Bellaman v. Corbett et al

Filing 65

MEMORANDUM AND ORDER/ORDER ADOPTING REPORT AND RECOMMENDATION: AND NOW, this 15th day July, 2011, upon con. of the mag. judge's R&R 52 , & plf.'s objs. 62 thereto, it is ordered that: 1. Pur. to plf.'s req., this action is dism' ;d as against deft., Thomas W. Corbett, Jr. 2. The mag. judge's R&R is adopted except for our disagreement noted in footnote 4 in the accom. memo. 3. Defts.' mtn. 43 to strike the declaration (39-2) of plf., Sherry Bellaman, is granted as to paras. 4-11 and 17-18 of the declaration. 4. Defts.' mtn. 45 to strike portions of plf.'s counter-stmt. (doc. 39) of undisputed material facts is granted as to paras. 23, 30, 31, 33, 39 )(to the extent plf. states Santana was given 3 mos. severance pay), 45(last sentence), 48 (further response), 50 (further response) 51-56, 82 (further response), 83, 85, (further response) 86, 90-92, 109 (further response), 117 (further response) 118 (further response), 119-121, 122 (further resp onbse), & 150. 5. Defts.' mtn. 45 to strike portions of plf.'s counter-stmt. is granted as to the following paras. in their entirety: paras. 50-56, 81-83, 85-86, 91-92, 94 & 136. Defts.' mtn. 45 is also granted as to the following paras. in their entirety: 34, 35, 37, 38, 41-45, 47, 48, 57-59, 61, 63, 69, 70, 75-77, 79, 88, 94, 104-106, 111, 116, 123, 125-132, 139 & 142-149. 6. Defts.' mtn. 30 for SJ is granted. 7. The Clerk of Crt. shall enter jgm. in favor of defts., Michael Roman, Jill Keiser, & Bruce J. Sarteschi, & against plf., on her First Amdmnt. right-to-association retaliation claim. 8. The crt. declines to exercise suppl. jurisdiction over the state-law claims (1) for intentional infliction of emotional distress, (2) for civil conspiracy, and (3) under the PA Whistlerblower Law, & those claims are dism'd w/out prejudice to pursuing them in state crt. 9. The Clerk of Crt. shall close this file. (See memo for complete details.) Signed by Honorable William W. Caldwell on 7/15/11. (am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHERRY E. BELLAMAN,
Plaintiff
vs.
TOM CORBETT, MIKE ROMAN,
BRUCE SARTESCHI, and JILL
KEISER
Defendants

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: CIVIL NO. 1:CV-09-470
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MEMORANDUM

Plaintiff, Sherry E. Bellaman, is an employee of the Financial Enforcement
Section (FES) in the Pennsylvania Office of Attorney General (OAG). She filed this
lawsuit against defendants, Thomas W. Corbett, Jr., formerly Pennsylvania’s Attorney
General1; Michael Roman, an FES administrative officer; Jill Keiser, an FES employee;
and Bruce J. Sarteschi, the OAG Human Resources Director. Plaintiff made the following
federal claims: (1) First Amendment retaliation claims based on her speech in generally
reporting fraud and waste in FES and on her specific reporting to her immediate
supervisor, Thomas D. Kimmett,2 that she observed two FES employees throwing out
financial documents important to FES’s purposes; (2) a First Amendment retaliation claim
based on her right of association with Kimmett; and (3) a First Amendment retaliation
1

Thomas Corbett is now the Governor of Pennsylvania. The lawsuit is based on
events that occurred while he was Attorney General.
2

Kimmett has filed his own lawsuit, docketed at No. 4:08-CV-1496.

