Civil No. 4:18-cv-0060
( ) REPORT AND RECOMMENDATION
This case now comes before on a motion to reconsider the dismissal of a pendant state law claim under Pennsylvania's Whistleblower statute. (Doc. 37.) Baylets-Holsinger files this motion to reconsider even though she neglected to object to the Report and Recommendation, which recommended dismissal of this claim. Moreover, Baylets-Holsinger files this belated motion to reconsider despite the fact that she has also ignored prior, explicit and repeated instructions from the Court to state this claim in a more definite fashion.
For the reasons set forth below, it is recommended that this motion to reconsider be denied.
This is an action brought by the pro se plaintiff, Antoinette Baylets-Holsinger, against her former employer, the Pennsylvania State University ("Penn State"). The plaintiff's litigation of this case has been marked by halting and often unsuccessful efforts to comply with the Court's instructions, the submissions of multiple amended complaints, and a persistent refusal to comply with court-ordered deadlines. For example, this Court ordered Baylets-Holsinger on October 20, 2018 to provide a more definite statement of her whistleblower claim. Specifically, the Court ordered the plaintiff to clarify whether she was bringing her claim under the Pennsylvania Whistleblower Law, the First Amendment, or both. (Doc. 26.)
When she filed her second amended complaint, Baylets-Holsinger failed to follow the Court's order and identify in her complaint the theory under which she was asserting her whistleblower claim. Instead, in her second amended complaint, Baylets-Holsinger brought three claims against the defendant—two claims of gender-based discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 and a third claim alleging retaliation for whistleblowing. (Doc. 28.)
Accordingly, the defendant moved to dismiss Count III of plaintiff's second amended complaint, the whistleblower retaliation claim. (Doc. 31.) In support of this motion, Penn State advanced a threefold argument, asserting that: (1) Baylets-Holsinger had not adequately pleaded a whistleblower claim because the plaintiff had failed to provide a legal basis for her claim despite having been specifically admonished to do so; (2) any state statutory whistleblower claim was barred by the applicable statute of limitations; and (3) the complaint failed to state a claim under either the Pennsylvania Whistleblower statute or the First Amendment.
On March 22, 2019, we recommended the dismissal of Baylets-Holsinger's whistleblower retaliation claim. (Doc. 35.) With respect to any state statutory claim, we found that Baylets' Holsinger's complaint was barred by the applicable statute of limitations. (Id., at 11-13.) As for her First Amendment retaliation claims, we concluded that:
In this case, Baylets-Holsinger's retaliation claim is poorly pleaded and ill-defined. Several factors combine to undermine this particular claim. First, Baylets-Holsinger has ignored our prior instructions to articulate the legal grounds for her claims in her complaint. In addition, her second amended complaint often conflates and confuses matters of potential constitutional dimension with mere personality conflicts. Finally, because she has largely ignored our instruction to address the legal basis for her claims, Baylets-Holsinger has not been mindful of the limitations on First Amendment retaliation claims prescribed by Garcetti and its progeny. As a result in her second amended complaint Baylets-Holsinger appears to plead facts which tend to rebut any First Amendment claim since these well-pleaded facts suggest that the plaintiff was not speaking as a citizen about a matter of public concern such that her speech would be protected under the First Amendment.
(Id., at 19-20.)
We then concluded by observing that:
In this case, Baylets-Holsinger has been provided multiple opportunities to amend her claim, and has been specifically directed to
identify the legal basis for her alleged retaliatory whistleblower claim and has failed to do so. Moreover, given the time-barred nature of any claim under Pennsylvania's Whistleblower statute, further amendment of that claim would be futile. While the factual recitals made by Baylets-Holsinger also suggest that further amendment of her complaint to try to state a First Amendment retaliation claim may also ultimately fail, we are mindful that the question of whether a public employee's speech is made "pursuant to official duties" is a mixed question of law and fact. Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015) Therefore, acting out of an abundance of caution, we recommend that the First Amendment retaliation claim be dismissed without prejudice to the plaintiff endeavoring to state a claim which falls within the parameters of the First Amendment. Accordingly, we recommend that plaintiff's statutory retaliatory whistleblowing claim against the defendant be dismissed with prejudice, and the plaintiff's First Amendment retaliation claim be dismissed without prejudice to one final attempt on the plaintiff's part to articulate a proper legal claim.
(Id., at 21-22.)
