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June 9, 2003


The opinion of the court was delivered by: James M. Munley, District Judge


Before the Court for disposition is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff is Kerry Dennison. Defendants are the Pennsylvania Department of Corrections, S.C.I-Mahanoy,*fn1 ("SCI-Mahoney"), Michael R. Youron, Martin L. Dragovich, Thomas P. Kowalsky, James Unell, and Ed Klem. Defendants' motion has been fully briefed and is ripe for disposition. For the reasons that follow, we will grant defendants' motion in part and deny it in part.

I. Background

Plaintiff Kerry Dennison began working at SCI-Mahanoy as a Psychological Services Associate in November of 1995. Officials at SCI-Mahanoy fired Dennison on June 30, 2000. At the time of his dismissal, Dennison had reached the level of a Psychological Services Associate 2. Dennison alleges that while he worked at SCI-Mahanoy the individual defendants continually harassed, intimidated, and threatened him in an effort to force him out of his position. Defendants took these actions in retaliation for Dennison's complaints regarding discrimination in employment practices and parole determinations.

The EEOC issued Dennison a right to sue letter on August 3, 2000. On October 26, 2000, Dennison filed the instant complaint, seeking damages and other relief for violations of federal and Pennsylvania law. In Count I of his complaint, Dennison seeks relief pursuant to 42 U.S.C. § 1983, 1984, 1985, and 1988 for defendants' alleged violations of the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Counts II and III allege that the defendants conspired to violate Dennison's First, Fourth, Fifth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983, 1984, 1985, 1986, and 1988. In Counts IV and V, respectively, Dennison alleges that defendants violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, ("PHRA"), 43 PA. CONS. STAT. § 951 et seq. Count VI alleges intentional infliction of emotional distress. Count VII alleges wrongful discharge, and Count VIII seeks damages for violation of the Pennsylvania Whistleblower Law, 43 PA. CONS. STAT. § 1421 et seq.

On March 8, 2001, Defendants SCI-Mahanoy and Dragovich filed a motion to dismiss Dennison's complaint against them in its entirety. On June 8, 2001, we dismissed all claims against SCI-Mahanoy except for Dennison's Title VII claim (Count IV), PHRA claim (Count V), and wrongful termination claim (Count VII). With regard to Defendant Dragovich, we dismissed all of Dennison's claims against him in his individual capacity, and we dismissed all claims against him in his official capacity except for the Title VII (Count IV), PHRA (Count V), and wrongful termination claims (Count VII). On May 29, 2002, all defendants filed the instant motion seeking summary judgment on all of Dennison's remaining claims.

II. Jurisdiction

The Court exercises jurisdiction over this dispute pursuant to its federal question jurisdiction, 28 U.S.C. § 1331, and supplemental jurisdiction, 28 U.S.C. § 1367. Pennsylvania law applies to those claims considered pursuant to supplemental jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).

III. Standard of Review

Granting summary judgment is proper 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. See Knabe v. Boury, 114 F.3d 407, 410 n. 4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be in sufficient to carry the non-movant's burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

IV. Discussion

Dennison's eight count complaint can be broken down into five general categories:

claims brought pursuant to 42 U.S.C. § 1983, (section 1983), conspiracy claims, Title VII and PHRA claims, Pennsylvania common law tort claims, and Pennsylvania Whistleblower Law claims. We shall address defendants' motion accordingly.
A. Section 1983 Claims*fn2

In Count I of his complaint, Dennis on alleges that Defendants Youron, Kowalsky, Unell, and Klem violated his rights under the First and Fourteenth Amendments to the United States Constitution when he worked at SCI-Mahanoy, and he seeks damages and other relief pursuant to 42 U.S.C. § 1983.*fn3 Those defendants now move for summary judgment on each of Dennison's claims.*fn4

Section 1983 provides, in relevant 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, section 1983 is not itself a source of substantive rights. Graham v. Connor, 490 U.S. 386, 393-394 (1989). Instead, it provides a cause of action for the vindication of federal rights. Id. To succeed under section 1983, Dennison must establish: 1) that defendants violated a right secured by the Constitution or laws of the United States, 2) acted under color of state law in so doing, and 3) damages. Samerik Corp. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). There is no dispute that defendants acted under color of state law in this matter. Whether there is sufficient evidence to support Dennison's claims that defendants violated the First and Fourteenth Amendments to the United States Constitution remains for resolution.

1. Official Capacity Claims

As an initial matter, Defendants Youron, Kowalsky, Unell, and Klem move for summary judgment on Dennison's claims that they are liable in their official capacities for the violation of Dennison's constitutional rights, and we will grant their motion. Official capacity suits are nothing more than suits against an official's employing agency. Kentucky v. Graham, 473 U.S. 159, 165 (1985). In this case, the employing agency is the Pennsylvania Department of Corrections, which is immune from suit in federal court pursuant to the Eleventh Amendment. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977) (holding that Eleventh Amendment bars suit in federal court against states and their subordinate agencies); see also 71 PA. CONS. STAT. § 61 (naming the Department of Corrections as an administrative department of the Commonwealth). Accordingly, we will grant defendants' motion for summary judgment on Dennison's section 1983 official capacity suits.

2. First Amendment Claims

Dennison alleges in his complaint that Defendants Youron, Kowalsky, Unell, and Klem violated his First Amendment free speech and petition rights by firing him in retaliation for objecting to discrimination in parole determinations and employment practices at SCI-Mahanoy and filing related grievances with government bodies.*fn5 Defendants move for summary judgment on Dennison's First Amendment claims. They contend that Dennison was fired for violating the Pennsylvania Department of Corrections Code of Ethics, and that there is no evidence to support his allegations of retaliation. We will grant in part and deny in part Defendants Youron, Kowalsky, Unell, and Klem's motion for judgment on Dennison's First Amendment claims.

a. Free Speech Claims

Dennison's free speech claims can be broken into two broad categories: those concerning the distribution of confidential documents and those not related to the distribution of such documents. We will first address the parties' arguments surrounding Dennison's distribution of confidential documents, and then we will address Dennison's other free speech claims.

i. Confidential Document/Free Speech Claims

Dennison admits that he released confidential inmate psychological reports to Ernest Preate, a prison reform advocate, Ron Felton, a local NAACP official, and Fox-TV News in an effort to reveal racial discrimination in parole determinations at SCI-Mahanoy; he argues, however, that his dismissal for the distribution of such records was in violation of the First Amendment.*fn6 Defendants concede that they fired Dennison for the disclosure of inmate psychological records, but they deny that their actions were in violation of the First Amendment's Free Speech Clause.

A public employee does not forfeit the First Amendment right to speak on matters of public concern by virtue of public employment. Connick v. Myers, 461 U.S. 138, 142 (1983). That right, however, must be balanced against the interests of the public employer in the effective discharge of its public duties. Id. When a public employer concedes that it has fired an employee because of speech on a matter of public concern, an ensuing retaliation claim is evaluated under a tripartite balancing test. Baldassare v. New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). First, employees must establish that their speech was protected by the First Amendment. Id. at 195. For a public employee's speech to be protected by the First Amendment, it must be on a matter of public concern, and the employee's interest in the speech must outweigh the opposing interest of the employer in the efficient conduct of its operations. Connick, 461 U.S. at 146-54; Baldassare, 250 F.3d at 194-95. Whether a public employee's contested speech addresses a matter of public concern and whether the employee's interest in such speech outweighs the employer's interest in the effective operation of its organization are matters of law for the court. Baldassare, 250 F.3d at 195. Second, employees must "show [that] the protected activity was a substantial or motivating factor in the ...

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