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Herman v. County of Carbon

May 6, 2009

MARY ALICE HERMAN, PLAINTIFF
v.
COUNTY OF CARBON, ROBERTA BREWSTER, COURT ADMINISTRATOR, WILLIAM O. GUREK, COUNTY COMMISSIONER, WAYNE NOTHSTEIN, COUNTY COMMISSIONER, AND CHARLES E. GETZ, COUNTY COMMISSIONER, DEFENDANTS



The opinion of the court was delivered by: Judge James M. Munley United States District Court

MEMORANDUM

(Judge Munley)

Before the court are defendants' motions for summary judgment. Having been fully briefed, the matters are ripe for disposition.

Background*fn1

Plaintiff Mary Herman ("Plaintiff") was the Jury Clerk for Defendant Carbon County, Pennsylvania, and was employed by the County for eighteen years. The Jury Clerk position was a full-time position. Plaintiff was employed by the Carbon County Jury Selection Commission. This Commission was comprised of three Jury Commissioners; Brenda Ellis ("Ellis"), William Poluka ("Poluka"), and President Judge Richard Webb ("Judge Webb"). During an October 27, 2003 Jury Selection Commission meeting, Judge Webb proposed that the Commission abolish the Jury Clerk position. Plaintiff would serve in a newly created position, as a Jury Selection Commission Clerk. This position was limited to ten and one half hours per week and received ten dollars per hour. During this meeting, Poluka and Ellis voted against the proposed change. Despite the majority vote of the Jury Selection Commission, Judge Webb advanced a recommendation to the Carbon County Salary Board that Plaintiff's position be terminated and that she be placed in the newly created parttime position.

On December 12, 2003, Plaintiff sent a letter to Defendant County Commissioners, requesting that they decline to implement Judge Webb's proposed changes. Plaintiff also openly supported Poluka and Ellis when they spoke with the media regarding issues before the Jury Selection Commission. The Jury Commissioners also filed a complaint against Judge Webb with the Judicial Conduct Board, and plaintiff contends she "supported" this complaint. On January 5, 2004, acting in accord with the members of the Carbon County Salary Board, Defendants County Commissioner William O'Gurek, County Commissioner Wayne Nothstein, and County Commissioner Charles Getz voted in favor of implementing Judge Webb's proposed changes. Plaintiff was specifically informed by a Carbon County official that her job was changed in retaliation for Ellis' and Poluka's actions.

According to the plaintiff, a significant portion of Plaintiff's former job duties were transferred to a woman who is substantially younger than the Plaintiff.

Plaintiff filed an amended complaint on May 28, 2004, asserting four causes of action. First, Plaintiff raises a claim pursuant to 42 U.S.C. § 1983 ("section 1983") arguing that Defendants retaliated against her for her speech in violation of the First Amendment of the United States Constitution. Second, Plaintiff contends that defendants violated her Fourteenth Amendment Due Process Rights by terminating her employment for an improper purpose and with improper procedures. Third, Plaintiff avers that the defendants violated the Pennsylvania Whistleblower Law, 43 PA. CONS. STAT. §§ 1421-1428 by terminating her in retaliation for her support of Poluka and Ellis, and in retaliation for her letter to the Commissioners. Fourth and finally, Plaintiff argues that the defendants violated the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634 by reducing her hours because of her age.

Defendants filed a motion to dismiss. After the parties briefed the issue, this court issued a memorandum and order granting the motion to dismiss in part and denying it in part. (See Doc. 28). Defendant Brewster appealed the court's decision to the Third Circuit Court of Appeals, arguing that plaintiff had failed to state a claim for First Amendment retaliation and that she was entitled to qualified immunity. On September 25, 2007, the Third Circuit issued its opinion on this appeal (Doc. 34-2). The Court of Appeals found that this court had properly determined that Defendant Brewster was not entitled to qualified immunity on plaintiff's First Amendment retaliation claim, but that plaintiff had not properly stated the basis for the alleged retaliation. Plaintiff, the court pointed out, had alleged that "she openly and publicly supported the Jury Commissioners' statements to the media." (Id. at 5). She did not, however, "allege when these open and public expressions took place" or their "content." (Id.). Though plaintiff's complaint was insufficient, the court concluded that "[i]t may be possible that Herman can state a valid claim and she should be granted leave to amend." (Id.). Accordingly, the Third Circuit Court remanded the case to this court with instructions to allow plaintiff to re-plead her claim to describe the statements she made to the media. (Id. at 6).

