Rearick v. Spanier et al
Filing
25
MEMORANDUM AND ORDER granting 18 Defendants' Amended Motion for Partial Dismissal of Plaintiff's Amended Complaint Signed by Honorable A. Richard Caputo on 10/13/11 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEBORAH REARICK,
CIVIL ACTION NO. 4:11-CV-624
Plaintiff,
(JUDGE CAPUTO)
GRAHAM SPANIER, SUSAN J.
WIEDEMER, AL HORVATH, JOSEPH
DONCSECZ, JAMES MATTERN,
ROBERT MANEY, and RICHARD
KILLIAN,
Defendants.
MEMORANDUM
Presently before the Court is the Defendants’ Amended Motion for Partial Dismissal
of Plaintiff’s Amended Complaint. (Doc. 18). Plaintiff Deborah Rearick alleges that after
having exercised her First Amendment right to petition and her Second Amendment right
to bear arms, she was subjected to retaliatory employment actions as a result. In its motion
to dismiss, Defendants argue: (1) that Defendant Rearick fails to state a claim under the
Petition Clause; (2) that Defendant Rearick fails to allege any facts as to a Petition Clause
claim against Defendants Spanier, Horvath and Doncsecz; and (3) that any allegedly
adverse employment actions taken in April and May of 2009 are barred by the doctrine of
claim preclusion. For the reasons stated below, the Court will grant Defendants’ Motion for
Dismissal on the Petition Clause claim.
I. BACKGROUND
Plaintiff Deborah Rearick (“Rearick”) is an employee of the Pennsylvania State
University (“PSU”). Plaintiff brought an initial action against PSU on June 24, 2008, alleging
retaliation in response to prior sexual harassment allegations and an action for breach of
contract. Rearick v. Pennsylvania State University, No. 1:08-cv-1195 (M.D Pa. 2008).
Summary judgment was entered in favor of the University, and the Third Circuit affirmed on
March 4, 2011. Rearick v. Pennsylvania State University, No. 10-3041, 2011 WL 754785
(3d Cir. Mar. 4, 2011). Plaintiff alleges that as punishment for bringing that prior action, she
was unlawfully denied promotional opportunities in violation of her rights under the First
Amendment’s Petition Clause. (Doc. 8 at ¶ 1).
Defendants Susan Wiedemer, Joseph Doncsecz, and Al Horvath are apparently
"Trustees" for the Pennsylvania State University. (Doc. 8 at ¶ 7). Plaintiff alleges these
three “are members of an inside group of top level ‘front office’ officials euphemistically
described along with the President of the University as ‘Old Main.’” (Doc. 8 at ¶ 7).
Defendant Graham Spanier, the President of the University, is also referred to as “Old Main”
and the “front office.” (Doc. 8 at ¶ 8). Defendant James Mattern was Rearick's immediate
superior, as was Defendant Robert Maney. (Doc. 8 at ¶ 9).
The first alleged act of retaliation occurred on approximately April 2, 2009. Rearick
had been temporarily assigned to the open role of Accountant I at PSU. Plaintiff alleges
that as “[s]he was working and performing extremely well in the position,” and that she
decided to bid for a permanent appointment to the position as she “had a clear inside track”
and was encouraged to do so. (Doc. 8 at ¶¶ 13-17). Rearick was very disappointed to
learn that she was ultimately not selected for the job.
Plaintiff believes the decision not to hire her came from the highest levels at PSU,
denying her the job that she “had performed so well and for which she was the most
qualified . . . in retaliation for complaining and filing suit.” (Doc. 8 at ¶ 29). This conclusion
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was partially based on a statement made by Defendant Killian, allegedly informing Rearick
that while such a decision would normally be left to him and a third-party, that "Old Main
made the decision" and that "Old Main has the power." (Doc. 8 at ¶¶ 24-25). Furthermore,
Defendant James Mattern also informed Rearick that Defendant Sue Wiedemer had taken
over the hiring process. (Doc. 8 at ¶ 9). Plaintiff believes that “Wiedemer would not act .
