McCartney v. Pennsylvania State Police et al

Filing 64

MEMORANDUM and ORDER overruling objections to the report and recommendation; ADOPTING 57 the Report and Recommendation of Magistrate Judge Prince; and GRANTING motion for summary judgment; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 7/29/11 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WENDY McCARTNEY,

:
No. 1:09cv1817
:
Plaintiff
:
(Judge Munley)
:
v.
:
:
PENNSYLVANIA STATE
:
POLICE, DANIEL HAWK, :
DENNIS SMOLKO, EARL :
KILLION, CHARLES
:
STROBERT, THOMAS
:
BUTLER, and PATRICK
:
GEBHART,
:
:
Defendants
:
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition are the plaintiff’s objections to the
magistrate judge’s report and recommendation which proposes that the
defendants’ motion for summary judgment be granted and that the
plaintiff’s complaint be dismissed. The objections have been briefed and
are ripe for disposition.
BACKGROUND1
This case involves claims against individual officers of the
Pennsylvania State Police (“PSP”) and the PSP itself, brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and, via 42
U.S.C. § 1983, the Equal Protection Clause of the Fourteenth Amendment
1

The court largely adopts and incorporates the background section
of Magistrate Judge William T. Prince’s report and recommendation. (See
Report & Recommendation; Doc. 57, at 1-30). We do so noting generally
that the plaintiff does not object to the accuracy of the magistrate judge’s
statement of the facts of the case, but only disagrees with the magistrate
judge’s evaluation of the facts in relation to the legal standard on a motion
for summary judgment. In several instances, we have added facts which
the plaintiff referred to in opposing the motion for summary judgment.

and a theory of retaliation under the First Amendment.
(A) Facts of the case
For the most part, the events relevant to this case took place
between April 2005 and December 2008, when Plaintiff Wendy McCartney
(“McCartney”) worked at the Altoona District Office of the Pennsylvania
Bureau of Liquor Control and Enforcement (“BLCE”), a division of the PSP.
(1) The parties
(a) Wendy McCartney
Plaintiff Wendy McCartney (“McCartney”) began working for the PSP
as a Liquor Enforcement Officer (LEO) in the Philadelphia office of the
BLCE. (Doc. 37, ¶ 11; Doc. 50, ¶ 11). She transferred to the Pittsburgh
office in 2003. (Doc. 37, ¶ 14; Doc. 50, ¶ 14). While in Pittsburgh,
McCartney worked with Defendant Dennis Smolko (“Smolko”). (Doc. 37, ¶
15; Doc. 50, ¶ 15).
On or about April 25, 2005, McCartney transferred from the
Pittsburgh District Office to the Altoona District Office of the BLCE. (Doc.
37, ¶ 22; Doc. 50, ¶ 22). Shortly after she moved to Altoona, she was in a
car accident and went on medical leave “for a considerable part of 2005.”
(McCartney Dep. 39:13–18, May 19, 2010, Doc. 38-2, at 32). Records
indicate that she had four extended periods of absence: April 28, 2005 to
July 22, 2005 (62 days); September 1, 2005 to January 3, 2006 (89 days);
September 24, 2007 to December 28, 2007 (70 days); and May 5, 2008 to
July 11, 2008 (50 days). (McCartney Dep. 181:4–186:14, Doc. 38-3, at
14–19; Overview of Absences for Wendy R. McCartney, Doc. 38-6, at
25–34). At some point, McCartney requested an Americans with
Disabilities Act (“ADA”) accommodation, but her request was denied.
(McCartney Dep. 16:17–20, Doc. 38-2, at 16).
(b) Daniel Hawk
2

Defendant Daniel Hawk (“Hawk”) was a sergeant in the PSP and was
the District Office Commander (“DOC”) in the Altoona District from
February 13, 2006, until his retirement on January 12, 2007. (Hawk Decl.
¶ 1, Aug. 8, 2010, Doc. 38-6, at 10; McCartney Dep. 96:21–97:5, Doc. 382, at 59–60; id. 134:9–14, Doc. 38-2, at 89). According to Hawk, upon
transferring to Altoona, he had a meeting with all office staff, including
McCartney, and told staff that profanity would not be tolerated. (Hawk
Decl. ¶ 4, Doc. 38-6, 2 at 11).
(c) Dennis Smolko
Defendant Dennis Smolko (“Smolko”) was an Enforcement Officer 3
(“EO3") with the BLCE and has held that position until the present time.
(Smolko Decl. ¶ 1, Aug. 25, 2010, Doc. 38-5, at 60). Smolko stated that he
was McCartney’s direct supervisor from March 2004 to July 2004 in the
Pittsburgh District Office. (Id. ¶ 2). McCartney states that she has no
memory of him being her supervisor. (McCartney Dep. 25:7–16, Doc. 48-2,
at 6).
(d) Earl Killion
Defendant Earl Killion (“Killion”) was an LEO for the PSP BLCE who
worked at the Altoona office. (Doc. 37, ¶ 33; Doc. 50, ¶ 33). For a time in
2006 and 2007, he was an Acting EO3. (Id.) He has worked at the
Altoona office from 1996 until the present. (Killion Decl. ¶ 1, Aug. 2010, 4
Doc. 38-6, at 37).
(e) Charles Strobert
Defendant Charles Strobert (“Strobert”) was a sergeant in the PSP.
(Strobert Decl. ¶ 1, Aug. 2010, Doc. 38-6, at 59). Until January 8, 2006, he
was the District Office Commander (“DOC”) in the Altoona district; he was

3

then transferred to the Lewistown PSP barracks.2 (Id.)
(f) Thomas Butler
Defendant Thomas Butler (“Butler”) was a captain with the PSP in
the BLCE and was then the Director of Operations. (Butler Decl. ¶ 1, Aug.
25, 2010, Doc. 38-7, at 7; McCartney Dep. 380:7–15, Doc. 38-4, at 69).
From January to March 2009, Butler worked in Harrisburg as the Director
of Administration for the BLCE. (Id.) While there, he was also the Equal
Employment Opportunity (“EEO”) Liaison.3 (Id.)
(g) Patrick B. Gebhart
Defendant Patrick B. Gebhart (“Gebhart”) was a captain in the PSP
BLCE and was the Director of Administration for the BLCE. (Gebhart Decl.
¶¶ 1–2, Aug. 2010, Doc. 38-8, at 7–8). He began with BLCE in March
2007 as Director of Operations. (Id.) He worked in Harrisburg at all times
he was with the BLCE. (Id.; McCartney Dep. 403:11–13, Doc. 38-4, at 83).
(h) Thomas Mannion4
Thomas Mannion was an EO3 with the BLCE. (McCartney Dep.
114:2-3; Doc. 38-2, at 71) He was a supervisor to McCartney when
McCartney transferred to Altoona. (McCartney Dep. 73:21-25; Doc. 48-2,
at 19). McCartney had heard from a female officer in Pittsburgh that
Mannion had picked on her. (Id. 75:1 to 76:1). Mannion used the word

2

Plaintiff “neither admitted nor denied” these statements and made
no reference to the record. (Doc. 50, ¶ 34).
3

Plaintiff denied these statements without reference to the record.
(Doc. 50, ¶ 35).
4

As described below, Mannion was dismissed with prejudice on July
28, 2010, upon plaintiff’s request. (Doc. 33). We list Mannion as a party
here to make the background more clear.
4

“bitch” frequently, and used it in reference to a female secretary once in
McCartney’s presence. (Id. 183:24 to 184:14). Mannion told McCartney
that he had driven to her house and pulled into her driveway and turned
around. (Id. 77:11 to 78:24; 183:10-12). Mannion told McCartney that he
had been watching her from a window as she walked from the parking lot.
(Id. 183:4-9). Mannion told her that a judge would like her because she
was a woman. (Id. 183:12-23).
(2) The February 2006 EEO complaint
On February 9, 2006, McCartney submitted an internal EEO
complaint to Butler. (Doc. 37, ¶ 43; Doc. 50, ¶ 43; Wendy R. Macknair5,
Complaint Regarding Hostile Work Environment (Feb. 9, 2006), Doc. 38-8,
at 16 [hereinafter “EEO Complaint”]). The complaint alleged that
McCartney was subject to a hostile work environment and disparate
treatment (Doc. 37, ¶ 44; Doc. 50, ¶ 44), and included numerous
allegations against Mannion, Smolko, Strobert, and Killion, as well as
allegations that a number of officers were using offensive, profane
language. (See Doc. 37, ¶¶ 46a–77; Doc. 50, ¶¶ 46a–77).
(a) Allegations against Mannion
The EEO complaint alleges that in May 2005, Mannion came to her
residence uninvited, pulling into her driveway and turning around; and in
August 2005, Mannion watched McCartney in the parking lot and then told
her he had done so, and said that an administrative law judge would like
her because she is female. (EEO Compl. ¶¶ 8–10, Doc. 38-8, at 17–18).
McCartney also believed that there “may be a potential for [Mannion] to

