# Gillow, Jr. v. The Pennsylvania Department of Transportaion

> District Court, M.D. Pennsylvania · January 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10414196

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
GARY GILLOW, JR.,

Plaintiff, CIVIL ACTION NO. 3:23-CV-00521

v. (MEHALCHICK, M.J.)

THE PENNSYLVANIA DEPARTMENT
OF TRANSPORTATION, et al.,

Defendants.

MEMORANDUM
Before the Court is a partial motion to dismiss filed by Defendants the Pennsylvania
Department of Transportation (“PennDOT”) and PennDOT Secretary Michael B. Carroll
(“Secretary Carroll”) (collectively, “Defendants”) on May 18, 2023. (Doc. 7). On March 24,
2023, Gary Gillow Jr. (“Gillow”) initiated this action by filing a complaint asserting claims
against Defendants and the Commonwealth of Pennsylvania’s Director of Equal
Opportunity, Katherine Peters1 for violations of the Americans with Disabilities Act (“ADA”)
42 U.S.C. § 12101, et seq., (Count I), the First Amendment pursuant 42 U.S.C. § 1983 (Count
II), and the Pennsylvania Human Relations Act (“PHRA”) 43 Pa. Stat. Ann. § 951, et seq.,
(Count III). (Doc. 1). Defendants now move to dismiss Count I and Count II against
Secretary Carroll in his individual capacity and Counts II and III against PennDOT. (Doc.
7). On December 6, 2023 the parties consented to proceed before the undersigned United
States Magistrate Judge pursuant to Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). (Doc. 25).
For the following reasons, Defendants’ motion to dismiss is GRANTED.

1 On December 6, 2023, Katherine Peters was dismissed from this action. (Doc. 22;
Doc. 23).
I. BACKGROUND
The following allegations are taken from Gillow’s Complaint. (Doc. 1). Prior to June
of 2022, Gillow was a full-time employee of PennDOT, where he worked as a Transportation
Equipment Operator B. (Doc. 1, ¶¶ 13, 14). In January of 2022, Gillow’s right leg was

amputated below the knee (Doc. 1, ¶ 16). As a result of the amputation, Gillow asserts he is
a qualified individual with a disability. (Doc. 1, ¶¶ 15-16). Gillow alleges he requested
appropriate accommodations from PennDOT but was denied. (Doc. 1, ¶ 19). On June 15,
2022, PennDOT terminated Gillow’s employment. (Doc. 1, ¶ 20). PennDOT attributes the
termination to a post Gillow made on Facebook which contained “inappropriate comments”
about PennDOT’s staff. (Doc. 1, ¶¶ 20-21).
Following his termination, Gillow filed a discrimination claim with the Equal
Employment Opportunity Commission (“EEOC”) asserting that PennDOT violated his
rights under the ADA and PHRA. (Doc. 1, ¶ 4). The EEOC issued a “Right to Sue” notice

on December 30, 2022. (Doc. 1, ¶ 5). Within 90 days, on March 24, 2023, Gillow filed his
complaint against Defendants, initiating this action. (Doc. 1, ¶ 6). In connection with these
claims, Gillow seeks injunctive relief, compensatory damages, and attorney’s fees and costs.
(Doc. 1).
On May 18, 2023, Defendants filed a partial motion to dismiss Count I against the
“individually named Defendants”, Count II and III against PennDOT, and Count II against
Secretary Carroll. (Doc. 7). On June 30, 2023, Gillow filed a brief in opposition to
Defendants’ partial motion to dismiss.2 (Doc. 19). Defendants filed a reply brief to Gillow’s
brief in opposition on July 14, 2023. (Doc. 20). The partial motion to dismiss has been fully
briefed and is now ripe for disposition. (Doc. 11; Doc. 19; Doc. 20).
II. STANDARDS OF LAW

A. MOTION TO DISMISS
Rule 12(b)(6) authorizes a defendant to move to dismiss for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To assess the sufficiency of a
complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff
must plead to state a claim, then identify mere conclusions which are not entitled to the
assumption of truth, and finally determine whether the complaint’s factual allegations, taken
as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc.,
662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, the court may consider
the facts alleged on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should
“begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff
must provide some factual ground for relief, which “requires more than labels and

