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Fischer v. Transue

August 22, 2008

SANDRA L. FISCHER PLAINTIFF
v.
CYNTHIA TRANSUE, SUSAN BELL, MARK SCHAU, MARY E. MCDANIEL, AND JOSEPH WOLINSKY, DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

This is a civil rights action filed by Sandra L. Fischer ("Fischer"), an employee of the Pennsylvania State Police ("State Police"). Fischer alleges that four State Police employees*fn1 retaliated against her for exercising her First Amendment right to speak out on matters of public concern and violated her right to privacy pursuant to the Fourth Amendment. Presently before the court are defendants' motions for summary judgment (Docs. 32, 33, 34, 35), in which defendants contend that Fischer has failed to proffer sufficient evidence to support her claims and that defendants' actions are shielded by qualified immunity. For the reasons that follow, the motions will be granted.

I. Statement of Facts*fn2

Fischer became a State Police trooper in 1981. (Doc. 73-3 at 11.) In January of 1999, she voluntarily transferred to the Mercer crime unit under the supervision of defendant Sergeant Joseph Wolinsky ("Wolinsky"). (Doc. 56 ¶ 14; Doc. 73 ¶ 14.) Several retaliatory incidents allegedly ensued, and they are outlined below.

A. Fischer's Alleged Mistreatment and Resultant Complaints

Fischer testified that when she applied for the position, Wolinsky stated that he preferred to hire a male trooper and asked that Fischer's application be declined. (Doc. 73-3 at 27-28.) After her transfer, Fischer began to notice that Wolinsky treated her differently than he treated the male members of the crime unit. For example, Fischer was subjected to regular inquiries from Wolinsky about her purpose for leaving the police station and was not kept abreast of case developments or training opportunities. (Id. at 34, 136-40.) Wolinsky also allegedly made offensive comments about Fischer, including referring to her as "goddamn stupid" and "a fat pig in uniform." (Id. at 57-58, 81.) In addition, every officer that subsequently transferred into the Mercer crime unit was male. (Id. at 61.)

As supervisor of the Mercer crime unit, Wolinsky was responsible for compiling monthly arrest statistics for all of the officers in the unit. Fischer alleges that, in the last several months of 2002, Wolinsky credited her with fewer arrests than she actually effectuated. (Doc. 56 ¶¶ 1-2; Doc. 73 ¶¶ 1-2.) Wolinsky testified that this discrepancy was attributable to his standard reporting procedures. Wolinsky explained that he does not include an arrest in monthly statistics until he receives a written report from the arresting officer. (Doc. 56 ¶¶ 3-4, 8; Doc. 73 ¶¶ 3-4, 8.)

In December of 2002, supervisors in the Mercer patrol unit allegedly announced during a meeting that Fischer was responsible for every arrest that the crime unit had made in the previous three-month period and that without Fischer "there would be no crime unit." (Doc. 56 ¶ 11; Doc. 73 ¶ 11.) These remarks allegedly caused Wolinsky to become "very upset" with Fischer despite the fact that she "had absolutely nothing to do with encouraging, informing, or delivering the patrol supervisors['] remarks." (Doc. 56 ¶ 12; Doc. 73 ¶ 12.)

In May of 2003, Fischer verbally complained to defendant Lieutenant Mark Schau ("Schau") about Wolinsky's reporting of her arrest statistics. (Doc. 56 ¶ 10; Doc. 73 ¶ 10.) After Fischer's complaint to Schau, she alleges that she began to receive an increased number of correction notices regarding arrest reports that she submitted to Wolinsky.*fn3 (Doc. 56 ¶ 13; Doc. 73 ¶ 13.) Wolinsky testified that he had been dissatisfied with the quality of Fischer's reports since she began working in the Mercer crime unit and that he had called various deficiencies to Fischer's attention. (Doc. 56 ¶¶ 15-17; Doc. 73 ¶¶ 15-17.) Wolinsky also testified that he reviewed Fischer's reports in the same manner and with the same expectations that he applied to the reports of all of the troopers he supervised and that he would have issued the correction notices even if Fischer had not complained to Schau. (Doc. 56 ¶¶ 22-23; Doc. 73 ¶¶ 22-23.) On September 19, 2003, Wolinsky conducted Fischer's semi-annual progress review and noted that there were continuing problems with her reports. (Doc. 56 ¶¶ 28-29; Doc. 73 ¶¶ 28-29.)

On October 14, 2003, Fischer filed an internal Equal Employment Opportunity ("EEO") complaint about Wolinsky. (Doc. 49 ¶ 1; Doc. 75 ¶ 1.) Before filing the complaint, Fischer informed her commanding officer, defendant Captain Susan Bell ("Bell"), of her intent to do so. (Doc. 59 ¶ 12; Doc. 74 ¶ 12.) Fischer alleges that Bell "became extremely upset and began raising a litany of issues implying that [Fischer] had acted improperly in the past, even accusing her of touching the Butler County [District Attorney] on the behind while making an inappropriate comment." (Doc. 59 ¶ 13; Doc. 74 ¶ 13.) Fischer alleges that Bell's comments about the incident with the Butler County District Attorney were "incorrect and unfounded." (Doc. 59 ¶ 14; Doc. 74 ¶ 14.) After filing the complaint, Fischer says the number of correction notices she received from Wolinsky increased even more. (Doc. 73-3 at 197.) Wolinsky again denies any correlation between Fischer's complaint and the number of correction notices he issued. (Doc. 56 ¶ 26; Doc. 73 ¶ 26.)

