# LITMAN v. THE SCHOOL DISTRICT OF PHILADELPHIA

> District Court, E.D. Pennsylvania · July 10, 2024

URL: https://www.frixlaw.com/law-library/cases/10666794

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** July 10, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BENJAMIN LITMAN : CIVIL ACTION
:
v. :
:
THE SCHOOL DISTRICT OF :
PHILADELPHIA, PHILADELPHIA :
FEDERATION OF TEACHERS, TONY B. :
WATLINGTON, SR., KARYN LYNCH, :
LETICIA EGEA-HINTON, ARLENE :
KEMPIN, BURNETT COKE, LIZETTE :
EGEA-HINTON, ERICKA WASHINGTON, :
DEBORAH MOORE, JUSTIN THOMAS, :
COLLEEN LANDY-THOMAS, COLLEEN :
MCINTYRE OSBORNE, MICHELLE :
CHAPMAN, KRISTEN JUNOD, JEREMY :
GRANT-SKINNER, DR. KAREN KOLSKY, :
SHEILA WALLIN and JAY MUCHEMI : NO. 24-278

MEMORANDUM OPINION

Savage, J. July 10, 2024
This action arises out of the suspension and termination of plaintiff Benjamin
Litman’s employment with the School District of Philadelphia (SDP). Litman alleges that
the defendants failed to accommodate his autism spectrum disorder and learning
disabilities, retaliated against him for investigating potential ethical violations at SDP, and
conducted disciplinary proceedings in a way that was defamatory and noncompliant with
the procedures set forth in the Collective Bargaining Agreement (CBA) between SDP and
the Philadelphia Federation of Teachers (PFT). He names as defendants the SDP and
fourteen SDP employees (“SDP defendants”); the PFT and its Vice President Arlene
Kempin (“PFT defendants”); and Dr. Karen Kolsky and Sheila Wallin who were involved
in his disciplinary proceedings (“Hearing defendants”).
The voluminous Amended Complaint has seven counts. The sole apparent federal
claim is for violation of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §
12112. Although Litman references several federal statutes, he does not link them to any
factual allegations to make out federal causes of actions other than one under the ADA.
Some claims may have been intended as federal claims. Others are clearly state law

claims.
The Amended Complaint, consisting of 280 paragraphs, lumps all defendants
together. Yet, only some or none are implicated in the acts or omissions that relate to
each of the asserted causes of action.
Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). After reviewing each count as it applies to each defendant, we
shall grant the motions in part and deny them in part.
Because Litman did not exhaust his administrative remedies, we shall dismiss his
ADA claim against all defendants. We shall dismiss the wrongful termination claim
because he cannot bring such a claim as a union employee subject to a CBA. We shall

dismiss his claims for breach of contract and breach of duty of fair representation because
federal labor law does not apply to public employers. We shall dismiss the whistleblower
retaliation claim against the Hearing defendants and the PFT defendants because they
were not his employers. We shall dismiss the defamation cause of action for failure to
state a cause of action.
We decline to exercise supplemental jurisdiction over Litman’s remaining state law
claim for whistleblower retaliation against the SDP defendants. Thus, we shall remand
to the Philadelphia Court of Common Pleas.
Plaintiff’s Amended Complaint
The facts are recited from the Amended Complaint. As we must at this stage, we
accept the facts as true and draw all reasonable inferences from them in Litman’s favor.
Litman has autism spectrum disorder, ADD, ADHD, oppositional defiant disorder,
and an auditory processing disorder.1 As a result, he has learning disabilities and

difficulties with communication and social interactions.2
On September 14, 2020, SDP hired Litman as a Placement Specialist in the Office
of Student Enrollment and Placement (OSEP).3 He is a member of the PFT union, which
has a CBA with SDP.4
In spring of 2022, when OSEP changed its student enrollment and placement
procedures, it did not provide employees written instructions.5 On several occasions,
Litman requested written instructions in order to accommodate his auditory processing
disorder.6 He alleges that SDP refused his requests without explanation.7 He then asked
for a transfer, which he did not receive.8

During his employment, Litman investigated and reported practices at SDP he
considered corrupt, including patronage hiring, placement of students based on staff’s

