The opinion of the court was delivered by: Conti, District Judge
Pending before the court is a motion for summary judgment filed by defendants John K. Weinstein ("Weinstein") and Allegheny County, Pennsylvania ("Allegheny County," together with Weinstein, "defendants"). (Doc. No. 53.) A magistrate judge filed a report and recommendation advising the court to grant this motion for summary judgment, as well as a supplemental report and recommendation advising the court that the initial recommendation has not changed since the filing of the objections of Diane Miller ("Miller" or "plaintiff"). For the reasons that follow, summary judgment will be granted in favor of Weinstein and Allegheny County.
Plaintiff is a fifty-seven-year-old female who suffers from cerebral palsy, which is a chronic medical condition that impairs her ability to ambulate and speak. (Doc. No. 76 ¶¶ 1-2.) She has suffered from this condition since her childhood, and it has continued to worsen over time. (Id. ¶ 2.) She has used a walker in order to get around since undergoing back surgery a few years ago. (Id.)
Miller began working as a clerk for the Allegheny County Department of Personal Property in September 1970, shortly after graduating from high school. (Id. ¶ 3.) She worked as a general office clerk for the first twenty-five years of her employment. (Id. ¶ 4.) In 1996, Miller was transferred to the Allegheny County Treasurer's Office, where she also worked as a general office clerk. (Id.) Prior to the spring of 2005, she had never been formally disciplined by her employer. (Id. ¶ 7.)
The Treasurer's Office and the Personal Property Department merged in 1986. (Id. ¶ 8.) At that time, Jay Costa, Sr. ("Costa"), was the Allegheny County Treasurer. (Id.) Rose Brown ("Brown") served as Costa's secretary. (Id.) After the merger, Miller regularly purchased tickets to events to raise funds for Costa's campaigns. (Id. ¶ 10.) She completed these purchases by giving cash to Brown. (Id.) A few years later, Mary Alice McDonough ("McDonough") replaced Costa as the Allegheny County Treasurer. (Id. ¶ 11.) Brown initially served as McDonough's secretary. (Id.) Paula Guerra ("Guerra") eventually replaced Brown. (Id.) Miller purchased tickets to McDonough's fundraising events as well. (Id. ¶ 14.) On those occasions, she gave Guerra cash in exchange for the tickets. (Id.)
In 1999, Weinstein was elected Treasurer of Allegheny County. (Id. ¶ 16.) His campaign manager was Allegheny County Sheriff Peter R. DeFazio ("DeFazio"). (Id.) DeFazio was subsequently convicted of illegally coercing Sheriff's Department employees to contribute to his political campaigns. (Id.) On February 23, 2007, this court sentenced DeFazio to probation for a period of five years, to home detention for a period of six months, and a $5,000.00 fine. (United States v. DeFazio, No. 06-cr-405, (W.D. Pa.) (Doc. No. 15).)
Miller purchased tickets to some of Weinstein's fundraisers. (Doc. No. 76 ¶ 25.) Specifically, she made a $50.00 payment in 2003 for a fundraiser. (Id.) Other Treasurer's Office employees made contributions to Weinstein's campaigns. (Id. ¶ 29.) On August 5, 2004, the Friends of John Weinstein Campaign Committee held a fundraiser at the Heinz Regional History Center in Pittsburgh, Pennsylvania. (Id. ¶ 35.) Pennsylvania Governor Edward G. Rendell was an honored guest at this event. (Id.) Tickets for the event were priced at $250.00 each. (Id. ¶ 36.) Miller contends that she did not attend the event because she could not afford to buy a ticket. (Id. ¶ 37.) Weinstein disputes the assertion that she did not attend the event. He claims that Miller actually attended the Rendell event because he had given her a complimentary ticket. (Id.) Weinstein's Campaign Finance Report for 2004, which was submitted in January 2005, does not list any contributions made by Miller. (Id. ¶ 38.)
The period of time immediately preceding the end of March is the busiest time of the year at the Treasurer's Office. (Doc. No. 62 ¶ 1.) March 31 is the last day on which taxpayers can receive a discount for the early payment of their property taxes. (Id.) The Treasurer's Office prohibits its employees from taking vacation days during this period of time. (Id. ¶ 2.) On February 18, 2005, Weinstein sent a memorandum to all Treasurer's Office employees concerning vacation time. The memorandum stated as follows:
As we are about to enter the 2005 tax season, it seems that our office will once again be inundated with high volumes of problems, confusion, and taxpayers questions, etc.
In anticipation of another record-breaking season, and in conjunction with past practices and policy, NO VACATION request will be approved during the period of FEBRUARY 22, 2005 THRU APRIL 30, 2005. Supervisors are not authorized to approve days during this time period.
It is crucial to the efficiency of the Treasurer's Office that this vacation policy is strictly adhered to; and there will be Absolutely NO Exceptions.
Please be aware that this office will continue to monitor the sick day policy. It will not be acceptable to use sick time as a way of circumventing policy for vacation days off.
During this tax season it is important that all employees start working at 8:30 sharp, and end the work day at 4:30.
Thank you for your cooperation.
Good Friday fell on March 25, 2005. (Doc. No. 62 ¶ 3.) Good Friday is celebrated by Christians as the day on which Jesus Christ was crucified. Six Treasurer's Office employees, including Miller, did not work on that day. (Id.) Miller also missed work on Monday, March 28, 2005, and Tuesday, March 29, 2005. (Doc. No. 76 ¶ 54.) Guerra marked Miller's Good Friday absence as a "personal day" and her absences on the other two days as "sick days." (Id. ¶ 55.) Upon her return to work on Wednesday, March 30, 2005, Miller was asked to provide a medical excuse for her sick days. (Id. ¶ 56.) She provided a handwritten note from Dr. William Lamb, Jr., indicating that she had received an antibiotic for a sore throat and a sinus infection on March 28, 2005. (Pl.'s Ex. 1 at 5.) Karl Smith ("Smith"), who was the Office Manager, informed Miller that her absence on Good Friday had been unexcused, and that she would be docked a day's pay for not reporting to work. ( Doc. No. 76 ¶ 57.) A memorandum from Smith to Miller dated March 28, 2005, stated as follows:
By failing to report to work on Friday, March 25th, 2005, you are in violation of the Treasurer's Office vacation policy, as outlined in a memo to all employees dated February 18, 2005. As a result of this violation, you will not be paid for the day.
Be advised that any further unexcused absences during this critical time or in violation of office policy may result in additional disciplinary action. (Pl.'s Ex. 22 at 42.)*fn2 After receiving the memorandum, Miller asked Smith for permission to meet with Weinstein. (Doc. No. 76 ¶ 85.) Although Weinstein was made aware of Miller's desire for a meeting, he did not meet with her. (Id. ¶ 88.)
On April 1, 2005, Miller filed an official grievance concerning the Treasurer's Office's decision to dock her a day's pay for missing work on Good Friday. (Id. ¶ 89.) On the grievance form, she indicated that she had sought permission on January 4, 2005, to take Good Friday off as a "personal day," and that nobody had told her that she could not miss work on that day. (Pl.'s Ex. 57 at 4.) Miller apparently made another unsuccessful attempt to have a meeting with Weinstein. (Doc. No. 76 ¶ 91.) On April 5, 2005, Miller emailed the following message to Weinstein:
DEAR JOHN, I UNDERSTAND THAT I AM BEING DOCKED FOR GOOD FRIDAY. FIRST OF ALL IN OUR UNION CONTRACT, WHENEVER THEY TOOK GOOD FRIDAY AWAY FROM ALL OF US. THEY DID WRITE IN THE CONTRACT, THAT ANYONE WHO STILL WANTED TO HAVE GOOD FRIDAY OFF. WOULD HAVE TO USE A PERSONAL DAY. IN THE MEMO THAT YOU SENT AROUND, YOU DID SAY NO VACATION DAYS OR SICK DAY'S WOULD BE HONORED. BUT YOU DID NOT SAY ANYTHING ABOUT OUR PERSONAL DAY, AND I HAVE ALWAYS TAKEN A PERSONAL DAY EVERY YEAR ON GOOD FRIDAY. SINCE WE NO LONGER HAVE THAT DAY OFF. THERE HAVE BEEN SEVERAL PEOPLE OFF FOR VARIOUS REASON'S EVERY SINGLE WEEK SINCE JANUARY. WOULD YOU LIKE MY PASTOR'S