The opinion of the court was delivered by: MCCLURE
On May 20, 1996, plaintiff Julie F. Connor initiated this action with the filing of a complaint alleging that defendants violated various constitutional provisions and the Pennsylvania Whistleblower Law by terminating her employment at the Clinton County Prison as a secretary/records clerk.
Before the court is defendants' motion for summary judgment.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis added).
Celotex Corp. v. Catrett, 477 U.S. 317, 323-324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).
The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex at 323, 325.
Issues of fact are genuine "only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Material facts are those which will affect the outcome of the trial under governing law. Anderson at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
II. MATERIAL FACTS NOT IN GENUINE DISPUTE
1. Plaintiff Julie F. Frazier (formerly and in the caption Julie F. Connor; referred to as "Connor" or "plaintiff" to distinguish plaintiff from her father) is an adult individual who was employed as a secretary/records clerk at the Clinton County Prison commencing in March, 1993.
2. At the time plaintiff's employment began, Arwin Reisch was the warden of the Clinton County Prison.
3. In May, 1994, defendant Thomas Duran succeeded Arwin Reisch as warden of the Clinton County Prison.
4. Miles Kessinger has, at all times material hereto, been a member of the Clinton County Commissioners and the Chairman of the Clinton County Prison Board.
5. At all times material hereto, J.C. Frazier has been the Chief of Police of Lock Haven, Clinton County, Pennsylvania.
6. Frazier is Connor's father.
7. Commencing in February, 1995, Connor began keeping a record of incidents involving or affecting her job at the Clinton County Prison because she felt that her job was in jeopardy. [Plaintiff points out, in addition, that one of the incidents involved a matter of public concern. This legal characterization will be discussed below in the context of her First Amendment Free Speech claim.]
8. The notes, or "log," of incidents and observations was generally kept at her home.
9. In the end of November, 1995, a limited number of pages of the "log" was kept in her desk at work. Those pages consisted of entries commencing October 16, 1995, and ending November 15, 1995.
10. A true and correct copy of the notes kept in Connor's desk in the end of November, 1995, has been identified in discovery as Defendants' Disclosure Documents Nos. 046 through 053, inclusive.
11. The documents identified as Nos. 046-053 were discovered in Connor's desk on November 17, 1995.
12. At the time she applied for employment at the Clinton County Prison, Connor completed and executed an employment application which included a statement in which she acknowledged that she was applying for a position as an "at-will" employee. A true and correct copy of the Application for Employment, including the Applicant's Statement, has been identified in discovery as Defendants' Disclosure Documents Nos. 003 through 007, inclusive.
13. At no time during the course of her employment did Connor receive a written document modifying her status as an "at will" employee. [Plaintiff disputes this fact based on the Collective Bargaining Agreement between Clinton County and AFSCME, a contention discussed, and rejected, below.]
14. Pursuant to a Nisi Order of Certification dated June 25, 1980, the Pennsylvania Labor Relations Board certified AFSCME District Council 86, AFL-CIO, as the exclusive representative for a bargaining unit composed of "all full-time and regular part-time Jail Guards" at the Clinton County Prison.
15. A true and correct copy of the Nisi Order of Certification (Case No. PERA-R-80-156-C) was identified in discovery as Defendants' Disclosure Documents Nos. 012 through 014, inclusive.
16. No employees other than those belonging to the bargaining unit composed of Jail Guards were recognized or represented by a union at the Clinton County Prison.
17. A collective bargaining agreement was negotiated between Clinton County and Council 86, AFSCME, AFL-CIO, for the benefit of Corrections Officers at the Clinton County Prison. A true and correct copy of the Collective Bargaining Agreement in effect between January 1, 1993, and December 31, 1995, is attached to the complaint and identified as Exhibit A.
18. Connor never was employed in the position of a jail guard or corrections officer at the Clinton County Prison.
19. When Connor's employment was terminated, AFSCME refused to pursue a grievance against the County on her behalf because she was not ...