DeGroat et al v. Pennsylvania Department of Transportation et al
Filing
146
MEMORANDUM (Order to follow as separate docket entry) re Defendants' 119 Motion for Partial Summary Judgment. Signed by Honorable Matthew W. Brann on 2/10/15. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DONNA DeGROAT and
GARY CLARK,
Plaintiffs
v.
CHARLES DeFEBO,
ERIN SODEN, and
ROBERT COLLINS,
Defendants
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CIVIL ACTION NO. 3:08-CV-0463
(Judge Brann)
MEMORANDUM
February 10, 2015
Pending before this Court is a Motion for Partial Summary Judgment (ECF
No. 119) filed by Defendants Charles DeFebo, Erin Soden, and Robert Collins.
The motion seeks to dismiss all supplemental allegations added by Plaintiffs in
their First Amended Complaint (ECF No. 79) and their Second Amended
Complaint (ECF No. 94).1 The matter has been fully briefed and is now ripe for
disposition. In accordance with the following reasoning, Defendants’ Motion for
Partial Summary Judgment is granted in its entirety.
I. BACKGROUND
Plaintiffs Donna DeGroat and Gary Clark have brought this action alleging
workplace retaliation for conduct protected by the First Amendment. For all of the
time relevant to this case, Plaintiffs were employees of the Pennsylvania
1
These supplemental allegations are listed in paragraphs 60-130 of Plaintiffs’ Second Amended Complaint (ECF
No. 94).
1
Department of Transportation (hereinafter “PennDOT”) at the Pike County,
Pennsylvania Maintenance Office. Plaintiff DeGroat serves as the purchasing
agent for the county office and continues to be employed with PennDOT. Plaintiff
Clark was employed as a heavy equipment operator and retired from the
department on May 28, 2011. At all times relevant to this action, Plaintiffs have
been in a relationship and have married during the course of this litigation.
Defendants are also present and former employees of PennDOT. Robert
Collins was employed as the Pike County Maintenance Manager before his
retirement on June 18, 2011. Charles DeFebo is currently employed as the
business manager for the Pike County facility and is Plaintiff DeGroat’s immediate
supervisor. Erin Mazikewich (née Soden) previously worked as the labor relations
coordinator for Engineering District 4-0, which includes Pike County, and is
currently the business manager for the Susquehanna and Wyoming Counties’
maintenance office.
This case relates to a series of workplace retaliation stemming from several
complaints Plaintiffs made regarding the Defendants and the way they were
conducting business. In August 2005, Plaintiff DeGroat confronted Defendant
Collins about a sexually harassing comment he had made to an intern and
subsequently helped that intern to report the harassment. Also that month,
Plaintiffs drafted a letter to the Governor and Lieutenant Governor of Pennsylvania
2
complaining of Defendant Collins’ mismanagement and the condition of the roads
in Pike County. Finally, Plaintiff DeGroat filed an Equal Employment
Opportunity complaint (hereinafter “EEO complaint”) against Defendant Collins
alleging discriminatory and disparate treatment based on her gender.
Plaintiffs originally alleged that shortly thereafter Defendants Collins and
DeFebo began a series of acts against her, including, inter alia, writing DeGroat up
late for work when she was not in fact late, moving her desk to an undesirable
position next to the men’s room, denying a request for annual leave, removing
papers from her desk, and overzealously reviewing her work.2
Plaintiffs filed their initial Complaint on March 28, 2008 (ECF No. 1).
Following the close of discovery, Defendants filed a Motion for Summary
Judgment that was granted in part and denied in part by the Honorable James M.
Munley, then assigned to this case. Subsequently, Plaintiffs were granted leave to
file an Amended Complaint (ECF No. 79) adding supplemental allegations of
retaliation that occurred after the filing of the original complaint and which were,
allegedly, based on the initiation of this lawsuit. Later, Plaintiffs were once again
granted leave to file a Second Amended Complaint (ECF No. 94).
Specifically, the new allegations by Plaintiff DeGroat include the following:
(1) Defendants gave her a one-day suspension for failing to sign a personnel
2
The above listed facts in this section are taken from the February 17, 2011 Memorandum of United States District
Judge James M. Munley (ECF No. 59).
3
memorandum which she believed would have prohibited her from divulging
documents to anyone outside of PennDOT including, ostensibly, her attorney; (2)
constant scrutiny by Defendant DeFebo of her work; (3) Defendant Collins
developed an unworkable purchase order form which was designed solely to harass
her; (4) Defendants DeFebo and Collins were unresponsive to her concerns
regarding one of their employees who was allegedly both passively and actively
interfering with Plaintiff DeGroat’s ability to do her job; (5) Defendant Collins
verbally attacked her during a meeting which was called to discuss her concerns
over that employee; and (6) an anonymous complainant, allegedly under the
direction of Defendants, filed a complaint with the Office of the Inspector General
(hereinafter the “OIG”) regarding Plaintiff DeGroat’s purchasing card, leading to a
suspension of her card and a subsequent investigation.
The new allegations by Plaintiff Clark include the following: (1) Defendants
gave him a one-day suspension for failing to sign a personnel memorandum which
he also believed would have prohibited him from divulging documents to anyone
outside of PennDOT including, ostensibly, his attorney; (2) during the trial of a
fellow employee who had attacked Plaintiff Clark, Defendant Collins provided the
defense attorney with Clark’s personnel file in order to discredit him; (3) his
application for the position of automotive mechanic supervisor in October 2008
was summarily rejected, allegedly with the involvement of one of the Defendants;
4
(4) Defendant Collins removed trees near the area in which Plaintiff Clark was
working solely to harass and intimidate him; (5) Defendant Collins required
Plaintiff Clark to pick up cigarette butts when he refused to act as foreman solely
in order to humiliate him; (6) he did not receive out-of-class pay for specialist
work that he performed, allegedly as a result of some bad faith on the part of the
Defendants; (7) Defendant Collins commented to other employees that Plaintiff
Clark must have been the person who got into an argument with a motorist in
September 2011; (8) Plaintiff Clark was assigned to a less desirable work route in
the winter of 2011; and (9) he was constructively discharged from his position
when he retired because of the constant pattern of harassment on the part of the
Defendants.
The Court permitted discovery to be reopened as to these new allegations.
At the close of discovery Defendants moved for partial summary judgment,
bringing the case to its present posture.
II. STANDARD OF REVIEW
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” where it “might affect
the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute is “genuine” where “the evidence is such that
5
a reasonable jury,” giving credence to the evidence favoring the nonmovant and
making all inferences in the nonmovant’s favor, “could return a verdict for the
nonmoving party.” Id.
The burden of establishing the nonexistence of a “genuine issue” is on the
party moving for summary judgment. In re Bressman, 327 F.3d 229, 237 (3d Cir.
2003) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986) (Brennan, J.,
dissenting)). The moving party may satisfy this burden by either (i) submitting
affirmative evidence that negates an essential element of the nonmoving party’s
claim; or (ii) demonstrating to the Court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s case. Id. at
331.
Where the moving party’s motion is properly supported, the nonmoving
party, to avoid summary judgment in his opponent’s favor, must answer by setting
forth “genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250. For movants and nonmovants alike, the assertion “that a fact cannot
be or is genuinely disputed must” be supported by “materials in the record” that go
beyond mere allegations, or by “showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an adverse party cannot
6
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1); see also
Anderson, 477 U.S. at 248–50.
“When opposing summary judgment, the non-movant may not rest upon
mere allegations, but rather must ‘identify those facts of record which would
contradict the facts identified by the movant.’” Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003). Furthermore, “[i]f a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e)(2).
In deciding the merits of a party’s motion for summary judgment, the
Court’s role is not to evaluate the evidence and decide the truth of the matter, but
to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Credibility determinations are the province of the factfinder, not the district court.
BWM, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Although
the Court may consider any materials in the record, it need only consider those
materials cited. Fed. R. Civ. P. 56(c)(3).
III. DISCUSSION
A. Plaintiffs’ Statements of Facts
As a preliminary matter, Defendants argue that Plaintiffs have not shown the
existence of a genuine dispute of material facts because their response to
7
Defendants’ Statement of Facts does not comport with Local Rule 56.1. Rather,
they contend, instead of denying Defendants’ facts and citing to a portion of the
record, Plaintiffs “regularly deny the statement and then launch into a recitation of
facts, argument and speculation that does not address the facts that the defendants
asserted.” Defs.’ Reply Brief at 5, June 16, 2014, ECF No. 139 (hereinafter “Defs.’
Reply”). In so arguing, Defendants cite to several paragraphs of Plaintiffs’
Statement of Facts to demonstrate the rambling nature of the response.
Local Rule 56.1 of the United States District Court for the Middle District of
Pennsylvania provides:
A motion for summary judgment filed pursuant to Fed. R. Civ. P. 56, shall
be accompanied by a separate, short and concise statement of the material
facts, in numbered paragraphs, as to which the moving party contends there
is no genuine issue to be tried. The papers opposing a motion for summary
judgment shall include a separate, short and concise statement of the
material facts, responding to the numbered paragraphs set forth in the
statement required in the foregoing paragraph, as to which it is contended
that there exists a genuine issue to be tried. Statements of material facts in
support of, or in opposition to, a motion shall include references to the parts
of the record that support the statements. All material facts set forth in the
statement required to be served by the moving party will be deemed to be
admitted unless controverted by the statement required to be served by the
opposing party.