2 In his brief in opposition, Gillow concedes Count I asserted against Secretary Carroll
under the ADA is subject to dismissal, as he recognizes individuals cannot be held personally
liable under the ADA. (Doc. 19, at 6). Gillow additionally concedes Count II and Count III
against PennDOT, asserted under the PHRA and §1983, are subject to dismissal. (Doc. 19,
at 6). Accordingly, Count I against Secretary Carroll and Counts II and III against PennDOT
are DISMISSED WITH PREJUDICE.
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions…’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also
need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated
Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to
a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting
Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in
the complaint, and any reasonable inferences that can be drawn therefrom are to be construed
in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for
which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).
The plausibility determination is context-specific and does not impose a heightened pleading
requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded
complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to relief
beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of
action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d
at 347 (citing Phillips v. County of Allegheny, 515 F.3d at 224, 233-234 (3d Cir. 2008). Rule 8(a)

requires a “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.’” Erickson v. Pardus, 551
U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing
Twombly, 550 U.S. at 545).
B. 42 U.S.C. SECTION 1983
Gillow asserts a First Amendment claim pursuant to 42 U.S.C. § 1983, which provides
a private cause of action for violations of federal constitutional rights. The statute provides in
pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .

42 U.S.C. § 1983.
Section 1983 does not create substantive rights, but instead provides remedies for rights
established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To succeed on
a § 1983 claim, a plaintiff must demonstrate that the defendant, acting under color of state
law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough
of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). Further, “a defendant in a civil rights action
‘must have personal involvement in the alleged wrongs to be liable,’ and ‘cannot be held
responsible for a constitutional violation which he or she neither participated in nor
approved.’” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007) (internal citations omitted).
“Personal involvement can be shown through allegations of personal direction or of actual
knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

III. DISCUSSION
Defendants move to dismiss Count II against Secretary Carroll for lack of personal
involvement, arguing that the “[c]omplaint is devoid of a single fact to illustrate how
[Secretary Carroll] is allegedly personally involved in the facts alleged therein.” (Doc. 11, at
7-8). Defendants note Secretary Carroll is not mentioned in the complaint except as a named
party and in the caption. (Doc. 11, at 8; Doc. 1, ¶ 10). In opposition, Gillow argues his
complaint alleges sufficient facts to hold Secretary Carroll liable under a theory of supervisory
liability. (Doc. 19, at 6-10). Gillow asserts, “[t]he complaint here, respectfully, did sufficiently
plead liability based on a policy the defendant promulgated, and the plaintiff did ‘identify in

their pleading what exactly Appellants should have done differently, whether with respect to
specific training programs or other matters, that would have prevented the unconstitutional
conduct.’” (Doc. 19, at 9).
“A defendant in a civil rights action must have personal involvement in the alleged
wrongs to be liable and cannot be held responsible for a constitutional violation which he or
she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir.
2007) (internal citations omitted). In a civil right action, “[p]ersonal involvement can be
shown through allegations of personal direction or of actual knowledge and acquiescence.”
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). It is insufficient to assert liability

against a supervisor solely due to their position. See Phillips v. Northampton Co., P.A., 687 F.
App'x 129, 131 (3d Cir. 2017). To “plead that [a Defendant is] liable in [his or her] individual
capacity as a supervisor, [the Plaintiff must] allege that she [or he] was personally involved in
the constitutional violation—vicarious liability is not enough.” Phillips, 687 F. App'x at 131.
Generalized allegations that lump defendants together and non-specific allegations that

defendants conspired generally have been deemed insufficient. See Van Tassel v. Piccione, 608
F. App'x 66, 70 (3d Cir. 2015). “Individual defendants who are policymakers may be liable
under 1983 if it is shown that such defendants, ‘with deliberate indifference to the
consequences, established and maintained a policy, practice or custom which directly caused
[the] constitutional harm.’” A.M. Ex rel. J.M.K. v. Luzerne Cty. Juv. Det. Ctr., 372 F.3d 572, 586
(3d Cir. 2004) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
Gillow fails to allege the personal involvement of Secretary Carroll in his claims in his
complaint. (Doc. 1, ¶ 10). Gillow does not identify any instances of “personal direction or of
actual knowledge and acquiescence” by Secretary Carroll. Rode, 845 F.2d at 1207. (Doc. 1).

