Giangrieco v. Susquehanna County

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL GIANGRIECO, : 3:20-cv-817

:

Plaintiff, :

:

v. : Hon. John E. Jones III

:

SUSQUEHANNA COUNTY, et al., :

:

Defendants. :

MEMORANDUM

October 13, 2020

Presently pending before the Court are two motions to dismiss in the above-

captioned case, one filed by Defendants Elizabeth Arnold (“Defendant Arnold”)

and Judith Herschel (“Defendant Herschel”) (together, the “Individual

Defendants”) (Doc. 19), and the other by Defendant Susquehanna County (Doc.

21) (together, the “Motions to Dismiss”). Also included with the Individual

Defendants’ motion is a Motion for a More Definitive Statement. The motions

have been fully briefed (Docs. 20, 22, 26–29) and are ripe for disposition. For the

reasons that follow, the Motions to Dismiss shall be granted, and the Individual

Defendants’ Motion for a More Definitive Statement shall be denied.

I. BACKGROUND

In accordance with the standard of review applicable to a motion to dismiss,

the following facts are derived from Plaintiff’s complaint and viewed in the light

most favorable to him.

Plaintiff Michael Giangrieco is an attorney who initially served as the

solicitor of Susquehanna County from 1996 to 2008. (Doc. 1, at ¶ 10). After a

two-year stint as a Susquehanna County Commissioner, Plaintiff Giangrieco “was

again asked to be the Susquehanna County solicitor” in January 2017. (Id.). The

instant dispute arises from events that took place during Plaintiff’s latter term as

solicitor.

Defendants Arnold and Herschel are both Susquehanna County

Commissioners and, according to Plaintiff, are political allies. (Id., at ¶¶ 7–8, 28).

Defendant Arnold has served as Commissioner since 2016, while Defendant

Herschel was elected in November 2019 for a term that began in January 2020.

(Id., at ¶¶ 7–8).

Sometime during Defendant Arnold’s first term, Plaintiff “spoke to her

repeatedly about actions she was taking that were not only contrary to

Susquehanna [County] policy, but potentially exposed Susquehanna County to

liability and did ultimately cause the county liability.” (Id., at ¶ 11). Plaintiff avers

that these conversations were not part of his job duties as solicitor because another

attorney—one hired by Susquehanna County’s insurance company—was handling

the litigation and allegedly “had the responsibility to control [Defendant] Arnold’s

actions related to litigation against Susquehanna County.” (Id., at ¶ 12).

Nevertheless, “[o]ut of an abundance of caution,” Plaintiff has not detailed exactly

what was spoken during these conversations with Defendant Arnold because

“[s]ome of the speech involved potentially could be construed as legal advice.”

(Id., at ¶ 13).1

At some point thereafter, two Susquehanna County employees sued

Defendants Arnold and Susquehanna County, and these lawsuits allegedly related

to those (undisclosed) actions by Defendant Arnold. (Id., at ¶ 14). Plaintiff alleges

that the attorney hired by Susquehanna County’s insurance company subsequently

asked him and others to lie in documents responsive to an EEOC complaint and

likewise asked Plaintiff to change a previously drafted statement to better “protect”

Defendant Arnold. (Id., at ¶¶ 14–18). According to Plaintiff, his refusal to lie

1 In the alternative to their motion to dismiss, the Individual Defendants move under Rule

12(e) for a more definitive statement, arguing that “Plaintiff admits [that] several aspects of his

Complaint are intentionally vague due to his uncertainty of the protections of the attorney-client

privilege and his prior role as solicitor for the County.” (Doc. 20, at 24). However, motions

under Rule 12(e) are “generally disfavored” and should be “used to provide a remedy for an

unintelligible pleading rather than as a correction for a lack of detail.” Frazier v. Se.

Pennsylvania Transp. Auth., 868 F. Supp. 757, 763 (E.D. Pa. 1994). While Plaintiff’s complaint

does lack detail as to specific allegations of wrongdoing, we do not find it unintelligible, and we

note that the Defendants have ably responded to the complaint via their Motions to Dismiss.

Accordingly, we will deny the Individual Defendants’ Motion for More Definitive Statement

pursuant to Rule 12(e).

