Keefer v. Durkos

• Decision Date: 17 March 2005
• Docket Number: Civ. A. No. 04-187J.
• Citation: 371 F.Supp.2d 686
• Parties: Suzanne KEEFER, Plaintiff, v. James DURKOS, individually, Mary Ellen Deal, individually, Donna Younkin, individually, Janet Virgin, individually, Saralane Raboci, individually, John Doe, individually, and Jane Doe, individually, and James Durkos, Mary Ellen Deal, Donna Younkin, Janet Virgin, and Saralane Raboci in their capacity as Directors of the Board of Education of the Turkeyfoot Valley Area School District, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

Page 686

371 F.Supp.2d 686

Suzanne KEEFER, Plaintiff, v. James DURKOS, individually, Mary Ellen Deal, individually, Donna Younkin, individually, Janet Virgin, individually, Saralane Raboci, individually, John Doe, individually, and Jane Doe, individually, and James Durkos, Mary Ellen Deal, Donna Younkin, Janet Virgin, and Saralane Raboci in their capacity as Directors of the Board of Education of the Turkeyfoot Valley Area School District, Defendants.

Civ. A. No. 04-187J.

United States District Court, W.D. Pennsylvania.

March 17, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert P. Ging, Jr., Confluence, PA, for Plaintiff.

Patricia A. Monahan, Marshall, Dennehey, Warner, Coleman & Goggin, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION and ORDER

GIBSON, District Judge.

This matter comes before the Court on the Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) (Document No. 15) and accompanying Brief (Document No. 16) and the Plaintiff's Response (Document No. 17) and Brief in Opposition (Document No. 18). Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6) is granted in part and denied in part.

The Court has jurisdiction over the Plaintiff's federal claims pursuant to 28 U.S.C. § 1331 and the Plaintiff's state law claim pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391.

In analyzing a motion to dismiss under Federal Rule of Civil Procedure 12 b) 6):

the district court [is] required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); D.P. Enters., Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir.1984). In determining whether a claim should be dismissed under Rule 12(b)(6), a court looks only to the facts alleged in the complaint and its attachments without reference to other parts of the record. Moreover, a case should not be dismissed for failure to state a claim unless it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); D.P. Enters., 725 F.2d at 944.

Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3rd Cir.1994). In considering a motion to dismiss, the court is not deciding the issue of whether a plaintiff will ultimately prevail, but is deciding if the plaintiff is entitled to offer evidence to support claims. Lake v. Arnold, 112 F.3d 682 (3rd Cir.1997); Nami v. Fauver, 82 F.3d 63 (3rd Cir.1996).

[D]ismissal under Rule 12(b)(6) generally is not immediately final or on the merits because the district court normally will give the plaintiff leave to file an amended complaint to see if the shortcomings of the original document can be corrected. The federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that the plaintiff be given every opportunity to cure a formal defect in the pleading. This is true even when the district judge doubts that the plaintiff will be able to overcome the shortcomings in the initial pleading. Thus, the cases make it clear that leave to amend the complaint should be refused only if it appears to a certainty that the plaintiff cannot state a claim. A district court's refusal to allow leave to amend is reviewed for abuse of discretion by the court of appeals. A wise judicial practice (and one that is commonly followed) would be to allow at least one amendment regardless of how unpromising the initial pleading appears because except in unusual circumstances it is unlikely that the district court will be able to determine conclusively on the face of a defective pleading whether the plaintiff actually can state a claim for relief.

CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1357 (3rd ed.2004)(footnotes omitted).

All factual allegations of the complaint need not be set forth for the purposes of this motion. It is sufficient to state in summary that this civil action concerns the termination of the Plaintiff as secretary of the school board for the Turkeyfoot Valley Area School District, Somerset County, Pennsylvania. The Plaintiff alleges that her termination was based upon her "whistleblowing" relative to the actions of Defendant Mary Ellen Deal taking food and utilizing services from the cafeteria for the school district for purposes unrelated to school district business and, additionally, that this action was taken against her as a result of the Defendants' inability to retaliate directly against the Plaintiff's husband, who is the school district superintendent, after he allegedly refused to forge documents at the request of the Defendants. The Defendants are various members of the school board of the Turkeyfoot Valley Area School District.

