SHEARN v. WEST CHESTER UNIVERSITY OF PENNSYLVANIA et al

Filing 40

MEMORANDUM AND/OR OPINION. SIGNED BY CHIEF JUDGE PETRESE B. TUCKER ON 4/18/17. 4/19/17 ENTERED AND COPIES EMAILED TO COUNSEL AND COPY TO LEGAL.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JODI SHEARN,

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Plaintiff,
v.
WEST CHESTER UNIVERSITY OF
PENNSYLVANIA, et al.,
Defendants.

CIVIL ACTION
NO. 14-3706

MEMORANDUM
Tucker, C.J.

April 18, 2017

Before the Court are Defendants’ Motion for Summary Judgment (Doc. 29), Plaintiff’s
Response in Opposition thereto (Doc. 33), and Defendants’ Reply to Plaintiff’s Response in
Opposition (Doc. 35). Upon consideration of the Parties’ submissions, the Motion is
GRANTED.
I.

FACTUAL BACKGROUND
Plaintiff, a former temporary professor at West Chester University (“WCU”), a public

state university, sued WCU and Defendant Jerome Williams, the chairman of the WCU
Department of Languages and Cultures (“Department”). Plaintiff alleges that Defendants
retaliated against her for: (1) reporting Defendants’ alleged intentional violation of a provision of
a collective bargaining agreement relating to the treatment of temporary professors, and (2) filing
an employment grievance with WCU and then later filing suit against Defendants. Defendants
filed the present Motion for Summary Judgment seeking judgment on these two counts.

1

At WCU, professors are divided into three categories: tenured, tenure-track, and
temporary. Defs.’ Mem. of Law in Supp. 4, ¶¶ 4–6. A professor is considered temporary if the
professor is hired on a semester-to-semester basis or on a year-to-year basis. Defs.’ Mem. of
Law in Supp. 4, ¶ 4. Temporary professors are further divided into two categories: (1) temporary
full-time professors who teach at least four courses per semester, and (2) temporary part-time
professors who teach less than four courses per semester. Williams Dep. 35. Temporary
professors are also known as adjunct professors. Pl.’s Mem. in Opp’n 22, ¶ 3. Temporary
professors’ teaching schedules are determined by the deans of the various university departments
upon consideration of any scheduling recommendations made by the various department
chairpersons. Vermeulen Dep. 22–23. At the time the issues in this case arose, the chair of the
Department was Defendant Williams, and the Dean of the College of Arts and Sciences, of
which the Department is a part, was Dean Lori Vermeulen. Id. at 19.
Under a collective bargaining agreement (“CBA”) that governs the relationship between
WCU and a union known as the Association of Pennsylvania State College and University
Faculties (“APSCUF”), temporary full-time professors have certain rights. Defs.’ Mem. of Law
in Supp. 5, ¶ 12. In particular, Section 11(G) of the CBA, provides that:
[A] full-time, temporary faculty member, who has worked at a University for five
(5) full, consecutive academic years in the same department, shall be placed in the
tenure-track status, if recommended by the majority of the regular department
faculty in accordance with the procedure developed by that department faculty.
Defs.’ Mem. of Law in Supp. 5, ¶ 12; Pl.’s Mem. in Opp’n 22, ¶ 12. Eligibility for a Section
11(G) conversion vote does not guarantee that the eligible temporary professor will, in fact,
receive a positive vote recommending conversion to tenure-track status. Shearn Dep. 46:16–20.
Department chairs are also members to the CBA and their responsibilities and duties are
similarly defined under the CBA. Pl.’s Mem. in Opp’n 29, ¶ 85.
2

A.

In Summer 2013, Plaintiff Meets With The Union To Discuss Frustrations
Regarding Her Employment And Rights Under The CBA

In May 2013, Plaintiff, who, by that time, had been a temporary Spanish professor at
WCU for several years, met with local APSCUF President Lisa Millhous to discuss, among other
things, the fact that a new instructor to the Department had been selected, over Plaintiff, to teach
summer courses that Plaintiff had requested to teach. Shearn Dep. 37–39. In light of her not
having been selected to teach a number of summer courses, Plaintiff wished to clarify her
understanding of the process by which courses are assigned to temporary professors, as well as to
learn about her rights, if any, under the CBA. Id. Plaintiff explained that she contacted Millhous
because:
I [had] reached out to Mr. Williams and requested summer teaching assignments .
. . . I was confused to learn that a new adjunct (with no prior history in our
department) had been hired and that he/she was given four summer courses.
Numerous incidents occurred consecutively that brought me to the union
president, Lisa Milhaus. I was interested in understanding how our chair arrives
at his decisions and what rights, if any, were afforded to me, a temp faculty
member. She listened to my issues and told me about article 11G of the CBA and
that departments were implementing this article.
Pl.’s Mem. in Opp’n Ex. M, at 3.
Plaintiff also explained that by the time of her meeting with Millhous, Defendant
Williams:
was not responding to [Plaintiff] at all. And at that point, like I knew—and it was
happening to a lot of us. A lot of weird things were happening . . . changes in our
schedules, and you know, not teaching classes that we had previously taught. So I
basically wanted to know . . . well how was this decided how do they bring
somebody out from another . . . place somebody that they don’t even know and—
you know, and bring them in to teach all of these open classes.
Shearn Dep. 38–39. After this meeting, Plaintiff reached out to the other temporary professors in
the Department to gauge their interest in a potential informational meeting with Millhous to

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discuss temporary professor rights under the CBA, including, among other things, Section 11(G).
Pl.’s Mem. of Law in Opp’n 22, ¶ 19.
B.

