McNeilly v. City of Pittsburgh

• Decision Date: 22 August 2014
• Docket Number: Civil Action No. 13–1900.
• Citation: 40 F.Supp.3d 643
• Parties: Catherine McNEILLY, Plaintiff v. The CITY OF PITTSBURGH ; Luke Ravenstahl; Nathan Harper ; Michael Huss ; Regina McDonald; Maurita Bryant; Paul Donaldson, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

40 F.Supp.3d 643

Catherine McNEILLY, Plaintiff

v.The CITY OF PITTSBURGH ; Luke Ravenstahl; Nathan Harper ; Michael Huss ; Regina McDonald; Maurita Bryant; Paul Donaldson, Defendants.

Civil Action No. 13–1900.

United States District Court, W.D. Pennsylvania.

Signed Aug. 22, 2014.

Timothy P. O'Brien, Margaret Schuetz Coleman, Law Office of Timothy P. O'Brien, Pittsburgh, PA, for Plaintiff.

Brendan Delaney, Lourdes Sanchez Ridge, Wendy Kobee, City of Pittsburgh Department of Law, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

CYNTHIA REED EDDY, United States Magistrate Judge.

I. Introduction

Plaintiff Catherine McNeilly is a Commander with the City of Pittsburgh Bureau of Police. She filed this suit for breach of contract, retaliation for protected conduct under the First Amendment, and retaliation for protected conduct under the Civil Rights Act of 1866, made actionable by 42 U.S.C. § 1983, against Defendants the City of Pittsburgh, Luke Ravenstahl, Nathan Harper, Michael Huss, Regina McDonald, Maurita Bryant, and Paul Donaldson. Presently pending is Defendants' Motion to Dismiss for Failure to State a Claim, Motion to Dismiss for Lack of Jurisdiction, and Motion for More Definite Statement (hereafter “Motion to Dismiss”). ECF No. 24. For the reasons set forth below, this motion will be denied.¹

II. Factual Background

According to the facts set forth in the Amended Complaint, Commander McNeilly has been a “dedicated and decorated police officer” for the City of Pittsburgh Bureau of Police for 36 years. Amended Complaint, ECF No. 19, ¶ 1. Defendants named in Counts I and II are Luke Ravenstahl, the former Mayor of the City of Pittsburgh, and Nathan Harper, the Police Chief of the Pittsburgh Bureau of Police from October 31, 2006 until February 20, 2012. Defendants named in Count III are Michael Huss, the Director of the City of Pittsburgh's Department of Public Safety, Regina McDonald, the Acting Police Chief of the Pittsburgh Bureau of Police since February 20, 2013, Paul Donaldson, the Deputy Chief of the Pittsburgh Bureau of Police, and Maurita Bryant, the Assistant Chief of the Operations Division of the City of Pittsburgh Bureau of Police.

A. Counts I and II

Count I alleges defendants Ravenstahl and Harper breached a 2007 settlement agreement Commander McNeilly entered into in a prior retaliation suit against Ravenstahl, Harper and the City of Pittsburgh, when in August 2012, they failed to interview her or consider her in good faith for an Assistant Chief position. Count II alleges that in response to Plaintiff's protected conduct under the First Amendment, defendants Ravenstahl and Harper engaged in retaliatory conduct by failing to interview Plaintiff or give her good faith consideration for the Assistant Chief position. Plaintiff's protected First Amendment conduct included “petitioning the government for redress of grievances based upon the lawsuit she filed against these defendants in 2006 and the underlying protected speech which was the subject of that lawsuit.” Amended Complaint, ECF No. 19, ¶ 49.

Plaintiff states that on or about December 6, 2006, she was demoted from her position as a Commander to a Lieutenant in retaliation for exposing corruption within the City of Pittsburgh Bureau of Police. Id. at ¶ 12. She initiated a lawsuit in the United States District Court for the Western District of Pennsylvania seeking equitable relief from defendants for retaliating against her in violation of her rights under the First Amendment to the United States Constitution and under Pennsylvania's Whistleblower Law.² The parties reached a settlement agreement, which includes the provision that “[i]n the event that any Assistant Chief, Deputy Chief, Chief of Police position becomes open ... defendants agree that Commander McNeilly shall be given good faith consideration and interviewed for any such position.” Id. at ¶ 18; ECF No. 19–1, Exhibit 1, at ¶ 3. McNeilly states she included this provision because she was concerned defendants Harper and Ravenstahl would retaliate against her by hindering her promotional opportunities.

Defendants attach to their Motion to Dismiss court documents from the prior case, including the orders closing that case after the parties negotiated a settlement agreement. On August 27, 2007, then Chief Judge Donetta W. Ambrose entered an Order for Statistical Closing in which she, having been advised that the parties has reached a settlement and would be filing a stipulation of dismissal, acknowledged the settlement agreement, in relevant part stating:

It appears that there is no further action required by the court at this time.

IT IS HEREBY ORDERED that the above-captioned case be marked closed; that nothing contained in this order shall be considered a dismissal or disposition of this action; and that should further proceedings therein become necessary or desirable, either party may initiate the same in the same manner as if this order had not been entered.

Exhibit A, Motion to Dismiss, ECF No. 24–1; Order of August 27, 2007 at ECF No. 18, Civil Action No. 06–1685.

On October 25, 2007, Chief Judge Ambrose issued an Order Entering Judgment for Plaintiff on Attorneys' Fees and directed the case closed. Id., Exhibit B; Order at ECF No. 20, Civil Action No. 06–1685. In its entirety, this Order states: “The binding arbitration agreed to by the parties in their Settlement Agreement having been concluded with an Award on October 19, 2007, it is on this 25th day of October, 2007, hereby ORDERED that based on the Arbitration Award judgment is entered for Plaintiff and against Defendant in the amount of $142,735 in attorney fees and $4,833 in costs. The Clerk's Office is directed to mark this case closed and discontinued.”

In or about August 2012, George Trosky was promoted to the rank of Assistant Chief. Plaintiff states that despite her seniority over Trosky, she was not interviewed for this position or given good faith consideration, in violation of her settlement agreement. Plaintiff alleges that this failure to consider her for the position of Assistant Chief is part of an “ongoing pattern of retaliation directed at McNeilly” that has “persisted through to the present date.” Id. at ¶¶ 23–24. This retaliation “has included providing her with less favorable training opportunities and work assignments, poor performance reviews and general ostracization by other members of the Senior Command Staff.” Id. at ¶ 24.

B. Count III

Count III alleges that in response to Plaintiff's protected conduct under the Civil Rights Act of 1866, actionable under 42 U.S.C. § 1983, defendants Huss, McDonald, Donaldson, and Bryant engaged in retaliatory conduct by filing a Disciplinary Action Report (DAR) and written reprimand against Plaintiff for “false allegations that she was insubordinate and/or that she permitted a racially/sexually hostile work environment to exist in her precinct station.” Id. at ¶ 52.

In or about October 2013, Plaintiff alleges that an African–American female police officer subordinate within Commander McNeilly's zone complained “that on the date George Zimmerman was acquitted of the shooting of Trayvon Martin, a white male officer taunted her, sarcastically exclaiming in a loud voice that it was ‘Trayvon Martin day’ and demanding to know where was her ‘black hoodie.’ ” Id. at ¶ 25. McNeilly investigated the allegations and the white male officer's past conduct and concluded that his comments fit the protocol established by Command Staff for someone racially biased. She therefore issued a DAR to him for violating “the City of Pittsburgh Bureau of Police's prohibition against racial discrimination and/or creating a racially hostile work environment.” Id. at ¶ 27.

Defendants McDonald and Bryant decided the DAR should be dismissed and the matter would be submitted to mediation, which the African–American officer would be required to attend. If this officer refused, she would be subject to a DAR for directing a “profanity” at the white male officer in “response to his racially hostile comment.” Id. at ¶ 28. The African–American officer attended the mediation under protest that she felt she had no choice but to participate.

McNeilly “expressed support for the African–American officer's position,” as a victim of racially hostile remarks and work environment, which support was protected conduct under the Civil Rights Act of 1866. Id. at ¶ 34. In response to this expressed support, defendant Bryant “incredibly and wrongfully accused McNeilly in an official memorandum of ‘permitting officers to engage in unprofessional conduct in the presence of supervisors.’ ” Id. at ¶ 37. He ordered “McNeilly to issue a memo to her subordinates ‘... providing them with the standard of conduct expected in the work place.’ ” Id. McNeilly alleges that when she objected to Bryant's memorandum and actions, she was “punished by the issuance of a Disciplinary Action Report which falsely accused her of insubordination, and which resulted in a written reprimand placed in her personnel file.” Id. at ¶ 40. She states that defendants McDonald, Huss, and Donaldson participated in and/or approved of this DAR and written reprimand.

III. Standard of Review

1. Rule 12(b)(1) Motion to Dismiss for lack of jurisdiction

A motion to dismiss pursuant Rule 12(b)(1) challenges the existence of a federal court's subject matter jurisdiction. “When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.” Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 191 n. 4 (3d Ci r.2011) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) ). In considering a Rule 12(b)(1) motion, “the district court may not presume the truthfulness of plaintiff s allegations, but rather must ‘evaluat[e] for itself the merits of [the] jurisdictional claims.’ ” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d...