LIBAN v. MCCARTY et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOEL H. SLOMSKY ON 9/8/17. 9/8/17 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DEBRA MCCARTY, et. al.,
September 8, 2017
Plaintiff Bruce Liban worked for the City of Philadelphia Water Department (“PWD” or
the “Department”) for approximately one month. After being denied further employment,
Plaintiff, proceeding pro se, initiated this action against Debra McCarty, Commissioner of PWD,
and Anthony Erace, an investigator at the Philadelphia Office of the Inspector General. (Doc.
Plaintiff raises several claims against Defendants.
First, Plaintiff asserts that his
termination violated his right to procedural due process under the Fourteenth Amendment of the
United States Constitution. Second, Plaintiff alleges an unlawful termination claim in violation
of Title VII of the Civil Rights Act of 1964 (“Title VII”).
Last, Plaintiff alleges that
Pennsylvania’s Whistleblower Law should have protected him from being discharged.
Defendants filed a Motion to Dismiss the Complaint under Federal Rule of Civil Procedure
12(b)(6), which is now before the Court for disposition.1 (Doc. No. 6.)
This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367.
From September 19, 2016 to October 20, 2016, Plaintiff worked at PWD as a Graduate
Electrical Engineer. (Doc. No. 1 ¶¶ 1, 66–67.) Plaintiff was initially placed on Philadelphia’s
mandatory six-month probationary period for certain civil service employees.2 Plaintiff was
discharged approximately one month after starting his employment at PWD. The events that led
to his termination follow.
Plaintiff began having problems almost immediately after starting his new position. His
first assignment was to work on an electrical improvement project at the Torresdale Raw Water
Pumping Station in Philadelphia. (Doc. No. 1 ¶ 4.) During his first week, he raised a complaint
about one of the contractors with whom he was working. (Doc. No. 2 at 3–4.) It stated as
It has come to my attention from Ed Zalewski that in order to save money
a contractor is trying to use a cheaper 500 horsepower motor on the Torresdale
Raw Water Pumping Station Project without doing the required balancing. This
may result in an unstable condition when the shaft is spinning that results in the
rotating assembly breaking apart. When the rotating assembly breaks apart it can
fill the room with flying steel killing many people. This letter is being written to
prevent this possibility and prevent another tragedy similar to what happened on
June 5, 2013 at 22nd and Market Streets.3 This event (if it were to happen) could
The Philadelphia Civil Service Regulations state:
APPOINTMENTS FROM ELIGIBLE LISTS. All persons appointed from open,
competitive, promotional or preferred eligible lists shall be subject to a
probationary period of six (6) months, except as may be otherwise provided in the
Regulations. The period of probation is expressly understood to be part of the
entrance or promotional examination or reinstatement and that the status of the
appointee or reinstated employee as a permanent employee is not approved until
successfully completing his period of probation.
Phila. Civil Serv. Regs. § 14.01.
Plaintiff is referring to a tragic accident that occurred on June 5, 2013, near the corner of
22nd and Market Streets in Philadelphia. A building undergoing demolition collapsed onto a
neighboring building housing the Salvation Army, trapping a number of people under the
rubble. Six people were killed instantly, and several others were severely injured. This
be much worse. As a registered professional engineer I know that safety comes
first. I know that the pump base costs 1.1 to 2 million dollars. Clearly the pump is
destroyed if the rotating assembly breaks apart. I obviously don’t want 1.1 to 2
million dollars [sic] worth of damage. The problem is that I cannot tolerate the
loss of life associated with this failure (it can be as bad as a building with bodies
This problem can be solved as a purchasing problem because of the way
the contract is written. To do this the city will need to enforce the contract. If the
contractor does not agree, the city has to figure out how to take this part of the
contract away from the contractor and give it to the proper entity specified in the
contract. This is one way to solve the problem. There may be other ways, but I
don’t know enough about how the city does business to even suggest the proper
Addendum No. 1, Bid Nos.: 2046, opening date: December 17, 2015 says,
“Motors are to be provided by Patterson Pump as noted. Sherwood & Logan is
local Patterson Pump representative. Contact: Ed Zalewski – (215)702-1402.”
