Condron v. Facciolo et al

Filing 10

MEMORANDUM (Order to follow as separate docket entry) re 5 MOTION to Dismiss. Signed by Honorable James M. Munley on 1/9/14. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARY ELLEN CONDRON,
Plaintiff

:
No. 3:13cv818
:
:
(Judge Munley)
v.
:
:
DEBRA J. FACCIOLO and THE
:
PENNSYLVANIA STATE POLICE,
:
Defendants
:
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is defendants’ motion to dismiss
plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
for failure to state a claim upon which relief can be granted. This matter is
fully briefed and ripe for disposition. For the following reasons, the court
will grant defendants’ motion to dismiss.
BACKGROUND
The instant civil rights lawsuit arose from an alleged poor
employment reference. Specifically, Plaintiff Mary Ellen Condron
(hereinafter “Condron”) claims that Defendant Debra Facciolo (hereinafter
“Facciolo”) vindictively attacked and destroyed her character when giving
an employment reference pertaining to a University of Scranton Public
Safety position.1 (Doc. 1, Compl. (hereinafter “Compl.”) ¶ 1).
On September 3, 2011, the University of Scranton’s Public Safety
1

Facciolo is the Pennsylvania State Police Labor Relations
Director. (Compl. ¶ 1).

Department sought to hire an unarmed driver/security guard. (Id. ¶ 16).
Condron applied for and was offered this position. (Id. ¶¶ 17-18).
Condron’s employment offer, however, was conditioned on Condron
passing a background check. (Id. ¶ 19).
Kevin Rude, a background investigator with the University of
Scranton, met with Condron on January 4, 2012 to discuss the results of
his investigation. (Id. ¶ 20). Rude advised Condron that her personal
references were perfect. (Id. ¶ 21). Rude also stated that Condron’s
professional references were excellent “with the exception of the
Pennsylvania State Police.” (Id.)
Rude advised Condron that he spoke with Facciolo. (Id. ¶ 22(c)).
Facciolo told Rude “that while [Condron] was a great dispatcher, she had
issues” including the following: (1) Condron refused to get help for her
medical conditions; (2) Condron had problems with the command
structure and listening to supervisors; and (3) Condron was also dropped
by her union because she was combative. (Id.)
At the conclusion of the January 4, 2012 interview with Condron,
Rude, based on instructions from the University of Scranton’s Director of
Public Safety, recommended this position to Condron based on her
experiences and references. (Id. ¶ 27). On January 17, 2012, however,
Condron received a letter from the University of Scranton stating that she
was no longer being considered for employment because of the
2

background investigation. (Id. ¶ 28).
Subsequent to receiving her denial of employment letter, Condron
spoke with the University of Scranton’s Director of Public Safety. (Id. ¶
29). The Director advised Condron that she’s “a nice person, and has a
great work ethic and more than enough experience, but he decided that
[Condron] would not be a good fit with the [Public Safety] Department.”
(Id.) The Director also stated that Condron would never be hired because
she would never “ever pass the background check.” (Id. ¶ 30).
In response, Condron filed the instant complaint pursuant to 42
U.S.C. § 1983 (hereinafter “section 1983”) against the Pennsylvania State
Police and Facciolo (hereinafter “defendants”). Condron’s complaint
alleges four claims. First, Condron asserts a First Amendment retaliation
claim against the defendants. Second, Condron avers that the defendants
treated similarly situated former Pennsylvania State Police employees
differently in contravention of the Fourteenth Amendment. Third, Condron
alleges that the defendants deprived her of a constitutionally protected
property interest in her right to obtain employment in violation of the
Fourteenth Amendment. Fourth, Condron asserts a state law tortious
interference with a contract claim against the defendants. Defendants
move to dismiss the complaint. The parties then briefed the issues
bringing the case to its present posture.

3

JURISDICTION
The court has federal question jurisdiction over this civil rights action
brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331 (“The district
courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”); 28 U.S.C. §§
1343(a)(3), (4) (granting district courts jurisdiction over civil actions
brought to redress deprivations of constitutional or statutory rights by way
of damages or equitable relief). The court has supplemental jurisdiction
over Condron’s state law claim pursuant to 28 U.S.C. § 1367(a) (“[I]n any
civil action of which the district courts have original jurisdiction, the district
courts shall have supplemental jurisdiction over all other claims that are so
related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United
States Constitution.”).
LEGAL STANDARD
Defendants filed their motion to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of
the complaint’s allegations when considering a Rule 12(b)(6) motion. All
well-pleaded allegations of the complaint must be viewed as true and in
the light most favorable to the non-movant to determine whether, “‘under
any reasonable reading of the pleadings, the plaintiff may be entitled to
relief.’” Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir.
4

1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503,
506 (3d Cir. 1985)). The plaintiff must describe “‘enough facts to raise a
reasonable expectation that discovery will reveal evidence of’ [each]
necessary element” of the claims alleged in the complaint. Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must
allege facts that “justify moving the case beyond the pleadings to the next
stage of litigation.” Id. at 234-35. In evaluating the sufficiency of a
complaint the court may also consider “matters of public record, orders,
exhibits attached to the complaint and items appearing in the record of the
case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384
n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept
legal conclusions or unwarranted factual inferences. See Curay-Cramer
v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir.
2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.
1997)).
DISCUSSION
Defendants present the court with five issues. The first issue
involves immunity. Defendants’ next four issues pertain to Condron’s
individual claims. The court addresses these issues in seriatim.
I. Eleventh Amendment Immunity
Initially, defendants contend that Eleventh Amendment immunity
5

shields them from Condron’s federal claims. As noted above, federal
jurisdiction is premised on the fact that several of Condron’s claims are
brought pursuant to section 1983. Section 1983 does not, by its own
terms, create substantive rights. Rather, it provides remedies for
deprivations of rights established elsewhere in the Constitution or federal
law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Section 1983
states in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity or
other proper proceeding for redress . . . .
42 U.S.C. § 1983. Thus, to establish a claim under section 1983, two
criteria must be met. First, the conduct complained of must have been
committed by a person acting under color of state law. Sameric Corp. of
Del., Inc. v. City of Phila., 142 F.3d 582, 590 (3d Cir. 1998). Second, the
conduct must deprive the plaintiff of rights secured under the Constitution
or federal law. Id. Here, the parties do not dispute the defendants were
acting under color of state law. Rather, the parties disagree as to whether
the defendants deprived Condron of her constitutional rights. Defendants
argue that they cannot be held liable because they are protected by
Eleventh Amendment immunity. After a careful review, the court agrees in
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part.
The Eleventh Amendment to the United States Constitution bars
damages claims against both state agencies that do not waive sovereign
immunity and state agencies’ employees sued in their official capacity.
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Specifically,
the Eleventh Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.” U.S.
CONST. AMEND. XI. Eleventh Amendment sovereign immunity protects
unconsenting states and state agencies from suit brought in federal court
by its own citizens. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993); Capogrosso v. Supreme Court of N.J., 588
F.3d 180, 185 (3d Cir. 2009). This protection extends to state agencies
and departments, such as the Pennsylvania State Police. See
Capogrosso, 588 F.3d at 185. Thus, the court will grant defendants’
motion to dismiss all claims against the Pennsylvania State Police.
Eleventh Amendment immunity also applies to state officials, such as
Defendant Facciolo, sued in their official capacity. The immunity applies
in these situations because the state is the real party in interest, resulting
in recovery from the state treasury. Melo v. Hafer, 912 F.2d 628, 635 (3d
Cir. 1990). Accordingly, to the extent that the Defendant Facciolo is sued
7

in her official capacity, she will be dismissed from this case. Facciolo will
remain in the case to the extent that she is sued in her individual capacity
for actions she is alleged to have taken under color of state law.
II. Specific causes of action - Failure to state a claim
As we have found that immunity does not shield Defendant Facciolo
from liability, the court next addresses Condron’s specific claims.
Condron’s two-count complaint contains three federal claims and one
state law claim. Condron’s federal claims include First Amendment
retaliation, Fourteenth Amendment equal protection and Fourteenth
Amendment due process. Condron’s sole state law cause of action is a
claim for tortious interference with prospective contractual relations. The
court will first address Condron’s federal claims, and if necessary, discuss
Condron’s state law claim.
A. First Amendment retaliation
Count One of Condron’s complaint asserts a cause of action for First
Amendment retaliation. Condron alleges that Facciolo’s poor employment
reference was in retaliation for a civil rights lawsuit Condron filed against
the Pennsylvania State Police in 2010.
To prove a First Amendment retaliation claim, a plaintiff must prove
“(1) that she engaged in constitutionally-protected activity; (2) that the
government responded with retaliation; and (3) that the protected activity
caused the retaliation.” Miller v. Mitchell, 598 F. 3d 139, 147 (3d Cir.
8

