TITTERTON v. JENKINTOWN BOROUGH

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

EDWARD TITTERTON and, : CIVIL ACTION

CHRISTOPHER KELLY, :

Plaintiffs, :

v. :

:

JENKINTOWN BOROUGH, :

JENKINTOWN POLICE DEPARTMENT :

POLICE COMMISSIONER CHIEF :

ALBERT DIVALENTINO, individually :

and POLICE LIUTENANT :

RICHARD TUCKER, individually, :

Defendants. : NO. 20-5869

MEMORANDUM

Kenney, J. July 7, 2021

Plaintiffs Edward Titterton and Christopher Kelly, police officers with the Jenkintown

Police Department, bring this action against the Borough of Jenkintown and two officers employed

by the Borough, Albert DiValentino, the Borough’s Police Chief, and Lieutenant Richard Tucker.

Plaintiffs’ amended complaint asserts First Amendment retaliation, due process, corresponding

Monell claims, a Pennsylvania Whistleblower Law claim, and a host of Pennsylvania tort claims.

Defendants move to dismiss the Amended Complaint in its entirety under Rule 12(b)(6), arguing

Plaintiffs fail to state any claims.

I. BACKGROUND1

Plaintiffs Edward Titterton (“Titterton”) and Christopher Kelly (“Kelly”) (collectively

“Plaintiffs”) are police officers with the Jenkintown Borough Police Department (“the

1 We “accept as true all allegations in plaintiff’s complaint as well as all reasonable inferences that can be drawn

from them, and construe[] them in a light most favorable to the non-movant.” Tatis v. Allied Interstate, LLC, 882

F.3d 422, 426 (3d Cir. 2018) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010)). We

draw the following facts from the Complaint. See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (“In

deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint,

matters of public record, [and] undisputedly authentic documents if the complaint’s claims are based upon these

documents.”).

Department”),2 the police force serving Defendant Jenkintown Borough (“the Borough”). Am.

Compl. ¶¶ 10–12. Titterton joined the Department in 2010. Id. ¶ 16. He left his position in 2014

but returned in January 2016. Id. ¶¶ 16–17. Kelly joined the Department in 2008. Id. ¶ 18. The

individual defendants are Albert DiValentino, the Department Police Commissioner

(“DiValentino”) and Richard Tucker, the Department Police Lieutenant (“Tucker”). Id. ¶¶ 13, 15.

In 2008, the Borough created a K-9 unit which Tucker ran until 2014, when he directed

Titterton to establish a Police Benevolent Association (“PBA”) as a non-profit tax-exempt

corporation to manage the K-9 unit’s funds. Id. ¶¶ 20–21. Titterton wrote the PBA’s bylaws and

included measures to ensure proper fiscal management of the K-9 unit. Id. ¶ 22. The bylaws

established a voting procedure for the PBA’s board to authorize expenditures. Id. The PBA board

was required to keep an accounting of the K-9 unit’s fund, which would be presented to all PBA

members annually or at the request of any PBA board member. Id. ¶ 23.

Titterton left the Department in 2014 for another job but returned in January 2016. Id. ¶¶

25–26. After rejoining the PBA upon his return, Titterton learned Tucker made an unauthorized

$1,900 K-9 vehicle insert purchase for his take-home police vehicle. Id. ¶¶ 38–39, 43–44. In March

2017, while serving as the elected PBA vice president, Titterton discovered the PBA’s non-profit

tax-exempt status had been revoked for its 2014 failure to file tax returns. Id. ¶ 28. At the next

PBA general meeting in “late 2017,” Titterton and the PBA’s president reported that the

organization had lost its tax-exempt status. Id. ¶¶ 30–31. Titterton urged the PBA board to retain

an accountant to regain the tax-exempt status and pay the delinquent taxes. Id. ¶ 31. The board

preferred to create another non-profit entity so the PBA could continue to receive K-9 funds

2 Though Plaintiffs’ Amended Complaint asserts claims against the Jenkintown Police Department, the response

withdraws those claims, conceding the Department is not a properly named party. Pl. Br. in Opp., ECF No. 16 at 15.

Thus, we will dismiss the Department with prejudice.

without interruption and simultaneously close-out the suspended non-profit. Id. Titterton refused

to support creating another non-profit entity without first satisfying the tax obligations. Id. ¶ 32.

Titterton also learned that K-9 funds were being commingled with other PBA funds and warned

the board of the unlawful commingling. Id. ¶ 33. After his warning, Titterton learned the

commingling of funds continued. Id. ¶ 34. At some point thereafter, Titterton informed the

Borough’s Administrative Business Office of the PBA’s non-profit status revocation and the

commingling of funds. Id. ¶ 35.

Kelly approached Titterton with his concerns over the PBA’s spending. Id. ¶ 36. Titterton

told Kelly of the PBA board’s hostility towards Titterton’s efforts to raise his concerns. Id. at ¶ 37.

The two also discussed the board’s failure to hold quarterly meetings or to show members the

yearly financials at the general meeting, and various unauthorized purchases. Id. ¶¶ 37–40.