This is under number 3.
Note 3 under 500 HP Pump Motors on P.W.D. Work # 64060 says, “The
existing pumps were manufactured by Patterson Pump Company and shall
remain. Patterson Pump Company: 2129 Ayersville Road, Tocca, GA 30577; Tel
706-886-2101.” Note 4 says, “Contractor shall provide turnkey installation,
testing and commissioning of new 500 HP motors using Patterson Pump
Company to provide design, motors, shafts, mounting hardware, site installation
support and testing for a complete installation. Contractor shall contract with
Sherwood Logan & Associates (SLA), local manufacturer’s representative for
Patterson Pump Company. Contact: Ed Zalewski, Sherwood Logan & Associates;
Ed tells me that he has not seen the purchase order yet. Since only his
company, by contract, may supply the pumps, he should eventually see the
purchase order. Motors from anyone else should be rejected by inspection when
they arrive. Patterson Pump Company can only balance the motors they supply
for liability reasons. Unbalanced motors may not be turned on for safety reasons.
Please take all necessary actions to prevent the possible loss of life due to
(Id.) Plaintiff caused alarm among PWD staff by sending e-mails and printed copies of his
complaint to several employees in various units of PWD. (Id.)
On September 28, 2016, Plaintiff was asked to attend a meeting with his supervisors to
discuss his complaint, as well as Plaintiff’s irrational behavior, which was brought to the
accident, albeit tragic, is wholly unrelated to the work of PWD. Therefore, it is irrelevant to
supervisors’ attention. (Doc. No. 1 ¶¶ 32–33, 36–37; Doc. No. 6 at 3–4.) At this meeting,
Plaintiff was advised that there were “several layers of [safety] protocol and procedures already
established” that he did not follow. (Doc. No. 2 at 7.) Although his safety concerns were
appreciated, his complaints dealt with the design and redesign of equipment, which was
monitored by the Operations Unit of PWD, not the Construction Unit to which he was assigned.
(Id.) Plaintiff’s supervisors suggested that he should focus on learning his job responsibilities as
a Graduate Electrical Engineer in the Construction Unit of PWD, and should avoid interfering
with the job responsibilities of other PWD Units. (Id.) Plaintiff was given a warning that any
other abrupt actions would lead to termination of his employment. (Id.) Despite being given a
warning, Plaintiff continued to have problems at work.
On October 18, 2016, Plaintiff was asked by his supervisor to take minutes at a meeting
concerning an electrical improvement project. (Doc. No. 1 ¶¶ 54–59.) Plaintiff took the meeting
minutes, but also inappropriately included some of his personal beliefs in the minutes (Id. ¶ 58),
“again insulting and questioning the competency of a colleague.” (Doc. No. 6 at 4.) For
example, he wrote that discussions at the meeting made “it clear that there is a lack of
understanding of what is going on” as to one of his coworkers. (Doc. No. 2-1 at 29.)
The following day, Plaintiff was informed that his probationary period of employment
was terminated.4 (Doc. No. 1 ¶ 61.) Later that evening, Plaintiff sent an e-mail to McCarty, who
Plaintiff attached to the Complaint a performance report completed by his direct supervisor,
which stated that Plaintiff was being fired for poor work performance, failure to take
initiative in his specific work assignments, and distracting behavior in other units that were
not related to his position. (Doc. No. 2 at 8.) The performance report reads as follows:
This report reflects your poor work performance over the past one (1) month. You
did not show initiative in your specific work assignment of inspecting projects
and instead were motivated to check design calculations, presented ideas to
redesign projects already in the construction stage inspite [sic] of being reminded
serves as the Commissioner of PWD, entitled “termination, murder, retaliation . . . .”5
October 20, 2016, Plaintiff received a formal termination letter ending his brief employment at
PWD. (Doc. No. 1 ¶ 66.)
On February 28, 2017, Plaintiff initiated this action against Defendants. (Doc. No. 1.)
