Abuomar v. Commonwealth of Pennsylvania, Department of Corrections et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 5/4/15. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MUSTAFA ABUOMAR,

:
:
:
Plaintiff,
:
:
v.
:
:
COMMONWEALTH OF
:
PENNSYLVANIA DEPARTMENT :
OF CORRECTIONS, VINCE
:
MOONEY, EDWARD BAUMBACH:
and DENNIS BRUMFIELD,
:
:
Defendants.
:

Civil Action No. 4:14-CV-1036

(Judge Brann)

MEMORANDUM
May 4, 2015
On May 29, 2014, Plaintiff Mustafa Abuomar initiated the above-captioned
civil action by filing a complaint with this Court, alleging violations of 42 U.S.C. §
1985(2), constitutional violations of the Fourth, Fifth, Fourteenth, and Eighth
Amendments, Monell liability under 42 U.S.C. § 1983, violations of the
Pennsylvania Whistleblower Law at 43 P.S. § 1421, and various state law claims
including battery, intentional infliction of emotional distress, and false
imprisonment. After filing an answer, Defendants collectively filed a motion for
judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c),
requesting judgment on Counts III (Fifth Amendment violations), V (Eighth

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Amendment violations), VI (Monell Liability), and IX (Pennsylvania
Whistleblower Law).
In his brief in opposition, Plaintiff has concurred in the dismissal of Counts
III, V, and VI; therefore those claims will be dismissed from Plaintiff’s complaint
without further discussion. The only remaining matter, that of Plaintiff’s claim
under the Pennsylvania Whistleblower Law, has been fully briefed and is now ripe
for disposition. In accordance with the following reasoning, Count IX under the
Pennsylvania Whistleblower Law is dismissed without prejudice with leave to
amend in accordance with the following reasoning.
I. BACKGROUND
Plaintiff Mustafa Abuomar has brought this action pursuant to 42 U.S.C. §
1983, alleging various civil rights violations to which he was subjected by his
employer and several other employees. For the period relevant to this case,
Plaintiff was employed by the Department of Corrections (hereinafter the “DOC”)
as an imam, and was assigned to work at SCI Coal Township in Northumberland
County, Pennsylvania. Pl.’s Compl., May 29, 2015, ECF No. 1 ¶ 7, 9, 10
(hereinafter “Pl.’s Compl.”). In his capacity as imam, Plaintiff was responsible for
organizing observances and other activities for inmates of Muslim faith. Id. ¶ 12.
Plaintiff is of Arab ethnicity and Jordanian nationality. Id. ¶ 13.

