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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROY CRAMER, :

:

Plaintiff : Civil No. 4: 05-CV-0706

:

v. :

: Judge McClure

SNOW SHOE TOWNSHIP, :

:

Defendant :

O R D E R

August 16, 2005

BACKGROUND:

On April 7, 2005, plaintiff Roy Cramer, initiated this civil action by filing a

two-count complaint against defendant Snow Shoe Township (“Township”). The

complaint alleges that defendant violated his First Amendment freedom of speech

and committed a breach of contract when the Township terminated plaintiff’s

employment. Plaintiff asserts that his termination was in retaliation for his

acquisition of an attorney and his counter-proposal to obtain retroactive

participation in the municipality’s pension plan.

On June 6, 2005, defendant filed a motion to dismiss plaintiff’s complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). The matter is now fully ripe

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for our review. For the following reasons we will dismiss plaintiff’s First

Amendment/Retaliation claim (Count I), and dismiss the remaining contract claim

(Count II) for lack of subject matter jurisdiction.

DISCUSSION:

I. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must view all allegations stated in the complaint as true and

construe all inferences in the light most favorable to plaintiff. Hishon v. King &

Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.

1993). In ruling on a motion to dismiss the court primarily considers the allegations

of the pleading, but is not required to consider legal conclusions alleged in the

complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court

considers whether plaintiff is entitled to offer evidence to support the allegations in

the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint

should be dismissed only if the court, from evaluating the allegations in the

complaint, is certain that under any set of facts relief cannot be granted. Conley v.

Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132

F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100,

103 (3d Cir. 1994).

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The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

II. Statement of Relevant Facts

In 1998 plaintiff was hired as a laborer/operator for Snow Shoe Township. 

He worked as a full-time employee until his employment was terminated in

September of 2003. In the summer of 2003 the Township realized that it had failed

to notify plaintiff of his right to participate in the municipality’s pension plan. The

Township had failed to make payments into a pension for Cramer. According to

the complaint, these payments were due beginning in 1999. By letter dated July 30,

2003, the Township wrote Cramer providing three options to address its failure. 

(Compl., Rec. Doc. No. 1, Ex. A.)

On August 20, 2003, plaintiff, through an attorney, advanced a counterproposal for his retroactive participation in the pension plan. That counter

proposal read as follows:

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Please be advised that the undersigned represents Ray

Cramer, a Snow Shoe Township employee. Mr. Cramer

has informed me that he reached full-time status with

Snow Shoe Township on January 1, 2000 and became

eligible to participate in the Township’s Pension Plan at

that time. The Township never informed him of his

eligibility at that time and therefore never made the

appropriate deductions from his paycheck for pension

contributions.

Mr. Cramer recently forwarded me a letter from

you to him dated July 20, 2003 giving him three options

with respect to his pension. Option 3 would permit him

to participate in the pension plan effective January 1,

2000, but would require him to make a one-time payment

in the amount of $2,714.68 to the Trustees Insurance

Fund no later than September 3, 2003.

I have discussed this matter with Mr. Cramer. He

believes that since it was the Township’s fault that he did

not participate in the Township Pension Plan at his initial

eligibility date, and since he is not a wealthy man, then the

Township should make the upfront contribution to the

Plan. He is willing to pay back to Snow Shoe Township

the amount due in 26 monthly payments of $100.00 and

then a final payment representing the balance.

Please let me know if this proposal is acceptable to

the Township.

(Rec. Doc. No. 1, Ex. B.)

Township officials never responded to the counter-proposal and the

Township continues to refuse to pay Cramer retirement benefits. On September 3,

2003, assuming plaintiff’s allegations are true, as we must at this stage of the

litigation, Township officials retaliated against Cramer for making a counterCase 4:05-cv-00706-JFM Document 19 Filed 08/16/05 Page 4 of 10
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proposal by terminating his full-time employment with the Township. Cramer was

then downgraded to part-time employment status with an average of 14 hours of

work per week. In December 2003 the Township ceased giving plaintiff hours. On

January 20, 2004, plaintiff’s employment was officially terminated for an alleged

rule violation. Prior to this and throughout the course of plaintiff’s employment,

the Township had never written up the plaintiff for any type of misconduct or even

issued a warning to him.

Plaintiff attempted to dispute the rule violation and alleged that it was a

pretext to fire him. On February 12, 2004, plaintiff wrote a letter to the Snow Shoe

Township Supervisors inquiring about the rule he violated and the infractions that

he allegedly committed. The Township never responded.

III. Section 1983 Claim Alleging Termination of a Public Employee in

Retaliation for Speaking Out Against Employer or Employer Policy as

Violation of the First Amendment Right to Free Speech

Plaintiff asserts that the defendant municipality, while acting under color of

state law, violated his constitutional right to free speech by wrongfully terminating

his employment with defendant as a form of retaliation for his written proposal to

resolve a dispute over his proposed retroactive participation in his pension plan. 

Plaintiff’s complaint attempts to assert a claim under 42 U.S.C. § 1983 against his

public employer.