First, Plaintiff alleges that his termination violated his due process rights under the Fourteenth
Amendment of the United States Constitution. Second, he raises a Title VII claim in connection
with his termination. Third, Plaintiff asserts that Pennsylvania’s Whistleblower Law should have
protected him from being fired. On April 28, 2017, Defendants filed a Motion to Dismiss the
Complaint. (Doc. No. 6.) Plaintiff filed a Response in Opposition to the Motion. (Doc. No. 8.)
on several occasions. You excelled in creating confusion, chaos and panic in two
(2) different projects without properly checking data and facts. This clearly is
unbalanced, irrational, & eccentric behavior. You repeatedly took abrupt actions
and were warned in a meeting dated 9-24-16 by Mr. Rotermund. You have since
not learned from your three (3) mistakes done in your first three (3) weeks. This
indicates to the Department that you are better suited in design work rather than
construction project Management work. Therefore, the Department cannot afford
to retain you under this title and separation is required.
(Id.) As previously noted, Plaintiff attached this performance report to his Complaint in
support of his claims.
In this e-mail, Plaintiff accused McCarty of murder (or approving of murder) multiple times.
(Doc. No. 2 at 13.) McCarty became fearful for her safety after reading the e-mail, so
Plaintiff was banned from accessing any PWD facilities. (Doc. No. 6 at 4 n.2.)
Plaintiff’s accusations continued after his termination. Following his firing, he sent out
“hundreds of E-mails,” contacting the Occupational Safety and Health Administration
(OSHA), every city council person’s office, the State Utility Authority in Harrisburg, the
Philadelphia Office of the Inspector General (Erace’s employer), and the Philadelphia
District Attorney, among others. (Doc. No. 1 ¶¶ 81, 85–86, 88, 94.)
On July 13, 2017, a hearing was held on the Motion. (Doc. No. 13.) The Motion is now ripe for
STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set
forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that “threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements do not suffice” to
defeat a Rule 12(b)(6) motion to dismiss. Id. at 663; see also Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.” Ethypharm S.A.
France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (citing Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). “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.” Id. Applying the principles of Iqbal and Twombly, the Third
Circuit in Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010), set forth a three-part
analysis that a district court in this Circuit must conduct in evaluating whether allegations in a
complaint survive a 12(b)(6) motion to dismiss:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Second, the court should identify allegations that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Finally,
“where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement for
Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679). “This means that our inquiry is normally broken
into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
In reaching a decision, the Court has considered the Complaint (Doc. No. 1), the exhibits
filed in support of the Complaint (Doc. No. 2), the Motion to Dismiss the Complaint (Doc.
No. 6), Plaintiff’s Response in Opposition (Doc. No. 8), and arguments made by the parties
during the hearing on the Motion (Doc. No. 13).
conclusory allegations, and then (3) looking at the well-pleaded components of the complaint
and evaluating whether all of the elements identified in part one of the inquiry are sufficiently
alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show”
such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (citing
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234–35 (3d Cir. 2008)). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at
679. The “plausibility” determination is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” Id.
When determining a motion to dismiss, the court must “accept all factual allegations in
the complaint as true and view them in the light most favorable to the plaintiff.” Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Where, as here, the complaint is
filed pro se, the “complaint, ‘however inartfully pleaded’ must be held to ‘less stringent
standards than formal pleadings drafted by lawyers.’” Fatone v. Latini, 780 F.3d 184, 193 (3d
Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). It should be dismissed only
if it appears “beyond doubt that the plaintiff can prove no set of facts in support of [his] claim
that would entitle [him] to relief.” Olaniyi v. Alexa Cab Co., 239 F. App’x 698, 699 (3d Cir.
2007) (citing McDowell v. Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996)).