The Defendants make several arguments in their Motion to Dismiss as to the counts of the Complaint.

COUNT I

First, Defendants argue that the Plaintiff fails to state a claim under the Pennsylvania Whistleblower Law because the acts reported "do not constitute waste or wrongdoing as defined under the Law and the information that she reported was already public knowledge." Defendants' Brief, p. 5. Defendants further argue that a lack of causation is apparent from the Plaintiff's Complaint. Defendants' Brief, pp. 6-7. Finally, the Defendants argue that the Plaintiff is without standing to bring a claim under the Whistleblower Law because she learned of the actions at issue through public meetings. Defendants' Brief, p. 8. Plaintiff counter-argues that the Whistleblower Law does not require an allegation of a violation of a state or federal statute to support her claim, that she has satisfied the notice pleading requirements of the Federal Rules of Civil Procedure, and that the Plaintiff does have standing to bring this claim because the fact that information used by the Plaintiff to report wrongdoing or waste was made public is without consequence under the statute, in addition to the fact that her learning of this information from a public meeting or record has not been established in this case.

Preliminarily it must be noted that the wrongdoing alleged need not be "concealed." Rankin v. City of Philadelphia, 963 F.Supp. 463, 473 (E.D.Pa.1997). Judge Brody in Rankin found the following:

Nowhere in the definition of "wrongdoing" is a requirement that the violations be concealed. Nor does any other provision of the Whistleblower Law require a showing that the employer attempted to conceal such violations, and the defendants have not identified any other authority imposing such a requirement. Thus, the defendants' objection that Rankin failed to plead facts sufficient to determine that the City defendants concealed the violations is simply irrelevant. Rankin has alleged that the Philadelphia Nursing Home was in substantial violation of numerous health and safety requirements. Moreover, health and safety regulations are enactments "designed to protect the interest of the public." Therefore, Rankin has adequately alleged "wrongdoing" for purposes of the Whistleblower Law.

Id. This Court agrees. To conclude otherwise would allow public bodies to place their violations of law on public record and thereby insulate any future acts of retribution of the public body against any staff member who reports the wrongdoing to the appropriate authority. On this argument, the motion to dismiss is denied.

As for the Defendants' second argument that no violations of any law have been alleged to support the reporting of the alleged "wrongdoing", the Court will also deny the motion to dismiss on this argument. The Plaintiff alleges:

that Defendant Mary Ellen Deal, a member of the School Board, had required the school cafeteria manager to provide Mrs. Deal with food from the school cafeteria for non-school activities, and had used School District personnel, and resources, for non-school purposes. The funding for the school cafeteria includes ... tax dollars, and the School District purchases food as a tax exempt entity. Defendant Deal had no authority to requisition food or School District resources for her own non-school purposes.

Complaint, ¶ 23. Plaintiff thereafter contacted the Auditor General of Pennsylvania regarding this issue. Complaint, ¶ 24. As a fact alleged within the Complaint, the Court must accept there assertions as true and, therefore, accepted as true, these acts could constitute various violations of federal and state law even though they may not violate any school district policy on the matter. Therefore, this conduct, as alleged, is the type of information falling within the ambit of the Whistleblower Law and the Court finds no reason for the Plaintiff to enumerate specific laws within her Complaint to withstand the Defendants' Motion to Dismiss. See Podgurski v. Pennsylvania State University, 722 A.2d 730 (Pa.Super.1998)(finding sufficient facts were plead that support a claim under the Whistleblower Law). This conclusion is also consistent with the "notice pleading" of the Federal Rules of Civil Procedure. The Court trusts the parties will further explore these allegations in discovery.

As for the Defendants' third argument that the Plaintiff's Complaint lacks sufficient pleading to establish a causal connection between the Plaintiff's reporting of wrongdoing and her subsequent termination, the Motion to Dismiss is denied. Accepting facts in the Complaint as true and construing them in a light most favorable to the Plaintiff, the Plaintiff has alleged awareness of the report by the Defendants and that the Defendants' actions were taken as a result of this awareness. Complaint, ¶ ¶ 39-40. The manner in which the Defendants learned of the Plaintiff's report to the Auditor General can be...