McSparran v. Commonwealth Of Pennsylvania et al

Filing 17

MEMORANDUM and ORDER: 1. The motion 7 to dismiss is granted, and theComplaint 1 is hereby dismissed. 2. Pltf is granted leave to file an amended complaint setting forth her (1) equal-protection claim, (2) Title VII claim,(3) PHRA claim, and (4) d efamation claim with adequate factual allegations in accord with the accompanying memorandum. 3. Pltf shall comply with paragraph 2 of this order within (21) days of its date. If Pltf fails to do so, thisaction will be dismissed.Signed by Honorable William W. Caldwell on 12/17/13. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA MCSPARRAN,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA, PENNSYLVANIA
DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
KELLY HEFFNER, and JEFFREY
LOGAN,
Defendants

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: CIVIL NO. 1:13-CV-1932
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MEMORANDUM
I.

Introduction
Plaintiff is Patricia McSparran. Defendants are the Commonwealth of

Pennsylvania (the Commonwealth); the Pennsylvania Department of Environmental
Protection (the DEP); Kelly Heffner, the DEP’s Deputy Secretary for Water Management;
and Jeffrey Logan, the DEP’s Executive Deputy Secretary for Management and
Administration.
Plaintiff alleges she was subjected to harassment and then fired from her
job as Director of the DEP’s Bureau of Waterways Engineering and Wetlands on the
basis of her sex. She also alleges her right to due process was violated when she was
not given a hearing. She makes the following claims: (1) a 42 U.S.C. § 1983 claim based
on her federal rights to equal protection; (2) a section 1983 claim based on her right to
due process; (3) a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§

2000e et seq.; (4) a claim under the Pennsylvania Human Relations Act (PHRA), 43 Pa.
Stat. Ann. §§ 951 et seq.; (5) a state-law claim for defamation; and (6) a state-law claim
for intentional infliction of emotional distress.
We are considering Defendants’ Rule 12(b)(6) Motion to Dismiss.

II.

Standard of Review
On a Rule 12(b)(6) motion, “[w]e ‘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.’”
Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted).
A complaint need only contain “a short and plain statement of the claim,”
Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).
Nonetheless, a complaint has to plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570, 127 S.Ct. at 1974. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). “[L]abels and
conclusions” are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a
court “‘is not bound to accept as true a legal conclusion couched as a factual allegation.’”
Id., 127 S.Ct. at 1965 (quoted case omitted).

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The court is not limited to evaluating the complaint alone; it can also
consider documents attached to the complaint, matters of public record, and indisputably
authentic documents. Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir.
2006).
The Third Circuit has described the Rule 12(b)(6) inquiry as a three-part
process:
First, the court must take 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 relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013)(quoted cases
omitted).
With ths standard in mind, we set forth the background to this litigation, as
Plaintiff alleges it.1

III.

Background
Plaintiff is a member of a protected class based on her gender. (Doc. 1,

Compl. ¶ 11). She is “experienced and accomplished in the field of environmental
1

Citing Weston v. Pennsylvania, 251 F.3d 420, 429 (3d Cir. 2001), Plaintiff asserts
she is entitled to have her “[d]iscrimination and other civil rights claims” reviewed under a
“liberal notice pleading” standard. Plaintiff is mistaken. First, Weston did not say that such
claims are subject to a liberal standard of review; it said that all civil suits in federal court were
subject to “liberal notice pleading requirements” under Rule 8. Id. at 428. Second, if Weston’s
standard of review would have made a difference here, it has been overtaken by Twombly and
Iqbal.