1 Am. Civil Action Compl. ¶¶ 9, 249, ECF No. 19 [“Am. Compl.”].
2 Id. ¶¶ 9, 11, 249.
3 Id. ¶¶ 10, 60.
4 Id. ¶¶ 10, 12, 15.
5 Id. ¶ 63.
6 Id. ¶¶ 64, 69, 72, 159.
7 Id. ¶ 64.
8 Id. ¶¶ 22, 50, 97, 151.
personal interests, staff members maintaining outside employment in conflict with their
SDP duties, and replacing union employees with non-union employees.9
Litman contacted the Office of Inspector General to report misconduct by
defendants Ericka Washington, Lizette Egea-Hinton, Justin Thomas, and Deborah
Moore.10 On January 17, 2023, his counsel submitted a Right to Know request for

documents relating to training, outside employment, and reports of SDP employees
accepting gifts or money from parents of children seeking placement.11
On January 19, 2023, defendant Lizette Egea-Hinton, Litman’s immediate
supervisor, initiated disciplinary proceedings against him.12 According to Litman, Egea-
Hinton falsely accused him of placing students “at risk,” posing a “danger to the public,”
and causing “undue hardships.”13 On April 26, 2023, SDP issued an Investigative Report
addressing Litman’s disciplinary issues.14 SDP then removed Litman’s access to the

9 Id. ¶¶ 4, 17, 66–68, 129.
10 Id. ¶¶ 79, 81.
11 Id. ¶ 82. There were three items in attorney Donald Litman’s request. SDP provided documents
in response to Item 2 and directed Litman to online reports in response to Item 3. SDP stated that it had
no records responsive to Item 1 seeking “all records referring and relating to applications of district
employees assigned to the Office of Student Enrollment and Placement to be permitted to engage in outside
employment.” SDP’s Resp. to Donald Litman’s Right to Know Request (attached as Ex. A to Am. Compl.,
ECF No. 19).
Litman appealed SDP’s Response. In opposing the appeal, SDP clarified that it does not require
employees to seek approval for outside employment and that prohibitions on outside employment by School
Board members and certain city officials do not apply to OSEP employees. Id. The Pennsylvania Office
of Open Records denied Litman’s appeal. See Final Determination, Pa. Office of Open Records, Donald
Litman and Autism, LTD v. Philadelphia School District, Docket No. AP 2023-0462.
12 Am. Compl. ¶¶ 30, 83.
13 Id. ¶¶ 93–94.
14 Id. ¶¶ 91–93.
Student Information System and limited his job duties to customer service tickets.15
Disciplinary hearings were conducted on May 22, July 19, and August 21, 2023.16
Litman was represented by PFT Vice President Arlene Kempin.17 The hearings were
conducted by defendants Dr. Karen Kolsky and Sheila Wallin, employees of Foundations,
Inc., which contracts with SDP to provide temporary support staff.18

Litman claims the hearings were procedurally deficient and did not comply with the
CBA.19 He complains that defendants failed to substantiate their disciplinary charges with
evidence, issued defective hearing notices and ignored his documents.20 On August 29,
2023, the hearing officer, defendant Kolsky, recommended that Litman’s employment be
terminated.21 Litman was suspended without pay, pending a formal termination
hearing.22 At the time he filed his Amended Complaint, his employment had not been
formally terminated.23
Litman alleges he discussed his employment and suspension with state legislators,

15 Id. ¶¶ 93–94.
16 Id. ¶¶ 104, 108, 136–37, 140, 142, 146, 151, 160.
17 Id. ¶ 26.
18 Id. ¶¶ 48–51; Defs. Dr. Karen Kolsky’s and Sheila Wallin’s Motion to Dismiss Pl’s. Am. Compl.
3, ECF No. 21 [“Hearing Defs.’ Br.”].
19 Am. Compl. ¶¶ 136–38, 146, 151, 153, 156.
20 Id. ¶¶ 85, 104, 108, 136–38, 151, 153, 156, 160.
21 Id. ¶¶ 48, 167.
22 Id. ¶¶ 167, 190.
23 Id. ¶ 202. SDP later terminated Litman’s employment on February 29, 2024. Mem. of L. in Supp.
of Mot. to Dismiss the Am. Compl. by the SDP Defs. 6, ECF No. 22 [“SDP Defs.’ Br.”]; Pls.’ Reply to Def.
School District of Phila. and Associated Defs. Mot. to Dismiss 22, ECF No. 25.
who “referred [him] to various local, state and federal agencies.”24 On July 23, 2023, he
“submitted a complaint regarding” the denial of his reasonable accommodation request
to the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment
Opportunity Commission (EEOC).25 He avers that on August 23, 2023, he “submitted” a