claim based on her right to petition the government for redress of grievances. Plaintiff
made the following state-law claims: (1) intentional infliction of emotional distress; (2) civil
conspiracy; and (3) a claim under the Pennsylvania Whistleblower Law, 43 Pa. Stat. Ann.
§§ 1421-1428 (West 2009).
We are considering the report and recommendation of the magistrate judge,
which recommends that the defendants’ motion for summary judgment be granted on the
federal claims and that we decline to exercise our supplemental jurisdiction over the
state-law claims.
Plaintiff has filed two objections to the report. We must “make a de novo
determination of those portions of the report or specified proposed finding or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(c).
Before addressing the merits of the objections, we note that the defendants
filed (1) a motion to strike certain paragraphs of a declaration (doc. 39-2) Plaintiff had
filed in opposition to the defendants’ summary judgment motion and (2) a motion to strike
portions of Plaintiff’s counter-statement of undisputed material fact. Essentially, the basis
of both motions was that there was no evidence supporting the declaration or counterstatement, just conclusory assertions. The magistrate judge agreed with both motions
and relied on the defendants’ statement of material undisputed facts (except for ¶ 104) to
establish the summary-judgment record. He has also recommended that both motions
be granted. Plaintiff has not objected to this recommendation, although she argues that
even on the record as established by the magistrate judge, she is entitled to proceed with

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her case. Since Plaintiff does not object to the record as established by the magistrate
judge, in ruling on her objections we will rely on the record as set forth in the report.3
We also note that Plaintiff asserts in her brief in opposition to summary
judgment, (doc. 40, p. 4), that she voluntarily dismissed defendant Corbett from this
action. We see nothing on the record to indicate that, but like the defendants, we will
take the statement in her brief as a request to dismiss Governor Corbett, and will grant
that request. We turn now to the merits of Plaintiff’s objections.
“To state a First Amendment retaliation claim, a plaintiff must allege two
things: (1) that the activity in question is protected by the First Amendment, and (2) that
the protected activity was a substantial factor in the alleged retaliatory action.” Hill, 455
F.3d at 241. “A public employee's statement is protected activity when (1) in making it,
the employee spoke as a citizen, (2) the statement involved a matter of public concern,
and (3) the government employer did not have ‘an adequate justification for treating the
employee differently from any other member of the general public’ as a result of the
statement he made.” Id. at 241-42 (citing Garcetti v. Ceballos, 547 U.S. 410, 419, 126
S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006)).

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In her objections, Plaintiff asserts that her complaint is “heavily fact specific” and
that she incorporates it into her objections. (Doc. 63, p. 1). However, we are at the summaryjudgment stage of these proceedings, and Plaintiff can no longer rely upon the allegations of
her complaint. El v. Southeastern Pennsylvania Transp. Auth., 479 F.3d 232, 238 (3d Cir.
2007)(on a summary judgment motion, “[t]he non-moving party cannot rest on mere pleadings
or allegations”). Instead, she has to produce evidence. Id. Thus, as noted above, we look
solely to the record as established by the defendants.

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A public employee does not speak as a citizen when she makes a
statement “pursuant to [her] official duties . . . .” Garcetti v. Ceballos, 547 U.S. 410, 421,
126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006). If speech arises from “‘special
knowledge or experience’” an employee acquires while doing her job, the speech “might”
be considered part of her official duties. Gorum v. Sessums, 561 F.3d 179, 185 (3d Cir.
2009)(quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)).
The magistrate judge accepted the defendants’ argument that Plaintiff’s
First Amendment free-speech retaliation claims were meritless because her speech was
made as part of her job duties and as a result of specialized knowledge or experience
acquired through her job. He therefore recommended that the claims be dismissed.
Plaintiff objects to this conclusion, contending that there is no evidence of
“any guidelines, office custom, oath, or even a practice of reporting corruption in the
[OAG’s] office.” (Doc. 63, p.3). We disagree. The defendants’ statement of material
undisputed facts, in the paragraphs quoted by the magistrate judge at pages 26 through
28 of his report, fully support the conclusion that Plaintiff’s speech was part of her job
duties, either as described or as a result of special knowledge or experience she
acquired from her job.4 We will therefore dismiss the First Amendment free-speech
retaliation claims.

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However, we do disagree with the magistrate judge’s conclusion that Plaintiff’s
speech was not on matters of public concern.