“infuriated” Defendant Arnold “because he would not lie to help cover up her

actions.” (Id., at ¶ 19).

Approximately two years later, in 2019, the Susquehanna County elections

board received complaints relating to then-candidate Defendant Herschel’s

allegedly improper campaign finance statements. (Id., at ¶¶ 20–21). Plaintiff was

involved with the election board hearing concerning these complaints and

allegedly made statements “about whether [Defendant] Herschel’s financial

statement filings were improper or what the remedy should be.” (Id., at ¶ 22).

Plaintiff alleges that Defendant Herschel “took offense” at Plaintiff’s

“involvement,” and that she “vowed to get even with him.” (Id., at ¶ 23).

During the 2019 election for Susquehanna County Commissioners,

Defendant Arnold won re-election and Defendant Herschel won a seat for her first

term. (Id., at ¶¶ 26–27). After getting sworn in as Commissioners, one of their

first official acts was a vote to “terminate” Plaintiff as Susquehanna County

solicitor, which carried by a vote of 2-1. (Id., at ¶¶ 33–35). Plaintiff alleges that

his termination was connected to the Individual Defendants’ “vow[s]” to get even

with him for his prior speech, and that they had collectively “pledged” to “get rid

of the testosterone in the courthouse.” (Id., at ¶¶ 23, 29–30). Plaintiff alleges their

conduct arose to a “brazen” conspiracy to terminate his employment. (Id., at ¶¶

31–32).

Plaintiff filed his complaint on May 19, 2020, alleging four counts against

all three Defendants: Count I alleges a First Amendment retaliation claim, Count II

alleges unlawful discrimination and/or retaliation under the Pennsylvania

Whistleblower Law, 43 P.S. § 1421 et seq., Count III brings a claim for gender

discrimination under the Equal Protection Clause of the Fourteenth Amendment,

and Count IV alleges a state law claim for wrongful termination in violation of

public policy. (Doc. 1). The Individual Defendants and Defendant Susquehanna

County each filed Motions to Dismiss (Docs. 19 and 21), along with briefs in

support (Docs. 20 and 22) on August 3, 2020. The Individual Defendants also

included a Motion for More Definitive Statement pursuant to Rule 12(e). (Doc.

20). Plaintiff filed briefs in opposition to the Motions to Dismiss on August 13,

2020 (Docs. 26 and 27), to which the Individual Defendants and Defendant

Susquehanna County separately replied on August 26 (Docs. 28 and 29). For the

reasons that follow, we shall grant the Motions to Dismiss and deny the Motion for

More Definitive Statement.

II. STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept

all factual allegations as true, construe the complaint in the light most favorable to

the plaintiff, and determine whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.” Phillips v. Cty. of Allegheny, 515

F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d

361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule

12(b)(6), a court generally should consider only the allegations in the complaint, as

well as “documents that are attached to or submitted with the complaint, . . . and

any matters incorporated by reference or integral to the claim, items subject to

judicial notice, matters of public record, orders, [and] items appearing in the record

of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).

A Rule 12(b)(6) motion tests the sufficiency of the complaint against the

pleading requirement of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a

short and plain statement of the claim showing that the pleader is entitled to relief,

“in order to give the defendant fair notice of what the claim is and the grounds

upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked

by Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it

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). To

survive a motion to dismiss, a civil plaintiff must allege facts that “raise a right to

relief above the speculative level….” Victaulic Co. v. Tieman, 499 F.3d 227, 235

(3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the

plausibility standard, the complaint must indicate that defendant’s liability is more

than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the

line between possibility and plausibility of entitlement to relief.’” Id. (quoting

Twombly, 550 U.S. at 557).

Under the two-pronged approach articulated in Twombly and later

formalized in Iqbal, a district court must first identify all factual allegations that

constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,

550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”

and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.

Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the …

complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking

these allegations as true, the district judge must then determine whether the

complaint states a plausible claim for relief. See id.

However, “a complaint may not be dismissed merely because it appears

unlikely that the plaintiff can prove those facts or will ultimately prevail on the

merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule 8

“does not impose a probability requirement at the pleading stage, but instead

simply calls for enough facts to raise a reasonable expectation that discovery will

reveal evidence of the necessary element.” Id. at 234.