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protection.” (Id. ¶ 12). “On or about March 15, 2004, Plaintiff was hired as an Executive
Assistant for the DEP in the Office of Water Management.” (Id. ¶ 13).
On June 9, 2006, she was promoted to Director of the Bureau of
Waterways Engineering and Wetlands. (Id. ¶ 14). “Except for her final weeks of
employment, Plaintiff was the sole female Bureau Director in Water Management of
DEP.” (Id. ¶ 15). Plaintiff complained to her supervisor, Cathleen Curran Myers, then the
Deputy Secretary of Water Management, “that her salary was less than her male
counterparts.” (Id. ¶¶ 14 and 16). On July 3, 2007, “Plaintiff was awarded an exceptional
pay increase of two (2) steps” to minimize the salary disparity with her male counterparts
and to recognize “her exemplary performance with increased responsibilities.” (Id. ¶ 18).
Nonetheless, the “exceptional pay increase did not equalize the pay disparity.” (Id. ¶ 19).
In recommending Plaintiff for the pay increase, Myers wrote: Plaintiff’s
“problem solving experience and leadership abilities . . . greatly served the Bureau”;
Plaintiff “enhanced existing as well as implemented new initiatives”; Plaintiff
“demonstrated excellence in communicating with the public in response issues in the
Delaware River Basin related to the new York reservoirs”; and Plaintiff’s efforts in that
regard “helped to spawn an integrated study related to the flooding and reservoirs.” (Id. ¶
17 and Compl., Ex. B).
In 2009, John Hines, replaced Myers as Deputy Secretary. (Id. ¶ 20).
Hines supervised Plaintiff from 2009 through January 2011. (Id. ¶ 21). During this time,
Plaintiff complained to Hines “that she was treated differently and disparately than the

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other two (2) male bureau directors.” (Id.). She also complained “that she was denied
equal wages and overlooked for responsibility in Hines’ absence as he favored the male
directors.” (Id.). “Hines refused to act on her complaints of disparate treatment.” (Id. ¶
22). Further, “Hines subjected her to sexual harassment including unwelcome touching,
leering and sexual advances and innuendos that she repeatedly rejected.” (Id. ¶ 23).
In January 2011, Hines was promoted, and Michael L. Krancer was
appointed Acting Secretary. (Id. ¶¶ 24 and 25). In an e-mail, dated February 16, 2011,
Krancer thanked Plaintiff and another employee for their “terrific briefing paper on the
H20 program and the two Montco projects” and said he appreciated their “workmanlike
efforts.” (Id. ¶ 25, and Compl., Ex. C). In an e-mail, dated February 18, 2011, Krancer
thanked Plaintiff for information she supplied about a particular project, saying “it [was]
exactly what I was looking for.” (Id.). In an e-mail, dated May 5, 2011, another DEP
official thanked Plaintiff for giving him a “quick and comprehensive response to [his] late
afternoon inquiry.” (Id.).
In June 2011, defendant Heffner was promoted to the position of Deputy
Secretary of Water Management, and became Plaintiff’s direct supervisor. (Id. ¶ 26).
“Plaintiff complained on multiple occasions to Defendant Heffner that she was denied
equal wages to her male counterparts and unequal work conditions.” (Id. ¶ 27). In
response, “Defendant Heffner shunned the plaintiff and precluded her from business
communication, information and meetings.” (Id.). Further, “Defendant Heffner published
falsehoods about the plaintiff alleging that she was not adhering to Heffner’s supervisory

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directives and unwilling to comply with Administrative goals.” (Id.). Moreover,
“Defendant Heffner withheld business communication, cancelled one-on-one meetings,
failed to respond to emails from the plaintiff and excluded the female plaintiff from
essential meetings pertaining to her programs.” (Id. ¶ 28). Additionally, Defendant
Heffner “circumvented the ‘chain of command’ and deliberately communicated with her
subordinate staff to keep the plaintiff out of the loop and in the dark on policy changes
and implementations.” (Id.). Also, “[o]n occasion she invited male Jeffrey Means, then
not associated with Water Management, instead of the plaintiff to internal meetings that
he had no business or reason to be present [at].” (Id.). “The harassment, hostility and
exclusion directly affected the [P]laintiff’s ability to perform her job causing her emotional
distress and harm.” (Id. ¶ 29).
During the time Heffner was Plaintiff’s supervisor, Heffner did not prepare
and present a performance review of Plaintiff. (Id. ¶ 31). Hines did her last performance
evaluation, dated January 14, 2011. (Id. ¶ 30). He rated her as exceeding expectations
on her management skills and described her as a “dedicated manager who is astute in
understanding key details on issues as well as having the ability to shift out key issues for
decisions.” (Id., and Compl., Ex. D).
Plaintiff avers that she continued with her excellent work, as evidenced by
e-mails. (Id., ¶ 33). On January 10, 2012, an official with a state senator thanked her for
help she was giving on a certain project. (Id., and Compl., Ex. F). On March 20, 2012, a
DEP official thanked her for her participation in a meeting. (Id.). On April 3, 2012, a

