Errington v. City of Reading

OFFICER BRIAN ERRINGTON Plaintiff, v. CITY OF READING, RICHARD TORNIELLI, ERIC DRIESBACH, CHARLES MENGES, and JOHN DOES 1-10, Defendants.

No. 5:21-cv-00118

United States District Court, E.D. Pennsylvania

August 31, 2021

OPINION

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, ECF NO. 14 - GRANTED

Joseph F. Leeson, Jr., United States District Judge

I. INTRODUCTION

This matter involves claims by Brian Errington against his former employer, the City of Reading, doing business as the Reading Police Department, as well as several named and unnamed individuals within the department. Errington brings claims for First Amendment retaliation, violations of procedural and substantive due process, and Monnell^[1] liability. Defendants move to dismiss the Amended Complaint in its entirety.

Following a review of Errington's claims, this Court grants Defendants' motion to dismiss in its entirety. Errington fails to allege facts sufficient to state a claim under any of his three theories of liability. Accordingly Errington's Amended Complaint is dismissed without prejudice.

II. BACKGROUND^[2]

Errington was employed by the Reading Police Department for approximately fifteen years. See Am. Compl. ¶ 1. His duties included investigation of narcotics sales and delivery and investigation of organized and violent crimes. See id. Errington alleges that the City of Reading, doing business as the Reading Police Department, engaged in several discriminatory acts involving Errington. See id. ¶ 11.

Errington alleges that the issues giving rise to his claims began in November of 2017. See id. ¶ 13. At that time, Errington was nominated to run for re-election for two positions in the Fraternal Order of Police (“FOP”) union. See id. Despite his nomination, Defendant Sergeant Charles Menges left Errington's name off the ballot. See id. When Errington complained about his absence from the ballot, he was removed from his instructor position at the Reading Police Academy by Defendant Chief Richard Tornielli. See id. Errington alleges that his removal from this post was in retaliation for his complaints about being left off the ballot. See id.

In October of 2019, several individuals complained to Errington about Menges' conduct. See id. ¶ 14. At that time, Menges was president of the FOP union. See id. Errington's colleagues encouraged him to file a complaint with the FOP. See id. In October of 2019, Errington filed such a complaint with the FOP. See id. Errington alleges that Tornielli, who was implicated in one of the incidents complained of, was not interviewed by the Investigative Board. See id.

In November of 2019, Tornielli wrote Errington up for discipline. See id. ¶ 15. The Chief of Police at that time did not move forward with any discipline against Errington. See id. In January of 2020, Tornielli was promoted to Acting Chief of Police, after which he reinstated discipline against Errington for the November 2019 write up. See id. Errington alleges that Tornielli disregarded the traditional practice of sending the complaint to the Internal Affairs Office, and instead, Tornielli sent the discipline down directly to Errington. See id. After Errington requested a meeting to discuss the discipline, Tornielli withdrew the main charge. See id.

On or about January 27, 2019, Defendant Lieutenant Eric Driesbach issued a memorandum entitled “Direct Order 2020-00001” to all Vice Investigators to sign. See id. ¶ 16. The Direct Order stated that no member of the Vice Investigators Unit “shall make any comment, remark, suggestion, or innuendo that would reflect negatively or poorly on the Reading Police Department or any member of the Reading Police Department while working in an official capacity as a police officer for the Reading Police Department.” See id. Errington believed that this Direct Order was being used to “come after the personal conversations of the VICE Investigators, ” and accordingly, Errington voiced his concern to Driesbach. See id. ¶ 17. Errington alleges that Driesbach “did not appear to want to address [Errington's] worries about Direct Order 2020-00001.” See id. ¶ 18.

Errington then expressed his concerns to Deputy Chief Javier Ruiz. See id. Ruiz indicated to Errington that the Direct Order was aimed at “Patrol Officers speaking in front of newly hired Officers and in front of civilians.” See id. Ruiz reassured Errington that the Direct Order was not directed at private conversations.

On or about March 11, 2020, Tornielli promoted Menges to acting Sergeant. See id. ¶ 19. At that time, Menges had not taken the promotional exam and was not on the promotional list. See id. Errington was on the list and had taken the exam. See id. That same day, VICE investigators discussed their opinions of the promotion while in the VICE office. See id. ¶ 20. On or about March 12, 2020, Driesbach provide all VICE investigators a memorandum that indicated a complaint was received regarding a violation of Direct Order 2020-00001. See id. ¶ 21. The memorandum requested that each VICE investigator answer a series of questions about the March 11, 2020 discussions in the VICE office. See id. On March 12, 2020, Errington spoke with Driesbach again to express his concern that Tornielli was using Direct Order 2020-00001 to punish the personal conversations of the VICE investigators. See id. at ¶ 22. Errington alleges that Tornielli instructed Driesbach to assist in terminating Errington. See id. ¶ 23.

On or about March 13, 2020, Errington was told to turn over his firearm and badge. See id. ¶ 25. He was told to report for administrative duty the following Monday. See id. On or about April 10, 2020, Errington learned that Tornielli was moving to have Errington terminated. See id. ¶ 26. According to Tornielli, Errington had lied in an internal affairs investigation, saying that “one of his fellow VICE Investigators was a snitch.” See id.

In May of 2020, Errington informed his FOP representative that he intended on fighting his termination. See id. ¶ 27. Errington asked that the FOP not inform Menges of this decision; however, Errington's decision to challenge his termination did reach Menges and Tornielli. See id. After this, Errington was presented with new charges for termination in addition to those contained in the original charge for termination. See id.

In June of 2020, Errington met with Human Resources to complain about the alleged harassment and retaliation. See id. ¶ 30. While speaking with Human Resources, Errington became aware that Menges had spoken with Human Resources about bases for terminating him. See id. Errington alleges that Tornielli altered his reasons for terminating Errington based on the conversation that Menges had with Human Resources. See id. ¶ 31. Human Resources indicated that they were unable to investigate because Errington was already being investigated by the police. See id. ¶ 33.

On or about June 8, 2020, Errington alleges that he was “forced to retire.” See id. ¶ 34. Errington alleges that he did not appeal his termination “because it would have been futile.” See id. Errington further alleges that he “had no choice but to retire because he could not risk his pension while pursuing an appeal ....” See id. ¶ 36.

Based on these allegations, Errington filed a Complaint on January 10, 2021, alleging claims of First Amendment retaliation (Count I), violation of procedural and substantive due process (Count II), and Monnell liability (Count III).^[3] See Compl., ECF No. 1. Following a motion to dismiss, Errington filed an Amended Complaint on March 16, 2021. See Am. Compl. On March 26, 2021, Defendants moved to dismiss Errington's Amended Complaint in its entirety. See Mot., ECF No. 14. Following a series of responses and replies, the motion is ready for review. See Resp., ECF No. 16; Reply, ECF No. 17.

III. LEGAL STANDARDS

A. Review of Motion to Dismiss

In rendering a decision on a motion to dismiss, this Court must “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if “the ‘[f]actual allegations . . . raise a right to relief above the speculative level'” has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. (explaining that determining “whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense”). “In deciding a Rule 12(b)(6) motion, a court must 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 based upon these documents.” See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

B. Section 1983 First Amendment Retaliation Claim - Review of Applicable Law

A state “may not discharge an employee on a basis that infringes that employee's...