. . without the approval and direction of Graham Spanier particularly since the litigation
referred to above was pending.” (Doc. 8 at ¶ 28). Finally, about a month later, Defendant
Richard Killian explained to Rearick that she had been denied the position due to her
"re-occurring pattern of questioning authority." (Doc. 8 at ¶ 30).
On May 10, 2010, Plaintiff applied for another position--Assistant Supervisor of the
Property Inventory Department. However, Plaintiff was again disappointed to learn that this
position was ultimately given to an apparently less qualified applicant. Additionally, on July
26, Rearick applied for the position of “Grants and Contracts Accountant I.” She was also
rejected for that position, citing her lack of a college degree, an action Plaintiff characterizes
as “an inexcusable and unjustifiable denial of her rights done in retaliation for her seeking
a redress of her grievances.” (Doc. 8 at ¶ 49). These grievances refer to Rearick’s federal
court action against PSU, then pending before the Third Circuit, and an additional grievance
directed to the PSU Affirmative Action Office regarding the alleged "good old boy" culture
at the University. (Doc. 8 at ¶ 48). Plaintiff also received an apparently unwarranted
disciplinary letter on October 15, 2010, acknowledging Plaintiff’s pending lawsuit and
advising her not to approach or harass her co-workers in regard to that suit. (Doc. 2).
On May 5, 2011, Plaintiff was ordered to attend a meeting with Defendants Maney
and Wiedemer where she was asked to turn over her keys, questioned about her “conceal
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and carry” firearms permit, and was eventually sent to meet with a PSU in-house mental
counselor. Plaintiff was told not to return to work until summoned, and appears to still be
on leave.
As a result of being questioned about her gun permit, Plaintiff further argues that the
aforementioned promotional opportunities were also denied in retaliation for her exercising
her Second Amendment rights. (Doc. 8 at ¶ 6). Plaintiff claims that she has had her permit
for “many many years, for protection due to business activities” but “that the defendants are
using her lawful and proper possession of a carry and conceal gun permit . . . as a way to
harm and injure the plaintiff in violation of her 1st and 2nd Amendment rights.” (Doc. 8 at
¶¶ 57, 64). As such, Plaintiff brings claims against all Plaintiffs for the violation of her First
Amendment Petition Clause Rights and against Defendants Maney and Wiedemer for the
violation of her Second Amendment Right to bear arms.
As an initial matter, Defendants argue that Plaintiff fails to state a claim based on the
Petition Clause. Specifically, in light of the Supreme Court’s holding in Borough of Duryea
v. Guarnieri, 131 S. Ct. 2488 (2011), they point out that a public employee is precluded from
brining a Petition Clause claim on a matter not of public concern. Further, Defendants
argue that Rearick fails to state a claim against Defendants Spainer, Horvath and
Doncsecz. Finally, Defendants contend that the alleged actions of retaliation that occurred
in April and May of 2009 should be barred as claim precluded as these allegations should
have been raised in the prior action. Plaintiff counters that she attempted to amend her
complaint, but was denied the opportunity to do so and is thus not precluded.
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II. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. When
considering a Rule 12(b)(6) motion, the Court’s role is limited to determining if a plaintiff is
entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232,
236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id.
A defendant bears the burden of establishing that a plaintiff’s complaint fails to state a
claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000).
“A pleading that states a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The
statement required by Rule 8(a)(2) must give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per
curiam) (quoting Twombly, 550 U.S. at 555). Detailed factual allegations are not required.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, mere conclusory
statements will not do; “a complaint must do more than allege the plaintiff’s entitlement to
relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211. Instead, a complaint must “show”
this entitlement by alleging sufficient facts. Id. “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1950 (2009).