complaint to the EEOC by e-mail, titled “Ben Litman’s First Response to Hearing on
8/21/23.”26 He does not describe the subject or contents of the document. He alleges
that “no action was taken” in response to his email.27 He claims that the EEOC, PHRC,
Pennsylvania Office of Attorney General, U.S. Department of Justice, and the
Pennsylvania Governor either “declined jurisdiction or failed to reply” to his complaints.28
Litman initiated this action in the Philadelphia Court of Common Pleas.
Defendants removed it based on federal question jurisdiction.29 After the defendants
moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6),

24 Am. Compl. ¶¶ 57–58.
25 Id. ¶ 141.
26 Id. ¶ 164.
27 Id.
28 Id. ¶ 58.
29 Joint Notice of Removal of Civil Action by all Defs., ECF No. 1.
Litman filed an Amended Complaint.30 Defendants moved to dismiss the Amended
Complaint, renewing the arguments set forth in their motions to dismiss the original
Complaint.31 Defendants argue that Litman’s amendments fail to cure the deficiencies in
his original Complaint.

Standard of Review
To survive a Rule 12(b)(6) motion, “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 is plausible “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).
A conclusory recitation of the elements of a cause of action is not sufficient.
Oakwood Lab'ys LLC v. Thanoo, 999 F.3d 892, 904 (3d Cir. 2021). The plaintiff must
allege facts necessary to make out each element. Id. (citations omitted). We disregard

mere recitals of the elements of a cause of action, legal conclusions, and conclusory
statements. Id. (citing James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)).

30 Litman has filed several documents titled “Amended Civil Action Complaint.” Each of them
appears on the docket as a response in opposition to defendants’ motions to dismiss. On February 16,
2024, Litman attached the first Amended Complaint to his responses to defendants’ motions to dismiss the
original complaint. See ECF Nos. 14, 15. During a pretrial conference held on February 20, 2024, we
instructed counsel to file a redlined version of the February 16 Amended Complaint. On February 21, 2024,
Litman filed another Amended Complaint, which was not redlined and differed from the February 16
Amended Complaint. See ECF No. 19. The next day, Litman filed a redlined version of the February 21
Amended Complaint. See ECF No. 20.
Defendants argue that Litman did not have leave to file the February 21 and February 22 Amended
Complaints, but addressed the February 21 Amended Complaint for purposes of argument. We treat the
Amended Complaint filed on February 21, 2024 as the operative complaint. See ECF No. 19.
31 Hearing Defs.’ Br. 1; SDP Defs.’ Br. 1; Defs. Phila. Federation of Teachers and Arlene Kempin’s
Mem. of L. in Supp. of Mot. to Dismiss Pl.’s Am. Compl. 1, ECF No. 23.
The complaint must contain facts which support a conclusion that a cause of action can
be established.
In considering a motion to dismiss under Rule 12(b)(6), we first separate the factual
and legal elements of a claim. Id. (citation omitted). Accepting the well-pleaded facts as

true and disregarding legal conclusions, we determine whether the alleged facts make
out a plausible claim for relief. Id. (citing Iqbal, 556 U.S. at 679).
All well-pleaded allegations in the complaint are accepted as true and interpreted
in the light most favorable to the plaintiff, drawing all inferences in the plaintiff’s favor. See
McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (quoting Schrob v. Catterson,
948 F.2d 1402, 1408 (3d Cir. 1991)).
Analysis
The sole federal claim articulated in the Amended Complaint in Count II is for
violation of the ADA for failure to accommodate Litman’s learning disabilities by providing
him written instructions for new student placement procedures. In Count IV of the