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federal official thanked Plaintiff for her “assistance on granting emergency permit
clearance for the EWP projects,” related to post-flood recovery. (Id. ¶ 34, and Compl.,
Ex. G).
However, two days later, on April 5, 2013, “without notice or warning, HR
Director Aimee Brough presented the termination letter to Plaintiff stating and notifying
her that she was involuntarily separated because her services ‘were no longer required.’”
(Id. ¶ 35, and Compl., Ex. H). Plaintiff asked if she was being fired for cause, and Ms.
Brough “responded ‘no’ and she reread the termination letter emphasizing ‘services no
longer required.’” (Id. ¶ 36). “The termination decision was made by Defendant Heffner
and Defendant Logan.” (Id. ¶ 38). Before her termination, Plaintiff had not been warned
about any performance issues. (Id. ¶ 45).
Plaintiff was replaced by “a less qualified male,” Jeffrey Means. (Id. ¶¶ 37
and 40). Defendant Heffner and Means had “a longstanding sexual relationship,” and
Heffner “handpicked” Means as Plaintiff’s replacement before Plaintiff’s termination. (Id.
¶¶ 41-42).
“Defendant Heffner deliberate[ly] orchestrated Plaintiff’s separation[,] falsely
accusing her of poor performance” so that she could be replaced by a male, Jeffrey
Means. (Id. ¶ 43). “Heffner engaged in a pattern and practice of preferential treatment
and favoritism towards males and more specifically towards male subordinate Jeffrey
Means to [sic] whom she admittedly had a longstanding sexual relationship.” (Id. ¶ 46).

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Beginning in November 2011, Heffner “acted to harm and defame” Plaintiff.
(Id.). “Heffner published falsehoods about Plaintiff’s work performance to tarnish her
reputation and discharge her from employment.” (Id. ¶ 44). Heffner “accused her of
being insubordinate, not a team player, failing to support the Administration and Agency
staff, objectives and programs, fail[ing] to demonstrate leadership qualities, and ‘go[ing]
beyond accepted advocacy and staff.’” (Id., and Compl., Exs. M and N).
These false accusations “were published to colleagues and staff members,”
(id. ¶ 50), and to the “industry community and those who had no right to know.” (Id. ¶
91). “The published accusations were false,” and they “tarnished Plaintiff’s good name
and reputation.” (Id. ¶¶ 47-48). Defendant Logan “wrongfully republished the
falsehoods.” (Id. ¶ 49). Additionally, “Defendants had no right to publish the falsehoods
and any privilege was abused.” (Id. ¶ 51).
“Defendants retaliated against the plaintiff for reporting and complaining of
disparate treatment” and “for complying with legislative inquiry.” (Id. ¶¶ 55 and 56).
Defendants “acted jointly and separately . . . .” (Id. ¶ 54). Plaintiff suffered reputational
harm that foreclosed other opportunities.” (Id. ¶ 60).
“As a result of the defendants’ joint and separate conduct, the plaintiff
suffered financial losses, lost income, lost employment benefits, emotional distress,
physical harm and aggravation, humiliation, embarrassment, anguish, lost reputation and
lost career.” (Id. ¶ 61).

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IV.

Discussion
A. The Claims Under 42 U.S.C. § 1983
Count I sets forth the following constitutional claims: (1) an equal-protection

claim; (2) a due-process claim; and (3) a conspiracy claim.2 In addition to defendants
Heffner and Logan, this count also named the Commonwealth and the DEP, but in her
opposition brief, Plaintiff withdraws these claims as against the latter two parties, and
pursues them only against defendants Heffner and Logan in their individual capacities.3
We will therefore dismiss these claims as against the Commonwealth and the DEP and
against defendants Heffner and Logan in their official capacities. The claims will proceed
only against Heffner and Logan in their individual capacities.