In early 2018, Titterton reported that Tucker had implemented policies allowing him to

manipulate compensatory time to the Borough Administrator, Shelby Smith. Id. ¶ 45. After

Titterton’s reports of Tucker’s manipulations of the schedule, he began to experience what he

perceived as “retaliatory acts.” See id. ¶ 57. On April 11, 2018, Tucker called Titterton to his office

where they discussed his “negative attitude and insubordination,” his “bad attitude and poor work

performance,” and his improperly prepared reports. Id. ¶¶ 64, 68, 73–77. Titterton asked to bring

a fellow officer as a witness to the discussion where Tucker made sarcastic remarks about the

witness’ presence. Id. ¶¶ 66–67.

In early May 2018, Titterton learned of an Internal Affairs investigation against him

stemming from his assistance to another local law enforcement agency as it pursued a fugitive

suspect. Id. ¶¶ 79–80. The investigation concerned whether Titterton improperly engaged in a

pursuit. Id. ¶ 81. As the officer in charge of Titterton’s squad, Kelly was summoned to give a

statement. Id. ¶ 83. When Kelly defended Titterton, asserting Titterton had not pursued the

suspect’s vehicle, Tucker accused Kelly of lying to protect Titterton. Id. ¶¶ 84–87. Other officers

told Titterton that video showed him engaged in a pursuit, but Tucker refused to show him the

footage. Id. ¶¶ 88–89. At the end of May, Tucker and DiValentino told Titterton the investigation

had concluded and several disciplinary charges were entered against him. Id. ¶ 90. Both men

refused to tell Titterton the charges against him or allow him to see the evidence collected. Id. ¶

91. Titterton told Tucker and DiValentino that he believed the investigation violated the

Department’s internal investigation policies. Id. ¶ 92–93. In response, the Department changed its

internal investigation policy to allot more time for internal investigations without providing a

hearing on the policy change, which Titterton believed to be an unfair labor practice. Id. ¶¶ 94–95.

He filed a complaint with U.S. Federal Labor Relations Authority. Id. ¶ 96.

Titterton made another report in September 2018 that Tucker continued to manipulate the

department schedule by converting straight time into compensatory time in violation of the

Collective Bargaining Agreement between the Borough and the PBA. Id. ¶ 46. After the second

complaint, Titterton no longer received overtime hours, despite making requests for overtime, and

Kelly received fewer overtime hours than in previous years. Id. ¶¶ 100, 103, 132. In October,

Tucker removed Titterton without explanation from the Workplace Safety Committee and replaced

him with another officer. Id. ¶ 101. That December, the Department learned of Titterton’s

complaint to the U.S. Federal Labor Relations Authority when a copy arrived at the station. Id. ¶

96. The Fraternal Order of Police attorney informed the Department that Titterton was the officer

responsible for the complaint. Id. ¶ 98.

Titterton spoke with DiValentino in his office in December 2019 regarding “departmental

relationships and issues.” Id. ¶ 105. By January 2020, the Borough had tasked its assessor, Ronald

Smeal, with addressing the Department’s issues and Titterton spoke with Smeal regarding the

“issues within the department.” Id. ¶ 106. At the January 31, 2020 PBA general meeting, Titterton,

Kelly, and Officer Jaworski objected to the Board’s failure to follow its bylaws and listed several

complaints, including that the Collective Bargaining Unit met with the Borough to finalize the

CBA without receiving input from its member officers. Id. ¶¶ 107,11. Tucker grew angry and

demanded Officer Jaworski identify his problem with the newly approved CBA, to which Jaworski

responded that his problem was the Collective Bargaining Unit’s failure to follow the bylaws. Id.

¶¶ 113, 114. Another officer told those present that the Collective Bargaining Unit had not

provided updates to officers on negotiations in previous negotiations and that did not think there

was any failure to follow the bylaws. Id. ¶ 115. Titterton opined that the bylaws required officers

be consulted before the Collective Bargaining Unit met with the Borough. Id. ¶ 116.

On February 4, 2020, Tucker placed Titterton, Kelly, and Jaworski on “Squad D” effective

March 9, 2020. Id. ¶¶ 117, 120. The members of Squad D were denied access to adequate Personal

Protective Equipment (“PPE”) during the COVID-19 pandemic, received less overtime pay, were

not notified of meetings or contract negotiations, and were singled out both at the station and on

social media. Id. ¶¶ 118–125, 147, 152.

On May 16, 2020, DiValentino responded to a Facebook comment complimenting him for

his leadership, “thank you [ ], but when you have 10 professional, hard working [sic] and

community minded people it’s easy.” ECF No. 1-2, Ex. G (emphasis added). Plaintiffs believe

DiValentino’s Facebook post singles them out because, including Squad D, the Department has

thirteen police officers. Am. Compl. ¶ 156. Later in May, Titterton and Kelly saw a picture of a

slug captioned “spineless wonders” hanging on a filing cabinet in a supervisor’s office, which they

allege targeted them. Id. ¶ 130.

In June, a Department clerk told Titterton she had overheard Tucker telling other officers

that Titterton had formed a sexual relationship with the Borough Administrator, Shelby Smith, to

elicit information from her. Id. ¶ 157. The clerk told Titterton that Tucker told her that Tucker had

footage of Titterton and Borough Administrator Smith. Id. ¶ 158.