M.D.Pa. Local R. 56.1. “The purpose of this rule is obvious: it enables the court to
identify contested facts expeditiously and prevents factual disputes from becoming
obscured by a lengthy record.” Pinegar v. Shinseki, Civil Action No. 1:07-CV0313, 2009 WL 1324125 (M.D.Pa. May 12, 2009) (Conner, J.). The requirement
8
of a short and concise responsive statement of facts is particularly important where,
as here, a voluminous record and lengthy briefs accompany the motion. See Park
v. Veasie, Civil No. 3:09-CV-2177, 2011 WL 1831708, at *4 (M.D.Pa. May 11,
2011) (Rambo, J.).
After reviewing the document in question, the Court finds that Plaintiffs’
Statement of Facts does not comply with Local Rule 56.1. While Plaintiffs’
Statement of Facts is separate from their opposition brief, it is neither short nor
concise, nor limited to material facts. In fact, it is over twice as long as
Defendants’ Statement of Material Facts, although it contains the same number of
paragraphs. Plaintiffs consistently add facts in response to Defendants’ Statement
of Facts which are relevant to neither the Defendants nor the allegations at issue in
the instant Motion for Partial Summary Judgment. Moreover, Plaintiffs often
respond to several of paragraphs from Defendants’ Statement of Facts at once,
sometimes denying all and sometimes admitting in part and denying in part,
making it inordinately difficult for this Court to interpret what facts are actually
disputed. Often it actually appears that Plaintiffs are employing their Statement of
Facts to make an open-ended argument about the merits of the case, rather than
responding to the facts Defendants have put forth. Furthermore, though Plaintiffs
do cite to portions of the record in their factual assertions, often those portions of
the record are irrelevant to the fact that they are apparently disputing, making it
9
very difficult for the Court to discern what is actually disputed and, moreover,
whether Plaintiff has any evidentiary basis for each counter-fact asserted.
This lack of coherence, rambling nature and presence of non-material facts
in Plaintiffs’ Statement of Facts would actually “hinder rather than facilitate the
Court’s direct and accurate consideration” of Defendants’ Motion for Partial
Summary Judgment. Hartshorn v. Throop Borough, Civil Action No. 3:07-cv01333, 2009 WL 761270, at *3 (M.D.Pa. Mar. 19, 2009) (Caputo, J.) (striking the
statement of facts and subsequently dismissing the motion for summary judgment
on the basis of a two-hundred and forty one paragraph statement of facts).
Moreover, this “inability to comport with the rules, in turn, has left this Court to
engage in a protracted deciphering which is an ineffective use of the court’s time
and resources and it runs contrary to the central purpose of a statement of material
facts which is to aid the court to expeditiously identify factual arguments.” Breslin
v. Dickinson Tp., Civil No. 1:09-CV-1396, 2012 WL 7177278, at *3 (M.D.Pa.
Mar. 23, 2012) (quotations omitted) (Carlson, M.J.). Consequently, this Court will
strike Plaintiffs’ Counterstatement of Disputed Material Facts (ECF No. 133) and
will thereby deem admitted Defendants’ Statement of Facts.3
3
That being said, this Court will not simply accept Defendants’ arguments without qualification; rather, this Court
will still evaluate Defendants’ facts and arguments within the context of the record to determine whether Plaintiffs’
claims have sufficient merit to survive summary judgment.
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B. Section 1983 Retaliation Claims
Plaintiffs bring suit pursuant to 42 U.S.C. § 1983 for violations of their
freedom of speech and petition clause rights under the First Amendment.4 Section
1983 is not a source of substantive rights; rather, it merely provides a remedy for
violations of constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S.
808, 815 (1985). To establish a claim under 42 U.S.C. § 1983, Plaintiffs must
initially demonstrate that: (1) the conduct complained of was committed by a
person acting under color of state law; and (2) the conduct deprived the
complainant of rights secured under the Constitution or federal law. See Sameric
Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998).
As a preliminary matter, it has already been established that the Defendants
are state actors. See DeGroat v. Pennsylvania Dept. of Transp., No. 3:08cv463,
2011 WL 672416, at *3 (M.D.Pa. Feb. 17, 2011) (Munley, J.); see also Arizona v.
California, 460 U.S. 605, 618 (1983) (“As most commonly defined, the doctrine
[of the law of the case] posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the
same case.”).
4
As previously acknowledged, Plaintiffs’ claims rest on four instances of speech for which they allege Defendants
retaliated against them: (1) Plaintiff DeGroat’s assistance of the intern in reporting the harassment of Defendant
Collins; (2) the letter that both Plaintiffs wrote to the Governor and Lieutenant Governor of Pennsylvania
complaining of Defendant Collins’ mismanagement and the condition of the roads in Pike County; (3) Plaintiff
DeGroat’s EEO Complaint; and, now, (4) the instant lawsuit.
11
The United States Court of Appeals for the Third Circuit has adopted a test
to evaluate a 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). The
plaintiff must establish: “(1) constitutionally protected conduct, (2) retaliatory
action sufficient to deter a person of ordinary firmness from exercising his
constitutional rights, and (3) a causal link between the constitutionally protected
conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285,
296 (3d Cir. 2006).
C. Issue of Public Concern
Though public employees enjoy some rights of freedom of speech under the
First Amendment, that right is not absolute. See Brennan v. Norton, 350 F.3d 399,
412 (3d Cir. 2003) (explaining the need to balance the right of the public employee
to speak against the public employer’s “right to exercise some control over its
work force.”). A public employee’s statement is protected activity when: (1) in
making it, the employee spoke as a citizen, (2) the statement involved a matter of
public concern, and (3) the government did not have an adequate justification for
treating the employee differently from any other member of the general public as a
result of the statement he made. Hill v. Borough of Kutztown, 455 F.3d 225, 241-42
(3d Cir. 2006) (citations omitted). The reasons for these restrictions on the speech
of public employees is that “[t]he government has a substantial interest in ensuring
12
that all of its operations are efficient and effective. That interest may require broad
authority to supervise the conduct of public employees. . . . Restraints are justified
by the consensual nature of the employment relationship and by the unique nature
of the government’s interest.” Borough of Duryea, Pa. v. Guarnieri, — U.S. —,
131 S.Ct. 2488, 2494 (2011); see also San Diego v. Roe, 543 U.S. 77, 82 (2004)
(explaining that the requirement of a public concern “reconcile[s] the employee’s
right to engage in speech and the government employer’s right to protect its own
legitimate interests in performing its mission.”); see also Connick v. Myers, 461
U.S. 138, 146 (1983) (“Perhaps the government employer’s dismissal of the
worker may not be fair, but ordinary dismissals from government service which
violate no fixed tenure or applicable statute or regulation are not subject to judicial
review even if the reasons for the dismissal are alleged to be mistaken or
unreasonable.”).
Furthermore, the right to speak and the right to petition are “cognate rights.”
Thomas v. Collins, 323 U.S. 516, 530 (1945). As the Supreme Court noted in
Guarnieri:
The substantial government interests that justify a cautious and restrained
approach to the protection of speech by public employees are just as relevant
when public employees proceed under the Petition Clause. Petitions, no less
than speech, can interfere with the efficient and effective operation of
government . . . . Government must have authority, in appropriate
circumstances, to restrain employees who use petitions to frustrate progress
towards the needs they have been hired to achieve.
13
Guarnieri, 131 S.Ct. at 2495. Moreover, when the petition takes the form of a
lawsuit, it can be particularly disruptive to the government office because it
requires active participation in response. See id. at 2496. Because these two First
Amendment rights share substantial common ground as they relate to claims of
retaliation by public employees, they are analyzed in the same manner; that is, the
right to petition, similarly to the right to speak, is only protected when it involves a
matter of public concern. See id. at 2495 (“If a public employee petitions as an
employee on a matter of purely private concern, the employee’s First Amendment
interest must be balanced against the countervailing interest of the government in
the effective and efficient management of its internal affairs.”). “A different rule
for each First Amendment claim would require employers to separate petitions
from other speech in order to afford them different treatment and that, in turn,
would add to the complexity and expense of compliance with the Constitution. Id.
at 2496.
“The concept of a public concern has proven nebulous at its fringes, and
eludes a definition capable of precise application that is consistent thoughout our
jurisprudence.” Tayoun v. City of Pittston, — F.Supp.2d —, Case No. 4:12-cv0068, 2014 WL 3943739, at *6 (M.D.Pa. Aug. 12, 2014) (Brann, J.). The United
States Supreme Court has attempted to articulate what the phrase denotes in stating
that
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Speech deals with matters of public concern when it can “be fairly
considered as relating to any matter of political, social, or other concern to
the community,” Connick, 461 U.S. at 146, or when it “is a subject of
general interest and of value and concern to the public.” San Diego v. Roe,
543 U.S. 77, 83 (2004).
Synder v. Phelps, 131 S.Ct. 1207, 1216 (2011). Though there is no bright-line rule
for determining whether a public employee’s speech constitutes a matter of public
concern, the Supreme Court has further instructed courts to engage in a case and
fact specific inquiry that considers the content, context, and form of a given
statement, “as revealed by the whole record.” Connick, 461 U.S. at 147-48; see
Tayoun, 2014 WL 3943739 at *7.
