Young v. Kisenwether et al
MEMORANDUM re 12 MOTION to Dismiss First Amended Complaint filed by Brian Kisenwether, Butler Township, Charles Altmiller Signed by Honorable A. Richard Caputo on 8/10/12. (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 3:12-0379
BRIAN KISENWETHER, Individually and
as Butler Township Supervisor;
CHARLES ALTMILLER, Individually and
as Butler Township Supervisor; and
Presently before the Court is the Motion to Dismiss Plaintiff Ransom Young’s
(“Young”) First Amended Complaint filed by Defendants Brian Kisenwether (“Kisenwether”),
Charles Altmiller (“Altmiller”), and Butler Township (collectively “Defendants”). (Doc. 12.)
Young brings this action against the majority Butler Township Supervisors, Kisenwether and
Altmiller, as well as against Butler Township, asserting that he was terminated from his
position as Butler Township road foreman/laborer in violation of his constitutional rights.
Defendants seek dismissal of the claims pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Because Young did not have a property interest in his employment with
Butler Township and Defendants’ conduct was not stigmatizing, his due process claims will
be dismissed. However, because Plaintiff adequately alleged that he was retaliated and
discriminated against after engaging in protected conduct, Defendants’ motion to dismiss
Young’s First Amendment claims will be denied.
The facts as alleged in the Amended Complaint are as follows:
Butler Township is a municipal government known as a Second Class Township in
the state of Pennsylvania. (Am. Compl., ¶ 7.) Butler Township is governed by an elected
board of three supervisors. (Id. at ¶ 8.) The Butler Township Supervisors are Young,
Kisenwether, and Altmiller. (Id. at ¶¶ 4-6.)
For approximately twenty-two (22) years, Young was employed by Butler Township
as a full-time road foreman/laborer which is a position separate and distinct from that of the
elected Supervisor position and appointed Road Master position. (Id. at ¶ 10.) On January
3, 2012, when Young was discharged from his full-time foreman/laborer position, Altmiller
was the appointed Road Master. (Id. at ¶ 11.) In his position as foreman/laborer, Young’s
job duties did not include any policy making decisions, nor did it require political party
affiliation. (Id. at ¶ 13.)
In his capacity as foreman/laborer, Young’s employment was governed by a
bargained-for contract. (Id. at ¶ 16.)
Butler Township’s authority to enter into an
employment agreement with Young was pursuant to the Public Employe Relations Act, 43
P.S. §§ 1101.101, et seq. (Id. at ¶ 15.) At the time of his discharge, Young’s Employment
Agreement was to be “effective through January 1, 2012 and may at the desire of the
Employer and Employee be extended at two-year intervals.” (Id. at ¶ 18, Ex. B.) The
Employment Agreement provided that Young could “be terminated at any time for just cause
upon two-thirds vote of the Township Supervisors.” (Id. at ¶ 21, Ex. B.) And, because Butler
Township adhered to the terms of the Employment Agreement through January 3, 2012 by
compensating him for holidays and sick-days, Butler Township desired to extend the
Agreement for an additional two-year period. (Id.) Alternatively, as Young’s employment
benefits mirrored those of Butler Township’s unionized employees, he could not be
suspended without just cause. (Id. at ¶ 22.)
At all times relevant hereto, Young was a registered member of the Democratic party,
a fact known by Kisenwether and Altmiller. (Id. at ¶ 25.) Kisenwether and Altmiller are both
registered members of the Republican party. (Id.)
Young successfully obtained his seat on the Board of Supervisors in 1995 when he
defeated Kisenwether. (Id. at ¶ 26.) In 2009, Kisenwether was re-elected to the Board of
Supervisors and he took office in January 2010. (Id. at ¶ 27.) During Kisenwether’s
campaign, Young openly and actively supported and campaigned for opposing candidates
by making financial contributions to these candidates, by displaying a political sign on his
personal property, and by asking others to support and vote for Kisenwether’s opponent.
(Id. at ¶ 28.)