In July 2020, after other officers began to complain that Titterton’s patrol car was mud-

spattered, DiValentino “accused [Titterton] of getting dirt on the vehicle purposefully and

intentionally.” Id. ¶ 160–161. In October 2020, Titterton was admonished for over-sanitizing a

police vehicle, and after other officers complained of the extra cost to the Department of over-

sanitizing vehicles, DiValentino spoke with Titterton and Officer Jaworski. Id. ¶¶ 163, 174.

DiValentino told both officers that that if they had a problem with the Department, the problems

could be dealt with internally. Id. ¶¶ 179–180. DiValentino also expressed his concern that “[the

officers] do not have any friends in the department and that ‘no one wants to hurt you.’” Id.

Still employed by the Department but driven by what they characterize as a “continuous

practice of discrimination,” Plaintiffs filed a complaint against Defendants on November 19, 2020.

See ECF No. 1. The docket lay dormant until March when we sent a letter reminding Plaintiffs of

their obligation to serve Defendants. See ECF No. 4. The parties then filed, and we approved, a

stipulation permitting Plaintiffs to file an amended complaint and to extend Defendants’ time to

respond. See ECF No. 6.

On March 9, 2021, Plaintiffs filed a nine-count amended complaint consisting of two

hundred and ninety-six disorganized paragraphs. See ECF No. 7. Plaintiffs allege in Count I that

DiValentino, and Tucker violated their First Amendment rights under 42 U.S.C. § 1983 by

retaliating against them for reporting misuses of PBA funds and abuses in scheduling. In Count

III, Plaintiffs bring a due process claim for deprivation of a liberty interest in their reputation. In

Counts II and Count IV, Plaintiffs bring Monell claims against the Borough. In Count V, Plaintiffs

allege violations of the Pennsylvania Whistleblower Act. Count VI alleges a state law defamation

claim against DiValentino and Tucker. Count VII alleges a state law false light against DiValentino

and Tucker. Count VIII alleges an intentional infliction of emotional distress (IIED) claim against

DiValentino and Tucker. Finally, Count IX alleges civil aiding and abetting against all defendants.

Defendants move to dismiss the amended complaint in its entirety. See ECF No. 8.

Plaintiffs filed their response on May 26, 2021, and Defendants replied on June 9, 2021. See ECF

Nos. 16, 20.

II. STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint. “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.” Zuber v. Boscov’s, 871 F.3d 255, 258 (3d Cir.

2017) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010)) (internal quotation

marks omitted). A claim has facial plausibility when the plaintiff pleads factual content that allows

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).

Our Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:

(1) we “must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’ ” (2) we

“should identify allegations that, ‘because they are no more than conclusions, are not entitled to

the assumption of truth;’ ” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they plausibly give rise to an entitlement

for relief.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556

U.S. at 675).

We permit “a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

III. DISCUSSION

Defendants argue that the Amended Complaint fails to allege any plausible claims. We

first address Plaintiffs’ claims arising under federal law and then turn to Plaintiffs’ state law

claims.3

A. Plaintiffs’ claims under § 1983

In Count I, Titterton and Kelly assert a First Amendment retaliation claim under § 1983

against DiValentino and Tucker in their individual capacity, and in Count II, a § 1983 Monell

claim against the Borough. In Count III, Plaintiffs bring a “stigma-plus” due process claim against

DiValentino and Tucker in their individual capacity, and in Count IV, another Monell claim against

the Borough. To state a § 1983 claim, plaintiffs must allege defendants, acting under color of state

law, deprived them of a right secured by the Constitution or the laws of the United States. See

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).4 We address first Plaintiffs’ First Amendment

retaliation and due process claims before reaching the Monell claims.

1. First Amendment Retaliation against DiValentino and Tucker (Count I)

Plaintiffs allege DiValentino and Tucker “engaged in a continuous practice of

discrimination against [them] in violation of the continuing violations doctrine.” Am. Compl. ¶

186. However, the continuing violations doctrine does not apply in the context of First Amendment

retaliation claims. See O’Connor v. City of Newark, 440 F.3d 125, 127–28 (3d Cir.2006). In

asserting their First Amendment retaliation claim, Plaintiffs cannot aggregate individually

3 We have jurisdiction over Plaintiffs’ claims arising under federal law under 28 U.S.C. § 1331 and 28 U.S.C. §

1343, and over their supplemental state claims under 28 U.S.C. § 1367(a).

4 Plaintiffs plausibly allege Defendants are state actors. See Am. Compl. ¶¶ 12–15.

actionable allegations because “First Amendment retaliation claims are always individually

actionable, even when relatively minor.” Id; see also Suppan v. Dadonna, 203 F.3d 228, 234 (3d

Cir. 2000) (quoting Rutan v. Republican Party, 497 U.S. 62, 76 n.8 (1990)) (“[T]he First

Amendment…protects [public] employees…from even an act of retaliation as trivial as failing to

hold a birthday party…”). Thus, we note that the two-year statute of limitations for § 1983 claims

arising in Pennsylvania precludes consideration of Defendants’ conduct that occurred before

November 19, 2018.5 See Kach, 589 F.3d at 634.