The Complaint raises several claims against Defendants. First, it alleges a claim pursuant
to 42 U.S.C. § 1983 for an alleged violation of Plaintiff’s procedural due process right under the
Fourteenth Amendment. (Doc. No. 1 at 1–2, 5.) Second, the Complaint asserts an unlawful
termination claim in violation of Title VII. Third, the Complaint raises a claim of retaliatory
termination in violation of Pennsylvania’s Whistleblower Law. Pursuant to Federal Rule of Civil
Procedure 12(b)(6), Defendants seek to dismiss the Complaint in its entirety. (Doc. No. 6.) The
Court will address each of Plaintiff’s claims in turn.7
Plaintiff Has Not Plausibly Alleged a § 1983 Claim Against Defendants
Plaintiff alleges that his procedural due process right was violated when he was
terminated from PWD. A plaintiff raising a claim under § 1983 must allege a violation of a right
secured by the Constitution or the laws of the United States, and must show that the alleged
In addition to the claims mentioned above, Plaintiff raises other non-cognizable claims
against Defendants. For example, Plaintiff seeks to hold Defendants criminally liable for his
termination from PWD. (Doc. No. 1 ¶¶ 81, 83, 129.) He writes that he “considers actions
that might cause injuries to be criminal activities.” (Id. ¶ 81.) He also writes that he
contacted the district attorney’s office to launch a criminal prosecution against Defendants.
(Id. ¶¶ 81, 94, 97.) Defendants argue that Plaintiff lacks standing to initiate a criminal
prosecution against them. (Doc. No. 6 at 9.)
To have standing to bring a claim in federal court, a plaintiff must show that he has “suffered
an injury in fact—an invasion of a legally protectable interest which is (a) concrete and
particularized; and (b) actual or imminent, not conjectural or hypothetical.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). “It is well-established
that ‘a private citizen lacks a judicially cognizable interest in the prosecution of another.’”
Williams ex rel. Faison v. U.S. Penitentiary Lewisburg, Pa., 377 F. App’x 255, 256 (3d Cir.
2010) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). Plaintiff’s claim is not
cognizable because he has requested a criminal prosecution of Defendants in relation to his
termination. This claim will be dismissed.
In addition, Plaintiff raises a claim, alleging violations of regulations imposed by the
Occupational Health and Safety Administration (OSHA). (Doc. No. 1 ¶ 121.) Defendants
argue that this claim must be dismissed because no private right of action exists under
OSHA. (Doc. No. 6 at 10.)
“With the Occupational Safety and Health Act of 1970, Congress created [OSHA] to assure
safe and healthful working conditions for working men and women by setting and enforcing
standards and providing training, outreach, education and assistance.” Occupational Health
and Safety Administration: About OSHA, https://www.osha.gov/about.html (last visited Aug.
29, 2017). OSHA, however, “does not give aggrieved employees a private right of action.”
Sorge v. Wright’s Knitwear Corp., 832 F. Supp. 188, 121 (E.D. Pa. 1993). Since OSHA does
not permit private rights of action, Plaintiff’s claim under OSHA will be dismissed.
deprivation was committed by a person acting under color of state law. West v. Adkins, 487 U.S.
42, 48 (1988). Defendants argue that no underlying constitutional violation is alleged in the
Complaint. Additionally, Defendants assert that Plaintiff failed to allege that they had any
personal involvement in the firing decision.
Plaintiff Has Failed to State an Underlying Constitutional Violation
Plaintiff contends that his Fourteenth Amendment procedural due process right was
violated when PWD terminated his employment. (Doc. No. 1.) Plaintiff claims that he was
deprived of this right because “there was no hearing before his termination.” (Doc. No. 1 at 5.)
Procedural due process under the Fourteenth Amendment requires “notice and an
opportunity to be heard before the Government deprives [one] of property.” United States v.
James Daniel Good Real Property, 510 U.S. 43, 48 (1993). To state a § 1983 claim for a
violation of procedural due process, a plaintiff must show that the state deprived him of
something in which he had a protected property interest. Id. A cognizable property interest can
be created by several sources, such as state law, implied contracts, or express contracts. Miller v.
Twp. of Readington, 39 F. App’x 774, 775 (3d Cir. 2002).
Plaintiff states that he has a property interest in continued employment at PWD. It is
well established, however, that Pennsylvania public employees who are hired at will do not
possess a protected property right in their continued employment. See Elmore v. Cleary, 399
F.3d 279, 283 (3d Cir. 2005) (stating that “a public employee in Pennsylvania generally serves at
the pleasure of her employer and thus has no legitimate entitlement to continued employment”);
see also Hill v. Borough of Kutztown, 455 F.3d 225, 234–35 (3d Cir. 2006) (finding that a former
borough employee who had been fired from his position as borough manager was hired at will
and therefore did not have a protected property interest in his continued employment).
