WOOLSLAYER v. DRISCOLL

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD E. WOOLSLAYER, )

)

Plaintiff, )

)

vs. )

) Civil Action No. 20-573

MICHAEL A. DRISCOLL, President Indiana )

University of PA, a university of the )

Pennsylvania State System of Higher )

Education, in his official and individual )

capacities, )

)

Defendant. )

MEMORANDUM OPINION

After Plaintiff Donald E. Woolslayer (“Woolslayer”) sent an email to colleagues at the

Indiana University of Pennsylvania (“IUP”) in which he advised them of the existence of a credible

risk of contracting Covid-19, he was terminated the next day by IUP’s President, Defendant

Michael A. Driscoll (“Driscoll”). Woolslayer subsequently commenced this lawsuit, under 42

U.S.C § 1983, in which he alleges a claim of First Amendment retaliation. Driscoll has moved to

dismiss the Complaint.

For the reasons below, Driscoll’s motion will be denied.

I. Procedural History

Woolslayer commenced this lawsuit in April 2020 against Driscoll in his individual

capacity and in his official capacity as President of IUP. (ECF No. 1 (“Compl.”).) The Complaint

seeks both legal and equitable relief, including reinstatement to his prior employment. (Id. at 5–

6.) Driscoll responded with this motion to dismiss (ECF No. 10) which has been fully briefed.

(ECF Nos. 11, 13.) Accordingly, the matter is ripe for disposition.

II. Factual Allegations

IUP is a university within the Pennsylvania State System of Higher Education

(“PASSHE”). (Compl. ¶ 3.) Woolslayer alleges that he worked as IUP’s Director of Facilities

Operations from April 2016 until March 2020. (Id. ¶ 6.) He also asserts that, throughout his tenure,

his supervisors rated his performance as fully acceptable. (Id. ¶ 12.)

According to the Complaint, the Director of Facilities Operations is responsible for the

physical maintenance and operation of IUP facilities. (Id. ¶¶ 7, 8.) Woolslayer alleges that the

Director of Facilities Operations at IUP has no power to speak in the name of any IUP policy

maker and is not involved in matters concerning the scope and nature of IUP functions or education

policies. (Id. ¶¶ 9, 10, 11.)

In late March 2020, Woolslayer discovered that the spouse of one of his employees had

been diagnosed with COVID-19. (Id. ¶ 13.) As alleged in the Complaint, COVID-19 is caused by

a highly infectious Coronavirus that created what the World Health Organization called a

pandemic and the Governor of Pennsylvania declared to have caused a statewide public health

emergency. (Id.) Woolslayer determined that he should share this information with IUP employees

and caution them to take the necessary steps to avoid infection. (Id. ¶ 14.) Woolslayer’s supervisors

and members of IUP’s Human Resources Department (“HR”) disagreed with him and

recommended that Woolslayer not alert employees or advise them to take the attendant

precautions. (Id. ¶ 15.)

Nonetheless, on March 30, 2020, Woolslayer notified employees in a multi-addressed

email that “one of our colleagues is self-quarantined due to exposure to COVID-19.”1 (Id. ¶ 16.)

(Id.) Given their colleague’s exposure to COVID-19, Woolslayer also advised employees to seek

medical advice to determine their risk and their course of action. (Id. ¶ 17.) HR objected to this

notification.

The next day, Driscoll fired Woolslayer, allegedly because Driscoll and senior leadership

at IUP had lost confidence in Woolslayer’s ability to effectively perform his assigned duties as the

Director of Facilities Operations. (Id. ¶ 18.) According to Woolslayer, Driscoll offered no other

reason for firing him. (Id. ¶ 19.)

III. Standard of Review

A complaint requires only “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Under Federal Rule of Civil Procedure

12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the

court must “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.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting

1 Driscoll has appended Woolslayer’s March 30, 2020 email to its supporting brief. (ECF

No. 11-1.) It is appropriate for the Court to consider this email in resolving this motion because it

is detailed in the Complaint and comprises the speech that Woolslayer alleges was constitutionally

protected. See Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016) (“In

deciding a Rule 12(b)(6) motion, a court . . . consider[s] only the complaint, exhibits attached to

the complaint, matters of public record, as well as undisputedly authentic documents if the

complainant’s claims are based upon these documents.”); Schmidt v. Skolas, 770 F.3d 241, 249

(3d Cir. 2014) (“[T]he primary problem raised by looking to documents outside the complaint—

lack of notice to the plaintiff—is dissipated where the plaintiff has actual notice . . . and has relied

upon these documents in framing the complaint.”).