III. DISCUSSION2

A. Count I – First Amendment Retaliation

To state a claim for First Amendment retaliation, a plaintiff must allege two

things: “(1) that the activity in question is protected by the First Amendment, and

(2) that the protected activity was a substantial factor in the alleged retaliatory

action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006).

Concerning the first prong, a public employee’s speech is protected under the First

Amendment “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.” Id.

at 241–42 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)). “The question

of whether or not speech is protected by the First Amendment constitutes a

question of law.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir.

2 For purposes of this Memorandum, we will assume that Plaintiff was indeed terminated,

and that Defendants could be liable for claims related to this termination, although it is not at all

certain that is the case. As Defendants argue, the county solicitor is appointed by the county

commissioners. 16 P.S. § 901 (2018). The commissioners meet at the start of every four-year

term “for the purpose of organization,” at which time they appoint county officers, including the

solicitor. 16 P.S. § 502 (2018). At the start of the 2020 term, the Individual Defendants and the

third county commissioner (who is not named in this ligation) voted 2-1 to appoint a new

solicitor. (Doc. 1, at ¶¶ 34–35). While the power of county commissioners to remove a county

officer is not unlimited, a county officer is nonetheless “subject to the removal at the pleasure of

the appointing power, except as otherwise expressly provided by law[.]” 16 P.S. § 450(b). Here,

because Plaintiff’s complaint fails to state a claim for separate reasons, we will not consider the

legitimate constitutional questions concerning removal of a county appointee raised by the

Defendants. Instead, we will assume that Plaintiff was indeed terminated from his position.

2015). Here, the parties principally dispute whether Plaintiff was speaking “as a

citizen” during the speech at issue.

A public employee does not speak “as a citizen” when the speech in question

was made “pursuant to [his] official duties.” Garcetti, 547 U.S. at 421–22. And

“[w]hether an employee's speech addresses a matter of public concern must be

determined by the content, form, and context of a given statement, as revealed by

the whole record.” Rankin v. McPherson, 483 U.S. 378, 384 (1987). “Whether a

public employee speaks as a citizen and whether the speech relates to a matter of

public concern are often issues discussed in tandem because the two go hand in

hand. However, where a court can easily discern that the plaintiff’s speech was

made as part of his official duties, it is easy to hold that he did not speak as a

citizen and therefore receives no First Amendment protection.” Fow v. Pawlowski,

No. 1:12-CV-1970, 2016 WL 7324514, at *6 (M.D. Pa. Dec. 16, 2016) (citing Hill,

455. F.3d at 242).

In the present matter, we discern three instances of speech from Plaintiff’s

complaint that, according to him, led to his termination: (1) Plaintiff’s

conversations with Defendant Arnold concerning “actions she was taking that were

not only contrary to Susquehanna policy, but potentially exposed Susquehanna

County to liability,” (Doc. 1, at ¶ 11); (2) Plaintiff’s refusal to lie in documents

responsive to an EEOC complaint (Id., at ¶¶ 14–19); and (3) Plaintiff’s speech

during an election board hearing concerning complaints against then-candidate

Defendant Herschel (Id., at ¶¶ 20–23). We will consider each instance in turn to

determine whether Plaintiff has established a viable First Amendment retaliation

claim.

Plaintiff’s first alleged instance of speech was clearly made pursuant to his

official duties as county solicitor. Plaintiff alleges that he spoke to Defendant

Arnold during her first term as commissioner for Susquehanna County regarding

certain actions that could expose the county to liability. According to Plaintiff, this

speech was not part of his job duties as county solicitor because Susquehanna

County’s insurance company appointed outside counsel who “had the

responsibility to control Arnold’s actions relating to litigation against Susquehanna

County.” (Id., at ¶ 12). Plaintiff’s argument, however, does not comport with the

statutorily-prescribed duties and responsibilities of county solicitors. A county

solicitor “shall do all and every professional act and render legal advice incident to

the office which may be required of the solicitor by the commissioners.” 16 P.S. §

902 (emphasis added). It is also no matter that another attorney was involved in

the litigation, as a county solicitor must “defend all actions or suits brought against

the county.” Id. Here, Plaintiff only goes as far as conceding that his speech in

this instance “potentially could be construed as legal advice,” (Doc. 1, at ¶ 13)

(emphasis added), but this argument strains credibility. Plaintiff counseled

Defendant Arnold concerning conduct that could expose the county to liability.