2010); (quoting Eichenlaub v. Twp. of Ind., 385 F. 3d 274, 282 (3d Cir.
2004). The first element is an issue of law; the second and third are
questions of fact. Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir.
2001); Johnson v. Lincoln Univ., 776 F.2d 443, 454 (3d Cir. 1985). The
instant motion to dismiss focuses on the first element.
The determination of whether an individual engaged in
constitutionally protected activity “applies differently to private and public
employment.” Houston v. Twp. of Randolph, 934 F. Supp. 2d 711, 726
(D.N.J. 2013). A First Amendment retaliation claim under the private
individual test requires that plaintiffs show: “(1) that they engaged in a
protected activity, (2) that defendants’ retaliatory action was sufficient to
deter a person of ordinary firmness from exercising his or her rights, and
(3) that there was a causal connection between the protected activity and
the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d
259, 267 (3d Cir. 2007) (citations omitted).
On the other hand, “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
employer 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 at 241-42 (3d
Cir. 2006) (citing Garcetti v. Ceballos, 547 U.S. 410, 419 (2006)).
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Here, Condron contends that the private retaliation test applies
because she filed the instant action as a private citizen. Condron,
however, conflates the general right to file a lawsuit under the Petition
Clause of the First Amendment with her burden to establish “protected
activity” within the meaning of a First Amendment retaliation claim. While
Condron was a private citizen when she filed the instant action, Condron
alleges that she was retaliated against for filing a prior civil rights
lawsuit. Thus, the “protected activity” is not the filing the of the instant
action. Rather, the protected activity relates back to Condron’s prior civil
rights lawsuit.
A review of Condron’s prior civil rights lawsuit demonstrates that it
pertains to her public employment with the Pennsylvania State Police.
See Condron v. Evanchick, No. 3:10-CV-2506, 2013 WL 4538786, at *1-3
(M.D. Pa. Aug. 27, 2013). As such, the court will utilize the public
employee First Amendment Test.
The law provides that “[w]hen a citizen enters government service,
the citizen by necessity must accept certain limitations on his or her
freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The United
States Supreme Court has explained that “public employees do not
surrender all their First Amendment rights by reason of their employment.
Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public
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concern.” Id. at 417.
A public employee’s speech is protected under the First
Amendment’s Speech Clause when the speech pertains to “a matter of
public concern, and the employee’s interest in expression . . . [is] not
outweighed by any injury the speech could cause to the interest of the
state as an employer in promoting the efficiency of the public services it
performs through its employees.” Watters v. City of Phila., 55 F.3d 886,
892 (3d Cir. 1995); see also Borough of Duryea, Pa. v. Guarnieri, 131 S.
Ct. 2488, 2494, 2501 (2011) (stating that the First Amendment’s Petition
Clause protects the rights of public employees to appeal to courts when a
public employee’s petition relates to a matter of public concern). Public
employee speech and petitioning are considered to be on a matter of
public concern “if it can be fairly considered as relating to any matter of
political, social, or other concern to the community. This determination
turns on the content, form and context of the public employee’s speech.”
Green v. Phila. Hous. Auth.,105 F.3d 882, 886 (3d Cir. 1997) (internal
quotation marks and citations omitted); Borough of Duryea, Pa., 131 S. Ct.
at 2501.
In the present case, Condron alleges that the employment
grievances contained within her prior 2010 lawsuit against the
Pennsylvania State Police constitute protected speech and petitioning
activity. The court, however, previously found that Condron’s employment
11