1. The Equal-Protection Claim
Defendants first argue that Plaintiff’s equal-protection claim should be
dismissed because any rights asserted in the claim “are fully and adequately addressed”
in her Title VII claim and because Plaintiff “appears to be attempting to recast a Title VII
claim as one under section 1983.” (Doc. 8, ECF p. 14). If Plaintiff were alleging that she
was denied equal protection because Defendants had violated her rights under Title VII,

2

In her brief, Plaintiff asserts she has also made a First Amendment retaliation claim.
(Doc. 14, ECF p. 9). The complaint does allege retaliation, but Count I appears to make only
the three claims we just listed. (Compl. ¶¶ 64-76). We will therefore treat Count I as only
making these three claims.
3

Defendants had moved to dismiss Count I as against the state entities and the
individual defendants in their official capacities under the Eleventh Amendment. (Doc. 8, pp.
4-5). Plaintiff then chose to withdraw her claims against the Commonwealth, DEP, and
Defendants Heffner and Logan in their official capacities. (Doc. 14, p. 2).

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we would agree with them. See Regan v. Township of Lower Merion, 36 F. Supp. 2d
245, 249 (E.D. Pa. 1999)(“plaintiffs may not vindicate rights created under Title VII under
Section 1983"). However, Plaintiff is basing her section 1983 claim on a violation of the
Equal Protection Clause of the Fourteenth Amendment. In these circumstances, she can
pursue a section 1983 claim alongside a Title VII claim, even if both claims arise from the
same set of facts. West v. City of Bethlehem, No. 11-CV-1194, 2011 WL 5105381, at *7
(E.D. Pa. Oct. 26, 2011)(“even if a § 1983 claim and Title VII claim are based upon the
same facts, a plaintiff may bring both claims if an independent constitutional basis exists
for his § 1983 claim”); McLaughlin v. Rose Tree Media Sch. Dist., 1 F. Supp. 2d 476,
479-80 (E.D. Pa. 1998)(the plaintiff can pursue an equal-protection claim and a Title VII
claim based on gender discrimination). See also Bradley v. Pittsburgh Bd. of Educ., 913
F.2d 1064, 1079 (3d Cir. 1990)(“the comprehensive scheme provided in Title VII does not
preempt section 1983, and . . . discrimination claims may be brought under either statute,
or both.”).
Defendants next move to dismiss the equal-protection claim on the basis
that Plaintiff has failed to meet the pleading requirement that sufficient facts be pled to
make the claim plausible. Defendant assert Plaintiff has merely made conclusional
allegations in support of the claim.
Plaintiff has made an equal-protection claim based on her membership in a
protected class. (Compl. ¶ 11). To allege a protected-class equal-protection claim, a
plaintiff must allege that: (1) she is a member of a protected class; and (2) based on her

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gender she received different treatment than that received by other similarly situated
individuals. Oliveira v. Township of Irvington, 41 F. App’x 555, 559 (3d Cir.
2002)(nonprecedential)(citing Keenan v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir.
1992)). Persons are similarly situated under the Equal Protection Clause when they are
alike “in all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir.
2008).
Citing Tomino v. City of Bethlehem, No. 08-CV-6018, 2010 WL 1348536, at
*14 (E.D. Pa. Mar. 31, 2010), Plaintiff argues that it is sufficient for her to allege in
conclusional fashion that she was treated differently from others similarly situated. We
disagree. Tomino does not apply here. In that case, the district court had allowed a
conclusional pleading because the plaintiff had made a “class of one” equal-protection
claim. The district court was following Phillips v. County of Allegheny, 515 F.3d 224, 244
(3d Cir. 2008), where the Third Circuit held that allegations of different treatment of
similarly situated individuals only had to be pled generally for a “class of one” claim. In
contrast, Plaintiff here is making a protected-class equal-protection claim.4 We will
therefore follow the pleading requirements set forth in Twombly and Iqbal.5

4

Indeed, Plaintiff could not make a “class of one” claim even if she wanted to, as such
a claim does not apply in the public-employment context. See Engquist v. Oregon Dep’t of
Agriculture, 553 U.S. 591, 607, 128 S.Ct. 2146, 2156, 170 L.Ed.2d 975 (2008).
5

In making its ruling, the Third Circuit relied on the Second Circuit’s decision in
DeMuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003), which also allowed general pleading on this
element of a “class of one” equal-protection claim. The Second Circuit had relied on Village of
Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), in which the
Supreme Court had recognized the “class of one” claim, for its ruling that only general
allegations of different treatment of similarly situated individuals are required. However, as

