Herman v. Carbon County et al

Filing 67

MEMORANDUM and ORDER GRANTING 61 62 Motions for Summary Judgment; Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 3/31/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MARY ALICE HERMAN, Plaintiff : No. 3:04cv614 : : (Judge Munley) v. : : COUNTY OF CARBON, : ROBERTA BREWSTER, Court : Administrator, : WILLIAM O. GUREK, County : Commissioner, : WAYNE NOTHSTEIN, County : Commissioner, and : CHARLES E. GETZ, County : Commissioner, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court are defendants' motions for summary judgment. Having been b rie fe d , the matters are ripe for disposition. B a c k g ro u n d 1 P la in tiff Mary Herman ("Plaintiff") was the Jury Clerk for Defendant Carbon County, Pennsylvania, and was employed by the County for eighteen years. The J u ry Clerk position was a full-time position. Plaintiff was employed by the Carbon C o u n ty Jury Selection Commission. This Commission was comprised of three Jury

Plaintiff did not submit a brief in opposition to the defendants' motions. As such, the court will relate only briefly the facts of the case in this section. The court will reference the relevant facts as related in the defendants' statements of material facts in the discussion section of this opinion.

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C o m m is s io n e rs ; Brenda Ellis ("Ellis"), W illia m Poluka ("Poluka"), and President J u d g e Richard W e b b ("Judge W e b b "). During an October 27, 2003 Jury Selection C o m m is s io n meeting, Judge W e b b proposed that the Commission abolish the Jury C le rk position. Plaintiff would serve in a newly created position, as a Jury Selection C o m m is s io n Clerk. This position was limited to ten and one half hours per week and re c e ive d ten dollars per hour. During this meeting, Poluka and Ellis voted against th e proposed change. Despite the majority vote of the Jury Selection Commission, J u d g e W e b b advanced a recommendation to the Carbon County Salary Board that P la in tiff's position be terminated and that she be placed in the newly created parttim e position. On December 12, 2003, Plaintiff sent a letter to Defendant County C o m m is s io n e rs , requesting that they decline to implement Judge W e b b 's proposed c h a n g e s . Plaintiff also openly supported Poluka and Ellis when they spoke with the m e d ia regarding issues before the Jury Selection Commission. She filed a c o m p la in t against Judge W e b b with the Judicial Conduct Board. On January 5, 2 0 0 4 , acting in accord with the members of the Carbon County Salary Board, D e fe n d a n ts Court Administrator Roberta Brewster ("Brewster"), County C o m m is s io n e r W illia m O'Gurek, County Commissioner W a yn e Nothstein, and C o u n ty Commissioner Charles Getz voted in favor of implementing Judge W e b b 's p ro p o s e d changes. Plaintiff was specifically informed by a Carbon County official th a t her job was changed in retaliation for Ellis' and Poluka's actions. A significant

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p o rtio n of Plaintiff's former job duties were transferred to a woman who is s u b s ta n tia lly younger than the Plaintiff. Plaintiff filed an amended complaint on May 28, 2004, asserting four causes of a c tio n . First, Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 ("section 1983") a r g u in g that Defendants retaliated against her for her speech in violation of the First A m e n d m e n t of the United States Constitution. Second, Plaintiff asserts a claim u n d e r section 1983 for a violation of her Fourteenth Amendment Due Process R ig h ts , arguing that her job was terminated for an improper purpose and with im p ro p e r procedures. Third, Plaintiff avers that the defendants violated the P e n n s ylv a n ia W h is tle b lo w e r Law, 43 PA. CONS. STAT. §§ 1421-1428, by terminating h e r in retaliation for her support of Poluka and Ellis, and in retaliation for her letter to th e Commissioners. Fourth and finally, Plaintiff argues that the defendants violated th e Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 because th e y reduced her hours because of her age. Defendants filed a motion to dismiss. After the parties briefed the issue, this c o u rt issued a memorandum and order granting the motion to dismiss in part and d e n yin g it in part. (See Doc. 614). Defendant Brewster appealed the court's d e c isio n to the Third Circuit Court of Appeals, arguing that plaintiff had failed to state a claim for First Amendment retaliation and that she was entitled to qualified im m u n ity . On September 25, 2007, the Third Circuit issued its opinion on this a p p e a l (Doc. 34-2). In a non-precedential opinion, the Court of Appeals found that

