Allen v. Sweeney, CIVIL ACTION NO. 11-5602

• Decision Date: 21 November 2012
• Docket Number: CIVIL ACTION NO. 11-5602
• Parties: SHERYL J. ALLEN, Plaintiff, v. JOSEPH SWEENEY, et al. Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

SHERYL J. ALLEN, Plaintiff,

v.JOSEPH SWEENEY, et al. Defendants.

CIVIL ACTION NO. 11-5602

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: November 21, 2012

MEMORANDUM OPINION

Tucker, J.

Presently before the Court are six motions to dismiss Plaintiff's First Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) from the following: (1) Defendants Lynn Allen ("Allen"), Rufus Deloach ("Deloach"), Sophiny Pek-Lilly ("Pek-Lilly"), Winona Alyakoub ("Alyakoub"), and Shanti Seelal ("Seelal") (collectively, "DPW Defendants") (hereinafter, DPW Defs.' Mot. to Dismiss) (Doc. 20); (2) Defendant Commonwealth of Pennsylvania ("Commonwealth") (Doc. 21); (3) Defendants Kenya Mann Faulkner¹ ("Faulkner") and Darius Graziani ("Graziani") (Doc. 32); (4) Defendant Commonwealth of Pennsylvania Office of Inspector General ("OIG") (Doc. 33); (5) Defendant Curt Byerly ("Byerly") (Doc. 34); and (6) Defendant Bureau of Commonwealth Payroll Operations ("BCPO") (Doc. 35). Also for consideration is Plaintiff Sheryl Allen's ("Plaintiff")"Memorandum of Law in Response to [the DPW] Defendants' Motion to Dismiss" (Doc. 22). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Defendants' motions to dismiss will be granted.

I. PROCEDURAL HISTORY

Plaintiff Sheryl Allen brings this action pursuant to Title VI of the Civil Rights Act of 1964; 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988² ; the First, Fifth, and Fourteenth Amendments; and other federal and state law provisions. Plaintiff filed her initial Complaint on September 7, 2011. (Doc. 1.) Defendants Allen, Alyakoub, Deloach, Pek-Lilly, and Seelal filed their initial Motion to Dismiss on October 28, 2011 (Doc. 10.) After a delayed service, Defendant Commonwealth filed its initial Motion to Dismiss on January 13, 2012. (Doc. 15.) Subsequently, Plaintiff filed her First Amended Complaint on February 8, 2012, adding Defendants OIG and BCPO ("Amended Complaint"). (Doc. 19.) On February 28, 2012, Defendants Allen, Alyakoub, Deloach, Pek-Lilly, and Seelal filed their renewed Motion to Dismiss Plaintiff's Amended Complaint. (Doc. 20.) Plaintiff responded in opposition to this motion on March 21, 2012. (Doc. 22.) Defendant Commonwealth also filed its renewed Motion to Dismiss on February 28, 2012. (Doc. 21.) Service on Defendants Faulkner, Graziani, Byerly, OIG, and BCPO was completed on June 5, 2012 (Docs. 23, 24, 25, 28, 29), and they filed their respective motions to dismiss Plaintiff's Amended Complaint on June 22, 2012. (Docs. 32-35).³

II. FACTUAL BACKGROUND

This civil rights action arises out of allegations that Defendants violated Plaintiff's state and federal rights in their actions in response to the investigation of Plaintiff's participation in a scheme that defrauded the Commonwealth of Pennsylvania Department of Public Welfare ("DPW"). This investigation led to a grand jury indictment of Plaintiff and ultimately a bench trial where she was acquitted of the charges. Plaintiff is an African-American woman who was employed at all relevant times by DPW (Am. Compl. ¶¶ 8, 29-31). Until June 9, 2009, DPW assigned Plaintiff to the Low-Income Home Energy Assistance Program ("LIHEAP")⁴ operations in Philadelphia. (Am. Compl. ¶¶ 31-32.)

While Plaintiff was assigned to LIHEAP, the OIG investigated possible fraud by DPW employees administering that program. (Am. Compl. ¶ 32.) At some point, the OIG investigators Sweeney, Turner, and Graziani provided testimony and other evidence to a grand jury, and as a result Plaintiff was arrested and charged by the Philadelphia Police with fraud and related state crimes on June 9, 2009. (Am. Compl. ¶¶ 39-40.)

On June 10, 2009, Defendant Pek-Lilly of DPW's Human Resources Department informed Plaintiff that she was being suspended from her position without pay or benefits. (Am. Compl. ¶ 48, 55, 57.) The following day, June 11, 2009, Defendant Allen, DPW's Human Resources Director, sent Plaintiff a letter stating that Plaintiff was being suspended without payor benefits (both medical and union) because of the arrest and pending charges. (Am. Compl. ¶¶ 49-50.) This letter also informed Plaintiff that "an investigation will be conducted during the course of this suspension and appropriate action will be taken at its conclusion." (Am. Compl. ¶ 50.) During her suspension, Plaintiff sought unemployment compensation benefits, and on July 30, 2009, a hearing was held before the Unemployment Compensation Board of Review, during which Defendant Allen provided testimony in opposition to Plaintiff's unemployment compensation application. (Am. Compl. ¶¶ 59-60.) However, Plaintiff ultimately obtained unemployment compensation during her suspension. (Am. Compl. ¶ 61.)