“As the [Connick] Court explained it: ‘The First Amendment was fashioned
to assure unfettered interchange of ideas for the bringing about of political and
social changes desired by the people. . . . Speech concerning public affairs is more
than self-expression; it is the essence of self-government. . . . Accordingly, the
Court has frequently reaffirmed that speech on public issues occupies the highest
rung of the hierarchy of First Amendment values and is entitled to special
protection.’” Azzaro v. County of Allegheny, 110 F.3d 968, 976 (1997) (quoting
Connick, 461 U.S. at 145) (citations and quotations omitted). Therefore, a court
asked whether a public employee’s speech relates to a matter of public concern
must determine whether expression of the kind at issue is of value to the process of
self-governance. See id. On the other hand, merely personal grievances do not
15
constitute speech of public concern. See Feldman v. Phila. Hous. Auth., 43 F.3d
823, 829 (3d Cir. 2004). Such cases essentially amount to little more than
employee complaints or resentments, and they are not the province of a
constitutional action. See Connick, 461 U.S. at 154 (“[I]t would indeed be a Pyrrhic
victory for the great principles of free expression if the Amendment’s safeguarding
of a public employee’s right, as a citizen, to participate in discussion concerning
public affairs were confused with the attempt to constitutionalize the employee
grievance that we see presented here.”).
In the case at bar, Plaintiffs base their civil rights claims on three underlying
instances in which they claim they exercised their First Amendment rights to speak
and petition. In the first, during the spring of 2005, both Plaintiffs wrote a letter to
the Governor and the Lieutenant Governor of Pennsylvania regarding PennDOT’s
disregard for public safety relating to the condition of the roads, and complaining
of mismanagement of local and regional PennDOT functions by Defendant
Collins. In the second, during August of 2005, Plaintiff DeGroat confronted
Defendant Collins, the maintenance manager, about his acts of sexual harassment
toward a college intern. Third, on February 27, 2006, Plaintiff DeGroat filed an
EEO Complaint against Defendant Collins alleging discriminatory and disparate
treatment due to her gender. After Judge Munley decided Defendants’ first motion
for summary judgment, Plaintiffs were given leave to amend their Complaint to
16
allege further acts of retaliation as a result of the filing of the instant lawsuit, the
fourth basis for which Plaintiffs allege retaliatory action.
Defendants characterize the new allegations in Plaintiffs’ Second Amended
Complaint as relating solely to retaliation suffered as a result of this fourth basis,
the filing of the instant lawsuit. As such, they contend that these new allegations
should be dismissed because the lawsuit is not of public concern but rather relates
to everyday employment disputes and requests purely personal remedies. Plaintiffs
appear to respond only that it is clear that their speech did relate to matters of
public concern.
The issue of whether a retaliation lawsuit can constitute a public concern is
one of first impression for this Court, given the unlikely procedural posture by
which the issue has arisen in the instant case.5 While it is true that the nature of a
retaliation lawsuit is fundamentally an employee grievance in which an employee
complains about mistreatment by his or her superiors and requests redress for that
mistreatment, its position in relation to the concept of public concern cannot be
dismissed in such a summary manner. Rather, to examine the existence of a
5
The facts in Guarnieri are somewhat similar to those at bar and demonstrate the distinctive issue before the Court
today. In that case, the plaintiff had filed a union grievance challenging his termination as chief of police and the
arbitrator ultimately found that the borough council had committed procedural errors in connection with the
termination and thereby ordered his reinstatement. See Guarnieri, 131 S.Ct. at 2492. Upon his return to the job, the
council issued 11 directives instructing Guarnieri in the performance of his duties, which he claimed were in
retaliation for petitioning for reinstatement in the first place. See id. However, the Supreme Court did not need to
address whether the Guarnieri’s filing of the retaliation lawsuit was a matter of public concern because Guarnieri
only alleged that he was retaliated against for the filing of the union grievance; therefore, the only thing the Supreme
Court had to consider was whether that union grievance constituted a matter of public concern.
17
retaliation lawsuit without considering the original conduct on which it is based
would lead to an incomplete analysis of the entire content and context of the events
upon which Plaintiffs base their allegations. A retaliation lawsuit cannot exist in
isolation; there must of necessity be some underlying act of wrongdoing or alleged
wrongdoing for such a lawsuit to exist in the first place. It would be paradoxical
for the Court to say today that an employee can institute a lawsuit and recover for
retaliation that they suffered for speaking out on a matter of public concern, but
that their employer has free reign to retaliate against that same employee once they
file a lawsuit to enforce their rights. Consequently, this Court holds that a
retaliation lawsuit can constitute a matter of public concern, but only to the extent
that the jury finds that the original retaliation was predicated on a matter of public
concern. If, however, the jury finds that the original retaliation was predicated on
conduct that does not constitute a matter of public concern, any retaliation based
on the subsequent lawsuit is similarly non-actionable.6
Because this Court concludes that the retaliation lawsuit can only constitute
a matter of public concern if the underlying First Amendment activity alleged is a
6
For example, let us consider a hypothetical scenario related to the instant case. On the one hand, if the jury
concludes that Plaintiff DeGroat suffered retaliation as a result of her complaint regarding the condition of the roads,
which is a public concern, any retaliatory action taken due to the filing of the instant lawsuit would be similarly
actionable because she was appropriately enforcing her legal rights in a judicial venue. If, however, the jury
ultimately concludes that Plaintiff DeGroat only suffered retaliation as a result of her EEO Complaint, which this
Court will shortly explain is not a matter of public concern, any retaliation suffered as a result of the filing of the
instant lawsuit would not be a public concern. This would be the case despite the fact that Plaintiff DeGroat initially
alleged retaliation based upon the letter regarding the condition of the roads, because in this second hypothetical
situation, the jury ultimately found her argument regarding that letter to be meritless.
18
matter of public concern, we must now turn our attention to the determination of
whether those other three bases of alleged retaliation constitute matters of public
concern. Connick has particular applicability to the question of whether the letter
which the Plaintiffs sent to the Governor and the Lieutenant Governor of
Pennsylvania is of public concern. In that case, a former assistant district attorney
brought a civil rights action against the district attorney in which she contended
that her employment was unlawfully terminated after she chose to exercise her
First Amendment right to speak. Connick, 461 U.S. at 141. She did so in the form
of a questionnaire distributed to other employees concerning the office transfer
policy, office morale, the need for a grievance committee, the level of confidence
of the employees in certain supervisors, and whether employees felt pressured to
work in political campaigns. Id.
In rejecting the plaintiff’s argument, the Supreme Court ruled that the only
part of the questionnaire which dealt with a matter of public concern was that of
the question regarding pressure to work in political campaigns. Id. at 149. In
ruling that the other matters, which dealt entirely with the internal workings of a
government office, were not a public concern, the Court stated, “To presume that
all matters which transpire within a government office are of public concern would
mean that virtually every remark – and certainly every criticism directed at a public
official – would plant the seal of a constitutional case. . . . [T]he First Amendment
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does not require a public office to be run as a roundtable for employee complaints
over internal office affairs.” Id. Following this case, therefore, speech regarding
the manner in which a government office is operated is not sufficient to create a
First Amendment right for public employees.
Based on this Supreme Court precedent, any complaint that Plaintiffs made
to the Governor and Lieutenant Governor of Pennsylvania regarding
mismanagement by Defendant Collins cannot be a matter of public concern
because it deals with the internal functioning of the governmental office.
However, the second part of the letter discussing the disregard of public safety and
the poor condition of the roads is undoubtedly a public concern. That is, the
condition of the roads and the capacity and willingness of PennDOT to fix any
hazards that may create a danger to public safety is undoubtedly of concern to the
community because almost every member of the community must in some manner
traverse those roads daily. Such a statement which genuinely deals with public
safety must necessarily be of public concern.
The next two bases on which retaliation is alleged are complaints of sexual
harassment and discrimination, one in the form of an EEO complaint and one in
the form of a complaint to a supervisor. “Claims of sexual and racial
discrimination can constitute matters of public concern, even if plaintiff makes
20
those claims in private.” Middleton v. Deblasis, 844 F.Supp.2d 556, 564 (E.D.Pa.
2011); see also Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979).
