United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
DAVID D. NOCE, Magistrate Judge.
This action is before the court on the motion of defendant City of Arnold to dismiss Counts I and IA of plaintiff's claims against it and her Counts III and IV claims against defendant Matthew Unrein in his official capacity as the City of Arnold's City Administrator, all for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Doc. 12.) The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 24.) The court heard oral arguments on January 21, 2015.
Plaintiff Rebecca Moss commenced this action in the Circuit Court of Jefferson County, Missouri. Plaintiff subsequently filed a first and then a second amended petition in that court. Defendants removed this action to this court pursuant to 28 U.S.C. § 1331 for federal question jurisdiction and supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).
According to plaintiff's factual allegations in her second amended petition, the following occurred. Plaintiff was hired as a secretary for the Parks and Recreation division of the City of Arnold on August 29, 2005. (Doc. 1-4 at ¶6.) Defendant Matthew Unrein, Arnold's City Administrator, terminated plaintiff on September 8, 2010 and gave no specific reason for the termination. (Id. at ¶¶ 7, 8.) Plaintiff filed a written appeal request to the Personnel Board of Review on September 14, 2014. (Id. at ¶ 11.) This comports with Arnold's Personnel Policy Manual which allows for an appeal of a dismissal if a request is made within 10 calendar days after the effective date of dismissal. (Id. at ¶ 9.) Additionally, the City of Arnold appeals process provides that the appeals process and all related documents will be confidential. (Id. at ¶¶ 10, 33.)
Plaintiff alleges that between March 7, 2011 and January 23, 2012, she contacted Arnold's City Attorney, Robert K. Sweeney, several times about scheduling a hearing before the City's Personnel Review Board. Mr. Sweeney acknowledged that her appeal request was timely (id. at ¶¶ 12-18), but did not otherwise respond to her inquiries until plaintiff received a letter from Mr. Sweeney on July 20, 2012. In the letter he stated that the City of Arnold had scheduled a Personnel Review Board hearing in late 2011, but the City had "failed to pull it off;" he offered to hold a hearing, if she wanted one. (Id. at ¶¶ 19, 21.) Plaintiff wrote Mr. Sweeney on July 23, 2012, requesting a hearing. (Id. ¶ 22.) To date, no hearing has been scheduled. (Id. at ¶ 23.)
Plaintiff alleges that in August 2010, the Arnold City Police Department conducted a criminal investigation of plaintiff regarding an accusation that she stole services from the City of Arnold in the alleged amount of approximately $600.00.. Charges have never been filed against her and the statute of limitations has since passed. (Id. at ¶¶ 24-32.)
Plaintiff alleges that defendant Matt Unrein, the City Administrator, published and disseminated a statement that indicated plaintiff was terminated for stealing services and concealing the theft. (Id. at ¶ 33.) Defendant William Moritz, while an acting member of Arnold's City Council, published and disseminated a statement that indicated plaintiff was terminated for stealing services. (Id. at ¶ 34.) The City of Arnold published to the media an investigative report disclosing confidential information regarding plaintiff's termination; specifically, it said plaintiff was terminated for stealing services. (Id. at ¶¶ 35-36.)
Upon these alleged facts, plaintiff alleges in Count I that the defendant City of Arnold violated her right to due process under the 14th Amendment to the United States Constitution and 42 U.S.C. § 1983, as well as Article 1, Section 10 of the Missouri Constitution. More specifically, she alleges her rights to due process were violated because she was not given notice of a hearing, she was not given a hearing, the Board of Review failed to issue a decision, and the information about the matter was not kept confidential. (Id. at ¶ 43.)
In Count II, plaintiff alleges the defendant City of Arnold breached its contract with her by failing to provide her a Board of Review Hearing as set out in Arnold's Personnel Policy Manual. (Id. at ¶¶ 45-51.)
In Count III, plaintiff alleges that defendant Unrein, in his official and individual capacities, invaded her privacy by disclosing private facts, in violation of the statement in his September 8, 2010 letter to her that "Your appeal, and all documents relating to it, will be considered by the Personnel Board of Review, its findings and a written decision shall be promptly filed in the office of the City Administrator. All such records shall be held confidential." (Id. at ¶¶ 53-58.)
In Count IV, plaintiff alleges that defendant Unrein, in his official and individual capacities, slandered her, by stating in December 2012 and January 2013 that she had been terminated for stealing services and attempting to conceal the theft. (Id. at ¶¶ 62-71.)
In Count V, plaintiff alleges that defendant Moritz, in his official and individual capacities, invaded her privacy by disclosing private facts, in violation of the City of Arnold Personnel Policy Manual statement that all related records would be kept confidential.. (Id. ¶¶ 75-79.)
In Count VI, plaintiff alleges that defendant Moritz, in his official and individual capacities, libeled her. She alleges that in March 2013 in a written blog viewable by the public, published a statement that she, identified as Ken Moss' sister, was discovered to ...