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Kruszewski v. Gorton

March 2, 2007


The opinion of the court was delivered by: Chief Judge Kane


Before the Court is Defendants Christopher Gorton's and Sally Kozak's joint Motion for Summary Judgment. (Doc. No. 207.) Defendants have filed a Statement of Undisputed Material Facts (Doc. No. 208) and Plaintiff has filed a Response to Defendants' Statement of Undisputed Fact. (Doc. No. 216.) Both parties have filed briefs. (Doc. No. 209, Doc. No. 217.) Defendants have also filed a Reply Brief. (Doc. No. 220.) The motion is ripe for disposition.*fn1


Plaintiff is a medical doctor and is currently licensed to practice medicine in Pennsylvania. He was employed by Columbus Medical Services to provide services to the Pennsylvania Department of Public Welfare ("DPW"). (Doc. No. 186 ¶ 6.)Plaintiff's job required him to perform medical reviews of treatment facilities to determine whether DPW should reimburse the treatment facility for various services the facilities provided. (Doc. No. 208 ¶ 17; Doc. No. 216, at 3-4.) As discussed below, the parties disagree regarding the full scope of Plaintiff's official job duties with DPW.

Defendant Christopher Gorton is a medical doctor and at all times relevant to this suit was the Chief Medical Officer for DPW. (Doc. No. 208 ¶ 8.) Defendant Sally Kozak was the Director of Clinical Operations at DPW, responsible for managing clinical-consultant contracts. (Id. ¶¶ 10-11.) Kozak did not manage the consultants on a day-to-day basis. Instead, she managed the contracts to ensure that consultants were working the correct number of hours and that they were compensated appropriately for the time they worked. (Id. ¶ 21.) During the time relevant to this suit, Gorton was Kozak's supervisor. (Id. ¶ 9.)

On July 11, 2003, Gorton effectively terminated Plaintiff's employment by contacting Columbus Medical Services and informing the company that Plaintiff was banned from all DPW worksites. (Doc. No. 208, Ex. C.) Defendants assert that Plaintiff was terminated as a result of verbally- abusive and physically-intimidating behavior that he exhibited during a meeting with Kozak. (Doc. No. 208 ¶ 29.) Plaintiff contends that he was actually fired for making statements on matters of public concern that are protected under the First Amendment. (Doc. No. 186 ¶¶ 10-14.) The statements in question can be categorized as: (1) reports regarding poor quality of care, including abuse of patients by staff at treatment facilities; (2) complaints about the lack of qualifications of another private contract doctor; and (3) statements about use and costs of medications. (Id.)

Plaintiff brought this suit under 42 U.S.C. § 1983, alleging that the statements he made were protected activity under the First Amendment and that he was fired in retaliation for having made the statements.*fn2 (Doc. No. 186 ¶¶ 16-19.)


Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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 a judgment as a matter of law." Fed. R. Civ. P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-51 (1986). When deciding a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party, who is "entitled to every reasonable inference that can be drawn from the record." Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Id. at 322.


The test for evaluating a public employee's claim of retaliation for engaging in activity protected by the First Amendment is well established. First, a plaintiff must establish that she engaged in activity protected by the First Amendment. Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). Second, the plaintiff must establish that the protected activity was a substantial and motivating factor in the retaliatory action. Id. If the plaintiff satisfies the first two prongs, an employer can still prevail if it can establish that it would have taken the same adverse action in the absence of the protected conduct. Id.

Defendants assert that Plaintiff's conduct was not protected, and even if it was protected it was not a substantial motivating factor in Gorton's decision to terminate Plaintiff. Defendants also argue that Kozak did not engage in any retaliatory conduct.

A. Sally Kozak

Defendants argue that Kozak did not commit a retaliatory act against Plaintiff and assert that Kozak did not make the decision to terminate Plaintiff. (Doc. No. 209, at 18.) Instead, Defendants assert that Kozak's only action was to tell Gorton that ...

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