In Early Fall 2013, Union Representatives Meet With Adjuncts To
Answer Questions About The CBA

In September, 2013, as a result of Plaintiff’s reaching out to other temporary professors,
Millhous and Dr. Jen Bacon, another professor and union representative, met with a group of
temporary professors. Pl.’s Mem. in Opp’n 22, ¶ 21. The purpose of the meeting was to answer
any questions that the temporary professors might have had regarding their rights and
responsibilities under the CBA. Shearn Dep. 52 (testifying that the meeting took place for “a lot
of different reasons. There were a lot of people that were, you know, coming up on 11-G, too.
So yeah . . . it was basically just to spread that knowledge. And of course, people . . . you know,
were . . . very, very surprised that—that it even existed”).
After the meeting, Bacon allegedly approached Defendant Williams to discuss “the
adjuncts, including WCU’s Article 11(G) Policy.” Pl.’s Mem. in Opp’n 8, ¶ 39. Meanwhile, in
early Fall 2013, the Dean of the College of Arts and Sciences, Lori Vermeulen, approved a
Department program aimed at hiring several new tenure-track faculty members. Pl.’s Mem. in
Opp’n 23, ¶ 27; see also Shearn Dep. 62:3–4. Ultimately, a number of Spanish professors and a
German tenure-track professor were hired. Shearn Dep. 62:3–4; Williams Dep. 90:20–24.
C.

In December 2013, Defendant Williams Announces The Hiring Of
Tenure-Track Faculty And The Effect On Available Courses For
Adjuncts

On or about November 26, 2013, Defendant Williams emailed the Department’s adjunct
professors to schedule a meeting to discuss the impact that the hiring of these new tenure-track
professors would have on the Department.

Pl.’s Mem. in Opp’n 24, ¶ 28.

The meeting

ultimately took place in early December (“December Adjuncts Meeting”). Pl.’s Mem. in Opp’n
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9, ¶ 43. At the meeting, Defendant Williams announced that the Department would be hiring
new tenure-track faculty members and that the hiring would result in a reduction in the number
of courses available for adjunct professors to teach. See Pl.’s Mem. in Opp’n Ex. M, at 3
(providing that it was Plaintiff’s recollection that Defendant Williams explained that the “55
courses normally available to Spanish adjuncts would be reduced to 15”); Williams Dep. 118:18
(testifying that “many of the adjuncts would be reduced”).
At this December Adjuncts Meeting, and for the first time, Professor Theresa
Mehringer—another professor in the Department—asked Defendant Williams directly about the
Department’s position regarding Section 11(G). See Shearn Dep. 54 (providing that Plaintiff did
not directly discuss Section 11(G) with Defendant Williams until the December Adjuncts
Meeting); Pl.’s Mem. in Opp’n 11, ¶ 52; Shearn Dep. 63 (recalling that Mehringer, and not
Plaintiff, stated “‘What about article 11G? We have people who qualify for conversion’”). In
response to Mehringer’s inquiry, Defendant Williams explained that the Department “did not
honor article 11G, that new people with skills that we don’t currently employ is what the
department wants.” Pl.’s Mem. in Opp’n, Ex. M, at 3. The temporary professors “couldn’t
believe it.” Shearn Dep. 59:3–13. They were shocked to learn that the Department would not
implement Section 11(G). Id. At that time, there was no further “follow-up by either Mehringer
or by [Plaintiff] in response to Defendant Williams’ remarks on Section 11(G). Id. at 59:12.
D.

Adjunct Professors’ Teaching Schedules Released; Plaintiff Receives
One Fewer Class Than Prior Semester

After this meeting, on December 23, 2013, teaching schedules for the Spring semester
were released and showed that two people, Theresa Mehringer and Plaintiff, had a reduced
schedule relative to the prior semester. Vermeulen Dep. 82; Shearn Dep. 123. As a result of the
reduction of Plaintiff’s schedule from a full to a partial load, Plaintiff no longer qualified for
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certain benefits. Pl.’s Mem. in Opp’n 12, ¶ 61. Though she was unaware that she would have
qualified for a Section 11(G) conversion vote at that time, her reduced schedule also resulted in
her loss of eligibility for a Section 11(G) conversion vote. Id.
E.

Plaintiff Viewed The Reduction In Her Course Load As Retaliation
Prompting Plaintiff To Seek Assistance From The Dean

After seeking help within the Department to increase her teaching load from partial to
full, without success, Plaintiff contacted Dean Vermeulen. Shearn Dep. 144–45. The two met
and Plaintiff expressed her frustration with her reduced course load and also reported what had
transpired during the December Adjuncts Meeting between Defendant Williams and the
adjuncts.