Pennsylvania’s public, probationary employees have no property interest in their
continued employment. See Grabiak v. Pennsylvania State Police, 276 F. App’x 210, 213 (3d
Cir. 2008) (concluding that a probationary Pennsylvania state trooper failed to state a procedural
due process claim in connection with his termination because he did not have a property interest
in his continued employment); see also Thomas v. Town of Hammonton, 351 F.3d 108, 113 (3d
Cir. 2003) (dismissing a former dispatcher’s § 1983 claim against the city, her former employer,
after holding that she was a newly hired probationary employee who could be fired with or
without cause and thus did not have a property interest in her continued employment); Blanding
v. Pennsylvania State Police, 12 F.3d 1303, 1307 (3d Cir. 1993) (holding that a Pennsylvania
statute giving new state troopers an eighteen-month probationary period did not give a
probationary state trooper a property interest that entitled him to due process protection prior to
his discharge). In other words, “[t]o have a property interest in a job . . . a person must have
more than a unilateral expectation of continued employment; rather, [he] must have a legitimate
entitlement to such continued employment.” Elmore, 399 F.3d at 282.
Viewing the Complaint in the light most favorable to Plaintiff, he has not plausibly stated
that he had a protected property interest in his continued employment at PWD. Plaintiff alleges
that he had been working at PWD for approximately one month when he was terminated. (Doc.
No. 1 ¶¶ 1, 67.) However, he was initially hired on only a six-month probationary period of
employment, during which he could be fired with or without cause. See Bartal v. Borough of
Laureldale, 515 F. Supp. 2d 556, 562 (E.D. Pa. 2007) (finding that a “probationary employment
sets those employees apart from others, signaling that they are new . . . and that they must prove
themselves in the new position before being considered permanently employed therein” (quoting
Olson v. Borough of Avalon, 811 A.2d 66, 71 (Pa. Commw. Ct. 2002))). The Philadelphia Civil
Service Regulations, which applied to Plaintiff’s position, explained that a public employee on a
probationary period of employment could be terminated.8
Plaintiff has alleged, therefore,
nothing more than a “unilateral expectation of continued employment,” which is insufficient to
state a protected property interest in his continued employment at PWD. Elmore, 399 F.3d at
Plaintiff is unable to plead a protected property interest in his employment and as such,
he cannot state a violation of his right to procedural due process to support a § 1983 claim.
Plaintiff’s § 1983 claim against Defendants will be dismissed.
Plaintiff Has Failed to Allege That Defendants Were Personally
Involved in His Termination
Plaintiff believes that Erace should be held liable for his termination from PWD. To the
contrary, Defendants argue that Erace, who did not work for PWD, was not personally involved
in Plaintiff’s termination from the Department. (Doc. No. 6 at 7.)
To state a § 1983 claim, a plaintiff must allege that a defendant had “personal
involvement in the alleged wrongdoing.” See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.
2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (establishing that “[a]
defendant in a civil rights action must have personal involvement in the alleged wrongs; liability
The Philadelphia Civil Service Regulations state:
REJECTION OF EMPLOYEE DURING PROBATIONARY PERIOD. At any
time during the probationary period, the appointing authority, or his/her
designated representative, with the approval of the Director, may discharge or
demote a probationary employee, if said appointing authority, or his/her
designated representative, determine that such employee is unable or unwilling to
perform his/her duties satisfactorily, or that his/her habits and dependability do
not merit his/her continuance in the City service or that information revealed
during the pre-employment background investigation requires removing the
employee from the position. . . .
Phila. Civil Serv. Regs. § 14.04.
cannot be predicated solely on the operation of respondeat superior”)). “A plaintiff makes
sufficient allegations of a defendant’s personal involvement by describing the defendant’s
participation in or actual knowledge of and acquiescence in the wrongful conduct.” Chavarriaga
v. New Jersey Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015). In addition, “[a]lthough a court
can infer that a defendant had contemporaneous knowledge of wrongful conduct from the
circumstances surrounding a case, the knowledge must be actual, not constructive.” Id. (citing
Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995)).
Here, Plaintiff has failed to allege Erace’s personal involvement in the termination
decision. Erace is mentioned in the following four paragraphs of the Complaint:
88. On 11/21/16 Bruce Liban sent the data on the problem with the motor
installation to Anthony Erace at the office of the inspector general. The purpose
of this was to allow the inspector general’s office to take action against the people
involved in the improper installation of the 500 horsepower motors.
89. Bruce Liban has tried many times to verify Anthony Erace’s professional
engineering license in the state of Pennsylvania. No record comes up under his
name. This means that he does not have a professional engineering license in the
State of Pennsylvania.
90. Bruce Liban requested that Anthony Erace provide the name or names of the
person or people he talked to to come to a conclusion. [Erace] said that the
inquiry that the city conducts is confidential.
91. The court will make the final call. If the judge orders something, Anthony
decides if he obeys the order or faces the consequences from the judge. Figure 8
is Anthony Erace’s 12/19/16 memo where he declares that what was done is
confidential. How this was done may become critical to what actions the court
needs to take.
(Doc. No. 1 ¶¶ 88–91.) These paragraphs concerning Erace do not involve the decision to
terminate Plaintiff from his position at PWD. Erace does not work at PWD. (Id. ¶ 88.) Rather,
Erace is one of the many people who were contacted about the perceived safety issue Plaintiff
observed at the Department’s construction site. (Id.) None of the allegations in the Complaint
suggest that Erace, an employee at a wholly separate entity, was personally involved in the
decision to end Plaintiff’s employment at PWD. Therefore, the claims against Erace will be
Plaintiff Has Not Plausibly Alleged an Unlawful Termination Claim in
Violation of Title VII of the Civil Rights Act of 1964
Plaintiff asserts a claim against McCarty and Erace for unlawful termination in violation
of Title VII of the Civil Rights Act of 1964. (Doc. No. 1.) Defendants argue that Plaintiff’s claim
must be dismissed because individual employees may not be held liable under Title VII. (Doc.
No. 6 at 9.) Title VII provides, in relevant part:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (2012). The statute defines “employer” as “a person engaged in an
industry affecting commerce who has fifteen or more employees . . . and any agent of such a
person.” Id. § 2000e(b). “[T]he clear majority of the courts of appeals that have considered [the
question whether individual employees or agents can be held liable under Title VII] have held
that [they] cannot be . . . .” Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1077 (3d
Cir. 1996) (citing Williams v. Banning, 72 F.3d 552 (7th Cir. 1995)); Tomka v. Seiler Corp., 66
F.3d 1295, 1313–17 (2d Cir. 1995); Gary v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995); Grant v.
Lone Star Co., 21 F.3d 649 (5th Cir. 1994); Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587–
88 (9th Cir. 1993)).
The Complaint here raises claims against individual employees McCarty and Erace, and
not against Plaintiff’s employer. (See Doc. No. 1.) Because Plaintiff has raised a Title VII claim
against only individual employees, which is prohibited, this claim must be dismissed. See
Vangjeli v. City of Philadelphia, 655 F. App’x 132, 133 (3d Cir. 2016) (stating that “Title VII
does not recognize individual employee liability”); see also Bright v. LabCorp, 627 F. App’x 75,
77 (3d Cir. 2015) (stating that “individual employees cannot be held liable under Title VII”);
Hukman v. US Airways/Am. Airlines, No. 17-0741, 2017 WL 3310677, at *3 (E.D. Pa. Aug. 3,
2017) (“Although Title VII prohibits employers from engaging in discriminatory employment
practices, individual employees may not be held liable.” (citation omitted)). Consequently,
Plaintiff’s Title VII claim will be dismissed.
Plaintiff Has Not Plausibly Alleged a Retaliatory Termination Claim in
Violation of Pennsylvania’s Whistleblower Law
Plaintiff also raises a claim that he was unlawfully terminated in violation of
Pennsylvania’s Whistleblower Law.9 (Doc. No. 1 ¶ 121.) Defendants argue, to the contrary, that
Plaintiff fails to state a claim for a violation of the Whistleblower Law because his complaint
was not objectively reasonable as required by the statute. (Doc. No. 6 at 10.)
Pennsylvania’s Whistleblower Law provides, “[n]o employer may discharge, threaten or
otherwise discriminate or retaliate against an employee . . . because the employee . . . makes a
good faith report or is about to report, verbally or in writing, to the employer or appropriate
authority an instance of wrongdoing or waste.”10
In referring to his claim for a violation of Pennsylvania’s Whistleblower Law, Plaintiff states
that “there actually appears to be two forms of this law.” (Doc. No. 1 ¶ 121.) Plaintiff,
however, does not identify a second whistleblower law on which he bases his claim.
Therefore, this Court will address only the claim for a retaliatory termination in violation of
Pennsylvania’s Whistleblower Law.
43 Pa. Cons. Stat. § 1423(a) (2014). Pennsylvania’s Whistleblower Law provides as follows:
To state a claim for retaliatory termination in violation of Pennsylvania’s Whistleblower
Law, a plaintiff must plead a protected report of wrongdoing and a causal connection between
the report and the adverse employment action. Golaschevsky v. Commonwealth, Dep’t of Envtl.
Prot., 720 A.2d 757, 758 (Pa. 1998). “If the employee makes this showing, the burden shifts to
the employer to establish that there was a legitimate reason for the adverse action. Once the
employer offers such evidence, the burden shifts back to the employee to show that this reason
was merely pretextual.”11 Anderson v. Bd. of Sch. Dirs. of Millcreek Twp. Sch. Dist., 574 F.
App’x 169, 173 n.4 (3d Cir. 2014) (citation omitted).
The test for whether an employer’s conduct is a protected report of wrongdoing is
objective, not subjective. Kimes v. Univ. of Scranton, 126 F. Supp. 3d 477, 505 (M.D. Pa. 2015).
That is, a plaintiff must prove that there was an actual violation of a law, regulation, ordinance,
or code of conduct, which violation “is not of a merely technical or minimal nature.”12 Id. It
No employer may discharge, threaten or otherwise discriminate or retaliate
against an employee regarding the employee’s compensation, terms, conditions,
location or privileges of employment because the employee or a person acting on
behalf of the employee makes a good faith report or is about to report, verbally or
in writing, to the employer or appropriate authority an instance of wrongdoing or
waste by a public body or an instance of waste by any other employer as defined
in this act.
Pennsylvania’s Whistleblower Law further states:
It shall be a defense to an action under this section if the defendant proves by a
preponderance of the evidence that the action by the employer occurred for
separate and legitimate reasons, which are not merely pretextual.
43 Pa. Cons. Stat. § 1424(c).
The Whistleblower Law in turn defines “wrongdoing” as “[a] violation which is not of a
merely technical or minimal nature of a Federal or State statute or regulation, of a political
does not matter whether the plaintiff holds a belief, even if well founded, that the conduct
constitutes wrongdoing. Sukenik v. Twp. of Elizabeth, 131 A.2d 550, 555–56 (Pa. Commw. Ct.
2016). “An actual violation is required.” Id. (citing Kimes, 126 F. Supp. 3d at 505).
In addition, to sustain a Whistleblower Law claim a plaintiff must plead facts or
surrounding circumstances that support an inference that the report of wrongdoing led to his
dismissal. Bennett v. Republic Servs., Inc., 179 F. Supp. 3d 451, 456 (E.D. Pa. 2016). “An
employee who has been terminated based on a filed report and wants to base his or her complaint
on their employer’s violation under the Whistleblower Law must specify how their employer is
guilty of . . . wrongdoing.” Id. (quoting Gray v. Hafer, 651 A.2d 221, 225 (Pa. Commw. Ct.
