1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MUSTAFA ABUOMAR, : Civil Action No. 4:14-CV-1036

:

:

Plaintiff, : (Judge Brann)

:

v. :

:

COMMONWEALTH OF :

PENNSYLVANIA DEPARTMENT :

OF CORRECTIONS, VINCE :

MOONEY, EDWARD BAUMBACH:

and DENNIS BRUMFIELD, :

:

Defendants. :

MEMORANDUM

May 4, 2015

On May 29, 2014, Plaintiff Mustafa Abuomar initiated the above-captioned 

civil action by filing a complaint with this Court, alleging violations of 42 U.S.C. § 

1985(2), constitutional violations of the Fourth, Fifth, Fourteenth, and Eighth 

Amendments, Monell liability under 42 U.S.C. § 1983, violations of the 

Pennsylvania Whistleblower Law at 43 P.S. § 1421, and various state law claims 

including battery, intentional infliction of emotional distress, and false 

imprisonment. After filing an answer, Defendants collectively filed a motion for 

judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), 

requesting judgment on Counts III (Fifth Amendment violations), V (Eighth 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 1 of 18
2

Amendment violations), VI (Monell Liability), and IX (Pennsylvania 

Whistleblower Law). 

In his brief in opposition, Plaintiff has concurred in the dismissal of Counts 

III, V, and VI; therefore those claims will be dismissed from Plaintiff’s complaint

without further discussion. The only remaining matter, that of Plaintiff’s claim 

under the Pennsylvania Whistleblower Law, has been fully briefed and is now ripe 

for disposition. In accordance with the following reasoning, Count IX under the 

Pennsylvania Whistleblower Law is dismissed without prejudice with leave to 

amend in accordance with the following reasoning.

I. BACKGROUND

Plaintiff Mustafa Abuomar has brought this action pursuant to 42 U.S.C. § 

1983, alleging various civil rights violations to which he was subjected by his 

employer and several other employees. For the period relevant to this case, 

Plaintiff was employed by the Department of Corrections (hereinafter the “DOC”) 

as an imam, and was assigned to work at SCI Coal Township in Northumberland 

County, Pennsylvania. Pl.’s Compl., May 29, 2015, ECF No. 1 ¶ 7, 9, 10 

(hereinafter “Pl.’s Compl.”). In his capacity as imam, Plaintiff was responsible for 

organizing observances and other activities for inmates of Muslim faith. Id. ¶ 12. 

Plaintiff is of Arab ethnicity and Jordanian nationality. Id. ¶ 13. 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 2 of 18
3

At some time prior to the events at issue in the instant motion, Plaintiff had 

complained to the DOC’s internal EEO, the Equal Employment Opportunity 

Commission (hereinafter the “EEOC”), and the Pennsylvania Human Rights 

Commission (hereinafter the “PHRC”) regarding inappropriate ethnic, racial and 

religious slurs made by Corrections Officer Benza to Plaintiff. Id. ¶ 18. On March 

5, 2014, when Plaintiff was on duty at SCI Coal Township, he was ordered by the 

Superintendent of SCI Coal Township, Defendant Mooney, to write a detailed 

statement about his interaction with two other DOC employees, Deputy 

Superintendent Michael Miller and Corrections Officer Benza. Id. ¶ 3, 17. Due to 

the pending investigation, Plaintiff refused to write a statement on the matter for 

Defendant Mooney. Id. ¶ 19. Following the incident, Plaintiff placed a call to the 

Director of the EEO, Raphael Chieki, who told him he had already explained the 

situation to Defendant Mooney and that Plaintiff need not write a statement. Id. ¶

25, 26. He then placed a call to his attorney. Id. ¶ 28.