In 2011, Altmiller won a Supervisor seat and assumed office on January 3, 2012. (Id.
at ¶ 29.) Young openly and actively campaigned against Altmiller by making contributions
to his opponent, by displaying a political sign on his property, and by asking others to
support and vote for Altmiller’s opponents. (Id. at ¶ 30.)
As a result of Altmiller’s victory, the power of political majority on the Butler Township
Board of Supervisors shifted to the Republican party when Altmiller assumed his position
on January 3, 2012. (Id. at ¶ 31.) At the first meeting of the newly comprised Board of
Supervisors, Kisenwether and Altmiller voted to fire Young from his position as
foreman/laborer. (Id. at ¶ 32.) The firing of Young occurred without any prior notice or
opportunity to be heard. (Id. at ¶ 34.) And, this firing occurred at a public meeting with
members of the public in attendance and was reported in newspapers and on television. (Id.
at ¶ 35.) Due to his termination, Defendants created a false impression that Young’s
performance as an employee was poor or subpar, which has subjected him to ridicule and
embarrassment. (Id. at ¶ 36.) Thereafter, Young’s position was filled by then current senior
equipment operator Robert Kupsho, a registered Republican, and a new employee, Daniel
Brighthaupt, also a Republican, was hired as an equipment operator. (Id. at ¶ 41.)
Based on the foregoing events, Young commenced this action pursuant to 42 U.S.C.
§ 1983 asserting the following claims: (1) First Amendment free speech retaliation and
discrimination based on political patronage; (2) Fourteenth Amendment deprivation of
property interest; and (3) Fourteenth Amendment deprivation of liberty interest in reputation.
(Am. Compl.) On May 9, 2012, Defendants filed a motion to dismiss all claims pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Now, as Defendants’ motion to
dismiss has been fully briefed, it is ripe for disposition.
12(b)(6) Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion, the Court's role is limited to
determining if a plaintiff is entitled to offer evidence in support of their claims. See
Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). The Court does not
consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of
establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The statement
required by Rule 8(a)(2) must give the defendant fair notice of what the ... claim is and the
grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 167 L.
Ed. 2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). Detailed factual allegations are not required.
Twombly, 550 U.S. at 555. However, mere conclusory statements will not do; “a complaint
must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009). Instead, a complaint must “show” this entitlement by
alleging sufficient facts. Id. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009).
As such, the inquiry at the motion to dismiss stage is “normally broken into three
parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
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).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Twombly, 550 U.S. at 570, meaning enough factual allegations “‘to raise a
reasonable expectation that discovery will reveal evidence of’“ each necessary element.
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550
U.S. at 556). “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.” Iqbal, 129 S. Ct.
at 1949. “When there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 129 S. Ct. at 1949.
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff's claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint's “‘bald assertions'” or “‘legal conclusions.’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir. 1997)).
Plaintiff’s claims against Defendants are asserted pursuant to 42 U.S.C. § 1983.
Section 1983 provides that “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage ... subjects, or causes to be subjected, any citizen ... or any
other person ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured.” Section 1983 “is not itself a
source of substantive rights, but a method for vindicating federal rights elsewhere conferred
by those parts of the United States Constitution and federal statutes that it describes.” City
of Monterey v. Del Monte Dunes, 526 U.S. 687, 749 n. 9, 119 S. Ct. 1624, 143 L. Ed. 2d
882 (1999) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S. Ct. 2689, 61 L. Ed.
2d 433 (1979)). “To establish liability under 42 U.S.C. § 1983, a plaintiff must show that the
defendants, (1) acting under color of law, (2) violated the plaintiff's federal constitutional or
statutory rights, (3) and thereby caused the complained of injury.” Elmore v. Cleary, 299
F.3d 279, 281 (3d Cir. 2005) (citing Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d
582, 590 (3d Cir. 1998)).
Defendants’ Motion to Dismiss
Defendants seek to dismiss all of Young’s claims pursuant to Rule 12(b)(6). In
addition, Defendants request that Young’s claim for punitive damages be stricken from the
In Count I of the First Amended Complaint, Young alleges a First Amendment
retaliation claim and a First Amendment political patronage discrimination claim.
