Duran v. County of Clinton et al

Filing 9

MEMORANDUM (Order to follow as separate docket entry) re: 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by County of Clinton, Jeffrey Snyder, Robert Smeltz, Joel Long. (See memo for complete details.)Signed by Chief Judge Christopher C. Conner on 9/25/15. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS V. DURAN,
Plaintiff
v.
COUNTY OF CLINTON, JEFFREY
SNYDER, ROBERT SMELTZ, and
JOEL LONG,
Defendants

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CIVIL ACTION NO. 4:14-CV-2047
(Chief Judge Conner)

MEMORANDUM
Plaintiff Thomas V. Duran (“Duran”) filed the above-captioned action
alleging a retaliation claim under the Family and Medical Leave Act (“FMLA”),
procedural due process claims under 42 U.S.C. § 1983, and state law claims for
wrongful termination, breach of contract, and tortious interference with contract.
Presently before the court is a motion (Doc. 5) to dismiss filed by defendants County
of Clinton, Jeffrey Snyder, Robert Smeltz, and Joel Long. For the reasons that
follow, the court will grant the motion in part and deny it in part.
I.

Factual Background & Procedural History1
From 1993 to 1997, and from 2000 to 2012, Duran was employed by Clinton

County, Pennsylvania (“the County”) as Warden of the Clinton County Correctional
Facility (“the Facility”). (Doc. 1 ¶¶ 6, 16). At all times relevant to the complaint,
Jeffrey Snyder served as Prison Board Chairman and Vice-Chairman of the Clinton
1

In accordance with the standard of review for a Rule 12(b)(6) motion to
dismiss, the court will “accept all well-pleaded facts in the complaint as true and
view them in the light most favorable” to Duran. Carino v. Stefan, 376 F.3d 156, 159
(3d Cir. 2004).

County Board of Commissioners. (Id. ¶ 9). Robert Smeltz was Chairman of the
Clinton County Board of Commissioners and a member of the Clinton County Prison
Board. (Id. ¶ 11). Joel Long was a member of both the Clinton County Board of
Commissioners and the Clinton County Prison Board. (Id. ¶ 12). Duran avers that
the County and the Board of Commissioners “were ultimately responsible for all
hiring and firing decisions of any County employee.” (Id. ¶ 7).
On December 7, 2007, the County entered into an employment contract with
Duran. (Doc. 1-2). The employment contract contained the following pertinent
provisions:
The term of employment shall commence November 5,
2007, and shall continue for a period of five (5) years,
except as otherwise provided in this agreement.
...
The County and The Prison Board may terminate this
Agreement only upon a finding of dishonesty or gross
malfeasance by the Employee.
...
No amendment, modification or extension of this
Agreement shall be valid or binding upon the parties
unless made in writing and signed by the parties.
(Id. at 3-5). Duran contends that his employment contract was in force until
November 4, 2012, and that it renewed on that day “for an additional five (5) year
period.” (Doc. 1 ¶¶ 44-45).
Between 2003 and 2012, Duran underwent a number of medical procedures
for which he was provided accommodations by the County. (Id. ¶¶ 31, 35-37). These
accommodations included permitting Duran “to periodically work from home” and
2

“to take leave as necessary to receive medical care and treatment.” (Id. ¶ 31).
Shortly after Snyder‟s term on the Board of Commissioners commenced in January
of 2012, Snyder questioned Duran about the amount of hours he worked on-site at
the Correctional Facility. (Id. ¶ 33). Snyder then demanded Duran‟s physical
presence there for at least eight hours per day. (Id.) Duran replied that he “would
do his best” and that he could fulfill his duties from his nearby home. (Id. ¶ 33).
On October 5, 2012, Duran sent a memo to members of the Clinton County
Prison Board requesting medical leave from October 29, 2012 through November 4,
2012. (Id. ¶ 39). “A few days” later, Duran was advised that he needed to attend a
public prison board meeting on October 24, 2012. (Id. ¶ 40). Duran alleges that at
the meeting, Snyder made or directed to be made a motion to suspend Duran‟s
employment, effective on October 25, 2012, and to terminate Duran‟s employment
on November 6, 2012. (Id. ¶ 42). Duran‟s termination was confirmed at the next
scheduled Board of Commissioners meeting. (Id. ¶ 43). Duran‟s termination
became effective on either November 5 or November 6. (Id. ¶¶ 26, 45).2
Duran avers that between 2000 and 2012, he “only received exemplary
reviews of his performance” as Warden. (Id. ¶ 24). Duran asserts that his medical
status “had not been a concern” prior to Snyder‟s election to the Board of
Commissioners. (Id. ¶ 34). The County did not make a finding of Duran‟s
dishonesty or gross malfeasance prior to his termination. (Id. ¶ 48). In his
complaint, Duran alleges that his termination resulted from “Mr. Snyder‟s and or
2

Duran states in his complaint that his termination was effective on
November 5, 2012. (Doc. 1 ¶¶ 45, 107, 124). Elsewhere in his complaint, he identifies
November 6, 2012 as his effective date of termination. (Id. ¶¶ 26, 57).
3

[sic] the Commissioners‟ disdain for” his health-related accommodations and
request for medical leave. (Id. ¶ 30).
On October 23, 2014, Duran filed the complaint (Doc. 1) against the County
and Snyder, Smeltz, and Long. Duran asserts against all defendants a retaliation
claim under the FMLA, procedural due process claims under 42 U.S.C. § 1983, and
a wrongful termination claim. (Id.) Duran also asserts a state law claim for tortious
interference with contract against Snyder, Smeltz, and Long, as well as a claim for
breach of contract against the County. (Id.) On December 22, 2014, defendants filed
the instant motion (Doc. 5) to dismiss all claims pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.
See FED. R. CIV. P. 12(b)(6). The motion is fully briefed and ripe for disposition.
II.

