Klein v. Cnty. of Bucks

WILLIAM KLEIN, Plaintiff,

v.COUNTY OF BUCKS, et al., Defendants.

CIVIL ACTION NO. 12-4809

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

March 19, 2013

MEMORANDUM

Jones, II, J.

William Klein, a former Bucks County Deputy Sheriff, brings this action against the County of Bucks, Bucks County Commissioners Robert G. Loughery, Charles H. Martin, and Diane M. Ellis-Marseglia, LCSW (collectively "the Commissioners"), Sheriff Edward Donnelly, Chief Deputy Sheriff Dennis Shook and Lieutenant Thomas Waltman. His Amended Complaint asserts claims of retaliation under the Pennsylvania Whistleblower Law ("PWL"), retaliation under the First Amendment pursuant to 42 U.S.C. § 1983, and a violation of the Family and Medical Leave Act ("FMLA"). Presently before this Court is Defendants' Motion to Dismiss the PWL and § 1983 claims, as well as the request for punitive damages in the FMLA claim. For the reasons that follow, the Motion is granted in part.

I. LEGAL STANDARD

In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts 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."' Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). After the SupremeCourt's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "threadbare recitals of a cause of action's elements, supported by mere conclusory statements" do not suffice. Ashcroft v. Iqbal, 556 U.S. 662,663 (2009). "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 of the alleged misconduct." Id. (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned the-defendant-unlawfully-harmed-me accusation."). Moreover, "the factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8 [of the Federal Rules of Civil Procedure]." Villegas v. Weinstein & Riley, P.S., 723 F. Supp. 2d 755, 756 (M.D. Pa. 2010) (quoting Phillips, 515 F.3d at 232).

II. FACTS

Klein began working as a Bucks County Deputy Sheriff on June 12, 2006. (Am. Compl. ¶ 15.) In 2010, Klein reported to Deputy Oliver Groman that Lt. French, a firearms instructor and armorer for the Sheriff's Department ("Department") was not certified for this position. (Id. ¶ 18.) Also in 2010, due to his concern for the safety of officers and citizens, as well as legal liability for the County, Klein made complaints to Defendants Commissioner Diane M. Ellis-Marseglia and Sheriff Edward Donnelly that the Department did not have policies and procedures related to the use of force, detention, and other procedures. (Id. ¶ 28.) At the time he made these complaints, Klein was assigned to the open warrants unit. (Id. ¶ 31.) He alleges that two other members of this unit, Deputy James McAndrew and Sergeant Gary Browndorf, also made complaints about corruption. (Id. ¶ 32.) Shortly after making his complaints, the softwareKlein used in his work was discontinued by Defendants, making his work more difficult, and when his computer malfunctioned it was neither repaired nor replaced. (Id. ¶ 35.) When the vehicle he used for work was damaged it was not repaired and he had difficulty obtaining gasoline. (Id. ¶ 37.) He was criticized for failing to sign in and out and other minor issues which had never before been raised. (Id. ¶ 39.) He also alleges that a private investigator began a yearlong investigation into his activities, which was paid for by a Bucks County political fundraiser and the girlfriend of "Defendant French."¹ (Id. ¶ 40.)

On October 15, 2010, Klein was stabbed by a criminal while attempting to serve a warrant. (Id. ¶ 42.) He alleges he was recommended for, but denied, the law enforcement purple heart. (Id. ¶ 43.) He also alleges that Defendants chose to challenge whether his injury was work related for purposes of worker's compensation benefits. (Id. ¶ 44.)