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). While “accept[ing] all of the

complaint’s well-pleaded facts as true,” the court “may disregard any legal conclusions.” Id. at

210–11.

To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to

relief that is plausible on its face.” 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.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). “Though ‘detailed factual allegations’ are not required, a complaint must do

more than simply provide ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action.’” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting

Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim

has substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014).

To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three

steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away

those allegations that are no more than conclusions and thus not entitled to the assumption of truth;

(3) look for well-pled factual allegations, assume their veracity, and then determine whether they

plausibly give rise to an entitlement to relief. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

The court’s plausibility determination is “a context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

IV. Discussion

Section 1983 provides a private citizen with the right to sue any person who, under color

of state law, deprives him of a right or privilege secured by the Constitution of the United States.

42 U.S.C. § 1983. This statute does not create substantive rights but instead “provides only

remedies for deprivations of rights established elsewhere in the Constitution or federal laws.”

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a viable § 1983 claim, a plaintiff

“must establish that []he was deprived of a federal constitutional or statutory right by a state actor.”

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Because there is no question Driscoll acted under

color of state law, the Court’s analysis focuses on whether Woolslayer has alleged a deprivation

of his constitutional rights.

Woolslayer asserts that Driscoll fired him in retaliation for exercising his First Amendment

right to free speech.2 To allege a First Amendment retaliation claim based on a violation of the

right to free speech, a plaintiff must establish “(1) he engaged in constitutionally protected conduct;

(2) the defendant engaged in retaliatory action sufficient to deter a person of ordinary firmness

from exercising his constitutional rights; and (3) a causal link existed between the constitutionally

protected conduct and the retaliatory action.” Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752

(3d Cir. 2019).

Relying on the fact that IUP is a PASSHE institution, Driscoll contends that Woolslayer, a

public employee, has failed to establish that he engaged in constitutionally protected conduct.

Driscoll also argues that Woolslayer’s official capacity claims against him are barred by the

Eleventh Amendment.

A. Did Woolslayer engage in constitutionally protected conduct?

While it is true that “[w]hen a citizen enters government service, the citizen by necessity

must accept certain limitations on his or her freedom,” Garcetti v. Ceballos, 547 U.S. 410, 418

2 The First Amendment to the United Stated Constitution provides that “Congress shall

make no law . . . abridging the freedom of speech.” U.S. Const. Amend. 1. “First Amendment

freedoms are protected by the Fourteenth Amendment from invasion by the States.” NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 907 n.43 (1982).

(2006), “public employees do not surrender all their First Amendment rights by reason of their

employment.” Id. at 417. In delineating the scope of a public employee’s right under the Free

Speech Clause to speak without fear of retaliation by his or her employer, the Supreme Court has

instructed courts to strike “a balance between the interests of the [employee], as a citizen, in

commenting upon matters of public concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs through its employees.” Pickering v.

Bd. of Educ., 391 U.S. 563, 568 (1968). The Supreme Court has further explained that “when

public employees make statements pursuant to their official duties, the employees are not speaking

as citizens for First Amendment purposes, and the Constitution will not insulate their

communications from employer discipline.” Garcetti, 547 U.S. at 421.

Based on this guidance, the Third Circuit has developed a three-prong inquiry to determine

if the First Amendment protects a public employee’s speech: “(1) whether the employee spoke as

a citizen; (2) whether the statement involved a matter of public concern; and (3) whether the

government employer nevertheless had ‘an adequate justification for treating the employee

differently from any other member of the general public’ based on its needs as an employer.”

Baloga, 927 F.3d at 753 (quoting Palardy v. Twp. of Millburn, 906 F.3d 76, 81 (3d Cir. 2018)).

Driscoll argues that Woolslayer’s claim fails to meet both the first and the second prong.