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Plaintiff alleges membership in a protected class based on her gender.
(Compl. ¶ 11). This satisfies the first element of her equal-protection claim. We must
therefore determine if her allegations that she received different treatment than similarly
situated individuals are sufficiently factual to make her equal-protection claim plausible.
We note the relevant allegations. There were only two other bureau
directors, both males, in water management. (Id. ¶ 21). Plaintiff alleges “her salary was
less than her male counterparts,” (id. ¶¶ 14 and 16), even after “an exceptional pay
increase of two (2) steps” to minimize the salary disparity with her male counterparts and
to recognize “her exemplary performance with increased responsibilities.” (Id. ¶¶ 18 and
19). “Plaintiff complained on multiple occasions to Defendant Heffner that she was
denied equal wages to her male counterparts and unequal work conditions.” (Id. ¶ 27).
In April 2013, Plaintiff was terminated. (Id. ¶ 35). “The termination decision
was made by Defendant Heffner and Defendant Logan.” (Id. ¶ 38). Plaintiff was
replaced by “a less qualified male,” Jeffrey Means. (Id. ¶¶ 37 and 40). Defendant
Heffner and Means had “a longstanding sexual relationship,” and Heffner “handpicked”
Means as Plaintiff’s replacement before Plaintiff’s termination. (Id. ¶¶ 41-42).
“Defendant Heffner deliberate[ly] orchestrated Plaintiff’s separation[,] falsely
accusing her of poor performance” so that she could be replaced by Means. (Id. ¶ 43).

one of our colleagues in the Middle District has noted, in Ruston v. Town Bd. for the Town of
Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010), after Iqbal was decided, the Second Circuit
abrogated DeMuria and applied Iqbal’s pleading standard to a “class of one” claim. See
McLaughlin v. Forty Fort Borough, No. 13-CV-0016, 2013 WL 4069528, at * 14 n.9 (M.D. Pa.
Aug. 9, 2013).

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“Heffner engaged in a pattern and practice of preferential treatment and favoritism
towards males and more specifically towards male subordinate Jeffrey Means to [sic]
whom she admittedly had a longstanding sexual relationship.” (Id. ¶ 46).
We begin with the allegation that Plaintiff was terminated and replaced with
the less-qualified Means because Heffner had a longstanding sexual relationship with
Means. This allegation is specific enough, but as Defendants argue, it cannot support an
equal-protection claim based on gender discrimination.6 See DeCintio v. Westchester
Cnty. Med. Ctr., 807 F.2d 304, 308 (2d Cir. 1986)(no gender discrimination under Title VII
when the male plaintiffs claimed that a female was given the job because of her romantic
relationship with the hiring supervisor because the discrimination was not based on the
plaintiffs’ gender but on the supervisor’s preference for his “paramour” and a female
applicant for the job would face the same obstacle); Handley v. Phillips, 715 F. Supp.
657, 674-75 (M.D. Pa. 1989)(an allegation that the female plaintiff was given “dissimilar
treatment resulting from” the defendant’s “alleged desire to promote another female to
whom he is romantically linked is not the basis for a Title VII claim”)(citing DeCintio).
We turn to the other allegations, for even if Plaintiff does not have a
“paramour preference” claim, as it has been described, see Kelly v. Howard I. Shapiro &
Associates Consulting Engineers, P.C., 716 F.3d 10, 14 (2d Cir. 2013), if she makes

6

Defendants make this argument against Plaintiff’s Title VII claim, but we can use it
here because the same standard applies to equal-protection claims and Title VII claims.
Wood v. University of Pittsburgh, 395 F. App’x 810, 816 (3d Cir. 2010)(nonprecedential)(“The
showing required to prove a § 1983 gender discrimination claim is identical to that required by
Title VII.”).

