Conrad v. Pennsylvania State Police et al

Filing 37

MEMORANDUM re MOTION for Reconsideration 34 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 7/12/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:
:
Plaintiff,
:
:
v.
:
:
PENNSYLVANIA STATE POLICE, :
et al.,
:
:
Defendants.
:

KELLY CONARD,

Civil No. 1:15-cv-0351

Judge Rambo
Magistrate Judge Carlson

MEMORANDUM
Before the court is a motion for reconsideration (Doc. 34) of this court’s
memorandum and order adopting in part and rejecting in part a report and
recommendation filed by the magistrate judge (Doc. 27). By order dated May 24,
2016 (Doc. 33), this court dismissed the captioned action with prejudice.
I.

Background
In 2006, Conard filed suit against the same defendants named in the

instant action wherein she alleged acts of discrimination, retaliation, and denial of
equal protection. See Conard v. Pennsylvania State Police, et al., Civ. No. 4:06-cv1450. The case was dismissed by the district court and that decision was affirmed
by the United States Court of Appeals for the Third Circuit. Conard v.
Pennsylvania State Police, 360 F. App’x 337 (3d Cir. 2010).
The instant complaint was filed on February 18, 2015 and amended on
August 31, 2015. (Doc. 12.) The amended complaint alleged discrimination, equal

protection violations, retaliation, and libel – claims raised by Conard in her
previous suit.
II.

Legal Standard
A motion for reconsideration is a device of limited utility. Its purpose is

to correct manifest errors of law or fact or to present newly discovered evidence.
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a party
seeking reconsideration must demonstrate at least one of the following grounds
prior to the court altering, or amending, a standing judgment: (1) an intervening
change in the controlling law; (2) the availability of new evidence that was not
available when the court entered judgment; or (3) the need to correct a clear error
of law or fact or to prevent manifest injustice. Max’s Seafood Café v. Quinteros,
176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for
reconsideration is appropriate in instances where the court has “patently
misunderstood a party, or has made a decision outside the adversarial issues
presented to the [c]ourt by the parties, or has made an error not of reasoning but of
apprehension.” Rohrbach v. AT&T Nassau Metals Corp., 902 F. Supp. 523, 527
(M.D. Pa. 1995) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99
F.R.D. 99, 101 (E.D. Va. 1983)). It may not be used as a means to reargue
unsuccessful theories, or to argue new facts or issues that were not presented to the
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court in the context of the matter previously decided. Drysdale v. Woerth, 153 F.
Supp. 2d 678, 682 (E.D. Pa. 2001). “Because federal courts have a strong interest
in the finality of judgments, motions for reconsideration should be granted
sparingly.” Continental Cas. Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943
(E.D. Pa. 1995).
III.

Discussion
Conard claims this court erred as a matter of law in dismissing her equal

protection claim and First Amendment retaliation claim. The court will address
each matter in turn.
A. Equal Protection Claim
Conard claims that the magistrate judge failed to address her equal
protection claim and that this court likewise failed to address it. However, both the
magistrate judge and this court adequately addressed this issue. The magistrate
judge covered this claim in his discussion that the claim was subject to dismissal
pursuant to a statute of limitation issue, res judicata, and/or collateral estoppel.
(Doc. 27, pp. 13-16; Doc. 32, p. 3.)
In her previous suit, the court found that Conard’s assertion of an equal
protection violation under the class-of-one theory is not applicable in the public
employment context. See Conard v. Pennsylvania State Police, Civ. No. 4:06-cv1450, 2009 WL 473859, *5 (M.D. Pa. Feb. 25, 2009).
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This issue has therefore been thoroughly addressed in the report and
recommendation and by this court.
B. Retaliation Claim
Conard’s claim of retaliation is based on her allegation that Defendants
provided negative employment references to Conard’s potential employers,
causing her to be unable to obtain employment. These negative references
allegedly began at some undisclosed time and continued to 2014. Conard claims
that these new actions by Defendants were taken well after her employment with
the Pennsylvania State Police ended and have no relation to the claims presented in
her 2006 lawsuit.
However, Conard’s amended complaint belies this position. The
complaint, in part, reads as follows:
46. The statements by Tripp and the PSP Human Resource
Division as set forth above, were knowingly false, and were
made with the specific intention to hurt and harm Plaintiff in
retaliation for her filing the prior federal civil rights lawsuit
against them.
47. The actions and conduct of all the Defendants constitutes
retaliation against the Plaintiff for the protected exercise of her
First Amendment rights in filing the 2006 lawsuit against the
Defendants, and is a continuation of the same discrimination
against her as was involved in her prior lawsuit, in violation of
her right to equal protection of the laws. It additionally
constitutes a violation of the law of defamation under both
Pennsylvania and South Carolina law.

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48. As a direct and proximate result of the conduct of these
Defendants as aforesaid, Plaintiff has lost employment
opportunities, and has suffered embarrassment, humiliation,
inconvenience, health issues and emotional suffering and
distress.
49. The conduct of the Defendants was done deliberately to
hurt and harm the Plaintiff, with the specific intent to deprive
her of income and employment opportunities, and was all done
to retaliate against her for her prior protected activities, all of
which is outrageous, and justifies an award of punitive
damages.
(Doc. 12, ¶¶ 46-49.)
Thus these negative references are alleged by Conard to be in retaliation
for filing her initial lawsuit. The magistrate judge opined that the temporal
proximity between the alleged protected activity (lawsuit) and the alleged adverse
action (adverse references) was too remote to establish a constitutional retaliation
claim. (Doc. 27, pp. 17-22.)1

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Conard’s claim is similar to a claim for interference with a contractual relationship. The
Restatement (Second) of Torts, Section 772(a) reads:
One who intentionally causes a third person not to perform a contract or
not to enter into a prospective contractual relation with another does not
interfere improperly with the other’s contractual relation, by giving the
third person
(a) Truthful information.
The fact that Defendants have advised prospective employers that Conard filed a suit against
them is a truthful fact.
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IV.

Conclusion
Conard has failed to meet the requirements of Rule 59(e), in particular a

“clear error of law,” and therefore the motion will be denied.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: July 12, 2016

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