Frederick v. Barbush, CIVIL ACTION NO. 1:13-CV-00661

PHILLIP A. FREDERICK, JR., BRIAN MARHON, and MICHAEL MESKUNAS, Plaintiffs, v. ANTHONY F. BARBUSH, Defendant.

CIVIL ACTION NO. 1:13-CV-00661

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

Dated: March 4, 2014

(Chief Judge Conner)

MEMORANDUM

Plaintiffs Phillip A. Frederick, Michael Meskunas, and Brian Marhon filed the above-captioned action, alleging 42 U.S.C. § 1983 claims for violation of procedural due process and equal protection under the Fourteenth Amendment, as well as common law claims for wrongful discharge and promissory estoppel. Presently before the court is defendant Anthony Barbush's motion to dismiss (Doc. 18) under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. For the reasons that follow, the court will grant the motion in part and deny it in part.

I. Factual and Procedural Background¹

At all times relevant to the amended complaint, plaintiffs Phillip A. Frederick, Michael Meskunas, and Brian Marhon (collectively, "Plaintiffs") wereemployed by the Commonwealth of Pennsylvania's House of Representatives ("PA House"). (Doc. 11 ¶¶ 9, 11-12). Phillip A. Frederick ("Frederick") was the Director of Security and Safety—Sergeant at Arms and supervised approximately 33 Legislative Security Officers ("LSO"), who provide security to the members of the PA House. (Id. ¶¶ 9-10). Michael Meskunas ("Meskunas") was the Assistant Director of Security and Safety—Sergeant at Arms, and Brian Marhon ("Marhon") was an LSO. (Id. ¶¶ 11-12). Defendant Anthony Barbush ("Barbush") is Chief Clerk of the PA House and allegedly a member of the Bipartisan Management Committee ("BMC"), which directly supervises Frederick as Sergeant at Arms. (Id. ¶¶ 8, 13).

On or about April 20, 2012, Barbush became aware that Marhon had a criminal record² and asked Frederick for further information regarding Marhon's criminal history. (Id. ¶ 15). Frederick responded that Marhon's criminal record involved past incidents outside of work and did not affect Marhon's ability to act as an LSO, including carrying a firearm. (Id. ¶ 16). Barbush questioned why he was not previously informed of Marhon's criminal history and purportedly accused Frederick of hiding the information. (Id. ¶ 17). Frederick denied any cover up. (Id. ¶ 18). He explained to Barbush that, in accordance with internal policy, Marhon's fingerprints were taken in 2007, and that the results indicated that Marhon was allowed to possess a firearm. (Id.) In 2007, there was no policy requiring furtherbackground checks; LSOs were only required to report any contact with the police. (Id. ¶¶ 19-20). According to the amended complaint, Marhon complied with this policy and informed Meskunas of his criminal history, who in turn reported the information to Frederick.³ (Id. ¶¶ 20, 47). During their initial conversation about Marhon's criminal record, Barbush denied Frederick's request to conduct an investigation into the issue per office protocol. (Id. ¶ 21). Instead, Barbush purportedly pressured Frederick into placing Marhon on administrative leave. (Id. ¶ 22). Marhon then requested a meeting with Barbush, but Barbush denied the request. (Id. ¶ 23).

Barbush subsequently instructed Frederick to fire Marhon as a result of Marhon's criminal record. (Id. ¶¶ 24, 27). Frederick advised Barbush that other LSOs also had criminal records and that there was no policy requiring termination for a criminal record. (Id. ¶ 28). Nevertheless, Barbush insisted upon the termination and instructed Frederick to reference Marhon's criminal history as the reason for termination. (Id. ¶ 29). According to Frederick, Barbush also ordered Frederick not to speak to anyone else about the matter. (Id.) Upon approving the termination letter, Barbush allegedly informed Frederick that the BMC no longer trusted or had confidence in Frederick, but that such trust and confidence would be restored if LSOs were no longer permitted to carry firearms. (Id. ¶¶ 31-32).

The BMC previously authorized LSOs to carry firearms pursuant to an "Action in Writing."⁴ (Id. ¶ 33; see id., Ex. A). The Action in Writing states, in relevant part:

RESOLVED, The issuances and use of weapons and detention powers be given to the House Legislative Security Officers, along with the establishment of corresponding training curriculum, reviewed by the Chief Clerk and approved by the Bipartisan Management Committee, with officer certification from an established authority; and

RESOLVED, That all continuing legal requirements regarding the issuance of weapons and detention powers be approved by the Chief Clerk prior to authorization by the Director of House Security and Safety Department for any officer to carry a weapon in the line of duty.

(Id., Ex. A).

On April 26, 2012, Barbush summoned Frederick and two of Frederick's subordinates⁵ into his office and again accused Frederick of covering up Marhon's criminal record. (Id. ¶¶ 36-37). Frederick presented Barbush with a memorandum requesting that the BMC affirm its Action in Writing permitting LSOs to carry firearms or issue a new Action in Writing withdrawing firearms from the LSOs. (Id. ¶¶ 35, 38). In response, Barbush directed Frederick to take away all firearms from the LSOs without formal action from the BMC. (Id. ¶ 38). As a direct result of "constant pressure and veiled threats" and "persistent false accusations" fromBarbush, Frederick submitted his resignation letter the next day and resigned effective May 15, 2012. (Id. ¶¶ 39-40).

After he received Frederick's resignation letter, Barbush refused to discuss with Frederick the issues underlying his resignation, and Barbush appointed Carl Barnhardt as Frederick's replacement. (Id. ¶¶ 41-43). Barbush later called Mr. Barnhardt and Meskunas into his office to discuss the issue of Marhon's criminal record. (Id. ¶¶ 44-48). Barbush intimated that Frederick had "thrown [Meskunas] under the bus," and asked Meskunas if Frederick knew about Marhon's criminal record. (Id. ¶¶ 45-46). Meskunas responded that Marhon had informed Meskunas personally about his criminal history, and that Meskunas had informed Frederick as required by internal policy. (Id. ¶ 47). Barbush purportedly responded by accusing Meskunas of covering up Marhon's criminal history. (Id. ¶ 48). Soon thereafter, Mr. Barnhardt instructed Meskunas to either resign or be fired. (Id. ¶ 49). Meskunas requested a meeting with Barbush, but Barbush denied his request. (Id. ¶ 50). Meskunas elected to resign under duress effective May 31, 2012. (Id. ¶ 51).

According to the parties, the BMC previously promulgated an employee manual titled Personnel Policies and Procedures Manual ("Manual"). (See Doc. 22-2). The Manual includes a procedure for employee discipline and a right to due process, enabling employees to raise complaints to the Chief Clerk and to appeal decisions to the BMC. (Id. at 5-6). Upon receipt of the Manual, Plaintiffs each signed an acknowledgment, stating that:

[N]othing contained in the Manual . . . should be interpreted or construed as conferring employment for a specific term or as an employment contract. I further understand and agree that my employment is terminable "at-will" and that both the BMC and I each have the right to discontinue the employment relationship at any time and for any reason.

(See Doc. 19-2).⁶

On March 12, 2013, Plaintiffs filed a complaint (Doc. 1) against Barbush, alleging 42 U.S.C. § 1983 claims for violation of procedural due process and equal protection under the Fourteenth Amendment, as well as common law claims for wrongful discharge. In response to Barbush's first motion to dismiss (Doc. 4), Plaintiffs filed the amended complaint on May 28, 2013, with an additional claim for promissory estoppel. (Doc. 11). On June 11, 2013, Barbush filed the instant motion to dismiss (Doc. 18) pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 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. Plaintiffs allege that Barbush deprived them of constitutional rights under color of state law. See 28 U.S.C. § 1343(a)(3). The court also exercises supplemental jurisdiction over the common law claims for wrongful discharge and promissory estoppel. 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. Lyon v. Whisman, 45 F.3d 758, 759-60 (3d Cir. 1995) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966)).

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 Federal Rule of Civil Procedure 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. Cnty. 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 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...