This is the textbook definition of legal advice, and Plaintiff’s principal job as

county solicitor was to render legal advice to county commissioners such as

Defendant Arnold. Therefore, we necessarily find that this first instance of speech

was clearly made “pursuant to his official duties.”

The second alleged instance of speech arose in the context of Susquehanna

County’s defense of litigation related to the undisclosed conduct of Defendant

Arnold. According to Plaintiff, he “and other employees” were asked to lie in

documents prepared by outside counsel in response to an EEOC complaint, and

Plaintiff refused. (Id., at ¶¶ 17–19). Plaintiff avers in this instance he “was not

acting in his role as solicitor,” but rather “he was acting in a role as witness.”

(Doc. 26, at 17) (emphasis omitted). This is, admittedly, a closer call then the first

alleged instance of speech. But key pieces of evidence gleaned from Plaintiff’s

allegations convinces us that Plaintiff’s alleged refusal to lie was also made

pursuant to his official duties. Though Plaintiff in his briefing argues that he was

acting as a witness when he allegedly refused to lie, that allegation does not appear

in his complaint. Rather, the complaint describes a situation that clearly reflects

Plaintiff acting pursuant to his role as county solicitor. Again, even if outside

counsel was primarily responsible for the litigation, Plaintiff still had a statutory

duty to “defend all actions or suits brought against the county.” 16 P.S. § 902.

Plaintiff also appears to have been actively involved in the litigation: he relayed

facts to outside counsel concerning the EEOC complaint against Susquehanna

County and Defendant Arnold and he reviewed the responses and draft statements

to the EEOC complaint before they were submitted. (Doc. 1, at ¶¶ 15–16).

Though “speech may be protected even if it concerns information related to or

learned through public employment, [] an employee does not speak as a citizen if

the mode and manner of his speech were possible only as an ordinary corollary to

his position as a government employee.” De Ritas v. McGarrigle, 861F.3d 444,

454 (3d Cir. 2017) (quoting Lane v. Franks, 573 U.S. 228, 236 (2014) (internal

quotations and citations omitted).

In De Ritas, the Third Circuit held that though ordinary citizens may offer

in-court testimony or report misconduct to government officials, citizens do not

make “idle chatter [with attorneys and judges] while waiting for court to begin or

end as a public defender representing a client may do.” Id. Likewise, in Fraternal

Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231 (3d Cir. 2016), the

Third Circuit held that citizens do not complete internal police counseling forms as

part of the police disciplinary process—only police officers acting as public

employees do. Fraternal Order of Police, Lodge 1, 842 F.3d at 244. Here, while

citizens may be involved as witnesses in legal proceedings for employment

discrimination, ordinary citizens do not review draft responses to EEOC

complaints or discuss ongoing litigation with a county’s outside attorney.

Therefore, we conclude that this instance of speech “owe[d] its existence to

[Plaintiff’s] professional responsibilities,” and therefore restriction of that speech

“[did] not infringe any liberties the employee might have enjoyed as a private

citizen.” Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009) (quoting Garcetti,

547 U.S. at 421); see also Santiago v. New York & New Jersey Port Auth., 687 F.

App'x 146, 151 (3d Cir. 2017) (“Santiago did not speak to the public, but directed

her speech up the chain of command. While the audience is certainly not a

dispositive factor, it is an important one.”).

Even if we credited Plaintiff’s arguments that this second instance of speech

was not made pursuant to his official duties, we would still find that Plaintiff’s

allegations regarding his refusal to lie insufficient for two other reasons. First,

Plaintiff’s complaint is devoid of any allegation that this speech “involved a matter

of public concern,” as is required to state a claim for First Amendment retaliation.

See Borden v. Sch. Dist. of the Twp. of East Brunswick, 523 F.3d 153, 169–70 (3d

Cir. 2008) (“The content of speech on a matter of public concern generally

addresses a social or political concern of the community. . . . [T]he content of these

types of speech goes to the core of the First Amendment because it adds to the

debate on matters of public importance.”). Second, Plaintiff fails to sufficiently

plead that his speech was “a substantial factor in the alleged retaliatory action.”

