Pavone v. Redstone Twp Sewer Auth.

FRANCINE PAVONE, Plaintiff, v. REDSTONE TWP SEWER AUTHORITY, GEORGE MATIS, JAMES BASHOUR, LARRY WILLIAMS, REDSTONE TWP, REDSTONE TWP BOARD OF SUPERVISORS, and RICHARD BROSKY, Defendants.

Civil Action No. 20-1932

United States District Court, W.D. Pennsylvania

September 10, 2021

Re: ECF No. 25

MEMORANDUM OPINION

MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.

Plaintiff Francine Pavone (“Plaintiff”), a former employee of the Redstone Township Sewer Authority, filed this action arising out of allegations that she was constructively discharged from her employment. Plaintiff claims that Defendants violated her First and Fourteenth Amendment rights, violated the Pennsylvania Whistleblower statute, and engaged in tortious conduct.

Presently before the Court is a Motion to Dismiss filed by Defendants Redstone Township Sewer Authority (“RTSA”) George Matis (“Matis”), James Bashour (“Bashour”), Larry Williams (“Williams”), Redstone Township, Redstone Township Board of Supervisors, and Richard Brosky (“Brosky”) (collectively “Defendants”). ECF No. 25. For the reasons that follow, the Motion to Dismiss is granted in part and denied in part.^[1]

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed her original Complaint on December 11, 2020. ECF No. 1. She then filed a First Amended Complaint on March 19, 2021. ECF No. 21.

A. Factual Allegations

In her First Amended Complaint, Plaintiff alleges that from 2010 until late April or early May 2019, she was employed by the RTSA as an office manager. Id. ¶ 19. She was a full-time employee with medical benefits, who never received any progressive discipline or warnings for alleged misconduct or poor performance. Id. ¶¶ 20-21.

Defendants Williams, Bashour, Matis and Brosky are close friends, and they all held positions during the relevant time on the Redstone Township Board of Supervisors and/or the RTSA. Id. ¶¶ 9-15, 24.

Williams was a Redstone Township Supervisor. Id. ¶ 11. At some point, Plaintiff sent Williams a late bill for sewer services. Id. ¶ 25. Williams was “extremely angry” about this bill, and he kept it on his desk until his retirement in 2020. Id. ¶¶ 25-26. On May 23, 2018, he submitted a right-to-know request for Plaintiff's employment information. Id. ¶ 33.

Matis ran in, and ultimately won, an election for Redstone Township Supervisor in 2017. Id. ¶¶ 27, 29. When Plaintiff told Bashour that she did not support Matis as a candidate, Bashour cursed at her. Id. ¶ 28. Later, after Bashour became an RTSA board member in January 2018, he refused to communicate directly with Plaintiff. Id. ¶ 32. Bashour threw paperwork across the desk at her during meetings. Id.

In addition to being a township supervisor, Matis was appointed to the RTSA board in January 2019. Id. ¶ 34. After his appointment, Matis obtained the login information for the RTSA accounting software and “would constantly monitor the Plaintiff's work.” Id. ¶ 37.

Plaintiff directly criticized Matis on two occasions. First, she confronted Matis about his falsely reporting that the apartment above the RTSA only was used for storage, in a fraudulent effort to lower the RTSA's real estate tax. Id. ¶¶ 35-36. Second, Plaintiff criticized Matis for performing RTSA business while he was on Redstone Township “time, ” which meant he was being compensated by Redstone Township for performing RTSA work. Id. ¶¶ 38-40.

Plaintiff claims that, by March 2019, Bashour, Williams, Matis and Brosky “were engaging in a joint and concerted effort to destroy the Plaintiff's career with the RTSA.” Id. ¶ 43. From January 2019 until after May 2019, Bashour and Matis spread false rumors that Plaintiff mishandled the RTSA books and stole money from RTSA. Id. ¶ 42.

On March 15, 2019, Matis met with Plaintiff. Id. ¶ 44. Implying that she had engaged in misconduct, Matis told her that Defendants would contact the Attorney General's office about her, unless she resigned. Id. ¶ 45. Matis said she did not know “what was in store for her” if she stayed, and that she could not handle the pressure, which was “not good for [her] health.” Id. If she agreed to resign, Matis said he would allow her to draw unemployment. Id. If she did not resign, however, Plaintiff would be demoted to a part-time clerk role and stripped of all employee benefits. Id.