As such, the inquiry at the motion to dismiss stage is “normally broken into three
parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike
conclusory allegations, and then (3) looking at the well-pleaded components of the
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complaint and evaluating whether all of the elements identified in part one of the inquiry are
sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Dismissal is appropriate only if, accepting as true all the facts alleged in the
complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible
on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual
allegations “‘to raise a reasonable expectation that discovery will reveal evidence of’” each
necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 129 S. Ct. at 1949. “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they plausibly give rise to
an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
In deciding a motion to dismiss, the Court should consider the allegations in the
complaint, exhibits attached to the complaint, and matters of public record. See Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The
Court may also consider “undisputedly authentic” documents when the plaintiff’s claims are
based on the documents and the defendant has attached copies of the documents to the
motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were
not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256,
263 & n.13 (3d Cir. 1998), or credit a complaint’s “‘bald assertions’” or “‘legal conclusions,’”
Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).
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B. Plaintiff’s Claim Under the Petition Clause
Defendants argue that Plaintiff Deborah Rearick has failed to state a valid claim
under the Petition Clause of the First Amendment.
(Doc. 19 at 10).
Specifically,
Defendants assert that pursuant to Borough of Duryea v. Guarnieri, 131 S. Ct. 2488 (2011),
a public employee must demonstrate that they petitioned on a matter of public concern in
order to substantiate a valid claim. As Rearick wholly fails to allege that her petitions were
based on matters of public concern, Defendants move the Court to dismiss Rearick’s First
Amendment retaliation claim.
To plead a First Amendment retaliation claim, a plaintiff must allege “(1) that the
activity in question is protected by the First Amendment, and (2) that the protected activity
was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455
F.3d 225, 241 (3d Cir. 2006). Guarnieri extended this analysis to actions brought under the
First Amendment’s Petition Clause, holding that “[i]f a public employee petitions as an
employee on a matter of purely private concern, the employee’s First Amendment interest
must give way, as it does in speech cases.” 131 S. Ct. at 2500. However, if such an
employee petitions “as a citizen on a matter of public 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.” Id. A determination of such
public interest is “a question of law to be determined by examining ‘the content, form, and
context of a given statement, as revealed by the whole record.’” Rode v. Dellarciprete, 845
F.2d 1195, 1201 (3d Cir. Pa. 1988) (citation omitted); see also Connick v. Myers, 461 U.S.
138, 148 (1983).
In her Brief in Opposition to the Motion to Dismiss, Plaintiff attempts to differentiate
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her situation from Guarnieri by arguing solely that “the filing of a federal action raising claims
based upon the Constitution and acts of Congress . . . must be deemed to be matters of
public concern, as a matter of law.” (Doc. 23 at 9). This is not the case. In fact, one of the
protected activities alleged in Guarnieri was the filing of just such an action, a claim under
42 U.S.C. § 1983 for a separate First Amendment Petition Clause violation. 131 S. Ct. at
2492. Moreover, the Supreme Court specifically declined to determine whether that activity
was sufficiently a matter of public interest, remanding the case for further analysis. Id. at
2501. As such, Plaintiff cannot reasonably argue that all such suits “clearly must be
deemed to be matters of public concern.” (Doc. 23 at 9).
Instead, Courts routinely find an absence of public interest where public employees
level personalized complaints against their employers. "A public employee's speech
involves 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." Brennan v. Norton, 350 F.3d 399, 412
(3d Cir. 2003) (citation omitted).
Mere employee grievances are not such a public
concern–“absent the most unusual circumstances, a federal court is not the appropriate
forum in which to review the wisdom of a personnel decision taken by a public agency
allegedly in reaction to the employee’s behavior.” Connick v. Myers, 461 U.S. 138, 147
(1983). “The right of a public employee under the Petition Clause is a right to participate
as a citizen, through petitioning activity, in the democratic process. It is not a right to
transform everyday employment disputes into matters for constitutional litigation in the
federal courts.” Guarnieri, 131 S. Ct. at 2501.
In Miles v. City of Philadelphia, a district court considered whether complaints of
sexual harassment made within the police department could constitute a matter of public
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concern. 2011 WL 4389601 at *4 (E.D. Pa. Sept. 21, 2011). Determining that sexual
harassment could theoretically constitute a matter of public concern, that court still
dismissed the retaliation claim, finding that the plaintiff’s sexual harassment allegations
“were made to advance only her own interests.” Id. Specifically, that court failed to
comprehend how the plaintiff’s assertions “implicate[d] defendants in a pattern of conduct
directed at anyone other than her.” Id. This squares well with the public concern rule
affirmed in Guarnieri, which specifically noted that “the forum in which a petition is lodged
will be relevant,” and that such internal grievance procedures are inherently shielded from
the public view and are therefore often not a public concern. Guarnieri, 131 S. Ct. At 2501.
