to establish a claim of
discrimination based on political patronage in violation of the First Amendment."
Galli v. N.J Meadowlands Comm 'n, 490 F.3d 265, 271 (3d Cir. 2007). First, the
Defendants also argue that the PWL claim should be dismissed against the
Commissioner Defendants because the Commissioners have no authority to tenninate a deputy
sheriff and thus cannot be liable for any retaliatory act against Klein. (Def. Mem. at 14 n.9
(citing 16 P.S. §§ 3450(b), 4203, and 4205)). This citation misses the mark. The PWL provides
its own definition of an "employer" that may be subject to liability thereunder. See 43 P.S. §
1422 (defining an "employer" to be a "person supervising one or more employees, including the
employee in question; a superior of that supervisor~ or an agent of a public body; and defining a
"public body" to include a "county, city, township, regional governing body, council, school
district, special district or municipal corporation, or a board, department, commission, councilor
agency"). As Klein has pled that the Commissioners have "final decision-making authority" (see
Am. CompI. ~ 9), they may plausibly meet the definition of his employer for purposes of the
PWLclaim.
3

8

plaintiff must establish that "she was employed at a public agency in a position
that does not require political affiliation." /d. Second, the plaintiff must show
that she engaged in conduct protected by the First Amendment. /d. And finally,
the plaintiff must prove that the constitutionally-protected conduct was a
substantial or motivating factor for the adverse employment action. Id.
Montone v. City ofJersey City, Nos. 11-2990, 11-3516,2013 WL 856359, at *4-5 (3d Cir.

March 8,2013). Under the second prong ofthe test, "[a] public employee's statement is
protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement
involved a matter ofpublic 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 ofthe statement he made." Hill v. Borough ofKutztown, 455 F.3d 225,241-42 (3d
Cir. 2006) (quoting Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 1958 (2006)).
Importantly, a "public employee does not speak 'as a citizen' when he makes a statement
'pursuant to [his] official duties.'" Id. at 242 (quoting Garcetti, 126 S.Ct. at 1960). "'Whether
an employee's speech addresses a matter of public concern must be determined by the content,
form, and context of a given statement, as revealed by the whole record. '" Id. (quoting Rankin v.
McPherson, 483 U.S. 378,384 (1987) (quoting Connick v. Myers, 461 U.S. 138, 147-48

(1983))).
This Court concludes that several of Klein's statements do not qualify as protected
speech. 4 Klein's complaints concerning the internal operations of the Department are alleged to
have been communicated in his capacity as an employee and not as a citizen. Specifically, the
two sets of allegations concerning his contention that firearms instructors lacked proper
certification were voiced in his official capacity and were communicated to his superiors at the
Department as part of his duties. (Am. Compl. ~~ 17-27; 50-55.) His complaint that the

4 Defendants make no argument concerning the other two prongs of the Supreme Court's
"trilogy."

9

Department did not have policies and procedures related to the use of force were also voiced in
his capacity as a Department member to his Department supervisors and their elected superiors.
(Id.

~~

28-29.) The stabbing incident involved no allegation of protected speech. (!d.

~~

42-44.)

His allegation concerning a sleeping deputy, although arguably involving an issue of public
safety concern, is also alleged to have been voiced in his official capacity "up the chain of
command." (Id.

~~

63-66.) Accordingly, Defendants' Motion is granted with regard to these

allegations.
Conversely, the allegations concerning Klein's testimony at the Browndorf disciplinary
hearing (id.

~~

45-49) and his grand jury testimony regarding the Browndorf assault (id.

~~

67­

83) satisfy the second prong of the Third Circuit's three-part Galli test to establish a claim of
discrimination based on political speech. See Reilly v. City ofAtlantic City, 532 F.3d 216, 231
(3d Cir. 2008) (stating "When a government employee testifies truthfully, slbe is not 'simply
performing his or her job duties,' Garcetti, 547 U.S. at 423, 126 S.Ct. 1951; rather, the employee
is acting as a citizen and is bound by the dictates of the court and the rules of evidence. Ensuring
that truthful testimony is protected by the First Amendment promotes 'the individual and societal
interests' served when citizens play their vital role in the judicial process. Id. at 420, 126 S.Ct.
1951. Thus, the principles discussed in Garcetti support the need to protect truthful testimony in
court."). Having found that these incidents plausibly constitute protected speech, the next
question to be addressed is whether Klein has sued the appropriate defendants.
2.