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Section 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . 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.

In order for a plaintiff to prevail under 42 U.S.C. § 1983 he must establish two

elements: 1) that the conduct complained of was committed by a person acting

under color of state law; and 2) that the conduct deprived a person of rights,

privileges, or immunities secured by the Constitution or laws of the United States. 

Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993) (citing Parratt v. Taylor, 451

U.S. 527, 534 (1981), overruled in part on other grounds by Daniels v. Williams,

474 U.S. 327 (1986)).

“Public employees have a First Amendment right to speak freely on matters

of public concern.” Curinga v. City of Clairton, 357 F.3d 305, 309 (3d Cir. 2004). 

A public employee, like plaintiff, who asserts a retaliation claim for engaging in his

constitutionally protected First Amendment right to free speech must address three

factors. Baldassare v. New Jersey, 250 F.3d 188, 194 (3d Cir. 2001). First, a

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plaintiff must show that his conduct was constitutionally protected and involved a

matter of public concern. Id. at 195. Second, the plaintiff must show that this

protected activity was a substantial or motivating factor in the alleged retaliatory

action. Id. Third, the defendant can refute the plaintiff’s claims by demonstrating

that it would have taken the same action even in the absence of the protected

conduct. Id. The first factor is a question of law, while the other two factors are

questions of fact. Curinga, 357 F.3d at 310.

Defendant asserts that as to count one of the complaint plaintiff has failed to

allege facts that could demonstrate that plaintiff’s speech involved a matter of

public concern. As the first factor in a First Amendment retaliation claim is a

question of law, it is our duty at this stage to determine whether defendant is

correct. Sunkett v. Misci, 183 F. Supp. 2d 691, 708 (D.N.J. 2002). For the

following reasons we find that plaintiff’s allegation that defendant violated the First

Amendment (Count I) fails as a matter of law.

“A public employee's speech involves a matter of public concern if it can be

fairly considered as relating to any matter of political, social or other concern to the

community.” Brennan v. Norton, 350 F.3d 399, 412 (3d Cir. 2004) (citation and

internal quotation omitted). “Speech may involve a matter of public concern if it

attempts to bring to light actual or potential wrongdoing or breach of public trust

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on the part of government officials.” Id. (internal quotation omitted). Speech that

addresses a private matter may still be considered to involve a public concern, so

long as the matter of the speech addresses a matter that concerns the public as well

as the speaker. Id. 

The Third Circuit has held that “speech disclosing public officials’

misfeasance is protected while speech intended to air personal grievances is not.” 

Swineford v. Snyder County, 15 F.3d 158, 1271 (3d Cir. 1994). The court of

appeals then noted that “the First Amendment does not convert private grievances

into constitutional cases.” Id. at 1274; see also Connick v. Myers, 461 U.S. 138,

143, 147 (1983).

The speech in the instant action addresses only a private grievance, i.e.,

Cramer’s participation in the pension plan. We agree with the defendant that

Cramer was motivated only by his own financial interest related to his participation

in the employer’s pension plan. “If the speech in question is purely personal, it

does not fall under the protective umbrella of the First Amendment and public

employers are therefore not limited by that guarantee in responding to disruption

caused by the expression.” Brennan, 350 F.3d at 412 (citing Connick, 461 U.S.

138).

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Plaintiff has asserted that “plaintiff’s speech was protected because it

directly targeted the Township’s failure to appropriately administer a statutorilydefined municipal pension plan for the benefit of its employees.” (Pl. Br. Opp’n,

Rec. Doc. No. 17, at 8-9.) Plaintiff has also suggested that there was a “systematic

governmental failure” in the administration of the plan, but he has not alleged that

any other employee was impacted by the Township’s failure to notify Cramer of

his opportunity to participate in the pension plan. We find that the August 20, 2003

letter from Cramer’s counsel addresses a purely personal grievance and is not

protected by the First Amendment. Therefore, his First Amendment retaliation

claim (Count One) must fail as a matter of law.

Furthermore, plaintiff cannot recover punitive damages. See City of

Newport News v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (punitive damages

not available against a municipality under § 1983); Barnes v. Gorman, 536 U.S. 181,

187 (2002) (punitive damages generally not available for breach of contract).

The remaining count of the complaint asserts a nebulous breach of contract

claim. Consequently, we will decline to exercise jurisdiction over the remaining

claim pursuant to 28 U.S.C. § 1367(c)(3) and dismiss plaintiff’s complaint.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

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1. Defendant’s motion to dismiss is granted, to the extent of the relief

provided in this order. (Rec. Doc. No. 8.)

2. Plaintiff’s claim that defendant’s termination of his employment

violated his First Amendment right to freedom of speech is dismissed for failure to

state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6).

3. As the court has dismissed the only claim over which it has original

jurisdiction, the court declines to exercise supplemental jurisdiction over the breach

of contract claim, pursuant to 28 U.S.C. § 1367(c)(3). 

4. The clerk is directed to close the case file. 

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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