5

Some of the documents in the record show the plaintiff’s name as
Wendy Macknair. At some point in 2005 or 2006 plaintiff changed her
name back to McCartney. (McCartney Dep. 1:12 to 2:4, Doc. 48-2, at 1).
5

create a hostile work environment” because another female employee said
that Mannion “mistreated” her and because of a male LEO who, in 2002,
was “constantly complaining about how [Mannion] mistreated him.” (Doc.
37, ¶ 45a; Doc. 50, ¶ 45a; EEO Complaint ¶¶ 4–6, Doc. 38-8, at 17).
(b) Allegations against Smolko
In August 2005, Smolko told McCartney that the squad room was a
“big male dormitory” and in the past, foul language was used and “farting
occurred.” (Doc. 37, ¶ 46a; Doc. 50, ¶ 46a; EEO Compl. ¶ 12, Doc. 38-8,
at 18). He told her that he and the other male officers felt “that since there
is a ‘girl’ around, they can’t do that and have to watch what they say and do
around [her].” (Doc. 37, ¶ 46b; Doc. 50, ¶ 46b; EEO Compl. ¶ 12, Doc. 388, at 18).
On January 10, 2006, Smolko convened a meeting in the DOC’s
office and invited the male LEOs. (EEO Complaint ¶ 23, Doc. 38-8, at
20–21). He told “these male [LEOs] (Burn’s [sic], Butler, maybe Salmon,
not Coble or Bell, etc.)” about certain administrative changes being made.
(Id.) McCartney was not invited to the meeting. (Id.)
On January 18, 2006, Smolko invited Burns and other LEOs to a
sports bar to watch a football game on Sunday, but he did not invite
McCartney, even though she expressed interest. (Doc. 37, ¶ 46d; Doc. 50,
¶ 46d; EEO Complaint ¶ 24, Doc. 38-8, at 21). McCartney did not ask to
be invited to the sports bar and did not know whether they actually went to
the sports bar. (McCartney Dep. 217:5–10, Doc. 38-3, at 43).
During an office meeting also on January 18, Smolko stated that the
“girls,” referring to the secretaries, wanted to say a few things. (Doc. 37, ¶
46e; Doc. 50, ¶ 46e; EEO Complaint ¶ 25, Doc. 38-8, at 21). McCartney
was bothered by women being referred to as girls. (McCartney Dep.
51:14 to 52:13, Doc. 48-6, at 13). According to McCartney, one of the
6

secretaries objected to being referred to as a girl and indicated that she
wanted to be referred to as a lady. (Id.) According to McCartney, this was
only one occasion of multiple ocassions when Smolko referred to women
as girls. (McCartney Dep. Day 2 177:4-11, Doc. 48-6, at 45).
During the same meeting, Smolko stated that cell phones were not
to be used at the office; the next day, another LEO, Jeffrey Butler—a
different person from Captain Butler—used his cell phone in the office,
which Smolko witnessed but did not comment on. (Doc. 37, ¶ 46f; Doc.
50, ¶ 46f; EEO Compl. ¶ 27, Doc. 38-8, at 21–22). Butler was calling
Bell, who was on the road working and needed assistance with directions.
(McCartney Dep. 219:3–10, 221:1–3, Doc. 38-3, at 45, 47). McCartney
admits that personal cell-phone usage was “excessive,” as Smolko said it
was. (Smolko Decl. ¶ 6, Doc. 38-5, at 61; Doc. 50, ¶ 62). McCartney
states that she was challenged about taking a personal call on her cell
phone during her break-time, but never saw the policy enforced against
male officers. (McCartney Dep. 132:13 to 135:12, Doc. 48-2, at 33-34).
McCartney cannot directly prove that male officers were never
reprimanded for using their cell phones at work but makes her inference
from the fact that she never saw male officers counseled about cell
phone use the way she was and from the fact that male officers continued
to use their cell phones throughout the day around the time she was
counseled. (Id. 135:2-12, Doc. 48-2, at 34).
On January 23, 2006, McCartney was brought into Smolko’s office
and on the wall she saw a Polaroid photo of a man in a penis costume.
(Doc. 37, ¶ 46g; Doc. 50, ¶ 46g; EEO Complaint ¶ 29, Doc. 38-8, at 22).
McCartney submitted a copy of the polaroid to Captain Butler. (Doc. 37,
¶ 49; Doc. 50, ¶ 49). McCartney never saw any sexually inappropriate
photographs in the workplace after Butler’s investigation. (McCartney
7

Dep. 129:23–25, Doc. 38-2, at 85; id. 229:16–230:3, Doc. 38-3, at
55–56).
At a staff meeting on January 30, 2006, Smolko reassigned work
vehicles to the LEOs. (EEO Compl. ¶ 34, Doc. 38-8, at 23). After being
offered a choice between a Malibu and a Grand Am, McCartney got the
Malibu, observing: “It appears to me that the males believe that having a
Malibu is a big joke. I guess Wendy gets the joke of a car over the males
getting the better cars.” (Id.)
On February 1, 2006, Smolko said the word “fuck” in the workplace.
(EEO Compl. ¶ 40, Doc. 38-8, at 24).
(c) Allegations against Strobert
On August 15, 2005, Strobert was discussing Deputy
Commissioner Transue– a female state employee who was fired and then
rehired as the Deputy of Special Projects in Philadelphia– after having
sent out an email with two attached news articles about Transue. (EEO
Compl. ¶ 13, Doc. 38-8, at 18). Strobert commented: “I’m gonna get fired
and be rehired as a Commissioner. That’s right; I’m not a female. I can’t
do that.” (Id.)
On October 7, 2005, Strobert sent an email to various recipients,
including McCartney, attached to which was a scan of a 1955 Good
Housekeeping Magazine article entitled “The Good Wife’s Guide.” (EEO
Compl. ¶ 14–15, Doc. 38-8, at 18–19; Doc. 37, ¶ 64b; Doc. 50, ¶ 64b).
The one-page article can be characterized as an antiquated perspective
on marriage, offering eighteen specific recommendations for how a
woman can make her husband happy, concluding “[d]on’t ask him
questions about his actions or question his judgment or integrity.
Remember, he is the master of the house and as such will always
exercise his will with fairness and truthfulness. You have no right to
8

question him” and that “[a] good wife always knows her place.” (Oct. 7,
2005 Email Attachment, Doc. 38-8, at 30). Strobert commented: “Wow,
what a difference 50 years makes. Hurray for liberation movements.”
(Oct. 7, 2005 Email, Doc. 38-8, at 29). McCartney interpreted his
comment as sarcastic. (Id.)
On December 6, 2005, during a period in which McCartney was on
leave because of her car accident, she came into work to drop something
off. (EEO Compl. ¶ 18, Doc. 38-8, at 19; Doc. 37, ¶ 64c; Doc. 50, ¶ 64c).
While she was there, Strobert told her that he did not invite her to a
Christmas party or the farewell party for an Officer Siko because “some of
the guys felt uncomfortable” with it, and “the guys didn’t want [him] to
invite [her].” (Id.) McCartney could not say for sure whether other
women were invited. (McCartney Dep. 147:4–10, Doc. 38-2, at 100; id.
196:9–21, Doc. 38-3, at 28; id. 199:5–7, Doc. 38-3, at 31).
During the same office visit, McCartney wrote, Strobert tried to
explain “why [Mannion] is the way he is. He referred to [Mannion] as the
‘Alpha Male’ in describing him. I felt as if this was Sgt. Strobert’s way of
[telling me] that [Mannion] was attempting to be domineering over me and
that I was to be submissive to him.” (EEO Compl. ¶ 20, Doc. 38-8, at 20;
Doc. 37, ¶ 64d; Doc. 50, ¶ 64d).
On January 8, 2006, McCartney sent Strobert a squad-change
request, which she copied to Lt. Martin; the next day, the email came
back to her from Strobert as deleted and not read. (EEO Compl. ¶ 21,
Doc. 38-8, at 20; Doc. 37, ¶ 64e; Doc. 50, ¶ 64e). On the day that
McCartney sent her request, Strobert was transferred to a different
barracks. (McCartney Dep. 212:11–15, Doc. 38-3, at 38). By January 9,
the day that Strobert deleted the email, he was reassigned to the
Lewistown PSP. (Id. 213:3–11, Doc. 38-3, at 39; id. 241:16–20, Doc. 389

3, at 61).
On January 31, 2006, Strobert returned to visit the Altoona office,
and was “out by the secretaries’ area telling stories about how ‘females
are less courteous than males.’” (EEO Compl. ¶ 38, Doc. 38-8, at 24;
Doc. 37, ¶ 64f; Doc. 50, ¶ 64f). McCartney believed that Strobert came
back– on four occasions– to the Altoona district office to upset her and
harass her by saying things about women within earshot. (McCartney
Dep. Day 2 75:1 to 76:25, 162:21 to 169:15, Doc. 48-6, at 19, 41-43).
According to McCartney, Strobert would say he was stopping to use the
computer but that Strobert could have used the computer at his state
police barracks. (Id.)
(d) Allegations against Killion
On January 27, 2006, Killion asked McCartney to say goodbye
when leaving the office. (EEO Compl. ¶ 30, Doc. 38-8, at 22). Killion
sent McCartney an email on January 30, 2006, explaining that his request
was in reference to a day the previous week when she had taken
personal leave without making it known that she was leaving. (Id. ¶ 31,
Doc. 38-8, at 22–23). According to Killion, the policy had been “in place
for years at the Altoona office and was common courtesy.” (Killion Decl.
¶ 8, Doc. 38-6, at 38). According to Smolko, clerical staff asked Smolko
to encourage LEOs to let clerical staff know when they were coming and
going, so he did. (Smolko Decl. ¶ 10, Doc. 38-5, at 62). Smolko stated
that he was not singling McCartney out. (Id.) McCartney acknowledged
that Smolko brought up the “say goodbye” policy at an office meeting a
few days after her conversation with Killion. (McCartney Dep. 243:9–19,
Doc. 38-3, at 62). McCartney believed this meeting was meant to cover
up the fact that she had been singled out.
(e) Use of profane language
10