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At some time prior to the events at issue in the instant motion, Plaintiff had
complained to the DOC’s internal EEO, the Equal Employment Opportunity
Commission (hereinafter the “EEOC”), and the Pennsylvania Human Rights
Commission (hereinafter the “PHRC”) regarding inappropriate ethnic, racial and
religious slurs made by Corrections Officer Benza to Plaintiff. Id. ¶ 18. On March
5, 2014, when Plaintiff was on duty at SCI Coal Township, he was ordered by the
Superintendent of SCI Coal Township, Defendant Mooney, to write a detailed
statement about his interaction with two other DOC employees, Deputy
Superintendent Michael Miller and Corrections Officer Benza. Id. ¶ 3, 17. Due to
the pending investigation, Plaintiff refused to write a statement on the matter for
Defendant Mooney. Id. ¶ 19. Following the incident, Plaintiff placed a call to the
Director of the EEO, Raphael Chieki, who told him he had already explained the
situation to Defendant Mooney and that Plaintiff need not write a statement. Id. ¶
25, 26. He then placed a call to his attorney. Id. ¶ 28.
As he was on the phone with his attorney, Defendants Baumbach and
Brumfield came into his office in full uniform and ordered him to hang up the
phone and come with them. Id. ¶ 29, 30. When Plaintiff protested that he was
speaking with his attorney, Defendant Brumfield grabbed the phone from
Plaintiff’s hand and then grabbed Plaintiff by the arm and ordered him out of the
room. Id. ¶ 31-33. In so doing, they told Plaintiff that he was under their
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jurisdiction and ordered him to walk in front of them, escorting him like a prisoner
through SCI Coal Township via various common rooms. Id. ¶ 36, 37, 41.
Defendants Baumbach and Brumfield eventually brought Plaintiff into Defendant
Mooney’s conference room with several other DOC employees and ordered him
again to write a statement. Id. ¶ 43-47. Throughout this time, they would not allow
him to leave the room or use the restroom, and they continued to demand that he
write the statement, despite being informed by both Plaintiff and EEO Director
Chieki that he was not required to do so. Id. ¶ 48-54, 63-64.
Ultimately, Plaintiff agreed to complete a statement, allegedly under duress.
Id. ¶ 56. After finishing the statement, however, he was not permitted to leave
until Defendant Mooney was able to review the statement. Id. ¶ 74-79. When
Defendant Mooney reviewed the statement, he related to Defendant Brumfield that
he was not satisfied with the content of Plaintiff’s statement. Id. ¶ 80.
Nevertheless, Defendants allowed Plaintiff to leave, although they made clear to
Plaintiff that on the following morning he would be required to rewrite his
statement to Defendant Mooney’s satisfaction. Id. ¶ 81, 82. He was once again
escorted like a prisoner, this time from the facility. Id. ¶ 82.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for
judgment on the pleadings “[a]fter the pleadings are closed – but early enough not
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to delay trial.” Fed. R. Civ. P. 12(c). The pleadings are considered closed after an
answer is filed, in addition to a reply to any counterclaims asserted in the answer.
See Atiyeh v. National Fire Ins. Co. of Hartford, 742 F.Supp.2d 591, 595 (E.D.Pa.
2010). A judgment on the pleadings will be granted only if “the movant clearly
establishes that there are no material issues of fact, and he is entitled to judgment
as a matter of law.” Sikirica v. Nationwide Insurance Company, 416 F.3d 214, 220
(3d Cir. 2005) (citing Society Hill Civic Association v. Harris, 632 F.2d 1045,
1054 (3d Cir. 1980). In ruling on such a motion, the court “must view the facts
presented in the pleadings and the inference to be drawn therefrom in the light
most favorable to the nonmoving party.” Id. Where, as here, a motion for
judgment on the pleadings argues that the plaintiff has failed to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil Procedure
12(h)(2)(B), the court considers the motion under the same standard as a Rule
12(b)(6) motion, even though no motion to dismiss under Rule 12(b)(6) has been
made. Fed. R. Civ. P. 12(h)(2)(B); see e.g., Turbe v. Government of Virgin Islands,
938 F.2d 427, 428 (3d Cir. 1991).
When considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a court must view all allegations stated in the complaint as true
and construe all inferences in the light most favorable to plaintiff. Hishon v. King
& Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
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Cir. 1993). However, “the tenet that a court must accept as true all of the [factual]
allegations contained in the complaint is inapplicable to legal conclusions.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In ruling
on such a motion, the court primarily considers the allegations of the pleading, but
is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d
at 183. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. At the motion
to dismiss stage, the court considers whether plaintiff is entitled to offer evidence
to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482
(3d Cir. 2000).
A complaint should only be dismissed if, accepting as true all of the
allegations in the amended complaint, plaintiff has not pled enough facts to state a
claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim
for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664.
“In considering a Rule 12(b)(6) motion, we must be mindful that federal
courts require notice pleading, as opposed to the heightened standard of fact
pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa.
May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a
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‘short and plain statement of the claim showing that the pleader is entitled to relief,'
in order to 'give the defendant fair notice of what the…claim is and the grounds on
which it rests,'" Bell Atlantic Corp. v. Twombly, 550 U.S. at 554 (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). However, even under this lower notice
pleading standard, a plaintiff must do more than recite the elements of a cause of
action, and then make a blanket assertion of an entitlement to relief. See Hellmann,
2008 WL 1969311 at *3. Instead, a plaintiff must make a factual showing of his
entitlement to relief by alleging sufficient facts that, when taken as true, suggest
the required elements of a particular legal theory. See Twombly, 550 U.S. at 561.
“[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 (quoting Fed. R. Civ.
P. 8(a)).
The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation
by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490
U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where
there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the
non-moving party can prove no set of facts in support of its allegations, then a
claim must be dismissed “without regard to whether it is based on an outlandish
legal theory or on a close but ultimately unavailing one.” Id. at 327.
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III. DISCUSSION
Section 1423 of the Pennsylvania Whistleblower Law provides, in relevant
part:
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.
43 P.S. § 1423(a). Section 1422 of that law defines the following terms:
“Wrongdoing” is a “violation which is not of a merely technical or minimal
nature of a Federal or State statute or regulation, of a political subdivision
ordinance or regulation or of a code of conduct or ethics designed to protect
the interest of the public or the employer.”
A “good faith report” is a “report of conduct defined in this act as
wrongdoing or waste which is made without malice or consideration of
personal benefit and which the person making the report has reasonable
cause to believe is true.”
43 P.S. § 1422.
Defendants object to Plaintiff’s claim under the Pennsylvania Whistleblower
Law on three bases: (1) that a report of violations of the PHRA and other
employment discrimination laws does not constitute “wrongdoing” as it is defined
within the statute; (2) that Plaintiff’s report does not constitute a “good faith
report” based on the above definition because it was made in consideration of
personal benefit; and (3) that the actions taken against Plaintiff, as stated in the