As he was on the phone with his attorney, Defendants Baumbach and 

Brumfield came into his office in full uniform and ordered him to hang up the 

phone and come with them. Id. ¶ 29, 30. When Plaintiff protested that he was 

speaking with his attorney, Defendant Brumfield grabbed the phone from 

Plaintiff’s hand and then grabbed Plaintiff by the arm and ordered him out of the 

room. Id. ¶ 31-33. In so doing, they told Plaintiff that he was under their 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 3 of 18
4

jurisdiction and ordered him to walk in front of them, escorting him like a prisoner 

through SCI Coal Township via various common rooms. Id. ¶ 36, 37, 41. 

Defendants Baumbach and Brumfield eventually brought Plaintiff into Defendant 

Mooney’s conference room with several other DOC employees and ordered him 

again to write a statement. Id. ¶ 43-47. Throughout this time, they would not allow 

him to leave the room or use the restroom, and they continued to demand that he 

write the statement, despite being informed by both Plaintiff and EEO Director 

Chieki that he was not required to do so. Id. ¶ 48-54, 63-64.

Ultimately, Plaintiff agreed to complete a statement, allegedly under duress. 

Id. ¶ 56. After finishing the statement, however, he was not permitted to leave 

until Defendant Mooney was able to review the statement. Id. ¶ 74-79. When 

Defendant Mooney reviewed the statement, he related to Defendant Brumfield that 

he was not satisfied with the content of Plaintiff’s statement. Id. ¶ 80. 

Nevertheless, Defendants allowed Plaintiff to leave, although they made clear to 

Plaintiff that on the following morning he would be required to rewrite his 

statement to Defendant Mooney’s satisfaction. Id. ¶ 81, 82. He was once again 

escorted like a prisoner, this time from the facility. Id. ¶ 82. 

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(c), a party may move for 

judgment on the pleadings “[a]fter the pleadings are closed – but early enough not 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 4 of 18
5

to delay trial.” Fed. R. Civ. P. 12(c). The pleadings are considered closed after an 

answer is filed, in addition to a reply to any counterclaims asserted in the answer. 

See Atiyeh v. National Fire Ins. Co. of Hartford, 742 F.Supp.2d 591, 595 (E.D.Pa. 

2010). A judgment on the pleadings will be granted only if “the movant clearly 

establishes that there are no material issues of fact, and he is entitled to judgment 

as a matter of law.” Sikirica v. Nationwide Insurance Company, 416 F.3d 214, 220 

(3d Cir. 2005) (citing Society Hill Civic Association v. Harris, 632 F.2d 1045, 

1054 (3d Cir. 1980). In ruling on such a motion, the court “must view the facts 

presented in the pleadings and the inference to be drawn therefrom in the light 

most favorable to the nonmoving party.” Id. Where, as here, a motion for 

judgment on the pleadings argues that the plaintiff has failed to state a claim upon 

which relief can be granted pursuant to Federal Rule of Civil Procedure 

12(h)(2)(B), the court considers the motion under the same standard as a Rule 

12(b)(6) motion, even though no motion to dismiss under Rule 12(b)(6) has been 

made. Fed. R. Civ. P. 12(h)(2)(B); see e.g., Turbe v. Government of Virgin Islands, 

938 F.2d 427, 428 (3d Cir. 1991).

When considering a motion to dismiss under Federal Rule of Civil 

Procedure 12(b)(6), a 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 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 5 of 18
6

Cir. 1993). However, “the tenet that a court must accept as true all of the [factual] 

allegations contained in the complaint is inapplicable to legal conclusions.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). In ruling 

on such a motion, 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. “Threadbare recitals of the elements of a cause of action, supported by 

mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. 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 only be dismissed if, accepting as true all of the 

allegations in the amended complaint, plaintiff has not pled enough facts to state a 

claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 

U.S. 544, 561 (2007). “Determining whether a complaint states a plausible claim 

for relief will . . . be a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 663-664. 

“In considering a Rule 12(b)(6) motion, we must be mindful that federal 

courts require notice pleading, as opposed to the heightened standard of fact 

pleading.” Hellmann v. Kercher, No. 07-1373, 2008 WL 1969311 at * 3 (W.D. Pa. 