B. Internal Investigations

Subsequent to the filing of her EEO complaint, Fischer was named the subject of three internal State Police investigations. The first of these investigations stemmed from Bell's allegation that, on October 2, 2003, Fischer drove her State Police vehicle into wet cement. Bell instituted the investigation on November 5, 2003, after observing photographs of the incident and learning that Fischer had not submitted any reports regarding it.*fn4 (Doc. 59 ¶¶ 16-20; Doc. 74 ¶¶ 16-20.) Fischer initially received a three-day suspension for the incident. The suspension was reduced to one day after Fischer filed a union grievance. (Doc. 59 ¶¶ 26-27; Doc. 74 ¶¶ 26-27.) Bell testified that her supervisor ordered her to conduct the investigation and that Fischer's EEO complaint played no role in her decision to investigate. According to Bell, had she failed to investigate the wet cement incident, it would have constituted insubordination. (Doc. 59 ¶¶ 21-23; Doc. 74 ¶¶ 21-23.)

The second investigation concerned Fischer's alleged failure to activate the major case team per State Police protocol in response to a homicide that occurred on November 10, 2003.*fn5 (Doc. 59 ¶¶ 28-30; Doc. 74 ¶¶ 28-30.) Bell initiated the investigation on November 12, 2003 after receiving a report of the incident from Lieutenant Thomas Hill. (Doc. 59 ¶¶ 28, 31; Doc. 74 ¶¶ 28, 31.) Fischer ultimately received a written reprimand. (Doc. 59 ¶ 37; Doc. 74 ¶ 37.) Bell testified that Fischer's EEO complaint played no role in her decision to initiate the investigation. Fischer concedes that Bell was obliged to complete an investigation of the incident because it involved a violation of State Police regulations but maintains that she was an improper subject of the investigation. (Doc. 59 ¶¶ 32, 34-35; Doc. 74 ¶¶ 32, 34-35.)

The final investigation was prompted by a March 10, 2004 citizen complaint that questioned the propriety of Fischer's management of a criminal investigation and accused her of making negative comments about her fellow officers. (Doc. 59 ¶¶ 39, 41-42; Doc. 74 ¶¶ 39, 41-42.) Schau initiated an internal investigation regarding the complaint. (Doc. 59 ¶¶ 40, 43; Doc. 74 ¶¶ 40, 43.) Bell adjudicated the complaint in favor of Fischer. (Doc. 59 ¶¶ 48-50; Doc. 59 ¶¶ 48-50.)

C. Independent Psychiatric Examination

On November 12, 2003, Schau referred Fischer to the State Police member assistance program because he believed that Fischer's mental state was negatively affecting her work.*fn6 Fischer met with a peer contact from the member assistance program on the following day (Doc. 59 ¶¶ 53-56; Doc. 74 ¶¶ 53-56.) Schau testified that Fischer continued to become emotionally distraught at work and that he witnessed her crying on at least four occasions in January and February of 2004.*fn7 (Doc. 59 ¶¶ 57-59; Doc. 74 ¶¶ 57-59.) Schau submitted a memorandum regarding his observations to Bell. Two of Fischer's other supervisors submitted similar memoranda. Aside from these memoranda, Bell also received a series of supervisor's notations highlighting deficiencies in Fischer's work performance. Bell was also aware that Fischer had been reprimanded as a result of two internal investigations and that she had filed an EEO complaint against Wolinsky that was deemed unfounded.*fn8 (Doc. 59 ¶¶ 60-62, 66; Doc. 74 ¶¶ 60-62, 66.) Considering this combination of circumstances and the previous failure of the member assistance program to remedy the situation, Bell elected to refer Fischer for an independent psychiatric evaluation ("IPE"). (Doc. 59 ¶ 67; Doc. 74 ¶ 67.)

On April 16, 2004, Fischer was ordered by the State Police to attend an independent psychiatric evaluation ("IPE") to be conducted on April 22, 2004.*fn9 (Doc. 49 ¶ 2; Doc. 75 ¶ 2.) During the IPE, Fischer advised the doctor that she wished to audiotape the session. When the doctor refused, Fischer telephoned her attorney, who advised her that the doctor was required by law to permit her to have a witness present during the IPE. The doctor again refused this request and terminated the session. (Doc. 49 ¶¶ 3-6; Doc. 75 ¶¶ 3-6.)

On April 28, 2004, State Police Human Resources Director Linda Bonney issued a written request that State Police Chief Counsel Barbara Christie ("Christie") correspond with "J. Jarrett K. Whalen, 118 North Pitt Street, Mercer, Pennsylvania 16137, Trooper Fischer's attorney, regarding the Department's Fitness for Duty program and Trooper Fischer's requirement to submit to the IPE." (Doc. 49 ¶ 8; Doc. 75 ¶ 8.) Christie assigned to defendant Mary E. McDaniel ("McDaniel") the task of drafting and sending the requested correspondence, which she did on April 29, 2004.*fn10 (Doc. 49 ¶ 9; Doc. 75 ¶ 9.) On May 6, 2004, Attorney Whalen faxed a response to McDaniel indicating that his office had never represented Fischer. (Doc. 49 ¶ 10; Doc. 75 ¶ 10.)

Ultimately, Fischer's IPE was conducted on May 24, 2004. She was deemed fit for duty. (Doc. 49 ΒΆΒΆ ...


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