Hill, 455 F.3d at 241. Plaintiff’s only allegations that relate to causation are that

his speech “infuriated [Defendant] Arnold” and that Defendant Arnold “vowed to

get even with Mr. Giangrieco for the speech in which he had engaged.” (Doc. 1, at

¶¶ 19, 30). These allegations, however, amount to “naked assertion[s] devoid of

any further factual enhancement,” and are precisely the kinds of allegations that are

“not entitled to the assumption of truth” for purposes of resolving a 12(b)(6)

motion to dismiss. Iqbal, 556 U.S. at 678–79 (quoting Twombly, 550 U.S. at 557)

(internal quotations omitted).

Finally, the third alleged instance of speech arose during Plaintiff’s

participation in an election board hearing concerning Defendant Herschel’s

campaign finance statements. (Doc. 1, at ¶ 22). Plaintiff, however, concedes that

any speech made in this context was pursuant to his official duties. (Doc. 26, at

17) (“Concerning the allegations in the Complaint regarding Mr. Giangrieco's

involvement with Herschel's improper campaign finance filings, we agree that Mr.

Giangrieco's involvement was in his role as solicitor.”). Therefore, we need not

consider this speech in determining whether the complaint states a claim for First

Amendment retaliation.

Because we find that none of Plaintiff’s alleged speech was protected by the

First Amendment, we will dismiss Count I against all Defendants.

B. Count II – Whistleblower Retaliation

Count II seeks to state a claim for unlawful retaliation under the

Pennsylvania Whistleblower Law (the “PWL”). The PWL provides that “[n]o

employer may discharge, threaten or otherwise discriminate or retaliate against an

employee . . . because 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 by a pubic body or an instance of waste by another other

employer . . . .” 43 P.S. § 1423(a) (2014).

To state a claim for PWL retaliation, a plaintiff “must allege that prior to

discharge, he made a good faith report of his employer's waste or wrongdoing to

the appropriate authorities, and was discharged in reprisal for that report.”

Jakomas v. McFalls, 229 F. Supp. 2d 412, 421 (W.D. Pa. 2002) (citing Lutz v.

Springettsbury Township, 667 A.2d 251 (Pa. Commw. Ct. 1995)). The “good faith

report” must “specify how an employer is guilty of wrongdoing or waste.” Sukenik

v. Twp. of Elizabeth, 131 A.3d 550, 555 (Pa. Commw. Ct. 2016) (citing Gray v.

Hafer, 651 A.2d 221, 225 (Pa. Commw. Ct. 1994), aff'd, 669 A.2d 335 (Pa. 1995)).

This report also “must provide information that is sufficient to identify the law

allegedly violated” and “reports of vague or subjectively wrong conduct are not

considered wrongdoing under the [PWL].” Id. at 555–56 (citing Riggio v. Burns,

711 A.2d 497, 501 (Pa. Super. Ct. 1998)). 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,”

while “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.” 43 P.S. § 1422.

Plaintiff here alleges that he reported “wrongdoing” and “waste” to

Defendant Arnold—and therefore also to Defendant Susquehanna County—when

he counseled her regarding actions that could (and allegedly did) expose the county

to liability, as well as when he allegedly refused to lie in documents responsive to

an EEOC complaint. (Doc. 26, at 16–17). Defendants argue that these allegations

are insufficient because they do not establish that Plaintiff made a “good faith

report” of wrongdoing. (Doc. 20, at 17–20). We agree with Defendants.

First, Plaintiff has not established that he indeed made any “good faith

report” of wrongdoing. Plaintiff alleges that he “spoke to [Defendant Arnold]

repeatedly about actions she was taking that were not only contrary to

Susquehanna policy, but potentially exposed Susquehanna County to liability . . . .”