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adequate allegations that her termination and other treatment were nonetheless based
on gender, she may state a valid claim. Cline v. Bala Nursing & Retirement Ctr., 1998
WL 136524, at *4 (E.D. Pa. Mar. 20, 1998)(finding that female plaintiff had presented
enough evidence on summary judgment for the jury to decide that her termination and
replacement by a male was based on her female supervisor’s gender-based
discrimination even though the plaintiff also alleged the decision was made because the
her male replacement was sexually involved with the supervisor).
Plaintiff’s other allegations are not enough to support an equal-protection
claim. What is absent are sufficient factual allegations that Plaintiff received different
treatment than that received by other similarly situated individuals. To begin, Plaintiff’s
allegations concerning similarly situated individuals are deficient. Plaintiff refers to the
two male bureau directors but does not allege they were similarly situated; Plaintiff does
not even make a general allegation they were similarly situated. Even under Phillips,
such an allegation is necessary. 515 F.3d at 244 (“Although DeMuria does relax the
‘class of one’ pleading requirements by negating the need for specificity, an allegation of
an equal protection violation still must contain a claim that a plaintiff has been treated
differently from others who are similarly situated.”). For example, Plaintiff does not allege
whether the other directors had similar responsibilities or authority within the department
in comparison to Plaintiff. See Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 305
(3d Cir. 2004)(“In order to determine who might qualify as a similarly situated employee

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we must look to the job function, level of supervisory responsibility and salary, as well as
other factors relevant to the particular workplace.”).
Nor does Plaintiff provide factual allegations to support her general claim
that she was treated differently from the male bureau directors. Plaintiff generally alleges
that she complained to Heffner “on multiple occasions . . . that she was denied equal
wages to her male counterparts and unequal work conditions,” (id. ¶ 27), that she was
replaced by “a less qualified male,” Jeffrey Means, (id. ¶¶ 37 and 40), and that “Heffner
engaged in a pattern and practice of preferential treatment and favoritism towards males
and more specifically towards male subordinate Jeffrey Means to [sic] whom she
admittedly had a longstanding sexual relationship.” (Id. ¶ 46). These allegations are not
enough.
We therefore conclude that Plaintiff has failed to allege an equal-protection
claim.

2. The Due-Process Claim
Plaintiff alleges that defendants Heffner and Logan violated her right to due
process when they publicized the false reasons for her firing and then fired her without
giving her a hearing.
“[R]eputation alone is not an interest protected by the due process clause”
of the Fourteenth Amendment. Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir.
2006)(quoted case and internal quotation marks omitted)(emphasis added in Hill).
Instead, the Due Process Clause . . . protects a liberty interest in reputation only when
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the plaintiff shows a “stigma” to reputation “plus deprivation of some additional right or
interest.” Id. Under this “stigma-plus” test, when a public employer “‘creates and
disseminates a false and defamatory impression about the employee in connection with
his termination,’” due process applies and the employee is entitled to a “name-clearing
hearing.” Id. (quoted case omitted). The “stigma” is the “creation and dissemination of a
false and defamatory impression,” and “the termination is the ‘plus.’” Id.
In moving to dismiss this due-process claim, Defendants argue that Plaintiff
has failed to allege that the reasons were disseminated publicly, as required for the claim,
and not just within the DEP. They assert her allegation that the reasons were published
to “colleagues and staff,” (Compl. ¶¶ 50 and 91), is not a dissemination to the public.
They contend her allegation that the reasons were publicized to the “industry community
and those who had no right to know,” (id. ¶ 91), fails to plead sufficient facts.
We need not address Defendant’s argument. The due-process claim fails
for another reason. Defendants’ remarks were about Plaintiff’s competence, and remarks
that go only to professional competence are not enough to satisfy the stigma part of the
claim. Brown v. Montgomery County, 470 F. App’x 87, 91 (3d Cir.
2012)(nonprecedential)(remarks accusing the plaintiff of malfeasance and of violating the
county code of ethics were not stigmatizing)(citing Mercer v. City of Cedar Rapids, 308
F.3d 840, 845-46 (8th Cir. 2002)); Kohn v. School Dist. of City of Harrisburg, 817 F.
Supp. 2d 487, 498 (M.D. Pa. 2011)(Caldwell, J.)(statements that only questioned the
plaintiff’s competence and job performance were not stigmatizing); Poteat v. Harrisburg

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Sch. Dist., 33 F. Supp. 2d 384, 393 (M.D. Pa. 1999)(Caldwell, J.)(“Charges of
incompetence do not implicate the liberty interest a public employee has in the manner of
discharge.”)(cited cases omitted).
Plaintiff has therefore failed to state a due-process claim.