May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 "requires only a 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 6 of 18
7

‘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 on 

which it rests,'" Bell Atlantic Corp. v. Twombly, 550 U.S. at 554 (quoting Conley 

v. Gibson, 355 U.S. 41, 47 (1957)). However, even under this lower notice 

pleading standard, a plaintiff must do more than recite the elements of a cause of 

action, and then make a blanket assertion of an entitlement to relief. See Hellmann, 

2008 WL 1969311 at *3. Instead, a plaintiff must make a factual showing of his 

entitlement to relief by alleging sufficient facts that, when taken as true, suggest 

the required elements of a particular legal theory. See Twombly, 550 U.S. at 561. 

“[W]here the well-pleaded facts do not permit the court to infer more than the mere 

possibility of misconduct, the complaint has alleged - - but it has not “shown” - -

“that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. 

P. 8(a)). 

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.

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 7 of 18
8

III. DISCUSSION

Section 1423 of the Pennsylvania Whistleblower Law provides, in relevant 

part:

No employer may discharge, threaten or otherwise discriminate or retaliate 

against an employee regarding the employee’s compensation, terms, 

conditions, location or privileges of employment because the employee or a 

person acting on behalf of 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.

43 P.S. § 1423(a). Section 1422 of that law defines the following terms:

“Wrongdoing” is 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.”

A “good faith report” is a “report of conduct defined in this act as 

wrongdoing or waste which is made without malice or consideration of 

personal benefit and which the person making the report has reasonable 

cause to believe is true.”

43 P.S. § 1422.

Defendants object to Plaintiff’s claim under the Pennsylvania Whistleblower 

Law on three bases: (1) that a report of violations of the PHRA and other 

employment discrimination laws does not constitute “wrongdoing” as it is defined 

within the statute; (2) that Plaintiff’s report does not constitute a “good faith 

report” based on the above definition because it was made in consideration of 

personal benefit; and (3) that the actions taken against Plaintiff, as stated in the 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 8 of 18
9

complaint, did not sufficiently alter his compensation, terms, conditions, location 

or privileges of employment as is required under the statute.

A. Wrongdoing

Defendants first argue that discrimination in violation of Title VII and the 

PHRA does not constitute “wrongdoing” within the meaning of the statute because 

neither are of the type that the Department of Corrections is charged with 

enforcing. To that end they argue, “Certainly it is within [the DOC’s] desire to 

ensure that their employees are not subject to workplace discrimination, but it is 

not a statute or regulation that the DOC is charged with enforcing.” Plaintiff 

responds that “[c]ontrary to Defendants’ assertions, the Department of Corrections 

is charged with adherence to both acts for the public good.” 

As articulated above, in order to state a claim under the Pennsylvania 

Whistleblower Law, the plaintiff must demonstrate that he made a report of 

wrongdoing, which is defined specifically to include only violations of laws or 

regulations designed to protect the interest of the public. In one of the leading 

Pennsylvania cases on the subject, the court held that the phrase “protect the 

interest of the public” means “that a statute or regulation is of the type that the 

employer is charged to enforce for the good of the public or is one dealing with the 

internal administration of the governmental employer in question.” Gray v. Hafer, 

651 A.2d 221, 224 (Pa.Cmwlth. 1994). A later case, Golaschevsky v. 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 9 of 18
10

Commonwealth, Department of Environment Protection, reaffirmed Gray, 

reasoning further that “[t]he fact that the wrongdoing was not committed by 

employees of the [employer] was not the critical factor for purposes of [the Gray]

decision, i.e., the identity of the party committing the wrongdoing was not 

determinative. The determinative factor was that the violation was not of a statute 

or regulation that the [employer] was charged to enforce for the good of the 

public.” Golaschevsky v. Com., Dept. of Environmental Resources, 683 A.2d 

1299, 1304 (Pa.Cmwlth. 1996).

Consequently, the important issue in the matter before this Court is whether 

anti-discrimination laws such as those presented through Title VII and the PHRA 

are “of the type that the employer is charged to enforce for the good of the public.” 