In Azzaro v. County of Allegheny, the United States Court of Appeals for the
Third Circuit held that an employee’s internal complaint regarding a single,
isolated incident in which a supervisor sexually harassed her constituted speech on
a matter of public concern. See Azzaro, 110 F.3d at 968. In so holding, the court
relied on two factors: first, that the harassment was practiced by someone
exercising authority in the name of a public official and second, that the complaint
related to wrongdoing on the part of an elected official. See id. at 978. The Azzaro
court rejected the notion that there need be a systemic problem of discrimination in
the governmental agency in order to evaluate sexual discrimination or harassment
as a matter of public concern. See id.at 980; see also Morgan v. Covington Twp.,
563 Fed.Appx. 896, 901 (“A complaint arising out of public employment need not
include indications that there is a systemic problem interfering with the public
agency’s performance of its governmental functions to address a matter of public
concern.) (citations omitted). However, the court also clarified that this
determination was a result of a very specific set of facts, stating, “[W]e do not
suggest that all public employee complaints about sexual harassment are matters of
public concern. We do believe, however, that under all of the surrounding
21
circumstances, Azzaro’s reports address a matter of public concern even though
they referred to a single incident.” Azzaro, 110 F.3d at 980 (emphasis added).
In another Third Circuit opinion, Montone v. City of Jersey City, the court
held a police officer’s speech alleging sexual harassment by a superior against
herself and several other fellow officers involved a matter of public concern.
Montone v. City of Jersey City, 709 F.3d 181, 194-95 (3d Cir. 2013). In that case,
the plaintiff had complained about sexual harassment by her superior dating back
to the 1990s, when she successfully brought a sexual harassment lawsuit. See id. at
193. She continued to complain about sexual harassment even after the conclusion
of the lawsuit and further complained about sexual harassment experienced by
other fellow female officers. See id. The court based its holding in large part on
the fact that there were “at least three separate instances of alleged sexual
harassment [there], and the inappropriate conduct was not directed solely at
Montone.” Id.at 194. Although the supervising police officer was not an elected
official as in Azzaro, the court stated that “these facts otherwise present a stronger
argument that Montone’s speech was related to a matter of public concern than was
presented in Azzaro, which referred to only a single incident.” Id. at 194-95.
Similarly, in Campbell v. Galloway, the United States Court of Appeals for
the Fourth Circuit held that a police officer’s reports of sexual harassment and
gender discrimination amounted to a public concern. See Campbell v. Galloway,
22
483 F.3d 258, 270 (4th Cir. 2007). The court noted that “[t]o conclude, as the
defendants would have us do, that a personal complaint about discrimination
affecting only the complaining employee can never amount to an issue of public
concern could improperly limit the range of speech that is protected by the First
Amendment.” Id. at 269. In so holding, the court was particularly swayed by the
fact that the plaintiff had reported multiple instances of inappropriate conduct
directed towards her by multiple different supervising officers, and that her
complaints alleged sexual harassment directed to other female members of the
police force as well. See id. at 269. Moreover, the court found that the plaintiff’s
complaints involved improper treatment of the public in addition to the female
officers. See id. at 270.
In contrast, in Middleton v. Deblasis, the United States District Court for the
Eastern District of Pennsylvania decided that it did not rise to the level of a public
concern when a police officer brought a retaliation claim against her employer
after making allegations of racial and sexual discrimination. Middleton, 844
F.Supp.2d at 565. In that case, the court stated that “plaintiff ‘complain[s] solely
about [her] own abuse and mistreatment by superiors,’ which is not a matter of
public concern. Id. (citing Bell v. City of Philadelphia, 275 Fed.Appx. 157, 159 (3d
Cir. 2008)).
23
Plaintiff DeGroat argues that she was retaliated against in part because she
filed an EEO complaint regarding discriminatory treatment by Defendant Collins
due to her gender. Given the foregoing case law, it seems evident that this is not a
matter of public concern. This situation is more akin to that of Middleton than to
that of Azzaro, Montone, or Campbell. Though there need not necessarily be an
allegation of widespread or systemic discrimination to rise to the level of public
concern, it is clear that public concern requires more than one or even a few
isolated instances of discrimination. Rather, in Azzaro the determination hinged in
large part on the circumstance that the supervisor was an elected official.
Moreover, Montone and Campbell relied heavily on the existence of numerous
instances and numerous employees who were harassed or discriminated against. In
contrast, Middleton involved only one employee alleging discrimination against
herself, asserting no other facts which would tend to make her plight of particular
concern to the public. With regard to this issue, Azzaro does in fact implicitly
acknowledge that one single incident of harassment without any additional,
exacerbating factor, is not enough to elevate a purely personal employee grievance
to the level of a public concern. See Azzaro, 110 F.3d at 980 (“We do believe,
however, that under all of the surrounding circumstances, Azzaro’s reports address
a matter of public concern even though they referred to a single incident.”).
24
Here we have at most a few incidents of gender discrimination of a Pike
County maintenance manager of PennDOT, alleged by only one employee.
Defendant Collins, the maintenance manager, is not an elected official nor, more
importantly, does he appear to occupy a position of particular trust in relation to
Pennsylvania citizens. Consequently, Plaintiff DeGroat’s EEO complaint bears
greater relation to an employee grievance of the kind articulated in Connick and is
not a public concern.
The same analysis applies in determining that Plaintiff DeGroat’s report to
her superiors of the sexual harassment experienced by the intern is not of public
concern. The fact that she reported the harassment of someone else is of note
because it disclaims any argument that her speech was exercised for purely
personal motivations, but it does not affect the remainder of the analysis. The
identity of the complainant and her relation to the victim does not change the
content of the statement, which is purely personal, albeit not to Plaintiff DeGroat
but rather to the intern on whose behalf she created the report. Moreover, the same
remains true as to the observance that Defendant Collins’ does not occupy a
position of trust in relation to the public of Pennsylvania. As such, neither Plaintiff
DeGroat’s EEO complaint nor her report of the harassment of the intern are of
public concern.
25
Considering the foregoing analysis, only retaliation predicated on the portion
of the letter detailing the condition of the roads and the threat posed to public
safety would be a public concern. Therefore, retaliation based on the filing of the
instant lawsuit can only be actionable to the extent a jury finds that some of the
original allegedly retaliatory conduct was taken as a result of that portion of the
correspondence to the Governor and the Lieutenant Governor of Pennsylvania.
D. Personal Involvement
Defendants argue that Plaintiffs have not sufficiently demonstrated the
personal involvement of any of the Defendants with regards to several of the
allegations in the Second Amended Complaint. Specifically, Defendants argue
that none of them had any personal involvement in: (1) the OIG investigation, (2)
the furnishing of Plaintiff Clark’s personnel file to an opposing attorney, (3) the
rejection of Plaintiff Clark’s application for automotive mechanics supervisor, (4)
the failure to provide Plaintiff Clark with out-of-class pay, and (5) the change in
his snow plow route. Plaintiffs, for their part, respond only with unsubstantiated
allegations that some of these events could not have occurred without the personal
involvement of one of the Defendants and that therefore they clearly were
personally involved. Plaintiffs do not, however, cite to any portion of the record to
back up these conclusory accusations.
26
It is elementary that a defendant in a civil rights action must have personal
involvement in the alleged wrongdoing; liability cannot be predicated on a theory
of respondeat superior. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Plaintiffs can demonstrate personal involvement through “allegations of personal
direction or of actual knowledge and acquiescence.” Rode v. Dellaciprete, 845
F.2d 1195, 1207 (3d Cir. 1988). Moreover, supervising public officials do not
have an affirmative constitutional duty to “supervise and discipline so as to prevent
violations of constitutional rights by his or her subordinates.” Chinchello v.
Fenton, 805 F.2d 126, 133 (3d Cir. 1986). This remains true despite allegations of
a pattern of constitutional violations; the supervising official must have played an
“affirmative part” in the misconduct. Id. “[I]t is not enough for a plaintiff to argue
that the constitutionally cognizable injury would not have occurred if the superior
had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir.
1989).
1.
OIG Investigation into Plaintiff DeGroat’s Purchasing Card
With regards to the OIG investigation of Plaintiff DeGroat’s purchasing card
activity, Defendants argue that none of them worked for the OIG and there is no
evidence of them taking any action to prompt the investigation. In fact, they argue,
Defendant Collins had retired a month and a half before the investigation even
began. Plaintiffs respond that “[i]t is not conceivable that Mr. DeFebo would not
27
have conferred with OIG on the situation involving any radar investigation at the
Pike County Shed . . . . This is particularly so because Mr. DeFebo signed off on
every transaction decision and was selectively not investigated . . .” Plaintiffs’
Brief in Opp. at 36, Apr. 28, 2014, ECF No. 135 (hereinafter “Pls.’ Opp.”).
Defendants are correct in their assertion that Plaintiff has not proven a
genuine dispute of material fact that any of the Defendants were personally
involved in the OIG investigation into Plaintiff DeGroat’s purchasing card
activities. Rather, the uncontroverted evidence in the record clearly demonstrates
that the decision to suspend Plaintiff DeGroat’s purchasing card was made by the
office of Diane Chamberlain, the Director of the Bureau of Office Services for
PennDOT, and Ms. Chamberlain was clear that she did not speak with anyone
from Pike County prior to making that decision. Diane Chamberlain Deposition at
19, 107 (hereinafter “Chamberlain Dep.”).
