VU v. KOTT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

TINA VU, :

Plaintiff, :

:

v. : Civil No. 5:23-cv-03336-JMG

:

MICHELLE L. KOTT, et al., :

Defendants. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. May 31, 2024

I. OVERVIEW

Plaintiff, Tina Vu, a former police officer for the City of Bethlehem, brings numerous claims

against the City of Bethlehem and the following individuals of the Bethlehem Police Department:

Chief Michelle Kott, Deputy Chief Scott Meixell, Captain Benjamin Hackett, Sergeant Joshua

Schnalzer, Sergeant Kevin Conrad, and Human Resources Director Michelle Cichocki stemming

from alleged discriminatory actions taken during Plaintiff’s employment. Defendants move to dismiss

a number of claims. For the reasons that follow, Defendants’ motion is granted in part and denied in

part.

II. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiff filed the original complaint on August 28, 2023. ECF No. 1. Plaintiff later amended

the complaint on February 20, 2024, following Defendants’ first motion to dismiss. ECF Nos. 15, 29.

Defendants filed a subsequent motion to dismiss, which is fully briefed before the Court.

For the purposes of the motion to dismiss, the Court accepts all factual allegations of the

Amended Complaint as true.1

III. LEGAL STANDARD

Defendants move for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). “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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting, Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing, Twombly, 550 U.S. at 556). “Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing, Twombly, 550

U.S. at 555). A court is “not compelled to accept unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Wheeler v. Wheeler, 639 Fed. Appx.

147, 149 (3d. Cir. 2016) (quoting, Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)).

IV. ANALYSIS

A. Count I: Fourteenth Amendment Equal Protection

“To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, plaintiffs

must prove the existence of purposeful discrimination.” Andrews v. City of Philadelphia, 895 F.2d

1469, 1478 (3d Cir. 1990) (internal citations omitted). To do so, they must show that they “received

different treatment from that received by other individuals similarly situated.’” Id. (internal citations

and quotations omitted). Persons are similarly situated under the Equal Protection Clause when they

are alike “in all relevant aspects.” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203

1 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting, Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)).

(3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Under the protected class theory,

“the plaintiff must show that the defendant's actions were a result of the plaintiff's membership in a

suspect class.” Henry v. Buskirk, No. CIV.A. 08-1348, 2011 WL 4471217, at *7 (E.D. Pa. Sept. 27,

2011).2

Here, Plaintiff fails to allege Defendants treated any similarly situated officers differently. For

starters, non-probationary, permanent police officers are not similarly situated compared to

probationary officers as they are “held to differing standards [and] other mitigating factors []

distinguish the manner in which an employer treated them.” Dudhi v. Temple Health Oaks Lung Ctr.,

2020 U.S. Dist. LEXIS 35112, at *15 (E.D. Pa. Mar. 2, 2020). Further, there are no allegations in the

Amended Complaint that any other probationary police officers violated the same policies, were

found to have been dishonest, or faced similar situations. As no similarly situated employees have

been established, the claim is not adequately pled.

B. Count II: Fourteenth Amendment Equal Protection Hostile Work Environment

In order to state a hostile work environment claim, plaintiff must adequately allege “(1) that

he or she suffered intentional discrimination because of race [or gender]; (2) the discrimination was

pervasive and regular; (3) the discrimination detrimentally affected [him or her]; (4) the

discrimination would detrimentally affect a reasonable person of the same race [or gender] in that

position; and (5) the existence of respondeat superior liability.” Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074, 1081 (3d Cir. 1996).

2 If the action was not based upon a suspect classification, a plaintiff can proceed under a “class of

one” theory by claiming she was singled out irrationally. Engquist v. Dep’t of Agric., 553 U.S. 591,

601 (2008). However, this theory does not apply in the context of public employment. Id. at 605. It

is therefore inapplicable to this case and dismissed to the extent it is relied upon in the Amended

Complaint.