This analysis entails consideration of two elements: (1) whether Title VII and the 

PHRA are statutes that the DOC is charged with enforcing; and (2) whether that 

enforcement is for the good of the public. I find that they are, and that therefore

Plaintiff has adequately pled the element of “wrongdoing.”

In Gray, an employee of the Auditor General’s office reported instances of 

criminal misconduct by Temple University employees, which he alleged ultimately 

led to his dismissal. Gray, 652 A.2d at 224. The court in that case found that the 

reported instances of misconduct were not violations of any law or regulation 

which the Auditor General’s office had the responsibility to enforce and therefore 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 10 of 18
11

there was no “wrongdoing” within the meaning of the whistleblower law. Id. at 

225. In so holding, the court analogized to a situation in which Temple University 

officials received parking tickets. Because parking tickets are not laws of the type 

enforced by the Auditor General and would have nothing to do with the internal 

administration of that office, such violations could not be considered 

“wrongdoing.” Id. at 224.

In contrast, the court in Rankin v. City of Philadelphia found that violations 

of health and safety regulations were “wrongdoing” within the meaning of the law. 

Rankin v. City of Philadelphia, 963 F.Supp. 463, 473 (E.D.Pa. 1997). In that case, 

the court was asked to consider a situation in which a nursing home employee 

reported allegations of falsified asbestos records. Id. at 467. The court specifically 

addressed the decision in Gray and differentiated it, holding that the Gray court 

“was addressing . . . the question [of] whether wrongdoing is established by 

reporting violations not only of crimes of the employer but of third parties. . . . 

Here, of course, Rankin is alleging that the violations were committed by his 

employer, a matter his employer certainly does have something to do with, and 

they are violations of regulations generally designed to protect the interest of the 

public.” Id. at 473 n.3.

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 11 of 18
12

This Court finds little difference with regards to the impetus on the employer 

to enforce anti-discrimination laws and health/safety regulations. An employer is 

only charged with enforcing health and safety regulations to the extent that it is 

required to comply with those regulations and therefore ensure compliance 

amongst its employees. In the same way, an employer is charged with enforcing 

anti-discrimination laws to the extent that it is required to comply with those laws 

and consequently ensure compliance amongst its employees. The latter is not the 

type of situation in which the employer could do nothing to prevent the violation 

from occurring; rather, the employer is uniquely situated to prevent discrimination 

within its workplace through the way it runs its office and directs its employees. 

Consequently, this Court holds that the DOC is charged with enforcing antidiscrimination laws such as Title VII and the PHRA.1

The second inquiry in this analysis, then, is whether the DOC enforces Title 

VII and the PHRA “for the good of the public.” As to this aspect, the Court has 

little guidance from case law and must instead rely upon its own common sense 

and the purposes and policies behind the statutes themselves. Importantly, section 

952 of the PHRA, “Findings and declaration of policy,” states:

[D]iscrimination foments domestic strife and unrest, threatens the rights and 

privileges of the inhabitants of the Commonwealth, and undermines the 

foundations of a free democratic state. The denial of equal employment, 

 

1 My holding on this issue is consistent with other case law on the subject. See Tresky v. Peters, Civil Action No. 

09-1616, 2010 WL 1979391, at * 5 (W.D.Pa. Apr. 27, 2010) (holding that a report of retaliation because of the filing 

of an EEOC charge constitutes good-faith reporting of wrongdoing under the Pennsylvania Whistleblower Law).

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 12 of 18
13

housing and public accommodation opportunities because of such 

discrimination, and the consequent failure to utilize the productive capacities 

of individuals to their fullest extent, deprives large segments of the 

population of the Commonwealth of the earnings necessary to maintain 

decent standards of living, necessitates their resort to public relief and 

intensifies group conflicts, thereby resulting in grave injury to the public 

health and welfare, compels many individuals to live in dwellings which are 

substandard, unhealthful and overcrowded, resulting in racial segregation in 

public schools and other community facilities, juvenile delinquency and 

other evils, thereby threatening the peace, health, safety and general welfare 

of the Commonwealth and its inhabitants.