Defendants assert that both of these claims fail to state a claim for which relief can be
“To state a First Amendment retaliation claim, a plaintiff must allege two things: (1)
that the activity in question is protected by the First Amendment, and (2) that the protected
activity was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown,
455 F.3d 225, 241 (3d Cir. 2006) (citing Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir.
2005)). 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 of public concern, and (3)
the government employer did not have ‘an adequate justification for treating the employee
differently from any other member of the general public’ as a result of the statement he
made.” Id. at 241-42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164
L. Ed. 2d 689 (2006)).
To determine whether conduct is protected speech, a court must conduct a
fact-intensive inquiry into the nature and factual context of the conduct, as well as the
environment in which it was undertaken. Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309
F.3d 144, 158 (3d Cir. 2002) (citations omitted). If the “activity was sufficiently imbued with
the elements of communication to fall within the First Amendment's scope,” it is protected.
Id. (quoting Spence v. Washington, 418 U.S. 405, 409–10, 94 S. Ct. 2727, 41 L .Ed. 2d 842
(1974)). An action is “sufficiently imbued with elements of communication” if the plaintiff
“intended subjectively . . . for his conduct to communicate to persons whom he expected
to observe it . . . [and] observers understood the message the [plaintiff] intended his conduct
to convey.” Id. at 161 (citation omitted).
Defendants argue that Young has failed to adequately plead a retaliation claim
because he did not aver “when Plaintiff engaged in the protected activities, the specific
content of the speech, or even the identity of candidates supported from this speech.”
(Defs.’ Br. Supp. Mot. Dismiss, 9.) Furthermore, Defendants assert that the allegations in
the First Amended Complaint do not connect Young’s termination to protected activity. (Id.
Defendants’ arguments are without merit. In Young’s First Amended Complaint, he
alleges he engaged in protected activity during the election cycles in 2009 and 2011 in
which he openly campaigned against Kisenwether and Altmiller. This satisfies the protected
conduct requirement to state a First Amendment retaliation claim because a “candidate, no
less than any other person, has a First Amendment right to engage in the discussion of
public issues and vigorously and tirelessly to advocate his own election and the election of
other candidates.” Brown v. Hartlage, 456 U.S. 45, 53, 102 S. Ct. 1523, 71 L. Ed. 2d 732
(1982). And, as a result of campaigning and speaking against Kisenwether and Altmiller,
he was fired from his position as foreman/laborer at Altmiller’s first meeting as a Butler
Township Supervisor. (Am. Compl., ¶¶ 46-47.) Furthermore, Young has adequately
asserted that his protected speech occurred “as a private citizen and not as a public official
pursuant to his public responsibilities.” (Id. at ¶¶ 28, 30.) And, as Young has alleged that
he spoke about matters related to the Butler Township Board of Supervisors elections by
placing signs in his yard, requesting voters to vote against Kisenwether and Altmiller, and
making contributions to opposing candidates, Plaintiff has adequately stated a First
Amendment retaliation claim.
Political Patronage Discrimination
Defendants seek dismissal of Plaintiff’s First Amendment political patronage
discrimination claim. Defendants argue that Young fails to allege that he was employed at
a public agency in a position that does not require political affiliation. To state a claim for
political patronage discrimination, Young must allege: “(1) he was employed at a public
agency in a position that does not require political affiliation, (2) he was engaged in
constitutionally protected conduct, and (3) this conduct was a substantial or motivating
factor in the government's employment decision.” Galli v. N.J. Meadowlands Comm’n, 490
F.3d 265, 271 (3d Cir. 2007). Employment decisions predicated on political affiliation are
permitted when “policymaking” positions are at issue. See id. Factors considered in
determining whether a position is policymaking include “whether the employee has duties
that are non-discretionary or non-technical, participates in discussions or other meetings,
prepares budgets, possesses the authority to hire and fire other employees, has a high
salary, retains power over others, and can speak in the name of policymakers.” Id. The
“‘key factor seems to be not whether the employee was a supervisor or had a great deal of
responsibility[,] but whether [he] has meaningful input into decisionmaking concerning the
nature and scope of a major [ ] program.’” Id. (quoting Armour v. Cnty. of Beaver, 271 F.3d
417, 429 (3d Cir. 2007)).