B. The Title VII Claim
Count II sets forth a Title VII claim. Defendants move to dismiss this claim
on the basis of the “paramour preference” defense. See DeCintio, supra, 807 F.2d at
308. We dealt with this argument in connection with the equal-protection claim. For the
reasons given above in connection with the latter claim, Plaintiff has failed to allege a
Title VII claim.

C. The PHRA Claim
Count III sets forth a PHRA claim. In addition to defendants Heffner and
Logan, this count also named the Commonwealth and the DEP, but in her opposition
brief, Plaintiff withdraws this claim as against the latter two parties, and pursues them
only against defendants Heffner and Logan in their individual capacities.7 We will
therefore dismiss this claim as against the Commonwealth and the DEP and against
defendants Heffner and Logan in their official capacities. The claim will proceed only
against Heffner and Logan in their individual capacities.
7

Defendants had moved to dismiss Count III as against the state entities and the
individual defendants in their official capacities under the Eleventh Amendment. (Doc. 8, pp.
8-9). Plaintiff then chose to withdraw her claims against the Commonwealth, DEP, and
Defendants Heffner and Logan in their official capacities. (Doc. 14, p. 2).

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Defendants move to dismiss the PHRA claim for the same reasons they
move to dismiss the Title VII claim. For the reasons given above in connection with the
equal-protection claim, Plaintiff has failed to allege a PHRA claim.8
Defendants also move to dismiss this claim against the individual
defendants on the ground that individuals cannot be liable on PHRA claims. In
opposition, Plaintiff asserts that Heffner and Logan can be liable as aiders or abettors
under 43 Pa. Stat. Ann. § 955(e).9 In reply, citing Scott v. Sunoco Logistics Partners,
L.P., 918 F. Supp. 2d 344 (E.D. Pa. 2013), Defendants contend that Heffner and Logan
cannot be liable under an aiding-and-abetting theory if the Commonwealth and the DEP
cannot be liable.
Scott is distinguishable. In that case, the plaintiff had failed to establish a
PHRA claim against the employer on the merits. In those circumstances, the court ruled
that an employee could not be held liable for aiding and abetting. 918 F. Supp. 2d at 357
n.5. In the instant case, on the other hand, there has been no determination that a claim
against the Commonwealth or the DEP lacked merit. Aiding-and-abetting is a valid
theory of recovery against Heffner and Logan. See Holocheck v. Luzerne Cnty. Head

8

Title VII and PHRA claims are analyzed the same. Wilkerson v. New Media Tech.
Charter Sch. Inc., 522 F.3d 315, 318-19 (3d Cir. 2008).
9

In relevant part, section 955(e) provides:
It shall be an unlawful discriminatory practice . . .

(e) For any person . . . or employee, to aid, abet, incite, compel or coerce the
doing of any act declared by this section to be unlawful discriminatory practice .
...

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Start, Inc., 385 F. Supp. 2d 491, 497 (M.D. Pa. 2005)(supervisory employees can be
liable under the PHRA for their own acts of discrimination).

D. The State-Law Defamation Claim
In Count IV, Plaintiff asserts a state-law claim for defamation against
Heffner and Logan based on their stated reasons for discharging her. Defendants move
to dismiss this claim for three reasons. First, they have sovereign immunity against the
claim, citing La Frankie v. Miklich, 152 Pa. Commw. Ct. 163, 170, 618 A.2d 1145, 1149
(1992). Second, under the law of defamation, their statements were privileged, citing
Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1327 (E.D. Pa. 1994). Third, the
statements were not capable of a defamatory meaning because Plaintiff only alleges that
Heffner and Logan made them to a limited audience so that the statements could not
have injured Plaintiff in the community, citing Maier v. Maretti, 448 Pa. Super. Ct. 276,
284, 671 A.2d 701, 706 (1995).
In the court’s view, all three arguments depend upon whether Plaintiff has
made an adequate allegation that the defendants published their statements to a number
of persons who had no need for the information. If Plaintiff has made such an allegation,
it would defeat a sovereign-immunity defense because it would take the statements out of
the scope of the defendants’ employment. La Frankie, 152 Pa. Commw. Ct. at 170, 618
A.2d at 1149. It would also defeat a claim of privilege as it would show an abuse of the
privilege. Doe, 862 F. Supp. at 1327 (privilege applies when publication is “to those with

