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Cindrich v. Fisher

May 31, 2007

RITA J. CINDRICH, PLAINTIFF,
v.
MICHAEL FISHER, IN HIS FORMER CAPACITY AS ATTORNEY GENERAL AND INDIVIDUALLY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge

OPINION and ORDER OF COURT

SYNOPSIS

Defendants have filed a Motion for Summary Judgment. (Docket No. 10). Defendants move for summary judgment as to: 1) Count One because Plaintiff was not a whistleblower under Pennsylvania law and because no actions were taken against her because of any whistleblowing activity; 2) Counts Two and Three because: a) Plaintiff's speech was not protected by the First Amendment, b) her disruptiveness outweighs any First Amendment rights she might have, and c) any claims arising prior to December 15, 2005, are barred by the doctrine of issue preclusion; and 3) Counts Four, Five, and Six based on immunity. (Docket No. 39). After careful consideration of the submissions of the parties, said Motion (Docket No. 39) is granted in part and denied in part, as set forth more fully below.

I. BACKGROUND

This is an action brought by Plaintiff, Rita Cindrich, a former employee of the Pennsylvania Office of Attorney General ("OAG"), against several current and former officials of the Office of Attorney General. (Docket No. 1). Defendants had filed a Motion to Dismiss Plaintiff's Amended Complaint. I granted in part and denied in part the Motion. (Docket No. 18). Specifically, I granted Defendants' Motion to Dismiss Plaintiff's §1983 First Amendment retaliation claims based on Eleventh Amendment immunity as to Defendants sued in their official capacity, but denied as to Defendants sued in their individual capacities; I granted the Motion to Dismiss Plaintiff's Whistleblower claims based on the 180 day statute of limitations such that all whistleblower claims occurring before April 1, 2005, were dismissed with prejudice; and I granted Defendants' Motion to Dismiss Plaintiff's §1983 First Amendment retaliation claims based the two year statute of limitations such that all First Amendment retaliation claims occurring prior to September 28, 2003, are dismissed with prejudice. (Docket No. 18). Thereafter, Plaintiff filed her Second Amended Complaint. (Docket No. 28). The Second Amended Complaint asserts six causes of action: 1) Violation of Pennsylvania's Whistleblower Law, 43 P.S. §1422, et seq.; 2) Violation of the First Amendment to the United States Constitution; 3) Retaliation in violation of the First Amendment; 4) Defamation; 5) Civil Conspiracy; and 6) Intentional Infliction of Emotional Distress). Id.

Defendants have filed a Motion for Summary Judgment as to all Counts. (Docket No. 39). After briefing by the parties, the issues are now ripe for review.

II. LEGAL ANALYSIS

A. STANDARD OF REVIEW

Summary judgment may only 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 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). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who 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 of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 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 insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. 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. Summary judgment must therefore be granted "against a party who 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 of proof at trial." White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988), quoting, Celotex, 477 U.S. at 322.

B. IMMUNITY

The first issue raised by Defendants is immunity. (Docket No. 40, p. 5).

Specifically, Defendants argue that summary judgment should be entered in their favor as to Counts Four, Five, and Six, because "Pennsylvania officials and employees acting within the scope of their duties are immune from suit for state law violations except as specifically waived by the General Assembly." Id., citing 1 Pa. C.S. §2310.

Section 2310 provides, in pertinent part, as follows: "Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa. C.S. §2310. Defendants continue that since immunity has only been waived in nine narrow areas, 42 Pa. C.S. §8522(b),*fn1 none of which include claims for defamation, civil conspiracy, or intentional infliction of emotional distress, and Plaintiff did not allege that Defendants acted outside the scope of their employment, immunity as to said Counts of the Second Amended Complaint should be recognized. Id.

In opposition, Plaintiff argues that Defendants are not immune from Counts Four, Five, and Six. (Docket No. 46, pp. 15-16). Specifically, Plaintiff argues that immunity for government employees is waived for those who cause injury through willful misconduct. Id. at 16, citing, 42 Pa. C.S.A. §8550.*fn2 Section 8850, however, applies only to local agency employees and not Commonwealth employees. 42 Pa. C.S.A. §8550; See Yakowicz v. McDermott, 120 Pa.Cmwlth. 479, 548 A.2d 1330, 1333 & n. 5 (Pa. Commw. 1988), appeal denied, 523 Pa. 644, 565 A.2d 1168 (Pa. 1989)(noting that Commonwealth employees are immune from liability even for intentional torts but that local agency employees lose their immunity defense where their actions constitute a crime, actual fraud, actual malice or willful misconduct); 21 Standard Pennsylvania Practice 2d § 114:58 (June 2006).

Plaintiff further asserts that the conduct alleged against Defendants is outside the scope of their official duties and, thus, there is no immunity. Id. In support of the same, Plaintiff points me to section F of her brief. (Docket No. 46, p. 16). A review of section F, however, does not reveal in any way that Defendants acted outside their scope of employment. See, Docket No. 46, pp. 8-10. All acts discussed by Plaintiff in section F are acts that occurred within the employment setting and are within a supervisor's responsibilities.

Plaintiff also suggests that it cannot be within their scope of employment to conspire to terminate Plaintiff. (Docket No. 46, p. 16). Allegations in her Second Amended Complaint against Defendants in their individual capacities alone, however, are insufficient at this stage to create a genuine issue of material fact. Additionally, Defendants in their official capacity are agents of a single entity and, therefore, cannot conspire among themselves. See, Grose v. Procter & Gamble Paper Products, 866 A.2d 437, 441 (Pa. Super. 2005)(agents of a single entity cannot conspire among themselves). Consequently, I find Defendants are entitled to immunity. Therefore, summary judgment in favor of Defendants as to Counts Four, Five, and Six is warranted.

C. DEFENDANTS FISHER, PAPPERT, AND MINAHAN, AND PLAINTIFF'S PSYCHOLOGICAL EVALUATION IN 2003

As to the remaining claims (Whistleblower Law and First Amendment retaliation), Defendants argue that Defendants Fisher, Pappert, and Minahan should be dismissed from the case because nothing any of these Defendants did during the relevant time period constitutes a violation of her rights. (Docket No. 40, pp. 5-6). To reiterate, there can be no Whistleblower claims prior to April 1, 2005 and no First Amendment claims prior to August 28, 2003. See, Docket No. 18. Defendant Fisher was the Attorney General ("AG") from January 21, 1997, until December 15, 2003. Defendant Pappert assumed the duties of the AG upon Fisher's resignation and was sworn in as AG on February 2, 2004. Before serving as AG, Pappert was the First Deputy AG during Fisher's tenure as AG. Defendant Minahan served as Executive Deputy AG of the Western Regional Office of the OAG from February 13, 1997 until his retirement on February 11, 2005. Defendants ...


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