1994), aff’d, 669 A.2d 335 (Pa. 1995)). Furthermore, “[t]hey must also show by concrete facts
or surrounding circumstances that the report led to their dismissal, such as that there was a
specific direction or information they received not to file the report or there would be adverse
consequences because the report was filed.” Id.
Viewed in the light most favorable to Plaintiff, the Complaint fails to plead a protected
report of wrongdoing. Plaintiff contends that the complaint he e-mailed to several employees in
various units at PWD was a protected report of wrongdoing. (Doc. No. 1 ¶ 121.) As noted, the
e-mail contained a complaint about one of the contractors with whom Plaintiff was working.
(Doc. No. 2 at 3–4.) The e-mail also noted that Plaintiff thought the contractor was “trying to
use a cheaper 500 horsepower motor” on the Torresdale Raw Water Pumping Station Project, and
Plaintiff believed another type of motor should be used. (Id.) Plaintiff perceived this as a safety
issue. However, the concerns in the Complaint do not rise to the level of wrongdoing; that is, an
subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the
interest of the public or the employer.” 43 Pa. Cons. Stat. § 1422.
actual violation of law, ordinance, regulation, or code of conduct.13 See Lape v. Pennsylvania,
157 F. App’x 491, 498 (3d Cir. 2005) (holding that a corrections officer who sued the state
Department of Corrections for retaliatory termination after marrying a former inmate failed to
establish that she was fired in retaliation for a letter she sent to her employer regarding certain
types of offenders and proposed solutions, as required to maintain a claim under Pennsylvania’s
Whistleblower Law, where the letter did not report an instance of wrongdoing).
Plaintiff has failed to plead a protected report of wrongdoing, his retaliatory termination claim in
violation of Pennsylvania’s Whistleblower Law will be dismissed.
FUTILITY TO AMEND COMPLAINT
Plaintiff will not be granted leave to further amend his Complaint. Federal Rule of Civil
Procedure 15(a) provides that “[t]he court should freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). Among the grounds that could justify a denial of leave to
amend are undue delay, bad faith, dilatory motive, prejudice, and futility. In re Burlington Sec.
Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). For example, “a district court need not grant leave to
amend a complaint if ‘the complaint, as amended, would fail to state a claim upon which relief
could be granted.’” Kundratic v. Thomas, 407 F. App’x 625, 630 (3d Cir. 2011) (quoting Shane
v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)).
After reviewing the allegations in the Complaint, it is clear that allowing Plaintiff to
amend his pleadings would be futile. Plaintiff has had the opportunity to review the Motion to
Plaintiff claims that “Pennsylvania State Law” requires him to “take certain actions related to
safety issues.” Plaintiff does not specify which law, but apparently is referring to
Pennsylvania’s Whistleblower Law. The Court disagrees. From a plain reading of the
statute, the law is a defense to retaliatory action; it does not require action. 43 Pa. Cons. Stat.
§ 1423(a) (2014). Plaintiff also attached to his Complaint a safety memorandum sent to
employees by McCarty, and apparently felt obligated by this memorandum to report what he
perceived to be a safety issue. (See Doc. No. 1 ¶¶ 15, 18, app. at 2.) But Plaintiff fails to
establish a violation of that memorandum that would constitute wrongdoing under the
Whistleblower Law. (See id.)
Dismiss, to respond to the Motion, and to argue the merits of the Complaint at the hearing held
on July 13, 2017 before this Court. (Doc. Nos. 6, 8, 13.) Plaintiff was put on notice of the
deficiencies of the Complaint from the Motion to Dismiss and at the hearing, yet was unable to
resolve these deficiencies. See Kundratic, 407 F. App’x at 630 (finding that a plaintiff asserting
§ 1983 claims is put on notice of the deficiencies of his complaint by way of a defendant’s
motion to dismiss); see also Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d
Cir. 2002) (finding that granting leave to amend a complaint is futile when “the plaintiff was put
on notice as to the deficiencies of his complaint, but chose not to resolve them”). Therefore,
granting leave to amend would be futile and will not be allowed in this case.
For the foregoing reasons, the Motion to Dismiss (Doc. No. 6) will be granted. An
appropriate Order follows.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?