McCartney also complained about the use of profanity, generally:
What’s up with all the “F” words? Smolko isn’t the
only one here using such nasty profanity. I’m
sitting at my cubicle and all of a sudden I’m
hearing the “F” word from somewhere across the
squad room. It is my understanding that conduct
that has the purpose or effect of creating an
offensive work environment is not tolerated. This
“F” word has no purpose and is offensive to me. I
know I may hear this in the bars, but in the office,
personnel should not be intoxicated and act
professionally.
(EEO Compl. ¶ 40, Doc. 38-8, at 24). McCartney clarified in her
depositions that this profanity was not directed at her on these occasions
and were not used in a sexual context. (McCartney Dep. 386:6–17,
387:15–17, Doc. 38-4, at 75, 76).
(f) Butler’s investigation and its outcome
As EEO Liaison, Butler’s job was to investigate claims of
discrimination and harassment filed by BLCE employees. (Bulter Decl. ¶
1, Doc. 38-7, at 7). He interviewed people who might have knowledge of
the events in question and reviewed relevant documents. (Id.) After
completing an investigation, Butler would submit his findings to the
Director of the Department EEO Office. (Id.) During the time that Butler
was EEO Liaison, the Director was Lt. M.L. Henry. (Id.) Lieutenant
Henry was responsible for determining whether any violations of PSP
policies regarding discrimination had actually occurred, and he would
direct the appropriate response. (Id.)
On February 10, 2006, Butler informed McCartney that he would
conduct an investigation into the allegations of her complaint, which he
did. (Butler Decl. ¶ 2, Doc. 38-7, at 8; McCartney Dep. 79:23–25, Doc.
38-2, at 48). After the investigation, Butler submitted the information he
had gathered to Lt. Henry, Director of the PSP EEO Office. (Butler Decl.
¶ 7, Doc. 38-7, at 9).
11

Lieutenant Henry concluded that no discrimination or harassment
had occurred, but nonetheless made several recommendations based on
“inappropriate behavior” that he identified. (Doc. 38- 7, at 59-60 ¶¶ 3–5).
Butler counseled Smolko and reviewed PSP’s sexual-harassment policy
with him; Strobert’s chain of command counseled him for his conduct.
(Butler Decl. ¶ 8, Doc. 38-7, at 9; Doc. 38-7, at 62–65; Smolko Decl. ¶ 11,
Doc. 38-5, at 63). McCartney recalled Smolko receiving a written
reprimand. (McCartney Dep. 97:21-98:2 (Doc. 48-2)).
McCartney was notified of the outcome of the investigation on April
9, 2006. (Doc. 37, ¶ 87; Doc. 50, ¶ 87). She was not satisfied with the
outcome and was informed that she could file a complaint with the
Pennsylvania Human Resources Commission (“PHRC”). (Doc. 37, ¶ 88;
Doc. 50, ¶ 88).
(3) Car assignments
LEOs at the Altoona office receive state cars when they transfer
there, as did McCartney. (Doc. 37, ¶¶ 91, 94; Doc. 50, ¶¶ 91, 94). The
cars available are those not already being used by other officers. (Doc.
37, ¶ 92; Doc. 50, ¶ 92). McCartney complained that Smolko, as vehicle
officer, never offered her a new car. (Doc. 37, ¶ 89; Doc. 50, ¶ 89). As
recounted above, Smolko did give McCartney a choice between a Malibu
and a Grand Am, although McCartney described them as “hand-me-down
vehicles that were left over.” (McCartney Dep. 248:7–13, Doc. 38-3, at
64). Plaintiff stated that “these vehicles were used, dirty, and unkempt
and unwanted by the other officers.” (Doc. 50, ¶ 90).
According to the defendants, McCartney did not need a new car
because of her limited duty and proximity to the Altoona office. (Smolko
Decl. ¶ 16, Doc. 38-5, at 63–64; Hawk Decl. ¶¶ 6–7, 35, Doc. 38-6, at 11,
17). According to McCartney’s EEO Complaint, Smolko offered
12

Mannion’s Taurus– a supervisor’s car– to Burns, while she would get
Burns’ “hand me down joke Malibu.” (EEO Compl. ¶ 34, Doc. 38-8, at 23).
Hawk stated he offered the Taurus to McCartney, but she declined,
saying she was satisfied with the Focus she was driving at the time.
(Hawk Decl. ¶ 37, Doc. 38-6, at 18). “On another occasion,” declared
Hawk, “a brand new Honda Accord was assigned to the Altoona office
and I offered it to Plaintiff; however, Plaintiff stated that she was satisfied
with the Focus she was driving.” (Hawk Decl. ¶ 37, Doc. 38-6, at 18).
On October 9, 2008, McCartney asked Bush for a new Sebring and
told Bush that the larger car might help her back. (Doc. 37, ¶ 100; Doc.
50, ¶ 100). On October 10, Bush responded that the Sebring would be
replacing the car that Butler had “cracked up,” but that McCartney could
have the Monte Carlo, which is a large car and might help her back.
(Doc. 37, ¶ 101; Doc. 50, ¶ 101). On October 29, car assignments were
made. McCartney got the Monte Carlo; the Sebring was placed as a “pool
car”; and a male officer got McCartney’s Focus. (Email from Wayne A.
Bush, Dist. Office Cmdr., to Wendy McCartney et al. (Oct. 29, 2008, 1:30
pm), Doc. 38-8, at 41).
(4) Strobert assignment and his visits to the Altoona office
On or about April 4, 2006, after Strobert transferred to the
Lewistown barracks, Smolko assigned a matter to McCartney in which
Strobert, as the station commander in Lewistown, was the complainant.
(Doc. 37, ¶ 104; Doc. 50, ¶ 104). McCartney believed that Smolko
intended the assignment as retaliation, harassment, and intimidation and
said so in an email to Hawk. (Doc. 37, ¶ 107; Doc. 50, ¶ 107; Email from
Wendy Macknair to Daniel Hawk (Apr. 4, 2006, 10:18 am), Doc. 38-8, at
44-45). The only contact with Strobert that this assignment would have
required McCartney to make was to send him an email at the end of the
13

investigation. (McCartney Dep. 262:8–17, Doc. 38-3, at 77; Email from
Daniel Hawk to Wendy Macknair (Apr. 6, 2006, 12:56 pm), Doc. 38-8, at
43).
Strobert made five visits to the Altoona office after his transfer, on
January 31, 2006; March 30, 2006; July 25, 2006; November 21, 2006;
and December 1, 2008. (Doc. 37, ¶ 109; Doc. 50, ¶ 109). On January
31, 2006, Strobert commented that women are less courteous than men.
(McCartney Dep. 164:9-22, Doc. 48-6, at 41). On the December 1, 2008,
visit, Strobert said hello to McCartney, but she ignored him. (McCartney
Dep. 335:16–25, 337:1–4, Doc. 38-4, at 34, 36). She believed that
Strobert’s returns to the Altoona office after he was reassigned were “just
to harass [her] more.” (Id. 75:4–25, Doc. 48-6, at 19).
(5) Smolko visits the Back Room Saloon
Smolko assigned McCartney to investigate a bar; the Back Room
Saloon. (Smolko Dep. 60:1–12, May 6, 2010, Doc. 48-4, at 15). On May
6, 2006, Smolko was the Back Room Saloon, with some trooper friends
and their wives when McCartney came into the bar on assignment. (Doc.
37, ¶ 1110-12; Doc. 50, ¶ 111-112). Smolko denies knowing that
McCartney would enter the bar that night. (Smolko Decl. ¶ 21, Doc. 38-5,
at 65). Smolko also denies identifying McCartney to anyone. (Id.) He
did not speak to McCartney while he was at the bar, and he left not long
after she arrived. Doc. 37, ¶ 113; Doc. 50, ¶ 113).
McCartney believed that Smolko came to the bar to retaliate against
her. (McCartney Dep. 284:16–25, Doc. 38-3, at 92). She wrote in her
report on that date:
Let it be noted that during the 05/06/06
investigation EO3 SMOLKO was inside the
premises off duty with a group of several male
acquaintances. While he was still inside the
premises, I saw EO3 SMOLKO look at me.
14

Shortly thereafter, I then noticed that the group of
males that he was associating with were looking at
me in a peculiar, irregular way that made me
believe my identity may have been compromised.
(Wendy R. Macknair, Pa. State Police Admin. Investigation Report (May
6, 2006), Doc. 38-8, at 50). McCartney did not hear what Smolko told the
people that he was with. (McCartney Dep. 280:3–16, Doc. 38-3, at 88).
According to McCartney, Smolko’s companions looked directly at her and
she could tell by their expressions that she had been identified as an
undercover officer. (McCartney Dep. 145:15 to 148:2, Doc. 48-2, at 37;
McCartney Dep. Day 2 66:5 to 67:20, Doc. 48-6 at 17). McCartney felt
that her safety had been jeopardized. (Id.)
After McCartney complained about Smolko being in the bar, Hawk
investigated. (Hawk Decl. ¶ 40, Doc. 38-6, at 18). He spoke with Smolko
and two of the three troopers he was with at the bar. (Id.) According to
Hawk, the other officers told him that Smolko had not directly identified
McCartney in any way, but had said that one of his undercover officers
was in the establishment. (Id.)
(6) Assignment to The Spot
On May 7, 2006, Smolko assigned McCartney to investigate The
Spot in Johnstown to see if the establishment was serving food. (Smolko
Dep. ¶ 23, Doc. 38-5, at 65). In order to complete this investigation,
McCartney would have had only to enter the establishment and ask for
food.6 (Killion Decl. ¶ 6, Doc. 38-6, at 38). She never completed the
assignment or entered The Spot; it was reassigned because of her
pregnancy. (Doc. 37, ¶ 122; Doc. 50, ¶ 122).