(Doc. 1, at ¶ 11). He also alleges that he told the attorney for Susquehanna

County’s insurance company that the documents prepared in response to an EEOC

complaint were false and that he would not lie on his statement to the EEOC. (Id.,

at ¶¶ 16–18). Neither of these allegations amount to a “good faith report” because

Plaintiff fails to allege that those reports “specif[ied] how [his] employer [was]

guilty of wrongdoing or waste.” Sukenik, 131 A.3d at 555. Plaintiff’s allegation

that he counseled Defendant Arnold about actions that could expose the county to

liability does not establish that Defendant Arnold objectively violated any law or

policy. See Kimes v. Univ. of Scranton, 126 F. Supp. 3d 477, 505 (M.D. Pa. 2015)

(“The test is objective, not subjective; that is, it does not matter whether the

plaintiff holds a belief, even if well-founded, that the conduct constitutes

wrongdoing. What is required under the statute is that the plaintiff prove there was

an actual ‘violation’ . . . .”).3 Likewise, even if the ensuing litigation did relate to

the alleged wrongdoing Plaintiff discussed with Defendant Arnold, those

conversations would still not amount to a “good faith report” that specified how

Defendant Arnold objectively violated any law or rule, as mere allegations in a

lawsuit are not evidence of actual wrongdoing.

3 Plaintiff asserts he has not pled specific details concerning this “report” because his

conversations with Defendant Arnold “potentially could be construed as legal advice.” (Doc. 1,

at ¶ 13). However, that these conversations “potentially could be construed as legal advice”

underscores the deficiency of his pleadings—either Plaintiff in those conversations was making a

good faith report of wrongdoing such that he was acting as a whistleblower, or he was acting as

the attorney for Susquehanna County and Defendant Arnold; both cannot be true simultaneously.

As discussed above, the fact that Plaintiff’s job was specifically to advise Susquehanna County

and its commissioners on legal matters convinces us that these conversations with Defendant

Arnold about potential litigation did not amount to whistleblowing as defined by the PWL.

Plaintiff’s other allegation—that he refused to lie—similarly does not

amount to a “good faith report” of wrongdoing under the PWL. Plaintiff does not

allege that he made any report to Susquehanna County or an appropriate

authority—he only alleges that he told the attorney hired by county’s insurance

company that the documents “prepared” in response to an EEOC complaint were

false and inaccurate, and that he would not change his previously-drafted

statement. (Doc. 1, at ¶15) (emphasis added). Again, there is no allegation that

Plaintiff made any kind of report that “specif[ied] how [the] employer is guilty of

wrongdoing or waste.” Sukenik, 131 A.3d at 555. Moreover, the allegation that

Plaintiff and others “refused to lie or to change his accurate statement” indicates

that, as-pled, it is plausible that no false documents were ever submitted on behalf

of Susquehanna County. (Doc. 1, at ¶ 18); see Anderson v. Bd. of Sch. Directors of

Millcreek Twp. Sch. Dist., 574 F. App'x 169, 173–74 (3d Cir. 2014) (“Anderson

did not convey that Maynard violated any law, ordinance, regulation, or code of

conduct—or, indeed, that Maynard had done anything wrong at all. She merely

expressed her concern that Maynard might engage in certain conduct in the future.

Accordingly, Anderson's statements do not constitute a report of wrongdoing . . .

.”). In other words, Plaintiff’s allegations that he made a good faith report of

wrongdoing or waste do not “raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555.

Second, even if we found that Plaintiff did make a good faith report of

wrongdoing or waste, Plaintiff’s complaint nonetheless insufficiently pleads that

his report(s) were causally connected to his termination. According to the

complaint, Plaintiff’s conversations with Defendant Arnold and the preparation of

the response to the EEOC complaint both took place during Defendant Arnold’s

first term. Although the complaint does not specify the exact timeframe, the

Individual Defendants attached to their brief two docket reports for employment

discrimination lawsuits against Defendants Arnold and Susquehanna County (and

others) filed in the U.S. District Court for the Middle District of Pennsylvania in

November 2017. (Doc. 20-2). Plaintiff does not dispute that these actions are

related to Defendant Arnold’s alleged wrongdoing and the EEOC complaint and

subsequent litigation alleged in his complaint. But if we were to construe these

lawsuits as the same ones that formed the basis for the conduct described in the

complaint, then each of the “reports” alleged by Plaintiff must have occurred well

before November 2017.

Courts in the Third Circuit usually look to two factors in determining

whether a complaint states a causal connection to retaliatory action: “(1) the

temporal proximity between the protected activity and the alleged discrimination

and (2) the existence of a pattern of antagonism in the intervening period.”