Moreover, the evidence establishes that the corrective action plan which was
implemented for Plaintiff DeGroat following the reinstatement of her purchasing
card was not disciplinary. Jeanne Peffer Deposition at 33 (hereinafter “Peffer
Dep.”). Rather, this appears to be a common practice for anyone who has had their
card suspended. Id. at 34. Nevertheless, regardless of whether the practice was
disciplinary or not, Plaintiffs have put forth no evidence whatsoever that any of the
Defendants had any involvement in institution of the corrective action plan.
28
Though it is not clear to this Court who initially began the investigation or who
reported Plaintiff DeGroat to the OIG in the first place, Plaintiffs have not made
any affirmative showing that it was one of the Defendants so as to create a genuine
dispute of material fact. As such, summary judgment is granted for the Defendants
with regard to this allegation.
2.
Rejection of Plaintiff Clark’s Application
Defendants next argue that there is no evidence establishing that Defendant
Collins was personally involved in rejecting Plaintiff Clark’s application for
Automotive Mechanic Supervisor because that decision came directly from Gail
Josulkevicz, a Human Resources employee. Plaintiffs contend that Defendant
Collins was the only one who could make the decision on who was hired for the
Automotive Mechanic Supervisor position, although again they fail to cite to any
portion of the record to demonstrate that this is in fact the procedure in the Pike
County PennDOT office. They go on to argue that “[a]nyone who knows politics
in the management of County Sheds all across the state knows that for the last 100
years the County Manager makes those decisions. The County Shed has always
been a rich source of patronage and that has never changed.” Pls.’ Opp. at 37.
Defendants are correct that the letter of rejection came directly from Gail
Josulkevicz at the human resources office. Gary Clark Deposition, Ex. M
(hereinafter “Clark Dep.”). The letter states, “Unfortunately, we cannot consider
29
you for this position. Although your experience is impressive, it does not meet the
minimum experience and training that is required for this position.” Id. Plaintiff
Clark’s own testimony establishes that he has no reason to believe that Defendant
Collins was behind this rejection other than the fact that Defendant Collins
appeared to be somewhere in the vicinity every time something untoward occurred
to Clark and that Defendant Collins had been an employee in the PennDOT office
for many years. Clark Dep. at 146-47. Specifically, he had no knowledge of
whether Defendant Collins had friends in the HR department and no one had ever
intimated to him that the reason his application had been rejected was because of
Defendant Collins’ actions. Id. Moreover, Plaintiffs provide no evidence, other
than Plaintiff Clark’s belief, that Defendant Collins had anything at all to do with
the rejection of his application. Consequently, summary judgment must be granted
on this allegation because there is no genuine dispute of material fact that
Defendant Collins was personally involved.
3.
Failure to Provide Out-of-Class Pay to Plaintiff Clark
Defendants next claim that Defendant Collins had nothing to do with
Plaintiff Clark not receiving a specialist’s pay rate for operating a Gradall because
Defendant Collins has no part in payroll operations for his position. Plaintiffs do
not respond to this argument.
30
The record establishes that the foreman makes out the payroll for the day
and passes it on to the assistant maintenance manager for approval. Clark Dep. at
153. From there, the assistant maintenance manager passes it on to the payroll
clerk. Id. Plaintiff Clark was unsure who caused this failure to provide him out-ofclass pay. Id. at 152-56. However, Plaintiffs have presented no evidence that any
of those three positions belonged to Defendant Collins, or that he otherwise had
any responsibility to review payroll documents. Consequently, there is no genuine
dispute of material fact regarding the Defendants’ involvement in failing to pay
Plaintiff Clark out-of-class pay for his acting foreman or specialist operations.
4.
Change in Plaintiff Clark’s Work Route
Defendants also argue that they had no involvement in assigning Plaintiff
Clark a different snow route after one of the plows was damaged. Plaintiffs
respond that Defendant Collins must have been the one making the decision to
change Plaintiff Clark’s snow route because “[n]o one would dare make that
decision out from under him as the top management leader anymore that anyone
would ever do so in any County Shed across the state.” Pls.’ Opp. at 37.
In his deposition, Plaintiff Clark testified that the reason his route was
changed was because he was being punished for a broken wing plow. Clark Dep.
at 194. He further testified that Defendant Collins initiated the hearing which
investigated the broken wing and therefore must have meted out the punishment
31
complained of by Plaintiff. Id. at 192. However, Plaintiff alleged no facts which
demonstrate that Defendant Collins had any part in meting out that punishment, if
in fact that is what it was. Plaintiff Clark testified that Defendant Collins did not,
in fact, even attend the hearing. Id.
Further, Plaintiff Clark was given the choice between taking the oldest snow
plow in the fleet to plow Route 84 or plowing the back roads. Id. at 194. This
choice was given by Ken Thiele and relayed to Plaintiff through his foreman,
Harvey McKean. Id. Plaintiff Clark himself admits that he believes the order to
have come from Defendant Collins, but has no proof that this was the case. Id.
Moreover, Plaintiffs present no evidence that would lead this Court to infer that
Defendant Collins was involved in the change in snow route merely because he
issued the hearing into the broken wing in the first place. Because Plaintiff’s
unsubstantiated belief regarding the involvement of Defendant Collins is not
sufficient to create a genuine dispute of material fact, summary judgment is
granted for Defendants as to this allegation.
5.
Furnishing of Plaintiff Clark’s Personnel File
Finally, Defendants argue that Plaintiffs have presented no evidence that
Defendant Collins gave Clark’s personnel file to Joseph Hogan’s attorney for use
at his client’s hearing. Plaintiffs respond that Defendant Collins did have personal
involvement in this event because “Ms. DeFlorenza witness [sic] Collins take the
32
personnel file out of the Pike County Shed.. [sic] Gary saw the file in the lawyers
[sic] hand in the little courtroom.” Pls.’ Opp. at 35.
Unfortunately Plaintiffs do not cite to any portion of the record in their
assertion that someone saw Defendant Collins remove Plaintiff Clark’s personnel
file, although this Court gathers that Plaintiffs are referring to Plaintiff Clark’s
testimony regarding a Ms. Evelyn DiLorenzo. However, even if Plaintiffs can
prove that such is the case, they have alleged no facts regarding what Defendant
Collins did with that file. This Court cannot make the inference that Defendant
Collins must have turned it over to Joseph Hogan’s attorney, as Plaintiffs have not
put forth sufficient evidence to demonstrate that Joseph Hogan’s attorney even had
Plaintiff Clark’s personnel file in his possession during the hearing. In fact,
Plaintiff Clark has testified only that the folder looked like a PennDOT personnel
folder but he never saw his name on it, nor did he see Defendant Collins speak to
Mr. Hogan’s attorney at all during the proceedings. Clark Dep. at 89-92, 256-57.
Consequently, summary judgment is granted in favor of the Defendants on this
allegation.
E. Retaliatory Motive
Defendants argue that Plaintiffs have not proven a retaliatory motivation for
most of the supplemental allegations set forth in their Second Amended Complaint,
including: (1) the one day suspension for failing to sign the PPIM, (2) Defendant
33
Collins’ implementation of a new purchase form, (3) Defendant Collins’
unresponsiveness to Plaintiff DeGroat’s complaints about Barbara Decker and his
conduct at the June 2, 2011 meeting, (4) the removal of trees near the stockpile, (5)
Defendant Collins’ direction to Plaintiff Clark to pick up cigarette butts, (6)
Defendant Collins’ comment to a fellow employee about Plaintiff Clark, and (7)
Defendant DeFebo’s close scrutiny of Plaintiff DeGroat. Plaintiffs appear to argue
in response that Defendants have evidenced a pattern of pervasive and
overwhelming harassment against them which is sufficient to establish retaliatory
motive.
Defendants continue this argument with regards to the allegations that
Defendant Collins gave Plaintiff Clark’s personnel file to Joseph Hogan’s attorney
and the rejection of Plaintiff Clark’s application for automotive mechanic
supervisor. Because we have already dismissed these two allegations based on a
lack of personal involvement, the Court will not address Defendants’ arguments as
to the lack of retaliatory motivation.
As set forth previously, the third element of a claim for retaliation based on
protected First Amendment activity requires the plaintiff to prove “a causal link
between the constitutionally protected conduct and the retaliatory action.” Thomas
v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). If the plaintiff is able to
demonstrate the requisite causation to sustain his or her claim of retaliation, the
34
defendant may defeat that claim by establishing that it would have taken the same
action even if the plaintiff had not engaged in the protected activity. See Ambrose
v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002).
To establish the requisite causation for a retaliation analysis, the plaintiff
must typically prove either an unusually suggestive temporal proximity between
the protected First Amendment conduct and the allegedly retaliatory action, or a
pattern of antagonism coupled with timing. See Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (“After all, if there was not a causal
relationship then the District could not have engaged in its conduct in retaliation
for appellants having engaged in a protected activity.”); see also Robinson v. City
of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir. 1997) (“[T]he mere fact that adverse
employment action occurs after a complaint will ordinarily be insufficient to
satisfy the plaintiff’s burden of demonstrating a causal link between the two
events”).
As this statement implies, a very close temporal proximity can sometimes
establish a causal link if it is unusually suggestive. See Krouse v. American
Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997) (“Even if timing alone could ever
be sufficient to establish a causal link, we believe that the timing of the alleged
retaliatory action must be ‘unusually suggestive’ of retaliatory motive before a
causal link will be inferred.”) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d
35
Cir. 1989) (finding causation based solely on temporal proximity when an
employee was discharged two days after the filing of an EEOC complaint)).
However, “the mere passage of time is not legally conclusive proof against
retaliation.” Id. In the absence of temporal proximity, courts may examine the
“intervening period for other evidence of retaliatory animus.” Id. at 503-4; see also
Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993)
(“The temporal proximity noted in other cases is missing here and we might be
hard pressed to uphold the trial judge’s finding [of causal link] were it not for the
intervening pattern of antagonism that SEPTA demonstrated.”).
Furthermore, the absence of proof of either of these elements will not
necessarily doom a plaintiff’s case. Rather, the plaintiff can still prove the
requisite causation by demonstrating that the factfinder could infer causation based
on the “evidence gleaned from the record as a whole.” Lauren W., 480 F.3d at 267
(citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)). “It is
important to emphasize that it is causation, not temporal proximity [or evidence of
antagonism], that is an element of plaintiff’s prima facie case, and temporal
proximity [or antagonism] merely provides an evidentiary basis from which an
inference can be drawn.” Kachmar v. SunGuard Data Systems, Inc., 109 F.3d 173,
178 (3d Cir. 1997).
36
1.
Pattern of Antagonism Argument
To begin with, the Court will address Plaintiffs’ argument7 that the above
listed actions constitute a pattern of antagonism coupled with timing, which is
sufficient to establish retaliatory motive. Plaintiffs appear to allege that all of the
foregoing conduct on Defendants’ part together creates a pattern of antagonism,
even though the individual actions are not temporally proximate to the initiation of
the instant lawsuit. They argue that the Court can infer retaliatory motive from the
fact that the actions, taken together, were “never ending,” and that “[t]here [was] a
constant time flow.” Pls.’ Opp. at 34.
Plaintiffs appear to misunderstand the significance of a “pattern of
antagonism” to the demonstration of retaliatory animus. They argue not that there
was a pattern of antagonism between the protected activity and the retaliatory
action, but rather that each retaliatory action occurred one after another and
therefore created a pattern of antagonism in and of itself which can demonstrate
retaliatory animus. This is an incorrect application of the argument. “Where the
time between the protected activity and the adverse action is not so close as to be
unusually suggestive of a causal connection standing alone, courts may look to the
7
Plaintiffs make a general argument in response to Defendants’ more tailored arguments on each allegation that a
pattern of antagonism existed from which the Court can infer retaliatory animus. Consequently, we will address this
argument in one fell swoop and our determination on this issue applies to all of the following sections 2-8.
37
intervening period for demonstrative proof, such as actual antagonistic conduct or
animus against the employee, or other types of circumstantial evidence . . . that
give rise to an inference of causation when considered as a whole.” Marra v.
Philadelphia Housing Auth., 497 F.3d 286, 302 (3d Cir. 2007).
Nevertheless, because this is an unusual case where the retaliation alleged
revolves around relatively innocuous instances of harassment which did little to
change the job duties, income, or benefits of the Plaintiffs, this Court will consider
Plaintiffs’ argument that the Court can infer from the pattern of harassment
following the initiation of this lawsuit that Defendants harbored a retaliatory
animus. Unfortunately, Plaintiffs’ argument still fails as a matter of law, as it is far
from clear to this Court that the harassment was never-ending. Rather, the
allegedly retaliatory actions began at least six months following the protected
activity and have occurred sporadically since then.8 Without any direct evidence to
demonstrate a retaliatory animus on the part of the Defendants, this is insufficient
8
The instant lawsuit was filed on March 12, 2008. In it, Plaintiffs allege fourteen new instances of harassment on
the part of Defendants. The first as relates to Plaintiff DeGroat, the one day suspension for the failure to sign the
PPIM, occurred in September 2009. The next, Defendant Collins’ creation of the purchase form, occurred in June or
July 2010. The issues with Barbara Decker began in the winter of 2010-2011. The meeting in Defendant Collins’
office occurred on June 2, 2011. Finally, the OIG investigation occurred in August 2011. The only allegation that
demonstrates any kind of pattern or ongoing activity, as already explained, is the allegation of Defendant DeFebo’s
overbearing scrutiny of Plaintiffs’ work. As relates to Plaintiff Clark, the incident regarding the Joseph Hogan trial
occurred in April 2007, his application was rejected in October 2008, the trees were removed near the stockpile in
winter 2009-2010, and he was instructed to pick up cigarette butts in spring 2010. Clark did not receive out-of-class
pay in May 2010, Collins’ comment regarding the argument was in September 2011, he was assigned to a new snow
route in winter 2010, and he alleges constructive discharge in May 2011.
38
to create a pattern of antagonism so as to satisfy the requisite causal link for a
claim of retaliation.9
2.
PPIM Suspension
In April 2009, the Human Resources Office issued a PennDOT personnel
information memorandum (hereinafter “PPIM”) regarding the necessity of
subpoenas to disclose company documents to third parties, which Plaintiffs allege
would have prevented them from disclosing necessary documents to their attorney
to assist in this ongoing lawsuit. Donna DeGroat Deposition at 24-29 (hereinafter
“DeGroat Dep.”). Following a meeting with Defendant Collins and the other
employees who refused to sign the PPIMs, Plaintiffs were both given a one-day
suspension without pay. Id. at 34-37. Defendants argue a lack of retaliatory
animus based on the fact that the suspension occurred a year and a half after the
filing of the litigation; moreover, Plaintiffs were the only employees who did not
sign the PPIM and there is no evidence of pretext on the part of Defendants.
Plaintiffs respond that Defendant Collins “acted with the verve and aggressively to
injure Gary and Donna.” Pls.’ Opp. at 35.
Having reviewed the record as a whole, this Court believes that there is no
genuine issue of material fact that Defendants suspended Plaintiffs in retaliation for
9
Moreover, because this Court has dismissed five of Plaintiffs’ supplemental allegations for lack of personal
involvement of the Defendants, these allegations cannot even be considered as contributing to the alleged pattern of
antagonism.
39
the filing of this lawsuit. Plaintiff DeGroat’s testimony clarifies that it was not any
of the Defendants who issued the PPIM in the first place; rather it was the Human
Resources Department in Harrisburg. DeGroat Dep. at 25. That PPIM did not
single out the Plaintiffs, as every employee was required to read and sign the
document, and Plaintiff DeGroat did not even believe that the PPIM was issued to
hinder the present litigation. Id. at 30, 32. As such, Plaintiffs appear to allege
simply that the suspension, which was ostensibly due to their failure to sign the
PPIM, was actually a pretext for certain retaliatory reasons.
There is no evidence in the record to back up this argument. In order to
establish pretext and thereby avoid summary judgment, “the plaintiff’s evidence
rebutting the employer’s proffered legitimate reasons must allow a factfinder
reasonably to infer that each of the employer’s proffered non-discriminatory
reasons was either a post hoc fabrication or otherwise did not actually motivate the
employment action (that is, the proffered reason is a pretext).” Fuentes v. Perskie,
32 F.3d 759, 764 (3d Cir. 1994). In doing so, the plaintiff must demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could rationally find them ‘unworthy of credence.’” Id. at 765 (quoting
Ezold v. Wolf, Block, Schoor and Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)).
40
Plaintiffs have presented no evidence from which a factfinder could
determine that they were suspended in retaliation for the filing of this lawsuit
rather than for their refusal to sign the PPIM, or that this proffered reason of
Defendants is a pretext for retaliation. While it is true that they were the only
employees disciplined as a result of the incident, it is also true that they were the
only employees who refused to sign.10 DeGroat Dep. at 33-35, 41. Consequently,
summary judgment is granted for Defendants on this allegation.
3.
Defendant Collins’ Purchase Form
Plaintiffs next allege that Defendant Collins retaliated against Plaintiff
DeGroat by designing and implementing a purchase request form that required
Defendant Collins to sign off on certain purchases, and that the form was designed
to make her job more difficult because the form was so convoluted. Defendants
argue the lack of temporal proximity to the filing of this lawsuit, that Defendant
Collins’ reason for implementation of the new form was to cut back on costs, and
that the District Office was using a similar form. Moreover, they argue, “The fact
that DeGroat believes that the form was a terrible idea does not establish that
asserted reason for it was pretextual.” Defendants’ Brief in Support at 22, Feb. 28,
2014, ECF No. 122 (hereinafter “Defs.’ Supp.”). . Plaintiff responds that “[Mr.
Collins] knew [the form] would cause harassment, consternation and stress. That’s
10
Plaintiff DeGroat testifies that a few other employees refused to sign the PPIM at first, but they chose to do so
after the meeting and on the advice of their union representative. DeGroat Dep. at 33-35, 41.