During her suspension, Defendant Allen requested that Plaintiff come into her office to discuss an open Income Maintenance Caseworker position, a promotion Plaintiff had applied for before her suspension (Am. Compl. ¶¶ 62-63.) On March 17, 2009, Plaintiff went to the office to discuss the position, and while there, Human Resources Department employee Defendant Patricia Shrocki spoke to someone about Plaintiff's criminal case within earshot of Plaintiff and others even though Plaintiff requested discretion. (Am. Compl. ¶¶ 63, 66.) During the meeting, Human Resources Department employee Defendant Deloach "demanded" that Plaintiff declare herself "unavailable" for the Income Maintenance Caseworker position. (Am. Compl. ¶ 67.) When Plaintiff refused, Defendant Deloach ultimately made the decision to hire "a lesser qualified co-worker" for the position, even though Plaintiff should have been hired "under the state Civil Service rules." (Am. Compl. ¶¶ 67-68.)

Plaintiff eventually proceeded to a bench trial on the criminal charges and, on September 20, 2010, was found not guilty by Philadelphia County Common Pleas Court Judge Lisa M. Rau. (Am. Compl. ¶ 72.) Following the verdict, Plaintiff's suspension was lifted, and she returned to work at DPW. (Am. Compl. ¶ 74.) However, upon her return, Plaintiff was reassigned to a job inthe "misfit district," a job site within DPW where employees are transferred for disciplinary reasons. Plaintiff was given no reason for the transfer. (Am. Compl. ¶¶ 75-76.) Once there, Plaintiff discovered that coworkers there referred to her as the "girl from LIHEAP," which implied a negative connotation. (Am. Compl. ¶¶ 78-79.)

Upon her return, Plaintiff attempted to recover her salary for the period of time she was suspended without pay. (Am. Compl. ¶ 82.) However, Plaintiff's request was rejected by way of a letter from BCPO employee Curt Byerly, which explained that backpay could not be granted because Plaintiff received unemployment benefits during her suspension. (Am. Compl. ¶ 82.) Defendant Byerly's letter also informed Plaintiff that she owed payments for union dues and medical benefits for the suspension period and that money would be deducted from her pay. (Am. Compl. ¶ 85.) Plaintiff thereafter complained to Defendant Allen, who declined to further inquire into the matter. (Am. Compl. ¶ 91).

Plaintiff found the working conditions in her new assignment stressful and took periods of leave to deal with that stress. (Am. Compl. ¶ 92.) Plaintiff eventually took a voluntary demotion in a further effort to alleviate the stress. (Am. Compl. ¶ 93.) Plaintiff has been under the treatment of a licensed psychologist for many months to cope with the emotional distress, stress, anxiety, hypersensitivity, nightmares, post-traumatic stress disorder, loss of sleep, eating disorders, humiliation, fear, and uncertainty. (Am. Compl. ¶¶ 103-04.)

The Amended Complaint contains eighteen counts⁵ alleging Plaintiff's constitutional and civil rights were violated by:

Count I: "Violations of 42 U.S.C. § 1983" by all Defendants acting in concert to maintain an unconstitutional custom, policy, and practice

Count II "Race and Gender Discrimination," against the individual defendants

Count III IX: "Failure to Train/Supervise" employees, against Defendants Commonwealth, BCPO, DPW, OIG, Nardone, Allen, and Wagner

Count X: "Back Pay Settlement," against Defendants Commonwealth, Nardone, Allen, and Byerly

Count XI "Taking of Property—Medical Benefits," against Defendants Commonwealth, Nardone, and Allen

Count XII: "Denial of Due Process," against Defendants Commonwealth, Nardone, and Allen

Count XIII: "Malicious Prosecution and Abuse of Process," against Defendants Commonwealth, Nardone, Wagner, and Sweeney

Count XIV: "Invasion of Privacy—False Light," against Defendants Commonwealth, BCPO, DPW, OIG, Nardone, Allen, Sweeney, Wagner, and Mann Faulkner

Count XV: "Defamation—Slander and Libel," against against Defendants Commonwealth, BCPO, DPW, OIG, Nardone, Allen, Sweeney, Wagner, and Mann Faulkner

Count XVI: Unjust Enrichment, against Defendants Commonwealth, BCPO, DPW, Nardone, Allen, and Byerly

Count XVII: Intentional Infliction of Emotional Distress, against all Defendants

Count XVIII: "Conspiracy under the Color of State Law," against all Defendants⁶

III. STANDARD OF REVIEW

A. Motion to Dismiss Pursuant to Federal Rule 12(b)(1)

Motions to dismiss for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), may be raised at any time. See 2 JAMES WM. MOORE ET AL, MOORE'S FEDERAL PRACTICE § 12.30 [1] (3d ed. 2005). Rule 12(b)(1) challenges are either facial or factual attacks. Id. at § 12.30 [4]. "A facial attack questions the sufficiency of the pleading," and "[i]n reviewing a facial attack, a trial court accepts the allegations in the complaint as true." Id. However, "when a court reviews a complaint under a factual attack, the allegations have no presumptive truthfulness, and the court that must weigh the evidence has discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Id.; see also Mortensen v. First Fed. Sav. & Loan Ass'n, 549...