Baylets-Holsinger—who had previously ignored our instructions to file a more definite statement of this claim—then ignored the deadline for filing objections to this recommendation. Accordingly, on May 7, 2019, the district court entered an order adopting this Report and Recommendation. (Doc. 36.) That order dismissed the plaintiff's state law whistleblower claim with prejudice and instructed Baylets-Holsinger in clear and precise terms as follows: "Plaintiff may amend her complaint to satisfy the deficiencies in her First Amendment claim, as identified by Magistrate Judge Carlson in his Report and Recommendation. Any amended complaint, however, must be filed NO LATER THAN MAY 17, 2019, and NO FURTHER AMENDMENTS WILL BE PERMITTED." (Doc. 36, at 2.)
Baylets-Holsinger also ignored this clear direction. Instead of filing an amended complaint, as directed by the court, she filed a motion to reconsider this decision. (Doc. 37.) As to her state law whistleblower claim, this motion simply repeated a tolling argument that had been considered and rejected by the Court. Further, with respect to any First Amendment retaliation claim, this motion ignored the fact that Baylets-Holsinger was given the opportunity to amend and further articulate this claim by the court on May 7, 2019, but allowed the deadline for doing so to pass.
This motion is briefed by the parties (Docs. 38 and 40) and is, therefore, ripe for resolution. For the reasons set forth below, we recommend that this motion be denied.
The legal standards that govern motions to reconsider are both clear, and clearly compelling. "The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Typically, such a motion should only be granted in three, narrowly-defined circumstances, where there is either: "(1) [an] intervening change in controlling law, (2) availability of new evidence not previously available, or (3) need to correct a clear error of law or prevent manifest injustice." Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D. Pa. 1992). As the United States Court of Appeals for the Third Circuit has aptly observed:
"The purpose of a motion for reconsideration ... is to correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood Café, 176 F.3d at 677 (quoting Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985)). "Accordingly, a judgment may be altered or amended if the party seeking reconsideration shows at least one of the following grounds: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion for summary judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice." Id. (citation omitted).
Howard Hess Dental Laboratories Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010).
Thus, it is well-settled that a mere disagreement with the court does not translate into the type of clear error of law which justifies reconsideration of a ruling. Dodge, 796 F.Supp. at 830. Furthermore, "[b]ecause federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995). Moreover, it is evident that a motion for reconsideration is not a tool to re-litigate and reargue issues which have already been considered and disposed of by the court. Dodge, 796 F.Supp. at 830. Rather, such a motion is appropriate only where the court has misunderstood a party or where there has been a significant change in law or facts since the court originally ruled on that issue. See Above the Belt, Inc. v. Mel Bohannon Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983).
Judged against this exacting standard, Baylets-Holsinger provides no grounds for reconsideration of the dismissal of her state statutory whistleblower claim. As we previously noted, the Pennsylvania Whistleblower Law, 43 Pa. Cons. Stat. § 1421 et seq., states 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 Pa. Cons. Stat. § 1423(a). Thus, an employee who makes a good faith report of waste or wrongdoing, good faith meaning "without malice or consideration of personal benefit" and about which the employee believes is true, cannot be discriminated against or retaliated against by her employer. § 1422. The law defines "wrongdoing" as a violation of a state or federal statute or regulation "which is not of a merely technical or minimal nature." Id. "Waste" is defined as "[a]n employer's conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belong to or derived from Commonwealth or political subdivision sources." Id. Additionally, and notably for our purposes, a plaintiff who brings a claim under this statute must file the action within 180 days after the occurrence of the alleged violation. § 1424(a).
In the instant case, we have found that Baylets-Holsinger's whistleblower claim fails under the Pennsylvania Whistleblower Law because any claim under this statute is barred by the statute of limitations. With respect to this statute of limitations, Baylets-Holsinger clearly asserts that her alleged forced resignation qualifies as an adverse action under the law, an event that the plaintiff states took place on January 7, 2017. Baylets-Holsinger filed her initial complaint in this case on January 9, 2018, over a year after she resigned. Thus, on the face of these pleadings, Baylets-Holsinger's complaint is time-barred under the Pennsylvania Whistleblower Law, as she did not bring her claim within 180 days of the adverse action.
