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Conard v. Pennsylvania State Police

February 25, 2009

KELLY CONARD PLAINTIFF
v.
PENNSYLVANIA STATE POLICE, DENNIS HILE, JOSEPH TRIPP DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Currently before the Court is Plaintiff Kelly Conard's claim that the Pennsylvania State Police Department's decision not to hire her was in violation of her equal protection rights and in retaliation for past protected speech. Plaintiff contends that the decision was based on the recommendation of two former supervisors, Defendants Dennis Hile and Joseph Tripp, who she claims retaliated against her for past conduct. Currently before the Court is Sergeant Hile and Corporal Tripp's Motion for Summary Judgment. (Dkt. 44.)*fn1 For the reasons that follow, Defendants' Motion will be granted.

I. UNDISPUTED FACTS

Plaintiff was employed as a Police Communications Operator ("PCO") with the Pennsylvania State Police ("PSP") from 1985 until November 2002, when she voluntarily retired to join her husband who was serving in the military in Texas. (Defendants' Statement of Undisputed Material Facts ("DSUMF"), Dkt. 44-3, at ¶¶ 1, 3.) A PCO is primarily responsible for answering phone calls regarding police services and dispatching messages to state troopers. (Id. at ¶ 2.) These functions are vital to the operation of each PSP station. (Id.)

During the course of her employment with the PSP, there was a period of time in which Plaintiff reported to Corporal Joseph Tripp and Sergeant Dennis Hile. Plaintiff asserts that the only contact she had with Corporal Tripp was when she worked the day shift, but that he would single her out and treat her differently than other PCOs. (Conard Declaration, Dkt. 55, at ¶ 3.) Plaintiff alleges that she was reprimanded for not properly identifying herself during a busy period, while other PCOs were not; that Corporal Tripp refused to offer her assistance with paperwork; that he criticized what she wore to work; that he would not approve a personal leave request; and that he placed Plaintiff on a "sick leave restriction." (Id. at ¶¶ 4-7.) Plaintiff alleges she brought these facts to Lieutenant Ken Hill's attention, asserting that Corporal Tripp was "picking" on her, to which Lieutenant Hill responded, "just do what Tripp says." (Id. at ¶ 8.)

Sergeant Hile, Plaintiff alleges, was involved in her placement on "sick leave restriction" and treated Plaintiff unfairly as a result of her reporting a shooting incident to Sergeant Hile's supervisor. (Id. at ¶ 7-9.) Plaintiff alleges that one evening when Sergeant Hile was the Officer of the Day, she called him requesting backup for troopers who were involved in a shooting incident; Sergeant Hile apparently refused to take immediate action, and as a result of his refusal, she broke the chain of command and called Lieutenant Witherite, who promptly responded. (Id. at ¶ 9.) Other than the incidents described, Plaintiff reports little to no interaction between herself and Corporal Tripp or Sergeant Hile.

After resigning from her position as a PCO, Plaintiff was employed by American Medical Response in Texas as an emergency dispatcher. (Id. at ¶ 20.) She held this position for less than three months, leaving due to stress. (Id.) In August 2004, while still in Texas, Plaintiff contacted Dianna Davis of the PSP and notified her that she wanted to come back to work for the PSP. (Id. at ¶ 4; Plaintiff's Statement of Undisputed Material Facts ("PSUMF"), Dkt. 50, at ¶ 4.) Plaintiff completed the necessary paperwork and in November 2004, applied for a position as a PCO at the Harrisburg Centralized Dispatch Center. (DSUMF, Dkt. 44-3, at ¶ 4.) The selection process for the PCO position consisted of an interview and a background investigation, both of which required satisfactory results in order to be selected for the position. (Id. at ¶¶ 5-6.)

Plaintiff interviewed for the position on January 4, 2005. (PSUMF, Dkt. 50, at ¶ 4.) "Plaintiff was told by Bob Scott that she aced the interview and just needed to get the formalities out of the way." (Id.) She also spoke to Sergeant Lambert, who advised her that training was to begin in March, and Dianna Davis, who advised that starting pay would be around $20.83 an hour. (Id.)

Plaintiff, in fact, had not been selected for the position based on a background investigation conducted by Trooper Elling. (DSUMF, Dkt. 44-3, at ¶¶ 7 and 9; PSUMF, Dkt. 50, at ¶ 4.) During the course of the investigation, Elling spoke to Plaintiff's former supervisors, Sergeant Hile and Corporal Tripp, and conducted a credit check. Sergeant Hile and Corporal Tripp indicated that Plaintiff had abused sick leave during her previous employment with the PSP and had been place on leave restriction. (DSUMF, Dkt. 44-3, at ¶ 11.) Plaintiff's credit history revealed financial problems. Plaintiff attributed these problems to her divorce; however, of her fourteen accounts, ten were opened after her divorce. (PSUMF, Dkt. 50, at ¶ 16, DSUMF, Dkt. 44-3, at ¶ 18.) The PSP view credit history as an indicator of an applicant's acceptance of responsibility and reliability, which are essential for the PCO position. (Bonney Declaration, Dkt. 46-2, at ¶ 11.) As a result of Trooper Elling's investigation, Plaintiff was not recommended for employment and was informed by letter in February 2005 of this decision. (DSUMF, Dkt. 44-3, at ¶ 23.)

On November 5, 2005, Plaintiff filed a charge of gender discrimination with the EEOC and the Pennsylvania Human Relations Commission. (EEOC Charge, Dkt. 46-5.) On July 24, 2006, she filed the current action against Defendants PSP, Corporal Tripp, and Sergeant Hile, alleging, in part, violation of her equal protection rights under 42 U.S.C. § 1983 and First Amendment retaliation by Sergeant Hile and Corporal Tripp. Sergeant Hile and Corporal Tripp filed the current Motion for Summary Judgment. (Dkt. 44.) The Motion has been fully briefed and oral argument was held on January 15, 2009.*fn2

II. DISCUSSION

A. Standard of Review

Summary judgment should be granted 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 . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 197 (3d Cir. 1994). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 257. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment if there was ...


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