6

Plaintiff denied, referring to Pl.’s Exh. 37, but Exhibit 37 contains
nothing relevant to the assignment in question. (Doc. 50, ¶ 121; Doc. 4810, at 33–34).
15

(7) PHRC complaint
On May 2, 2006, McCartney filed a complaint with the PHRC.
(PHRC Compl., May 2, 2006, Doc. 38-8, at 66). The complaint named
only PSP as a respondent. (Id.) The gravamen of the complaint was
sexual harassment and discrimination. (Id. ¶¶ 5–34, Doc. 38-8, at
67–69). On January 29, 2009, the PHRC issued a letter to McCartney
saying that her complaint had been dismissed “because the facts of the
case do not establish that probable cause exists to credit the allegations
of unlawful discrimination.” (Letter from Homer C. Floyd, Executive Dir.,
PHRC, to Wendy McCartney (Jan. 29, 2009), Doc. 38-9, at 7). The
PHRC’s report of their investigation dealt only with McCartney’s claims of
sexual harrassment. (PHRC Findings, Doc. 38-9, at 9, 10–23).
(8) May 2006 complaint about Killion
On May 15, 2006, McCartney sent an email to Butler complaining
that Killion was treating her differently from men because, she claimed,
she was being forced to follow contractual travel times at the end of her
shift but Killion and other LEOs were not following the same guidelines.
(Doc. 37, ¶ 143; Doc. 50, ¶ 143). Butler investigated this allegation.
(Doc. 37, ¶ 145; Doc. 50, ¶ 145). He ultimately found no evidence of
discrimination, although he did note some “minor individual
violations/discrepancies” and counseled the individual officers.
(Memorandum Concerning EEO Investigation 38-2206 from Capt.
Thomas P. Butler, BLCE, to Director, BLCE (July 23, 2006), Doc. 38-7, at
80, 81–82; Butler Decl. ¶ 14, Doc. 38-7, at 11).
(9) Continuing use of foul language in the Altoona PSP Office
McCartney claims that the foul language that she complained about
in her February 2006 EEO Complaint never stopped. (Doc. 37, ¶ 158;
Doc. 50, ¶ 158). She described certain instances of the use of the “F”
16

word, including several on one occasion by Butler. (Doc. 37, ¶ 159; Doc.
50, ¶ 159). However, none of the defendants that used this word ever
directed or addressed such language to McCartney, and the word was
not used in a sexual manner. (Doc. 37, ¶¶ 161–62; Doc. 50, ¶¶ 161–62).
McCartney has no evidence that foul language was ever used by
Hawk, Killion, or Gebhart. (Doc. 37, ¶ 164; Doc. 50, ¶ 164). She
asserted that Strobert used foul language, but was unable to provide a
time, date, or year that it occurred. (McCartney Dep. 329:19–24, Doc.
38-4, at 29).
(10) Events in late 2006: Mountain Top, the Ford Focus inspection
sticker, the Olive Garden Christmas party
(a) Mountain Top assignment
Mountain Top Sportsman Association (“Mt. Top”) is a private club.
(Doc. 37, ¶ 166; Doc. 50, ¶ 166). On or about September 22, 2006,
McCartney was assigned to investigate Mt. Top. (Doc. 37, ¶ 168; Doc.
50, ¶ 168). The parties dispute whether Killion instructed McCartney to
perform a Small Games of Chance (“SGOC”) audit or a less-intensive
“review.” On October 19, 2006, McCartney performed an inspection of
Mt. Top but did not perform an SGOC audit. (Doc. 37, ¶ 175; Doc. 50, ¶
175). On November 20, 2006, Killion wrote her a memo asking her to
explain her failure to conduct an audit. (Doc. 37, ¶ 178; Doc. 50, ¶ 178).
McCartney states that the stress of this investigation caused her physical
illness. (McCartney Decl., Doc. 50-2, at 20).
(b) Olive Garden Christmas party
The following month, McCartney, along with the others in the
Altoona office, was invited to the Olive Garden for a Christmas party on
December 12, 2006. (McCartney Dep. 200:9–14, Doc. 38-3, at 32; Email
from Michelle Stine to Wendy McCartney et al. (Dec. 11, 2006, 2:26 pm),
17

Doc. 38-12, at 31). Rather than attend the Christmas party, McCartney
went with her boyfriend to the Olive Garden parking lot, and took video of
the cars that were there so that she could make a complaint that officers
were using state cars to go to the party. (McCartney Dep. 200:9–202:5,
Doc. 38-3, at 32–34).
(c) The expired inspection sticker on McCartney’s Focus —and
the related complaint
On December 14, 2006, McCartney sent an email to Maj. Charles J.
Skurkis (“Skurkis”) of the Internal Affairs Division in Harrisburg,
complaining that Hawk had driven a car on December 8, 2006 with an
expired inspection sticker. (Doc. 37, ¶ 196; Doc. 50, ¶ 196). McCartney
sent the complaint directly to Skurkis because she feared retaliation.
(Email from Wendy R. McCartney, LEO, to Maj. Charles J. Skurkis (Dec.
14, 2006, 9:01 am), Doc. 38-12, at 25).
Captain Willard M. Oliphant, Director of the Internal Affairs Division,
responded on December 18, 2006, saying that Hawk’s actions were “both
reasonable and in conformance with the applicable law.” (Memorandum
from Capt. Willard M. Oliphant, Dir. of Internal Affairs Div., to LEO Wendy
R. McCartney (Dec. 18, 2006), Doc. 38-12, at 29). McCartney has no
direct evidence that her complaint about Hawk was ever communicated
to any of the defendants. (McCartney Dep. 297:4–10, Doc. 38-4, at 8).
(d) The complaint about the use of state cars to drive to Olive
Garden
On December 18, 2006, McCartney sent an email to Maj. Skurkis
complaining about the December 12 use of state cars to go to Olive
Garden. (Doc. 37, ¶ 203; Doc. 50, ¶ 203). During her deposition,
McCartney discussed her motivations for submitting these complaints:
A. There is a directive . . . that when you become
18

aware of violations you are to report them.
However, these incidents were reported not only
for that reason, but I would say more along the
lines because I felt like I was backed into a corner
like I was trapped with nowhere to go, and I
needed some relief. I needed a way out, and I
was doing whatever I could to get them to stop. I
didn’t know what else to do. And that’s why I filed
the complaints; looking for relief from the stress
that I had to go through every day.
Q. And how did you think that filing the complaint
about the cars would relate to relieving stress?
A. I was trying to get somebody in upper
administration to pay attention to what I was
saying, to pay attention to me, to listen to what I
was saying and just hear me. And this was my
way. I just didn’t know what other way to do it.
And I figured if they looked into this incident, or
even the next incident, that eventually somebody
would say hey, there’s a pattern here.
(McCartney Dep. 107:11–108:16, Doc. 38-2, at 65–66).
The Olive Garden complaint was forwarded to Maj. John P. Lutz on
December 19, 2006. (Memorandum by Cpl. Noel Ruiz (Dec. 19, 2006),
Doc. 38-12, at 39).
(e) Investigation into McCartney’s Olive Garden complaint
On January 4, 2007, Capt. Steven M. Johnson, Director, Operations
Division, indicated that a limited investigation into McCartney’s Olive
Garden complaint would be conducted. (Email from Capt. Steven M.
Johnson, Dir., Operations Div., to Cpl. Noel Ruiz (Jan. 4, 2007, 4:32 pm),
Doc. 38-12, at 42). The matter was formally assigned on February 5,
2007. (Wendy R. McCartney, Complaint Regarding Olive Garden
Conduct on Dec. 12, 2006, Doc. 38-12, at 44). McCartney submitted a
memorandum with her allegations on February 9. (Memorandum from
Wendy R. McCartney, LEO, to Sgt. Wayne E. Bush, Dist. Office Cmdr.
(Feb. 9, 2007), Doc. 38-12, at 46).
Sergeant Bush investigated the matter and interviewed several
people, determining that the officers varied from their normal driving
routes by not more than 4.7 miles to reach the Olive Garden.
19

