LEWEN v. PENNSYLVANIA SOLDIERS' AND SAILORS' HOME (PSSH) et al

Filing 67

MEMORANDUM OPINION re 60 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by BARBARA RAYMOND, LINDA A. KERNS, PENNSYLVANIA SOLDIERS' AND SAILORS' HOME (PSSH), SHERRI LUCHS, PENNSYL VANIA STATE CIVIL SERVICE COMMISSION, SUZANNE HENDRICKS, PENNSYLVANIA DEPARTMENT OF MILITARY AND VETERANS AFFAIRS (DMVA), BRYAN R. LENTZ, CHRISTOPHER K. MCNALLY, GREGORY M. LANE, ODELFA SMITH PRESTON, KATHY MANDERINO, PENNSYLVANIA DEPARTMENT O F STATE/OFFICE OF HEARING EXAMINERS, PENNSYLVANIA STATE BOARD OF NURSING, (BON), ANTHONY CARRELLI, PENNSYLVANIA BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, (BPOA). An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 3/25/19. (lrw)

Case 1:17-cv-00148-SPB Document 67 Filed 03/25/19 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NANCY E. LEWEN,
Plaintiff,
v.
PENNSYLVANIA SOLDIERS’ AND
SAILORS’ HOME, et al.,
Defendants.

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C.A. No. 17-148 Erie

District Judge Susan Paradise Baxter

MEMORANDUM OPINION

I.

INTRODUCTION
A.

Relevant Procedural History

Plaintiff Nancy E. Lewen, initiated this civil rights action on June 7, 2017, by the filing of
a pro se complaint pursuant to 42 U.S.C. § 1983. Plaintiff subsequently filed an amended
complaint [ECF No. 25] and a second amended complaint [ECF No. 31], the latter of which is
the operative pleading in this case. Named as Defendants are: Pennsylvania Soldiers’ and
Sailors’ Home (“PSSH”); Commandant Barbara Raymond (“Raymond”); Pennsylvania
Department of Military and Veterans’ Affairs (“DMVA”); Brigadier General Anthony Carrelli,
Adjutant General (“Carrelli”); Pennsylvania State Civil Service Commission (“CSC”); Chairman
Bryan R. Lentz (“Lentz”); Commissioner Odelfa Smith Preston (“Preston”); Commissioner
Gregory M. Lane (“Lane”); Pennsylvania Department of Labor and Industry, Unemployment
Compensation Board or Review (“UCBR”); Kathy Manderino, Secretary of the Pennsylvania
Department of Labor and Industry (“Manderino”); Pennsylvania Bureau of Professional and
Occupational Affairs (“BPOA”); Suzanne Hendricks (“Hendricks”); Linda A. Kerns, Committee

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Member (“Kerns”); Sherri Luchs, Committee Member (“Luchs”); Pennsylvania Department of
State/Office of Hearing Examiners (“POHE”); and Christopher K. McNally, Hearing Examiner
(“McNally”). All individual Defendants are named in both their individual and official
capacities.1 For ease of reference, Defendants PSSH, DMVA, CSC, UCBR, BPOA, and POHE,
will be collectively referred to as “State Agency Defendants.”
The claims in this case stem from the termination of Plaintiff’s employment with PASSH
and DMVA on March 2, 2016, based upon allegations of “workplace violence.” (ECF No. 31,
Second Amended Complaint, at ¶ 5). The complaint contains a total of nine claims: (1) denial of
First Amendment freedom of speech against all Defendants; (2) denial of Fourteenth
Amendment due process and equal protection against all Defendants; (3) retaliation against all
Defendants; (4) whistleblower retaliation in violation of the Pennsylvania Whistleblower Law,
43 Pa.C.S. §§ 1421-1428, against all Defendants; (5) defamation of character, libel, and slander
under Pennsylvania state law against all Defendants; (6) “infliction of mental anguish and
humiliation” under Pennsylvania state law against all Defendants; (7) wrongful termination
against Defendants PSSH, Raymond, DMVA, Carrelli, CSC, Lentz, Preston, and Lane; (8)
“meritless denial of unemployment compensation” against Defendants PSSH, Raymond,
DMVA, Carrelli, UCBR, and Manderino; and (9) disability discrimination and failure to
accommodate a disability against all Defendants. (Id. at ¶¶ 44-52).
Pending before the Court is Defendants’ motion to dismiss [ECF No. 60], arguing, inter
alia: (1) Plaintiff’s Section 1983 claims against the State Agency Defendants, as well as her
official capacity claims against the individual Defendants, are barred by Eleventh Amendment

1
In addition, Plaintiff names “Unknown Board Members,” who have not since been identified or served in this case
and are, thus, not a party to Defendants’ motion.

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immunity; (2) Plaintiff’s Section 1983 claims against the individual Defendants in their
individual capacities fail to state causes of action upon which relief may be granted;
(3) Plaintiff’s state law claims against all Defendants are barred by Pennsylvania sovereign
immunity; (4) Plaintiff’s claims against the CSC, OCBR, POHE, BPOA and all of their
individual members are barred by quasi-judicial immunity; and (5) Plaintiff’s claim under
Pennsylvania’s whistleblower law is untimely. Plaintiff has filed a brief in opposition [ECF No.
63] and a supplemental memorandum in opposition [ECF No. 64] to Defendants’ motion. This
matter is now ripe for adjudication.
B.

Relevant Factual History

At all times relevant to this action, Plaintiff was employed by the DMVA as a Licensed
Practical Nurse at the PSSH. (ECF No. 31, at ¶ 3). In or around November 2015, Plaintiff was
accused by unnamed “Defendants” of “neglect of duty.” (Id. at ¶ 17). Plaintiff countered the
accusations with an allegation of “facility contributory negligence,” and then filed an anonymous
complaint with the Department of Health in December 2015, which resulted in four deficiencies
being assessed against PSSH. Plaintiff also filed a separate anonymous complaint of elder abuse
and neglect with the Pennsylvania Attorney General’s Office. (Id. at ¶ 18).
Plaintiff later confided to a coworker in off-duty Facebook messages that she was the one
who filed the anonymous complaints of elder abuse, and that she had workplace safety concerns
following an incident of workplace violence against her by a supervisor. (Id. at ¶¶ 19-20).
Plaintiff also “jokingly ‘threatened’ the same coworker with homemade chicken noodle soup and
Vick’s Vapo Rub when the coworker was sick with a bad head cold.” (Id. at ¶ 22). Plaintiff then
mailed a letter “warning the coworker’s ex-wife that his online dating profile revealed too much
personal information and was jeopardizing the safety of herself and her daughter.” (Id. at ¶ 23).

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The coworker gave Plaintiff’s off-duty Facebook messages to another coworker, who shared the
messages with Defendant Raymond, who “immediately terminated” Plaintiff on the grounds of
“workplace violence.” (Id. at ¶¶ 25-26). At Plaintiff’s subsequent unemployment compensation
hearing, Defendant Raymond testified that she did not know at the time of the termination that
Plaintiff was responsible for the anonymous elder abuse complaints, and insisted that the
termination was based on “Plaintiff threatening the coworker with the chicken noodle soup and
Vicks Vapo Rub [on Facebook], writing the letter to the coworker’s estranged wife, and voicing
workplace safety concerns [on Facebook].” (Id. at ¶ 31).
C.

Standard of Review

Defendants’ motion to dismiss is predicated on Rule 12(b)(6) of the Federal Rules of
Civil Procedure. “When considering a Rule 12(b)(6) motion, we 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.” Wayne
Land & Mineral Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509, 526–27 (3d Cir.
2018) (internal quotation marks and citations omitted). In order to survive dismissal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Plausibility means “more than a sheer possibility that a
defendant has acted unlawfully.” Id. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id., citing Twombly, 550 U.S. at 556. In conducting a Rule 12(b)(6)
analysis, the Court may consider “only the complaint, exhibits attached to the complaint, matters
of public record, as well as undisputedly authentic documents if the complainant's claims are

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based upon [those] documents.” Wayne Land, 894 F.3d 509, 526–27 (3d Cir. 2018) (internal
quotation marks and citations omitted) (alteration in the original).
II.

DISCUSSION
A.

Eleventh Amendment Immunity

Defendants contend that Plaintiff's Section 1983 claims against the State Agency
Defendants must be dismissed because they are entitled to immunity under the eleventh
amendment to the United States Constitution. The Court agrees.
The Eleventh Amendment proscribes actions in the federal courts against, inter alia,
states and their agencies. Laskaris v. Thornburgh, 661 F.2d 23 (3d Cir. 1981) (Pennsylvania);
Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977) (state agencies). "Unless a
State has waived its Eleventh Amendment immunity or Congress has overridden it... a State
cannot be sued directly in its own name regardless of the relief sought." Kentucky v. Graham,
473 U.S. 159, 167 n. 14 (1985), citing Alabama v. Pugh, 438 U.S. 781 (1978).
It is beyond dispute that all of the State Agency Defendants are, in fact, arms of the state,
or state agencies, protected by Eleventh Amendment immunity. See, e.g., Helfrich v. Com. of
Pa., Dept. of Military Affairs, 660 F.2d 88, 89 (3d Cir. 1981) (Department of Military Affairs
and the Pennsylvania Soldiers’ and Sailors’ Home); Felder v. Delaware County Office of
Services for the Aging, 2009 WL 2275814, at *4 (E.D. Pa. Jul. 28, 2009) (Pennsylvania Civil
Service Commission); Bullard v. Bureau of Unemployment and Allowances, 516 Fed. Appx.
111, 112 (3d Cir. 2013) (Pennsylvania Unemployment Compensation Board of Review); Shine
v. Merenda, 586 Fed. Appx. 95, 97 (3d Cir. 2014) (Pennsylvania Department of State and
Pennsylvania Bureau of Professional and Occupational Affairs); and Camas v. Dickson-Witmer,
M.D., 2001 WL 34368388, at *8 (D.Del. Mar. 30, 2001) (State Board of Nursing).

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Furthermore, no exceptions to Eleventh Amendment immunity are applicable here. The
Commonwealth of Pennsylvania has not consented to be sued, Wilson v. Vaughn, 1996 WL
426538 at *1 n.2 (E.D.Pa. July 30, 1996), nor has Congress expressly abrogated Pennsylvania's
Eleventh Amendment immunity from civil rights suits for damages. Smith v. Luciani, 1998 WL
151803 at *4 (E.D.Pa. March 31, 1998), aff'd, 178 F.3d 1280 (3d Cir. 1999) (Table). Moreover, a
state agency is not a "person" against whom a civil rights action may be brought under Section
1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). Accordingly, Plaintiff's
Section 1983 claims against the State Agency Defendants will be dismissed.
In addition, the individual Defendants assert that they, too, are immune from suit under
the Eleventh Amendment, to the extent Plaintiff is suing them in their official capacities. The
Court agrees. It is well settled that suits for damages by individuals against, inter alia, state
officers acting in their official capacities are barred by the Eleventh Amendment. See Kentucky,
473 U.S. at 165-67 (holding that claims for damages against a state officer acting in his official
capacity are barred by the Eleventh Amendment). Additionally, while Eleventh Amendment
immunity generally does not bar official capacity claims to the extent they seek prospective
injunctive relief, see Laskaris, 661 F.2d at 26 citing Ex parte Young, 209 U.S. 123 (1908), the
equitable relief sought here lacks the specificity necessary to state a cognizable basis for granting
an injunction.2 As a result, Plaintiff’s official capacity claims against the individual Defendants
will be dismissed, in their entirety.

2
In particular, Plaintiff asks for “Appropriate equitable relief against all Defendants including the enjoining and
permanent restraining of these violations, and direction to Defendants to take such affirmative action as is necessary
to ensure that the effects of the unconstitutional and unlawful employment practices are eliminated and do not
continue to affect Plaintiff’s, or others’ employment opportunities.” (ECF No. 31, at ¶ 54B).

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B.

Pennsylvania Sovereign Immunity

Defendants move to dismiss Plaintiff’s state law claims3 based upon Pennsylvania’s
doctrine of sovereign immunity.
In Pennsylvania, state law claims against the Commonwealth, its officials, and its
employees acting within the scope of their duties, are barred by sovereign immunity, subject to
several enumerated exceptions.4 See 42 Pa.C.S. §§ 8521-8522; Story v. Mechling, 412
F.Supp.2d 509, 518 (W.D.Pa. 2006) aff'd 214 Fed. Appx. 161 (3d Cir. 2007). Under
Pennsylvania law, "[t]hese exceptions must be strictly construed and narrowly tailored." Brown
v. Blaine, 833 A.2d 1166, 1173 (Pa.Cmwlth. 2003). None of the enumerated exceptions are
applicable here.
Since it has already been established that the State Agency Defendants are all arms of the
state, they are entitled to the same sovereign immunity granted to the Commonwealth. In
addition, the allegations of the complaint make clear that all of the alleged actions of the
individual Defendants were carried out within the scope of their respective duties as state
employees. Thus, the individual Defendants are also entitled to the same sovereign immunity.
Accordingly, Plaintiff’s state law claims against all Defendants will be dismissed.

3
Defendants list Plaintiff’s state law claims as defamation of character, libel, and slander (Claim Five); infliction of
mental anguish and humiliation (Claim Six); wrongful termination (Claim Seven); meritless denial of
unemployment compensation (Claim Eight); and disability discrimination and failure to accommodate a disability
(Claim Nine). While there is no dispute that Claims Five through Eight are purely state law claims, it is unclear
whether Plaintiff intends to allege Claim Nine under state or federal law. To the extent Claim Nine is intended to be
a state law claim, it will be addressed here; however, to the extent it is intended to allege a federal claim under the
Americans with Disabilities Act (“ADA”), such claim will be addressed separately hereafter.
4
42 Pa.C.S. § 8522(b) provides the following list of exceptions to the sovereign immunity covering Pennsylvania
state actors: (1) vehicle liability; (2) medical/professional liability; (3) care, custody, or control of personal property;
(4) Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous conditions;
(6) care, custody, and control of animals; (7) liquor store sales; (8) national guard services; and (9) toxoids and
vaccines.

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C.

Quasi-Judicial Immunity

Defendants argue that Plaintiff’s Section 1983 claims against the CSC, the UCBR, the
POHE, the BPOA, and all of their individual members are barred by quasi-judicial immunity.
Since the Court has already determined that all State Agency Defendants will be dismissed on
other immunity grounds, this argument will be addressed solely with regard to the individual
members of the CSC, UCBR, POHE, and BPOA named as Defendants in this case. The CSC
members consist of Defendants Lentz, Preston, and Lane; the only UCBR member is Defendant
Manderino;5 the only POHE member is Defendant McNally; and the members of BPOA’s Board
of Nursing are Defendants Hendricks, Kerns, and Luchs.
Quasi-judicial immunity attaches to public officials whose roles are “‘functionally
comparable’ to that of a judge.” Hamilton v. Leavy, 322 F.3d 776, 785 (3d Cir.2003), quoting
Butz v. Economou, 438 U.S. 478, 513 (1978). Such immunity “flows not from rank or title or
location within the Government, but from the nature of the responsibilities of the individual
official.” Cleavinger v. Saxner, 474 U.S. 193, 201 (1985) (citation and internal quotation marks
omitted). “Thus, in evaluating whether quasi-judicial immunity grants immunity to a particular
official, a court inquires into ‘the official's job function, as opposed to the particular act of which
the plaintiff complains.’” Keystone Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95
(3d Cir. 2011), quoting Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006); See also Gallas v.
Supreme Court of Pa., 211 F.3d 760, 769 (3d Cir.2000) (“[O]ur analysis must focus on the
general nature of the challenged action, without inquiry into such ‘specifics' as the [official's]
motive or the correctness of his or her decision,” citing Mireles v. Waco, 502 U.S. 9, 13 (1991).

5
Defendant Manderino is actually identified as the Secretary of the Pennsylvania Department of Labor and Industry,
of which the UCBR is a branch; however, Defendants have broadly included her as a member of the UCBR for
purposes of their argument.

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Quasi-judicial immunity is an absolute bar to monetary liability for defendants who
perform judicial functions and are sued in their personal capacities, even if the defendant acted
with malice or in bad faith, unless (1) the conduct at issue was not a “judicial act,” or (2) the
conduct was taken in complete absence of jurisdiction. Mireles, 502 U.S. at 11. These two
exceptions are quite narrow in scope and are not frequently invoked to deny judicial or quasijudicial officers such immunity. See Stump v. Sparkman, 435 U.S. 349, 362 (1978) (describing
the limited nature of the two exceptions to judicial immunity). Since there is no indication that
either of the above exceptions apply in the instant case and because Plaintiff does not contend to
the contrary, the Court will only address whether the individual Defendants should be afforded
the protections of quasi-judicial immunity in the first place.
Here, Plaintiff has failed to allege any specific allegations against Defendants Lentz,
Preston, and Lane, apart from identifying their roles as members of the CSC. Thus, their actions
are deemed to be consonant with the actions of the CSC, which is alleged to have “denied the
Plaintiff’s right to due process of law and freedom of speech when they did not permit the
Plaintiff to testify at her appeal hearing,” which she lost. (ECF No. 31, at ¶ 34). Plaintiff alleges
further that the CSC denied her request for reconsideration and reversal of its decision. (Id.).
These allegations indicate that Plaintiff’s claims against Defendants Lentz, Preston, and Lane
arise from the performance of duties that were “functionally comparable” to those of a judge.
Accord Chambers v. Upper Darby Tp. Civil Serv. Comm., 1995 WL 631673, at *3 (E.D.Pa. Oct.
26, 1995) (“Members of a Civil Service Commission are protected from damages by quasijudicial immunity). As a result, such claims are barred by quasi-judicial immunity, and
Defendants Lentz, Preston, and Lane will be dismissed from this case.

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Similarly, Plaintiff’s sole allegation against Defendant McNally is that, as Hearing
Examiner, he “violated the Plaintiff’s right to Due Process of Law, Equal Protection of the Law
and Freedom of Speech by refusing to acknowledge the Plaintiff’s pleadings and allegations of
whistleblower retaliation, but admitting the findings from the Unemployment Compensation
Appeal and the Pennsylvania State Civil Service Commission Appeal.” (ECF No. 31, at ¶ 39).
This allegation implicates actions that were taken by Defendant McNally in the performance of
his duties that were “functionally comparable” to a judge, and, thus, Plaintiff’s claims against
Defendant McNally are barred by quasi-judicial immunity and will be dismissed. Accord Harper
v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986) (concluding that hearing examiner was entitled to
quasi-judicial immunity). Since these are the only claims asserted against Defendant McNally, he
will be terminated from this case.6
A similar finding is warranted as to Plaintiff’s claim against Defendants Hendricks,
Kerns, and Luchs arising from their suspension of her nursing license and their failure to
reinstate the same within 180 days. (ECF No. 31, at ¶¶ 38, 40). See, e.g. Duncan v. Mississippi
Bd. of Nursing, 982 F.Supp. 425, 433-34 (S.D.Miss. 1997) (affording members of state board of
nursing absolute quasi-judicial immunity from a Section 1983 claim for their imposition of
disciplinary sanctions against the plaintiff). Thus, Plaintiff’s claims against Defendants
Hendricks, Kerns, and Luchs arising from their suspension of Plaintiff’s nursing license are
barred by quasi-judicial immunity and will be dismissed.
Finally, as to Defendant Manderino, Plaintiff alleges that said Defendant violated her due
process rights “by denying [her] written request for names of the [UCBR] board members who

6
Defendant McNally is the only Defendant in this case against whom Plaintiff asserts an allegation pertaining to a
purported Fourteenth Amendment Equal Protection claim. Since it has been determined that any such claim against
Defendant McNally is barred by quasi-judicial immunity, Plaintiff’s equal protection claim will be dismissed.

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had made the decision [to deny unemployment compensation] and for denying [her] written
request for the legal citation that was used by the board members.” (ECF No. 31, at ¶ 37). These
allegations implicate actions that are more administrative than judicial in nature and, thus, do not
raise the bar of quasi-judicial immunity. Defendants’ motion to dismiss Plaintiff’s claims against
Defendant Manderino based on the grounds of immunity will be denied, accordingly.
D.

Pennsylvania Whistleblower Law

Plaintiff alleges that the termination of her employment was in retaliation for her reports
of elder abuse in violation of Pennsylvania’s Whistleblower Law, 43 Pa.C.S. § 1421, et seq.
Defendants argue that this claim must be dismissed as untimely. The Court agrees.
The Whistleblower Law cited by Plaintiff provides that “[a] person who alleges a
violation of this act may bring a civil action ... within 180 days after the occurrence of the
alleged violation.” 43 Pa.S. § 1424(a). “Despite the use of the permissive ‘may,’ the
Whistleblower Law's ‘180–day time limit is mandatory, and courts have no discretion to extend
it.’ Campion v. Northeast Utilities, 598 F.Supp.2d 638, 645 (M.D.Pa. Feb. 24, 2009), citing
O'Rourke v. Pa. Dep't of Corr., 730 A.2d 1039, 1042 (Pa.Commw.Ct.1999) citing Perry v. Tioga
County, 649 A.2d 186, 188 (Pa.Cmwlth 1994), appeal denied, 540 Pa. 609, 655 A.2d 995 (1995).
Here, Plaintiff’s termination occurred on March 2, 2016; however, this action was not
commenced until June 8, 2017, well beyond the 180-day statutory time period allowed. Thus,
Plaintiff’s retaliation claim under Pennsylvania’s Whistleblower Law will be dismissed. Since
this is the only other claim specifically asserted against Defendants Hendricks, Kerns, and Luchs,
these Defendants will be terminated from this case.
E.

Defendant Carrelli

Aside from identifying Defendant Carrelli in the caption as Adjutant General of the

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DMVA, Plaintiff’s only allegation specifically pertaining to him is that he “approved” the
“PSSH Plan of Correction, written by Defendant Barbara Raymond … to discipline nurses
without actually investigating and addressing root causes.” (ECF No. 31, at ¶ 17). However, the
primary purpose of this allegation is to provide background for the events that led Plaintiff to file
her anonymous complaint of elder abuse with the Attorney General. As such, the allegation has
very little, if anything, to do with the crux of the claims in this case, and fails to provide a
cognizable basis for any claim against Defendant Carrelli.
Moreover, to the extent Plaintiff is attempting to assert a claim against Defendant Carrelli
in his supervisory capacity, such claim also fails because it is well-settled that section 1983
liability cannot be predicated solely on the basis of respondeat superior. Rizzo v. Goode, 423
U.S. 362 (1972). Defendant Carrelli will be dismissed from this case, accordingly.
F.

First Amendment Claims
1.

Freedom of Speech

Plaintiff claims that the termination of her employment was a violation of her First
Amendment right to freedom of speech because the termination occurred as a result of off-duty
Facebook messages she sent to another co-worker regarding, inter alia, workplace safety
concerns and allegations of elder abuse at PSSH. Although this claim is asserted against all
Defendants, the only remaining Defendant7 against whom such a claim is specifically alleged is
Defendant Raymond. (ECF No. 31, at ¶ 25). Defendants seek to dismiss this claim, arguing that
“the Second Amended Complaint does not offer factually [sic] support for such a cause of action,
even against Raymond,” and that “Plaintiff has not established that her protected activity caused
her dismissal.” The Court disagrees.
7
At this point, based on the foregoing discussion, the only remaining Defendants are Defendants Raymond and
Manderino, as well as the “unknown board members” of the UCBR who are not a party to the pending motion.

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“Where a public employee speaks ‘as a citizen’ about ‘matters of public concern’ and is
disciplined in response to that speech, ‘the possibility of a First Amendment claim arises.’”
Brown v. Tucci, 960 F.Supp.2d 544, 574 (W.D.Pa. 2013), quoting Garcetti v. Ceballos, 547 U.S.
410, 418 (2006). In that situation, the legality of the disciplinary action typically turns on
“whether the relevant government entity ha[s] an adequate justification for treating the employee
differently from any other member of the general public,” whether the employee's speech “has
some potential to affect the entity's operations,” and whether the restrictions on speech imposed
by the entity are necessary to its efficient and effective operation. Garcetti, at 418–419.
Consideration must also be given to whether the speech “impairs discipline by superiors or
harmony among co-workers,” “has a detrimental impact on close working relationships for
which personal loyalty and confidence are necessary,” “impedes the performance of the speaker's
duties,” or “interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388.
The threshold question in applying this balancing test is whether the plaintiff’s speech
may be “fairly characterized as constituting speech on a matter of public concern.” Id., at 384,
citing Connick v. Myers, 461 U.S. 138, 146 (1983). “Whether an employee's speech addresses a
matter of public concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48.
Here, Plaintiff alleges that in off duty Facebook messages to a co-worker, she “confided
… that she had … filed… anonymous complaints of elder abuse” with the Pennsylvania Office
of the Attorney General, and had “voiced workplace safety concerns … following an incident of
workplace violence against [her] by a supervisor.” (ECF No. 31, at ¶¶ 18-20). Concerns of elder
abuse and workplace safety are plainly matters of public concern, which Plaintiff expressed as a
citizen, not as a public employee. Thus, Plaintiff’s allegations are sufficient to “raise the

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possibility of a First Amendment claim.” Moreover, Plaintiff has alleged that Defendant
Raymond’s receipt and review of her Facebook messages immediately led to her termination.
(ECF No. 31, at ¶ 25). The only question remaining is whether Defendant Raymond was justified
in terminating Plaintiff in response to her speech under the criteria propounded by the Supreme
Court in Garcetti and Rankin. This question remains unresolved at this stage, since neither party
has adequately addressed the criteria. Nonetheless, the Court finds that Plaintiff has sufficiently
alleged a First Amendment freedom of speech claim against Defendant Raymond to survive
Defendants’ motion to dismiss.
2.

Retaliation

Similarly, the Court finds that Plaintiff has sufficiently alleged a claim of retaliation
under Section 1983 against Defendant Raymond.
“In order to plead a retaliation claim under the First Amendment, a plaintiff must allege:
(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of
ordinary firmness from exercising his constitutional rights, and (3) a causal link between the
constitutionally protected conduct and the retaliatory action.” Thomas v. Independence Tp., 463
F.3d 285, 295 (3dCir. 2006), citing Mitchell v. Horn, 318 F.3d 523, 530 (3dCi. 2003). Here, it is
beyond dispute that Plaintiff’s Facebook messages were constitutionally protected conduct and
that her termination of employment would qualify as retaliatory action sufficient to deter a
person of ordinary firmness from exercising her constitutional rights. Furthermore, Plaintiff
specifically alleges that Defendant Raymond immediately terminated her employment after
reviewing Plaintiff’s Facebook messages, thus establishing the causal connection necessary to
complete a prima facie case of retaliation. Defendants’ motion to dismiss Plaintiff’s retaliation

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claim against Defendant Raymond, only, will be denied, but will be granted as to all other
remaining Defendants against whom such claim ostensibly is asserted.
G.

Fourteenth Amendment Due Process

To establish a due process claim under the Fourteenth Amendment, Plaintiff must
demonstrate (1) the existence of a constitutionally protected liberty or property interest; and (2)
constitutionally deficient procedures by the state in its deprivation of that interest. Bd. of Regents
of State Colleges v. Roth, 408 U.S. 564, 571(1972).
Here, Plaintiff alleges that Defendant Manderino “violated [her] right to due process of
law by denying [her] written request for the names of the [UCBR] board members who had made
the decision [to deny unemployment compensation] and for denying [her] written request for the
legal citation that was used by the board members.” (ECF No. 31, at ¶ 37). This allegation, by
itself, fails to implicate the deprivation of a liberty or property interest upon which a due process
violation may be established. As a result, the Court will dismiss Plaintiff’s due process claim
against Defendant Manderino, and said Defendant will be terminated from this case.
To the extent Plaintiff may be asserting a due process claim against Defendant Raymond
arising from the termination of her employment, the Third Circuit has held that “[t]o have a
property interest in a job ... a person must have more than a unilateral expectation of continued
employment; rather, she must have a legitimate entitlement to such continued employment.”
Bilski v. Red Clay Consol. School District Bd. of Educ., 574 F.3d 214, 219 (3d Cir. 2009), citing
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 (1972)). As a result, “an at-will employee has ‘no property interest’ in
[his or her] job sufficient to trigger due process concerns.” Id., quoting Bishop v. Wood, 426
U.S. 341, 346 n. 8 (1976). In this case, Plaintiff has not established that she was anything more

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than an at-will employee at the time she was terminated. Thus, she is unable to maintain a due
process claim against Defendant Raymond arising from the termination of her employment, and
such claim, to the extent alleged, will be dismissed.
H.

ADA Claim

Plaintiff generally asserts a claim of “disability discrimination and failure to
accommodate a disability” (Claim Nine) against all Defendants; however, the only Defendant
remaining is Defendant Raymond. To the extent Plaintiff’s purported ADA claim is asserted
against Defendant Raymond, it fails to state a claim upon which relief may be granted.
Title II of the ADA provides, in relevant part, that "no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services or activities of a public entity or be subjected to discrimination by such
entity." 42 U.S.C. § 12132. The term "public entity," as defined by Title II of the ADA, does not
include individuals. 42 U.S.C. § 12131(1). Thus, the law is clear that individuals are not "public
entities" under the ADA and are not subject to liability thereunder. Emerson v. Thiel College,
296 F.3d 184, 189 (3d Cir. 2002) (individuals are not subject to liability under Titles I or II of the
ADA). Accordingly, Plaintiff's purported ADA claim against Defendant Raymond, to the extent
she is alleging the same, will be dismissed.
I.

“Unknown Board Member” Defendants

As previously noted, Plaintiff names as Defendants “unknown Board members” of the
UCBR who have not since been identified or served in this case.
Section 1915A(b) of the Prison Litigation Reform Act ("PLRA") provides:
(b) Grounds for dismissal - On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint: (1) is frivolous, malicious, or fails to state a claim upon which
relief may be granted; or (2) seeks monetary relief from a defendant who
is immune from such relief.
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28 U.S.C.A. § 1915A(b). Under Section 1915A, not only is a court permitted to sua sponte
dismiss a complaint which fails to state a claim, but it is required to do so. Nieves v. Dragovich,
1997 WL 698490, at *8 (E.D. Pa. 1997) ("Under provisions of the Prison Litigation Reform Act
codified at 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c), the district courts are
required, either on the motion of a party or sua sponte, to dismiss any claims made by an inmate
that are frivolous or fail to state a claim upon which relief could be granted.").
Here, the only allegations pertaining to the UCBR’s “unknown Board members” are
subsumed in Plaintiff’s allegations against Defendant UCBR; namely, that they “violated
Plaintiff’s right to due process by failing to provide legal citations for their decision, for
admitting hearsay as evidence, for denying the Plaintiff’s motion to deny hearsay, and by
refusing to remand the matter to the Referee when the Plaintiff submitted new evidence of
Perjury by a witness that was mailed to the Plaintiff by an unknown party.” (ECF No. 31, at ¶
36). All of the alleged actions taken by the “unknown Board members” were, thus, performed in
a manner “‘functionally comparable’ to that of a judge.” Hamilton, 322 F.3d at 785. Therefore,
as with the other individual Defendants who acted as members of the State Agency Defendants
in this case, the UCBR’s “unknown Board members” are entitled to quasi-judicial immunity,
which bars Plaintiff’s due process claim against them. As a result, such claim will be dismissed
as frivolous, sua sponte, pursuant to the authority granted by the PLRA, and the “unknown
Board members” will be terminated from this case.
An appropriate Order follows.

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