Municipal Liability

Bucks County and the Commissioners, who allegedly had final decision-making
authority for the County (see Am. Compl. ~ 9), argue that, for the claims that can be read to
assert protected speech, Klein has failed to allege any facts to trigger municipal liability under §

10

1983. 5 "[T]here are two ways that a plaintiff can establish municipal liability under § 1983:
policy or custom." Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir. 2007). Policy is
established when it is shown that "a decision maker possessing final authority to establish
municipal policy with respect to the action" has "issue[ d] an official proclamation, policy, or
edict." Id. (quoted case, internal quotation marks, and internal brackets omitted). A custom is
established when, in the absence of a formal policy, it can be shown "that a given course of
conduct ... is so well settled and permanent as virtually to constitute law." Id. at 156 (internal
quotation marks and quoted case omitted). Custom is usually established by knowledge and
acquiescence, id., that is, knowledge by the policymaker of an unconstitutional practice by lower
level employees and acquiescence in that practice. See Beck v. City ofPittsburgh, 89 F.3d 966,
972 (3d Cir. 1996) (custom is established by policymakers being "aware of similar unlawful
conduct in the past, but fail[ing] to take precautions against future violations") (quoted case
omitted). In either case, the '''plaintiff must show that an official who has the power to make
policy is responsible for either the affirmative proclamation of a policy or acquiescence in a
well-settled custom.'" Watson, 478 F .3d at 156. A plaintiff must also prove that the policy or
custom was the proximate cause of the injury. Id.
Klein has failed to meet his burden of plausibly alleging that the County and the
Commissioners as its political authority had a custom of retaliation against whistleblowers. The

This Court notes that Klein has failed to specify in his Amended Complaint whether he
sues the Commissioners in their official or individual capacities. From his allegation that the
Commissioners constitute "the political authority for the County" (see Am. Compl. ~ 8), this
Court infers that Klein has sued them in their official capacities. Accordingly, his claims against
them must be deemed to be claims against the County itself. See Monell v. Dep 't ofSoc. Servs.,
436 U.S. 658, 691 n.55 (1978) (holding that a suit against public officers in their official
capacities "generally represent[s] only another way of pleading an action against an entity of
which an officer is an agent ...."). However, in the forthcoming section discussing the
allegations of personal involvement of each defendant, this Court will also address whether Klein
has plausibly plead claims against the Commissioners in their individual capacities.
5

11

Amended Complaint's only factual allegations of policy and custom are that: (1) the Department
had a custom and practice that the officer in charge of an investigation, and not any subordinate
officer, prepared all written documents related to an arrest (Am. Compl. 111176-77); (2) the
Department had no policy concerning the use of force or reporting the use of force (id. 11 83); and
(3) the Commissioners, as the governing authority for the County, had a policy or custom of
retaliating against members of the Department who spoke out about problems in the Office or
testified adversely to the County and the Department. (Id. 1199.) The first two allegations do not
concern facts that might raise a plausible inference of municipal liability under § 1983 for
retaliation. The third allegation states only a legal conclusion. To support his claim, Klein
argues in his Response only that the County had a "pattern of retaliatory practices against

Plaintiff[that] were sufficiently continuous and prevalent to constitute [a] custom." (Resp. at 10
(emphasis added).6) The allegations that Klein himself was the subject of retaliation are clearly
insufficient to allege a well settled and permanent custom. See Oklahoma City v. Tuttle, 471
U.S. 808, 823-24 (1985) ("Proof of a single incident of unconstitutional activity is not sufficient
to impose [municipal] liability ... , unless proof of the incidents includes proof that it was
caused by an existing, unconstitutional municipal policy, which policy can be attributed to a
municipal policymaker. ..."); see also Turner v. City ofPhiladelphia, 22 F. Supp. 2d 434, 437
(E.D. Pa. 1998) (stating that where plaintiff did not identify any incident other than the one in
which he was himself involved that would tend to show the existence of a custom of acquiescing
6 Klein also cites to several paragraphs of his Amended Complaint to support his
argument that he has adequately alleged a custom of retaliation based on assertions that other
deputies who made complaints about corruption in the Department, namely Deputy McAndrew
and Sgt. Browndorf, also suffered retaliation. (Resp. at 10-11 (citing Am. Compl. 1111 31,45­
46).) Nothing in the cited paragraphs asserts retaliation against these individuals for exercising
their First Amendment rights. Browndorf is alleged to have been the subject of a disciplinary
hearing, but Plaintiff does not allege why he was so disciplined. (Am. Compl.1I45.) While
Klein asserts that McAndrew made complaints, there is no allegation that McAndrew suffered
any retaliation. (Id. 1132.)
12

in unconstitutional behavior, it was not a fair inference that authority had such a custom).
Accordingly, the § 1983 retaliation claim fails to state a claim upon which relief may be granted
against the County and the Commissioners in their capacities as its political authority.
3.