Hussein v. UPMC Mercy Hosp., 466 Fed.Appx. 108, 112 (3d Cir. 2012). Here, we

find neither any temporal proximity between Plaintiff’s “reports” nor any pattern

of antagonism in the intervening period prior to his termination. If we assume that

Plaintiff reported the alleged wrongdoing sometime prior to November 2017—and

Plaintiff has given us no reason not to rely on such an assumption—then almost

two and a half years passed in between his reports and his termination. That is far

too long to infer based on temporal proximity alone that Defendants retaliated

against Plaintiff. See, e.g., McCann v. Astrue, 293 Fed.Appx. 848, 852 (3d Cir.

2008) (holding that five months creates no inference of retaliation); Urey v. Grove

City College, 94 Fed.Appx. 79, 81 (3d Cir. 2004) (finding that four months

generally creates no inference); Gaston v. U.S. Postal Service, 319 Fed.Appx. 155,

159 (3d Cir. 2009). Plaintiff also does not allege a single instance of antagonism

during those intervening two and a half years; he only alleges that his “reports”

“infuriated [Defendant] Arnold” and that Defendant Arnold “vowed to get even

with Mr. Giangrieco for the speech in which he had engaged.” (Doc. 1, at ¶¶ 19,

30). We have already concluded that these allegations are “not entitled to the

assumption of truth” for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal,

556 U.S. at 678–79. Accordingly, Plaintiff has failed to state a claim for retaliation

under the PWL, and we will dismiss Count II against all Defendants.

C. Count III – Gender Discrimination

Plaintiff announced in his briefs in opposition to the Motions to Dismiss that

he is “withdrawing” his claim for gender discrimination in violation of the

Fourteenth Amendment’s Equal Protection Clause. (Doc. 26, at 20; Doc. 27, at

10). Accordingly, we will dismiss Count III as to all Defendants.

D. Count IV – Wrongful Termination in Violation of Public Policy

Finally, Count IV of Plaintiff’s complaint seeks to state a claim for wrongful

termination in violation of public policy. Plaintiff avers that he was terminated

from his role as solicitor for Susquehanna County for “his refusal to lie or to give a

false statement in official documents,” in contravention of Pennsylvania public

policy that “all persons [must] give only truthful and non-misleading statements in

litigation or to administrative agencies such as the EEOC.” (Doc. 1, at ¶¶ 61–62).

Generally, under Pennsylvania law, a plaintiff has no cause of action arising

from the termination of an at-will employment relationship unless that termination

violates public policy. See Donahue v. Fed. Exp. Corp., 753 A.2d 238, 244 (Pa.

Super. Ct. 2000). For example, “an employer (1) cannot require an employee to

commit a crime, (2) cannot prevent an employee from complying with a statutorily

imposed duty, and (3) cannot discharge an employee when specially prohibited

from doing so by statute.” Spierling v. First Am. Home Health Servs., Inc., 737

A.2d 1250, 1252 (Pa. Super. Ct. 1999) (quoting Hennessy v. Santiago, 708 A.2d

1269, 1273 (Pa. Super. Ct. 1998). While in certain cases a court does not need a

specific legislative pronouncement to find that a particular employment practice

violates public policy, a court's power to announce public policy is nonetheless

limited: “[p]ublic policy is to be ascertained by reference to the laws and legal

precedents and not from general considerations of supposed public interest.”

Donahue, 753 A.2d at 244 (quoting Shick v. Shirey, 716 A.2d 1231, 1237 (Pa.

1998)). Based on our review of the pleadings and briefing in the light most

favorable to Plaintiff, we will dismiss Count IV against all three Defendants for at

least three reasons.

First, Plaintiff cannot state a claim for wrongful termination in violation of

public policy against Defendant Susquehanna County because the county is

immune from such claims. See 42 Pa.C.S.A. § 8542; Snavely v. Arnold, No. 1:08-

cv-2165, 2009 WL 1743737, at *6, n.8 (M.D. Pa. June 18, 2009) (“Wrongful

discharge is not one of the articulated exceptions [of Section 8542 of the

Pennsylvania State Tort Claims Act].”) (citing Lancie v. Giles, 572 A.2d 827, 830

(Pa. Commw. Ct. 1990)). Plaintiff appears to concede that Defendant

Susquehanna County is indeed entitled to immunity here. (Doc. 27, at 11)

(“[S]ome cases have held that the PSTCA bars such a claim against a county, but

does not bar such a claim as against the individual actors.”). Accordingly, we will

dismiss Count IV at least as to Defendant Susquehanna County.