(Memorandum from Sgt. Wayne E. Bush, Dist. Office Cmdr., to Maj. John
P. Lutz. Dir., BLCE (Mar. 7, 2007), Doc. 38-12, at 49, 53). Based on
Bush’s investigation, Major Lutz concluded that the LEOs’ use of state
vehicles to drive to Olive Garden was not a violation of PSP regulations
or policy. (Memorandum from Maj. John P. Lutz, Dir., BLCE, to Dir.,
Bureau of Integrity & Prof’l Standards and Dir., Bureau of Human Res.
(Mar. 9, 2007), Doc. 38-12, at 56).
McCartney and the others involved were informed that the actions
“did not constitute a violation of Department regulations and the
allegations are UNFOUNDED,” and that no administrative action would
be taken. (Memoranda from Maj. John P. Lutz, Dir., BLCE, to LEO
Wendy R. McCartney; EO3 Dennis Smolko; LEO Michael Mirabella; LEO
James Coble; and LEO Christopher Burns (Mar. 9, 2007), Doc. 38-12, at
58–62).
(f) Hawk’s complaint about McCartney’s Mt. Top investigation
Meanwhile, on December 29, 2006, two weeks before he retired,
Hawk submitted a formal complaint about the quality of McCartney’s work
on the Mt. Top investigation. (Doc. 37, ¶ 181; Doc. 50, ¶ 181). The
investigation into Hawk’s complaint was assigned to Sgt. John C. Kean
(“Kean”) on January 3, 2007. (Sgt. Daniel L. Hawk, Complaint
Concerning McCartney’s Mt. Top Investigation, Doc. 38-10, at 7). During
his investigation, Kean interviewed LEO William V. Bell, who recalled a
conversation that he overheard between Killion and McCartney: “I didn’t
specifically hear him tell her to do an audit, but LEO Killion basically
stated to her that an audit would be the right thing to do and he was
instructing her on how to go about an audit . . . .” (Sgt. John C. Kean,
Gen. Investigation Report (Feb. 16, 2007), Doc. 38-10, at 9, 16).
On March 22, 2007, McCartney was given notice of a Pre20

disciplinary Conference (“PDC”) regarding Hawk’s complaint, which
informed her that she would be given an opportunity to respond to the
allegations in the complaint. (Memorandum from Capt. Steven M.
Johnson, Dir., Operations Div., BLCE, to LEO Wendy R. McCartney (Mar.
22, 2007), Doc. 38-12, at 7). At the PDC on March 26, McCartney stated
that she “believe[d] that she addressed the allegations in [a previous]
interview and ha[d] no further information to offer.” (Memorandum from
Sgt. Wayne A. Bush, Dist. Office Cmdr., BLCE, to Capt. Steven M.
Johnson, Dir., Operations Div., BLCE (Mar. 26, 2007), Doc. 38-12, at 9).
On March 28, 2007, Capt. Johnson sustained the allegations that
(1) McCartney failed to obey Killion’s direct order to conduct an SGOC
audit and (2) McCartney demonstrated incompetence by failing to
conduct an SGOC audit. (Memorandum from Capt. Steven M. Johnson,
Dir., Operations Div., BLCE, to Director, BLCE (Mar. 28, 2007), Doc. 3812, at 11, 11–12).
Major Lutz reviewed Johnson’s conclusions and assessed discipline
on April 2, 2007, noting as an “aggravating factor” that:
Throughout this investigation, LEO McCartney
displayed what can only be described as a
cavalier attitude and a failure to take responsibility
for her actions, instead choosing to blame
everyone else. Her actions reveal a disregard not
just for the excellence we strive for as an agency,
but also for the minimum standards we require of
every employee.
(Memorandum from Maj. John P. Lutz, Dir., BLCE, to Dir., Bureau of
Integrity & Prof’l Standards, and Dir., Bureau of Human Res. (Apr. 2,
2007), Doc. 38-12, at 17).
On May 31, 2007, McCartney was given a written reprimand, signed
by Captain Gebhart, for the Mt. Top matter. (Doc. 37, ¶ 189; Doc. 50, ¶
189). Before March 2007, he had had no contact with McCartney.
(Gebhart Decl. ¶¶ 1–2, Aug. 2010, Doc. 38- 8, at 7–8). After filing a
21

“series of grievances,” McCartney reached a settlement with the BLCE
and the written reprimand was removed from her official personnel file.
(Doc. 37, ¶¶ 191–92; Doc. 50, ¶¶ 191–92).
McCartney believed that Hawk’s complaint regarding the Mt. Top
investigation was retaliation against her for, among other things, her
complaint regarding the misuse of state vehicles at Olive Garden and her
complaint about Hawk knowingly driving a vehicle with an expired
inspection sticker. (Doc. 37, ¶ 194; Doc. 50, ¶ 194). She wrote in her
notes that on December 28, 2006– one day before Hawk’s complaint–
she overheard Hawk “in his office talking on the phone to someone about
how I sent a complaint to the Major about the after work Christmas Party.
He said that he was told that what the officers did was not a big deal and
that they didn’t need to worry about it.” (McCartney Notes, Doc. 48-10, at
1). Hawk denies knowing about McCartney’s Olive Garden complaint at
the time he filed the complaint against McCartney. (Hawk Decl. ¶ 23,
Doc. 38-6, at 15).
(11) McCartney’s Employee Performance Review
For part of 2006, Killion was Acting EO3 and directly supervised
McCartney and other LEOs; as part of his duties in this role, Killion
prepared an Employee Performance Review (EPR) for McCartney, and
submitted it to her on December 18, 2006. (Doc. 37, ¶ 212; Doc. 50, ¶
212). His review was negative: he “noted that [McCartney] failed to
comprehend and carry out instructions, was deficient in her knowledge of
forms, lacked initiative, was unwilling to act as part of a team, and, in
short, she [strove] only to meet the minimum standards.” (Killion Decl. ¶
5, Doc. 38-6, at 38). Hawk signed off on the EPR. (Hawk Decl. ¶ 26,
Doc. 38-6, at 15).
McCartney believed that this negative EPR was Killion’s way of
22

retaliating against her for her complaint about misuse of state vehicles at
the Olive Garden Christmas party. (McCartney Dep. 137:15–138:9, Doc.
38-2, at 91–92). On December 29, 2006, McCartney appealed the EPR
to Major Lutz. (Doc. 37, ¶ 221; Doc. 50, ¶ 221). Lutz decided on January
5, 2007, that the EPR would need to be redone because it “was not
completed in accordance with Department Regulations.” (Memorandum
from Maj. John P. Lutz, Dir., BLCE, to LEO Wendy R. McCartney (Jan. 5,
2007), Doc. 38-12, at 72).
Smolko was assigned the task of preparing a new EPR for
McCartney, which he did in the days preceding February 13, 2007.
(Smolko Decl. ¶ 25, Doc. 38-5, at 65). He provided the EPR to Sergeant
Bush for his input and approval; Bush returned the EPR to Smolko on
February 13, at which point Smolko signed the EPR and delivered it to
McCartney that same day. (Id.) Smolko’s EPR was also negative; his
overall rating of her was “Unsatisfactory,” and he included explanatory
narrative comments:
L.E.O[.] MCCARTNEY displays a studious
knowledge of Department policies and procedures
and contractual agreements and stays within the
boundaries of these dictates. The issue of this
rating period and the resulting overall rating [lie]
directly in unwillingness on her part to apply her
knowledge in a fashion that would make her an
efficient Officer and a willingness to strive for more
than minimum effectiveness and performance.
Her resistance to supervisory oversight, working
as a team member, and effectively learning and
applying policies and office procedures all [have]
contributed to this outcome. L.E.O[.]
MCCARTNEY is noticeably discontented in her
current job. That discontent shows in its effect on
her performance and attitude.
(EO3 Dennis J. Smolko, Employee Performance Review of Wendy R.
McCartney for Dec. 1, 2005 to Nov. 30, 2006 (Feb. 13, 2007), Doc. 38-5,
at 69, 72).
McCartney appealed this EPR as well, “most notably because EO3
23

Smolko didn’t supervise [her] during the 2006 calendar year.”
(Memorandum from LEO Wendy R. McCartney to Dir., BLCE (Mar. 20,
2007), Doc. 38-12, at 78). In denying this second appeal, Major Lutz
noted that her first appeal was sustained because “EO3 Killion was an
‘Acting’ supervisor, and was therefore not trained or qualified” to rate
McCartney. (Memorandum from Maj. John P. Lutz, Dir., BLCE, to LEO
Wendy R. McCartney (Mar. 29, 2007), Doc. 38- 12, at 80). As a result,
wrote Major Lutz, “the responsibility of preparing [McCartney’s] EPR was
transferred to the only other supervisor in the District office at that time,
EO3 Dennis Smolko.” (Id.) Since Smolko did prepare the EPR—doing
so, according to Major Lutz, “based upon his observations and knowledge
of [her] performance”—Lutz told McCartney that she “cannot have it both
ways,” and decided that Smolko’s EPR would stand. (Id.)
McCartney claims that the EPR is evidence that Smolko
discriminated against her based on gender and retaliated against her for
a variety of past behavior, including her submission of the February 2006
EEO Complaint– which included Smolko’s photograph and profanity, her
successful appeal of Killion’s EPR, and her complaint about the use of
state vehicles to attend the Olive Garden Christmas party. (Doc. 37, ¶¶
236, 239; Doc. 50, ¶¶ 236, 239; McCartney Dep. 139:13-20, Doc. 48-2, at
35). She admits, however, that she has no evidence as to how Smolko
evaluated other officers, including male officers, in the Altoona office.
(Doc. 37, ¶ 240; Doc. 50, ¶ 240; McCartney Dep. 156:15-21, Doc. 48-2,
at 39). McCartney did not see EPRs of male officers but is sure she was
singled out because hers was so disparaging. (McCartney Dep. 125:723, Doc. 48-6, at 32).
McCartney admits that the negative EPR did not alter her pay,
benefits, or result in a demotion or transfer. (McCartney Dep. 129:22 to
24

130:8, Doc. 48-6, at 33). McCartney stated that the negative EPR did
hurt her prospects for promotion and her ability to transfer to the six to
eight jobs within the state system for which she applied and interviewed.
(Id. 213:19 to 215:16, Doc. 48-6, at 54).7
(12) Contact with PHRC
According to McCartney, on December 14, 2006 she contacted
Sherry Kissner of the PHRC regarding the status of her complaint.
(McCartney Dep. 117:3 to 118:16, Doc. 48-6, at 30; McCartney Notes of
December 14, 2006, Doc. 48-10, at 25). McCartney told Kisner that her
work environment had not improved since her complaint. (Id.) Kissner
told McCartney that McCartney could file a second complaint for any
continued mistreatment and that if McCartney quit because of
mistreatment then McCartney could file a complaint for constructive
discharge. (Id.)
McCartney had a similar conversation with Kissner on March 15,
2007. (McCartney Notes of March 15, 2007, doc. 48-10 at 27-28).
During the second conversation, McCartney expressed a hesitance to
add new material to her complaint for fear of delaying its resolution. (Id.)
Kissner reiterated that any subsequent discipline or retaliation should be
filed as a separate complaint. (Id.) McCartney never filed another PHRC
complaint. (McCartney Dep. 105:22 to 106:4, Doc. 48-2, at 27).
McCartney explained her decision not to file a subsequent complaint
stating, “if I didn’t get satisfaction the first time why would I continue to file
‘em through them?” (Id.)
(13) Subsequent Inappropriate Language