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As to the First Amendment retaliation claim based on her right of
association with Kimmett, that claim “is barely an extension of [her] free speech claim.”
Bell v. City of Philadelphia, 275 F. App’x 157, 160 (3d Cir. 2008)(per curiam)
(nonprecedential). As such, we apply the same analysis used for free-speech claims,
including the requirement that Plaintiff show that she was speaking as a citizen. Id.
(applying the public-concern requirement to an associational claim that was essentially
the same as the plaintiff’s free-speech claim). See also Gorum, supra, 561 F.3d 179, 185
n.4 (3d Cir. 2009)(the plaintiff waived his associational claim, but even if he had not “his
associational claim is linked closely enough with his free-speech claim to justify
application of the citizen-speech and public-concern requirements”)(citing Sanguigni v.
Pittsburgh Bd. of Public Educ., 968 F.2d 393, 400 (3d Cir. 1992)). We will therefore
dismiss the First Amendment retaliation claim based on Plaintiff’s association with
Kimmett.
Plaintiff’s second objection is that the magistrate judge failed to address her
petition clause claim. Specifically, she argues that her right to petition the government for
redress of grievances was violated when Sarteschi retaliated against her for seeking
assistance from SEAP, the State Employees Assistance Program. We reject this position
because, as the defendants argue, Plaintiff only complains that Sarteschi was
“aggressive, accusatory and insulting to her at three meetings after she contacted SEAP.
(Doc. 40, Pl.’s Br. in Opp’n to Summary Judgment, at p. 18). This is not the type of

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conduct actionable in a First Amendment retaliation claim. Brennan v. Norton, 350 F.3d
399, 418-19 (3d Cir. 2003).
We will issue an appropriate order.

/s/William W. Caldwell
William W. Caldwell
United States District Judge

DATE: July 15, 2011

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHERRY E. BELLAMAN,
Plaintiff
vs.
TOM CORBETT, MIKE ROMAN,
BRUCE SARTESCHI, and JILL
KEISER
Defendants

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: CIVIL NO. 1:CV-09-470
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ORDER

AND NOW, this 15th day of July, 2011, upon consideration of the
magistrate judge’s report and recommendation (doc. 52), and Plaintiff’s objections (doc.
62) thereto, it is ordered that:
1. Pursuant to Plaintiff’s request, this action is dismissed as
against defendant, Thomas W. Corbett, Jr.
2. The magistrate judge’s report and recommendation is
adopted except for our disagreement noted in footnote 4 in
the accompanying memorandum.
3. Defendants’ motion (doc. 43) to strike the declaration
(doc. 39-2) of plaintiff, Sherry Bellaman, is granted as to
paragraphs 4-11 and 17-18 of the declaration.
4. Defendants’ motion (doc. 45) to strike portions of
Plaintiff’s counter-statement (doc. 39) of undisputed material
facts is granted as to paragraphs 23, 30, 31, 33, 39 (to the
extent Plaintiff states Santana was given three-months
severance pay), 45 (last sentence), 48 (further response), 50
(further response), 51-56, 82 (further response), 83, 85
(further response), 86, 90-92, 109 (further response), 117
(further response), 118 (further response), 119-121, 122
(further response), and 150.
5. Defendants’ motion (doc. 45) to strike portions of
Plaintiff’s counter-statement is granted as to the following

paragraphs in their entirety: paragraphs 50-56, 81-83, 85-86,
91-92, 94 and 136. Defendants’ motion (doc. 45) is also
granted as to the following paragraphs in their entirety: 34, 35,
37, 38, 41-45, 47, 48, 57-59, 61, 63, 69, 70, 75-77, 79, 88, 94,
104-106, 111, 116, 123, 125-132, 139 and 142-149.
6. Defendants’ motion (doc. 30) for summary judgment is
granted.
7. The Clerk of Court shall enter judgment in favor of
defendants, Michael Roman, Jill Keiser, and Bruce J.
Sarteschi, and against Plaintiff, on her First Amendment freespeech retaliation claims, her First Amendment right-ofassociation retaliation claim, and her First Amendment rightto-petition retaliation claim.
8. The court declines to exercise supplemental jurisdiction
over the state-law claims (1) for intentional infliction of
emotional distress, (2) for civil conspiracy, and (3) under the
Pennsylvania Whistleblower Law, and those claims are
dismissed without prejudice to pursuing them in state court.
9. The Clerk of Court shall close this file.
/s/William W. Caldwell
William W. Caldwell
United States District Judge