Defendants argue that under 53 P.S. § 65602(c), which allows Township Supervisors
to appoint one of their own as a laborer or road master, the position “becomes a political
position through the dual-role because Plaintiff’s political power as a Township Supervisor
controls his secondary employment as a foreman/laborer.” (Defs.’ Br. Supp. Mot. Dismiss,
12.) Defendants’ motion to dismiss the political patronage discrimination claim will be
denied because it requests the Court to disregard the facts as alleged in the Amended
Complaint. In particular, Young alleges that the foreman/laborer position did not require
political affiliation as the job was a “non-advisory, non-policymaking position” separate and
distinct from the Supervisor position. (Am. Compl., ¶¶ 9-10.) And, as noted above, Young
engaged in protected speech, and his conduct in opposing Defendants Kisenwether and
Altmiller, as well as his political affiliation, were the motivating factors in his termination. (Id.
at ¶ 49.) Based on these allegations, Plaintiff may proceed on his political patronage
Fourteenth Amendment Due Process
The Fourteenth Amendment provides that a state may not “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. Here, Young
asserts claims for a deprivation of a property interest and a deprivation of a liberty interest.
Defendants seek dismissal of both claims.
Deprivation of Property Interest
Courts apply a two-step test to determine whether a party's due process rights were
violated by a deprivation of property, examining: “(1) whether the plaintiff has a property
interest protected by procedural due process, and (2) what procedures constitute ‘due
process of law.’ ” Schmidt v. Creedon, 639 F.3d 587, 595 (3d Cir.2011) (quotations omitted)
(quoting Gikas v. Wash. Sch. Dist., 328 F.3d 731, 737 (3d Cir.2003)). “To have a property
interest in a job, however, a person must have more than a unilateral expectation of
continued employment; rather, she must have a legitimate entitlement to such continued
employment.” Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (citing Bd. of Regents of
State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972)).
In Pennsylvania, “‘a public employee takes his job subject to the possibility of
summary removal by the employing authority. He is essentially an employee-at-will.’” Id.
(quoting Scott v. Phila. Parking Auth., 402 Pa. 151, 166 A.2d 278, 280 (1960)). Importantly,
“[a] local government in Pennsylvania cannot provide its employees with tenure status
unless there exists express legislative authority for doing so.” Id. at 282. Thus, “‘tenure in
public employment, in the sense of having a claim to employment which precludes dismissal
on a summary basis is, where it exists, a matter of legislative grace.’” Id. at 283 (quoting
Stumpp v. Stroudsburg Mun. Auth., 540 Pa. 391, 658 A.2d 333, 334 (1995)).
Young asserts that Butler Township had statutory authority to enter into “for cause”
employment agreements pursuant to the Pennsylvania Public Employe Relations Act
(“PERA”), 43 P.S. § 1101.201. Defendants’ assert, however, that this argument was
rejected in Covert v. Redevelopment Auth of Huntingdon Cnty., 447 S. Supp. 270, 274-75
(M.D. Pa. 1978). In Covert, the plaintiff argued that the Pennsylvania Supreme Court’s
holding in Scott that public employees are generally terminable at will was undermined by
the enactment of PERA. Id. (citing Scott, 402 Pa. 151, 166 A.2d 78). The district court
rejected the plaintiff’s argument because there was “no indication that the legislation
intended to change the previous law of Pennsylvania as it applies to public employees who
are not included within collective bargain agreements.” Id.
Young argues that here, unlike in Covell, he has a specific contract with his public
employer, Butler Township. Thus, Plaintiff asserts that the issue in this case is whether the
PERA allows individual public employees to negotiate contracts with their public employers.
In support of his position, Young relies on the Pennsylvania Supreme Court’s decision in
Pa. Office of Admin. v. Pa. Labor Relations Bd., 591 Pa. 176, 916 A.2d 541, 547-48 (2007)).