7

McCartney sought jobs within the state system to avoid forfeiting
her retirement pension. (McCartney Dep. 214:1-4, Doc. 48-6, at 54).
25

McCartney identified one subsequent instance (beyond the timeframe of the EEO complaint) in which Smolko made a comment in her
presence that was gender- or sexually inappropriate:
A. Then we have of course the time that he [came]
out of the office yelling f’ing Barney . . . [H]e
blatantly just screamed it right in my ear practically
....
....
Q. Did he direct that at you or did he just say it out
loud?
A. He said it out loud, of course. But I felt as if it
was being directed at me.
(McCartney Dep. 233:8–20, Doc. 38-3, at 57). Smolko identified the date
as April 2008. (Smolko Decl. ¶ 11, Doc. 38-5, at 63). McCartney had
recorded it as Tuesday, April 15, 2008, at 3:15 pm. (McCartney Dep.
250:6–14, Doc. 38-3, at 66). She noted that it initially sounded as though
he were talking to Mirabella, another LEO. (Id. 250:19–25). McCartney
also felt, however, “that absolutely without question was directed at me
from the way he came out of his office it’s almost like he had his chest
puffed up, and he was just right above me, and he yelled. Like right at
me. Right through me, just so, I absolutely believe that that was directed
at me. That was his way of saying that I didn’t stop him with the
[February 9, 2006] complaint that he could still do whatever it was he
wanted, and he was, I think it was like retaliation.” (McCartney Dep.
71:11 to 72:2, Doc. 48-6, at 18).
Smolko apologized to McCartney for his comment. (McCartney
Dep. 130:11–16, Doc. 38-2, at 86; Smolko Decl. ¶ 11, Doc. 38-5, at 63).
Concerning Smolko’s apology, McCartney opined: “I think it was a show.
He did that because he just wanted to be able to show me that he could
still do whatever it was that he wanted to do. And as long as he
apologized, he thought it was okay.” (McCartney Dep. 233:24–234:3,
Doc. 38-3, at 57–58). She made no formal complaint to the Department
26

regarding Smolko’s comment. (Doc. 37, ¶ 55; Doc. 50, ¶ 55). At the time
that McCartney was deposed, she could recall no instance of Smolko
using profanity after the February 2006 EEO complaint, other than the
one instance on April 15, 2008. (McCartney Dep. 251:13–252:7, Doc. 383, at 67–68). However, she did say: “I believe that there were other times
that he had” used offensive language, but couldn’t recall specific dates or
times or words. (Id. 131:13–20, Doc. 38-2, at 87). She also testified that
LEO Jeffrey Butler used the “F” word frequently, although he did not say it
to her; as far as she knew, Smolko never reprimanded him for cursing.
(Id. 191:3–192:13, Doc. 48-6, at 48).
(14) Retirement
McCartney retired from the BLCE on December 26, 2008.
(Employment Separation Memorandum of Dec. 16, 2008, Doc. 38-5, at
7). McCartney’s retirement was related to her disability. (Doc. 37, ¶ 1;
Doc. 50, ¶ 1; McCartney Dep. 16:15–20, Doc. 38-2, at 16).
(B) Procedural history
McCartney filed her complaint (Doc. 1) on September 21, 2009 and
the case was assigned to Judge Christopher C. Conner. Defendants filed
a partial motion to dismiss on November 25, 2009. (Doc. 7). The Court
granted this motion on May 27, 2010, also granting plaintiff leave to file
an amended complaint to cure the defects of the original, except as to her
claims of age discrimination and for violation of the PHRA against the
PSP, which the Court concluded would be futile. (Doc. 21). Plaintiff filed
an amended complaint (Doc. 25) on June 16, 2010. Count I is brought
via 42 U.S.C. § 1983 against the individual officers and claims gender
discrimination under the Equal Protection clause of the Fourteenth
Amendment and retaliation under the First Amendment. (Am. Compl. ¶¶
43-48). Count II is brought under Title VII against the Pennsylvania State
27

Police and claims gender discrimination and retaliation. (Id. ¶¶ 49-54).
Unlike the original complaint, the amended complaint did not name
Jeffrey Miller as a defendant. Defendants answered on July 15, 2010.
(Doc. 28).
On July 20, 2010, Defendant Mannion filed a motion for judgment
on the pleadings. (Doc. 29). That day the plaintiff requested voluntary
dismissal with prejudice of those same claims. (Doc. 31). On July 28,
2010, the Court granted the voluntary dismissal that plaintiff requested
and denied Mannion’s motion as moot. (Doc. 33).
On September 1, 2010, defendants filed their motion for summary
judgment. (Doc. 36). On March 9, 2011 Magistrate Judge William T.
Prince filed a report and recommendation proposing that the defendants’
motion for summary judgment be granted and that the complaint be
dismissed. (Doc. 57). On March 23, 2011 this case was reassigned from
Judge Conner to the undersigned judge. (Doc. 59). Plaintiff has filed her
objections to the report and recommendation and these objections have
been briefed, bringing the case to its present posture.
JURISDICTION
Because this case is brought under Title VII, Section 1983, and the
First and Fourteenth Amendments, the court has federal question
jurisdiction pursuant to 28 U.S.C. § 1331. (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws,
or treaties of the United States.”).
LEGAL STANDARD
In disposing of objections to a magistrate judge’s report and
recommendation, we make a de novo determination of those portions of
the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see
also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court
28

may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. We may also receive
further evidence or recommit the matter to the magistrate judge with
instructions. Id.
Before the court is the magistrate judge’s recommendation that we
grant the defendants’ motion for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure. The granting of summary judgment is
proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. See Knabe v. Boury, 114 F.3d
407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). “[T]his standard
provides that the mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986).
When considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946,
949 (3d Cir. 1990). The burden is on the moving party to demonstrate
that the evidence is such that a reasonable jury could not return a verdict
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is material if it might affect the outcome of the suit
under the governing law. Id. Where the non-moving party will bear the
burden of proof at trial, the party moving for summary judgment may meet
its burden by showing that the evidentiary materials of record, if reduced
to admissible evidence, would be insufficient to carry the non-movant's
29

burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986).
Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific
facts by the use of affidavits, depositions, admissions, or answers to
interrogatories showing that there is a genuine issue for trial. Id. at 324.
DISCUSSION
The defendants move for summary judgment on all of McCartney’s
claims. Magistrate Judge Prince recommends that the motion be
granted. McCartney filed the following objections:
1) as stated, the magistrate clearly exceeded the
summary judgment standard of review; 2) plaintiff
has set forth facts sufficient to permit her Title VII
discrimination and retaliation claims to go to a
jury. . . ; 3) plaintiff’s retaliation claim was
sufficiently within her administrative discrimination
claims such that her remedies are exhausted. . . ;
4) plaintiff has stated a First Amendment claim;
and 5) defendants are clearly not entitled to
qualified immunity.
(Pl. Br. Supp. Objs. at 1-2 (Doc. 62)). McCartney’s first objection– that
the magistrate judge did not apply the correct legal standard for summary
judgment– will not be addressed independently, as it is subsumed within
our analysis of the merits of each claim. We will address the remaining
objections in logical order.
A. Whether Plaintiff Exhausted Claim for Retaliation Under Title VII
McCartney’s third objection, which we address first, is that she
exhausted a claim for retaliation under Title VII. “It is . . . established
doctrine that a charge must be filed against a party with the EEOC before
an action in the district court can be commenced.” Glus v. G. C. Murphy
Co., 562 F.2d 880, 885 (3d Cir. 1977). “In the case of an employer other
than the federal government, a complaint must first be filed with the state
agency charged with enforcing the laws against employment
discrimination, if one exists.” Waiters v. Parsons, 729 F.2d 233, 237 n.8
30

(3d Cir. 1984) (citing 42 U.S.C. § 2000e-5(c), (d)). Here, McCartney filed
a complaint with the Pennsylvania Human Relations Commission
(“PHRC”), the state agency that enforces employment discrimination law,
and then filed a complaint in the federal court within the two-year statute
of limitations.
“Courts have generally determined that the parameters of the civil
action in the district court are defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge
of discrimination . . . including new acts which occurred during the
pendency of proceedings before the Commission[.]” Ostapowicz v.
Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976) (internal
citations omitted).
Judge Prince found that McCartney had exhausted her
administrative remedies by filing a complaint with the PHRC on May 2,
2006, as a prerequisite to filing her Title VII claim. Judge Prince also
found, however, that the PHRC complaint only alleged claims of
discrimination based on gender– disparate treatment and hostile work
environment– and that the complaint could not fairly be read to allege a
claim of retaliation.
McCartney objects that she did complain about retaliation to the
PHRC.8 She also argues that her retaliation claim was part of the “core
8