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complaint, did not sufficiently alter his compensation, terms, conditions, location
or privileges of employment as is required under the statute.
A. Wrongdoing
Defendants first argue that discrimination in violation of Title VII and the
PHRA does not constitute “wrongdoing” within the meaning of the statute because
neither are of the type that the Department of Corrections is charged with
enforcing. To that end they argue, “Certainly it is within [the DOC’s] desire to
ensure that their employees are not subject to workplace discrimination, but it is
not a statute or regulation that the DOC is charged with enforcing.” Plaintiff
responds that “[c]ontrary to Defendants’ assertions, the Department of Corrections
is charged with adherence to both acts for the public good.”
As articulated above, in order to state a claim under the Pennsylvania
Whistleblower Law, the plaintiff must demonstrate that he made a report of
wrongdoing, which is defined specifically to include only violations of laws or
regulations designed to protect the interest of the public. In one of the leading
Pennsylvania cases on the subject, the court held that the phrase “protect the
interest of the public” means “that a statute or regulation is of the type that the
employer is charged to enforce for the good of the public or is one dealing with the
internal administration of the governmental employer in question.” Gray v. Hafer,
651 A.2d 221, 224 (Pa.Cmwlth. 1994). A later case, Golaschevsky v.
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Commonwealth, Department of Environment Protection, reaffirmed Gray,
reasoning further that “[t]he fact that the wrongdoing was not committed by
employees of the [employer] was not the critical factor for purposes of [the Gray]
decision, i.e., the identity of the party committing the wrongdoing was not
determinative. The determinative factor was that the violation was not of a statute
or regulation that the [employer] was charged to enforce for the good of the
public.” Golaschevsky v. Com., Dept. of Environmental Resources, 683 A.2d
1299, 1304 (Pa.Cmwlth. 1996).
Consequently, the important issue in the matter before this Court is whether
anti-discrimination laws such as those presented through Title VII and the PHRA
are “of the type that the employer is charged to enforce for the good of the public.”
This analysis entails consideration of two elements: (1) whether Title VII and the
PHRA are statutes that the DOC is charged with enforcing; and (2) whether that
enforcement is for the good of the public. I find that they are, and that therefore
Plaintiff has adequately pled the element of “wrongdoing.”
In Gray, an employee of the Auditor General’s office reported instances of
criminal misconduct by Temple University employees, which he alleged ultimately
led to his dismissal. Gray, 652 A.2d at 224. The court in that case found that the
reported instances of misconduct were not violations of any law or regulation
which the Auditor General’s office had the responsibility to enforce and therefore
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there was no “wrongdoing” within the meaning of the whistleblower law. Id. at
225. In so holding, the court analogized to a situation in which Temple University
officials received parking tickets. Because parking tickets are not laws of the type
enforced by the Auditor General and would have nothing to do with the internal
administration of that office, such violations could not be considered
“wrongdoing.” Id. at 224.
In contrast, the court in Rankin v. City of Philadelphia found that violations
of health and safety regulations were “wrongdoing” within the meaning of the law.
Rankin v. City of Philadelphia, 963 F.Supp. 463, 473 (E.D.Pa. 1997). In that case,
the court was asked to consider a situation in which a nursing home employee
reported allegations of falsified asbestos records. Id. at 467. The court specifically
addressed the decision in Gray and differentiated it, holding that the Gray court
“was addressing . . . the question [of] whether wrongdoing is established by
reporting violations not only of crimes of the employer but of third parties. . . .
Here, of course, Rankin is alleging that the violations were committed by his
employer, a matter his employer certainly does have something to do with, and
they are violations of regulations generally designed to protect the interest of the
public.” Id. at 473 n.3.