In Office of Admin., the Court stated that under the plain language of the PERA, not all
rights are vested in the union, but rather, “it is the individual public employee who
possesses certain rights, including the right to . . . ‘engage in lawful concerted activities for
mutual aid and protection.’” Id. at 548 (quoting 43 P.S. § 1101.401). Accordingly, the Court
held that “Section 401 of PERA grants individual employees certain rights, including the
right to engage in mutual aid and protection, which do not necessarily implicate bargaining
rights.” Id. at 549.
Based on the Office of Admin. reasoning, Plaintiff argues that the PERA allows public
employers to enter into “for cause” employment contracts. The Court disagrees. First,
Section 401 does not apply to the facts of this case. Section 401 permits “public employees
. . . to engage in lawful concerted activities for the purpose of . . . other mutual aid and
protection.” 43 P.S. § 1101.401. While the Office of Admin. Court held that this language
does not necessarily implicate bargaining rights, Section 401 still requires employees to
engage in “concerted activities.” Id. And, while the Pennsylvania Supreme Court did not
define this term, conduct involves “concerted activity” under the National Labor Relations
Act “if the employee’s actions are made ‘on behalf of other employees or at least . . . made
with the object of inducing or preparing for group action.’” Compuware Corp. v. N.L.R.B.,
134 F.3d 1285, 1288 (6th Cir. 1998) (quoting Aro, Inc. v. N.L.R.B., 596 F.2d 713, 718 (6th
Cir. 1979)); see also Illinois Ruan Transp. Corp. v. N.L.R.B., 404 F.2d 274, 289 (8th Cir.
1969) (Lay, J., dissenting) (“‘concerted activity’ may exist if there is some reasonable
relationship connecting an employee's conduct with the ‘mutual aid and protection’ of other
employees”). Here, as Young alleges only that the “for cause” contract impacted his
employment without any action on behalf of or for the benefit of others, he has not asserted
any “concerted activity” which would be encompassed within Section 401 of the PERA.
Therefore, the PERA does not apply to the facts as alleged by Young.
Second, and more importantly, however, Office of Admin. does not provide authority
for Plaintiff’s position that Butler Township, through the PERA, may enter into employment
contracts with a foreman/laborer with a “for cause” termination provision. As noted, “the
power to confer tenure must be expressly set forth in the enabling legislation.” Stumpp, 658
A.2d at 334. Here, the PERA does not explicitly authorize a municipality to enter into “for
cause” employment contracts with road workers. And, Young has not pled any other
“enabling legislation” which demonstrates that Butler Township had the power to enter into
a contract of employment that contracted away the right of summary dismissal. See, e.g.,
Apollo v. Pa. Convention Ctr. Auth., No. 11-6684, 2012 WL 2362408 (E.D. Pa. June 20,
2012) (enabling legislation did not specifically allow the Pennsylvania Convention Center
Authority to enter into “for cause” employment agreement with the plaintiff); Demko v.
Luzerne Cnty. Cmty. Coll., 113 F. Supp. 2d 722 (M.D. Pa. 2000) (community college
enabling legislation did not authorize the College to alter the employment-at-will status of
administrators); Stumpp, 658 A.2d at 334 (Stroudsburg Municipal Authority did not have
authority to enter agreement with the plaintiff to retain position as plant operator until he
retired); Guerra v. Redevelopment Auth. of City of Phila., 27 A.3d 1284 (Pa. Super. 2011)
(Philadelphia Redevelopment Authority lacked legislative authority to create a contract that
only allowed for the dismissal of the General Counsel “for cause”). As Plaintiff has not
identified any enabling legislation which would grant Butler Township the authority to enter
into a “for cause” employment agreement with a foreman/laborer, Young has failed to
identify a property interest in his employment necessary to establish a due process claim.
Accordingly, Count II of the First Amended Complaint will be dismissed.
Deprivation of Liberty Interest
“In order to state a claim for a § 1983 due process liberty interest violation in the
public employment context, a plaintiff must satisfy the ‘stigma plus’ test.” Brown v.
Montgomery Cnty., 470 F. App’x 87 (3d Cir. 2012) (citing Hill v. Borough of Kutztown, 455
F.3d 225, 236 (3d Cir. 2006)). Under the “stigma plus” test:
The creation and dissemination of a false and defamatory impression is the
stigma, and the termination is the plus. When such a deprivation occurs, the
employee is entitled to a name-clearing hearing. To satisfy the stigma prong
of the test, the employee must show: 1) publication of 2) a substantially and
materially false statement that 3) infringed upon the reputation, honor, or
integrity of the employee.
Id. (internal citations omitted). Furthermore, “a public employee who is defamed in the
course of being terminated or constructively discharged satisfies the ‘stigma plus’ test even
if, as a matter of state law, he lacks a property interest in the job he lost.” Hill, 455 F.3d at
Nevertheless, “‘no liberty interest of constitutional significance is implicated when the
employer has alleged merely improper or inadequate performance, incompetence, neglect
of duty or malfeasance.’” Fox v. Cheltenham Twp. Auth., No. 12-716, 2012 WL 2273424,
at *4 (E.D. Pa. June 18, 2012) (quoting Mercer v. City of Cedar Rapids, 308 F.3d 840, 845
(8th Cir.2002)) see also Chinoy v. Pa State Univ., No. 11-1263, 2012 WL 727965, at *5
(M.D. Pa. Mar. 6, 2012) (dismissing the plaintiff’s due process claim because alleged
statements regarding professional competence are insufficient to satisfy stigma part of the
analysis); Kohn v. Sch. Dist. of Harrisburg, 871 F. Supp. 2d 487, 498 (M.D. Pa. 2011)
(dismissing due process claim because statements concerning competency and job
performance are insufficient to satisfy the stigma part of the stigma plus test); Poteat v.
Harrisburg Sch. Dist., 33 F. Supp. 2d 384, 393 (M.D. Pa. 1999) (“charges of incompetence
do not implicate the liberty interest a public employee has in the manner of discharge”).
Here, while Plaintiff has adequately alleged the plus part of the stigma plus analysis,
his termination, he has failed to adequately allege the stigma prong of the test. In particular,
Young has alleged that his public firing “created and disseminated a false and defamatory
impression that Plaintiff’s performance as an employee was poor or subpar.” (Am. Compl.,
¶ 36.) However, statements concerning competency or job performance are insufficient to
satisfy the stigma requirement to state a due process deprivation of liberty interest claim.
Count III of Young’s Amended Complaint will therefore be dismissed.
Defendants also seek dismissal of Plaintiff’s request for punitive damages as against
Butler Township and Defendants Kisenwether and Altmiller. Plaintiff asserts that he does
not seek punitive damages from Butler Township. Furthermore, Plaintiff concedes that
punitive damages may only be recovered from Defendants Kisenwether and Altmiller in their
individual capacities and not their official capacities. See, e.g., Turner v. City of Phila., 22
F. Supp. 2d 434, 440 (E.D. Pa. 1998) (“punitive damages are not available against a
municipality or individuals in their official capacity for violations of § 1983"). Accordingly,
the motion to dismiss Plaintiff’s request for punitive damages against Defendants in their
official capacities will be granted.
Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to a 12(b)(6)
dismissal, the district court must permit a curative amendment, unless an amendment would
be inequitable or futile. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 237 (3d Cir. 2008);
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002) (citing Shane v. Fauver,
213 F.3d 113, 116 (3d Cir.2000)). In this case, because on this set of facts Plaintiff would
not be able to state a viable due process claim based on a liberty or property interest,
amendment would be futile. As such, Plaintiff’s due process claims will be dismissed with
For the above stated reasons, Defendants’ motion to dismiss will be granted in part
and denied in part. Defendants’ motion to dismiss the due process claims, Counts II and
III, and the request for punitive damages against the individual Defendants in their official
capacities will be granted. In all other respects, Defendants’ motion to dismiss will be
An appropriate order follows.
August 10, 2012
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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