McCartney, in her counterstatement of material facts, states that:
“Retaliation was brought to the PHRC's attention. See IN-15 Form
Harassment Questionnaire signed and dated March 22, 2006, pages 1-3.”
(CSMF ¶ 132). McCartney does not cite to a document number or exhibit
number and a review of the exhibits failed to uncover this document. See
FED. R. CIV. P. 56(e)(2) (allowing a court to consider a fact undisputed if the
attempted controversion is not properly supported); L.R. 56.1 (“Statements
of material facts in support of, or in opposition to, a motion shall include
31

grievance” of gender discrimination / hostile work environment because
the conduct underlying each claim is the same. She argues that her
retaliation claim would have arisen in the course of a “responsible EEOC
investigation.”
As it is clear that McCartney’s PHRC complaint makes no specific
reference to retaliation, we must determine whether a claim of retaliation
would have grown from a reasonable EEOC investigation, including acts
between the PHRC complaint’s filing and the investigation’s completion.
We find that there is no genuine issue of material fact as to whether a
reasonable investigation into McCartney’s May 2, 2006 PHRC complaint
of discrimination would have found that the subsequent December 18,
2006 or February 13, 2007 EPRs were retaliation. The investigation,
reasonably, focused on the subject of McCartney’s complaint–
discrimination. No facts alleged in the complaint indicated retaliation.
McCartney has not otherwise shown how the PHRC’s investigation was
unreasonable. Additionally, on December 14, 2006 and March 15, 2007
Human Resources Representative Sherry Kissner told McCartney that
she could file a PHRC complaint alleging retaliation if McCartney was
disciplined. McCartney stated that she never complained of retaliation to
the PHRC because she was not satisfied with the resolution of her first
complaint. That may be a valid personal reason not to file a subsequent
complaint but is not a sufficient legal justification to excuse exhaustion.
Accordingly, summary judgment will be granted on McCartney’s claim of
retaliation.
B. Gender Discrimination Under Title VII and Equal Protection
McCartney’s second objection is that she adequately plead a
references to the parts of the record that support the statements.”).
32

discrimination claim under Title VII. We will address McCartney’s claims
under Title VII and the Equal Protection Clause jointly, as did Judge
Prince. See Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d
Cir. 1997)) (noting that a Title VII discrimination analysis is applicable to a
discrimination claim under the Equal Protection Clause). Under Title VII,
“[i]t shall be an unlawful employment practice for an employer . . . to fail
or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). McCartney claims gender discrimination violations under
theories of (1) disparate treatment and (2) hostile work environment
leading to constructive discharge. We will address these theories in
order.
1. Disparate Treatment
Absent direct evidence of discrimination, discrimination claims
under Title VII are subjected to the burden shifting analysis established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Stanziale
v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000). Under this framework,
the plaintiff must first establish her prima facie case by a preponderance
of the evidence, which creates a presumption of discrimination. St.
Mary's Honor Ctr v. Hicks, 509 U.S. 502, 506 (1993). The burden then
shifts to the employer, who must “articulate some legitimate,
nondiscriminatory reason for the employee's rejection,” thereby rebutting
the presumption of discrimination. McDonnell Douglas, 411 U.S. at 802;
Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981);
Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997). To
succeed on her claim, the plaintiff must then show, by a preponderance
33

of the evidence, that the employer's given reasons were a pretext for
discrimination. Burdine, 450 U.S. at 253; Woodson, 109 F.3d at 920.
In order to prove a prima facie case of disparate treatment under
Title VII, the plaintiff must show that: 1) he is a member of a protected
class; 2) he was qualified for the position; 3) he was subjected to an
adverse employment action; and 4) the circumstances of the adverse
action imply discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d 789,
797 (3d Cir. 2003). Judge Prince found that the first two elements of the
prima facie case of disparate treatment under Title VII were satisfied–
McCartney, as a woman, is a member of a protected class and was
qualified for her position. The report and recommendation found,
however, that McCartney was not subjected to an adverse employment
action because the instances of which she complained did not
significantly impact her employment status. With respect to the final
element of McCartney’s prima facie case, Judge Prince found that none
of the alleged adverse employment actions were taken under
circumstances suggesting discrimination.
Addressing the third element, “[i]n order to be entitled to relief, a
plaintiff must have suffered a cognizable injury. Thus, only a person
‘claiming to be aggrieved’ may bring an action under Title VII. [The Third
Circuit has] defined ‘an adverse employment action’ under Title VII as an
action by an employer that is ‘serious and tangible enough to alter an
employee's compensation, terms, conditions, or privileges of
employment.’” Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d
Cir. 2004) (citations omitted). McCartney argues that her February 13,
2007 EPR was an adverse employment action. She further argues that
the negative evaluation “actually kept plaintiff from other positions, and
deprived her opportunities for advancement[.]” (Doc. 62 at 8). For the
34

purpose of this analysis, we assume that the EPR altered McCartney’s
terms and conditions of employment.
The fourth element requires that the plaintiff show that the
circumstances of the adverse action imply discrimination. “The evidence
most often used to establish this nexus is that of disparate treatment,
whereby a plaintiff shows that she was treated less favorably than
similarly situated employees who are not in plaintiff's protected class.”
Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 366 (3d Cir. 2008) (citing
Iadimarco v. Runyon, 190 F.3d 151, 162 (3d Cir. 1999).
The defendants argue that the circumstances do not suggest
discrimination. McCartney has not shown that similarly situated men
were treated differently. Specifically, McCartney has not presented
evidence as to how Killion or Smolko evaluated male officers. We agree.
McCartney’s declaration does list incidents where male BLCE officers
allegedly violated policies or made mistakes. (See Pl.’s Ex. 30 (Doc. 48-9
at 42-47) (describing late, incomplete, and inaccurate special reports of
male officers); Pl.’s Ex. 28 (Doc. 48-9 at 28-37) (cataloging incidents
where male officers conducted personal business during work hours)).
Taking those allegations for what they are worth, McCartney has failed to
go the next step– showing that supervisors were aware of those
deficiencies and did not give EPRs that were as harsh as those given to
her. At this stage of the litigation, it is insufficient to generally claim in an
unsworn declaration that others have not been scrutinized as closely. To
survive a motion for summary judgment, the plaintiff must present a
genuine issue of material fact that others similarly situated were treated
differently. Specifically, McCartney has presented no EPRs of similarly
situated male colleagues. Accordingly, we determine that McCartney has
not presented a genuine issue of material fact from which a reasonable
35

jury could conclude that she was treated differently from similarly situated
male employees. As McCartney has not satisfied her burden of
establishing a prima facie case of disparate treatment, we need not
examine the remaining steps of the McDonnell Douglas framework.
Thus, the defendants’ motion for summary judgment will be granted with
respect to McCartney’s claims for gender discrimination based on
disparate treatment under Title VII and the Equal Protection clause of the
Fourteenth Amendment.
2. Hostile Work Environment
Another means of proving a violation of Title VII is to show that
sexual harassment created a hostile work environment. Kunin v. Sears
Roebuck and Co., 175 F.3d 289, 293 (3d Cir. 1999). The elements of a
hostile work environment claim against an employer are: “(1) the
employee suffered intentional discrimination because of their sex; (2) the
discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the plaintiff; (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that position;
and (5) the existence of respondeat superior liability.” Hutson v. Procter
& Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citing
Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001); Andrews v.
City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990)). In this context, the
fifth element– respondeat superior– means notice to the employer, not
vicarious liability. Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 n.5
(3d Cir. 1999).
To establish a hostile work environment claim, “the offending
behavior ‘must be sufficiently severe or pervasive to alter the conditions
of the victim's employment and create an abusive working environment.’”
Pennsylvania State Police v. Suders, 542 U.S. 129, 146-47 (2004)
36

(quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)).
However, “[t]o make out a case under Title VII it is only necessary to
show that gender is a substantial factor in the discrimination, and that if
the plaintiff had been a man she would not have been treated in the same
manner. To constitute impermissible discrimination, the offensive
conduct is not necessarily required to include sexual overtones in every
instance or that each incident be sufficiently severe to detrimentally affect
a female employee.” Andrews v. Philadelphia, 895 F.2d 1469, 1485 (3d
Cir. 1990) (internal quotations and citations omitted). “‘[W]hether an
environment is “hostile” or “abusive” can be determined only by looking at
the circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.’” Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996) (quoting Harris
v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)).
Finally, “[a] hostile-environment constructive discharge claim entails
something more: A plaintiff who advances such a compound claim must
show working conditions so intolerable that a reasonable person would
have felt compelled to resign.” Suders, 542 U.S. at 147. Thus,
“[c]onstructive discharge exists if ‘the conduct complained of would have
the foreseeable result that working conditions would be so unpleasant or
difficult that a reasonable person in the employee's shoes would resign.’”
Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155 (3d Cir. 1999) (citing
Goss v. Exxon Off. Sys. Co., 747 F.2d 885, 887-88 (3d Cir. 1984)).
Judge Prince found that McCartney failed to establish a genuine
issue of material fact as to whether she was subjected to a hostile work
environment. The magistrate judge found that McCartney satisfied the
37

first element of the claim– intentional discrimination because of her
gender. Judge Prince was not satisfied, however, that the discrimination
was pervasive. Judge Prince was also not satisfied that the
discrimination detrimentally effected McCartney or that a reasonable
person in McCartney’s position would have been detrimentally effected.
Finally, the magistrate judge found that McCartney could not establish a
claim for constructive discharge because the conditions of McCartney’s
employment were not so severe that resignation was a fitting response.
We agree with Judge Prince that a reasonable jury could find that
McCartney had been intentionally discriminated against because of her
gender.9 We also agree, however, that McCartney has not presented a
genuine issue of material fact as to whether the assumed discrimination
was pervasive and regular. Ignoring, as did Magistrate Judge Prince, the
gender-neutral workplace incidents which predominate McCartney’s
allegations, we cannot conclude McCartney’s work environment was
hostile or abusive.
As Judge Prince found:
some of the conduct by Smolko and Strobert
described in the February 2006 EEO complaint
does have clear overtones of sex or gender and
betrays a possible discriminatory animus. ]
Smolko’s photograph of a man in a penis
costume, his reference to women as “girls,” and
his description of the Altoona barracks as a “big
male dormitory” where farting “occurred” all
constitute conduct in which gender is a
“substantial factor” and suggest that if plaintiff
“had been a man,” she may have been treated
differently. Likewise with the [Transue article and
Good Housekeeping article] that Strobert emailed;
these articles, combined with his commentary,
could have a disproportionately negative
psychological or emotional impact on a woman as
opposed to a man.
9