“To determine whether an environment is hostile, a court must consider the totality of the

circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance.’” Mandel v. M & Q Packaging Corp., 706 F.3d 157,

168 (3d Cir. 2013) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, (1993)). “‘Simple teasing,

offhand comments, and isolated incidents (unless extremely serious) will not amount to’ a hostile

work environment.” Benny v. Pennsylvania, Dep't of Corr., State Corr. Inst. at Somerset, 211 F. App'x

96, 97 (3d Cir. 2006) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal

citations and quotations omitted)).

The Amended Complaint contains only allegations of isolated comments and vague references

to bias and discriminatory treatment. While offensive, such sporadic and vague references alone do

not rise to the level of regular and pervasive that is necessary to successfully allege a hostile work

environment. Faragher, 524 U.S. at 788 (Title VII is not a “general civility code,” and instead is

intended to target conduct so “extreme to amount to a change in the terms and conditions of

employment.”) (internal citations and quotations omitted).

C. Count III: Discrimination and Hostile Work Environment under Title VII

In order to state a Title VII Discrimination claim, a plaintiff must plead “(1) [s]he is a member

of a protected class; (2) [s]he was qualified for the position [s]he held; (3) [s]he suffered an adverse

employment action; and (4) the adverse employment action occurred under circumstances that give

rise to an inference of discrimination.” Darby v. Temple Univ., 216 F. Supp. 3d 535, 541 (E.D. Pa.

2016) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Plaintiff “need not

convince the court of any of these elements at the motion to dismiss stage but must submit more than

‘the naked assertion that [she] was discharged because of [her] membership in a protected class.” Id.

(quoting Santos v. Iron Mountain Film & Sound, 593 F. App’x 117, 119 (3d Cir. 2014)).

Here, the first three elements are undisputedly established. Defendants challenge whether

Plaintiff has established her termination occurred under circumstances that give rise to an inference

of discrimination. An inference of discrimination may be plead “‘in a number of ways,’ including

pointing to ‘comparator evidence, evidence of similar discrimination against other employees, or

direct evidence of discrimination from statements or actions by the plaintiff’s supervisor’s suggesting

discriminatory animus.’” Emerson v. Stern & Eisenberg, P.C., No. CV 21-3096, 2022 WL 10208548

at *4 (E.D. Pa. Oct. 17, 2022) (quoting Golod v. Bank of Am. Corp., 403 F. App’x 699, 702 n.2 (3d

Cir. 2010)).

The Complaint fails to state a claim for discrimination based on race or national origin, as

Plaintiff points to only one comment made directly to her, along with generic allegations that the City

of Bethlehem did not employ other police officers of Plaintiff’s race or national origin and the fact

that there was a statistical increase in anti-Asian sentiment during the Covid-19 pandemic. These

broad statements and this one specific instance do not rise to the level of creating an inference of

discrimination that Plaintiff was terminated based on her race or national origin. The Amended

Complaint therefore fails to state a claim based on race or national origin.3

D. Count IV: Section 1981 Disparate Treatment

42 U.S.C. § 1981 does not provide a cause of action against state actors, and such claims must

instead be brought through the cause of action provided by § 1983. McGovern v. City of Philadelphia,

554 F.3d 114, 120-21 (3d Cir. 2009). While Plaintiff alleges she incorporated § 1983 through

reference in the Counts I, II, and III, as discussed supra, she failed to state a claim regarding race

discrimination. As § 1981 does not apply to national origin, religion, sex, or gender, all such claims

are dismissed with prejudice.

3 To the extent this claim alleges hostile work environment, those claims are dismissed for the

reasons stated supra.

E. Count V: Fourteenth Amendment Due Process

In order to establish a claim under § 1983 for procedural due process, plaintiff must allege

“(1) [s]he was deprived of an individual interest that is encompassed within the Fourteenth

Amendment's protection of ‘life, liberty, or property,’ and (2) the procedures available to [her] did

not provide ‘due process of law.’” Hill v. Borough of Kutztown, 455 F.3d 225, 234 (3d Cir. 2006)

(quoting Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000)).

“[T]o have a property interest in a job ... a person must have more than a unilateral expectation

of continued employment; rather, she must have a legitimate entitlement to such continued

employment.” Elmore v. Cleary, 399 F.3d 279, 282 (3d Cir.2005) (citing Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972)). Additionally, “an at-will employee does not have a legitimate entitlement to

continued employment because [she] serves solely at the pleasure of [her] employer.” Id. at 282.