Jurisdiction and Legal Standard
The court has jurisdiction over the instant matter because the complaint

presents a question of federal law. See 28 U.S.C. § 1331. Duran alleges that
defendants deprived him of his constitutional rights under color of state law. See
28 U.S.C. § 1343(a)(3). Duran also asserts a cause of action under federal statutory
law. See 29 U.S.C. § 2617(a). The court exercises supplemental jurisdiction over the
state law claims for wrongful termination, breach of contract, and tortious
interference with contract. See 28 U.S.C. § 1367. These claims are related to and
share a “common nucleus of operative facts” with the federal law claims, thus
forming part of the same case or controversy. Lyons v. Whisman, 45 F.3d 758,
759-60 (3d Cir. 1995) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725
(1996)).
4

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief may be granted.
FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine, whether under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Gelman v. State
Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. Cty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170,
177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). In
addition to reviewing the facts contained in the complaint, the court may also
consider “matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); Pension Ben. Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To test the sufficiency of the complaint, the court must conduct a three-step
inquiry. See Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In
the first step, “the court must „tak[e] note of the elements a plaintiff must plead to
state a claim.‟ ” Id. at 130 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next,
the factual and legal elements of a claim should be separated; well-pleaded facts
must be accepted as true, while mere legal conclusions may be disregarded. Id. at
5

131; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Once
the court isolates the well-pleaded factual allegations, it must determine whether
they are sufficient to show a “plausible claim for relief.” Iqbal, 556 U.S. at 679
(citing Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to
allege facts sufficient to “raise a right to relief above the speculative level”). A claim
“has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. When the complaint fails to present a prima facie
case of liability, courts should generally grant leave to amend before dismissing a
complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002);
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
III.

Discussion
Defendants contend that Duran‟s factual averments, even accepted as true,

are insufficient to establish his entitlement to relief under the FMLA, Section 1983
and the Fourteenth Amendment, and state law governing tortious interference with
contract, wrongful termination, and breach of contract disputes. The court will
address these issues seriatim.

6

A.

FMLA Claim

Defendants argue that Duran has not set forth sufficient factual allegations to
sustain a retaliation claim under the FMLA.3 (See Doc. 6 at 8-10). Specifically,
defendants assert that Duran‟s complaint “fails to plead any facts giving rise to an
inference of a causal link between his FMLA request and his separation of
employment.” (Id. at 10). Duran responds that he has adequately pleaded
causation because his complaint shows the “unusually suggestive timing” of his
suspension and termination in relation to his requested leave period. (Doc. 7-1 at
16-17).
The FMLA was designed in part “to balance the demands of the workplace
with the needs of families.” 29 U.S.C. § 2601(b)(1). Under the FMLA, an eligible
employee is entitled to “12 workweeks of leave during any 12-month period” for
certain qualifying events. 29 U.S.C. § 2612(a)(1)(D). Retaliation claims derive from
the FMLA‟s “proscriptive rights,” which prohibit discrimination or retaliation
against an employee for exercising the substantive rights created by the FMLA.
See Rigel v. Wilks, No. 1:03-CV-971, 2006 WL 3831384, at *10 (M.D. Pa. Dec. 28, 2006)
(distinguishing between the FMLA‟s prescriptive or substantive and proscriptive
3

Duran‟s complaint is unclear as to whether he asserts claims for
interference with his FMLA rights, for retaliation for his exercise of those rights, or
for both interference and retaliation. (See Doc. 1 ¶¶ 52-59); see also Cullison v.
Dauphin Cty., PA, No. 1:10-CV-705, 2012 WL 3026784, at *6 (M.D. Pa. July 24, 2012)
(describing the distinction between FMLA interference and retaliation claims).
Defendants address both theories of liability in their supporting brief. (Doc. 6 at 610). Duran acknowledges only a retaliation claim in his response, (see Doc. 7-1 at
15-17), and thus has effectively waived an interference claim. See D‟Angio v.
Borough of Nescopeck, 34 F.Supp. 2d 256, 265 (M.D. Pa. 1999) (regarding
abandonment of a position as tantamount to waiver).
7

rights). The Third Circuit Court of Appeals has observed that although retaliation
claims alleging that an employee was unlawfully terminated for taking FMLA leave
do not fall within the “literal scope” of 29 U.S.C. § 2615(a)(2), such claims are
nevertheless cognizable under 29 C.F.R. § 825.220(c). Conoshenti v. Pub. Serv. Elec.
& Gas Co., 364 F.3d 135, 146 n.9 (3d Cir. 2004); see also Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 691 F.3d 294, 301 n.10 (3d Cir. 2012) (“[W]e have predicated
liability for retaliation based on an employee's exercise of FMLA rights on the
regulation itself.”). The relevant regulation provides that the FMLA “prohibits an
employer from discriminating or retaliating against an employee or prospective
employee for having exercised or attempted to exercise FMLA rights.” 29 C.F.R.
§ 825.220(c).
To establish a retaliation claim, a plaintiff must demonstrate that “(1) she
invoked her right to FMLA-qualifying leave, (2) she suffered an adverse
employment decision, and (3) the adverse action was causally related to her
invocation of rights.” Lichtenstein, 691 F.3d at 301-02. A plaintiff may support the
element of a causal link between the FMLA leave and an adverse employment
action by showing “(1) an unusually suggestive temporal proximity between the
protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link.” Budhun v. Reading Hosp. & Med.
Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (quoting Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir.2007)). When the temporal proximity is not
unusually suggestive, a plaintiff may still show causation if “the proffered evidence,
looked at as a whole, may suffice to raise the inference.” LeBoon v. Lancaster
8

Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007) (quoting Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (3d Cir.2000)).
Duran alleges sufficient facts for his FMLA retaliation claim to survive
defendants‟ motion to dismiss. Duran requested medical leave on October 5, 2012.
(Doc. 1 ¶ 39). His termination became effective one month later, on or about the day
he had planned to return to work full-time. (Id. ¶¶ 42, 45). Further, Duran‟s
chronology of his termination process begins only “a few days after” his leave
request. (Doc. 1 ¶ 40). At this stage, these factual allegations are adequate to
support the causation element of a retaliation claim. See Kachmar v. SunGard Data
Sys., Inc., 109 F.3d 173, 177-79 (3d Cir. 1997) (finding that a four-month gap between
the alleged protected activity and retaliatory action did not preclude retaliation
claim at pleading stage); McDonald v. SEIU Healthcare Pennsylvania, No.
1:13-CV-2555, 2014 WL 4672493, at *18 (M.D. Pa. Sept. 18, 2014) (Conner, C.J.)
(stating in motion to dismiss context that “whether the precise timing of defendants'
employment actions establishes causation need not be resolved at this stage in the
proceedings”); Hines v. Twp. of Harrisburg, Pa., No. 07-0594, 2007 WL 2907896, at *2
(W.D. Pa. Sept. 30, 2007) (declining to “make a determination as to causation in the
context of a motion to dismiss” FMLA retaliation claim). Defendants raise the
concern that if Duran‟s allegations of unusually suggestive timing now suffice, then
employers would be “precluded from terminating an employee at the conclusion of
a contract period where the employee requests FMLA leave at that time.” (Doc. 8 at
6). However, because Duran still faces the burden of establishing a causal relation
between his FMLA leave and defendants‟ alleged retaliation at summary judgment,
9

this concern is unwarranted. See Kachmar, 109 F.3d at 178 (emphasizing that legal
outcomes respecting the causation element of retaliation claims may differ
depending on the stage of the judicial proceeding). The court will thus deny
defendants‟ motion to dismiss Duran‟s FMLA retaliation claim.
B.

Section 1983 Claims

Section 1983 of Title 42 of the United States Code provides a cause of action
to redress violations of federal law committed by state officials. See 42 U.S.C.
§ 1983. Section 1983 is not a source of substantive rights, but merely a method for
vindicating those rights otherwise protected by federal law. Gonzaga Univ. v. Doe,
536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To
establish a claim under Section 1983, a plaintiff must show a deprivation of a “right
secured by the Constitution and the laws of the United States . . . by a person acting
under color of state law.” Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995)). Defendants do not dispute Duran‟s
contention that defendants Snyder, Smeltz, and Long acted under color of state
law. (See Doc. 1 ¶¶ 61, 64, 87).
In the case sub judice, Duran alleges that defendants violated his
constitutional rights by failing to provide adequate pre-termination and posttermination procedures, in violation of the Fourteenth Amendment. He asserts
claims against Snyder, Smeltz, and Long in both their individual and official
capacities, as well as claims against the County. The court will address these claims
in turn.

10

1.

Official Capacity Claims Against Snyder, Smeltz, and Long

Defendants properly seek dismissal of Duran‟s Section 1983 official capacity
claims against Snyder, Smeltz, and Long on the basis that they are “merely
duplicative of the claims against the County.” (Doc. 6 at 21).4 A suit against a
government official in his or her official capacity is synonymous with a claim against
the government entity itself. See Kentucky v. Graham, 473 U.S. 159, 165 (1985)
(quoting Monell v. Dep‟t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)) (stating that
suits against officers in their official capacity “generally represent only another way
of pleading an action against an entity of which an officer is an agent”); Hill v.
Borough of Kutztown, 455 F.3d 225, 233 n.9 (3d Cir. 2006) (recognizing that officialcapacity claims “are, effectively, identical to” claims against a local governmental
entity); Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir. 1988) (same). If a plaintiff
asserts claims against both a government entity and the entity‟s agents in their
official capacity, the court should dismiss the official-capacity suits. See Lopez v.
Maczko, No. 07-1382, 2007 WL 2461709, at *7 (E.D. Pa. Aug. 16, 2007) (granting
motion to dismiss official capacity suits as duplicative); Johnston v. Dauphin
Borough, No. 1:05-CV-1518, 2006 WL 1410766, at *4 (M.D. Pa. May 22, 2006)
(Conner, J.) (granting motion to dismiss official-capacity claims because plaintiff
4

In his complaint, Duran states generally that each of the individual
defendants Snyder, Smeltz, and Long “is being sued in both his official and
individual capacities.” (Doc. 1 ¶¶ 9, 11, 13). Contrary to this general averment,
Duran‟s tortious interference claim may only proceed against the defendants in
their individual capacities. (See infra Part III.C). The court also notes that Duran
expressly references the individual defendants in both their “official and individual
capacities” only within his Section 1983 claims. (See Doc. 1 ¶¶ 71, 88). Accordingly,
the court construes Duran‟s complaint to assert official-capacity claims only with
respect to his Section 1983 claims.
11

asserted identical claims against municipality); Abdullah v. Fetrow, No.
1:05-CV-1135, 2006 WL 1274994, at *4 (M.D. Pa. May 8, 2006) (Conner, J.) (same).
Therefore, Duran‟s Section 1983 claims against the individual defendants Snyder,
Smeltz, and Long in their official capacities duplicate his claims against the County
and will be dismissed.5 Leave to amend will be denied as futile. See Grayson, 293
F.3d at 108.
2.

Procedural Due Process Claims Against Clinton County

Defendants contend that Duran‟s Section 1983 claims against the County
should be dismissed because he “does not identify any municipal policy or custom
that resulted in his alleged injury.” (Doc. 6 at 12). Duran appears to reject the idea
that he is burdened to identify any such policy. (See Doc. 7-1 at 18). The court
agrees with the defendants on this issue.
Municipalities and other local government entities may not be held liable
under Section 1983 for conduct of their employees under a theory of respondeat
superior or vicarious liability. Bd. of Cty. Comm‟rs v. Brown, 520 U.S. 397, 403
(1997) (citing Monell v. Dep‟t of Social Servs., 436 U.S. 658, 694 (1978)); see also
Colburn v. Upper Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991). However,
municipalities may be held liable if the plaintiff can “identify a municipal „policy‟ or
„custom‟ that caused the plaintiff‟s injury.” Brown, 520 U.S. at 403; see also
Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986); Carswell v. Borough of
5

Duran offers no response to defendants‟ argument for dismissal of his
claims against the individual defendants in their official capacities. Hence, the
court will also deem Duran‟s official-capacity claims to be abandoned. See supra
note 3.
12

Homestead, 381 F.3d 235, 244 (3d Cir. 2004) (stating that “[d]istrict courts must
review claims of municipal liability independently of the section 1983 claims
against” individual defendants) (internal quotation omitted).
To establish liability under Monell, a plaintiff must identify the challenged
policy or custom, attribute it to the municipality itself, and show a causal link
between the execution of the policy or custom and the injury suffered. Losch v.
Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). A policy exists “when a
„decisionmaker possess[ing] final authority to establish municipal policy with
respect to the action‟ issues an official proclamation, policy, or edict.” Andrews v.
City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting, in part, Pembaur, 475 U.S.
at 481). A custom is formed when the “practices of state officials [are] so permanent
and well settled as to virtually constitute law.” Id. A plaintiff also may establish a
custom by evidence of knowledge or acquiescence in a pattern of constitutional
violations. Fletcher v. O'Donnell, 867 F.2d 791, 793 (3d Cir. 1989).
In his complaint, Duran alleges that Snyder, Smeltz, and Long had “final
decision making authority regarding the termination of Plaintiff‟s employment, and
the conduct by which he was deprived of his constitutional and civil rights.” (Doc. 1
¶ 62). Duran fails, however, to identify a municipal policy or custom and to allege a
causal link between that policy and any injury he suffered. See Santiago v.
Warminster Twp., 629 F.3d 121, 135 (3d Cir. 2010) (dismissing Monell claim when
plaintiff failed to allege an official with policymaking authority who took action that
“could fairly be said to be policy”); Briston v. Cty. of Allegheny, No. 2:08-CV-1380,
2011 WL 635267, at *6 (W.D. Pa. Feb.11, 2011) (The “inability to advance facts
13

sufficient to identify an existing policy . . . precludes the ability to establish Monell
liability”). Duran therefore does not satisfactorily allege the elements of a Monell
claim. Accordingly, the court will dismiss without prejudice Duran‟s Section 1983
claims against the County.
3.

Procedural Due Process Claims Against Snyder, Smeltz, and
Long

The Due Process Clause of the Fourteenth Amendment prohibits states from
depriving any person of “life, liberty, or property, without due process of law.” U.S.
CONST. amend. XIV, § 1. To prevail on a Section 1983 procedural due process
claim, a plaintiff must demonstrate (1) that he or she was deprived of a protected
liberty or property interest under the Fourteenth Amendment, and (2) that the
procedures afforded him or her failed to comport with the requirements of due
process. Hill, 455 F.3d at 233-34 (citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.
2000)). In the instant matter, Duran alleges both property and liberty deprivations,
and defendants challenge the sufficiency of both claims.
a.

Property Interest

Defendants argue that Duran does not satisfactorily allege a procedural due
process claim because “he had no property interest in his job after November 5,
2012.” (Doc. 6 at 14). In response, Duran states that he has pleaded “more than a
unilateral expectation of continued employment sufficient to trigger” procedural
due process protections. (Doc. 7-1 at 19).
A property interest protected by the Fourteenth Amendment exists only if
the plaintiff has “a legitimate claim of entitlement” to the interest. Bd. of Regents of
14

State Colls. v. Roth, 408 U.S. 564, 577 (1972); Hill, 455 F.3d at 234; Elmore v. Cleary,
399 F.3d 279, 282 (3d Cir. 2005). Legitimate entitlement to a job requires “more than
a unilateral expectation of continued employment.” Elmore, 399 F.3d at 282.
Constitutionally protected property interests are created by other law, such as state
law. Roth, 408 U.S. at 577 (holding that property interests derive from independent
sources like state law); Hill, 455 F.3d at 234 (observing that the existence of a
property interest is “a question answered by state law”). In the case at hand,
Pennsylvania law governs whether Duran had a protected property interest in his
employment. See Dee v. Borough of Dunmore, 549 F.3d 225, 229-30 (3d Cir. 2008);
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 316 n.9 (M.D. Pa. 2004) (Conner, J.).
Under Pennsylvania law, protected property interests arise in three ways:
First, through legislative action or authorization, see Aguilar v. Pa. Apple Mktg.
Program, No. 1:05-CV-0804, 2006 WL 167820, at *6 (M.D. Pa. Jan.19, 2006); Pivarnik
v. Commonwealth, Dep‟t of Transp., 474 A.2d 732, 734 (Pa. Commw. Ct. 1984);
Second, through a contract that grants the plaintiff protected status, such as
employment tenure or welfare benefits, see Unger v. Nat‟l Residents Matching
Program, 928 F.2d 1392, 1399 (3d Cir. 1991) (stating that contracts granting
protected status create property rights); Third, through an employment contract
permitting dismissal only for cause, see Unger, 928 F.2d at 1399 (summarizing
protection conferred on employment contracts terminable only for cause); see also
Linan-Faye Constr. Co. v. Hous. Auth. of Camden, 49 F.3d 915, 932 (3d Cir. 1995)
(extending procedural due process protection to employment contracts that require
cause for termination); Aguilar, 2006 WL 167820, at *6 (same).
15

In the case sub judice, Duran bases his assertion of having more than a
unilateral expectation of continued employment on his alleged status as a
“contracted employee.” (Doc. 1 ¶ 65). Yet, as explained more fully infra in the
court‟s consideration of Duran‟s breach of contract claim, Duran‟s factual
allegations do not raise the reasonable inference that he had a contractually-based
expectation of continued employment after the expiration of his employment
contract.6 In the absence of a viable contract renewal argument or other theory,
Duran‟s post-contract expiration status would have been at-will and therefore not
protected by the Fourteenth Amendment. See Elmore, 399 F.3d at 282 (“The
decisional law is clear that an at-will employee does not have a legitimate
entitlement to continued employment.”); Cooley v. Pa. Hous. Fin. Agency, 830 F.2d
469, 471 (3d Cir. 1987); Bell v. Lackawanna Cty., 892 F. Supp. 2d 647, 658 n.8 (M.D.
Pa. 2012) (Conner, J.) (“[A]t-will employees . . . have no property interest in their
positions and, thus, have no due process rights prior to termination.”); Chinoy v. Pa.
State Univ., No. 11-CV-1263, 2012 WL 727965, at *4 (M.D. Pa. Mar. 6, 2012)
(suggesting a presumption of at-will status when employment contract expires).
Hence, before the court reaches the issue of what protections the employment
contract afforded, Duran must allege facts supporting his conclusory assertion that
he was a “contracted employee” even after his contract‟s expiration. The court
6

In short, Duran claims that his employment contract expired on November
4, 2012, and that it had renewed before the effective date of his termination on
November 5, 2012. (Doc. 1 ¶¶ 44, 45). His apparent theory of implied renewal (as
the employment contract contains no automatic renewal clause) is belied by
defendants‟ opposition to his continued employment (Doc. 1 ¶¶ 42-43) and Duran‟s
failure to allege that he continued his employment services after the contract‟s
expiration. See infra Part III.E.
16

therefore will dismiss without prejudice Duran‟s Section 1983 procedural due
process claim alleging deprivation of property.
b.

Liberty Interest

Defendants argue that Duran fails to state a claim for deprivation of a liberty
interest because he “does not provide any allegations of false or misleading
statements that were allegedly made about him in connection with his separation of
employment.” (Doc. 6 at 15). Duran maintains that he has sufficiently stated his
claim because he avers that defendants “fabricated pre-textual reasons,
explanations, and claims upon which to falsely premise” his employment
termination. (Doc. 7-1 at 20).
An individual may have a protected liberty interest in his or her reputation.
See Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971). However, “reputation
alone is not an interest protected by the Due Process Clause.” Clark v. Twp. of
Falls, 890 F.2d 611, 619 (3d Cir. 1989) (citing Paul v. Davis, 424 U.S. 693, 711-12
(1976)). To assert a due process claim for a liberty interest in reputation, a plaintiff
must show “a stigma to his reputation plus deprivation of some additional right or
interest.” Hill, 455 F.3d at 236 (stating that, in the public employment context, “the
creation and dissemination of a false and defamatory impression is the „stigma,‟ and
the termination is the „plus‟ ”). To satisfy the “stigma” requirement, the
stigmatizing statements must have been made publicly and must be false. Id.; see
also Brown v. Montgomery Cty., 470 F. App'x 87, 91 (3d Cir. 2012) (non-precedential)
(stating that, in order to establish the “stigma” prong, plaintiff must show

17

“1) publication of 2) a substantially and materially false statement that 3) infringed
upon [plaintiff's] „reputation, honor, or integrity‟ ” (citation omitted)).
Duran fails to plead the “stigma” requirement of his “stigma-plus” claim.
Duran avers in his complaint that defendants “have blackened Plaintiff‟s name and
reputation,” and that “the false and defamatory impressions and statements created
and disseminated by the Defendants . . . were false, misleading, . . . and were made
publicly and as part of the Plaintiff‟s permanent employment record.” (Doc. 1 ¶¶
88-89). Nevertheless, surviving a motion to dismiss requires factual allegations that
“raise a right to relief above the speculative level and the complaining party must
offer more than labels and conclusions or a formulaic recitation of elements of a
cause of action.” W. Run Student Hous. Assocs., LLC v. Huntington Nat‟l Bank, 712
F.3d 165, 169 (3d Cir. 2013) (internal citations omitted).
Duran attempts greater specificity in his opposition brief, (Doc. 7-1 at 20), but
as noted by defendants, a complaint may not be amended through a brief opposing
a dispositive motion. See Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836
F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended
by the briefs in opposition to a motion to dismiss.” (quoting Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984))). Duran must allege within his
complaint those facts sufficient to meet his pleading burden. See Dunkel v. Mt.
Carbon/N. Manheim Fire Co., 970 F. Supp. 2d 374, 383 (M.D. Pa. 2013) (plaintiff
adequately pleaded stigma prong when he alleged specific statements made by
defendants and also alleged that the statements were both false and public);

18

Arneault v. O‟Toole, 864 F. Supp. 2d 361, 396 (W.D. Pa. 2012) (same).7 Accordingly,
the court will dismiss without prejudice Duran‟s Section 1983 procedural due
process claim alleging deprivation of a liberty interest.
C.

State Law Claim for Tortious Interference with Contract

Defendants contend that Duran‟s tortious interference with contract claim
against Snyder, Smeltz, and Long must be dismissed because they “are not a third
party with regard to Duran‟s employment agreement.” (Doc. 6 at 20). Duran
responds that because he brings suit against Snyder, Smeltz, and Long in their
individual capacities, he has alleged interference by third parties. (See Doc. 7-1 at
22). Accordingly, the court must determine whether the County commissioners,
when sued in their individual capacities, constitute third parties with respect to a
contract between the County and Duran.
Pennsylvania has adopted the standard of the Restatement (Second) of Torts
§ 766 to determine the elements of a tortious interference claim. See Adler, Barish,
Daniels, Levin and Creskoff v. Epstein, 393 A.2d 1175, 1183 (Pa. 1978); Thompson
Coal Co. v. Pike Coal Co., 412 A.2d 466, 470-71 (Pa. 1979). See also U.S. Healthcare,
Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 925 (3d Cir. 1990). In order to state
a prima facie claim of tortious interference, the complaint must allege “(1) the
existence of a contractual, or prospective contractual relation between the
complainant and a third party; (2) purposeful action on the part of the defendant,
7

The closest that Duran comes to allegations of false statements is a footnote
detailing an alleged assertion by Snyder connecting Duran‟s termination to missing
prison equipment. (Doc. 1 ¶ 34 n.2). Duran does not link this alleged assertion,
made one year after his termination, to the stigma-plus context or assert its
defamatory nature.
19

specifically intended to harm the existing relation, or to prevent a prospective
relation from occurring; (3) the absence of privilege or justification on the part of
the defendant; and (4) the occasioning of actual legal damage as a result of the
defendant‟s conduct.” CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc.,
357 F.3d 375, 384 (3d Cir. 2004); see also Crivelli v. Gen. Motors Corp., 215 F.3d 386,
394 (3d Cir. 2000); Pawlowski v. Smorto, 588 A.2d 36, 39-40 (Pa. Super. Ct. 1991).
The requirement that the contract at issue be between the complainant and a
third party means that a plaintiff cannot assert a tortious interference claim against
a party to the contract. See Kelly v. Bloom, No. 3:11-CV-928, 2012 WL 425257, at *6
(M.D. Pa. Feb. 9, 2012) (“Simply stated, a party cannot interfere with its own
contract.”); Mele v. TSE Systems, No. 09-174, 2010 WL 3075741, at *4 (E.D. Pa. Aug.
5, 2010) (“A claim for intentional interference with contractual relations must
involve three parties: the plaintiff, the alleged tortfeasor, and a third party.”); Nix v.
Temple Univ., 596 A.2d 1132, 1137 (Pa. Super. Ct. 1991) (“Essential to the right of
recovery on this theory is the existence of a contractual relationship between the
plaintiff and a party other than the defendant.”).
In general, the employees of a corporate entity cannot be third party
tortfeasors in relation to the plaintiff and the corporate contracting party. See
Daniel Adams Assocs., Inc. v. Rimbach Pub., Inc., 519 A.2d 997, 1000 (Pa. Super. Ct.
1987) (“A corporation is a creature of legal fiction which can „act‟ only through its
officers, directors and other agents. . . . Where a party contracts with a corporation
through a corporate agent who acts within the scope of his authority and reveals his
principal, the corporate principal alone is liable for breach of the contract.”); Killian
20

v. McCulloch, 850 F. Supp. 1239, 1251-52 (E.D. Pa. 1994) (stating that corporate
officers and agents cannot be third parties when acting in their official capacities).
This corporate agency principle has been recognized in broader contexts, including
that of a municipality and its agents. See Whaumbush v. City of Phila., 747 F. Supp.
2d 505, 513 (E.D. Pa. 2010) (involving city of Philadelphia as a party to a contract);
see also Kelly, 2012 WL 425257, at *6 (“These corporate agency principals [sic] are
equally applicable within a school district context.”).
An employee satisfies the requirement of third party status only when he or
she acts outside the scope of employment. See Emerson Radio Corp. v. Orion Sales,
Inc., 253 F.3d 159, 173 (3d Cir. 2001); Am. Trade Partners, L.P. v. A-1 Int‟l Importing
Enters, Ltd., 757 F. Supp. 545, 555 (E.D. Pa. 1991). A number of district court cases
interpreting Pennsylvania law have suggested that an agent acts outside the scope
of employment when the “sole motive in causing the corporation to breach the
contract is actual malice toward the plaintiff, or if the officer‟s conduct is against the
corporation‟s interest.” Wagner v. Tuscarora Sch. Dist., No. 1:04-CV-1133, 2006 WL
167731, at *12 (M.D. Pa. Jan. 20, 2006) (citing Killian, 850 F. Supp. at 1252); see also
Kelly v. Bloom, 2012 WL 425257 at *6; Corrections USA v. McNany, 892 F. Supp. 2d
626, 637 (M.D. Pa. 2012); Ruder v. Pequea Valley Sch. Dist., 790 F. Supp. 2d 377, 395

21

(E.D. Pa. 2011); Avins v. Moll, 610 F. Supp. 308, 318 (E.D. Pa. 1984).8 Such improper
motive is not, however, regarded as dispositive. See Wagner, 2006 WL 167731 at *12
(“[T]he mere fact that an employer was acting with allegedly improper motive does
not remove their actions from the scope of their employment.”).
Duran alleges sufficient facts in support of his tortious interference claim to
survive defendants‟ motion to dismiss. He avers that Snyder, Smeltz, and Long
“acted with malicious and/or reckless disregard,” “conspired and acted with the
intention of causing the Plaintiff to be falsely and wrongfully terminated from his
employment,” and “had no purpose other than the wrongful interference in and
termination of Plaintiff‟s contractual relationship with the County.” (Doc. 1 ¶¶ 94,
96-97). Accepting these allegations as true, the court finds that Duran has raised a
reasonable inference that defendants acted outside the scope of their employment.
See Hall v. Easton Area Sch. Dist., No.10-7603, 2012 WL 526287, at *8 (E.D. Pa. Feb.
17, 2012) (finding allegations of personal, intentional, and retaliatory action
sufficient in motion to dismiss context); Whaumbush, 747 F. Supp. 2d at 513 (finding
allegations of intentional and malicious conduct sufficient at motion to dismiss
stage); Rocking Horse Child Care Ctrs. of Am., Inc. v. Carneal, No. 94-7606, 1995 WL

8

Defendants cite Kernaghan v. BCI Commc‟ns, Inc., 802 F.Supp. 2d 590, 596
(E.D. Pa. 2011), to support their argument that Snyder, Smeltz, and Long cannot
constitute third parties to the contractual relationship between Duran and the
County because they had “control over” the relationship. (Doc. 8 at 13). This
argument depends on application of the so-called “stranger rule,” which, notably,
Pennsylvania has not adopted and which the Kernaghan court explicitly declined to
apply. (See Kernaghan, 802 F.Supp. 2d at 596-97) (stating that “the Court will not
expand the [Pennsylvania test] to include language that a defendant be a „stranger‟
to the agreement”). Defendants‟ cited case is therefore inapposite.
22

216947, at *5 (E.D. Pa. Apr. 11, 1995) (same). Accordingly, the court will deny
defendants‟ motion to dismiss Duran‟s tortious interference claim.
D.

State Law Claim for Wrongful Termination9

Defendants assert that Duran‟s wrongful discharge claim should be
dismissed because he “does not allege any facts to support a recognized public
policy exception” to Pennsylvania‟s at-will employment doctrine. (Doc. 6 at 16). In
response, Duran points to his allegation that his termination violated his
“constitutionally protected rights and the laws and public policies of the
Commonwealth of Pennsylvania.” (Doc. 7-1 at 21). Duran claims that Pennsylvania
public policies include his FMLA-based rights. (Id. at 21).
Under Pennsylvania‟s employment at-will doctrine, employers may terminate
employees “for any or no reason” unless a written contract exists between the
parties. Shick v. Shirey, 716 A.2d 1231, 1233 (Pa. 1998) (quoting Geary v. U.S. Steel
Corp., 319 A.2d 174, 176 (Pa. 1974)); see also Hershberger v. Jersey Shore Steel Co.,
575 A.2d 944, 946 (Pa. Super. Ct. 1990) (“[A]n at-will employment environment is the
norm . . . thus, an employee can be terminated for good reason, bad reason, or no
reason at all.”) (citing Henry v. Pittsburgh & Lake Erie R.R. Co., 21 A. 157
(Pa.1891)). There is no common law cause of action for wrongful discharge of an at9

The court assumes that Duran pleads in the alternative with regard to his
wrongful termination and breach of contract claims, because “[i]t is well-settled that
the tort of wrongful discharge is available only where there is an employment-atwill relationship.” H&R Block E. Tax Servs., Inc. v. Zarilla, 69 A.3d 246, 252 (Pa.
Super. Ct. 2013) (citing Weaver v. Harpster, 975 A.2d 555, 557 n.3 (Pa. 2009); see also
Gorwara v. AEL Indus., Inc., No. 89-6401, 1990 WL 44702, at *6 (E.D. Pa. Apr. 12,
1990) (“Pennsylvania law only recognizes a cause of action for wrongful discharge
when the employment is at-will, the rationale being that employees who are not atwill can pursue their cases under breach of contract theories.”).
23

will employee. Shick, 716 A.2d at 1233; see also Bell, 892 F. Supp. 2d at 690.
However, the Pennsylvania Supreme Court has carved out a narrow exception to
the employment at-will doctrine: an employee may bring a common law wrongful
discharge action for termination of at-will employment if he or she can demonstrate
that the discharge violates “clearly mandated public policy.” Bell, 892 F. Supp. 2d at
690 (quoting Clay v. Advanced Comput. Applications, Inc., 559 A.2d 917, 918-19 (Pa.
1989)). The public policy exception to the employment at-will doctrine is applied to
“significant and recognized public policies.” Yetter v. Ward Trucking Corp., 585
A.2d 1022, 1026 (Pa. Super Ct. 1991). “The right of a court to declare what is or is
not in accord with public policy exists „only when a given policy is so obviously for
or against public health, safety, morals, or welfare that there is a virtual unanimity
of opinion in regard to it.‟ ” Weaver v. Harpster, 975 A.2d 555, 563 (Pa. 2009).
Public policy is determined by examining the Pennsylvania Constitution,
Pennsylvania statutes, and Pennsylvania court decisions. Id. The focus is thus on
Pennsylvania law, not federal constitutional or statutory law. See Frederick v.
Barbush, No. 1:13-CV-661, 2014 WL 840390, at *12 (M.D. Pa. Mar. 4, 2014) (Conner,
C.J.) (“[B]oth federal and state courts in Pennsylvania are disinclined to apply the
public policy exception broadly to find a cause of action based solely upon
constitutional protections.”) (citing Bell, 892 F. Supp. 2d at 691); see also Dewees v.
Haste, 620 F. Supp. 2d 625, 639-40 (M.D. Pa. 2009); McLaughlin v. Gastrointestinal
Specialists, Inc., 750 A.2d 283, 289 (Pa. 2000) (holding that a plaintiff must “do more
than show a possible violation of a federal statute that implicates her own personal
interest” by alleging that “some public policy of this Commonwealth is implicated”).
24

The narrow exceptions to the employment at-will doctrine include: (1) termination
for filing a workers‟ compensation claim, see Shick, 716 A.2d 1231, 1238; (2)
termination for filing an unemployment compensation claim, see Highhouse v.
Avery Transp., 660 A.2d 1374, 1378 (Pa. Super. Ct. 1995); and (3) termination for
refusal to submit to a polygraph test, see Kroen v. Bedway Sec. Agency, 633 A.2d
628, 633 (Pa. Super. Ct. 1993).
Duran‟s complaint fails to state a claim for wrongful discharge. First, his
allegations lack the requisite specificity because he does not identify a public policy
of Pennsylvania violated by the defendants. See McLaughlin, 750 A.2d at 288
(affirming dismissal when plaintiff failed to show “how her discharge undermines
any particular public interest of this Commonwealth”). Duran‟s vague reference to
“constitutionally protected rights” does not suffice. See Twombly, 550 U.S. at 555
(“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.”). His reliance on federal
statutory law also cannot sustain a claim for wrongful termination. See
McLaughlin, 750 A.2d at 320 (pronouncing that “a bald reference to a violation of a
federal regulation, without any more articulation of how the public policy of the
Commonwealth is implicated, is insufficient to overcome the strong presumption in
favor of the at-will employment relation”).
Second, the existence of statutory remedies counsels against a public policy
exception. See Bruffett v. Warner Commc'ns Inc., 692 F.2d 910, 919 (3d Cir. 1982)
25

(stating that “the only Pennsylvania cases applying the public policy exception have
done so where no statutory remedies were available”); Frederick, 2014 WL 840390
at *13 (finding no viable public policy exception where plaintiffs “already availed
themselves of recognized causes of action under 42 U.S.C. § 1983 for the purported
violation of their due process and equal protection rights”). Duran‟s public policy
argument is premised primarily on defendants‟ alleged violation of the FMLA.
(Doc. 7-1 at 21). Courts interpreting Pennsylvania law have consistently rejected a
separate cause of action for wrongful discharge when a claim under the FMLA is
asserted for the same conduct. See Atchinson v. Sears, No. 08-3257, 2009 WL
2518440, at *4 (E.D. Pa. Aug. 17, 2009) (disallowing separate cause of action based
upon “the theory that [plaintiff‟s] termination violates the policy set forth by the
FMLA”); McKiernan v. Smith-Edwards-Dunlap Co., No. 95-1175, 1995 WL 311393,
at *5 (E.D. Pa. May 17, 1995) (stating that the FMLA itself, rather than a state
common law cause of action for wrongful discharge, is “the proper remedy for any”
FMLA violation); Blake v. UPMC Passavant Hosp., No. 06-193, 2008 WL 936917, at
*11 (W.D. Pa. Apr. 4, 2008) (holding that when remedies under the FMLA were
available to plaintiff to redress his injury, a claim for wrongful discharge would not
lie).
The above discussion suggests the difficulty Duran would face in amending
his complaint to state a viable claim for wrongful discharge. As difficulty is not
equivalent to futility, the court will dismiss Duran‟s wrongful discharge claim
without prejudice.

26

E.

State Law Claim for Breach of Contract

Defendants argue that Duran cannot maintain his breach of contract claim
because his employment contract did not automatically renew, and thus Duran‟s
termination date coincided with his contract‟s expiration date on November 5, 2012.
(See Doc. 6 at 18). In reply, Duran defends his calculation of his contract expiration
date of November 4, 2012 and asserts a theory of implied contract renewal. (See
Doc. 7-1 at 23-24).
Under Pennsylvania law, to establish a claim for breach of contract, a
complaining party must prove (1) the existence of a contract, including its essential
terms; (2) a breach of a duty imposed by that contract; and (3) resulting damages.
Reed v. Chambersburg Area Sch. Dist., 951 F. Supp. 2d 706, 726 (M.D. Pa. 2013). A
contract‟s existence may be shown on a theory of renewal presumption when the
parties to an expired contract continue to act as they did pre-expiration of the
contract. See Burge v. W. Pa. Higher Educ. Counsel, Inc., 570 A.2d 536, 538 (Pa.
Super. Ct. 1990) (citing Smith v. Shallcross, 69 A.2d 156, 158-59 (Pa. Super. Ct. 1949);
WILLISTON, CONTRACTS § 90; 35 AM.JUR., Master and Servant §§ 15, 19; 56 C.J.S.
Master and Servant §§ 8-10; 30 C.J.S. Employer-Employee § 29 (2002). Parties
continue to act as they did pre-expiration when one party continues to provide
services and the other party does not object. See Smith, 69 A.2d at 158; Janis v.
Amp, 856 A.2d 140, 147-48 (Pa. Super. Ct. 2004) (finding proper jury instruction that
recognized renewal presumption if employee continued same services post-contract
expiration and employer did not object).

27

To the extent Duran suggests that the precise date of his employment
contract‟s expiration is “a factual dispute” best resolved at a later stage, he is
correct. (Doc. 7-1 at 24); see Breon v. Waypoint Ins. Grp., Inc., No.1:06-CV-2204,
2007 WL 1575225, at *3 (M.D. Pa. May 31, 2007) (Conner, J.) (finding “fact-sensitive
inquir[ies] more appropriately reserved for summary judgment”). This point does
not save his breach of contract claim, however, because Duran does not allege facts
in support of his renewal presumption theory. Duran does not claim to have
continued his employment services after his employment contract‟s expiration.
And Duran‟s own account of his suspension and termination strongly suggests
defendants‟ objection to his continued provision of services. (See Doc. 1 ¶¶ 42-43).
His case is therefore easily distinguishable from those in which a court has found
the contract renewal presumption applicable. See, e.g., Kapustik v. Sch. Dist. of
City of Arnold, 111 A.2d 169, 172 (Pa. Super. Ct. 1955) (finding implied contract
renewal when the employee continued her employment services “for successive
annual periods with the express consent and approval of” her employer). The court
will thus dismiss Duran‟s breach of contract claim without prejudice and permit
Duran to amend his complaint in accordance with the foregoing.

28

IV.

Conclusion
For all of the foregoing reasons, defendants‟ motion (Doc. 5) to dismiss will be

granted in part and denied in part. An appropriate order will issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
Dated:

September 25, 2015