The defendants raised no objection to this finding.
38

(Report & Recommendation at 49). These five instances all occurred
between August of 2005 and January 2006. We also consider
McCartney’s allegation that Strobert visited the Altoona district on
January 31, 2006 and made comments to the effect that women are not
courteous.
Thus, reading the record in a light most favorable to McCartney,
there are approximately six instances of intentional gender discrimination
between the middle of 2005 and early 2006. We cannot, as a matter of
law, conclude that these alleged instances– averaging approximately one
instance per month for a six month period– were infrequent. However,
none of the alleged instances of discrimination can be considered severe.
Rather, each alleged instance amounts to an offensive utterance. Also,
none of the instances were physically threatening or physically
humiliating. Thus, considering McCartney’s plausible allegations of
gender discrimination, we determine that there is no genuine issue of
material fact as to whether McCartney faced regular and pervasive
discrimination. We do so evaluating the instances in the totality, and not
individually.
Having determined that the discrimination was not pervasive and
regular, we have no occasion to address whether McCartney was
detrimentally effected by the discrimination or whether a reasonable
person in McCartney’s position would have been detrimentally effected.10
Accordingly, the defendants’ motion for summary judgment on
McCartney’s hostile work environment claims under Title VII and the
10

The defendants do not dispute that respondeat liability is satisfied
here. PSP was on notice that McCartney felt discriminated against, based
on her internal complaints and the EPR noting she was unhappy in her
position.
39

Equal Protection clause of the Fourteenth Amendment will be granted.
We also necessarily conclude that McCartney cannot prevail on a claim
of constructive discharge, as that claim is predicated on intolerable
working conditions, which McCartney– as described with respect to her
underlying claim for hostile work environment– cannot show.
C. First Amendment Claim
McCartney’s fourth objection is that she made out a section 1983
claim for retaliation under the First Amendment. Section 1983 does not,
by its own terms, create substantive rights. Rather, it provides remedies
for deprivations of rights established elsewhere in the Constitution or
federal law. United States v. Kneipp, 95 F.3d 1199, 1204 (3d Cir. 1996).
In pertinent part, section 1983 provides as follows:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. Thus, to establish a claim under section 1983, two
criteria must be met. First, the conduct complained of must have been
committed by a person acting under color of state law. Second, the
conduct must deprive the plaintiff of rights secured under the Constitution
or federal law. Sameric Corp. of Delaware, Inc. v. City of Philadelphia,
142 F.3d 582, 590 (3d Cir. 1998).
McCartney claims she was terminated in retaliation for engaging in
activity protected under the First Amendment. The Third Circuit has
adopted the three-step test to evaluate a public employee’s claim of
retaliation for engaging in activity protected under the First Amendment.
See Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). First, the
40

employee must show that his activity is protected. Id. (citing Pickering v.
Bd. of Educ., 391 U.S. 563 (1968)); Green v. Phila. Hous. Auth., 105 F.3d
882, 885 (3d Cir. 1997). “Second, the employee must show that the
protected activity ‘was a substantial factor in the alleged retaliatory
action.’” Hill, 411 F.3d at 125 (quoting Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977)). “Third, the employer may
defeat the employee’s claim by demonstrating that the same adverse
action would have taken place in the absence of the protected conduct.”
Id. at 125. See also Baldassare v. New Jersey, 250 F.3d 188, 195 (3d
Cir. 2001).
We first address whether Plaintiff’s speech is protected under the
First Amendment. A public employee has a First Amendment right, “in
certain circumstances, to speak as a citizen addressing matters of public
concern.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Under
Garcetti, we must first determine whether plaintiff’s statements were
made “as a citizen upon matters of public concern.” Id. at 416 (quoting
Connick v. Myers, 461 U.S. 138, 147 (1983)). “[W]hen public employees
make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.”
Garcetti, 547 U.S. at 421. With respect to the public-concern
requirement, “[w]hether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Connick, 461 U.S. at
147-48. “The content of speech on a matter of public concern generally
addresses a social or political concern of the community.” Borden v. Sch.
Dist. of E. Brunswick, 523 F.3d 153, 169-70 (3d Cir. 2008). Though factsensitive, “the inquiry into the protected status of speech is one of law,
41

not fact.” Connick, 461 U.S. at 148 n.7.
If we find that the plaintiff did speak as a citizen on a matter of
public concern, we must engage in the balancing test established in
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). In Pickering, the
Court explained its objective of balancing “the interests of the [employee],
as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Id. at 568. As such,
we must determine “whether the relevant government entity had an
adequate justification for treating the employee differently from any other
member of the general public.” Garcetti, 547 U.S. at 418.
Judge Prince found, preliminarily, that a two year statute of
limitations governs McCartney’s claim under § 1983, therefore she may
not recover for acts before September 21, 2007.11 We agree. Analyzing
the merits of McCartney’s retaliation claim, Judge Prince found that
McCartney’s speech– (1) her 2006 EEOC / PHRC complaint; (2) her
inspection sticker complaint; and (3) her Olive Garden complaint– were
not matters of public concern. Even if McCartney had spoken on a matter
of public concern, the magistrate judge found that the alleged acts of
retaliation would not have deterred a person of ordinary firmness from
speaking. Judge Prince also found that the alleged retaliation was not
causally connected to the speech. Thus, Magistrate Judge Prince
recommends granting summary judgment on McCartney’s claims for First

11

“Actions brought under 42 U.S.C. § 1983 are governed by the
personal injury statute of limitations of the state in which the cause of
action accrued.” O'Connor v. City of Newark, 440 F.3d 125, 126 (3d Cir.
2006) (citing Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25 (3d
Cir. 1989)).
42

Amendment retaliation.
We agree with Judge Prince there is no genuine issue of material
fact as to whether McCartney spoke on a matter of public concern. Her
discrimination complaint related to her own employment. Her other
instances of speech involved reporting on violations of agency policies or
laws. The record shows that McCartney made these complaints (1)
pursuant to her own duties and (2) in order to find an outlet for her own
perceived mistreatment by her colleagues. (See McCartney Dep.
107:11–108:16, Doc. 38-2, at 65–66 (“There is a directive . . . that when
you become aware of violations you are to report them. . . . I was trying
to get somebody in upper administration to pay attention to what I was
saying, to pay attention to me[.]”)). These are plainly not public topics
that implicate the political process or social concerns. Thus, we find as a
matter of law that McCartney’s speech was not on a matter of public
concern. Accordingly, McCartney cannot establish a violation of her first
amendment rights and we decline to address the remaining elements of
this cause of action. The defendants’ motion for summary judgment will
be granted on this claim.
D. Qualified Immunity
Defendants contend they are entitled to summary judgment on
Plaintiff’s claims because they are shielded from liability by the doctrine of
qualified immunity. Qualified immunity protects public officials “‘from
undue interference with their duties and from potentially disabling threats
of liability.’” Wright v. City of Philadelphia, 409 F.3d 595, 599 (3d Cir.
2005) (quoting Elder v. Holloway, 510 U.S. 510, 514 (1994)). The
doctrine does not apply when state officials “violate ‘clearly established
statutory or constitutional rights of which a reasonable person would have
known.’” Id. at 599-600 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 806
43

(1982)). Therefore, the court must examine: (1) whether the officials
violated a constitutional right, and (2) whether that right was clearly
established at the time. Id.
As we have determined, above, McCartney has not presented
genuine issues of material fact with respect to her claim for gender
discrimination under the Equal Protection Clause of the Fourteenth
Amendment or with respect to her claim for retaliation under the First
Amendment. Accordingly, the defendants’ motion for summary judgment
is moot with respect to qualified immunity.
CONCLUSION
For the reasons stated above, the defendants’ motion for summary
judgment will be granted and the plaintiff’s claims dismissed.

44

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WENDY McCARTNEY,
Plaintiff
v.

:
No. 1:09cv1817
:
:
(Judge Munley)
:
PENNSYLVANIA STATE
:
POLICE, DANIEL HAWK, :
DENNIS SMOLKO, EARL :
KILLION, CHARLES
:
STROBERT, THOMAS
:
BUTLER, PATRICK
:
GEBHART,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 29th day of July 2011, upon consideration of
the plaintiff’s objections to the magistrate judge’s report and
recommendation which proposes that the defendants’ motion for
summary judgment be granted and that the plaintiff’s complaint be
dismissed, it is HEREBY ORDERED that:
•

The objections (Doc. 61) to the report and recommendation are
OVERRULED,

•

The report and recommendation (Doc. 57) is ADOPTED,

•

The motion for summary judgment (Doc. 36) is GRANTED.

The Clerk of Court is directed to CLOSE this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

45