Brown v. Commonwealth of Pennsylvania, Department of Corrections

Filing 95

ORDER ADOPTING REPORT AND RECOMMENDATIONS - The report 75 of Magistrate Judge Martin C. Carlson is ADOPTED as set forth herein. 2. Defendants' motion 52 for summary judgment is GRANTED in part and DENIED in part, as follows: a. Defenda nts' motion for summary judgment is GRANTED as to Brown's Title VII and PHRA retaliation claims (Count I, part two; Count II, part two). b. Defendants motion is DENIED in all other respects. 3. Entry of judgment in defendants' favor on Brown's Title VII and PHRA retaliation claims is DEFERRED pending resolution of the remaining First Amendment retaliation claim (Count VI). Signed by Chief Judge Christopher C. Conner on 5/6/2020. (ktt)

Case 1:15-cv-00918-CCC Document 95 Filed 05/06/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN L. BROWN,
Plaintiff
v.
COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT
OF CORRECTIONS, et al.,
Defendants

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CIVIL ACTION NO. 1:15-CV-918
(Chief Judge Conner)

ORDER
AND NOW, this 6th day of May, 2020, upon consideration of the report (Doc.
75) of Magistrate Judge Martin C. Carlson, recommending that the court grant in
part and deny in part defendants’ motion (Doc. 52) for summary judgment, wherein
Judge Carlson opines that plaintiff Dawn L. Brown has failed to carry her Rule 56
burden on her retaliation claims under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e-2, and the Pennsylvania Human Relations Act
(“PHRA”), 43 PA. STAT. & CONS. STAT. ANN. §§ 951-963, but that there exist genuine
issues of material fact as to Brown’s First Amendment retaliation claim, and the
court noting that defendants filed objections (Doc. 78) to the report, see FED. R. CIV.
P. 72(b)(2), which have been fully briefed by the parties, (see Docs. 79, 83, 84), and
following de novo review of the contested portions of the report, E.E.O.C. v. City of
Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting 28 U.S.C. § 636(b)(1)), and
affording “reasoned consideration” to the uncontested portions, id. (quoting
Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987)), the court finding Judge

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Carlson’s analysis to be fully supported by the record and by the applicable
decisional law, 1 and further finding defendants’ objections (Doc. 78) to be without
merit, 2 it is hereby ORDERED that:
1.

The report (Doc. 75) of Magistrate Judge Martin C. Carlson is
ADOPTED as set forth herein.

2.

Defendants’ motion (Doc. 52) for summary judgment is GRANTED in
part and DENIED in part, as follows:
a.

Defendants’ motion for summary judgment is GRANTED as to
Brown’s Title VII and PHRA retaliation claims (Count I, part
two; Count II, part two).

b.

Defendants’ motion is DENIED in all other respects.

3.

Entry of judgment in defendants’ favor on Brown’s Title VII and
PHRA retaliation claims is DEFERRED pending resolution of the
remaining First Amendment retaliation claim (Count VI).

4.

The following causes of action are DISMISSED with prejudice per
Brown’s express stipulation: (a) discrimination under Title VII against
defendant Commonwealth of Pennsylvania (Count I, part one);

1

Although Judge Carlson provides multiple reasons why Brown’s Title VII
and PHRA retaliation claims do not survive Rule 56 scrutiny, we base our decision
on only the first. That is, Brown has failed to establish a prima facie causal
connection between her protected Title VII conduct and her July 30, 2015
termination—the only “adverse employment action” Brown proffers. (See Doc.
70 at 4). The lone protected activity Brown identifies is filing a charge of
discrimination with the Department of Corrections’ equal employment office on
January 15, 2015. (See id.) Brown relies solely on temporal proximity to show
causation, but circuit precedent forecloses that approach because over six months
elapsed between her protected conduct and her termination. See LeBoon
v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 233 (3d Cir. 2007) (three-month
gap between protected activity and adverse action, by itself, not unusually
suggestive); Andreoli v. Gates, 482 F.3d 641, 650 (3d Cir. 2007) (five-month gap
insufficient). Because Brown has failed to adduce evidence “sufficient to raise the
inference that her protected activity was the likely reason for the adverse
[employment] action,” Carvalho-Grievous v. Del. State Univ., 851 F.3d 249, 259 (3d
Cir. 2017) (alteration in original) (citation omitted), she has failed to demonstrate
causation for her prima facie case of retaliation under Title VII and the PHRA.
2

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(b) discrimination under the PHRA against defendant Commonwealth
of Pennsylvania (Count II, part one); (c) violation of Pennsylvania’s
Whistleblower Protection Law against defendant Commonwealth of
Pennsylvania (Count III); (d) wrongful termination against defendant
Commonwealth of Pennsylvania (Count IV); (e) equal protection claim
under Fourteenth Amendment through 42 U.S.C. § 1983 against all
defendants (Count V); and (f) First Amendment retaliation claim only
as to defendants Commonwealth of Pennsylvania and Stephen Noll
(Count VI). (See Doc. 70 at 1-2, 10-11).
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
2

Defendants primarily object by arguing that Brown failed to establish that
Acting Deputy Secretary Michael Wenerowicz—the ultimate decisionmaker in
plaintiff’s July 2015 termination—had knowledge of Brown’s protected First
Amendment activity. (See Doc. 79 at 3-5). To be sure, Brown must show that her
protected conduct was “a substantial or motivating factor” in the alleged retaliatory
action. Flora v. County of Luzerne, 776 F.3d 169, 174 (3d Cir. 2015) (citing Gorum
v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). It is equally settled that the causation
component of Brown’s retaliation claim includes a knowledge requirement, that is,
“for protected conduct to be a substantial or motivating factor in the decision, the
decisionmakers must be aware of the protected conduct.” Gorum, 561 F.3d at 188
(quoting Ambrose v. Township of Robinson, 303 F.3d 488, 493 (3d Cir. 2002)).
However, Brown has adduced evidence that a pre-disciplinary panel made the
termination recommendation to Wenerowicz (which Wenerowicz followed) and that
members of this panel knew of Brown’s protected conduct. (See Doc. 91 ¶¶ 3-13).
Wenerowicz also testified that he relied exclusively on the pre-disciplinary panel’s
recommendation and conference materials when deciding to terminate Brown.
(See Wenerowicz Dep. 7:15-8:16, 10:1-8). This evidence is sufficient to establish
knowledge of Brown’s protected conduct, and thus prima facie causation, under
what is colloquially referred to as the “cat’s paw” doctrine. See Staub v. Proctor
Hosp., 562 U.S. 411, 418-19 (2011); McKenna v. City of Philadelphia, 649 F.3d 171,
177-78 (3d Cir. 2011). As the Court explained in Staub, defendants’ logic would
permit an employer to isolate a personnel official from an employee’s supervisors,
“vest the decision to take adverse employment actions in that official,” and thereby
shield the employer from liability for adverse actions recommended by supervisors
motivated by discriminatory or retaliatory animus. See Staub, 562 U.S. at 419-20.
Defendants provide no rebuttal to Brown’s cat’s paw theory of liability, and they
admit the relevant assertions leveled in Brown’s supplemental statement of
material facts. (See Doc. 94-1 ¶¶ 3-13). Accordingly, summary judgment as to
Brown’s First Amendment retaliation claim must be denied.
3