Specifically, courts in Pennsylvania have found that, “[p]robationary police officers have neither a

property interest in their employment, nor an absolute right to a pre- or post-termination hearing.”

Bartal v. Borough of Laureldale, 515 F. Supp. 2d 556 (E.D. Pa. 2007) (citing Olson v. Borough of

Avalon, 811 A.2d 66, 71 (Pa. Commw. 2002)).

“[T]o make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff

must show a stigma to [her] reputation plus deprivation of some additional right or interest.” Hill 455

F.3d at 236 (internal citations omitted). “[A] public employee who is defamed in the course of being

terminated or constructively discharged satisfies [this] test even if, as a matter of state law, [s]he lacks

a property interest in the job [s]he lost.” Id. at 238.

Here, Plaintiff did not have a vested property interest in her job that would mandate a due

process hearing, as she was terminated during a probationary employment period. However, Plaintiff

has adequately alleged a due process claim for deprivation of a liberty interest in her reputation.

Accepting Plaintiff’s allegations as true, the publication of the inter-office memorandum alleging

Plaintiff falsified reports and engaged in deceitful acts, along with the dissemination of these

comments, defamed her reputation and resulted in her name being placed on the District Attorney’s

Office’s Disclosure List. It is also alleged that the memorandum and its dissemination had a negative

effect on Plaintiff’s public image and future job prospects. The Court finds the Complaint adequately

alleges a deprivation of Plaintiff’s liberty interest.

F. Count VI: Municipal/Monell Liability

In order to sustain a § 1983 claim against the City of Bethlehem, Plaintiff must demonstrate

that a constitutionally protected right was violated, and the alleged violation resulted from a policy or

custom that exhibits deliberate indifference to the rights of citizens. See Monell v. Dep't of Soc. Servs.

of City of New York, 436 U.S. 658, 694-95 (1978). Plaintiff can do this in one of two ways. Forrest

v. Parry, 930 F.3d 93, 105 (3d Cir. 2019). For the first way, Plaintiff can show “an unconstitutional

policy or custom of the municipality” that led to her injuries. Id. For the second way, Plaintiff could

show that her injuries were “caused by a failure or inadequacy by the municipality that ‘reflects a

deliberate or conscious choice.’” Id. (quoting Brown v. Muhlenberg Township, 269 F.3d 205, 215 (3d

Cir. 2001)).

The alleged custom or policy must go beyond mere conclusory statements. McTernan v. City

of New York, 564 F.3d 636, 658-59 (3d Cir. 2009). Policy is made when “a decisionmaker possessing

final authority to establish a municipal policy with respect to the action issues an official

proclamation, policy, or edict.” Id. A custom is established when “though not authorized by law,

‘such practices of state officials [are] so permanently and well-settled’ as to virtually constitute law.”

Id. In addition, custom “requires proof of knowledge and acquiescence by the decisionmaker.” Id.

Plaintiff alleges that the City of Bethlehem established a custom of systematically fostering

racial and sexual discrimination. However, Plaintiff did not allege sufficient facts to support that the

City of Bethlehem gave up or acquiesced on fixing the underlying discriminatory problems. Instead,

the Amended Complaint establishes the opposite, that the City was attempting to fix underlying

environmental issues. See ECF No. 19 at ¶¶ 35, 42-43, 236, 237, 238.

As to the Amended Complaint’s failure to train claim, a plaintiff must ordinarily show a

“pattern of similar constitutional violations by untrained employees” and “deliberate indifference” to

her rights. See Connick v. Thompson, 563 U.S. 51, 62 (2011); Carter v. City of Phila., 181 F.3d 339,

357 (3d Cir.1999).

Here, Plaintiff fails to allege facts beyond conclusory allegations that the City was aware of a

need for further training. As to attempt to establish deliberate indifference to her rights, she alleges

the City failed to properly react after her termination. This is an improper pleading that does not

establish a failure to train claim, as the City needs to be on notice of the need to train prior to the

constitutional violation.

