NEGRON v. THE SCHOOL DISTRICT OF PHILADELPHIA
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 7/31/2013. 8/1/2013 ENTERED AND COPIES E-MAILED. (ems)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LUIS M. NEGRON
THE SCHOOL DISTRICT OF
: CIVIL ACTION
: NO. 13-cv-00169
July 31, 2013
This action arises out of a claim by plaintiff, Luis M. Negron, that defendant, the School
District of Philadelphia (“School District”), violated Pennsylvania law when it relied on
information in Negron’s criminal record in deciding to terminate his employment as a special
education teacher. Specifically, Negron claims that the School District’s actions violated article
I, section 1 of the Pennsylvania Constitution (count I) and section 9125 of Pennsylvania’s
Criminal History Record Information Act, 18 Pa. Cons. Stat. Ann. § 9125 (count II). Negron
also claims his discharge amounted to wrongful termination under Pennsylvania common law
(count III). Before me is the School District’s motion to dismiss counts II and III pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, I will grant the
School District’s motion to dismiss in its entirety; however, I will also grant Negron’s request for
leave to file an amended complaint with respect to count II.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The facts contained in Negron’s complaint are scant. Negron alleges that he applied for a
position as a special education teacher with the School District prior to September 2009.
(Compl. ¶ 8.) At one point during the application process, Negron was asked to complete an
employment application, in which one of the questions was, “Were you ever convicted of a
crime?” (Id. ¶ 8.) A conviction was defined as “an adjudication of guilt . . . which results in a
fine, sentence or probation.” (Id.) The application stated that an applicant “may omit . . . any
convictions for which you successfully completed an Accelerated Rehabilitative Disposition
[“ARD”] Program.” (Id.)
Negron’s criminal record amounted to two charges, both of which he received in January
1999. (Id. ¶ 9.) For both charges, he alleges that he successfully completed an ARD program.
(Id.) Thus, on his application, Negron stated that he did not have any prior convictions. (Id. ¶
10.) Following the application process, Negron began his job with the School District on
September 1, 2009. (Id. ¶ 7.)
On January 28, 2011, the School District terminated Negron’s employment. (Id. ¶ 11.)
Negron alleges that the School District discovered the charges from January 1999 on his criminal
record and then fired him for making misrepresentations regarding his criminal history on the
application. (Id. ¶ 12.) Negron states that after the School District informed him as to its reason
for terminating his employment, he provided the School District with documentary proof that he
completed ARD programs for both charges; thus, he argues that the charges were not
convictions, and therefore he did not make any misrepresentations on his employment
application.1 (Id. ¶ 12.) Negron maintains that the School District’s proffered reason for firing
him is false and pretextual, and that the decision was motivated at least in part by his criminal
history. (Id. ¶¶ 12–13.)
On January 11, 2013, Negron filed a complaint in the Eastern District of Pennsylvania,
alleging that the School District’s actions violated article I, section 1, of the Pennsylvania
Constitution (count I), as well as Pennsylvania’s Criminal History Record Information Act
(“CHRIA”), 18 Pa. Cons. Stat. Ann. § 9125 (count II). Negron also claimed that his discharge
constituted wrongful termination under Pennsylvania common law (count III). On April 23,
2013, I issued an order giving the School District until June 3, 2013, to answer or otherwise
respond to Negron’s complaint. On June 3, 2013, the School District filed a motion to dismiss,
seeking to dismiss counts II and III of the complaint for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
In deciding a motion to dismiss under 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. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks and citation omitted). The pleading standard of Rule 8 “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere
At the Rule 16 conference on May 7, 2013, the court urged the parties to get copies of
the actual criminal records from the Montgomery County Clerk of Courts and to send a copy to
the court. They agreed to do so, but neither has complied thus far.
conclusory statements” will not suffice. Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). The complaint must contain sufficient factual matter to be plausible on its
face. See id. “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 for the misconduct
alleged”; a sheer possibility that a defendant acted unlawfully is not sufficient. Id. Therefore, to
survive a motion to dismiss, a plaintiff must allege facts sufficient to “nudge [his or her] claims
across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
The School District seeks to dismiss count II and III, which allege a violation of the
CHRIA and wrongful termination under Pennsylvania common law, respectively. It does not
challenge count I, Negron’s claim that his termination violated article I, section 1, of
Pennsylvania’s Constitution. I will address the School District’s motion to dismiss counts II and
III in order.
Count II: Violation of CHRIA
Section 9125 of the CHRIA states the following:
(a) General rule.--Whenever an employer is in receipt of information which is part
of an employment applicant’s criminal history record information file, it may use that
information for the purpose of deciding whether or not to hire the applicant, only in
accordance with this section.
(b) Use of information.--Felony and misdemeanor convictions may be considered
by the employer only to the extent to which they relate to the applicant’s suitability
for employment in the position for which he has applied.
(c) Notice.--The employer shall notify in writing the applicant if the decision not to
hire the applicant is based in whole or in part on criminal history record information.
18 Pa. Cons. Stat. Ann. § 9125.
The School District argues that Negron’s claim fails as a matter of law because the
CHRIA applies only to hiring decisions, not decisions to terminate an employee after he has
already been hired. (Mot. to Dismiss 4–5.) Negron counters that while the statute may speak
only to hiring decisions, the intent of the legislature was to protect people with criminal records
from being discriminated against in the entire context of employment. (Resp. 5.) He claims that
the “broad principle” of the CHRIA is that criminal record information may be used only to
determine “suitability for employment” of an applicant, a principle not specific to hiring
decisions. (Resp. 4.) Negron also posits in his brief that he worked for the School District as a
probationary employee, and was only to be considered “hired” if he successfully passed a
criminal background check. (Id.) Because the School District relied on his criminal history
record information in terminating his probationary status, Negron argues he was never actually
hired, and accordingly, that his termination constituted a hiring decision. (Id. at 2 & n.2.)