41
precisely why he implemented it and that explains why it failed in a couple of
months.” Pls.’ Opp. at 34.
Plaintiffs have presented no facts which would support an inference of
retaliatory animus based on Plaintiff DeGroat’s First Amendment activities in
relation to the implementation of this purchase form. Specifically, Plaintiff
DeGroat testified that many employees were given the responsibility of completing
this form when they wanted certain items; she was not the only one who was
required to do so. DeGroat Dep. at 87-91. This Court is at a loss to infer
retaliatory motivation, without additional proof, for an action directed at an entire
group of employees, merely to retaliate against one of those employees. Plaintiff
DeGroat also testified that Pike County usually had problems meeting their budget
and that Defendant Collins’ told her that the reason for the implementation of the
form was to cut costs; moreover, he told her that the District Office used a similar
form. Id. at 85. Plaintiffs have presented no evidence to establish that these given
reasons were pretextual. As such, summary judgment is granted in favor of the
Defendants on this allegation.
4.
Defendant Collins’ Unresponsiveness to Plaintiff DeGroat’s
Complaint and the Meeting of June 2, 2011
Barbara Decker was hired as a temporary clerk in the Pike County
Maintenance facility in the winter of 2010-2011. DeGroat Dep. at 112. During her
employment, Plaintiff DeGroat had a series of difficulties with her and reported
42
those difficulties to Defendant Collins. Id. at 171, 172, 177. However, Plaintiff
alleges that Defendant Collins did not respond to her concerns but rather scheduled
a meeting whereby he criticized Plaintiff instead. Id. Defendants argue that these
cannot constitute retaliatory actions primarily because there is no evidence that
they were undertaken to punish Plaintiff DeGroat for her protected First
Amendment activity. Plaintiffs respond that Defendant Collins “took the email
and exaggerated and distorted its letter and spirit,” and that Defendant Collins “was
trying to create the impression that Donna was a nosy problem creator.” Pls.’ Opp.
at 34.
Defendants are correct that Plaintiffs have presented no evidence which
would create a genuine dispute of material fact regarding either Defendant Collins’
responses to Plaintiff DeGroat’s complaints or the June 2, 2011 meeting. With
regard to Defendant Collins’ unresponsiveness, the record shows that both
Defendants Collins and DeFebo actually attempted to respond to Plaintiff’s
complaints several times, both concerning the incorrect electronic filing as well as
Ms. Decker’s failure to complete the spreadsheet designed by Plaintiff DeGroat.
DeGroat Dep. at 126-129. Though Defendants may not have addressed all of
Plaintiff’s complaints, there is no evidence to suggest that they failed to do so in
order to punish Plaintiff for initiating this lawsuit.
43
As for the meeting, at the very most Plaintiff DeGroat’s testimony
establishes only that Defendant Collins was angered over her complaint about
Barbara Decker and her attempt to exercise authority over Ms. Decker, even
though Plaintiff DeGroat was not Ms. Decker’s supervisor. Id. at 170-172. There
is absolutely no evidence to establish retaliatory animus. The meeting occurred in
June 2011, over three years after this lawsuit was initiated. Moreover, there is
nothing to link this meeting and Defendant Collins’ unresponsiveness to Plaintiff
DeGroat’s complaints to this lawsuit or her writing of the letter to the Governor in
2005. Plaintiffs have presented no genuine dispute of material fact that Defendant
Collins’ motivation for calling the meeting and failing to solve problems Plaintiff
DeGroat was having with Barbara Decker was in retaliation for her exercise of
protected activity. Consequently, summary judgment is granted for Defendants on
this allegation.
5.
Removal of Trees
Plaintiffs allege that Defendant Collins had trees removed along the highway
where Plaintiff Clark worked so that Defendant Collins could watch and intimidate
him. Defendants contend that the fact that the removal of the trees caused no harm
whatsoever belies any possibility that it was done with an intent to retaliate and,
further, that Plaintiff Clark himself is not even aware of why the trees were cut
down. Plaintiffs do not respond to this specific assertion, arguing only that the
44
conduct of Defendants taken as a whole evinces an intent to retaliate and that the
trees were cut down “so that Gary could be surveilled.” Pls.’ Opp. at 35. They do
not cite to any portion of the record for the assertion that the trees were cut down
for this purpose.
Defendants are correct that Plaintiffs have not established any genuine
dispute of fact regarding the causal link between their filing of the instant lawsuit
and the removal of the trees. Plaintiff Clark testified that he was not aware of
whether Defendant Collins ever parked across from the stockpile where he worked
to watch him, although “every now and again” a blue car was parked on the other
side of the stockpile, where it would be possible to see the employees working if in
fact the viewer had binoculars. Clark Dep. at 183-85. Moreover, Plaintiff Clark
testified that he didn’t often work at that stockpile, so someone who was sitting
across the way would rarely ever see him. Clark Dep. at 186.
Even assuming that such an action can be deemed retaliation, there is no
evidence whatsoever, aside from unsubstantiated conjecture, that Defendant
Collins was even behind the cutting of the trees, much less that he did it in order to
retaliate for the filing of this lawsuit or the letter Plaintiff wrote to the Governor in
2005. The trees were removed in the winter of 2009/2010, about a year and a half
following the initiation of this lawsuit and over four years after writing the letter.
45
Viewing all of the allegations of the Plaintiffs and the record as a whole, this Court
cannot find any retaliatory causation in the removal of the trees along the interstate
where Plaintiff Clark occasionally worked. Consequently, summary judgment is
granted for Defendants on this allegation.
6.
Cigarette Butts
Defendants next argue that there is no evidence that Defendant Collins’
order to Plaintiff Clark to pick up the cigarette butts around the stockpile was
retaliatory, both because it was a part of Clark’s job duties and because there is no
evidence in the record that it was unnecessary. Moreover, they argue, Plaintiff
Clark offers a different motivation than retaliation; that is, that Defendant Collins
made him clean up the cigarette butts because he was angry that Plaintiff refused to
fill in as acting foreman, a position he was trained to do. Again, Plaintiff only
responds to the argument in a general sense as constituting part of a pattern of
antagonism.
There is nothing in the record which could satisfy the causal link of
retaliatory motivation with regard to this allegation. There is evidence that
Plaintiff Clark was the only employee required to pick up the cigarette butts and
that he was required to do so by hand, even though the employees typically do so
with equipment. Clark Dep. at 162, 165. However, he also testified that it was
within his job duties to pick up the cigarette butts. Id. at 164 (“I don’t think at that
46
particular time [the union] could do anything, because picking up cigarette butts
probably is within your classification of any PennDOT employee. I think that’s
what I was told.”). Moreover, Defendant Collins’ motivation for requiring
Plaintiff Clark to pick up the cigarette butts is clearly anger for his refusal to be the
acting foreman, not in retaliation for the exercise of his First Amendment rights in
initiating this lawsuit. Specifically, Plaintiff Clark testified, “I just remember Bob
[Collins] was right in my face about taking the acting foreman’s job, that I couldn’t
refuse it because I had been trained to do it.” Id. at 159. As such, summary
judgment is granted in favor of Defendants as to this allegation.
7.
Defendant Collins’ Comment Regarding Plaintiff Clark
Plaintiffs allege that Defendant Collins had made a comment to other Pike
County employees that Plaintiff Clark was likely the individual who had gotten
into an argument with a motorist earlier in the day. Clark dep. at 200-1.
Defendants argue first that the comment “is so innocuous . . . that it is difficult to
conceive that its intent was to punish Clark for this lawsuit.” Defs.’ Supp. at 27.
They further contend that the fact that Defendant Collins later apologized to
Plaintiff Clark suggests that it was merely a thoughtless comment rather than a
targeted retaliation. Plaintiff responds with the same argument and does not
address this specific allegation.
47
Plaintiffs have presented no evidence from which to draw a link between
this lawsuit and Defendant Collins’ statement regarding Plaintiff Clark. Plaintiff
Clark did testify that Defendant Collins had said that statement without knowledge
of who actually took part in the offending argument. Clark Dep. at 200-1.
However, the fact that Defendant Collins apologized for his misinformation belies
any suggestion that the statement was retaliatory in nature. Id. at 202. Mere
thoughtlessness and insensitivity does not in and of itself imply retaliatory motive.
It is the Plaintiffs’ burden to establish this retaliatory link, which they have not
done here. Consequently, summary judgment is granted in favor of the Defendants
on this allegation.
8.
Defendant DeFebo’s Close Scrutiny of Plaintiff DeGroat
As she did in her original complaint, Plaintiff DeGroat alleges that
Defendant DeFebo, with approval from Defendant Collins, continued to
micromanage her work and make nit-picking corrections after the filing of this
lawsuit.11 DeGroat Dep. at 45-46. Defendants argue once again that Plaintiffs
have not made any showing of retaliatory motivation for this nit-picking and
allegedly overbearing behavior. Plaintiffs do not respond to this argument, other
than with the same general pattern of antagonism argument, which has already
been addressed.