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th is court had properly determined that Defendant Brewster was not entitled to q u a lifie d immunity on plaintiff's First Amendment retaliation claim, but that plaintiff h a d not properly stated the basis for the alleged retaliation. Plaintiff, the court p o in ted out, had alleged that "she openly and publicly supported the Jury C o m m is s io n e rs ' statements to the media." (Id. at 5). She did not, however, "allege w h e n these open and public expressions took place" or their "content." (Id.). Though p la in tiff's complaint was insufficient, the court concluded that "[i]t may be possible th a t Herman can state a valid claim and she should be granted leave to amend." (Id .). Accordingly, the Third Circuit Court remanded the case to this court with in s tru c tio n s to allow plaintiff to replead her claim to describe the statements she m a d e to the media. (Id. at 6). Plaintiff filed this second amended complaint on November 8, 2007. (See S e c o n d Amended Complaint (Doc. 36) (hereinafter "Second Amend. Complt.")). The complaint repeats the allegations of plaintiff's amended complaint, but includes m o re detail about the content and context of plaintiff's public statements. Plaintiff a lle g e s that she exercised her First Amendment right to free speech by "openly s u p p o rtin g Commissioners Poluka and Ellis who spoke with the media regarding s o m e of the issues before the Jury Selection Commission." (Second Amend. C o m p lt. at ¶ 28). According to the complaint, plaintiff's expression including being p ic tu re d in a newspaper photograph "with the Jury Commissioners in the cramped o ffic e space which was given to them after they complained about the inaccessibility

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o f their previous office for handicapped individuals." (Id. at ¶ 29). Captions to s e ve ra l newspaper articles that included such pictures stated that "`they are c o m p la in in g .'" (Id. at ¶ 30). After plaintiff filed this second amended complaint, Defendant Brewster filed a m o tio n for judgment on the pleadings. (Doc. 40). The court denied that motion on J u n e 11, 2008 (Doc. 53). W h e n the parties completed discovery in the case, the d e fe n d a n ts filed motions for summary judgment. (Docs. 61-62). They also filed b rie fs in support of those motions. (Docs. 63, 65). Plaintiff did not file a brief in o p p o s itio n to the motions, despite an order by the court (Doc. 66) on January 30, 2 0 0 9 that she do so. The motions are therefore now ripe for the court's disposition. Jurisdiction A s this case is brought pursuant to 42 U.S.C. § 1983 and the Age D is c rim in a tio n in Employment Act, 29 U.S.C. § 623, we have jurisdiction under 28 U .S .C . § 1331 ("The district courts shall have original jurisdiction of all civil actions a ris in g under the Constitution, laws, or treaties of the United States."). We have s u p p le m e n ta l jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367. L e g a l Standard G ra n tin g summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show th a t there is no genuine issue as to any material fact and that the moving party is 5

e n title d to judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3 d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere e xis te n c e of some alleged factual dispute between the parties will not defeat an o th e rw is e properly supported motion for summary judgment; the requirement is that th e re be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 247-48 (1986) (emphasis in original). In considering a motion for summary judgment, the court must examine the fa c ts in the light most favorable to the party opposing the motion. International Raw M a te ria ls , Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The b u rd e n is on the moving party to demonstrate that the evidence is such that a re a s o n a b le jury could not return a verdict for the non-moving party. Anderson, 477 U .S . at 248 (1986). A fact is material when it might affect the outcome of the suit u n d e r the governing law. Id. Where the non-moving party will bear the burden of p ro o f at trial, the party moving for summary judgment may meet its burden by s h o w in g that the evidentiary materials of record, if reduced to admissible evidence, w o u ld be insufficient to carry the non-movant's burden of proof at trial. Celotex v. C a tre tt, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the b u rd e n shifts to the nonmoving party, who must go beyond its pleadings, and d e s ig n a te 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. In this case, the defendants filed motions for summary judgment and 6