There is little case law interpreting the scope of section 9125 of the CHRIA. Negron
relies on the Pennsylvania Superior Court’s language from Cisco v. United Parcel Services, Inc.,
476 A.2d 1340 (Pa. Super. Ct. 1984), to bolster his “broad principle” argument that the CHRIA
prohibits employers from relying on an employee’s criminal record with respect to both hiring
and firing decisions. I find Cisco, however, to be inapposite. There, the United Parcel Service
(“U.P.S.”) discharged and refused to rehire an employee who had been accused of theft and
trespass during one of his deliveries, only later to be acquitted of the charges. See id. at 1340–41.
Although the Superior Court stated that the CHRIA “lends support” to the argument that “the
guarantee [of the presumption of innocence] carries little or no impact if an individual may be
arbitrarily discharged from his source of livelihood merely because of a [criminal] accusation,”
Cisco, 476 A.2d at 1343, it failed to find that the CHRIA supported a public policy exception to
wrongful termination given the facts of that case. The court specifically noted that U.P.S.’s
action in terminating the plaintiff’s employment was “not a hiring situation . . . but a discharge
and refusal to rehire,” hence distinguishing the case from other situations where the CHRIA had
provided an employee protection. Id. at 1344; see also id. at 1343 (“[I]t may reasonably be
surmised that any experience with the criminal justice system which falls short of a conviction is
not a fair consideration by an employer considering hiring an individual with that experience.”)
(emphasis added). Thus, the court’s focus on the fact that the employer’s decision in relying on
criminal record information was not made in the context of hiring, but in discharge, undermines
Negron’s “broad principle” argument based on the alleged facts.
The School District, meanwhile, relies on Dean v. Specialized Security Response, in
making its argument that the CHRIA does not apply to termination decisions. No. 09-515, 2011
WL 3734238 (W.D. Pa. Aug. 24, 2011). In that case, an employee stated on an employment
application that he had never been convicted of a crime. Dean, 2011 WL 3734238, at *2. The
employee was then hired. See id. at *3. The employer subsequently fired he employee, however,
after it reviewed the employee’s criminal record and discovered that the employee had been
convicted of one felony and several misdemeanor offenses. See id. at 2. In reviewing the
plaintiff’s CHRIA claim, the court stated, “The [CHRIA] is relevant with respect to the hiring,
not the termination, of an employee. As such, plaintiff’s claims may not fall under the purview
of the statute.” Dean, 2011 WL 3734238, at *15. This language is certainly favorable to the
School District’s position, but the court entered judgment against the plaintiff with respect to his
CHRIA claim on other grounds; thus, it is obiter dictum.
While neither case is overwhelmingly helpful to either party, the text of the statute
supplies a more direct answer with respect to the question of the law’s scope. The plain language
of the statute states that section 9125 applies only to hiring decisions. See 18 Pa. Cons. Stat.
Ann. § 9125(a) (“[An employer] may use [a criminal history record information file] for the
purpose of deciding whether or not to hire the applicant . . . .”) (emphasis added). Furthermore,
the statute has undergone several revisions, affording the Pennsylvania legislature opportunities
to broaden the statute’s reach, something it has chosen not to do. See 18 Pa. Cons. Stat. Ann.
§ 9125 (1982) (amending P.L. 556, No. 127, § 3 (Dec. 14, 1979) (amending P.L. 116, No. 47, § 2
(July 16, 1979))). Therefore, guided by the maxim of statutory interpretation inclusio unius est
exclusio alterius, I conclude that the CHRIA only applies to hiring decisions, and as written does
not extend to decisions concerning employment termination. As a result, Negron’s claim fails as
a matter of law.
Nevertheless, in his response to the motion to dismiss, Negron makes a colorable
argument that he began his employment with the School District pending a successful completion
of a criminal background check, and because the School District relied on his criminal record in
terminating his employment, he was never fully hired. These factual allegations, however, do not
appear in Negron’s complaint. In his response, Negron has requested an opportunity to amend
his complaint should his CHRIA claim fail. (Resp. 6–7.) Pursuant to Rule 15 of the Federal
Rules of Civil Procedure, “The court should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Therefore, I will dismiss count II of Negron’s complaint
without prejudice to his right to file an amended complaint that may plausibly support a claim
under his “probationary employee” theory.
Count III: Wrongful Termination
The School District argues that Negron’s wrongful termination claim fails as a matter of
law because (1) terminating an employee based on his criminal history record is not against
Pennsylvania’s public policy; (2) a wrongful termination claim is only available for at-will
employees, which Negron is not; and (3) the claim is barred by the Political Subdivision Tort
Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541 et seq. (Mot. to Dismiss 5.) In his response,
Negron states that he does not challenge the School District’s motion to dismiss his wrongful
termination claim. (Resp. 2 n.1.) Accordingly, by agreement of counsel I will dismiss the
wrongful termination claim (count III) with prejudice.
For the foregoing reasons, the School District’s motion to dismiss is granted; however,
Negron may file an amended complaint with respect to count II. An appropriate order follows.
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