Defendants also cite Bell v. City of Philadelphia in support of the proposition that
public concern does not exist where a Plaintiffs has petitioned solely on their own behalf.
275 Fed. Appx. 157 (3d Cir. 2008). There, the government employee was found to be
speaking on no public concern where his complaints “sought not to expose discriminatory
or harassing practices or policies at the DA's Office, but complained solely about his own
‘abuse’ and mistreatment by superiors and co-workers . . . especially given that they arose
only after Bell's discipline for his own workplace infractions and amid clear evidence of his
insubordination.” Id. at 159.
Enshrouding a workplace disagreement in Constitutional
terms does not render it actionable.
Examining the content, form, and context of Rearick’s alleged petitions, the Court
determines that, as a matter of law, they are not matters of public concern. Unlike the
above cases, Rearick does not allege in her Amended Complaint that her initial suit
contained any element of public concern. Moreover, her petitions are no more than ordinary
employee grievances–in fact, she explicitly admits that the supposed retaliation resulted
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from “her right to petition for a redress of grievances.” (Doc. 8 at ¶ 6). Therefore, it is clear
that she did not “seek to communicate to the public or to advance a political or social point
of view beyond the employment context.” Guarnieri, 131 S. Ct. at 2501. Instead, the
alleged protected conduct, Rearick’s June 2008 action, complains solely of personal
retaliation and contract claims based on prior, unrelated complaints made against her
employer. Rearick v. Pennsylvania State University , No. 1:08-cv-1195 (M.D Pa. 2008).
While tangentially based on a sexual harassment claim, the crux of that complaint was
wholly personal. As it sought no broader social purpose, it cannot be said that it was in any
way a matter of public concern.
Furthermore, Rearick’s filing with the PSU Affirmative Action Office regarding the
Institution’s culture and alleged misconduct is also not sufficiently a matter of public
concern. As it was a completely internal petition, the Court notes that it has even less
inherent potential to suffice as a matter of public concern. Guarnieri, 131 S. Ct. At 2501
(“internal grievance procedure[s] in many cases will not seek to communicate to the public
or to advance a political or social point of view beyond the employment context”). Moreover,
Plaintiff’s Amended Complaint fails to allege any element of public concern in this matter,
nor did the grievance itself purport to advance the interest of anyone besides the Plaintiff.
Therefore, as Rearick fails to allege any public concern in her Amended Complaint, she has
not met her burden of alleging the necessary elements of her Petition Clause claim.
III. CONCLUSION
For the reasons stated above, Defendants’ Amended Motion for Partial Dismissal of
Plaintiff’s Amended Complaint (Doc. 18) will be granted. As the Court finds the Petition
Clause claims insufficiently plead to survive a motion to dismiss, it is not necessary at this
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instant to consider the claim preclusion issues raised by the Defendants or the sufficiency
of the claims raised against individual Defendants. Finally, as all Petition Clause claims will
be dismissed, the only remaining claim in this action is Plaintiff’s Second Amendment claim
against Defendants Maney and Wiedemer. An appropriate order follows.
October 13, 2011
Date
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEBORAH REARICK,
CIVIL ACTION NO. 4:11-CV-624
Plaintiff,
(JUDGE CAPUTO)
GRAHAM SPANIER, SUSAN J.
WIEDEMER, AL HORVATH, JOSEPH
DONCSECZ, JAMES MATTERN,
ROBERT MANEY, and RICHARD
KILLIAN,
Defendants,
ORDER
NOW, this 13th day of October, 2011, IT IS HEREBY ORDERED that
Defendants’ Amended Motion for Partial Dismissal of Plaintiff’s Amended Complaint
(Doc. 18) is GRANTED.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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