Personal Involvement

In order for § 1983 liability to be appropriate, "[a] defendant in a civil rights action must
have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on
the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347,353 (3d Cir. 2005)
quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Personal involvement "can
be shown through allegations of personal direction or of actual knowledge or acquiescence," and
must be pled with partiCUlarity. Id., see also Boykins v. Ambridge Area Sch. Dist., 621 F.2d 75,
80 (3d Cir. 1980) (holding civil rights complaint adequate where it states time, place, conduct
and persons responsible); Hall v. Pa. State Police, 570 F.2d 86, 89 (3d Cir. 1978) (holding a
plaintiffs mere assertions that his rights have been violated "without facts upon which to assess
the substantiality of the claim" were insufficient to support a § 1983 action).
The allegations against Defendants Loughery and Martin clearly fail this test. Other than
the introductory paragraph identifying them as Commissioners, Klein makes no mention of them
at all in the Amended Complaint. The allegations against Defendant Ellis-Marseglia also fail.
Klein alleges only that he complained to her that the Department did not have policies and
procedures related to the use of force, detention, and any other procedures. (Am. Compl. ~ 28.)
He makes no allegation that she personally retaliated against him. Indeed, as with the other
Commissioners, Klein only makes the conclusory allegations that each "[u]pon information and
belief ... had knowledge of all of the speech made by the Plaintiff and all of the retaliation on
behalf of the Defendants," and failed to take any action against the other Defendants for their

13

retaliatory treatment toward him. (Id. ~~ 94-95.) While pleading upon information and belief
has been held to be appropriate under the Twombly/Iqbal regime where the facts required to be
pled are uniquely in the control of the defendant, see Wright v. Lehigh Valley Hosp. & Health

Network, Civ. A. No. 10-431,2011 WL 2550361, at *3 (E.D. Pa. June 23,2011) (citing
Brinkmeier v. Graco Children's Prods. Inc., Civ. A. 09-262, 2011 WL 772894, at *6 (D. Del.
Mar. 7, 2011), Simonian v. BUstex, Inc., Civ. A. 10-1201,2010 WL 4539450, at *3 (N.D. Ill.
Nov. 3, 2010) (recognizing that nothing in Twombly or Iqbal suggests that pleading on
information and belief is "necessarily deficient"», where "these averments are merely 'a
formulaic recitation of the elements of a cause of action' ... [r]eUance by [Plaintiff] on
information and belief cannot transform legal conclusions into plausible factual allegations." Id.
at *3 (citing Essex Ins. Co. v. Miles, Civ. A. 10-3598,2010 WL 5069871, at *3 (E.D. Pa. Dec. 3,
2010) (quoting Iqbal at 1950». That is exactly the problem with Klein's allegations against the
Commissioners: a conclusory recitation that they had knowledge of the alleged retaliation of
other Defendants and failed to take any action, fails to state any actual facts. Accordingly, the §
1983 claim against them must be dismissed.
Similarly, the claim against Lt. Waltman is subject to dismissal. The only allegation of
personal involvement against him is that Waltman "screamed" at Klein that he would not be paid
for the time he spent testifying at the Browndorf disciplinary hearing, and that Klein testified to
the hearing panel that he heard Waltman say "it doesn't matter whether Browndorf did anything
wrong or not, the Sheriff said to find him guilty no matter what." (Am. CompI.

~~

47-48.)

Importantly, Klein makes no allegation that he was entitled to be paid for his time at the hearing
or that he actually was not paid for his time at the hearing. Thus, there is no plausible allegation
that Waltman retaliated against him based upon his exercising his right to testify.

14

4.