Second, as stated above, “the public policy exception to the at-will

employment doctrine under Pennsylvania law is quite narrow[.]” Bell v.

Lackawanna Cty., 892 F. Supp. 2d 647, 691 (M.D. Pa. 2012). “While a federal

court must be sensitive to the doctrinal trends of the jurisdiction whose law it

applies, it is beyond the authority of a federal court . . . to create entirely new

causes of action.” Wolk v. Saks Fifth Ave. Inc., 728 F.2d 221, 223 (3d Cir. 1984).

Here, Plaintiff has pled that Defendants’ alleged conduct violates certain

generalized principles of public policy, including a general prohibition against

attorneys engaging in dishonest conduct. (Doc. 1, at ¶¶ 62–65). In Plaintiff’s reply

brief to the Individual Defendants’ motion to dismiss, he also lists certain federal

and state statutes that were potentially implicated by Defendants’ conduct,

including perjury in violation of 18 P.S. § 4902. (Doc. 26, at 19). But at this stage

we must focus solely on the sufficiency of the pleadings. See Latraverse v. Kia

Motors of Am., Inc., No. 10-cv-6133, 2011 WL 3273150, at *5, n.6 (D.N.J. July

27, 2011) (“[T]he Court cannot consider the arguments in the Reply Brief in

construing the Complaint.”) (citing In re Burlington Coat Factory Sec.'s Litig., 114

F.3d 1410, 1425 (3d Cir. 1997)). As pled, this claim stems merely “from general

considerations of supposed public interest” rather than “by reference to the laws

and legal precedents” of Pennsylvania. Donahue, 753 A.2d at 244. Therefore, the

claim is insufficiently pled.

Third and finally, even if Plaintiff could overcome this pleading deficiency,

we would nonetheless decline to exercise supplemental jurisdiction over this

remaining claim against the Individual Defendants. When a District Court has

dismissed all claims over which it has original jurisdiction, the court has the

discretion to decline to exercise supplemental jurisdiction over any remaining state

law claims. 28 U.S.C. § 1367(c)(3); see also United Mine Workers of America v.

Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before trial

. . . the state claims should be dismissed as well.”); Bright v. Westmoreland

County, 380 F.3d 729, 751 (3rd Cir. 2004) (“[A]bsent extraordinary circumstances,

where the federal causes of action are dismissed the district court should ordinarily

refrain from exercising pendent jurisdiction [over the state law claims].”) (internal

citations and quotations omitted). In exercising its discretion, a court should

consider factors such as of judicial economy, convenience and fairness to the

parties, and principles of comity. See City of Chicago v. Int'l Coll. of Surgeons,

522 U.S. 156, 173 (1997).

Here, Defendant Susquehanna County requested that if the federal causes of

action were dismissed, then the Court should decline to exercise supplemental

jurisdiction over any remaining state law claims. (Doc. 22, at 14). Plaintiff in his

reply brief (Doc. 27), however, does not raise a single argument as to why the

principles of judicial economy, convenience, fairness, and/or comity should

persuade us to exercise supplemental jurisdiction here. Seeing no compelling

interest served by adjudicating this lone remaining state law claim against the

Individual Defendants, we would dismiss Count IV regardless of the pleading’s

sufficiency. See Tryko Holdings, LLC v. City of Harrisburg, 429 F. Supp. 3d 12,

24 (M.D. Pa. 2019) (“Judicial economy dictates that there is no significant interest

served by adjudicating these claims in federal court at this time and, because the

Court lacks an independent basis to retain jurisdiction over the remaining state-law

claims, we shall dismiss Plaintiff's Complaint in its entirety.”).

IV. CONCLUSION

For the foregoing reasons, we shall grant the Motions to Dismiss and deny

the Individual Defendants’ Motion for More Definitive Statement. A separate

order shall issue in accordance with this ruling.