Amended Complaint, titled “denial of civil rights,” Litman mixes ADA and breach of
contract claims. He states defendants “breached” the CBA and deprived him of his rights
as a protected full-time employee under the CBA.32 This is redundant of his breach of
contract claim, which is also based on the alleged breach of the CBA in Count VI.33 Count
IV again claims defendants deprived him of his right to reasonable accommodations
under the ADA.34 This is the same basis for the ADA claim in Count II. Litman cites no

32 Am. Compl. ¶¶ 245–46, 248.
33 See id. ¶¶ 267–68.
34 Id. ¶ 249.
other statutory or constitutional basis for his “denial of civil rights” claim. Therefore, we
treat Count IV as duplicative of the ADA and breach of contract claims.
In his introductory statement, Litman references a number of federal statutes and
constitutional provisions. He purports to bring his action pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e; the Equal Protection Clause of the Fourteenth
Amendment; the Rehabilitation Act; 42 U.S.C. § 12203; and the National Labor Relations
Act (NLRA), 29 U.S.C. §§ 151–69.35 He mentions Title VII, the Fourteenth Amendment,
and the Rehabilitation Act in one sentence. He does not allege any facts making out a
cause of action under any of these provisions. The only federal cause of action he
supports with facts is his ADA claim.
ADA Claim
Before filing an action for employment discrimination under the ADA, the plaintiff
must exhaust all administrative remedies. Simko v. United States Steel Corp, 992 F.3d
198, 204 (3d Cir. 2021). To exhaust, a plaintiff must file a charge of discrimination with

the EEOC and receive a right-to-sue letter. Id. at 206; Mandel v. M & Q Packaging Corp.,
706 F.3d 157, 163 (3d Cir. 2013) (citing Robinson v. Dalton, 107 F.3d 1018, 1020–21 (3d
Cir.1997)). A right-to-sue letter evidences that the plaintiff has exhausted his
administrative remedies. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d
465, 470 (3d Cir. 2001). In short, a plaintiff may not bring an ADA claim unless he has
received a right-to-sue letter. Id.; Simko, 992 F.3d at 206.
A failure to exhaust administrative remedies is an affirmative defense. Williams v.
Runyon, 130 F.3d 568, 573 (3d Cir. 1997). Nonetheless, a cause of action may be

35 Id. ¶ 7.
dismissed under Rule 12(b)(6) for failure to exhaust when it is clear that the plaintiff did
not exhaust his administrative remedies. See id.; Robinson, 107 F.3d at 1022.
The defendant cannot rely on the plaintiff’s failure to plead exhaustion in his
complaint. The defendant must affirmatively aver that plaintiff did not exhaust, shifting

the burden to the plaintiff to show that he received a right-to-sue letter. If plaintiff does
not rebut the defendant’s assertion that he did not exhaust, his ADA claim must be
dismissed for failure to exhaust administrative remedies. See Hickman v. Amazon
Fullfilment, 662 F. App'x 176, 178–79 (3d Cir. 2016); Itiowe v. NBC Universal Inc., 556 F.
App'x 126, 128 (3d Cir. 2014).
Litman’s failure to exhaust is apparent on the face of his Amended Complaint. His
own allegations establish that the EEOC did not issue a right-to-sue letter. He specifically
alleges that after he submitted a complaint to the EEOC, “no action was taken to [his]
knowledge.”36 Litman avers that the “various local, state and federal agencies,” including
the EEOC, either “declined jurisdiction or failed to reply” to his complaints.37 Therefore,

because Litman’s failure to exhaust his administrative remedies is undisputed, we shall
dismiss Count II.38
Breach of Contract and Breach of Duty of Fair Representation
In Count VI asserting a breach of contract claim, Litman alleges that his firing
violated the CBA. Because the SDP defendants employed and fired Litman, we construe
this as a claim for breach of the CBA against the SDP defendants.