s ta te m e n ts of material facts (See Docs. 61-64), but the plaintiff did not file a brief in o p p o s itio n or a counterstatement of material facts. The court ordered the defendant to file her materials in opposition to summary judgment, but she failed to do so. (Doc. 66). When a party fails to oppose a motion for summary judgment, the court, "b e fore granting summary judgment . . . must first determine whether summary ju d g m e n t is appropriate­that is, whether the moving party has shown itself to be e n title d to judgment as a matter of law." Anchorage Assocs. v. V.I. Bd. Of Tax R e vie w , 922 F.2d 168, 175 (3d Cir. 1990). In making that determination, the court a c c e p ts "`as true all material facts set forth by the moving party with appropriate re c o rd support.'" Id. If the burden of proof on a relevant issue lies with the moving p a rty, "this means that the district court must determine that the facts specified in or in connection with the motion entitle the moving party to judgment as a matter of la w ." Id. If the burden of proof lies with the non-moving party, "the district court must d e te rm in e that the deficiencies in the opponent's evidence designated in or in c o n n e c tio n with the motion entitle the moving party to judgment as a matter of law." Id. D i s c u s s io n a. Roberta Brewster's Motion T h e court accepts as true those statements of material facts provided by D e fe n d a n t Brewster which have support in the record. According to those s ta te m e n ts , Brewster served as Court Administrator for Carbon County during the 7

p e rio d in question. (Defendant's Concise Statement of Material Facts (Doc. 61-4) (h e re in a fte r "Brewster's Statement") at ¶ 4). During that period, President Judge R ic h a rd W e b b had the sole authority to determine the terms and conditions of p la in tiff's appointment. (Id. at ¶ 3). Defendant had no authority as Court A d m in is tra to r to reduce plaintiff's hours of employment or change the terms and c o n d itio n s of her employment. (Id. at ¶ 25). She also had no independent authority to make decisions about the jury clerk's position that plaintiff held, and did nothing to in flu e n c e Judge W e b b 's decision that the job be reduced from full-time to part-time. (Id. at ¶¶ 26-27). Brewster also played no role in the Salary Board meeting that c h a n g e d the status of plaintiff's job from full-time to part-time. (Id. at ¶¶ 31, 34). She w a s not a member of that board. (Id. at ¶ 37). When Judge W e b b refused the Jury C o m m is s io n 's request that plaintiff be returned to full-time status, Brewster was not p re s e n t at the meeting. (Id. at ¶ 62). Defendant Roberta Brewster argues that she is entitled to qualified immunity b e c a u s e discovery reveals that Brewster played no part in making the decision to c h a n g e plaintiff's work status. Brewster claims that her lack of a role in the decision e n title s her to qualified immunity. The court notes that the defendant's position is in c o n s is te n t: she argues she is entitled to qualified or quasi-judicial immunity, but s im u lta n e o u s ly contends she was not involved in the decision about which plaintiff c o m p la in s . If plaintiff did not engage in any actions, she does not need any im m u n ity, whether quasi judicial or qualified. See Pierson v. Ray, 386 U.S. 547, 554