Plaintiff filed this second amended complaint on November 8, 2007. (See Second Amended Complaint (Doc. 36) (hereinafter "Complt.")). The complaint repeats the allegations of plaintiff's amended complaint, but includes more detail about the content and context of plaintiff's public statements. Plaintiff alleges that she exercised her First Amendment right to free speech by "openly supporting Commissioners Poluka and Ellis who spoke with the media regarding some of the issues before the Jury Selection Commission." (Second Amend. Complt. at ¶ 28). According to the complaint, plaintiff's expression including being pictured in a newspaper photograph "with the Jury Commissioners in the cramped office space which was given to them after they complained about the inaccessibility of their previous office for handicapped individuals." (Id. at ¶ 29). Captions to newspaper that included such pictures stated that "'they are complaining.'" (Id. at ¶ 30). The complaint raised four causes of action. Claim I contends that all of the defendants violated plaintiff's First Amendment rights by retaliating against her for speaking on a matter of public concern. Claim II contends that all of the defendants violated plaintiff's right to due process before terminating her. Claim III raises a cause of action against all defendants for violating plaintiff's rights under the Pennsylvania Whistleblower Statue, 42 P.S. §§ 1421 et seq. Claim IV accuses the County of discriminating against her on the basis of her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq.

After plaintiff filed this second amended complaint, Defendant Brewster filed a motion for judgment on the pleadings. (Doc. 40). The court denied that motion on June 11, 2008 (Doc. 53). When the parties completed discovery in the case, the defendants filed motions for summary judgment. (Docs. 61-62). They also filed briefs in support of those motions. (Docs. 63, 65). Plaintiff did not file a brief in opposition to the motions, despite an order by the court (Doc. 66) on January 30, 2009 that she do so. Because the plaintiff had failed to file a brief in opposition to the motion, the court followed the rule in the Third Circuit that "before granting summary judgment . . . [the court] must first determine whether summary judgment is appropriate--that is, whether the moving party has shown itself to be entitled to judgment as a matter of law." Anchorage Assocs. v. V.I. Bd. Of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). In making that determination, the court accepts "'as true all material facts set forth by the moving party with appropriate record support.'" Id. If the burden of proof on a relevant issue lies with the moving party, "this means that the district court must determine that the facts specified in or in connection with the motion entitle the moving party to judgment as a matter of law." Id. If the burden of proof lies with the non-moving party, "the district court must determine that the deficiencies in the opponent's evidence designated in or in connection with the motion entitle the moving party to judgment as a matter of law." Id. The court found that the defendants were all entitled to summary judgment based on this standard. (See Doc. 67).

After the court filed this opinion, the plaintiff filed a motion for reconsideration, relating that failure to respond to the motions for summary judgment had not been intentional, but the result of counsel's staffing problems and a family emergency. (See Doc. 68). The court granted the motion for reconsideration, allowing the plaintiff to file a brief in opposition to the motion. (See Doc. 71). The court also ordered the plaintiff to file a statement of facts pursuant to Local Rule 56.1. (Id.). The court docketed the plaintiff's brief in opposition (See Doc. 70). Plaintiff, as ordered, filed a statement of facts. (See Doc. 72). This statement of facts, however, failed to observe the dictates of the Local Rules, because it did not "[respond] to the numbered paragraphs set forth in the [moving party's] statement, as to which it is contended that there exists a genuine issue to be tried." L.R. 56.1. The plaintiff's statement also failed to "include references to the parts of the record that support the statements." Id. Indeed, the purported "statement of facts" simply repeats, nearly verbatim, the allegations in plaintiff's second amended complaint, with no citations to the record. Defendants then filed reply briefs, bringing the case to its present posture.

Jurisdiction

As this case is brought pursuant to 42 U.S.C. § 1983 and the Age Discrimination in Employment Act, 29 U.S.C. § 623, we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have ...


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