TELEPHONE NUMBER? TO CALL HIM UP. GUESS WHAT JOHN TWO OF MY COUSIN'S ARE NOW ENGAGED TO BE MARRIED TO TWO DIFFERENT NEWS REPORTERS. PLUS JIM'S DAUGHTER ALSO WORKS FOR THE BUTLER NEWSPAPER, AND KNOWS A LOT OF NEWS PEOPLE FROM PITTSBURGH NOW. IT WOULD REALLY BE SOMETHING KNOWING 34 YEARS OF STUFF THAT I NOW KNOW. HAVING DIFFERENT NEWS PEOPLE MADE AWARE OF HOW SOME CERTAIN PEOPLE ARE TREATED, AND NOT OTHERS. SO HERE'S THE DEAL JOHN, GIVE ME BACK MY DAY WITH PAY AND I PROMISE TO KEEP MY MOUTH SHUT. BRING ME UP TO WHERE I SHOULD BE FOR 34 YEARS OF SERVICE. SINCE I NEVER EVER ABUSE MY TIME. AND I WILL START GIVING MONEY YEARLY TO YOU WEATHER IT'S A CAMPAIGN YEAR OR NOT. OH ONE LAST THING JOHN, TWO WEEKS AGO THEY CLOSED BOB'S OFFICE TO PAINT IT. AND I ASKED PAULA AND CHRISTIN TO ASK YOU IF I COULD PLEASE USE THEIR LADIES ROOM. JUST FOR TWO DAY'S. SINCE IN THE PAST I DID USE IT, AND I ALSO RECEIVED NO RESPONSE: THANK YOU FOR YOUR TIME! DIANE MILLER ( Pl.'s Ex. 60 at 14 (capitalization in original; underlining added).)
Because of her disability, Miller was permitted to leave work ten minutes early on most occasions. (Doc. No. 76 ¶ 119.) This accommodation was made so that she could avoid hazards resulting from the way in which other employees typically rushed out of the building at the end of the workday. (Id.) On Wednesday, April 6, 2005, Smith observed Miller leaving early. (Id. ¶ 121.) The next day, Smith presented Miller with a written reprimand which stated as follows:
Narrative: On Wednesday, April 6, 2005 at 4:07 p.m. I observed Diane Miller at the elevator with her coat.
Later I checked Diane's work station to see if she had returned.
At 4:25 p.m. her supervisor acknowledged that she had not returned and had not ask permission to leave early.
She had signed 4:30 on the sign out sheet.
The Treasurer's Office hours are 8:30 a.m. to 4:30 p.m.
It is important that all employees start working at 8:30 sharp and end the work day at 4:30.
Be advised that any further unexcused absences are in violation of office policy and may result in additional disciplinary action. (Pl.'s Ex. 61 at 16.) Shortly thereafter, Miller was disciplined for using profanity in the presence of her co-workers. (Doc. No. 76 ¶ 127.)
Miller's email of April 5, 2005, was referred to Cheryl L. Cindrich ("Cindrich"), who was the Treasurer's Office solicitor. On April 13, 2005, Cindrich authored the following memorandum to Miller:
On April 5, 2005, Treasurer Weinstein received a highly inappropriate e-mail correspondence from you that may be in violation of 18 Pa. C.S.A. § 4701, Bribery in official and political matters. A copy of the letter is attached. The Treasurer absolutely and categorically rejects any demands whatsoever made by you in the letter. Obviously under no circumstances would the Treasurer accept any proposals contained therein and he simply cannot be placed in the position that his actions could be construed as accepting a bribe or succumbing to extortion. Therefore, as a result of your actions, the Treasurer will have no alternative but to terminate you for cause.
(Pl.'s Ex. 75 at 22.) Miller's union representative was Mia Guinta ("Guinta"). Miller and Guinta met with Cindrich and Deputy Treasurer Thomas Bradley ("Bradley") on April 14, 2005. (Doc. No. 62 ¶ 11.) Miller was offered a chance to resign, thereby ensuring that she could collect her pension without incurring a penalty. (Id.) Weinstein was apparently willing to refrain from reporting Miller's actions to the authorities if she agreed to resign. After refusing to resign, Miller was immediately suspended. She was terminated on April 25, 2005. (Doc. No. 82 at 5.)