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(1 9 6 7 ) (noting that "[f]ew doctrines were more solidly established at common law tha n the immunity of judges from liability for damages for acts committed within their ju d icia l jurisdiction.") (emphasis added). In any case, even if the court were to a c c e p t as true that plaintiff spoke on a matter of public concern, the court would find th a t Defendant Brewster did not engage in any retaliatory activity, and thus cannot b e liable on plaintiff's claim. Since the court must accept all of the facts asserted by th e moving party that have support in the record as true, the court finds that D e fe n d a n t Brewster did not have any role in the decision to terminate defendant and th e r e fo r e cannot be liable on plaintiff's First Amendment retaliation claim. Since B r e w s te r was not involved in the employment decision that forms the basis of p la in tiff's claims, she is entitled to judgement as a matter of law. The court will th e re fo re grant Defendant Brewster's motion. b . Motion of Carbon County, William O'Gurek, Charles Getz and Wayne N o th s te in i. Individual Defendants A ll of the remaining individual defendants, who were Carbon County C o m m is s io n e rs at the time of the incident, claim that they are entitled to qualified im m u n ity from suit on all of plaintiff's claims. Qualified immunity establishes that "g o ve rn m e n t officials performing discretionary functions generally are shielded from lia b ility for civil damages insofar as their conduct does not violate clearly established s tatu to ry or constitutional rights of which a reasonable person should have known." 9

H a rlo w v. Fitzgerald, 457 U.S. 800, 818 (1982). Determining whether qualified im m u n ity applies is a "two-step process." Miller v. Clinton County, 544 F.3d 542, 5 4 7 (3d Cir. 2008). The court must first "`decide whether the facts, taken in the light m o s t favorable to the plaintiff, show a constitutional violation. If the plaintiff fails to m a k e out a constitutional violation, the qualified immunity is at an end; the officer is e n title d to immunity.'" Id. (quoting Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2 0 0 3 )). Second, "[o]nce it is determined that evidence of a constitutional violation h a s been adduced, courts evaluating a qualified immunity claim move to the second s te p of the analysis to determine whether the constitutional right was clearly e s ta b lis h e d ." Id. T h e court will again accept as true all of the facts alleged by these defendants which have support in the record. The evidence indicates that plaintiff was an e m p lo ye e of the courts, and she was under the supervision and control of the P r e s id e n t Judge and other court employees. (County Defendants' Statement of F a c ts (Doc. ) (hereinafter "County Defendants' Statement" at ¶¶ 14-17). Though p la in tiff's salary was paid by the County, the County Commissioners had no control o ve r Herman's job, the duties she performed or her conduct on the job. (Id. at ¶¶ 1 8 -1 9 ). On January 5, 2004, Judge W e b b recommended to the Salary Board that p la in tiff's position by changed from full-time to part-time. (Id. at ¶ 41). Defendant O 'G u re k did not receive this memo, as he was not yet a county commissioner. (Id. a t ¶ 42). President Judge based his recommendation on an analysis that the staffing

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le ve l was unnecessary. (Id. at ¶ 44). He concluded that the manual methods used to update the jury pool were time-consuming and inefficient, and that computerb a s e d methods would reduce the time and cost required for such updates. (Id. at ¶ 4 5 ). Accordingly, the Judge recommended that the jury clerk position be reduced to a part-time job. (Id.). The board based its decision to make the jury-clerk position h a lf-tim e on this recommendation. (Id. at ¶ 46). Judge Webb's decision reducing s ta ffin g was consistent with the approach advocated by the Pennsylvania Supreme C o u rt to reduce staffing. (Id. at ¶ 53). Defendants' qualified immunity argument focuses on the second of the q u a lifie d immunity determinations. They argue that their vote to reduce plaintiff's p o s itio n was based on a request from the County Court's President Judge that was s u p p o rte d by an objectively reasonable analysis of the staffing needs of a judge's o ffic e , and that such a request did not violate any clearly established law. The court a g re e s . W h e n they acted to reduce the plaintiff's hours and change the nature of h e r position, the individual defendants were acting pursuant to the request and a s s u ra n c e s of the President Judge. To do so would not appear to any reasonable p e rs o n to violate a clearly established right. As such, these legislators are entitled to q u a lifie d immunity on plaintiff's First Amendment retaliation claim brought pursuant to Section 1983. The court will grant their motion for summary judgment on this p o in t. ii. The County