43 P.S. § 952(a). 

Such a broad and sweeping statement of policy leads this Court to believe

that the relief provided for in the statute was enacted to achieve more widereaching aims than remedying individualized discrimination. Even though the 

situation before the Court today is confined to employees of the DOC, the purpose 

behind the act indicates the necessity that each individual employer abide by the 

anti-discrimination laws contained therein in order to achieve more comprehensive

purposes. Moreover, though Title VII of the Civil Rights Act of 1964 contains no 

such analogous statement of policy, this Court has no reason to believe that its 

objectives are much different or more limited than those of the PHRA. 

Accordingly, I find that the DOC is tasked with enforcing these anti-discrimination 

laws “for the good of the public,” and that therefore the violation of those laws 

constitutes wrongdoing within the meaning of the Pennsylvania Whistleblower 

Law.

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 13 of 18
14

B. Good Faith Report

Defendants next contend that Plaintiff’s report, which was a discrimination 

claim against a corrections officer, cannot be considered a good faith report 

because it was not made without consideration of personal benefit, as is required 

by the statute. Plaintiff merely responds that “[n]o portion of the Complaint

indicates that Plaintiff made his reports with malice or in consideration of personal 

gain. Those are defenses which Defendants may raise only after development of a 

record.” Neither party cites to any law in support of their respective positions.

Nevertheless, this Court agrees with Plaintiff that, on the instant motion, a 

conclusive determination as to whether Plaintiff made his report of wrongdoing 

with malice or consideration of personal benefit would be premature. The exact 

circumstances and contours of Plaintiff’s reports to the EEOC and the PHRC are 

unknown at this time, as are the Plaintiff’s motivations behind so reporting. 

Drawing all inferences in favor of the Plaintiff, the nonmoving party, it is entirely 

plausible that the Plaintiff made his report with motivations other than that of 

personal benefit; therefore it is impossible for this Court to determine that no 

genuine issue of material fact exists as to this element of Plaintiff’s claim.2

 

2 However, this Court will note that in a similar situation a court determined on a motion for summary judgment that 

the plaintiff’s complaints regarding discrimination against herself did not constitute a good faith report because they 

were made for her own personal benefit. See Albright v. City of Philadelphia, 399 F.Supp.2d 575, 596 (E.D.Pa. 

2005). Importantly, the court stated, “If Albright’s complaints constituted a good faith report for the purposes of the 

Whistleblower Act, every retaliation claim under Title VII or PHR involving a public employer would trigger the 

application of the act, clearly not within the plain statutory language excluding ‘consideration of personal benefit’ 

from protection under the statute.” Id.

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 14 of 18
15

C. Retaliation

Finally, Defendants argue that the adverse actions that Plaintiff was 

subjected to, as described above, are not sufficient to make out a claim that he was 

discharged, threatened, or otherwise discriminated or retaliated against “regarding 

[his] compensation, terms, conditions, location or privileges of employment.” 

They contend that what is alleged is insufficient because it did not alter the 

conditions of Plaintiff’s employment. Plaintiff responds that the Pennsylvania 

Superior Court in Podgurski v. Pennsylvania State University has found similar 

allegations to sufficiently state a claim of retaliation under the Pennsylvania 

Whistleblower Law. 

To begin with, Plaintiff’s reliance on Podgurski is clearly misplaced. The 

court in that case decided only the issue of whether the violations that the plaintiff 

had reported could constitute wrongdoing, not whether the retaliatory acts taken 

were sufficient in that they somehow altered the conditions of plaintiff’s 

employment. Podgurski v. Pennsylvania State University, 722 A.2d 730, 732 

(Pa.Super. 1998). That court did not have before it, and therefore did not consider, 

whether the allegations of retaliation in the complaint, which were somewhat 

similar to those in the case at bar, were sufficient to state a claim under the 

Pennsylvania Whistleblower Law. Though it alludes to a situation from another 

case in which the court had decided that further factual details would be helpful in 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 15 of 18
16

coming to a legal conclusion on this issue, it did not conclusively rule that the 

retaliatory actions in the specific action before it were sufficient.3

This Court is again faced with a situation in which there is little law to 

inform it as to what types of adverse actions were contemplated by the specific 

addition of the phrase “compensation, terms, conditions, location or privileges of 

employment.” However, it is relevant to note that the substantive provisions of 

Title VII and the PHRA utilize almost this exact same language.