36 Id. ¶ 164.
37 Id. ¶ 58.
38 Because Litman’s “denial of civil rights” claim is duplicative of his ADA claim, the same analysis
and result with respect to exhaustion of administrative remedies applies to Count IV.
In Count VII, labeled fraud, Litman alleges that in return for his paying union dues,
the PFT promised to provide him competent representation in disciplinary proceedings.39
Despite this promise, he alleges, the PFT defendants failed to represent him competently
throughout his disciplinary proceedings.40 Hence, we shall treat Count VII as a claim for

breach of the duty of fair representation against the PFT defendants.
In his breach of contract claim, Litman cites the NLRA. He alleges that defendants
“jointly and individually” violated the NLRA.41 Litman does not specify which provision of
the NLRA the defendants violated. Nor does he describe protected union activity.
Under the NLRA, a union may be liable for breaching its duty of fair representation
of a union member. Bensel v. Allied Pilots Ass'n, 387 F.3d 298, 312 (3d Cir. 2004); Ford
Motor Co. v. Huffman, 345 U.S. 330, 336–37 (1953) (citing 29 U.S.C. §§ 157, 159). An
employee may also bring a claim against his employer under section 301(a) of the Labor
Management Relations Act for breaching a CBA. Felice v. Sever, 985 F.2d 1221, 1226
(3d Cir. 1993); 29 U.S.C. § 185(a). When an employee brings these claims together, it is

considered a “hybrid” suit. Felice, 985 F.2d at 1226.
The two claims are “inextricably interdependent.” DelCostello v. Int'l Bhd. of
Teamsters, 462 U.S. 151, 164 (1983). When the employer in a hybrid suit is exempt from
the NLRA, there is no basis for federal subject matter jurisdiction over the breach of
contract claim against the employer and the breach of duty of fair representation against
the union. Felice, 985 F.2d at 1227; Manfredi v. Hazleton City Auth., 793 F.2d 101, 102,

39 Am. Compl. ¶ 274.
40 Id. ¶¶ 26–27, 153, 156, 279.
41 Id. ¶ 271.
104 n. 5 (3d Cir. 1986); Lopresti v. County of Lehigh, 572 F. App’x 133 (2014).
The SDP and PFT defendants argue that the NLRA does not apply to Litman’s
claim because SDP is exempt from the NLRA.42 We agree.
Public sector employers are not subject to the NLRA. In defining “employer,” the

NLRA excludes “the United States . . . or any State or political subdivision thereof.” 29
U.S.C. § 152(3). Public employers are subject to state labor law. Here, the Pennsylvania
Public Employers Act (“PERA”), 43 P.S. §§ 1101.101 et seq., applies. “Public employers”
include “the Commonwealth of Pennsylvania, [and] its political subdivisions including
school districts.” 43 P.S. § 1101.301(1).
Because SDP is a political subdivision of Pennsylvania, the NLRA does not apply
to Litman’s claims for breach of the CBA and breach of the duty of fair representation.
These claims are governed by Pennsylvania law. See Manfredi v. Hazleton City Auth.,
793 F.2d 101, 102, 104 n. 5 (3d Cir. 1986); Lopresti, 572 F. App’x 133. Therefore, we
shall dismiss Counts VI and VII.

Whistleblower Claim
The Pennsylvania Whistleblower Law prohibits publicly funded employers from
discharging, threatening, discriminating or retaliating against an employee regarding the
terms of his employment for reporting wrongdoing or waste. 43 P.S. § 1423(a); Harrison
v. Health Network Lab'ys Ltd. Partnerships, 232 A.3d 674, 677 (Pa. 2020). Only an
employer can be liable under the Pennsylvania Whistleblower Law. See Bradley v. W.
Chester Univ., 278 A.3d 402 (Pa. Commw. Ct. 2022), aff'd, 294 A.3d 303 (Pa. 2023)