While Baylets-Holsinger persists in inviting us to toll this limitations period while her EEOC complaint was pending administratively, we have already informed her that we cannot do so. The fact that the plaintiff filed a claim with the EEOC does not toll the statute of limitations under the Pennsylvania Whistleblower law. See Plemmons v. Pennsylvania Mfrs. Ass'n Ins. Co., 1991 WL 61128, at *2 (E.D. Pa. Apr. 13, 1991) (holding that the filing of a complaint with the EEOC is not sufficient to satisfy the Pennsylvania Whistleblower Law's 180-day statute of limitations); see also N'Jai v. Floyd, , 2009 WL 4823839, at *20 (W.D. Pa. Dec. 9, 2009) aff'd, 386 F. App'x 141 (3d Cir. 2010) (noting that because Pennsylvania's Whistleblower Law is not subject to exhaustion through the PHRC, the filing of a complaint with the PHRC is not sufficient to toll the Pennsylvania Whistleblower Law's 180-day statute of limitations). As this Court has observed in the past:
Plaintiff's position amounts to an equitable tolling argument, but the Court notes that the weight of authority from other courts suggests that the filing of an EEOC complaint does not toll the time period to file state tort claims, including a Whistleblower Law claim. Plemmons v. Pa. Mfrs. Ass'n Ins. Co., Civ. A. No. 90-2495, 1991 WL 61128, at *2 (E.D. Pa. Apr. 13, 1991) (Title VII and Whistleblower Law action); Villela v. City of Phila., No. CIV. A. 95-1313, 1995 WL 295318, at *4 (E.D. Pa. May 9, 1995) (Section 1983 and Whistleblower Law action). See also Duran v. Jamaica Hosp., 216 F. Supp. 2d 63, 67 n.3 (E.D.N.Y. 2002) (listing cases, including Juarez v. Ameritech Mobile Commc'ns, Inc., 957 F.2d 317, 322-23 (7th Cir. 1992) (filing of EEOC charge did not toll the statute of limitation on employee's state law invasion of privacy claim); Arnold v. U.S., 816 F.2d 1306, 1312-13 (9th Cir. 1987) (holding state law tort claims are not tolled during pendency of Title VII action); Dupree v. Hutchins Bros., 521 F.2d 236, 238 (5th Cir. 1975) (finding state statute of limitation for § 1981 action was not tolled during pendency of EEOC claim) ).
Semian v. Dep't of Military & Veterans' Affairs - Gino J. Merli Veterans Ctr., No. 3:17-CV-1183, 2018 WL 4038116, at *7 (M.D. Pa. Aug. 23, 2018). See Gillispie v. Regionalcare Hosp. Partners, Inc., No. CIV.A. 13-1534, 2015 WL 1839149, at *5 (W.D. Pa. Apr. 21, 2015); Gillispie v. RegionalCare Hosp. Partners Inc, 892 F.3d 585, 598 n. 65 (3d Cir. 2018). Therefore, Baylets-Holsinger still may not rely upon a tolling argument based upon her EEOC filing to avoid the bar of the statute of limitations with respect to her Pennsylvania statutory whistleblower claim in this case, and her motion to reconsider this aspect of the Court's prior ruling should be denied.
As for any argument by Baylets-Holsinger that the Court should reconsider its ruling on her First Amendment retaliation claim, which dismissed that claim without prejudice to Baylets-Holsinger timely filing an amended complaint, there is a threshold difficulty with this argument: Baylets-Holsinger was given ample opportunity on multiple occasions to restate this claim in an amended complaint but has simply and repeatedly elected not to do so. Instead of following our clear directions to amend her complaint, Baylets-Holsinger persists in filing briefs, arguing issues that are not set forth in any well-pleaded complaint. This she may not do since, as we have previously warned the plaintiff, "it is axiomatic that the complaint may not be amended by briefs." Commw. of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (internal citations omitted).
Therefore, Baylets-Holsinger's refusal to file the amended complaint as directed by the Court acts as a bar to further consideration of this legally insufficient claim which the plaintiff refuses to further articulate in an amended complaint despite our instructions to do so. Simply put, Baylets-Holsinger's persistent failure to follow clear instructions by this Court must have some consequences. One such consequence is that we cannot further consider any First Amendment retaliation claim until Baylets-Holsinger properly amends that claim. To date, she has not complied with this Court's order directing her that: "Any amended complaint, however, must be filed NO LATER THAN MAY 17, 2019, and NO FURTHER AMENDMENTS WILL BE PERMITTED." (Doc. 36 at 2.) Until Baylets-Holsinger obeys the Court's directions, or receives some additional leave of court to pursue the claim that she failed to preserve by her inaction, we should not entertain further efforts to reinstate this claim in the abstract.
Accordingly, for the foregoing reasoning, IT IS RECOMMENDED THAT the plaintiff's Motion to Reconsider, (Doc. 37), be DENIED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 17th day of June 2019.
/S/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge