Opinion
Civil Action No. 03-CV-05715.
July 15, 2004
ORDER
NOW, this 15th day of July 2004, upon consideration of Defendant, ACS, Inc.'s Motion to Dismiss Plaintiff, Jeffrey Britland's, Complaint, which motion was filed on October 22, 2003; Plaintiff, Jeffrey Britland's Brief in Opposition to Motion to Dismiss by Defendant, ACS, Inc., which brief was filed on November 7, 2003; and Defendant, ACS, Inc.'s ("ACS"), Reply Brief to Plaintiff, Jeffrey Britland's, Brief in Opposition to the Motion to Dismiss of ACS, which reply brief was filed on November 24, 2003; it appearing that plaintiffs filed a five-count Complaint by Jeffrey Britland Only against defendants in the Court of Common Pleas of Northampton County, Pennsylvania on September 15, 2003; it further appearing that defendant ACS, Inc. ("ACS") was named as a defendant in Counts I, II and III only, alleging violations of 43 P.S. § 1421 and 42 U.S.C. § 1983, as well as wrongful termination; it further appearing that, accepting all well-pleaded facts of that complaint as true and viewing them in the light most favorable to plaintiff Jeffrey Britland, plaintiff has successfully pleaded causes of action against defendant ACS for violations of 43 P.S. § 1421 and 42 U.S.C. § 1983, as well as wrongful termination,
Each of the five counts raised in the Complaint is raised by plaintiff Jeffrey Britland only and the complaint is entitled Complaint by Jeffrey Britland Only. Interestingly, plaintiff Karen Brandau does not raise a single claim in the complaint despite being named as a plaintiff in this action. We decline to take any action on that issue at this time because the parties have not raised the issue with the court.
IT IS ORDERED that defendant's motion is denied without prejudice to raise these issues on summary judgment.
Of the five counts alleged in plaintiffs' complaint, plaintiff Jeffrey Britland raises only the following three counts against defendant ACS, Inc.: (1) Count I — violation of Pennsylvania's Whistleblower Law, 43 P.S. §§ 1421-1428; (2) Count II — violation of 42 U.S.C. § 1983; and (3) Count III — wrongful termination. Plaintiff Karen Brandau raises no causes of action against defendant ACS, Inc.
In its motion to dismiss, defendant ACS argues that Counts I through III should be dismissed because plaintiff Jeffrey Britland has failed to state a claim against it. A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure should be granted if, accepting all well-pleaded facts as true and viewing them in the light most favorable to the non-moving party, plaintiff is not entitled to relief. Maio v. Aetna, Inc., 221 F.3d 472, 481-82 (3d Cir. 2000). The Third Circuit enforces stricter pleading requirements under § 1983, but a court should deem the complaint sufficient where it "is satisfied from the alleged factual scenario that the conduct could have violated plaintiff's rights." Moleski v. Cheltenham Township, No. 01-CV-4648, 2002 U.S. Dist. LEXIS 12311, *5 (E.D. Pa. April 30, 2002). For the reasons explained below, this court finds that plaintiff Jeffrey Britland has adequately stated causes of action under 43 P.S. § 1421 and 42 U.S.C. § 1983, as well as wrongful termination against defendant ACS.
Defendant argues that in Count I plaintiff has failed to state a cause of action under Pennsylvania's Whistleblower Law. The Whistleblower Law makes it unlawful for any employer to "discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee's compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste." 43 P.S. § 1423.
Specifically, defendant argues that it is not a public employer, as required for plaintiff to be successful on Count I. An employer is defined as a "person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body." 43 P.S. § 1422. A public body is defined as any "body which is created by Commonwealth or political subdivision authority or which is funded in any amount by or through Commonwealth or political subdivision authority or a member or employee of that body." 43 P.S. § 1422.
In Count I of the complaint, plaintiff alleges that ACS is an agent of defendant County of Northampton which receives funds from defendant County. Accepting as true the facts alleged in Count I of the Complaint, it is clear that plaintiff has sufficiently alleged that defendant ACS is an employer under Pennsylvania's Whistleblower Law.