Plaintiff responded that this was “a witch hunt and nothing but a vendetta, ” to which Matis replied, “yes, you're, right.” Id. ¶ 46. Plaintiff said she was innocent and would not resign. Id. ¶ 47.

Three days later, during a regularly scheduled RTSA meeting, Plaintiff's sister told Bashour that if he had a personal vendetta against anyone that he should not be on the board and should resign. Id. ¶ 48.

On March 25, 2019, the RTSA and Redstone Township Board of Supervisors held a joint special meeting, which was open to the public. Id. ¶¶ 51, 54. Bashour, Williams, Matis and Brosky organized this meeting in order to take adverse employment action against Plaintiff. Id. ¶¶ 49-50. During this meeting, Bashour and Matis publicly criticized Plaintiff's job performance, made “false and stigmatizing” statements regarding her work, and implied that she had committed unlawful acts. Id. ¶¶ 55-56.

At Brosky's motion, the meeting then shifted to “executive session.” Id. ¶¶ 57-58. A motion was passed to reduce Plaintiff's position to a part-time role, effective April 23, 2019, and to eliminate her health benefits as of June 2019. Id. ¶¶ 59-60. Williams participated in the executive session, despite the fact that he was not an RTSA board member. Id. ¶ 58.

As a result of these events, Plaintiff suffered severe anxiety and stress, which resulted in headaches, stomach aches, vomiting and loss of sleep. Id. ¶¶ 61-63. Plaintiff sought medical attention for her symptoms. Id. ¶ 63. Her doctor prescribed anti-anxiety medication and recommended that she take a break from work. Id. ¶ 64. On April 10, 2019, Plaintiff emailed Matis to notify him of her doctor's recommendation, and that she planned to take a vacation from April 12, 2019 through May 6, 2019. Id. ¶ 65.

On April 16, 2019, Plaintiff submitted a right-to-know request for the minutes from the March 25, 2019 meeting, and the Redstone Township Board of Supervisors' and employees' W-2s, health benefits and mileage information. Id. ¶ 66. In response, Williams called Plaintiff and screamed at her. Id. ¶ 67. He called her stupid and demanded to know why she wanted this information. Id.

Despite her new part-time status, Bashour, Matis and Brosky approved a revised job description for Plaintiff based upon a full-time position at the Pittsburgh Water and Sewer Authority. Id. ¶ 69. Matis notified Plaintiff of her revised job description by email on April 23, 2019. Id. ¶ 68. In multiple emails, including this one, Matis also acknowledged Plaintiff's work-related anxiety. Id. ¶¶ 68, 70. Plaintiff claims she was constructively discharged, and she never returned to work following her vacation. Id. ¶¶ 65, 71. In May 2019, Plaintiff requested that personal items she brought to the office be returned to her. Id. ¶ 73. Matis, Bashour and Brosky returned some, but not all, of Plaintiff's things. Id. ¶ 74.

B. Legal Claims

Plaintiff asserts the following claims: Count I: First Amendment retaliation; Count II: Violation of the Pennsylvania Whistleblower Law; Count III: Procedural Due Process - Property Interest in Employment; Count IV: Stigma Plus Procedural Due Process; Count V: Procedural Due Process for Deprivation of Personal Property; Count VI: Intentional Infliction of Emotional Distress; Count VII: Municipal Liability: Count VIII: Tortious Interference; and Count IX: Conversion. Plaintiff asserts Counts I, II, III and IV against all Defendants. Count V is against Matis, Bashour, Brosky and the RTSA. Counts VI and VIII are against Matis, Bashour, Brosky and Williams. Count VII is against RTSA, Redstone Township Board of Supervisors and Redstone Township. Finally, Count IX is against Matis, Bashour and Brosky.

C. Motion to Dismiss

Defendants filed the instant Motion to Dismiss and Brief in Support on April 23 and 24, 2021. ECF Nos. 25 and 26. Plaintiff filed her Brief in Opposition on May 28, 2021. ECF No. 30. Defendants filed a Reply. ECF No. 31.

The Motion to Dismiss is now ripe for consideration.

II. LEGAL STANDARD

In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face, ” id. at 570, or where the factual content does not allow 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); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that,...