Id.

Following this meeting, Dean Vermeulen, however, chose not to increase

Plaintiff’s schedule because Dean Vermeulen had reviewed the Department schedule for all
adjuncts and it appeared that the classes were generally evenly distributed. Pl.’s Mem. in Opp’n
26, ¶ 40. Further, Dean Vermeulen reasoned that increasing Plaintiff’s course load would reduce
course loads for other temporary professors. See id. (admitting that “Dean Vermeulen did not
change [P]laintiff’s schedule to add another class because she saw that more than one person had
less than a full-time schedule, that the classes for temporary faculty seemed evenly distributed
and if she changed [P]laintiff’s schedule then someone else would have less than a full-time
schedule.”).
Though on a partial schedule, Plaintiff remained employed by WCU through Fall 2014
semester as she taught a course in WCU’s Women’s Studies Department. Shearn Dep. 191–92.
F.

Plaintiff Files An Employee Grievance; Plaintiff Files A Lawsuit

In 2014, Plaintiff filed an employee grievance against WCU. Pl.’s Mem. in Opp’n 26,
¶ 41; id. at 14, ¶ 74; id. at Ex. M. Among other things, Plaintiff focused her grievance on the
adverse changes to her employment status and her frustration with the Department’s apparent
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disregard for her efforts to improve WCU. See generally Pl.’s Mem. in Opp’n, Ex. M. In her
grievance, Plaintiff asserted:
I have learned through the years that I am expected to take what I am given and
be thankful that I have four classes and can afford to receive medical benefits for
my family
....
I have been declined support from my chair to advance professionally and serve
my department . . . . Refusal to support [my] efforts, or any effort to advance
myself for that matter, became clear during the summer, 2013
....
[Defendant Williams] did not thank us for our years of service while he was
telling us that new faculty members would be replacing us
....
A few days later we received a memo from Jerry that said he was reducing some
of our teaching loads due to low enrollment. I was the only one who received a
reduced load
....
I am a senior adjunct who depends on health benefits for my family, yet he gave
courses to instructors that teach only one course and have full-time jobs
....
During the winter break I lost health benefits
....
I realized that my load was cut back intentionally. It was my 10th semester fulltime, and I would be eligible for article 11G . . . . I was punished because of my
involvement with the union and my knowledge of article 11G.
Id. at 2–4. Four actions were requested to resolve Plaintiff’s employment grievance:
1.
2.
3.

4.

Management will cease and desist denying conversion vote opportunities
by reducing faculty teaching loads.
Management will restore Prof. Shearn’s full-time status for Spring 2014
semester, including restoration of benefits appropriate to her workload.
Management will instruct the Department of Languages and Cultures to
conduct a conversion vote for Professor Shearn in compliance with Article
11G of the CBA.
Management will make Professor Shearn whole for all losses, financial
and otherwise, with interest.

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Id. at 7. Later, WCU offered to settle Plaintiff’s employment grievance. Pl.’s Mem. in Opp’n
27, ¶ 52. A union representative, who was not authorized to accept WCU’s settlement offer
because of the level at which Plaintiff’s grievance was filed, mistakenly accepted the settlement
on Plaintiff’s behalf. Id. at 27, ¶ 55–56; id. at 27, ¶ 60. In the time between Plaintiff’s first
submission of her grievance, and the unauthorized settlement, Plaintiff filed the present lawsuit.
Id. at 26, ¶ 43. After the filing of her lawsuit, Plaintiff continued through the employee
grievance process, but was unable to reach a resolution. Id. at 28, ¶ 67.
II.

PROCEDURAL HISTORY
On March 20, 2014, Plaintiff filed a Complaint alleging state law causes of action against

Defendants in the Court of Common Pleas of Philadelphia County. In response to the
Complaint, Defendants filed Preliminary Objections, the state equivalent to a federal motion to
dismiss. In response to the Preliminary Objections, Plaintiff filed an Amended Complaint
asserting new federal law claims including a claim against Defendants for a violation of the First
Amendment and a claim under 42 U.S.C. § 1983. As the Amended Complaint alleged claims
arising from federal law, Defendants removed the case to this Court.
After removal to this Court, Plaintiff filed a Second Amended Complaint and Defendants
filed a Motion to Dismiss. On October 24, 2014, the Court issued an Order granting the Motion
to Dismiss in part and denying it in part. The Court granted the Motion to Dismiss as to Count
III (Violation of Plaintiff’s Rights Under 42 U.S.C. § 1983) because Plaintiff’s “speech relating
to Defendants’ purported violations of the CBA did not pertain to matters of public concern and
is without First Amendment protection.” The Court denied the Motion to Dismiss as to Count II
(Violation of Plaintiff’s First Amendment Rights). In view of the Court’s October 24, 2014