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a . First Amendment Retaliation T h e county contends that it cannot be liable for First Amendment retaliation a g a in s t the plaintiff. "`A public employee has a constitutional right to speak on m a tte rs of public concern without fear of retaliation.'" Brennan v. Norton, 350 F.3d 3 9 9 , 412 (3d Cir. 2003) (quoting Baldassare v. New Jersey, 250 F.3d 188, 194 (3d C ir. 2001)). Courts, however, limit this right to speech by public employees; they e m p lo y a three-part test to determine whether such speech enjoys First Amendment p ro te c tio n against retaliation. First, they determine whether the speech is "p ro te c te d ." Id. "Purely personal" speech does not qualify for such protection. Id. Instead, "the speech in question `must involve a matter of public concern.'" Id. (quoting Connick v. Meyers, 461 U.S. 138, 147 (1983)). Second, if the speech in q u e s tio n involves a matter of public concern, "the plaintiff must then `demonstrate h is [/h e r] interest in the speech outweighs the state's countervailing interest as an e m p lo ye r in promoting the efficiency of the public services it provides through its e m p lo ye e s .'" Id at 413 (quoting Baldassare, 250 F.3d at 195). Third, a plaintiff who m e e ts the first two elements of this test "`must then show that the protected activity w a s a substantial or motivating factor in the alleged retaliatory action.'" Id. at 414 (q u o tin g Baldassare, 250 F.3d at 195). An employer can rebut this element by d e m o n s tra tin g that the employment decision would have been the same even w ith o u t the protected speech. Id. Putting aside whether plaintiff actually spoke in this case (defendants insist

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th a t she did not), the court finds that plaintiff could not prevail on the third element of a retaliation claim. The uncontested evidence recounted above provides the d e fe n d a n ts ' reasons for reducing the plaintiff's position to half time. This explanation e s tab lis h e s that defendants' change of plaintiff's position was motivated by a desire to make the jury pool system operate more efficiently. If the courts adopted a c o m p u te riz e d system of updating the jury lists, plaintiff's full-time position would b e c o m e unnecessary. Thus, defendants have established that the employer's d e c isio n would have been the same even without the protected speech, and plaintiff c o u ld not prevail on this claim. The court will grant the county defendants' motion on th is point. b . Pennsylvania Whistleblower Statute T h e defendants also contend that plaintiff cannot prevail on her claim under th e Pennsylvania W h istle b lo w e r Statute, 43 Pa. S. §1421, et seq. Under that s ta tu te , "[n]o employer may discharge, threaten or otherwise discriminate or retaliate a g a in s t an employee regarding the employee's compensation, terms, conditions, lo c a tio n or privileges of employment because the employee . . . makes a good faith re p o rt or is about to report, verbally or in writing, to the employer or appropriate a u th o rity an instance of wrongdoing or waste." 43 Pa. S. § 1423(a). The Act defines "w a s te " as "an employer's conduct or omissions which result in substantial abuse, m is u s e , destruction or loss of funds or resources belonging to or derived from C o m m o n w e a lth or political subdivision sources." 43 Pa. S. § 1422. "W ro n g d o in g "

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m e a n s "a violation which is not of a merely technical or minimal nature of a Federal o r State regulation, of a political subdivision ordinance or regulation or of a code of c o n d u c t or ethics designed to protect the interest of the public or the employer." Id. A c c o r d in g to the uncontested facts supplied by the County defendants, p la in tiff's report came when she was pictured in an April 2003 news article. (County D e fen d a n ts ' Statement at ¶ 35). That news article concerned Carbon County Jury C o m m is s io n e r's complaints about the Jury Commission Office and the amenities it c o n ta in e d . (Id.). The only complaints that plaintiff made concerned the size and p h ys ica l condition of her office. (Id. at ¶ 36-37). The uncontested facts show that plaintiff's complaint was not protected under th e W h is tle b lo w e r statute. The complaint about the physical condition of her office d id not address any "substantial abuse, misuse, destruction or loss of funds or re s o u rc e s " that belonged to the County. 43 P.S. ¶ 1422. Indeed, plaintiff's c o m p la in t actually appears to be aimed at convincing the County to spend more of its resources on the Jury Commission. The facts also do not indicate that plaintiff o ffe r e d any report of wrongdoing through the newspaper. She complained of office a c c o m m o d a tio n s , not that any substantial violation of a state or federal statute or re g u la tio n occurred. See Id. As such, the evidence indicates that plaintiff could not q u a lify for the protections of the W h is tle b lo w e r Statute, and the court will grant s u m m a ry judgment on that claim. c. Age Discrimination in Employment Act Claims