In February 2011, Klein gave testimony on behalf of Sgt. Browndorf, who was brought up on disciplinary charges, and thereafter filed a grievance against the County. (Id. ¶¶ 45-46.) He alleges that Defendant Lt. Waltman screamed at him that he would not be compensated for his time testifying at the hearing. (Id. ¶ 47.) In March 2011, upon learning that Lt. French was not a certified armorer, Klein inspected a number of weapons and determined that they were not properly maintained, repaired or inspected. (Id. ¶ 50.) He informed Sheriff Donnelly of his findings, but was told "don't worry about it, it's in the past." (Id. ¶ 51.) Not satisfied with this response, he notified a County investigator. (Id. ¶ 52.) Sheriff Donnelly thereafter sent Klein an email advising him not to send out any documents, reports or memos to any person or agency outside the Department without his approval. (Id. ¶ 53.) In the summer of 2011, Klein alleges he was criticized for his paperwork and complained that his work vehicle was unsafe. (Id. ¶ 56-57.) Soon after making these complaints, he was transferred from the warrant unit to thedetention unit, the least desirable unit for a deputy sheriff. (Id. ¶ 58.) When he requested a certain shift, his request was denied. (Id. ¶ 58-59.) He was also denied a request for vacation time and his key to the armory was taken away. (Id. ¶¶ 60-61.) While working in the detention unit, he observed another armed deputy asleep in court while he was guarding prisoners. (Id. ¶ 63.) He reported the conduct and was told he was a troublemaker and had ratted out a fellow union member. ((Id. ¶ 65-66.)

On July 28, 2011, while still assigned to the warrant unit, Klein witnessed Sgt. Browndorf assault a person he was arresting. (Id. ¶¶ 67-71) He alleges that at this time the Department had no policy or procedure related to the use of force or reporting the use of force. (Id. ¶ 70.) The Department did have a custom or practice that (1) the officer in charge was to prepare all written documents related to the arrest and (2) subordinate officers did not prepare such documents. (Id. ¶ 76-77.) The incident led to a grand jury proceeding and Klein was called to give testimony on September 22, 2011. (Id. ¶ 82.) He alleges that "[o]utside of his duties as an officer, and not as part of his subpoenaed testimony," he told the grand jury that the County had no policies, procedures or written rules of conduct related to the use of force, reporting the use of force, and other important safety matters. (Id. ¶ 83.)

On August 1, 2011, Defendant Shook was hired as Chief Deputy Sheriff of Bucks County. (Id. ¶¶ 11, 88.) On Shook's first day in office, Klein met with him to discuss the complaints he had made and the retaliation he had suffered. (Id.) On November 15, 2011, Shook interviewed Klein about the incident that occurred on July 28, 2011. (Id. ¶ 90.) Klein alleges that Shook terminated him from his employment on February 21, 2012, but that he was not notified of the termination until March 8, 2012. (Id. ¶¶ 91-92.) The reason for his termination was his failure to report the July 28, 2011 assault by Sgt. Browndorf. (Id. ¶ 92.)Klein alleges that this reason was a pretext for the complaints he had made and his grand jury testimony about Department policies and procedures. (Id. ¶ 93.) Finally, he alleges that the Commissioners, who had final decision-making authority for Bucks County and the Department during the relevant time period (Id. ¶ 9), had knowledge of his speech and the other Defendants' acts of retaliation, but did not take any action against any of the other Defendants for their retaliatory treatment toward him, (Id. ¶¶ 94-95.)

III. DISCUSSION

a. The PWL Claim

Defendants argue that Klein's allegations that he was terminated after making complaints about the Department must be dismissed because he fails to sufficiently plead that his acts of whistleblowing were causally connected to his termination. Specifically, Defendants point to the time lapse between the bulk of Klein's complaints and his termination to support their argument that he has failed to plausibly plead causation.² While many of Plaintiff allegations discuss acts of whistleblowing that are temporally remote from the date of his termination from employment, the Amended Complaint does contain sufficient allegations of timely whistleblowing activity, combined with a historical pattern of antagonism, to support causation under the PWL.

The PWL provides that "[n]o employer may discharge, threaten or otherwise discriminate or retaliate against an employee . . . because the employee . . . makes a good faith report or isabout to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste." 43 P.S. § 1423(a). The Pennsylvania Supreme Court has held that, "to make out a prima facie case of retaliatory termination pursuant to the Whistleblower Law, a plaintiff must 'show by concrete facts or surrounding circumstances that the report [of wrongdoing or waste] led to [the plaintiff's] dismissal, such as that there was specific direction or information received not to file the report or [that] there would be adverse consequences because the report was filed.'" Golaschevsky v. Dep't of Envt'l Protection, 720 A.2d 757, 759 (Pa. 1998) (quoting Gray v. Hafer, 651 A.2d 221, 225 (Pa. Cmmw. Ct. 1994). Under the PWL, "wrongdoing includes not only violations of statutes or regulations that are 'of the type that the employer is charged to enforce,' but violations of any federal or state statute or regulation, other than violations that are ...