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Murphy v. The City of Lewes

United States District Court, Third Circuit

November 26, 2013



MARY PAT THYNGE, Magistrate Judge.


Presently before the court is a partial motion to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).


A. Procedural History

On June 10, 2013 Jennifer Murphy, ("plaintiff") filed a complaint against the City of Lewes ("City"), Paul Eckrich ("Eckrich"), Jeffrey Horvath ("Horvath"), James L. Ford III ("Ford"), Theordore W. Becker ("Becker"), Victor Letonoff ("Letonoff"), Fred W. Beaufaith ("Beaufaith"), Bonny Osler ("Osler"), and Lieutenant James Azato ("Azato") ("Defendants").[1] On August 12, 2013, plaintiff filed an amended complaint.[2] Both parties responded to the court's order to advise how the filing of the amended complaint affected the defendants' pending motion to dismiss.[3] On August 19, 2013, the court dismissed as moot defendant's pending motion to dismiss.[4] On August 29, 2013, the parties stipulated to dismiss count III of the amended complaint which alleged conspiracy under 42 U.S.C. ยง 1985.[5] On August 30, 2013, defendants filed a motion for partial dismissal of the amended complaint.[6]

The amended complaint, alleges two counts.[7] Count I claims defendants denied plaintiff a constitutionally protected property right in an employment policy, which led to termination of her employment.[8] Count II asserts Azato, at the direction of Eckrich and Horvath, forced plaintiff, without just cause to undergo a drug test, in violation of her Fourth, Fifth, and Fourteenth Amendment rights under the Constitution.[9]

B. Factual History[10]

Plaintiff was employed as secretary by the City from June 12, 1988 until August 15, 2012.[11] On June 21, 2009, the City Manager, Eckrich, issued the City's updated Personnel Policy ("Personnel Policy"), which became applicable to all city employees on June 23, 2009.[12] The Personnel Policy contained a "substance abuse policy, " Section 4.4.D.3.c, p. 64, which provides that persons with a "verified first time positive result" of random drug testing would be placed on unpaid leave, and after 30 days, if they completed counseling and treatment could return to work.[13]

During plaintiff's time with the City, she was always found to have a superior job performance, [14] and had never tested positive on a drug test.[15] On August 3, 2012, plaintiff was involuntarily taken by Azato to a laboratory for a monitored drug test.[16] As a result of the test results, plaintiff was placed on administrative leave at the direction of Eckrich.[17] Plaintiff allegedly was not afforded an opportunity to present facts while disciplinary measures were being considered by Horvath and Eckrich, who suspended her which lead to her termination.[18] No other City employee had been similarly treated by failing to follow the procedures outlined in the Personnel Policy.[19] Around September 10, 2012, the results of the drug test were presented by Eckrich and Horvath to the City's Town Council, the governing legislative body.[20] On September 10, 2012, the Town Council terminated plaintiff's employment.[21]


A. Defendants' Contentions

Defendants contend plaintiff's amended complaint fails to plead the existence of a constitutionally protected property right in her employment.[22] More specifically, defendants argue plaintiff did not plead the existence of a contract, implied or otherwise, that provides for anything more than at-will employment.[23] Defendants further assert the procedures provided under the Personnel Policy do not create a property interest in plaintiff's job because procedural protection alone, without substantive protection under state law, does not create a property interest in employment.[24]

Defendants also point out, if the court finds plaintiff sufficiently pled her constitutional right to due process based on a protected property interest, the City is immune from liability under the Monell doctrine, because it cannot be sued under respondent superior. [25] Additionally, the individual defendants are immune from liability under the qualified immunity doctrine, because their actions were reasonable in light of the positive drug test and the potential threat to the public.[26]

Lastly, defendants contend plaintiff's claim for punitive damages should be dismissed, because they are not recoverable against municipal employees operating in their official capacities, and there is no evidence of evil motive or intent that would justify such damages against the individual defendants in their personal capacities.[27]

B. Plaintiff's Contentions

Plaintiff argues defendants' partial motion to dismiss should be denied, [28] since the amended complaint alleges sufficient facts to conclude her claims are plausible.[29]

Plaintiff contends she has a constitutionally protected property interest in the City's Personnel Policy.[30] Plaintiff points to the long recognized principle that personnel manuals and policies of municipalities can create constitutionally protected property interests.[31] Plaintiff further notes that, where a governmental entity explicitly places limitations on the ability of municipal employers to dismiss their at-will employees, it modifies the at-will relationship creating a property interest in continued employment.[32]

Plaintiff also maintains defendants failed to follow the Disciplinary Process required for terminating her.[33] Instead, defendants now blame plaintiff for their failure to properly handle that process, where the final and binding decision on ...

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