As public employees alleging First Amendment retaliation, Titterton and Kelly must

demonstrate “(1) [they] engaged in activity that is protected by the First Amendment, and (2) the

protected activity was a substantial factor in retaliatory action by the employer.” Gorum v.

Sessoms, 561 F.3d 179, 184 (3d Cir.2009). If they satisfy the first two elements, the burden shifts

to Defendants to prove that “the same action would have been taken even if the [First Amendment

activity, including speech] had not occurred.” Falco v. Zimmer, 767 F. App’x. 288, 299 (3d Cir.

2019) (citations omitted).

a. Protected Activity

“The [Supreme] Court has made clear that public employees do not surrender all their First

Amendment rights by reason of their employment. Rather, the First Amendment protects a public

employee’s right, in certain circumstances, to speak as a citizen addressing matters of public

concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). When public employees speak in the

course of their employment, they “are not speaking as citizens for First Amendment purposes, and

5 Thus, for example, Titterton’s second report that Tucker continued to manipulate the department schedule in

September 2018 that allegedly resulted in Titterton no longer receiving overtime hours in October 2018 is not

actionable. Am. Compl. ¶¶ 46, 100. Neither is Titterton’s October 2018 removal from the Workplace Safety

Committee. Id. ¶ 101.

the Constitution does not insulate their communications from employer discipline.” Id. at 421. But,

where public employees speak as citizens on matters of public concern, we ask “whether the

relevant government entity had an adequate justification for treating the employee differently from

any other member of the general public.” Id. at 418

Thus, a public employee’s speech is only protected when “(1) in making it, the employee

spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government

employer did not have ‘an adequate justification for treating the employee differently from any

other member of the general public’ as a result of the statement he made.” Flora v. County of

Luzerne, 776 F.3d 169, 175 (3d Cir. 2015) (quoting Garcetti, 547 U.S. at 418).

Under Garcetti, the threshold determination of whether the speech was incident to a public

employee’s official duties—and thus unprotected by the First Amendment—is a “practical one.”

Garcetti, 547 U.S. at 424–425. The “critical question” is “whether the speech at issue is itself

ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

Lane v. Franks, 573 U.S. 228, 240 (2014).

No “comprehensive framework” exists to guide us in performing “Garcetti’s practical

inquiry,” but “contours” for the inquiry are available. Id. at 177 (quotation omitted). Factors we

may consider include: “(1) whether the employee’s speech relates to special knowledge or

experience acquired through his job; (2) whether the employee raises complaints or concerns about

issues relating to his job duties ‘up the chain of command’ at his workplace; (3) whether the speech

fell within the employee’s designated responsibilities, and (4) whether the employee’s speech is

in furtherance of his designated duties, even if the speech at issue is not part of them.” Kimmett v.

Corbett, 554 F. App’x 106, 111 (3d Cir. 2014) (quotations omitted).

Count I does not allege facts identifying the speech forming the basis of Plaintiffs’ claim

and instead contains only legal conclusions. See Am. Compl. ¶¶ 188–203. We understand Plaintiffs

as alleging that Defendants’ “continuous practice of discrimination” began in “late 2017” in

retaliation for Titterton’s report to the PBA general meeting that the organization had lost its tax-

exempt status and for his subsequent report to the Borough. Am. Compl. ¶¶ 30–35, 186. However,

the continuing violations doctrine does not apply in the context of First Amendment retaliation

claims and Plaintiffs allege only that this speech “was met with hostility from Defendants and

other PBA members” without pleading any other facts. See O’Connor, 440 F.3d at 127; Am.

Compl. ¶ 40. Given that Titterton “was met with hostility” for a report he made in “late 2017,” but

does not allege when, much less how, we infer that he was met with hostility immediately or soon

after this speech, which precludes its consideration.

After careful review of the Amended Complaint, we identify the following speech that, as

alleged, resulted in discrete acts by Defendants and could serve as the conceivable predicates for

First Amendment retaliation, excluding those alleged to have caused time-barred retaliatory acts:

(1) a December 2019 conversation with DiValentino about issues in the Department; (2) Plaintiffs’

January 2020 discussions with Assessor Ronald Smeal who was hired by the Borough to

investigate the officers’ concerns; and (3) Plaintiffs’ comments during the January 2020 PBA

meeting requesting that contract negotiations be transparently communicated with the Department.

See Pl. Br. in Opp., ECF No. 16 at 24–25.

We now ask whether these instances of speech were “ordinarily within the scope of [their]

duties.” Lane, 573 U.S. at 240. We find that Plaintiffs have not alleged facts showing that any of

the predicate speech occurred outside the scope of their duties as police officers. Nor can we

reasonably infer that their speech was outside the scope of their duties, particularly given the mode

and manner of their speech. See Falco v. Zimmer, 767 Fed. App’x 288, 306 (3d Cir. 2019). Each

actionable instance of speech was made in an internal forum. In Gorum v. Sessoms, 561 F.3d 179,

187 (3d Cir. 2009), our Court of Appeals explained that a public employee’s internal complaint is

not protected by the First Amendment where “[t]here is no evidence in the record that [the

employee] even made a public statement[, and] [t]here is no proof that he thought any public policy

issues were at stake.” Plaintiffs have not alleged any facts indicating they wanted the public to

learn of any purported misconduct nor have Plaintiffs alleged facts permitting us to infer they

believed the actionable speech implicated issues of public policy.

As to the December 2019 conversation with DiValentino, Titterton’s conversation raised

complaints or concerns up the chain of command about the Department. See Kimmett, 554 F.

App’x at 111. This conversation—which occurred in DiValentino’s office—aired concerns about

internal department matters that are more akin to mundane employment grievances than matters

of public concern. See Falco, 767 F. App’x at 302–303 (“If, for example, a discrete unit of speech

addresses only the employee’s own problems and, even if those problems ‘brush ever so gently

against a matter of public concern’ by virtue of that employee’s public employment, then that

speech is merely a ‘personal grievance.’) (citation omitted). Likewise, Titterton’s January 2020

conversation with Assessor Smeal aired the same concerns about “departmental relationships and

issues” that he discussed with DiValentino in a forum provided to specifically address his and

other officers’ concerns to improve workplace conditions. See Am. Compl. ¶¶ 105–106. Plaintiffs’

comments made in the January 2020 PBA meeting were made as employees on the clock regarding

the PBA’s compliance with its own bylaws in employment contract negotiations. Titterton and

Kelly’s speech cannot be disentangled from their roles as Department police officers and they

pleaded no facts to show they spoke as citizens. At bottom, we rest on the premise that “while the

First Amendment invests public employees with certain rights, it does not empower them to

“constitutionalize the employee grievance.” Garcetti, 547 U.S. 410, 420 (quoting Connick v.

Myers, 461 U.S. 138, 154 (1983)).

As Titterton and Kelly spoke incident to their official duties as public employees, we need

not reach whether the statements involved matters of public concern or whether Defendants were

adequately justified in their treatment of Plaintiffs. See Kimmett v. Corbett, 554 F. App’x 106, 111

n.9 (3d Cir. 2014). Accordingly, we will dismiss Plaintiffs’ Count I without prejudice. As we

cannot say that amendment is futile, we will give leave to amend. See Phillips, 515 F.3d at 245.

2. “Stigma-plus” Claim against DiValentino and Tucker (Count III)

In Count III, Titterton and Kelly assert a stigma-plus claim against DiValentino and

Tucker, alleging they suffered a reputational injury that constituted a constitutional deprivation

when Defendants “made numerous false statements” about them.

Plaintiffs asserting a stigma-plus claim, a due process claim for deprivation of a liberty

interest in reputation, must allege (1) a stigma to their reputation plus (2) a deprivation of an

additional right or interest. Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). To

satisfy the stigma prong of the test, plaintiffs must allege the stigmatizing statements “(1) were

made publicly, and (2) were false.” Id; see also Brown v. Montgomery County., 470 Fed.App’x.

87, 91 (3d Cir.2012) (explaining the “stigma” prong requires the “1) publication of 2) a

substantially and materially false statement that (3) infringed upon the reputation, honor, or

integrity of the employee”). In a public employment context, plaintiffs must allege the employer

“create[d] and disseminate[d] a false and defamatory impression about the employee in connection

with [their] termination.” Hill v. Borough of Kutztown, 455 F.3d at 236 (quotation omitted).

We understand the statements Plaintiffs allege caused stigma to their reputations were

DiValentino’s Facebook comment about the Department’s ten hardworking officers, the slug

photo captioned “spineless wonders” hung on a filing cabinet, and Tucker’s comment to other

officers that Titterton had a sexual relationship with the Borough Administrator, Shelby Smith.

Am. Compl. ¶¶ 130, 156, 157.

Plaintiffs plead no facts supporting their conclusion that Defendants made the first two

stigmatizing statements about them beyond vague speculation that they “had reason to believe”

the statements targeted them. See Paterno v. Pennsylvania State Univ., 149 F. Supp. 3d 530, 541

(E.D. Pa. 2016), aff’d, 688 F. App’x 128 (3d Cir. 2017) (rejecting plaintiffs’ proffered statements

where plaintiffs were not specifically named). Plaintiffs argue DiValentino’s Facebook post

singles them out because DiValentino would have mentioned thirteen hardworking officers had he

intended to include Titterton, Kelly, and Jaworski, the members of Squad D. They allege no facts

permitting the inference that they are the “spineless wonders” of the slug photo posted in a

supervisor’s workspace. These proposed interpretations are both speculative.

Even if the statements could reasonably be said to target Plaintiffs, they are “not

sufficiently stigmatizing to implicate a liberty interest.” Cf. Brown v. Montgomery County., 470 F.

App’x 87, 91 (3d Cir. 2012) (affirming district court’s finding that public statements describing

employees’ malfeasance at a work function were insufficiently stigmatizing). A statement is

sufficiently stigmatizing when it impairs the employee’s reputation, honor, or integrity. See id.

Employer statements alleging “merely improper or inadequate performance, incompetence,

neglect of duty or malfeasance” do not implicate a liberty interest of constitutional significance

and thus do not satisfy the stigma prong. Id. (quoting Mercer v. Cedar Rapids, 308 F.3d 840, 845–

46 (8th Cir. 2002)). Here, the worst inferences we could plausibly draw from the slug poster and

the Facebook comment is that Defendants’ statements implied that Plaintiffs are lazy and do not

measure up to the higher standards set by their fellow police officers. Even drawing the worst-

possible inferences, neither statement is sufficiently stigmatizing.

As for the final statement, Tucker’s comment regarding a sexual relationship between

Titterton and DiValentino, Plaintiffs have not alleged the statement was made publicly. See Yu v.

United States Dep’t of Veterans Affairs, 528 F. App’x. 181, 185 (3d Cir.2013) (explaining that

publication requires dissemination to the general public); see also Khan v. City of Paterson, 2018

WL 2059550, at *8 (D.N.J. May 2, 2018) (finding plaintiff failed to plausibly allege comments

regarding a purported sexual relationship between plaintiff and another person were made

publicly).

Even if Plaintiffs had pleaded facts alleging Defendants made false and stigmatizing

statements satisfying the stigma prong, their claim nonetheless fails because they cannot satisfy

the plus prong. Defendants argue Titterton and Kelly’s claim fails because they have not been

terminated or suffered the deprivation of any additional right. Defs. Br., ECF No. 8-1 at 21.

Plaintiffs respond that as union employees, they are not required to allege a termination, and have

stated a claim for relief by alleging “alteration or extinguishment of a right or status previously

recognized by state law.” Pls. Br., ECF No. 16 at 34 (citing Paul v. Davis, 424 U.S. 693, 711

(1976)). Only “[i]n cases not involving union employees, [has] the Third Circuit has found that a

loss of a job may be necessary.” Id. They argue the denial of time off to get a COVID test which

forced Titterton to use two shifts of sick time was an “an alteration of a right without process” in

violation of the CBA. Id. at 34–35.6

6 To the extent Plaintiffs also identify Titterton’s internal affairs investigation where he was denied access to the

investigation report as a deprivation, we note that alleged incident occurred in May 2018, outside the applicable

statute of limitations. See Kach v. Hose, 589 F.3d at 634 (identifying the statute of limitations for a § 1983 claim

arising in Pennsylvania as two years).

We agree with Plaintiffs that a “constitutionally protected property interest—created and

defined by state statutory law and the terms of the CBA” may serve as the “plus” in lieu of a

termination. See id. However, Plaintiffs’ proffered property interest—having to use two shifts

worth of sick time, which was later restored, to get a COVID test and await its results—is

insufficient to plausibly allege the “plus” prong of the “stigma-plus” claim. Cf., Smith v. Borough

of Dunmore, 633 F.3d 176, 180 (3d Cir. 2011) (finding plaintiff had a property interest in not being

suspended without cause for eight days); Dee v. Borough of Dunmore, 549 F.3d 225 (3d Cir.2008)

(same). Plaintiffs’ garden-variety complaints bear “little resemblance to other rights and property

interests that have been deemed fundamental under the Constitution.” Nicholas v. Pennsylvania

State Univ., 227 F.3d 133, 143 (3d Cir. 2000). Accordingly, we will dismiss Plaintiffs’ stigma-

plus claim without prejudice.

3. Monell claims (Counts II and IV)

In Counts II and Count IV, Plaintiffs bring Monell claims against the Borough, alleging the

Borough is liable for Tucker and DiValentino’s constitutional violations. Under § 1983, a

municipality is liable where a plaintiff demonstrates the municipality, through a policy, custom, or

practice, caused a constitutional violation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691

(1978). As we have found Plaintiffs failed to plausibly allege the underlying constitutional

violations, Plaintiffs cannot sustain their Monell claims. See Wilson v. City of Philadelphia, 177 F.

Supp. 3d 885, 908 (E.D. Pa. 2016). We will dismiss Counts II and IV without prejudice.

In the Amended Complaint, Plaintiffs allege “DiValentino and Tucker are policymakers

for the purpose of a claim against the township.” Am. Compl. ¶¶ 205, 223. We note that a borough

police chief does not per se have final policymaking authority, which is “a key element of a Monell

claim.” See Santiago v. Warminster Twp., 629 F.3d 121, 135 n. 11 (3d Cir. 2010).

State law governs the determination of whether a police chief is a policymaker. See id (“as

a matter of Pennsylvania state law, a township Police Chief is not a final policymaker”). Because

Jenkintown is a borough, the Borough Code applies to determine whether its police chief is a

policymaker. The Borough Code gives the mayor “full charge and control of the chief of police

and police force.” 8 Pa. Stat. Ann. § 1123.1(a) (West). Plaintiffs allege that the Borough’s mayor

was copied on an email reprimanding Plaintiff for an error on his timesheet but not that he or she

played any role in the alleged constitutional violations. See Am. Compl. ¶ 104. Thus, even if

Plaintiffs had plausibly alleged the underlying constitutional violations, we would dismiss their

Monell claims because they have not pleaded facts to support a key element of their Monell claim.

B. Plaintiffs’ State Law Claims

“A district court can decline to exercise supplemental jurisdiction in several circumstances,

including a situation where ‘the district court has dismissed all claims over which it has original

jurisdiction,’ as in this case.” Trinity Indus., Inc. v. Chi. Bridge & Iron Co., 735 F.3d 131, 135 (3d

Cir.2013) (quoting 28 U.S.C. § 1367(c)(3)). Having dismissed Plaintiffs’ federal claims, we could

decline to exercise supplemental jurisdiction over the state law claims but will assert jurisdiction

to address the plausibility of the pleading before us.

1. Retaliation and Hostile Work Environment under the Pennsylvania Whistleblower

Law (Count V)

In Count V, Plaintiffs assert a claim under the Pennsylvania Whistleblower Law (PWL),

43 Pa. Stat. Ann. §§ 1421–1428 (West). Titterton and Kelly allege they were retaliated against for

reporting the PBA’s commingling of funds and the loss of its non-profit status, Tucker’s misuses

of compensatory time, and what they deemed a hostile work environment.

To establish a prima facie case under the Pennsylvania Whistleblower Law, Plaintiffs must

show they (1) made a good faith report of wrongdoing or waste to the appropriate authorities and

(2) “come forward with some evidence of a connection between the report of wrongdoing and the

alleged retaliatory acts.” Id. § 1424(b). The PWL defines “wrongdoing” as “[a] violation which is

not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political

subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest

of the public or the employer.” Id (emphasis added). “Waste” is defined as “[a]n employer’s

conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or

resources belonging to or derived from Commonwealth or political subdivision sources.” Id

(emphasis added). A “good faith report” is “[a] report of conduct defined in this act as wrongdoing

or waste which is made without malice or consideration of personal benefit and which the person

making the report has reasonable cause to believe is true.” Id. (emphasis added).

The PWL contains a mandatory time limit. “[A] person who alleges a violation of this act

may bring a civil action ... within 180 days after the occurrence of the alleged violation.” 43 Pa.

Stat. Ann. § 1424(a). Despite the use of the permissive “may,” the Whistleblower Law’s “180-day

time limit is mandatory, and courts have no discretion to extend it.” O’Rourke v. Pa. Dep’t of

Corr., 730 A.2d 1039, 1042 (Pa.Commw.Ct.1999). Thus, only retaliation that occurred within 180

days of November 19, 2020 is actionable. The retaliatory acts Plaintiffs allege they experienced

include “ceasing communication with Plaintiffs’ squad, taking away overtime hours, denying

access to PPE during the current pandemic, and numerous other acts known and unknown to

Plaintiffs.” Am. Compl. ¶ 233; see also Pl. Br., ECF No. 16 at 37–38 (identifying additional time-

barred retaliatory acts). After sifting through the Amended Complaint to determine when these

retaliatory actions occurred, we find Plaintiffs did not allege an actionable retaliatory action, as

they each occurred before May 23, 2020, which is 180 days before Plaintiffs’ filed their complaint.

We will dismiss Plaintiffs’ PWL claim without prejudice to permit Plaintiffs to amend and

plainly state the legal basis for their whistleblower claim, including the specific retaliatory act(s)

taken against them in connection with their reporting of an actionable wrongdoing.

2. Defamation and False Light (Counts VI and VII)

The Amended Complaint brings defamation and false light invasion of privacy claims

against DiValentino and Tucker. The actionable statements plaintiffs identify for both claims are

DiValentino’s Facebook comment about the Department’s ten hardworking officers, the slug

photo captioned “spineless wonders” hung on a filing cabinet, and the overheard comment Tucker

made to other officers that Titterton had a sexual relationship with the Borough Administrator.

Am. Compl.¶¶ 244–246; 259–261. As both claims are premised on the same set of underlying

facts, we will consider them together. See Graboff v. Colleran Firm, 744 F.3d 128, 137 (3d Cir.

2014).

a. Defamation

To state a Pennsylvania defamation claim, plaintiffs must show: (1) The defamatory

character of the communication; (2) its publication by the defendant; (3) its application to the

plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding

by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the

plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. Joseph v.

Scranton Times, L.P., 129 A.3d 404, 424 (Pa. 2015).

In defamation actions, we must make a threshold determination of whether challenged

statements are capable of defamatory meanings. See Byars v. Sch. Dist. of Phila., 942 F.Supp.2d

552, 564 (E.D.Pa.2013) (“Whether a statement is capable of a defamatory meaning is a question

of law for the court.”). “A communication is defamatory if it tends so to harm the reputation of

another as to lower him in the estimation of the community or to deter third persons from

associating or dealing with him.” Thomas Merton Ctr. v. Rockwell Int’l Corp., 442 A.2d 213, 215

(Pa. 1981). Crucially, “[t]he statement must do more than merely embarrass or annoy [them]; it

must provoke ‘the kind of harm which has grievously fractured [their] standing in the community

of respectable society.’” Graboff, 744 F.3d at 136 (quoting Tucker v. Phila. Daily News, 848 A.2d

113, 124 (Pa. 2004)). Courts distinguish between actionable defamation and mere obscenities,

insults, and other verbal abuse. See, e.g., Kryeski v. Schott Glass Techn., Inc., 626 A.2d 595, 601

(1993) (“[S]tatements which are merely annoying or embarrassing or no more than rhetorical

hyperbole or a vigorous epithet are not defamatory.”).