1. Woolslayer spoke as a citizen

Driscoll contends that Woolslayer did not speak as a citizen. In support of this contention,

he observes that the only allegedly protected activity referenced in the Complaint is a single email

sent from Woolslayer’s work account exclusively to other IUP employees. Driscoll then concludes

that the email was sent in Woolslayer’s capacity as an employee and therefore fails to qualify as a

protected activity. Driscoll’s conclusion is untenable for a several reasons, however.

The mode of Woolslayer’s speech (work account) or his audience (only IUP employees) is

not dispositive with respect to whether Woolslayer spoke as a citizen. Indeed “[m]any citizens do

much of their talking inside their respective workplaces, and it would not serve the goal of treating

public employees like ‘any member of the general public’ . . . to hold that all speech within the

office is automatically exposed to restriction.” Garcetti, 547 U.S. at 420–21 (quoting Pickering,

391 U.S. at 573). Thus, the Court rejects Driscoll’s contention that Woolslayer’s speech must have

been as an employee and not as a citizen simply because it was made using his work account and

addressed solely to other IUP employees.

In order to determine if Woolslayer engaged in protected activity, that is, spoke as a citizen,

the relevant inquiry is whether “the speech at issue is itself ordinarily within the scope of

[Woolslayer’s] duties . . . ” Lane v. Franks, 573 U.S. 228, 240 (2014). This “practical” inquiry,

Garcetti, 547 U.S. at 424, focuses on whether Woolslayer’s speech was “part of the work [he] was

paid to perform on an ordinary basis.” De Ritis v. McGarrigle, 861 F.3d 444, 454 (3d Cir. 2017)

(quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 180 (3d Cir. 2015)).

Woolslayer asserts in his Complaint that the Director of Facilities Operations is responsible

for the physical maintenance and operation of IUP facilities. (Compl. ¶¶ 7, 8.) He also alleges that

the duties of this position do not include the power to speak in the name of any IUP policy maker,

nor is the Director of Facilities Operations involved in matters concerning the scope and nature of

IUP functions or education policies. (Id. ¶¶ 9, 10, 11.) Accepting these allegations as true and

construing the Complaint in the light most favorable to Woolslayer, his duties did not encompass

alerting IUP employees of a colleague’s exposure to a highly contagious disease and advising them

to seek medical advice. Because the speech at issue was not part of the work he was paid to perform

on an ordinary basis, the Court concludes that the Complaint adequately alleges that Woolslayer

spoke as a citizen.

2. Woolslayer’s speech involved a matter of public concern

Next, Driscoll argues that Woolslayer’s speech did not involve a matter of public concern.

According to Driscoll, the health status of a colleague’s spouse and the colleague’s subsequent

self-quarantine is not a matter of public concern unless that colleague had exposed other employees

to infection. Because there is no reference in Woolslayer’s email of such secondary exposure,

Driscoll maintains that the speech at issue fails to rise to the level of a public concern.

A matter is of public concern for First Amendment purposes if it “can be fairly considered

as relating to any matter of political, social or other concern to the community.” Starnes v. Butler

Cty. Court of Common Pleas, 50th Judicial Dist., 971 F.3d 416, 429 (3d Cir. 2020) (quoting Hill

v. Borough of Kutztown, 455 F.3d 225, 242–43 n.25 (3d Cir. 2006)). Whether an employee’s

speech addresses a matter of public concern “turns on the ‘content, form, and context’ of the

speech.” Lane, 573 U.S. at 241 (quoting Connick v. Myers, 461 U.S. 138, 147–48 (1983)).

Both the content and the context of Woolslayer’s email suggest that he was speaking on a

matter of public concern. The content of Woolslayer’s email, in which he alerted IUP employees

that a colleague had been exposed to a highly contagious disease and urged them to take

precautions to protect themselves, reasonably leads to the conclusion that he was speaking on a

matter of significant public concern. The public import of Woolslayer’s email is underscored by

its context: it was sent at a time when COVID-19 had caused a statewide public health emergency

and had been declared a pandemic. This context bolsters the conclusion that Woolslayer spoke on

a matter of public concern, that being the health and safety of not only the IUP community, but

also those beyond the immediate community.

Woolslayer has sufficiently pleaded that he spoke as a citizen on a matter of public concern.

Therefore, based upon the allegations of the Complaint, Woolslayer engaged in constitutionally

protected conduct.

