Jon Campisi May 7, 2013, 8:29am

A federal judge has dismissed a retaliatory discharge claim initiated against a Chester

County municipality by a former employee who claimed he was fired because he raised concerns about a subordinate who happened to be the wife of his direct supervisor.

U.S. District Judge Jan E. DuBois, sitting in the Eastern District of Pennsylvania, issued an April 30 memorandum and order dismissing the wrongful termination claim against the Borough of Downingtown, Borough Manager Stephen Sullins, and the borough’s public works director, Jack Law.

Mark Lee, who worked as the borough’s assistant public works director from January 2000 until his firing on June 15 of last year, claimed in his lawsuit that he was let go because he raised complaints about Alexis Law, the wife of defendant Jack Law, who worked as the borough’s supervisor of parks.

In his complaint, Lee stated that he repeatedly complained to Jack Law and Sullins about Alexis Law’s job performance, including her often late arrival to work, her exercising during work hours, her not signing in to work, her using the work computer and phone for personal matters, not performing her job duties in a “diligent” manner, and her misappropriation of borough resources.

Lee alleged in his lawsuit that the defendants took no actions to address his complaints, but instead fired him after Lee decided he would no longer sign Alex Law’s time cards.

Lee’s complaint contained a federal First Amendment claim as well as state law whistleblower and wrongful termination claims.

In his memorandum and order, DuBois wrote that the First Amendment claim could not be sustained because Lee did not speak as a citizen when he raised complaints about Alexis Law, but rather was acting in accordance with his official duties.

Lee was on the job when he made the speech at issue, and the speech occurred when he complained to his supervisors, at work, during work hours, the judge wrote in explaining his dismissal of the claim.

“All of these specific complaints fall under Lee’s admitted job duties and responsibilities of supervising Mrs. Law in the workplace,” the memorandum states. “Lee was therefore not speaking as a citizen because he would not have been in a position to make such speech if not for his job and responsibility of supervising Mrs. Law.”

DuBois dismissed the First Amendment claim with prejudice, writing that the amending of Lee’s complaint would be “futile.”

The judge further refused to exercise supplemental jurisdiction over the two state law claims, the whistleblower and wrongful termination counts, dismissing those claims without prejudice, which would allow the plaintiff to re-file in state court if he chooses to do so.

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