Defendant also argues that Count I of the complaint fails because it does not allege plaintiff's reporting of any wrongdoing. Specifically, defendant argues that the instances which plaintiff allegedly reported to the appropriate authority did not rise to the level of "wrongdoing" contemplated by the Whistleblower Law. In support of its argument, defendant relies on Golaschevsky v. Department of Environmental Resources, 683 A.2d 1299, 1303 (Pa.Commw. 1996).
In Golaschevsky, the Commonwealth Court granted summary judgment against a plaintiff who reported the misuse of computer software by his employer after finding that the Pennsylvania Department of Environmental Protection is not charged with enforcing federal copyright laws. For that reason, the Commonwealth Court found that plaintiff's report of copyright infringement did not amount to a report of "wrongdoing" as required by the Whistleblower Law. Id. at 1303.
While the Goloschevsky decision is factually similar to the case at hand, it is procedurally inapposite to the pending motion. In that case, the Commonwealth Court was confronted with a motion for summary judgment where both parties had submitted evidence in support of their cases. While considering the instant motion, however, this court is limited to the four corners of the Complaint. We find that plaintiff has sufficiently alleged a report of wrongdoing in support of Count I. We find that based solely on the pleadings the details of plaintiff's report rise to the level of wrongdoing or waste as contemplated by the Whistleblower Law. Thus, we find that plaintiff Jeffrey Britland has sufficiently stated a claim against defendant ACS for violating Pennsylvania's Whistleblower Law.
In moving to dismiss Count II, defendant ACS argues that the complaint fails to state a cause of action under 42 U.S.C. § 1983 because ACS is not a state actor and did not deprive plaintiff Jeffrey Britland of a federally protected right. To state a cause of action under § 1983, plaintiff must demonstrate that "(1) the defendants acted under color of [state] law; and (2) their actions deprived [the plaintiff] of rights secured by the Constitution or federal statutes." Anderson v. Davila, 125 F.3d 148, 159 (3d Cir. 1997).
Accepting as true the facts alleged in the Complaint, it is clear that plaintiff has adequately stated a cause of action under 42 U.S.C. § 1983 against defendant ACS. Plaintiff alleges that defendant ACS is an agent of the County of Northampton and that it violated his First Amendment rights.
As argued by defendant in its own motion, determining whether a private entity has taken state action requires an inquiry into whether "there is a sufficiently close nexus between the State and the challenged action of [defendant] so that the action of the latter may be fairly treated as that of the State itself."Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 2786, 73 L.Ed.2d 534, 546 (1982). Because we must accept plaintiff's allegation that defendant ACS was an agent of the County of Northampton wrapped in the "mantle" of the county and "performing a governmental service for the executive, legislative, and judicial branches of government", we must find that plaintiff has sufficiently plead the nexus supporting state action.
Moreover, plaintiff clearly alleges that defendant ACS violated his First Amendment rights when it terminated him for reporting the unauthorized use of computer equipment. Defendant's argument that it is a private workplace where plaintiff is not entitled to exercise his free speech may be a defense to plaintiff's allegations, but we must accept the facts alleged by plaintiff, including his allegation that defendant is a state actor who deprived him of federally-protected rights, as true. Thus, we find that plaintiff has sufficiently plead a cause of action against defendant in Count II.
Finally, defendant argues that the complaint fails to state a claim for wrongful termination because plaintiff was an at-will employee to whom the public policy exception does not apply. Plaintiff however alleges that his actions in whistleblowing are protected by the public policy exception.
The public policy exception to the at-will employment doctrine is a narrow one. It applies "where (1) an employer requires an employee to commit a crime, (2) an employer prevents an employer from performing a statutory duty, or (3) a statute prohibits discharge." Denton v. Silver Stream Nursing Rehabilitation Center, 739 A.2d 571, 577 (Pa.Super. 1999). More specifically, the public policy exception applies where the Whistleblower Law is applicable. Id. Thus, because plaintiff has alleged a violation of the Whistleblower Law, he can validly allege wrongful termination under the public policy exception. Therefore, we find that plaintiff has sufficiently plead a cause on action in Count III.
Accepting as true all facts alleged by plaintiffs in the complaint, plaintiff Jeffrey Britland has adequately plead causes of action against defendant ACS, Inc. in Counts I, II and II. Therefore, defendant's motion to dismiss is denied.
IT IS FURTHER ORDERED that defendant ACS, Inc. shall file an answer to plaintiffs' complaint within ten days of the date of this Order.