B. Is Woolslayer’s official capacity claim barred by the Eleventh Amendment?

Driscoll also seeks dismissal of Woolslayer’s official capacity claim against him based

upon Eleventh Amendment immunity.

The Eleventh Amendment “has been interpreted by the Supreme Court to shield States and

certain State-affiliated entities from suits for damages in federal court.” Allen v. New Jersey State

Police, No. 19-3138, 2020 WL 5405373, at *5 (3d Cir. Sept. 9, 2020) (quoting Bradley v. W.

Chester Univ. of Pa. State Sys. Of Higher Educ., 880 F.3d 643, 654 (3d Cir. 2018)). Individual

state employees sued in their official capacity are also entitled to Eleventh Amendment immunity

because “official capacity suits generally represent only another way of pleading an action against

the state.” Betts v. New Castle Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010) (citing Lombardo v.

PA. Dept. of Pub. Welfare, 540 F.3d 190, 194 (3d Cir.2008)).

The Third Circuit has held that the PASSHE and its universities, such as IUP, are entitled

to Eleventh Amendment immunity. Bradley, 880 F.3d at 660. For that reason, IUP’s employees,

like Driscoll, share in the Commonwealth’s Eleventh Amendment immunity if they are sued in

their official capacities. That does not end the Court’s analysis, however, because Woolslayer

asserts that he has brought a claim against Driscoll in his official capacity pursuant to Ex parte

Young, 209 U.S. 123, 159 (1908) and its progeny, and is seeking reinstatement and other

declaratory and injunctive relief. (Compl. ¶ 4.)

The doctrine of Ex parte Young provides a narrow but well-established exception to

Eleventh Amendment immunity in lawsuits seeking prospective injunctive relief. This doctrine

“rests on the premise . . . that when a federal court commands a state official to do nothing more

than refrain from violating federal law, he is not the State for sovereign-immunity purposes.”

Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011). The Supreme Court

has held that “[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh

Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the]

complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.” Virginia Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011) (quoting

Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland, 535 U.S. 635, 645 (2002)).

Woolslayer’s Complaint satisfies that straightforward inquiry.

The Third Circuit Court of Appeals has explained that “[w]hen the relief sought is

prospective injunctive relief, the request ‘is ordinarily sufficient to invoke’ the [doctrine of Ex

parte Young] . . .” Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 179 (3d Cir. 2002)

(quoting Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 281 (1997)). Here, as a review of the

Complaint demonstrates, Woolslayer seeks reinstatement and other declaratory and injunctive

relief” against Driscoll in his official capacity. (Compl. ¶ 4.) A “claim for reinstatement . . . is the

type of injunctive, ‘forward-looking’ relief cognizable under Ex parte Young.” Koslow, 302 F.3d

at 179; see also Melo v. Hafer, 912 F.2d 628, 635–36 (3d Cir. 1990) (holding that the district court

erred insofar as it dismissed the plaintiffs’ claim for reinstatement). Therefore, the Complaint

sufficiently states a claim against Driscoll in his official capacity under the doctrine of Ex parte

Young.

Relying on the Supreme Court’s decision in Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 114 (2002), Driscoll argues that the doctrine of Ex parte Young in inapplicable because

termination from employment is discrete and complete event for which injunctive relief is not an

appropriate remedy. The Court disagrees. Woolslayer’s “alleged wrongful discharge is a

continuing violation; as long as [Driscoll] keeps him out of . . . [the Director’s] position . . .

[Driscoll] acts in what is claimed to be derogation of [Woolslayer’s] constitutional rights.” Elliott

v. Hinds, 786 F.2d 298, 302 (7th Cir. 1986). Put another way, the harm arising from an

unconstitutional discharge is ongoing, even if the discharge itself is discrete.

Accepting the allegations of the Complaint as true, the harm caused by Woolslayer’s

unconstitutional termination is ongoing and the equitable relief he seeks from Driscoll in his

official capacity is prospective. Therefore, Woolslayer’s official capacity claim against Driscoll is

not barred by the Eleventh Amendment under the doctrine of Ex parte Young.

V. Conclusion

For the reasons set forth above, Driscoll’s motion to dismiss the Complaint will be denied.

An appropriate order will follow.

BY THE COURT:

s/ Patricia L Dodge

PATRICIA L. DODGE

United States Magistrate Judge

Date: October 8, 2020