grievances were not protected speech and petitioning activity for three
reasons:
First, Condron’s grievances concern nothing more than the
terms and conditions of her employment and individualized
workplace grievances do not relate to matters of public
concern. See Duryea, 131 S. Ct. at 2501. Second,
Condron’s grievances were not communicated to the public,
nor is there any indication that Condron intended them to be
made public. Id. Rather, Condron’s grievances were filed
pursuant to the normal procedure for handling internal
employment disputes. Third, Condron was acting pursuant
to her official duties when she filed her grievances and not
acting as a private citizen. See Edwards, 372 U.S. at 23538.
Condron v. Evanchick, 2013 WL 4538786, at *5. Thus, Condron cannot
now allege that her prior lawsuit contained protected activity when the
court previously found that it did not. Accordingly, defendants’ motion to
dismiss Condron’s First Amendment retaliation claim will be granted.2
B. Equal Protection Claim
Condron next asserts that “other employees similarly situated . . .
were not denied the opportunity to move on and acquire other
employment after working for the Pennsylvania State Police.” (Compl. ¶
37). Condron fails to assert membership in a protected class, therefore,
Condron advances her equal protection claim under the “class of one”
2

The court will deny this claim with prejudice as an amendment
would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)
(holding that district courts must permit a curative amendment within a set
period of time unless such an amendment would be inequitable or futile).
12

doctrine.
The Supreme Court of the United States has “explained that ‘[t]he
purpose of the equal protection clause of the Fourteenth Amendment is to
secure every person within the State’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by express terms of a statute
or by its improper execution through duly constituted agents.’” Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (quoting
Sioux City Bridge Co. v. Dakota Cnty., 260 U.S. 441, 445 (1923)).
Supreme Court jurisprudence has “recognized successful equal protection
claims brought by a ‘class of one,’ where the plaintiff alleges that she has
been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.” Id. (citations
omitted).
In the instant case, Condron failed to aver that she received different
treatment from other former Pennsylvania State Police employees that
filed constructive discharge lawsuits. Additionally, Condron failed to allege
that former Pennsylvania State Police employees who filed constructive
discharge lawsuits received positive job references for subsequent
background checks. Moreover, Condron’s complaint is devoid of any
allegations pertaining to other Pennsylvania State Police employee
lawsuits. Because the complaint’s allegations are not sufficient for the
court to analyze Condron’s equal protection claim, the court will dismiss
13

this claim without prejudice to Condron filing an amended complaint.
C. Due Process
Condron also alleges that Facciolo violated her Fourteenth
Amendment due process rights pertaining to her protected property
interest in future employment. (See Compl. ¶ 37). Facciolo maintains that
Condron fails to allege a violation of her Fourteenth Amendment due
process rights. After careful consideration, the court finds that Condron
failed to state a substantive due process claim as a matter of law.
The Fourteenth Amendment to the United States Constitution
provides that no state shall “deprive any person of life, liberty, or property,
without due process of law . . . .” U.S. CONST. AMEND. XIV. The
substantive due process clause is a “component of the [Fourteenth
Amendment] that protects individual liberty against ‘certain government
actions regardless of the fairness of the procedures used to implement
them.’” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)
(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). However, “[t]he
history of substantive due process counsels caution and restraint[,]” and
“[e]ach new claim to [substantive due process] protection must be
considered against a background of Constitutional purposes, as they have
been rationally perceived and historically developed.” Regents of Univ. of
Mich. v. Ewing, 474 U.S. 214, 229 (1985) (Powell, J., concurring)
(citations and internal quotations omitted).
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To establish a substantive due process claim, “‘a plaintiff must prove
[1] the particular interest at issue is protected by the substantive due
process clause and [2] the government’s deprivation of that protected
interest shocks the conscious.’” Chambers ex rel. Chambers v. Sch. Dist.
of Phila. Bd. of Educ., 587 F.3d 176, 190 (3d Cir. 2009) (quoting Chainey
v. Street, 523 F.3d 200, 219 (3d Cir. 2008)). When the challenged state
action is non-legislative, courts assessing whether the due process clause
protects a particular interest “look, as a threshold matter, to whether the
property interest being deprived is ‘fundamental’ under the Constitution.”
Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir. 2000). The Third
Circuit Court of Appeals provides that “[f]undamental rights are rights that
are ‘deeply rooted in the Nation’s history and traditions . . . [and] interests
implicit in the concept of ordered liberty like personal choice in matters of
marriage and family.’” Wrench Transp. Sys., Inc. v. Bradley, 340 F. App’x
812, 815 (3d Cir. 2009) (quoting Nicholas, 227 F.3d at 143).
Condron submits that she adequately stated a violation of her
fundamental right to obtain future employment. She claims that
Kevin Rude, a background investigator with the University of Scranton,
recommended her for a public safety position. (Compl. ¶¶ 20, 27). On
January 17, 2012, however, Condron received a letter from the University
of Scranton stating that she was no longer being considered for
employment because of her background investigation. (Id. ¶ 28).
15