11
She alleges that he took copious notes of her purchasing card reconciliations and sometimes considered them late
because he did not think she had attached complete documentation. DeGroat Dep. at 46, 58-60.
48
The Court finds that a reasonable factfinder could determine that this pattern
of overbearing scrutiny is in retaliation for Plaintiffs’ exercise of her First
Amendment activities. The close scrutiny began in 2005 after Plaintiff DeGroat
drafted the letter to the Governor. Id. at 48-49. That scrutiny has continued for
nine years up until the filing of the instant motion. Id. Though there is no direct
evidence linking Defendant DeFebo’s scrutiny to the filing of this lawsuit or the
writing of the letter, the fact that the scrutiny began directly after Plaintiff wrote
the letter and has continued is enough to infer retaliatory animus.
Moreover, the fact that the conduct of Defendant DeFebo did not change in
any significant way following the filing of the instant lawsuit does not necessarily
imply that any retaliation exercised was not linked to that event. As explained
previously, the initial exercise of First Amendment rights is inextricably linked
with the filing of a section 1983 retaliation lawsuit. It would be entirely plausible
for a jury to find that Defendant DeFebo’s scrutiny began as a result of the writing
of the letter and continued as a result of the initiation of this lawsuit.
Consequently, Defendants’ argument that this allegation lacked retaliatory animus
as a matter of law must fail.
F. Adverse Action
Even though this Court has determined that Defendants’ argument on
Defendant DeFebo’s lack of retaliatory animus must fail, we must still address
49
Defendants’ argument that the allegedly overbearing scrutiny of Plaintiff
DeGroat’s work did not constitute adverse action.12 They contend that courts have
routinely rejected claims based on these types of micromanagement or work
criticisms. Plaintiffs do not respond to this argument.
The Third Circuit has held that an adverse action by the government is
sufficient to support a retaliation claim if “the alleged retaliatory conduct was
sufficient to deter a person of ordinary firmness from exercising his First
Amendment Rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)
(quotations omitted). This means that “normally petty slights, minor annoyances,
and simple lack of good manners” will not support a claim of retaliation.
Burlington Northern & Sante Fay Fwy. Co. v. White, 548 U.S. 53, 68 (2006).
However, it is also true that an extended campaign of petty harassments is
sufficient to deter a person of ordinary firmness from exercising her rights and will
consequently support a retaliation claim. See Suppan v. Dadonna, 203 F.3d 228,
235 (3d Cir. 2000).
Judge Munley previously held that Defendant DeFebo’s constant
overbearing scrutiny as a result of Plaintiffs’ protected activities at that point could,
in conjunction with various other petty harassments, constitute adverse action.
However, that conclusion was highly fact-specific and depended in large part on
12
As all of Plaintiffs’ other allegations have been dismissed on other grounds, the Court will not address Defendants
arguments based on the lack of adverse action as they relate to those allegations.
50
the other allegedly retaliatory actions that Plaintiffs suffered as a result of their
initial protected activity.13
Here, this is the only surviving allegation based on the filing of the instant
lawsuit. It is undeniably a minor annoyance, since it did nothing to affect Plaintiff
DeGroat’s job duties, income, or benefits. See, e.g., McKinnon v. Gonzales, 642
F.Supp.2d 410, 428 (D.N.J. 2009) (“Foremost among the negative experiences that
do not amount to materially adverse actions are Plaintiff’s allegations that AW
Nichols intensified her supervision of Plaintiff … and micro-managed his
whereabouts.”) (citations omitted). Rather, it is a frustration that many employees
experience on a daily basis in a multitude of jobs. Moreover, the Court cannot
consider this part of a campaign of retaliatory actions because it is the only one
alleged based on the filing of the instant lawsuit that carries any inference of
retaliatory animus whatsoever. Consequently, there can be no campaign of
retaliation in this case and summary judgment is granted for Defendants as to this
allegation.
G. Constructive Discharge
13
The prior motion for summary judgment did not have before it the issue of public concern; consequently, the
Court did not need to decide whether the asserted bases of retaliation were sufficient to bring a retaliation lawsuit
against a public employer. Today, this Court limits the bases on which Plaintiffs can claim retaliation to the writing
of the letter and the instant lawsuit only to the extent that the jury finds the original retaliatory actions predicated on
the writing of that letter. As such, though this Court has previously determined that Plaintiffs have sufficiently
proven that their initial allegations constituted adverse action, they can only do so to the extent they can prove to a
jury that Defendants retaliated against them for the writing of the letter to the Governor. See supra, Part III.C.
51
Finally, Defendants argue that Plaintiff Clark cannot assert a claim for
constructive discharge because their conduct towards him was neither frequent nor
severe, and what they did subject him to was not enough to compel a reasonable
person to resign under an objective standard for recovery. They further argue that
Plaintiff Clark did nothing to explore alternative avenues before his resignation.
Plaintiffs respond that the harassment was in fact frequent and severe, and they
further appear to argue that Plaintiff Clark’s decision to retire should be governed
by a subjective standard, although they cite to no case law for this proposition.
Public employee resignations and retirements are presumed to be voluntary
until the employee “presents evidence to establish that the resignation or retirement
was involuntarily procured.” Leheny v. City of Pittsburgh, 183 F.3d 220, 227 (3d
Cir. 1999). To establish a constructive discharge, a plaintiff must demonstrate that
the employer “knowingly permitted conditions of discrimination in employment so
intolerable that a reasonable person subject to them would resign.” Mandel v.
M&Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013) (citing Aman v. Cort
Furniture Rental Corp., 85 F.3d 1074, 1084 (3d Cir. 1996). This is an objective
test; consequently, “an employee’s subjective perceptions of unfairness or
harshness do not govern a claim of constructive discharge.” Id.
In determining whether an employee was constructively discharged, the
court can consider a number of factors, including whether he or she was threatened
52
with discharge, encouraged to resign, demoted, subject to reduced pay or benefits,
involuntarily transferred to a less desirable position, subject to altered job
responsibilities, or given unsatisfactory job evaluations. See Colwell v. Rite Aid
Corp., 602 F.3d 495, 503 (3d Cir. 2010); see also Clowes v. Allegheny Valley
Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993). It is important to note that “employees
are not guaranteed stress-free environments and . . . discrimination laws cannot be
transformed into a palliative for every workplace grievance, real or imagined, by
the simple expedient of quitting.” Connors v. Chrysler Financial Corp., 160 F.3d
971, 976 (3d Cir. 1998) (citations omitted) (citing Gray v. York Newspapers, Inc.,
957 F.2d 1070, 1083 (3d Cir. 1992).
Additionally, a reasonable employee will usually explore alternative avenues
before coming to the conclusion that resignation is the only option, such as a
transfer of position, consulting with human resources or filing a grievance. See
Clowes, 991 F.2d at 1161; see also Bozé v. Branstetter, 912 F.2d 801, 805 (5th Cir.
1990); see also Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.
1987).
In this case, Plaintiff Clark alleges severe and frequent harassment which
includes all of the allegedly retaliatory incidents following the filing of this lawsuit
and presumably those which occurred as a result of the mailing of the letter to the
Governor. However, as already discussed, most of these allegations do not create a
53
genuine dispute of material fact to survive summary judgment. Moreover, even if
they could survive, such isolated incidents over a period of close to ten years from
2005 to the present do not constitute conditions “so intolerable that a reasonable
person subject to them would resign.” While some of the incidents may be
humiliating or demeaning to Plaintiff Clark, the allegations amount to little more
than ordinary workplace grievances.
Furthermore, in terms of severity the allegations do not amount to much.
Defendants did once threaten Plaintiff Clark with discharge for not signing the
PPIM, but this event occurred over a year and a half before he ultimately resigned.
Clark Dep. at 218-19. Defendants never encouraged him to resign, he was not
demoted and his pay was not reduced. Id. at 217-219. He was not transferred to a
less desirable position or given unsatisfactory job responsibilities. Id. at 218. The
removal of trees near the stockpile, Defendant Collins’ instruction to pick up
cigarette butts, and Collins’ comment to fellow employees can hardly be
considered to have made work intolerable for Plaintiff Clark. It is true that he was
temporarily transferred to what he believes to be a less desirable position of
plowing the back roads rather than Interstate 84, that his application for a better
position was rejected, and that he did not receive out-of-class pay for specialist
work that he performed. However, these three incidents, even in conjunction with
the aforementioned incidents, do not amount to an intolerable working
54
environment. Certainly a reasonable person would not resign from his position
based on few isolated incidents, the severity of which were minimal and which did
little to injure his current position, his income, or his career prospects.
Moreover, Plaintiff failed to explore any alternative avenues before deciding
that resignation was his only option. Defendants presented uncontroverted
evidence that Plaintiff Clark did not discuss his plans with either a supervisor or a
representative. Clark Dep. at 210. Consequently, summary judgment will be
granted in favor of Defendants on Plaintiffs’ claim of constructive discharge.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Partial Summary
Judgment is granted in its entirety. An appropriate Order follows.
BY THE COURT:
/s Matthew W. Brann
Matthew W. Brann
United States District Judge
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