Qualified Immunity

Finally, this Court must address whether Klein's remaining viable First Amendment
allegations, concerning retaliation arising from his testimony at the Browndorf disciplinary
hearing and his grand jury testimony regarding the Browndorf assault, plausibly establish that the
remaining Defendants on the claim, Sheriff Donnelly and Chief Deputy Sheriff Shook,
knowingly violated his clearly established First Amendment rights. The doctrine of qualified
immunity protects governmental defendants "from undue interference with their duties and from
potentially disabling threats ofliability." Elder v. Holloway, 510 U.S. 510, 514 (1994). The
doctrine applies unless Klein sufficiently pleads that these Defendants violated his "clearly
established statutory or constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). In accordance with this doctrine, government

officials will be immune from suit in their individual capacities unless, "taken in the light most
favorable to the party asserting the injury, ... the facts alleged show the officer's conduct
violated a constitutional right" and "the right was clearly established" at the time of the
objectionable conduct. Saucier v. Katz, 533 U.S. 194,201 (2001). "The relevant dispositive
inquiry in determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533
U.S. at 202. This inquiry "must be undertaken in light of the specific context ofthe case." Id. at
201. Accordingly, "to decide whether a right was clearly established, a court must consider the
state of the existing law at the time of the alleged violation and the circumstances confronting the
officer to determine whether a reasonable state actor could have believed his conduct was
lawful." Kelly v. Borough a/Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Courts may exercise
their discretion in deciding which of the two prongs of the qualified immunity analysis should be

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addressed first in consideration of the circumstances presented by the particular case at hand.

Pearson v. Callahan, 555 U.S. 223,236 (2009).
Klein has plausibly alleged that (1) he suffered retaliation from his testimony at the
disciplinary hearing and before the grand jury, and (2) at the time he was retaliated against it was
clearly established law of which a reasonable Sheriff or Chief Deputy Sheriff would have known
that such testimony could not be the basis of an adverse employment action by a public entity
employer. The Supreme Court's "trilogy of political patronage cases" referenced above had all
been decided well before the events described in the Amended Complaint, as had the Third
Circuit's decision in Reilly, holding that such testimony qualifies as protected speech because a
governmental employee acts as a citizen when giving such testimony. Accordingly this portion
of Klein's § 1983 claim may proceed.
c.

Punitive Damages Under the FMLA

Finally Defendants move to dismiss Klein's claim for punitive damages on his Family
and Medical Leave Act claim. Although the Third Circuit has yet to address the subject of
punitive damages in an FMLA claim, the statute itself lists the types of damages available and
does not include punitive damages among them. 29 U.S.C. § 2617(a). Courts within the Third
Circuit have repeatedly interpreted the FMLA to disallow claims for punitive damages. See, e.g.,

Freeman v. Philadelphia Housing Auth., Civ. A. No. 12-1422,2012 WL 3235323, at *10 (B.D.
Pa. Aug. 8,2012); Cullison v. Dauphin Cnty., Pa., Civ. A. No. 10-705,2012 WL 3027776, at
*19 (M.D. Pa. May 18,2012); Haiden v. Greene Cnty. Career & Tech. Ctr., Civ. A. No. 08­
1481,2009 WL 2341922, at *4 (W.D. Pa. July 27,2009); Spain v. Colonial Penn Ins. Co., Civ.
A. No. 97--4010, 1997 WL 773053, at *2-3 (B.D. Pa. Dec.12, 1997). Given this body of
jurisprudence, and Klein's failure to make any argument to support a contrary position, this

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Court likewise agrees that punitive damages are unavailable under the FMLA. As such, this
portion of Defendants' Motion is granted and the claim for punitive damages under the FMLA is
dismissed.

IV.

CONCLUSION
Defendants' Motion to Dismiss the Amended Complaint is granted in part.

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Count I of

the Amended Complaint, asserting a claim pursuant to 42 U.S.C. § 1983 is dismissed except to
the extent that Klein alleges a violation of his free speech rights stemming from his tennination
by Defendants Donnelly and Shook as a result of his testimony at the Browndorf disciplinary
hearing and his grand jury testimony regarding the Browndorf assault. The balance of Count I's
allegations are dismissed as to all other Defendants. Klein's claim for punitive damages on
Count III, his Family and Medical Leave Act claim, is also dismissed. The Motion is denied in
all other respects. An appropriate order follows.

Because Klein has already had the opportunity to amend his complaint in the face of the
same arguments raised by Defendants in the instant Motion to Dismiss, and failed to correct the
defects identified by Defendants and found valid herein, this Court finds no cause to grant an
additional opportunity to amend the pleading.
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