Condron alleges that the University of Scranton was no longer considering
her because of Facciolo’s poor employment reference. (Id. ¶¶ 22-24).
Condron cites no cases in support of this fundamental right, and the court
will decline Condron’s invitation to find such a right.
The fundamental right Condron claims–the right to obtain future
employment–is similar to the intangible employment rights that courts
have consistently declined to extend substantive due process protection
over. See, e.g., Siegert v. Gilley, 500 U.S. 226, 233-34 (1991) (holding
that substantive due process does not protect defamatory comments that
impair an individual’s ability to obtain future employment); Elmore v.
Cleary, 399 F.3d 279, 282 (3d Cir. 2005) (stating that an at-will employee
does not have a legitimate entitlement to continued employment because
she serves at the pleasure of her employer); Nicholas, 227 F.3d at 142
(finding that public employment is not a fundamental right entitled to
substantive due process protection). Moreover, Condron’s substantive
due process claim appears to be a disguised duplicate of her state law
claim for tortious interference with prospective contractual relations.
Therefore, the court finds that Condron has failed to allege a
constitutionally protected property interest in her right to obtain future
employment and will grant Facciolo’s motion to dismiss Condron’s

16

Fourteenth Amendment substantive due process claim.3
D. State law tortious interference with prospective contract
Facciolo requests that the court decline to exercise supplemental
jurisdiction over Condron’s state law claim. (Doc. 6, Defs.’ Br. in Support
Mot. to Dismiss at 15-16). Federal courts have jurisdiction over state
claims which are related to the federal claims and result from a common
nucleus of operative facts. See United Mine Workers v. Gibbs, 383 U.S.
715, 725 (1966); see also Aldinger v. Howard, 427 U.S. 1, (1976).
Supplemental jurisdiction may be declined over a claim when the court
has dismissed all claims over which it has original jurisdiction. See 28
U.S.C. § 1367(c)(3) (1997).
Here, the court has dismissed Condron’s First Amendment retaliation
and Fourteenth Amendment due process claims with prejudice. The court
has also dismissed Condron’s Fourteenth Amendment equal protection
claim without prejudice. Where litigation is in its early stages and the
complaint asserts federal question jurisdiction, the district court has “a
powerful reason not to continue to exercise [supplemental] jurisdiction”
when the federal cause(s) of action in the case are dismissed. Carnegie-

3

The court will deny this claim with prejudice as an amendment
would be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)
(holding that district courts must permit a curative amendment within a set
period of time unless such an amendment would be inequitable or futile).
17

Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988). Thus, at the present
time, the court declines to exercise supplemental jurisdiction over
Condron’s state law tortious interference with prospective contract claim.
CONCLUSION
For the reasons set forth above, Condron’s First Amendment
retaliation and Fourteenth Amendment due process claims are dismissed
with prejudice. Condron’s Fourteenth Amendment equal protection claim
is dismissed without prejudice to Condron filing an amended complaint
within fourteen (14) days that properly asserts this cause of action.4 If an
amended complaint is not filed within that time, this case will be closed.
An appropriate order follows.

Date:

1/9/14

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

4

To assert a claim under the “class of one” doctrine, Condron “must
allege that (1) the defendant treated her differently from others similarly
situated, (2) the defendant did so intentionally, and (3) there was no
rational basis for the difference in treatment.” Hill, 455 F.3d at 239. Put
another way, to survive a motion to dismiss, a complaint alleging a claim
under the “class of one” doctrine must aver, at a minimum, that the
defendant intentionally treated the plaintiff differently from others similarly
situated and that there was no rational basis for such treatment. Phillips,
515 F.3d at 243.
18