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a legitimate interest in the subject matter”). Finally, it would defeat a claim that
publication had only been to a limited audience.
As noted, Plaintiff has alleged that the statements “were published to
colleagues and staff members,” (id. ¶ 50), and to the “industry community and those who
had no right to know.” (Id. ¶ 91). Defendants argue Plaintiff cannot rely on these
allegations as they are not sufficiently factual. We agree. See generally, Rishell v. RR
Donnelley & Sons Co., No. 06-CV-4782, 2007 WL 1545622, at *3 (E.D. Pa. May 24,
2007). The reference to colleagues and staff members could very well include personnel
who had an interest in the subject matter. The reference to the “industry community” and
“those who had no right to know” is too general.10 Plaintiff did not have to identify these
people by name, Rishell, 2007 WL 1545622, at *3, but had to allege sufficient facts to
show that they were persons with no valid interest in the subject matter.
We conclude that Plaintiff has failed to allege a defamation claim.

E. The Claim For Intentional Infliction of Emotional Distress
In Count V, Plaintiff makes a state-law claim for intentional infliction of
emotional distress (IIED) against defendant Heffner. Defendants assert that Heffner is
immune from this claim in her official capacity and that, in any event, the allegations
against her do not state a claim for IIED.

10

In her brief, Plaintiff asserts that the “industry community” is “outside of DEP.” (Doc.
14, ECF p. 22). Plaintiff cannot rely on statements in her brief; they must be in her pleading.

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We need not address the first argument as we agree with the second one.
“The gravamen of the tort of intentional infliction of emotional distress is that the conduct
complained of must be of an ‘extreme or outrageous type.’” Cox v. Keystone Carbon
Co., 861 F.2d 390, 395 (3d Cir. 1988)(quoted case omitted). “[I]t is extremely rare to find
conduct in the employment context that will rise to the level of outrageousness necessary
to provide a basis for recovery for the tort of [IIED].” Id. Generally, the employer must
have “engaged in both sexual harassment and other retaliatory behavior against an
employee.” Id.
Here, although Plaintiff alleges retaliatory actions, she does not allege that
Heffner engaged in sexual harassment. Instead, Plaintiff alleges that Heffner denied her
wages and working conditions equal to the two male bureau directors, and eventually
fired her based on false grounds. These allegations fail to state an IIED claim in the
employment context.

V. Leave to Amend
We must decide whether to permit amendment of the dismissed claims.
We must grant leave to amend a civil-rights claim even if plaintiff does not request it and
even if she is represented by counsel. Fletcher-Harlee Corp. v. Pote Concrete
Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). We do not have to do so, however, if
amendment would be futile. Id.
Because we cannot say at this time that amendment would be futile as to
the following claims, we will allow Plaintiff to amend them: (1) the equal-protection claim,
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(2) the Title VII claim, (3) the PHRA claim, and (4) the defamation claim. The following
claims will be dismissed without leave to amend: (1) the due-process claim, and (2) the
claim for intentional infliction of emotional distress.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: December 17, 2013

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICIA MCSPARRAN,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA, PENNSYLVANIA
DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
KELLY HEFFNER, and JEFFREY
LOGAN,
Defendants

:
:
:
: CIVIL NO. 1:13-CV-1932
:
:
: (Judge Caldwell)
:
:
:
:
:

ORDER

AND NOW, this 17th day of December, 2013, upon consideration of
Defendant’s motion (Doc. 7) to dismiss, it is ORDERED that:
1. The motion (Doc. 7) to dismiss is granted, and the
Complaint (Doc. 1) is hereby dismissed
2. Plaintiff is granted leave to file an amended complaint
setting forth her (1) equal-protection claim, (2) Title VII claim,
(3) PHRA claim, and (4) defamation claim with adequate
factual allegations in accord with the accompanying
memorandum.
3. Plaintiff shall comply with paragraph 2 of this order within
twenty-one (21) days of its date. If Plaintiff fails to do so, this
action will be dismissed.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge