JOHNSON v. GLASSPORT BOROUGH et al

Filing 18

MEMORANDUM AND ORDER. For the reasons stated in the Memorandum & Order filed herewith, Defendants' Motion to Dismiss (Doc. 13 ) is GRANTED, and the Amended Complaint (Doc. 11 ) will be dismissed in its entirety with prejudice. Signed by Judge Cathy Bissoon on 3/30/2017. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RAYMOND JOHNSON,

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Plaintiff,
v.
GLASSPORT BOROUGH, et al.,
Defendants.

Civil Action No. 16-1351
Judge Cathy Bissoon

MEMORANDUM AND ORDER
I. MEMORANDUM
Pending before the Court is Defendants’ Motion to Dismiss (Doc. 13), pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendant’s
Motion to Dismiss (Doc. 13) will be GRANTED.
A. Background 1
On May 18, 2016, Plaintiff Raymond Johnson (“Plaintiff”) initiated this action by filing a
Praecipe for Writ of Summons in the Court of Common Pleas of Allegheny County. Plaintiff
filed an initial Complaint in state court on August 2, 2016, which he served on Defendants on
August 4, 2016. Defendants timely removed this action on August 31, 2016. (See Doc. 1).
Plaintiff filed the operative Amended Complaint on September 29, 2016, in response to a Motion
to Dismiss filed by Defendants. (Doc. 11).
The following background facts are taken from Plaintiff’s Amended Complaint (Doc. 11).
Because the case is presently before this Court on a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6), the Court accepts as true all allegations in the Amended Complaint and
all reasonable inferences that can be drawn therefrom. See Rocks v. City of Philadelphia, 868
F.2d 644, 645 (3d Cir. 1989). In addition, the Court views all well pled factual averments and
reasonable inferences in the light most favorable to the non-moving party. Id.
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Plaintiff’s Amended Complaint alleges that, on July 13, 2015, while he was working as a
member of Glassport Borough’s road crew, he was in a vehicle accident. (Doc. 11 ¶¶ 7-8).
According to Plaintiff, following the accident, Councilwoman Elaina Skiba ordered Glassport
Police Department Chief Clifford LaFever to transport Plaintiff to Jefferson Hospital for a blood
draw. (Id. at ¶¶ 9-11). Plaintiff alleges that he “questioned this, as 3 prior incidents that [he]
was aware of, no one was ever taken for testing.” (Id. at ¶ 12). However, Chief LeFever told
Plaintiff that, “after discussing the matter with Councilwoman Skiba,” he believed he had “no
choice” but to take Plaintiff to Jefferson Hospital for a blood draw. (Id. at ¶ 13). Plaintiff alleges
that Jefferson Hospital refused to perform a blood test, and that Councilwoman Skiba thereafter
directed Police Chief LaFever to take Plaintiff to MedExpress in Pleasant Hills, where urine and
breathalyzer tests were performed. (Id. at ¶¶ 14-16). Plaintiff alleges that, the day after the tests
were performed, he asked Councilwoman Skiba “why he was forced to go for a test” and she
responded that “this is a random test” and that he was “lucky [he] passed the drug test.” (Id. at
¶¶ 17-20). Plaintiff alleges that the results of the drug test were shared with Police Chief
LaFever. (Id. at ¶ 38). Plaintiff further alleges that, at some point thereafter, he was subjected to
retaliatory acts, “such as being refused vacation time.” (Id. at ¶¶ 24, 60).
In the Amended Complaint, Plaintiff alleges that he is a member of the Teamsters Local
Union No. 205 (the “Union”). (Id. at ¶ 41). At the time of the alleged drug test, the collective
bargaining agreement (“CBA”) between Glassport and the Union had expired. (Id. at ¶ 42).
However, as Plaintiff alleges, while Glassport and the Union were negotiating a new contract,
they were operated under the “status quo.” (Id. at ¶ 43). The applicable CBA contains a “Drug
and Alcohol Testing Policy,” which provides, in relevant part:
The Borough of Glassport believes that a drug and alcohol free workplace is
essential to the welfare of its employees and the general public. It is the policy of
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the Borough of Glassport to test for drug and alcohol abuse when there is
probable cause to believe that an employee is involved with or under the influence
of drugs or alcohol in the workplace. In addition, each employee may be subject
to up to two (2) mandatory drug and alcohol tests administered on a random basis
each calendar year. Testing by the state for CDL licensure or by the Borough for
cause shall count toward an individual’s mandatory drug testing obligation for the
remainder of the calendar year.
…
All test results will be strictly confidential. Results will be reported to the
President of Council. Test results will not be discussed with any borough
employee.
(Defendants’ Motion to Dismiss (Doc. 13), Exhibit B, at p. 16). 2
Plaintiff alleges that, three days after the accident, on July 16, 2015, he filed a grievance
with Glassport pursuant to the terms of the CBA. (Doc. 11 ¶¶ 22, 47; see also Doc. 13, Exhibit
C). Plaintiff claims that, on September 5, 2015, he “was informed that the mediator would not
take action against the Borough until such time as the Borough establishes a policy in relation to
this matter.” (Doc. 11 ¶ 48). Plaintiff further avers that he “made future attempts to resolve the
matter through the Union on at least December 23, 2015 and January 7, 2016, to no avail.”
(Doc. 11 ¶ 49). Finally, Plaintiff claims, that, “[s]ubsequent to the testing, and following the
filing of a grievance on July 16, 2015, on September 5, 2015, a letter from Borough of
Glassport’s Solicitor, Gary Matta was sent to the Attorney for Teamsters Local 205, Anthony
DeLuca, indicating that The Borough of Glassport was not going to take any action regarding the
accident against Raymond Johnson. The letter further indicates that no Borough employee will
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Although a Court’s review on a motion to dismiss is typically limited to the allegations in the
complaint, exhibits attached to the complaint and matters in the public record, the Court may
consider the CBA since the contract is integral to Plaintiff’s claims and he does not dispute its
authenticity. See Pension Benefit Guar. Corp., 998 F.2d 1192, 1196 (3d Cir. 1993) (stating that
“a court may consider an undisputedly authentic document that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the document. Otherwise, a plaintiff
with a legally deficient claim could survive a motion to dismiss simply by failing to attach a
dispositive document on which it relied.”).
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be taken for blood testing following an accident “until such time as the Borough establishes a
policy in relation to this matter.” (Id. at ¶ 20).
Plaintiff’s Amended Complaint sets forth five causes of action against Defendants:
(1) Count I - Violation of 42 U.S.C. § 1983 for Invasion of Privacy, Intrusion of Solitude, and
Unreasonable Search and Seizure against all Defendants; (2) Count II - Negligence against all
Defendants; (3) Count III - Breach of Contract against Glassport; (4) Count IV - Conspiracy
against all Defendants; and (5) Count V - Retaliation against all Defendants. (Id. at ¶¶ 25-62).
Defendants have moved to dismiss all counts in the Amended Complaint. (Doc. 13). For the
reasons that follow, the Court will grant Defendants’ Motion to Dismiss.
B. Standard of Review
“To survive a motion to dismiss, 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
When faced with a motion to dismiss, a court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009).
In analyzing this Motion, the Court may consider documents attached to the Amended
Complaint, as well as documents not physically attached thereto “if they are referred to in
plaintiff’s complaint and are central to the claim.” Santomenno ex rel. John Hancock Trust v.
John Hancock Life Ins. Co, 768 F.3d 284, 290-91 (3d Cir. 2014). The Court also may consider
matters of public record. Burkhart v. Knepper, 310 F. Supp. 2d 734, 741-42 (W.D. Pa. 2004).

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C. Discussion
1. Count I — Fourth Amendment Invasion of Privacy, Intrusion of Solitude, and
Unreasonable Search and Seizure
In Count I of the Amended Complaint, Plaintiff alleges that Defendants violated his
rights under the Fourth Amendment of the U.S. Constitution—specifically, his right against
unreasonable searches and seizures, his right to privacy, and his right to solitude—by requiring
him to undergo urine and breathalyzer tests following the traffic accident on July 13, 2015. (See
Doc. 11 ¶¶ 25-34). Defendants argue that Count I should be dismissed because Plaintiff has not
alleged that Glassport has a policy, practice or custom that resulted in the violation of his
constitutional rights. Furthermore, Defendants argue that Plaintiff’s Fourth Amendment claim is
without merit, as Plaintiff is bound by his Union’s express consent in the CBA to both random
drug tests and drug tests based upon probable cause. The Court agrees, and will dismiss this
claim.
First, the Court finds that the Amended Complaint fails to allege a viable Monell claim
against Defendant Glassport because there are no allegations that a policy, practice, or custom of
Glassport resulted in the alleged violation of Plaintiff’s constitutional rights. See McTernan v.
City of York, 564 F.3d 636, 658 (3d Cir. 2009) (citing Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 690 (1978)). Rather, Plaintiff merely alleges that one individual—
Councilwoman Skiba—required Plaintiff to undergo a drug test. Plaintiff does not allege that
Councilwoman Skiba has “final policy making authority” such that her single act constitutes
“official policy” sufficient to establishing liability under Monell. City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823–24 (1985) (“Proof of a single incident of unconstitutional activity is
not sufficient to impose liability under Monell, unless proof of the incident includes proof that it
was caused by an existing . . . municipal policy, which policy can be attributed to a municipal
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policymaker.”). Nor does Plaintiff claim that Glassport had a policy or practice of unlawfully
drug testing employees; to the contrary, he alleges that “Defendant Glassport had no policy on
testing after incidents . . . .” (Doc. 11 ¶ 32) (emphasis added). In short, as Defendants argue,
“Plaintiff is essentially seeking to hold Glassport liable for a single act of Councilwoman Skiba,
which is insufficient to impose liability” under Monell. 3 (Doc. 14 at 7). Monell, 436 U.S. at 691
(explaining that a municipality cannot be held liable for the unconstitutional acts of its
employees on a theory of respondeat superior).
Furthermore, even assuming that Glassport had a policy, practice or custom of drug
testing employees like Plaintiff, such a policy would not violate Plaintiff’s Fourth Amendment
rights. The Court of Appeals for the Third Circuit has held that “a public employee union acting
as exclusive bargaining agent may consent to drug testing on behalf of the employees it
represents” and that “individual employees are bound by such express consent.” Bolden v. Se.
Pennsylvania Transp. Auth., 953 F.2d 807, 828 (3d Cir. 1991). Accordingly, the Third Circuit
explains that “even where a drug testing policy has been held to be constitutionally infirm, a
public employee may not pursue a civil rights suit based upon that infirmity where his union and
his employer agree to operate under that policy.” Dykes v. Se. Pennsylvania Transp. Auth., 68
F.3d 1564, 1570 (3d Cir. 1995).

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Plaintiff argues that, even if the Court finds no Monell liability, Glassport is still liable for the
acts of its employees, as “municipalities are [] responsible for indemnifying its employees when
the employee acts within the scope of his/her employment, even if otherwise immune
themselves,” pursuant to 42 Pa.C.S. § 8548(a). (Doc. 16 at 4). However, courts have previously
explained that The Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541 et seq. “is not meant
to provide a cause of action for a plaintiff in an underlying action.” Johnson v. City of Erie, Pa.,
834 F. Supp. 873 (W.D. Pa. 1993). Rather, “[a]s the Pennsylvania Supreme Court observed, the
purpose of the statute ‘is to permit local agency employees to perform their official duties
without fear of personal liability, whether pursuant to state or federal law, so long as the conduct
is performed during the course of their employment.’” Id. (citing Wiehagen v. Borough of North
Braddock, 527 Pa. 517, 594 A.2d 303, 306 (1991)).
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Here, as noted, the CBA that governed Plaintiff’s employment at the time of the accident
contained a drug and alcohol testing policy that expressly allowed Glassport to test employees
for the presence of drugs or alcohol either based upon probable cause or “on a random basis.”
(Doc. 11 ¶ 44; see also Doc. 13, at Exhibit B). As Plaintiff alleges, he was indisputably drug
tested after his involvement in an accident at work; thus, Defendants had probable cause to
subject him to drug and alcohol testing. (Doc. 11 ¶ 8). However, even in the absence of
probable cause, the drug tests here would have been permissible under the CBA, which permits
drug testing “on a random basis.” Indeed, Plaintiff alleges that Councilwoman Skiba told him
that it was a “random test.” (Doc. 11 ¶ 18). For these reasons, the drug tests performed on
Plaintiff on July 13, 2015 did not constitute a violation of his Fourth Amendment rights, and thus
the Court will dismiss Count I of the Amended Complaint. 4
2. Count II – Negligence
Count II of Plaintiff’s Amended Complaint sets forth a claim of negligence against the
Defendants. Defendants argue that such claims are barred by the Pennsylvania Political
Subdivision Tort Claims Act (“PPSTCA”). The Court agrees. Pursuant to the PPSTCA, a local
agency may only be sued on a theory of negligence if the local agency caused an injury due to
actions that fall within one of the following eight exceptions: 1) vehicle liability; 2) care,
custody, or control of personal property; 3) real property; 4) trees, traffic controls and street
lighting; 5) utility service facilities; 6) streets; 7) sidewalks; and 8) care, custody, or control of
animals. See 42 Pa. C.S. 8542 (b)(1)-(8). Employees of local agencies are entitled to the same
immunity from suit as the local agency for actions taken within the scope of their employment.
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To the extent that Plaintiff claims that Defendants violated the CBA by drug testing him, that
“is not a question of law under the Fourth Amendment, but is instead a question of fact to be
resolved during the course of the grievance/arbitration process,” because it “involv[es]
interpretation of the CBA.” Dykes, 68 F.3d at 1565, 1570.
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Id. § 8545. In his Amended Complaint, Plaintiff claims that Defendants acted negligently “by
not reporting results [of Plaintiff’s drug test] to the President of Council, but rather by allowing
the results to be given to Chief LeFever.” (Doc. 11 ¶ 38). Because this claim does not fit within
any of the above enumerated exceptions, it is barred under the PPSTCA. For this reason,
Plaintiff’s negligence claim will be dismissed.
3. Count III – Breach of Contract
In Count III of his Amended Complaint, Plaintiff asserts a breach of contract claim
against Glassport based on alleged violations of the CBA. (Doc. 11 ¶¶ 40-49). As Defendants
argue, an individual employee lacks standing to enforce the terms of a collective bargaining
agreement. Only the Union, as a signatory to the agreement with the employer, may bring suit
under the CBA. Ziccardi v. Commonwealth of Pa., 500 Pa. 326, 456 A.2d 979, 981 (1982)
(citing Falsetti v. Local Union No. 2026, United Mine Workers, 400 Pa. 145, 161 A.2d 882
(1960). Furthermore, it is well established that “[a]bsent a showing of active participation by the
employer in the union’s bad faith, or conspiracy or collusion between the employer and the
union, the merits of the employee’s claim for breach of the labor contract must be determined by
arbitration, and not by a court; indeed, the court ‘lacks authority to resolve the underlying
grievance.’ The employee may obtain relief against the employer for violation of the labor
contract, but only through arbitration of a grievance under the contract’s grievance procedures.”
Garzella v. Borough of Dunmore, 62 A.3d 486, 494 (Pa.Cmwlth.), appeal denied, 621 Pa. 660,
72 A.3d 605 (Pa. 2013) (citations omitted). Accordingly, Plaintiff’s contract claim based on
alleged violations of the CBA will be dismissed.
4. Count IV – Conspiracy
In Count IV, Plaintiff alleges that the “Defendants Thomas W. Bradley and Elaina Skiba

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conspired against the Plaintiff,” presumably in an effort to violate his civil rights. (See Doc. 11
¶ 51). As discussed in Sections 1 above and 5 below, Plaintiff has failed to allege a
constitutional violation, and thus his conspiracy claim based on these alleged violations will be
dismissed. See Samuel v. Clark, 1996 WL 448229, at *4 (E.D. Pa. Aug. 7, 1996) (dismissing
conspiracy claim where underlying claims for fraud and discrimination were dismissed).
However, even if Plaintiff had alleged a constitutional violation, he could not make out a viable
civil conspiracy claim based on the alleged conspiracy between two Glassport
Councilmembers—Councilwoman Skiba and Councilman Bradley—as it is well established that
officials of a municipality, acting in their official capacities, “are part of the same entity and
therefore cannot be charged with civil conspiracy because an entity cannot conspire with itself.”
Brady v. Cheltenham Two, 1998 U.S. Dist. LEXIS 4519, at * 13 n.6, Civ. A. No. 97-4655 (E.D.
Pa. April 9, 1998); see also Gregory v. Chehi, 843 F.2d 111, 118 n.4 (3d Cir. 1988). Finally, the
Court notes that Plaintiff has alleged no facts relating to Councilman Bradley, let alone facts
establishing that he “conspired” with Councilwoman Skiba to violate Plaintiff’s constitutional
rights. Accordingly, Count IV of the Amended Complaint will be dismissed,
5.

Count V – Retaliation

Finally, in Count V, Plaintiff asserts a retaliation claim against the Defendants. (See Doc.
11 ¶¶ 56-62). Plaintiff identifies two “protected activities” that allegedly gave rise to
Defendants’ retaliatory actions. First, in the Amended Complaint, Plaintiff contends that “he has
been retaliated against, as 2 members of Counsel have already informed him that his
employment is in jeopardy as a result of the filing of the within action.” (Doc. 11 ¶ 57)
(emphasis added). Second, in his brief in response to Defendants’ motion to dismiss, Plaintiff
claims that he “engaged in protected conduct by filing a grievance with the Union with regard to

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Defendants decision to drug test him.” (Doc. 16 at 8) (emphasis added). Under both theories,
Plaintiff appears to be raising a claim for retaliation under the First Amendment of the U.S.
Constitution. However, under both theories, Plaintiff’s claim fails.
First, in order to sustain a claim for First Amendment retaliation, there must be some
purported retaliatory action that would be “sufficient to deter a person of ordinary firmness from
exercising his or her rights.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). As
numerous courts have held, “[m]ere threats . . . do not rise to the level of an adverse employment
action” because, in the absence of constructive discharge, they do not result in materially adverse
consequences or objective, tangible harm. Leitch v. MVM, Inc., 2004 WL 1638132, at *9 (E.D.
Pa. July 22, 2004); Panton v. Boom, 2007 WL 853848, at *2 (M.D. Pa. Mar. 20, 2007)
(“Significantly, allegations of verbal harassment are insufficient to state a constitutional
violation. The use of words, however violent, generally cannot constitute conduct actionable
under § 1983.”); Reynolds v. Dep’t of Army, 2010 WL 2674045, at * 12 (D.N.J. June 30, 2010)
aff’d, 439 F. App’x 150 (3d Cir. 2011) (“[O]ther than general assertions by [the employee] that
[the employer] told him that [he would lose his employment status and suffer a pay decrease],
there is no support . . . for a finding that [the employee’s] pay was ever actually reduced or that
he received a downgrade in status.”). Thus, Plaintiff’s allegations that “2 members of Counsel
have already informed him that his employment is in jeopardy” and that “Defendant Skiba told
Plaintiff that he was ‘lucky’ to have passed the test,” (Doc. 11 ¶ 59) do not give rise to a valid
claim for retaliation.
More importantly, Plaintiff does not show that his filing the July 16, 2015 grievance
and/or this lawsuit constituted protected activity under the First Amendment. The Supreme
Court has held that, in order to make out a valid claim of retaliation under the First Amendment,

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a public employee must show that his or her grievance and/or lawsuit relates to a matter of public
concern. Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 399 (2011); see also Morgan v.
Covington Twp., 563 F. App’x 896, 900 (3d Cir. 2014) (“In Guarnieri, the Supreme Court
rejected our precedents holding that a public employee who has filed a lawsuit or formal
complaint is protected from retaliation under the Petition Clause even if the suit or complaint
addressed only private concerns.”). Here, Plaintiff’s grievance and lawsuit—which relate to his
being drug tested one time following an on-duty vehicle accident—do not, on their face,
implicate a matter of public concern. Furthermore, to the extent Plaintiff claims that he was
retaliated against for filing this lawsuit, his claim fails as a matter of law, as it is well established
that “actions taken by Defendants after [a plaintiff] filed his complaints do not qualify as
retaliatory actions.” Slavoski v. Pawlowski, 462 F. App’x 215, 218 (3d Cir. 2012) (citing
Eichenlaub v. Township of Indiana, 385 F.3d 274, 282 (3d Cir. 2004)).
For these reasons, Plaintiff’s retaliation claim will be dismissed.
II. ORDER
No amendment to this already Amended Complaint, short of asserting an entirely new
fact pattern, could render the claims in this case viable and, therefore, any amendment of the
Amended Complaint to overcome Defendants’ motion would be futile. As such, Defendants’
Motion to Dismiss (Doc. 13) is GRANTED, and the Amended Complaint will be dismissed in its
entirety with prejudice. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (holding that
district courts must permit a curative amendment within a set period of time unless such an
amendment would be inequitable or futile).
IT IS SO ORDERED.

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March 30, 2017

s/Cathy Bissoon
.
Cathy Bissoon
United States District Judge

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All Counsel of Record

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