Instead, the complaint is comprised of insufficient “generalized allegations,” with no mention
of Secretary Carroll’s specific involvement. (Doc. 1); Van Tassel, 608 F. App'x at 70. A
complaint which fails to establish personal involvement in alleged wrongs is properly
dismissed. See Hubert v. Luscavage, No. 3:21-CV-01523, 2023 WL 4306753, at *5-6 (M.D. Pa.
June 30, 2023) (granting defendants’ motion to dismiss on the grounds that plaintiffs failed to
allege well-pleaded facts providing defendants were directly involved in alleged wrongs).
The complaint is also devoid of allegations that Secretary Carroll had knowledge of
and acquiesced in any alleged constitutional violations by his subordinates as Gillow’s
supervisor. See Leaks v. Pennsylvania Dep't of Corr., No. 1:21-CV-00020, 2021 WL 3022628, at

*4 (M.D. Pa. July 16, 2021) (dismissing plaintiff’s claims under supervisory liability because
the complaint failed to set forth plausible claims that the defendants knew and acquiesced in
alleged constitutional violations). While Gillow suggests Defendants promulgated policies
that created a risk of constitutional injury in his brief in opposition, there are no facts in his
complaint that plausibly suggest Secretary Carroll maintained such a policy with knowledge

that it caused constitutional harm. (Doc. 1); Leaks, 2021 WL 3022628, at *4 (citing A.M. Ex
rel. J.M.K., 372 F.3d at 586. Absent any supporting factual allegations identifying Secretary
Carroll, it would be improper for the court to infer Secretary Carroll had the requisite
knowledge to impute supervisor liability under §1983. See Pizarro v. Wetzel, No. 3:20-CV-511,
2020 WL 7241117, at *6 (M.D. Pa. Dec. 9, 2020) (dismissing claims of supervisor liability
made under §1983 because the plaintiff failed to support her allegations that defendants
“established and maintained a policy, practice or custom which directly caused [a]
constitutional harm” with specific facts). Because Gillow has failed to allege well-pleaded
facts supporting Secretary Carroll had knowledge of or was involved in a policy or practice of

discrimination at PennDOT, he has failed to plausibly posit a claim on which relief can be
granted for his §1983 claim. (Doc. 1); Leaks, 2021 WL 3022628, at *4.
Accordingly, the complaint fails to allege Secretary Carroll’s personal involvement or
state a claim against him upon which relief can be granted. Therefore, Defendants’ partial
motion to dismiss is GRANTED and Count II against Secretary Carroll is DISMISSED
WITHOUT PREJUDICE.3 (Doc. 7).

3 In his brief in opposition, Gillow notes that he seeks injunctive relief. (Doc. 19, at 9-
10). He contends, even when acting in their official capacity, a state official is recognized to
be a “person” under § 1983 for purpose of injunctive relief. (Doc. 19, at 9-10). Defendants
allege the issue of injunctive relief is outside the scope of the motion to dismiss and does not
comply with Local Rule 7.6. (Doc. 20, at 4). As the Court will grant Gillow leave to amend
(footnote continued on next page)
IV. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure
to state a claim, the district court must permit a curative amendment, unless an amendment
would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). “A district court has ‘substantial leeway in deciding whether to grant leave to amend.’”
In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F. App'x 672, 673 (3d Cir. 2014)
(not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373).
In this case, there is nothing to suggest that amendment of Gillow’s First Amendment
claim against Secretary Carroll would be futile, nor if there any basis to believe it would be
inequitable. Therefore, Gillow will be granted leave to file an amended complaint within 28
days of the date of the Order filed concurrently with this memorandum.
V. CONCLUSION
Based on the foregoing, Defendants’ partial motion to dismiss is GRANTED. (Doc.

7). Count I against individually named Defendants will be DISMISSED WITH
PREJUDICE. Counts II and III against PennDOT be DISMISSED WITH PREJUDICE;
and Count II against Secretary Carroll be DISMISSED WITHOUT PREJUDICE.
An appropriate Order follows.

Dated: January 25, 2024 s/
KAROLINE MEHALCHICK
Chief United States Magistrate Judge

with respect to Count II against Secretary Carroll, the Court will not address the issue of
injunctive relief at this time.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414196. Public record. Not legal advice.