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Order, therefore, the only remaining counts in this matter are Count I (Violation of Pennsylvania
Whistleblower Act) and Count II (Violation of Plaintiff’s First Amendment Rights).
After extensive discovery, Defendants filed the present Motion for Summary Judgment.
Defendants seek summary judgment on the two remaining counts of Plaintiff’s Second Amended
Complaint.
III.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, courts shall grant summary judgment in favor

of the moving party “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. A fact is
“material” if it is “one that might ‘affect the outcome of the suit under governing law.’” Smith v.
Johnson & Johnson, 593 F.3d 280, 284 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). A dispute as to a material fact is “genuine” if it “is one that ‘may
reasonably be resolved in favor of either party.’” Lomando v. United States, 667 F.3d 363, 371
(3d Cir. 2011) (quoting Anderson, 477 U.S. at 250).
The movant has the initial “burden of identifying specific portions of the record that
establish the absence of a genuine issue of material fact.” Santini v. Fuentes, 795 F.3d 410, 416
(3d Cir. 2015). If the movant can sustain its initial burden, “the burden shifts to the nonmoving
party to go beyond the pleadings and ‘come forward with specific facts showing that there is
a genuine issue for trial.’” Id. (internal quotation marks omitted) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). When assessing a motion for
summary judgment, the court “must construe all evidence in the light most favorable to the
nonmoving party.” Id. Still, the court must be mindful that, “[t]he mere existence of a scintilla

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of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on
which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
IV.

DISCUSSION
A.

Plaintiff’s Claim Under The Pennsylvania Whistleblower Act

Plaintiff has failed to establish the prima facie case for a claim under the Pennsylvania
Whistleblower Act (“Whistleblower Act”) because Plaintiff cannot demonstrate “by concrete
facts or surrounding circumstances that the report of wrongdoing or waste led to the plaintiff’s
dismissal.” Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1070 (Pa. Commw. Ct. 2013)
(citing Golaschevsky v. Dep’t of Envtl. Res., 683 A.2d 1299, 1304 (Pa. Commw. Ct. 1996)).
The Whistleblower Act provides, in pertinent part:
(a)
Persons not to be discharged.—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 by a public body or an instance of
waste by any other employer as defined in this act.
(b)
Discrimination prohibited.—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 is requested by an appropriate authority to participate in an
investigation, hearing or inquiry held by an appropriate authority or in a court
action.
43 Pa. Stat. and Cons. Stat. Ann. § 1423 (West 2016).
To establish the prima facie case of retaliation under these provisions of the
Whistleblower Act, a plaintiff must prove “by a preponderance of the evidence, that, prior to the
alleged acts of retaliation, [s]he had made a good faith report of wrongdoing to appropriate
authorities . . . [and] [t]he plaintiff must come forward with some evidence of a connection
between the report of wrongdoing and the alleged retaliatory acts.” Kimes v. Univ. of Scranton,
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126 F. Supp. 3d 477, 504 (M.D. Pa. 2015) (citing O’Rourke v. Commonwealth, 778 A.2d 1194
(Pa. 2001)) (emphasis added). The connection between the report of wrongdoing and the alleged
retaliatory acts must be “demonstrated by concrete facts or surrounding circumstances.” Evans,
81 A.3d at 1070 (internal quotation omitted).
The type of concrete facts that can establish a causal connection includes evidence that
the reporting employee received “specific direction or information . . . not to file the report or
that there would be adverse consequences because the report was filed.” Evans, 81 A.3d at 1070
(citing Golaschevsky, 683 A.2d at 1304). “‘[V]ague and inconclusive circumstantial evidence’ is
insufficient to satisfy that threshold burden to show a causal connection.” Id. Among other
forms of circumstantial evidence that Pennsylvania courts have found insufficient to establish a
causal connection is the fact that a plaintiff may have suffered harm by the employer after the
alleged reporting of the employer’s wrongdoing. Thus, “the mere fact that [a plaintiff’s]
discharge occurred a few months after [plaintiff’s] report of wrongdoing . . . by the employer . . .
are not enough to show a causal connection.” Id. Evans illustrates some of the facts that courts
have found insufficient to show the requisite causal connection under the Whistleblower Act. Id.
In Evans, the plaintiff, a nurse, sued her employer and the director of the drug treatment
center where she worked for allegedly retaliating against the plaintiff after she reported the
director for violating a work policy prohibiting the distribution of methadone to patients that
might be intoxicated. 81 A.3d at 1064. After the plaintiff’s report of the director’s wrongdoing,
the plaintiff suffered a number of allegedly retaliatory employment actions. Id. at 1066. These
retaliatory actions included, among other things: the director acting rude or hostile toward the
plaintiff, the plaintiff’s annual performance rating dropping from “outstanding” before her report
of wrongdoing to only “effective” after the report, the plaintiff receiving formal disciplinary

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warnings regarding her interactions with patients, the plaintiff’s suspension for three days
without pay, and the plaintiff’s indefinite suspension without pay for an interaction she had with
a new employee. Id. at 1066–68. Ultimately, the plaintiff was terminated. Id.
The trial court dismissed plaintiff’s case. Evans, 81 A.3d at 1068. The appellate court
later affirmed the trial court’s ruling and agreed that the plaintiff had failed to establish “by
concrete facts or surrounding circumstances that the report of wrongdoing or waste led to the
plaintiff’s dismissal.” Id. The plaintiff argued that despite the lack of direct evidence linking the
adverse employment actions to her report, there was more than ample indirect evidence to allow
her claim to survive a motion for summary judgment. Id. In particular, the plaintiff argued that
three facts established the causal connection between her report of wrongdoing and her
employer’s allegedly retaliatory actions. These three facts were that:
1.

2.

3.

the [plaintiff’s] discharge and most or all of the warnings and disciplinary
actions for conduct toward patients and coworkers occurred after the
report;
she received a rating of “Outstanding” in her annual review nine months
before the report and a lower, but satisfactory, rating of “Effective” in her
annual review a few months after the report; and
she felt that [her supervisor] treated her differently and in a hostile manner
after the report.

Id. at 1070.
The appellate court, however, disagreed with the plaintiff and held that the facts
presented by the plaintiff were insufficient to establish a causal connection. Evans, 81 A.3d at
1071. The appellate court reasoned that the facts before it were similar to the facts that the
Pennsylvania Supreme Court in Golaschevsky found insufficient under the Whistleblower Act to
establish a prima facie case of retaliation. Id.

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As the appellate court in Evans noted, the Pennsylvania Supreme Court in Golaschevsky
held that a plaintiff failed to show the requisite causal connection between his report of alleged
wrongdoing and his adverse employment action despite the plaintiff’s showing:
1.

2.
3.
4.

that he received a negative performance evaluation three weeks after
his report of wrongdoing and another negative evaluation four months
after his report;
that he had not been told of any problems with his work before his
report of wrongdoing;
that his supervisor got angry with him when he made the report; and
that he subjectively felt that supervisors and co-workers treated him
differently and stopped co-operating with him after the report.

Evans, 81 A.3d at 1071 (citing Golaschevsky, 720 A.2d at 759–60). In view of the Pennsylvania
Supreme Court’s holding in Golaschevsky, the appellate court in Evans affirmed the trial court’s
decision to grant judgment against the plaintiff because she had not adduced sufficient evidence
to establish a causal connection. Evans, 81 A.3d at 1071.
In the present case, Plaintiff has not—just as the plaintiffs in Evans and Golaschevsky
had not—shown by concrete facts or by surrounding circumstances that the adverse employment
actions taken against her are causally connected to her report of Defendants’ alleged
wrongdoing, namely, her report that Defendants would not implement Section 11(G) of the
CBA. Plaintiff’s facts in support of finding causation are analogous to those facts that were
expressly held insufficient by the Pennsylvania Supreme Court in Golaschevsky and the appellate
court in Evans.
Here, the Court focuses on three factors, among others, that bar a finding that Plaintiff
has shown a causal connection by concrete facts or by surrounding circumstances in this case.
First, even before Plaintiff knew of the existence of Section 11(G) and before Plaintiff reported
any wrongdoing at all, Plaintiff had already experienced what she perceived to be adverse
changes to her employment, some of which Plaintiff points to as evidence of retaliation. Second,
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Plaintiff was notified that all temporary professors would be adversely affected by tenure-track
faculty program before Plaintiff was aware that the Department and Defendant Williams would
not implement Section 11(G). Third, while Plaintiff may have experienced additional adverse
changes to her employment after her purported report of wrongdoing, these adverse changes,
without more, cannot establish a causal connection under the Whistleblower Act as a matter of
law.
First, by the time of her alleged report, Plaintiff had already complained of a number of
adverse changes to her employment. Therefore, all of the alleged retaliatory actions that Plaintiff
claims were the result of her report cannot all be attributed to the fact that she made an alleged
report. In fact, approximately three months before Plaintiff made her alleged report, Plaintiff
complained that Defendant Williams:
was not responding to [Plaintiff] at all. And at that point, like I knew—and it was
happening to a lot of us. A lot of weird things were happening . . . changes in our
schedules, and you know, not teaching classes that we had previously taught. So I
basically wanted to know . . . well how was this decided how do they bring
somebody out from another . . . place somebody that they don’t even know and—
you know, and bring them in to teach all of these open classes.
Shearn Dep. 38–39. This portion of Plaintiffs own testimony shows that as early as Summer
2013 Plaintiff was experiencing negative changes to her employment at WCU. Among other
things, she had requested to teach additional courses, but was not chosen to teach those courses.
Id. at 38. Instead, those courses were assigned to a new professor who had never taught in the
Department. Id. By this time, Plaintiff also noted a shift in her relationship with Defendant
Williams as Williams was “not responding to [her] at all.” Id.
By the beginning of Fall 2013, but again, before Plaintiff’s purported report, Plaintiff,
and others in the Department, perceived that the Department had transformed into a “hostile
work environment.” Id. at 53. It is undisputed that these alleged adverse changes to Plaintiff’s
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employment and the transformation of the Department into a “hostile work environment”
occurred before Plaintiff’s purported report that the Department would not implement Section
11(G) of the CBA.
Second, Plaintiff only became aware that the Department would not implement Section
11(G) after Defendant Williams had announced that the tenure-track faculty hiring program
would reduce the number of available courses for temporary professors to teach in the ensuing
semesters. It was only after Defendant Williams had notified the temporary professors of the
forthcoming course reduction that Theresa Mehringer, not Plaintiff, asked Defendant Williams
“what about [Section] 11-G?” Shearn Dep. 58. Defendant William’s announcement regarding
the course reductions is what Plaintiff contends “constructively terminated” her employment.
See Pl.’s Mem. in Opp’n 9–10 (asserting that “Williams Retaliates by Constructively
Discharging the Adjuncts.”). Accordingly, the “constructive discharge” to which Plaintiff points
as evidence of retaliation occurred before Plaintiff made her report and cannot logically be
evidence of retaliation.
Third, although additional adverse changes to Plaintiff’s employment occurred after her
alleged report of wrongdoing, the Court is constrained by the law and may not infer that these
adverse changes were precipitated by her report simply by virtue of their temporal proximity to
the report. This outcome is consistent with the outcomes in Evans and Golaschevsky where even
when the employers’ behavior toward the reporting employees changed dramatically after the
report, such behavior was insufficient to establish a causal connection. In Evans, for example,
the appellate court was unpersuaded that the plaintiff had shown a causal connection between her
report and her employer’s alleged retaliatory conduct even in the face of facts that showed that
after her report, the plaintiff’s performance evaluation dropped from “outstanding” to merely