4

 Consequently, in 

order to determine what the Pennsylvania legislature intended when it enacted 

section 1423, I will look to the way in which the phrase has been interpreted under 

Title VII.5

In this regard, the United States Supreme Court has held that the “words in 

the substantive provision [of Title VII] – ‘hire,’ ‘discharge,’ ‘compensation, terms, 

conditions, or privileges of employment,’ . . . explicitly limit the scope of that 

provision to actions that affect employment or alter the conditions of the 

workplace.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 

 

3 The case that is discussed by the Podgurski court is Rodgers v. Pennsylvania Dept. of Corrections, 659 A.2d 63 

(Pa.Cmwlth. 1995). In that case, the plaintiff was placed on the daylight shift, contrary to his wishes, and was 

refused a transfer to a different location. Ultimately, he was relieved of his leadership position and several job 

duties. These allegations are very different from those in the case before us today, and because the holding in that 

case was very dependent on the factual background, it is not helpful in deciding the present issue.

4

Section 703(a)(1) of Title VII states, “It shall be an unlawful employment practice for an employer – (1) to fail or 

refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 

compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, 

or national origin.”

5 The elements of a discrimination claim under the PHRA are analogous to those under Title VII. See Goosby v. 

Johnson & Johnson Medical, Inc., 228 F.3d 313, 317 n.3 (3d Cir. 2000) (“The analysis required for adjudicating 

Goosby’s claim under PHRA is identical to a Title VII inquiry.”).

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 16 of 18
17

(2006). This was decided in direct contrast to the anti-retaliation provision of that 

statute, which contains no such language and therefore “is not limited to 

discriminatory actions that affect the terms and conditions of employment.” Id. at 

64. Accordingly, while the anti-retaliation provision applies to all adverse action 

that might “dissuade[] a reasonable worker from making or supporting a charge of 

discrimination,” id. at 68., the substantive provision which contains the implicated 

language is much more limited, addressing only those actions which affect 

employment or alter the conditions of the workplace. Importantly, under the 

statute, “not all workplace conduct that may be described as ‘harassment’ affects a 

‘term, condition, or privilege’ of employment.” Meritor Savings Bank, FSB v. 

Vinson, 477 U.S. 57, 67 (1986).

In the case at bar, Plaintiff has alleged a variety of retaliatory actions taken 

against him on one specific day. These allegations, while certainly adverse, do not 

fall within the plain language of the phrase “compensation, terms, conditions, 

location or privileges of employment,” as it has been interpreted by the United 

States Supreme Court in the context of Title VII. Consequently, the facts as 

pleaded are insufficient to state a claim for relief under the Pennsylvania 

Whistleblower Law. The Court notes, however, that Plaintiff has mentioned in his 

opposition brief that “in the course of discovery [he] will show that he was stripped 

of certain duties of his position and, ultimately, constructively discharged.” 

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 17 of 18
18

Because these allegations are not included within the complaint, this Court has not 

considered them for the purposes of the instant motion. However, I will dismiss 

this count without prejudice and grant Plaintiff leave to amend to assert those 

additional allegations in his complaint.

IV. CONCLUSION

In accordance with the foregoing reasoning, Counts III, V, and VI will be 

dismissed on concurrence of the Plaintiff. Count IX under the Pennsylvania 

Whistleblower Law is dismissed without prejudice with leave to amend in 

accordance with the instant decision.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

Case 4:14-cv-01036-MWB Document 13 Filed 05/04/15 Page 18 of 18