Neither the slug photo nor the Facebook post can be reasonably said to rise above a “merely

annoying statement.” Neither are capable of a defamatory construction and it strains credulity to

infer that either statement is capable of “caus[ing] special harm to Plaintiffs’ character and

credibility as police officers.” Am. Compl. ¶ 247.

As to the final alleged defamatory statement, Plaintiffs alleged that a Department clerk told

Titterton that she overheard Tucker telling other officers of his sexual relationship with the

Borough Administrator. Id. ¶ 157. This is “far too speculative a reed to hang a defamation charge

upon… [We] will not turn gossip into a charge of defamation.” White v. Baldwin Sch., 2012 WL

4963688, at *4 (E.D. Pa. Oct. 17, 2012). As Plaintiffs fail to state a claim for defamation, we will

dismiss Count VI without prejudice.

b. False Light

Plaintiffs claim Tucker and DiValentino invaded their privacy by placing them in a false

light based on the Facebook post, the slug photo, and the overheard comment about Titterton’s

sexual relationship with the Borough Administrator. Am. Compl. ¶¶ 259–261. To state a claim for

false light under Pennsylvania law, plaintiffs must allege facts showing that the published material

“is not true, is highly offensive to a reasonable person, and is publicized with knowledge or in

reckless disregard of its falsity.” Graboff, 744 F.3d at 136. The tort requires “such a major

misrepresentation of [the plaintiff’s] character, history, activities or beliefs” that a reasonable

person in the plaintiff’s position would take serious offense at the false impression created.

Mzamane v. Winfrey, 693 F. Supp. 2d 442, 511 (E.D. Pa. 2010) (quotation omitted). “Publicity”

means “that the matter is made public, by communicating it to the public at large, or to so many

persons that the matter must be regarded as substantially certain to become one of public

knowledge.” Doe v. Wyo. Valley Health Care Sys., Inc., 987 A.2d 758, 765 (Pa. Super. 2009)

(quoting Restatement (Second) of Torts § 652D cmt. A (1977)).

Plaintiffs allege the statements were “highly offensive to a reasonable person, [and] a

‘major misrepresentation’ of [their] reputation, character, competence, personal history…” Am.

Compl. ¶ 264. Again, “whether the communication is capable of bearing a particular meaning

which is highly offensive to a reasonable person is a question for the Court.” Mallory v. S & S

Publishers, 168 F. Supp. 3d 760, 776 (E.D. Pa. 2016) (quotation omitted). Neither the Facebook

post nor the slug photo can be construed as “highly offensive to a reasonable person” and neither

statement even maligns Plaintiffs individually. Of the three statements, only the Facebook post

was “made public” to satisfy the tort’s publicity requirement. Moreover, the false light claim fails

because Titterton and Kelly failed to plead facts supporting the inference that Defendants acted

with actual malice. See McCafferty v. Newsweek Media Grp., Ltd., 955 F.3d 352, 360 (3d Cir.

2020) (citing 3 Restatement (Second) of Torts § 652E (1997)). As Plaintiffs have not satisfied the

elements of a false light claim, we will dismiss Count VII without prejudice.

3. Intentional Infliction of Emotional Distress (Count VIII)

To state an intentional infliction of emotional distress (IIED) claim under Pennsylvania

law, Titterton and Kelly must show “extreme and outrageous conduct” that intentionally caused

them “severe emotional distress.” Hoy v. Angelone, 720 A.2d 745, 753 (1998). Conduct meets the

requisite level when it is “so outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

society.” Id. at 754.

None of the conduct alleged—assignment to “Squad D,” denial of overtime opportunities,

exclusion from internal communications, and being denied access to PPE—rises to the requisite

level of atrocity. Cf Smith v. RB Distribution, Inc., 2021 WL 242473, at *6 (E.D. Pa. Jan. 25, 2021)

(finding “crude and anatomically specific” comments, persistent physical groping and

propositions, and separate acts of retaliation sufficiently outrageous). Accordingly, we will dismiss

Plaintiffs’ IIED claim without prejudice.

4. Civil Aiding and Abetting (Count IX)

Aiding and abetting claims require an underlying tort cause of action. Allegheny Gen.

Hosp. v. Philip Morris, Inc., 228 F.3d 429, 446 (3d Cir. 2000). As Plaintiffs have not sufficiently

pleaded any tortious conduct, we will dismiss Count IX without prejudice.

IV. CONCLUSION

For the foregoing reasons, we will dismiss Plaintiffs’ Amended Complaint without

prejudice. An appropriate order follows.

/s/ Chad F. Kenney

____________________________

CHAD F. KENNEY, JUDGE