15

“effective.” Evans, 81 A.3d at 1071. Likewise, in Golaschevsky, the Pennsylvania Supreme
Court was unpersuaded that the plaintiff had shown a causal connection even in the face of facts
that showed that after his report of wrongdoing, he received poor evaluations of his work despite
previously never having received a complaint. 720 A.2d at 759–60.
Like the facts in Evans and Golaschevsky, the facts presently before the Court do not
support a finding of causal connection. This is especially true because unlike in Evans and
Golaschevsky, in this case, there was no drastic change in Plaintiff’s station or reputation in the
Department after her report. Indeed, her experience in the Department after her report was, if
anything, consistent with her experience before her report. For example, after her report,
Plaintiff received one fewer course to teach than she normally received, which was consistent
with her earlier experience in the Summer 2013 when she did not receive any summer courses to
teach despite multiple requests for the courses. Shearn Dep. 38.
In view of the adverse changes to Plaintiff’s employment that predated her report, and in
view of the fact that Defendant Williams had already announced other adverse changes to
Plaintiff’s and other temporary professors’ employment before Plaintiff made her report of
wrongdoing, the Court finds that Plaintiff cannot meet the causal connection element of the
prima facie case under the Whistleblower Act. That Plaintiff’s conditions of employment may
have changed for the worse after her purported report of wrongdoing does not suffice, without
more, to establish a causal connection. Having failed to establish such causal connection,
Defendants motion for summary judgment on Plaintiff’s claim under the Whistleblower Act
must be granted, and the claim dismissed.

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B.

Plaintiff’s First Amendment Claim

Having granted Defendants’ Motion for Summary Judgment on Plaintiff’s claim under
the Whistleblower Act, Plaintiff’s sole remaining cause of action, as set forth in Count II of the
Second Amended Complaint, is her claim under the Petition Clause of the First Amendment. In
connection with Count II, Plaintiff asserts that Defendants retaliated against her for exercising
her First Amendment petition rights when she filed her employee grievance and when she filed
the present lawsuit. Consistent with the Court’s dismissal of Count III of Plaintiff’s Second
Amended Complaint, the Court must also dismiss Count II because Plaintiff’s petition activity
does not involve matters of public concern, but rather matters of private concern, namely, her
personal conditions of employment and tenure.
It is well-established that “[t]o state a First Amendment retaliation claim, a public
employee plaintiff must allege that his activity is protected by the First Amendment, and that the
protected activity was a substantial factor in the alleged retaliatory action.” Gorum v. Sessoms,
561 F.3d 179, 184 (3d Cir. 2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir.
2006)). Typically, First Amendment retaliation claims arise from either the Amendment’s
Speech Clause or Petition Clause. In either case, the United States Supreme Court has held that
the framework for evaluating whether the alleged activity by a plaintiff is protected is the same
for the purposes of a retaliation claim. Borough of Duryea v. Guarnieri, 564 U.S. 379, 408
(2011) (holding that the “framework used to govern Speech Clause claims” will also apply to
claims arising out of the Petition Clause). Activity is protected under the Petition Clause, when
(1) the petition was made by the plaintiff acting as a citizen, (2) the petition involved a matter of
public concern, and (3) the government employer did not have adequate justification for treating
the employee differently from any other member of the general public as a result of the petition.

