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Martsolf v. Brown

December 15, 2009

JAMES MARTSOLF, PLAINTIFF
v.
LT. COL. JOHN BROWN, MAJ. TERRY SEILHAMER, CPT. ROBERT LIZIK, CPT. SUSAN BELL, LT. PETER VOGEL, LT. DON CARNAHAN, LT. MICHAEL PATRICK, SGT. MAX MOHNEY, SGT. GARY SCHULER, CPL. STEPHEN KREMPASKY, TPR. JAMES SHELDONE, AND ARTHUR WEILAND, DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiff James Martsolf ("Martsolf"), an employee of the Pennsylvania State Police ("PSP"), brings this action pursuant to 42 U.S.C. § 1983, which imposes civil liability upon any individual who deprives another of a constitutionally-protected right under the color of state law. Martsolf alleges that defendants*fn1 retaliated against him for exercising his First Amendment rights.*fn2 Presently before the court are defendants' motions for summary judgment (Docs. 48, 49, 50). For the reasons that follow, the motions will be granted in part and denied in part.

I. Statement of Facts and Procedural History*fn3

This case originates with sexual harassment complaints*fn4 that Connie Lantz ("Lantz") filed with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") in May of 2005.*fn5 (Doc. 51 ¶¶ 155-56; Doc. 59 ¶¶ 155-56; see Doc. 55, Ex. K ¶ 25.) At the time, Lantz was plaintiff's wife (see Doc. 55, Ex. J at 9; Doc. 55, Ex. M ¶ 4), and she went by the name Connie Martsolf (See Doc. 55, Ex. K). Lantz and plaintiff both worked for PSP, albeit in different locations. (Doc. 51 ¶ 71; Doc. 59 ¶ 71; Doc. 51, Ex. J at 28, 31-32.) They claim that the defendants, current and former employees of PSP, retaliated against them as a result of Lantz's sexual harassment complaints. (Doc. 51 ¶ 161; Doc. 59 ¶ 161; see Doc. 1) They filed the instant suit together on September 26, 2005, (Doc. 1), but Lantz withdrew all her legal claims in April of 2006, (Doc. 51 ¶ 163; Doc. 59 ¶ 163; Doc. 9). Hence, the court will set forth only those facts relating to the alleged retaliation against Martsolf, the remaining plaintiff.

Plaintiff claims that he supported Lantz in her complaints and also voiced complaints himself. (See Doc. 35 ¶ 24.) He was interviewed, as part of the investigation that ensued from Lantz's EEOC/PHRC complaints, by PSP's Internal Affairs Division ("IAD"). (Doc. 51 ¶¶ 131, 136; Doc. 59 ¶¶ 131, 136.) Martsolf spoke to his interviewers about the events giving rise to Lantz's complaints, (Doc. 55, Ex. J at 58-59). Although plaintiff cannot recall whether he filed an EEOC complaint regarding the harassment of his wife, he did file an internal complaint on her behalf. (Doc. 51 ¶ 134; Doc. 59 ¶ 134.) Plaintiff complained to defendant Lizik about the inappropriate behavior of defendant Vogel, his wife's alleged harasser. (Doc. 51 ¶ 136; Doc. 59 ¶ 136.) To a "very limited" extent, plaintiff also discussed Lantz's complaints with other co-workers and friends. (Doc. 51 ¶ 150; Doc. 59 ¶ 150.) Finally, and most notably, plaintiff also "voiced" a complaint by filing the instant lawsuit. (See Doc. 1.)

Plaintiff alleges that he was subjected to retaliation as a result of his participation in the EEOC/PHRC complaints and the instant action. Specifically, plaintiff claims that defendant Lizik told him that supporting Lantz had jeopardized his career. (Id. ¶ 28.) Plaintiff also asserts that defendants "manipulated the IAD process" and conducted the IAD investigation in a retaliatory manner. (Doc. 35 at 2, ¶ 27.) In addition, plaintiff alleges that he was removed from the Special Emergency Response Team ("SERT"). (Id. ¶ 29; Doc. 55, Ex. J at 15), that he was denied a promotion for which he was purportedly qualified, (Doc. 35 ¶ 35), that he was stripped of his supervisory authority, (Id. ¶ 37), that he was transferred from the Operations Sergeant position he held to a position in the patrol section (see Doc. 61 at 3, 13; Doc. 55, Ex. J at 87-88), and that he was personally subjected to harassment, (Doc. 35 ¶ 38).

Plaintiff filed an amended complaint on July 18, 2006, (Doc. 14), and a second amended complaint on February 12, 2008, (Doc. 35). Defendants thereafter filed motions for summary judgment (Docs. 48, 49, 50) asserting that plaintiff cannot make out a claim of First Amendment retaliation. The parties have fully briefed the issues, which are now ripe for disposition.

II. Standard of Review

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact," and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

Plaintiff advances a claim pursuant to 42 U.S.C. § 1983.*fn6 Section 1983 provides for civil liability when official action causes a "deprivation of rights protected by the Constitution." Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). However, § 1983 is not an independent source of substantive rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Rather, "it provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp, 95 F.3d at 1204; see also Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992) (stating that § 1983 "does not provide a remedy for abuses that do not violate federal law"). In order to establish a § 1983 claim, a plaintiff must demonstrate, first, the deprivation of a constitutional right, and, second, that a "person acting under the color of state law" is responsible for the alleged deprivation. Kneipp, 95 F.3d at 1204 (internal citations omitted); Collins, 503 U.S. at 120.

In the pending matter, plaintiff complains that defendants retaliated against him for exercising his First Amendment rights. To make out a First Amendment retaliation claim, "plaintiffs must show (1) that they engaged in a protected activity, (2) that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action."*fn7 Lauren v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); see also Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006). Defendants can rebut plaintiff's claim by establishing that the action or decision alleged to be retaliatory would have occurred "even in the absence of the protected conduct." Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001); Springer v. Henry, 435 F.3d 268, 275 (3d Cir. 2006). Defendants contend that plaintiff has failed to show that he engaged in an activity protected by the First Amendment, or that any of the defendants were personally involved in retaliating against him, or that retaliatory acts occurred. The court will address these issues seriatim.

A. Failure to Establish a Protected Activity

According to plaintiff, the protected activities in which he engaged include supporting Lantz in her pursuit of her complaint, participating in her complaint, filing complaints himself, and contacting "a known civil rights attorney" who ultimately filed the instant action. (Doc. 61 at 10-12.) As a threshold matter, defendants claim that plaintiff's speech was a matter of private concern rather than citizen speech on a matter of public interest, and as such, it was not constitutionally protected. See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). In Garcetti, the Supreme Court held that, in order to determine whether a public employee's speech is constitutionally protected, one must ascertain "whether the employee spoke as a citizen on a matter of public concern." Id. If he did not, then he "has no First Amendment cause of action" arising from the speech.*fn8 Id. In his opposition brief, plaintiff vaguely states that his "initial involvement in these matters . . . clearly rises to the level of conduct protected under Title VII principles, and is actionable in a Section 1983 First Amendment retaliation claim," (Doc. 61 at 11), but he fails to delineate an example of protected speech with the requisite precision. Plaintiff appears to focus on the filing of the instant lawsuit and Lantz's administrative complaints as his actions qualifying as "protected activity," (see id. at 10-12, 14). To the extent that plaintiff has not abandoned the Garcetti speech claim, the court finds that plaintiff's speech falls squarely in the realm of private concerns. Indeed, ...


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