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This Court finds little difference with regards to the impetus on the employer
to enforce anti-discrimination laws and health/safety regulations. An employer is
only charged with enforcing health and safety regulations to the extent that it is
required to comply with those regulations and therefore ensure compliance
amongst its employees. In the same way, an employer is charged with enforcing
anti-discrimination laws to the extent that it is required to comply with those laws
and consequently ensure compliance amongst its employees. The latter is not the
type of situation in which the employer could do nothing to prevent the violation
from occurring; rather, the employer is uniquely situated to prevent discrimination
within its workplace through the way it runs its office and directs its employees.
Consequently, this Court holds that the DOC is charged with enforcing antidiscrimination laws such as Title VII and the PHRA.1
The second inquiry in this analysis, then, is whether the DOC enforces Title
VII and the PHRA “for the good of the public.” As to this aspect, the Court has
little guidance from case law and must instead rely upon its own common sense
and the purposes and policies behind the statutes themselves. Importantly, section
952 of the PHRA, “Findings and declaration of policy,” states:
[D]iscrimination foments domestic strife and unrest, threatens the rights and
privileges of the inhabitants of the Commonwealth, and undermines the
foundations of a free democratic state. The denial of equal employment,
1

My holding on this issue is consistent with other case law on the subject. See Tresky v. Peters, Civil Action No.
09-1616, 2010 WL 1979391, at * 5 (W.D.Pa. Apr. 27, 2010) (holding that a report of retaliation because of the filing
of an EEOC charge constitutes good-faith reporting of wrongdoing under the Pennsylvania Whistleblower Law).

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housing and public accommodation opportunities because of such
discrimination, and the consequent failure to utilize the productive capacities
of individuals to their fullest extent, deprives large segments of the
population of the Commonwealth of the earnings necessary to maintain
decent standards of living, necessitates their resort to public relief and
intensifies group conflicts, thereby resulting in grave injury to the public
health and welfare, compels many individuals to live in dwellings which are
substandard, unhealthful and overcrowded, resulting in racial segregation in
public schools and other community facilities, juvenile delinquency and
other evils, thereby threatening the peace, health, safety and general welfare
of the Commonwealth and its inhabitants.
43 P.S. § 952(a).
Such a broad and sweeping statement of policy leads this Court to believe
that the relief provided for in the statute was enacted to achieve more widereaching aims than remedying individualized discrimination. Even though the
situation before the Court today is confined to employees of the DOC, the purpose
behind the act indicates the necessity that each individual employer abide by the
anti-discrimination laws contained therein in order to achieve more comprehensive
purposes. Moreover, though Title VII of the Civil Rights Act of 1964 contains no
such analogous statement of policy, this Court has no reason to believe that its
objectives are much different or more limited than those of the PHRA.
Accordingly, I find that the DOC is tasked with enforcing these anti-discrimination
laws “for the good of the public,” and that therefore the violation of those laws
constitutes wrongdoing within the meaning of the Pennsylvania Whistleblower
Law.
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B. Good Faith Report
Defendants next contend that Plaintiff’s report, which was a discrimination
claim against a corrections officer, cannot be considered a good faith report
because it was not made without consideration of personal benefit, as is required
by the statute. Plaintiff merely responds that “[n]o portion of the Complaint
indicates that Plaintiff made his reports with malice or in consideration of personal
gain. Those are defenses which Defendants may raise only after development of a
record.” Neither party cites to any law in support of their respective positions.
Nevertheless, this Court agrees with Plaintiff that, on the instant motion, a
conclusive determination as to whether Plaintiff made his report of wrongdoing
with malice or consideration of personal benefit would be premature. The exact
circumstances and contours of Plaintiff’s reports to the EEOC and the PHRC are
unknown at this time, as are the Plaintiff’s motivations behind so reporting.
Drawing all inferences in favor of the Plaintiff, the nonmoving party, it is entirely
plausible that the Plaintiff made his report with motivations other than that of
personal benefit; therefore it is impossible for this Court to determine that no
genuine issue of material fact exists as to this element of Plaintiff’s claim. 2

2

However, this Court will note that in a similar situation a court determined on a motion for summary judgment that
the plaintiff’s complaints regarding discrimination against herself did not constitute a good faith report because they
were made for her own personal benefit. See Albright v. City of Philadelphia, 399 F.Supp.2d 575, 596 (E.D.Pa.
2005). Importantly, the court stated, “If Albright’s complaints constituted a good faith report for the purposes of the
Whistleblower Act, every retaliation claim under Title VII or PHR involving a public employer would trigger the
application of the act, clearly not within the plain statutory language excluding ‘consideration of personal benefit’
from protection under the statute.” Id.