G. Count VII: Civil Conspiracy Claims

To state a cause of action for a conspiracy claim under §1985, the plaintiff must allege “(1)

two or more persons conspire to deprive any person of the equal protection of the law; (2) one or

more of the conspirators performs or causes to be performed any overt act in furtherance of the

conspiracy; and (3) that overt act injures the plaintiff in his person or property or deprives the plaintiff

of any right or privilege of a citizen of the United States.” Barnes Found. v. Twp. of Lower Merion,

242 F.3d 151, 162 (3d Cir. 2001). A claim under §1985 requires “intent to deprive of equal protection,

or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the conspirators’ action.” Griffin v. Breckenridge,

403 U.S. 88, 102 (1971).

“To prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting

under color of state law ‘reached an understanding’ to deprive him of [her] constitutional rights.

Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 293-94 (3d Cir. 2018) (citing Adickes v. S.H. Kress &

Co., 398 U.S. 144, 150 (1970)).

The Amended Complaint fails to adequately allege Defendants conspired or reached any

agreement to deprive Plaintiff of any constitutional rights. The only constitutional violation that

survives this instant motion is deprivation of Plaintiff’s liberty interest in her reputation. Beyond

conclusory allegations, no pleadings support a conspiracy claim as to that alleged violation.4

H. Count VIII: Supervisory Liability Against Defendant Kott

When a defendant has personal involvement, which can be shown through “participat[ing] in

violating the plaintiff's rights, direct[ing] others to violate them, or, as the person in charge, ha[ving]

knowledge of and acquiesce[ing] in [the] subordinates' violations,” he or she can be held to have

supervisory liability under § 1983. Cannon v. City and Cnty. of Philadelphia, No. 14–5388, 2014 WL

7399037, at *3 (E.D. Pa. Dec. 30, 2014).

The Amended Complaint alleged that Defendant Kott is directly responsible for violating

Plaintiff’s rights through her presence at the Loudermill hearing, terminating Plaintiff, requesting and

attaining Plaintiff’s name on the Northampton County DA’s “Disclosure List”, and directing the

conduct of the individuals responsible for the civil rights violations. ECF No. 19 at ¶¶ 122, 123, 137,

270. The Court considers her alleged responsibility as it relates to the remaining claims and finds it

is sufficiently pled at this stage of the litigation.

I. Count IX: IIED Claim

To establish an Intentional Infliction of Emotional Distress (“IIED”) claim under

Pennsylvania law, the plaintiff must allege that “‘the defendant's conduct: (1) was intentional or

4 In addition to Plaintiff’s Due Process claim, a Title VII discrimination claim remains. However,

“conspiracies to violate rights protected by Title VII [] are not cognizable under § 1985(3),” nor are

they constitutional rights under § 1983. Gilmore v. Nat’l Mail Handlers Union Local, 318, 517 Fed.

Appx. 784, 788-89 (11th Cir. 2013).

reckless; (2) was extreme and outrageous; (3) actually caused the distress; and (4) caused distress that

was severe.’” McCowan v. City of Philadelphia, No. CV 19-3326-KSM, 2021 WL 84013, at *30

(E.D. Pa. Jan. 11, 2021) (quoting Regan v. Twp. of Lower Merion, 36 F. Supp. 2d 245, 251 (E.D. Pa.

1999)). IIED claims must be “‘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.’” McGreevy v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005) (quoting Restatement (Second) of

Torts § 46 cmt. d).

Here, Plaintiff alleges IIED based upon her wrongful termination, Defendants’ discriminatory

action, and her placement on the Disclosure List. These pleadings fail to meet the high threshold of

outrageous in character and beyond all bounds of decency. See Ellis v. Genesis Healthcare Corp.,

Civil Action NO. 18-5536, 2019 WL 1303981, at *4 (E.D. Pa. Mar. 20, 2019) (finding no IIED claim

when termination was result of racial discrimination); see also, Madreperla v. Williard Co., 606

F.Supp. 874, 880 (E.D. Pa. 1985) (finding no outrageous conduct when employer created a

premediated plan to force employee to resign).

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 22) is GRANTED IN

PART and DENIED IN PART. An appropriate order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER

United States District Court Judge