42 Defs. Phila. Federation of Teachers and Arlene Kempin’s Reply in Supp. of Union Defs.’ Mot. to
Dismiss Pl.’s Am. Compl. 2, ECF No. 28; Reply Br. in Supp. of Mot. to Dismiss the Am. Compl. by the SDP
Defs. n. 1, ECF No. 29.
(dismissing whistleblower claim where there was no employment relationship between
plaintiff and defendant at the time of the alleged retaliation).
The statutory definition of “employer” includes a “public body” and any “individual”
who “receives money from a public body to perform work or provide services relative to

the performance of work for or the provision of services to a public body.” 43 P.S. § 1422.
A “public body” includes any body which is created or funded by the Commonwealth or
political subdivision authority and “employee[s] of that body.” Id. In short, both public
employers and their employees may be subject to liability under the Pennsylvania
Whistleblower law. Brennan v. City of Philadelphia, No. CV 18-1417, 2018 WL 4566134,
at *7 (E.D. Pa. Sept. 21, 2018) (“[I]ndividuals are included in the definition of ‘employer’
under the Pennsylvania Whistleblower Law.”); Bines v. Williams, No. CV 17-4527, 2018
WL 4094957, at *4 (E.D. Pa. Aug. 27, 2018); see also Bailets v. Pennsylvania Tpk.
Comm'n, 123 A.3d 300, 309 (Pa. 2015).
Under the Pennsylvania Whistleblower Law, SDP and the individual SDP

defendants qualify as Litman’s “employers.” The Hearing defendants and the PFT
defendants were not his employers. They are not proper defendants under the
Pennsylvania Whistleblower Law. We shall dismiss Count I as to the Hearing defendants
and the PFT defendants.
Wrongful Termination
Count V asserts a wrongful termination claim. Unlike an at-will employee, a union-
represented employee must contest his dismissal through the CBA’s grievance
procedure. Ciferni v. Day & Zimmerman, Inc., 529 F. App'x 199, 204 (3d Cir. 2013);
Coppola v. Jneso-Pocono Med. Ctr., 400 F. App'x 683, 684 (3d Cir. 2010). Union
employees covered by a CBA cannot assert a common law claim for wrongful termination.
Ciferni, 529 F. App'x at 203 (citing Phillips v. Babcock & Wilcox, 503 A.2d 36, 37–38 (Pa.
Super. Ct. 1986)); Harper v. Am. Red Cross Blood Servs., 153 F. Supp. 2d 719, 721 (E.D.
Pa. 2001).

Litman’s recourse for his suspension and termination is the grievance process
provided in the CBA. He cannot pursue a wrongful termination claim. Therefore, Count
V is dismissed.
Defamation
To state a claim for defamation, a plaintiff must allege the defendant made a
defamatory statement about the plaintiff and published it to a third-party who understood
it to be defamatory. Bennett v. Itochu Int’l, Inc., 682 F. Supp. 2d 469, 476 (E.D. Pa. 2010)
(citing Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir. 2001) (applying Pennsylvania
law)); see also 42 Pa. Cons. Stat. § 8343; Bell v. Mayview State Hosp., 853 A.2d 1058,
1061 (Pa. Super. Ct. 2004) (quoting Brown v. Blaine, 833 A.2d 1166, 1173 n.14 (Pa.

Commw. Ct. 2003)). The plaintiff must also allege an injury. Bell, 853 A.2d at 1061
(quoting Brown, 833 A.2d at 1173 n.14). Whether a statement is defamatory is a question
of law for the court. Bell, 853 A.2d at 1061–62 (quoting Feldman v. Lafayette Green
Condo. Ass’n, 806 A.2d 497, 500 (Pa. Commw. Ct. 2002)).
Litman does not allege any false or defamatory statements by Tony B. Watlington
Sr., Leticia Egea-Hinton, Burnett Coke, or Jay Muchemi.43 He alleges that the remaining
individual defendants “disseminated misinformation” about his professionalism,

43 See Am. Compl. ¶¶ 16–18, 24–25, 28–29. Litman does not allege any defamation by Watlington,
Sr., Leticia Egea-Hinton, or Coke. He alleges that defendant Jay Muchemi “made defamatory statements”
about him, but does not describe the contents of these statements. Id. ¶ 52.
character, and work productivity.44 He claims that defendants Lizette Egea-Hinton, Ericka
Washington, and Deborah Moore falsely accused him of racism and that Washington and
Egea-Hinton accused him of being “anti-women.”45 Litman further alleges that Lizette
Egea-Hinton called him a “danger to the public” and accused him of placing students at
risk.46

All defendants argue that Litman fails to state a cause of action for defamation.
They argue Litman has failed to adequately plead the content and defamatory character
of defendants’ statements, how and to whom the statements were published, and the
injury resulting from the alleged defamation.47
Litman has not identified any third parties to whom defendants made the alleged
defamatory statements. See Jaindl v. Mohr, 637 A.2d 1353, 1358 (Pa. Super. Ct. 1994),
aff'd, 661 A.2d 1362 (Pa. 1995) (“A complaint for defamation must, on its face, identify
exactly to whom the allegedly defamatory statements were made.”). Nor does he allege
whether the recipients of the alleged statements understood them to have a defamatory

meaning. He provides no details as to the manner of the alleged publication.
In short, Litman has not specified when, how, and to whom those allegedly
defamatory statements were made. See Smith v. Sch. Dist. of Phila., 112 F. Supp. 2d
417, 7429 (E.D. Pa. 2000); Moore v. Lower Frederick Township, 2022 WL 657068, at *8

44 Id. ¶¶ 23, 27, 31, 33, 35, 37, 39, 41, 43, 45, 47, 49, 51.
45 Id. ¶¶ 31, 33, 35.
46 Id. ¶¶ 93, 31.
47 Hearing Defs.’ Br. 5; Defs. Dr. Karen Kolsky’s and Sheila Wallin’s Mot. to Dismiss Pl.’s Compl.
9–12, ECF No. 6; SDP Defs.’ Br. 14–16; Mot. to Dismiss by the Phila. Federation of Teachers and Arlene
Kempin 13–16, ECF No. 9.
(E.D. Pa. March 4, 2022) (dismissing defamation claim where plaintiff failed to sufficiently
allege the “content of the statement, the nature of the publication, or the identity of the
recipient”). Lacking specificity, Count III must be dismissed.48
Remaining State Law Claims

Having dismissed Counts II, III, IV, V, VI, and VII against all defendants and Count
I against the Hearing defendants and the PFT defendants, Litman’s remaining claim is for
whistleblower retaliation against the SDP defendants, which arises under Pennsylvania
law.
“Where the claim over which the district court has original jurisdiction is dismissed
before trial, the district court must decline to decide the pendent state claims unless
considerations of judicial economy, convenience, and fairness to the parties provide an
affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)
(quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)); 28 U.S.C.
§ 1367(c)(3). The decision to exercise or decline supplemental jurisdiction is within the

district court’s discretion. Hedges, 204 F.3d at 123.
A federal court may, in its discretion, exercise supplemental jurisdiction over some
state law claims and decline to exercise supplemental jurisdiction over others. Figueroa
v. Buccaneer Hotel Inc., 188 F.3d 172, 182 (3d Cir. 1999); see also Chester Upland Sch.
Dist. v. Pennsylvania, 861 F. Supp. 2d 492, 520 (E.D. Pa. 2012) (declining to exercise
supplemental jurisdiction over all state law claims but retaining jurisdiction over one claim

48 Because we dismiss the defamation count for failure to state a claim, we do not reach the SDP
defendants’ argument that they are immune pursuant to the Pennsylvania Political Subdivision Tort Claims
Act or the PFT and Hearing defendants’ argument that the alleged statements are protected by conditional
privilege.
involving “relatively simple Pennsylvania contract law”).
We have exercised supplemental jurisdiction over the state law claims for breach
of contract, breach of the duty of fair representation, defamation, wrongful termination,
and whistleblower retaliation against the Hearing defendants and PFT defendants in the

interest of judicial economy and fairness to the parties.
The disposition of the whistleblower retaliation claim against the SDP defendants
requires an analysis that the state court is better suited to conduct. Because it requires
application of Pennsylvania law, we decline to exercise supplemental jurisdiction over the
whistleblower retaliation claim against the SDP defendants.
Conclusion
For the reasons stated, all claims against the PFT, Arlene Kempin, Dr. Karen
Kolsky, and Sheila Wallin will be dismissed. All claims, except for whistleblower
retaliation against the SDP defendants, will be dismissed. We shall decline to exercise
supplemental jurisdiction over the retaliation claim against the SDP defendants and

remand this case to the state court.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666794. Public record. Not legal advice.