17

Gorum, 561 F.3d at 185 (citing Hill, 455 F.3d at 241). It is the second factor of this three-factor
framework that is critical in this case.
The United States Supreme Court has held that speech, or other activity, implicates a
matter of public concern when “it can be ‘fairly considered as relating to any matter of political,
social or other concern to the community’ . . . or when ‘it is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to the public.’” Munroe v. Cent.
Bucks Sch. Dist., 805 F.3d 454, 467 (3d Cir. 2015) (citing Snyder v. Phelps, 562 U.S. 443, 453
(2011)). The question of whether “an employee’s speech [or activity] addresses a matter of
public concern must be determined by the content, form, and context of a given statement [or
activity], as revealed by the whole record.” Id. at 467–68. As a general rule, courts have held
that activity that relates “solely to mundane employment grievances does not implicate a matter
of public concern.” Id. at 467 (emphasis added) (citing Sanguigni v. Pittsburgh Bd. of Pub.
Educ., 968 F.2d 393, 399 (3d Cir.1992)). That the content, form, and context of a purportedly
protected activity must inform a court’s decision in this inquiry was made clear in the Third
Circuit case Miller v. Clinton Cty., 544 F.3d 542 (3d Cir. 2008).
In Miller, the Third Circuit reversed a trial court decision that Miller, a county probation
officer, had established the prima facie case for retaliation under the First Amendment. 544 F.3d
at 545. The Third Circuit held that even though Miller’s speech touched upon some matters of
public concern, Miller’s claim should have been dismissed because her alleged speech was
unprotected as it, at its core, was an employee grievance and, therefore, a matter of personal
concern.
Employed as a county probation officer, Miller observed one of her supervisors openly
express disdain for their probationers. Id. at 546. Among other things, Miller’s supervisor

18

referred to the probationers as “scum,” stated that “they did not deserve the money that the
Probation Office spent on them,” and appeared to have a direct philosophical conflict with Miller
and with the mission of the probation office. Id. Miller further noted that as a result of her
conflict with her supervisor, her supervisor actively intimidated Miller and subjected Miller to
hostility “numerous times throughout [Miller’s] employment,” which engendered “stressful
conditions” in the probation office. Id.
Deeply troubled by her supervisor’s thoughts and actions and the conditions of her
employment, Miller sent a letter to the President Judge of the county’s trial court expressing her
concerns about the probation office, criticizing her supervisors, and reporting that the office was
being managed ineffectively. Miller, 544 F.3d at 550. Upon receiving the letter, the President
Judge fired Miller. Id. at 546. Shortly after her termination, Miller filed suit for, among other
things, retaliation under the First Amendment. Id. Following the denial of the defendants’
Motion to Dismiss, the defendants appealed. Id.
On appeal, the Third Circuit held that Miller failed to establish the prima facie case for
retaliation because her letter was a private employee grievance, despite the fact that it spoke on
matters of public concern and, therefore, was not protected under the First Amendment. Id. at
551. In reaching this conclusion, the Third Circuit acknowledged that while Miller’s letter
“undoubtedly refer[ed] to matters of public concern,” the Third Circuit could “not ‘cherry pick’
something that may impact the public while ignoring the manner and context in which [the letter]
was made or that public concern expressed.” Id. at 550.
Proceeding with a holistic view of the letter and the facts before it, the Third Circuit
found that the portions of the letter that touched upon matters of public concern were merely
“collateral to the thrust of her complaint.” Id. at 551. The thrust of Miller’s complaint, by

19

contrast, consisted of her grievances relating to the “stressful conditions” of her workplace,
including her suffering intimidation and hostility from her supervisor. Id. In short, the “personal
context in which Miller’s letter arose, in addition to the tangential connection between the issues
of public concern and the overall thrust of the letter so minimizes any public concern in the
subject of her expression as to tip the First Amendment balance in favor of her employer.” Id.
In the present case, the Court concludes that in view of the context, form, and content of
Plaintiff’s purportedly protected activity, Plaintiff’s activity was, in fact, unprotected because the
activity did not involve a matter of public concern. For this reason, Defendants’ Motion for
Summary Judgment must be granted and Plaintiff’s claim of retaliation, as set forth in Count II
of the Second Amended Complaint, is dismissed. 1 The Court reaches this conclusion despite the
fact that Plaintiff’s petition may have touched upon matters of public concern. Such a result is
consistent with the logic and holding articulated by the Third Circuit in Miller.
As the Third Circuit in Miller made clear, when determining whether allegedly protected
activity involves matters of public concern, courts must consider the context from which the
activity arose including the “thrust” of the activity. Miller, 544 F.3d at 551. Here, the context
elucidates the personal nature of Plaintiff’s activity. All of Plaintiff’s activities, including her
employee grievance and subsequent law suit, stemmed from her initial frustration regarding her
treatment by Defendant Williams in and around Summer 2013.
Plaintiff’s initial reason for meeting with the union in May 2013 demonstrates the
personal nature of her concern. By Plaintiff’s own account she sought out the assistance of the
union because:
1