The Allegheny County District Attorney's Office, in consultation with the Treasurer's Office, charged Miller with violating Pennsylvania's Public Official and Employee Ethics Act ("Ethics Act"), 65 PA. CONS. STAT. § § 1101 et seq., rather than with committing the offense of bribery. (Doc. No. 55 at 23 n.12.)
On February 21, 2006, Miller commenced this action against both Weinstein and Allegheny County, alleging that they violated her rights under the Free Exercise, Free Speech and Petition Clauses of the First Amendment, which are applicable to state actors by virtue of the Due Process Clause of the Fourteenth Amendment. (Compl. ¶ 1.) On March 7, 2006, this case was referred to a magistrate judge in accordance with 28 U.S.C. § 636(b)(1). (Doc. No. 5.)
As proceedings in this action continued before the magistrate judge, the Commonwealth of Pennsylvania continued to pursue criminal charges against Miller. Charges were pursued on the basis of both Miller's email to Weinstein and comments that she allegedly made to Bradley during the April 14, 2005 meeting. The charge related to the email was dismissed before trial. (Pl.'s Ex. 80 at 19 ¶¶ 3-4.) On November 28, 2006, Miller was tried in the Pennsylvania Court of Common Pleas of Allegheny County for violating the Ethics Act by making her comments to Bradley. (Pl.'s Ex. 14 at 2.) The trial was conducted without a jury. (Id.) Bradley, who testified at the trial, described the alleged comments by Miller that formed the basis for the prosecution under the Ethics Act. Explaining the purpose and content of the meeting held on April 14, 2005, Bradley testified as follows:
A: The point of it was then to address the seriousness of the e-mail and to inform Ms. Miller that she was going to be indefinitely suspended and that the e-mail was going to be forwarded to the District Attorney's Office for final determination as to what should happen with it, with the situation.
Q: And was she, in fact, informed of that?
Q: What happened subsequent to you informing her that the matter was going to be referred to the District Attorney's Office?
A: Well, after that conversation, the union rep and our solicitor left the room to discuss options, and at that time Diane said she was very upset. She said to me, "I didn't mean for this to happen. If I could just get what I have coming to me, I will give John $400 every year."
Q: Did you respond to that?
A: Yes, I did. I said, Diane, that's why we're here. You shouldn't be saying things like that. You can't make those kind of offers. And she repeated it. She said it again. "I didn't mean for this to happen. Just give me what I have coming. I will give him $400 every year." At that time the solicitor came back in the office and the meeting broke up.
Q: Did you inform them what had just taken place?
A: Yes, I did. Well, I informed our solicitor.
Q: And what happened with the remainder of the meeting?
A: At that point Diane left the office. That was the end of the meeting.
Q: Had she been suspended at that point?
A: She was informed at that meeting at that point she was being suspended, yes.
Q: Subsequently, she did not report to the office?
A: Correct. As far as I know, yes.
Q: Okay. Now, are you aware then the case was referred to the District Attorney's Office?
A: Yes. (Pl.'s Ex. 14 at 6-7.)
Although Miller described this conversation in a slightly different manner, her trial testimony was somewhat consistent with Bradley's contention that Miller had mentioned something about contributing to Weinstein's campaigns. She explained that, after her absence on March 25, 2005, Smith had repeatedly harassed her. (Pl.'s Ex. 14 at 1.) This "harassment" allegedly caused Miller to believe that Weinstein was retaliating against her for failing to buy a $250.00 ticket to the August 5, 2004 fundraising event with Governor Rendell. (Id.) With respect to her conversation with Bradley on April 14, 2005, Miller testified as follows:
Q: Okay. What was said between you and he in regard to your e-mail?
A: Cheryl Cindrich and Mia Giunta left the room and I was really upset, and I said, "What did John want from me? Did he want me to buy two tickets? Four tickets?" And Tom never answered. He just sat there, and then they came back into the room, and then I was told to leave, told me I was complaining.
Q: Mr. Bradley was at the meetings. He's the Deputy Treasurer and he testified to that. But do you understand him to hold another position with ...