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C. Retaliation
Finally, Defendants argue that the adverse actions that Plaintiff was
subjected to, as described above, are not sufficient to make out a claim that he was
discharged, threatened, or otherwise discriminated or retaliated against “regarding
[his] compensation, terms, conditions, location or privileges of employment.”
They contend that what is alleged is insufficient because it did not alter the
conditions of Plaintiff’s employment. Plaintiff responds that the Pennsylvania
Superior Court in Podgurski v. Pennsylvania State University has found similar
allegations to sufficiently state a claim of retaliation under the Pennsylvania
Whistleblower Law.
To begin with, Plaintiff’s reliance on Podgurski is clearly misplaced. The
court in that case decided only the issue of whether the violations that the plaintiff
had reported could constitute wrongdoing, not whether the retaliatory acts taken
were sufficient in that they somehow altered the conditions of plaintiff’s
employment. Podgurski v. Pennsylvania State University, 722 A.2d 730, 732
(Pa.Super. 1998). That court did not have before it, and therefore did not consider,
whether the allegations of retaliation in the complaint, which were somewhat
similar to those in the case at bar, were sufficient to state a claim under the
Pennsylvania Whistleblower Law. Though it alludes to a situation from another
case in which the court had decided that further factual details would be helpful in
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coming to a legal conclusion on this issue, it did not conclusively rule that the
retaliatory actions in the specific action before it were sufficient.3
This Court is again faced with a situation in which there is little law to
inform it as to what types of adverse actions were contemplated by the specific
addition of the phrase “compensation, terms, conditions, location or privileges of
employment.” However, it is relevant to note that the substantive provisions of
Title VII and the PHRA utilize almost this exact same language.4 Consequently, in
order to determine what the Pennsylvania legislature intended when it enacted
section 1423, I will look to the way in which the phrase has been interpreted under
Title VII.5
In this regard, the United States Supreme Court has held that the “words in
the substantive provision [of Title VII] – ‘hire,’ ‘discharge,’ ‘compensation, terms,
conditions, or privileges of employment,’ . . . explicitly limit the scope of that
provision to actions that affect employment or alter the conditions of the
workplace.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62

3

The case that is discussed by the Podgurski court is Rodgers v. Pennsylvania Dept. of Corrections, 659 A.2d 63
(Pa.Cmwlth. 1995). In that case, the plaintiff was placed on the daylight shift, contrary to his wishes, and was
refused a transfer to a different location. Ultimately, he was relieved of his leadership position and several job
duties. These allegations are very different from those in the case before us today, and because the holding in that
case was very dependent on the factual background, it is not helpful in deciding the present issue.
4
Section 703(a)(1) of Title VII states, “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.”
5
The elements of a discrimination claim under the PHRA are analogous to those under Title VII. See Goosby v.
Johnson & Johnson Medical, Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (“The analysis required for adjudicating
Goosby’s claim under PHRA is identical to a Title VII inquiry.”).

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(2006). This was decided in direct contrast to the anti-retaliation provision of that
statute, which contains no such language and therefore “is not limited to
discriminatory actions that affect the terms and conditions of employment.” Id. at
64. Accordingly, while the anti-retaliation provision applies to all adverse action
that might “dissuade[] a reasonable worker from making or supporting a charge of
discrimination,” id. at 68., the substantive provision which contains the implicated
language is much more limited, addressing only those actions which affect
employment or alter the conditions of the workplace. Importantly, under the
statute, “not all workplace conduct that may be described as ‘harassment’ affects a
‘term, condition, or privilege’ of employment.” Meritor Savings Bank, FSB v.
Vinson, 477 U.S. 57, 67 (1986).
In the case at bar, Plaintiff has alleged a variety of retaliatory actions taken
against him on one specific day. These allegations, while certainly adverse, do not
fall within the plain language of the phrase “compensation, terms, conditions,
location or privileges of employment,” as it has been interpreted by the United
States Supreme Court in the context of Title VII. Consequently, the facts as
pleaded are insufficient to state a claim for relief under the Pennsylvania
Whistleblower Law. The Court notes, however, that Plaintiff has mentioned in his
opposition brief that “in the course of discovery [he] will show that he was stripped
of certain duties of his position and, ultimately, constructively discharged.”
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Because these allegations are not included within the complaint, this Court has not
considered them for the purposes of the instant motion. However, I will dismiss
this count without prejudice and grant Plaintiff leave to amend to assert those
additional allegations in his complaint.
IV. CONCLUSION
In accordance with the foregoing reasoning, Counts III, V, and VI will be
dismissed on concurrence of the Plaintiff. Count IX under the Pennsylvania
Whistleblower Law is dismissed without prejudice with leave to amend in
accordance with the instant decision.
BY THE COURT:

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

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