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D e fe n d a n ts also seek summary judgment on plaintiffs Age Discrimination in E m p lo ym e n t Act (ADEA) claims. The Age Discrimination in Employment Act (ADEA) p ro h ib its "discrimination against an individual over age 40 with respect to `c o m p e n s a tio n , terms, conditions, or privileges of employment, because of an in d ivid u a l's age.'" Billet v. Cigna Corp., 940 F.2d 812, 816 (3d Cir. 1991) (quoting 29 U .S .C . § 623(a)). To recover under the act, "`a plaintiff must prove by a p re p o n d e ra n c e of the evidence that age was the determinative factor in the e m p lo ye r's decision' at issue." Id. (quoting Bartek v. Urban Redevelopment A u tho rity of Pittsburgh, 882 F.2d 739, 742 (3d Cir. 1989)). L a c k in g direct evidence of discrimination, a plaintiff seeking recovery under th e ADEA must first make out a prima facie case by "showing (1) he is within the p ro te c te d age class, i.e. over forty; (2) that he was qualified for the position at issue; (3 ) he was dismissed despite being qualified; and (4) he was replaced by a person s u ffic ie n tly younger to permit an inference of age discrimination." Armruster v. U n is ys Corp., 32 F.3d 768 (3d Cir. 1994). Once the plaintiff establishes this prima fa c ie case, "the defendant has the burden of producing evidence that it had `a le g itim a te , nondiscriminatory reason for the discharge.'" Fakete v. Aetna, Inc., 308 F .3 d 335, 338 (3d Cir. 2002). If the defendant produces such evidence, the burden s h ifts back to the plaintiff, who must provide "evidence `from which a factfinder could re a s o n a b ly either (1) disbelieve the employer's articulated legitimate reasons[,] or (2) b e lie ve that an invidious discriminatory reason was more likely than not a motivating

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o r determinative cause of the employer's action.'" Id. (quoting Fuentes v. Perskie, 32 F .3d 759, 763 (3d Cir. 1994). D e fe n d a n ts contend that they have articulated a legitimate, non-discriminatory re a s o n for reducing plaintiff's hours. They acted on the recommendation of the P re s id e n t Judge, who concluded that computerizing jury records would make p la in tiff's full-time position unnecessary. The court agrees that this action, if believed b y a jury, would represent a legitimate non-discriminatory reason for defendants' e m p lo y m e n t action. Since plaintiff has not offered any facts to dispute these le g itim a te reasons, the court will grant the defendants' motion on this point as well. C o n c l u s io n F o r the reasons stated above, the court will grant the defendants' motions for s u m m a r y judgment. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MARY ALICE HERMAN, Plaintiff : No. 3:04cv614 : : (Judge Munley) v. : : COUNTY OF CARBON, : ROBERTA BREWSTER, Court : Administrator, : WILLIAM O. GUREK, County : Commissioner, : WAYNE NOTHSTEIN, County : Commissioner, and : CHARLES E. GETZ, County : Commissioner, : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M AN D NOW, to wit, this 31st day of March 2009, the defendants' motions for s u m m a ry judgment (Docs. 61-62) are hereby GRANTED. The Clerk of Court is d ire c te d to CLOSE the case.

BY THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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