The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court for disposition is the MOTION FOR SUMMARY JUDGMENT filed by Defendants, with brief in support (Document Nos. 38 and 39 respectively), and the Plaintiff's BRIEF IN OPPOSITION (Document No. 45).
After careful consideration of the motion, the material in support and opposition thereto, the memoranda of the parties in support and opposition thereto, the relevant case law, and the record as a whole, the Court will grant Defendants' motion for summary judgment in its entirety.
Plaintiff, Lt. Eric Story, filed this civil rights action on August 19, 2002, in which he alleges that as a result of his reporting the alleged misconduct of Defendant CO. Ed Johnston,*fn1 he suffered retaliation by all Defendants in violation of title 42, United States Code, section 2000 et seq. ("Title VII"), and a deprivation of his First Amendment rights, in violation of title 42, United States Code, section 1983. Plaintiff further contends that Defendant CO. Ed Johnston committed an assault on him.
At the time of the allegations contained in the Complaint, Plaintiff was employed by the Pennsylvania Department of Corrections ("DOC") and assigned to the State Correctional Institution ("SCI")- Waynesburg. Stmt of Material Facts, at ¶ 4. In September 2003, Plaintiff transferred from SCI -Waynesburg to SCI - Pittsburgh.
Additionally, at the time of the allegations contained in the Complaint, the individual defendants, Superintendent Mechling, Lieutenant Plavi, Captain Kern, Deputy Superintendent Gavorchik and Corrections Officer Johnston were all stationed or located at SCI-Waynesburg, where they each performed services for the Pennsylvania Department of Corrections. Id. at ¶ 6.
On three separate occasions in 2001, Plaintiff filed an administrative complaint against Defendants with the Pennsylvania Human Relations Commission ("PHRC"): January 31, 2001; March 19, 2001; and November 13, 2001. In the instant matter, Plaintiff contends that "[a]fter he filed those complaints he was subjected to intense and pervasive mistreatment in retaliation in the form of adverse employment actions . . . ." Complaint, at ¶ 23.
Defendants have moved for summary judgment on all claims brought against them. The matter has been fully briefed by the parties and is ripe for disposition.
Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, the Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-29 (1986). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249)). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Distilled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.
As stated above, Plaintiff has brought a retaliation claim under title 42, United States Code, section 2000 et seq. ("Title VII"); a claim that his First Amendment rights were violated in violation of title 42, United States Code, section 1983; and a state law claim of assault against Defendant CO Ed Johnston. Plaintiff's claims will be addressed seriatim.
I. Claims of Retaliation Under Title VII
A. Failure to Exhaust Administrative Remedies
The timely exhaustion of administrative procedures is a precondition to the maintenance of a federal employment discrimination civil lawsuit. See 42 U.S.C. § 20003- 5(e)(1); National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002). "Filing a charge and receiving a right to sue letter are prerequisites to an individual's bringing suit under Title VII." McNasby v. Crown Cork and Steel Co., 888 F.2d 270, 282 (3d Cir. 1989). "A complainant may not bring a Title VII suit without having first received a right-to-sue letter." Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001).
In the matter sub judice, Plaintiff filed his Complaint in this Court on August 19, 2002, and alleged, inter alia, that he had suffered retaliatory conduct in violation of Title VII. Plaintiff did not attach to his Complaint a right-to-sue letter from the EEOC nor did the Complaint state when Plaintiff filed his EEOC charge or when he received a right-to-sue letter from the EEOC. However, at his deposition, Plaintiff produced a right-to-sue letter from the EEOC dated November 4, 2002. It is undisputed that the Complaint in this matter pre-dates the right-to-sue letter by approximately 2-1/2 months. By Plaintiff's own admission, he did not receive a right-to-sue letter prior to filing his Complaint: "Story provided the EEOC with a copy of the August 19, 2002 complaint and the EEOC administration closed their case and issued a "Right to Sue" on November 4, 2002." Pl's Br. at 4.
As stated supra, filing a charge and receiving a right-to-sue letter are "prerequisites" to bringing a complaint under Title VII. McNasby, 888 F.2d at 282. Our appellate court has stated that exhaustion must occur "prior to bringing suit." Freed v. Consolidated Rail Corp., 201 F.3d 188, 191 (3d Cir. 2000). In this case, the right-to-sue letter was received by Plaintiff in November 2002, almost 2-1/2 months after he had filed his Complaint. Accordingly, summary judgment will be ...