Plaintiff’s claim is dismissed despite the Court’s earlier statement in its Order dated October
24, 2014 that Plaintiff met the first prong of prima facie case for retaliation under the First
Amendment. Accordingly, to the extent that the October 24, 2014 Order is inconsistent with this
Memorandum on Count II, this Memorandum controls.
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[Plaintiff] reached out to Mr. Williams and requested summer teaching
assignments . . . . I was confused to learn that a new adjunct (with no prior history
in our department) had been hired and that he/she was given four summer courses.
Numerous incidents occurred consecutively that brought me to the union
president, Lisa Milhaus. I was interested in understanding how our chair arrives
at his decisions and what rights, if any, were afforded to me, a temp faculty
member. She listened to my issues and told me about article 11G of the CBA and
that departments were implementing this article.
Pl.’s Mem. in Opp’n Ex. M, at 2. In this time period, Plaintiff also explained that Defendant
Williams:
was not responding to [Plaintiff] at all. And at that point, like I knew—and it was
happening to a lot of us. A lot of weird things were happening . . . changes in our
schedules, and you know, not teaching classes that we had previously taught. So I
basically wanted to know . . . well how was this decided how do they bring
somebody out from another . . . place somebody that they don’t even know and—
you know, and bring them in to teach all of these open classes.
Shearn Dep. 38–39. While Plaintiff makes some reference to “us” and “we,” the main thrust of
her concern was the conditions of her own employment. That Plaintiff’s employment conditions
mirrored those of other temporary professors in this time period reinforced Plaintiff’s feelings of
frustration with her “hostile work environment.” Thus, Plaintiff’s own explanations of her intent
in this early time period show that the primary reason for her subsequent actions was personal
and related to the conditions of her employment.
Nevertheless, under these circumstances, it is understandable that Plaintiff sought out the
assistance of the union. The Department had apparently passed over Plaintiff for a new professor
with no experience in the Department and Defendant Williams had become less responsive to her
communications and requests for professional advancement. Though understandable, these
concerns and slights against Plaintiff remained personal. As Plaintiff’s testimony shows, it was
these personal concerns and slights that drove her desire to seek out the help of the union and
ultimately drove her to file an employment grievance and this lawsuit. In short, the context out

21

of which Plaintiff’s purportedly protected activity arose shows that Plaintiff’s activity involved
her personal employment concerns—such as the adverse changes to her relationship with
Defendant Williams, and her losing professional opportunities within the Department—not
public concerns.
The form of Plaintiff’s activity, an employee grievance followed by this lawsuit, similarly
demonstrates its personal nature. By this lawsuit, Plaintiff, in essence, brought her employee
grievance to the court system. While the court system, indeed, represents a public forum, the
mere transfer of an employee grievance—a matter of personal concern—to a court does not
transform the grievance into a public concern. See, e.g., Munroe, 805 F.3d at 467 (holding that
employee grievances are matters of private concern). Plaintiff’s formal and informal grievances
and her employers’ actions in response to those grievances cannot sustain her claim of retaliation
because these employment grievances are personal.
Careful review of Plaintiff’s employee grievance further reveals the personal thrust of her
activity. In her grievance, Plaintiff focuses her attention on those matters that affected her
personal advancement and well-being in the Department while only briefly brushing upon those
matters that could possibly be of public concern. For example, Plaintiff stated in her employee
grievance that:
I have learned through the years that I am expected to take what I am given and
be thankful for that I have four classes . . . . I have been declined support . . . .
Refusal to support [my] efforts, or any effort to advance myself . . . became clear .
. . . I was the only one who received a reduced load.”
Pl.’s Mem. in Opp’n Ex. M, at 2–4 . This excerpt shows that her focus remained on her own
treatment in the Department. Even those portions of Plaintiff’s grievance that arguably touched
upon matters of public concern, such as her statement that she “was punished because of my

22

involvement with the union,” are, at their core, further statements of personal frustration relating
to Plaintiff’s ongoing negative experience.
Beyond the form of Plaintiff’s petition activity, the content of Plaintiff’s petition and
purportedly protected activity further demonstrates the private nature of the concern. As this
Court previously held in its October 24, 2014 Order, consistent with the holdings in Milano v.
Bd. of Educ. of Franklin Twp. 2 and Ballard v. Blount, 3 the alleged violation of the CBA, namely
the Department’s failure to implement Section 11(G), were not themselves a public concern
because these matters pertained to Plaintiff’s potential tenure status. In the absence of unusual
circumstances, however, decisions relating to tenure are not matters of public concern.
See Milano, 2012 WL at *5 (holding that a plaintiff’s appeal of her employers decision not to
grant her tenure was not a matter of public concern for purposes of First Amendment retaliation
claim); Ballard, 581 F. Supp. at 164–65 (holding the same). The violations of the CBA,
therefore, do not sufficiently involve a matter of public concern for the purposes of Plaintiff’s
First Amendment retaliation claim.
In sum, the context, form, and content of Plaintiff’s purported protected activity spoke to
matters of private concern and not matters of public concern. To the extent that parts of
Plaintiff’s petition activity touched upon matters of public concern, such parts were merely
collateral to the thrust of her activity, which was personal. Accordingly, Plaintiff has failed to
meet the second requisite factor to state a claim for retaliation under the Petition Clause of the
First Amendment. Defendants’ Motion for Summary Judgment on this claim is granted and the
claim dismissed.

2
3

No. 11-6803, 2012 WL 5498012 (D.N.J. Nov. 13, 2012).
581 F. Supp. 160 (N.D. Ga. 1983).
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V.

CONCLUSION
For the reasons set forth herein, Defendants’ Motion for Summary Judgment is

GRANTED. An appropriate order follows.

24