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Shingara v. Waugh

April 9, 2010


The opinion of the court was delivered by: Judge Conner


Plaintiff John T. Shingara ("Shingara"), a former 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. This is the third federal civil rights lawsuit initiated by Shingara against the PSP, and the allegations levied in the instant complaint build upon those set forth in previous litigation. In his first lawsuit, Shingara claimed that several PSP employees conspired to transfer him to another department division and to subject him to other retaliatory employment actions because he offered testimony about an alleged malfunction of PSP radar equipment. See Shingara v. Skiles ("Shingara I"), No. 04-0621, 2007 WL 210800, at *1-4 (M.D. Pa. Jan. 24, 2007). The court granted defendants' motion for summary judgment after concluding that Shingara failed to set forth a prima facie case of First Amendment retaliation. In his second lawsuit, Shingara alleged that several PSP employees retaliated against him for filing Shingara I. See Shingara v. Miller ("Shingara II"), Civ. A. No. 1:05-CV-1807, 2007 WL 570080 (M.D. Pa. Feb. 15, 2007). The court again granted defendants summary judgment on Shingara's claims.

In the matter sub judice, Shingara contends that he was subjected to further retaliatory action because he pursued claims in Shingara I and Shingara II. The defendants are Major Wesley Waugh*fn1 ("Waugh"), director of PSP's Bureau of Technology Services; Rose Polek ("Polek"), director of PSP's Bureau of Human Resources; Barbara Christie ("Christie"), PSP's chief counsel; Thomas Jakubiak ("Jakubiak"), an attorney under Christie's supervision; John Spanos ("Spanos"), director of customer support and interoperability for the state Office of Administration; Charles Brennan ("Brennan"), deputy secretary of the Office of Public Radio Services; and Adam Kisthardt ("Kisthardt"), a captain with PSP assigned to the Bureau of Technology Services, Harrisburg office (collectively, "defendants"). Presently before the court is defendants' motion for summary judgment. (Doc. 31.) For the reasons that follow, the motion will be granted.

I. Statement of Facts*fn2

The pertinent facts and circumstances underlying this suit are largely not in dispute. (See generally Docs. 34, 42.) From 1992 to 2004, Shingara worked under an individual named Kathy Skiles*fn3 ("Skiles") in the Technical Support Division ("TSD") of the PSP. In 2004, Shingara was transferred to the Strategic Development Division ("SDD") after an internal PSP investigation revealed that he had drafted an anonymous letter criticizing Skiles' management style. (See Doc. 34 ¶ 12; Doc. 34, Ex. C at 12; Doc. 42 ¶ 12); Shingara I, 2007 WL 210800, at *1, 3. At some point during the next two years, Shingara was transferred again, this time to the Consolidated Dispatch Center ("CDC"). (Doc. 34 ¶ 12; Doc. 42 ¶ 12.) In 2006, Shingara initiated an action with the state Civil Service Commission, complaining that his salary was inadequate and that he consistently received work assignments of poor quality.*fn4 (Doc. 34 ¶ 13; Doc. 42 ¶ 13.) In an attempt to address Shingara's concerns, Waugh requested that Keith Keister ("Keister"), supervisor of the CDC, provide Shingara with a first-rate assignment. (Doc. 34 ¶ 14; Doc. 42 ¶ 14.) Keister was unable to fulfill Waugh's request, for he had no available assignments to delegate. (Doc. 34 ¶ 14; Doc. 42 ¶ 14.)

On February 12, 2007, several PSP officials convened a meeting to discuss the possibility of transferring Shingara or altering his job description in order to remedy his apparent displeasure with his current work assignment. (Doc. 34 ¶ 15; Doc. 42 ¶ 15; Doc. 42, Ex. 3 at 6.) Among those present were Waugh, Jakubiak, Keister, and Stanley Burkholder, a classification specialist from the Office of Personnel.*fn5 (Doc. 34 ¶¶ 16, 19; Doc. 42 ¶¶ 16, 19.) Jakubiak advised the other participants that Shingara could not legally be transferred to another PSP department absent "good solid reasons, because . . . he's civil service and covered and civil service has rules." (Doc. 34 ¶ 23; Doc. 42 ¶ 23.) Waugh insisted that Shingara not be transferred back to TDD under Skiles. (Doc. 34 ¶¶ 22, 28; Doc. 42 ¶¶ 22, 28.) It is unclear whether any resolution was reached by meeting's end.

In late February or early March 2007, Kisthardt approached Waugh and requested additional assistance with a radio project that the Bureau of Technology was undertaking in conjunction with the Governor's Office of Administration. (Doc. 34 ¶¶ 27, 31; Doc. 42 ¶¶ 27, 31.) Waugh assigned Shingara to the project, and Shingara commenced his new duties in mid-March 2007. (Doc. 34 ¶ 29; Doc. 42 ¶ 29.) Shingara admits that the new assignment was within his area of expertise, and that he was "happy and skeptical" when he learned of the development. (See Doc. 34 ¶¶ 33-34; Doc. 42 ¶¶ 33-34.)

On March 21, 2007, an individual named Greg Moyer ("Moyer") observed Shingara speaking with an office receptionist, Amy Roberts ("Roberts"). Moyer claims that he overheard Shingara ask Roberts whether she "would like to see a picture of my organ?"*fn6 (Doc. 34 ¶ 42; Doc. 42 ¶ 42.) Moyer presumed this comment was sexual in nature. (See Doc. 34, Ex. H.) Shingara also purportedly showed Moyer and another co-worker, Mark Wrightstone, multiple photographs of nude females. (Id.) Moyer relayed these observations to Theresa Nelson ("Nelson"), manager of transition in the Office of Administration, who thereafter relayed the details to Spanos. (See Doc. 34 ¶ 46; Doc. 34, Ex. G at 22-25; Doc. 42 ¶ 46.) Spanos was Roberts' supervisor. (Doc. 34 ¶¶ 47-48; Doc. 42 ¶¶ 47-48.)

Word of Moyer's allegations also reached Brennan, one of the top employees in the Office of Administration. (Doc. 34 ¶ 49.) Brennan then met with Roberts to inquire into the matter, and Roberts explained that Shingara was literally referring to a musical instrument when he mentioned his "organ." According to Roberts, Shingara had then produced a photograph of the musical instrument. (Doc. 34 ¶ 52; Doc. 42 ¶ 52.) Roberts further explained that Shingara intended no sexual innuendo, and she assured Brennan that she was not offended by the conversation. (Doc. 34 ¶ 52; Doc. 42 ¶ 52.) Shingara's immediate supervisor on the radio project, Kisthardt, also learned of the alleged incident. Kisthardt requested that Spanos speak with Roberts, for Kisthardt had no supervisory authority over Roberts. (Doc. 34 ¶ 54; Doc. 42 ¶ 54.) Spanos interviewed Roberts, and Roberts confirmed what she had already relayed to Brennan. (Doc. 34 ¶¶ 55-56; Doc. 42 ¶¶ 55-56.) In early April 2007, the PSP informed Brennan that it was initiating an investigation into Shingara's alleged behavior; as a result, the Office of Administration terminated its inquiry. (See Doc. 34 ¶ 57; Doc. 42 ¶ 57.)

On April 4, 2007, Kisthardt summoned Shingara to his office and stated that a sexual harassment charge had been filed against him. (Doc. 34 ¶ 63; Doc. 42 ¶ 63.) Kisthardt explained that the charge derived from Shingara's comments to Roberts regarding his "big organ." (Doc. 34 ¶ 64; Doc. 42 ¶ 64.) Shingara described his reaction to this information as follows:

What had happened, and I explained to him, was Amy [Roberts] was walking around. I first found out that she was-well, I knew that she was Lieutenant Roberts, who's a friend of mine's [sic], daughter. Okay. And we were talking about our cats. And I have cats, and she has cats. So she was showing me all these pictures of her cats, okay, just doing this and doing this. And she said, do you have any of yours? I said, yeah. . . . I took my computer. Now, on my computer under pictures, under animals, I have Spud, Chunk, Fig-Figaro's my cat, black cat, just died in December. Okay. We're going through the pictures. One of the things I have at my house-and I've wanted all my life-is a Hammond B3 Organ. . . . The cat wouldn't let me play the organ.

Whenever I turned it on, Fig would sit on the keys. He would hit the keys. I probably have 50 or 60 pictures of Fig Organ. In fact, they're labeled Fig Organ One, Fig Organ Two, Fig Organ Three, Fig Organ 19. . . . So she said, what's Fig Organ? I said, oh, that's my Fig Organ. Okay. That's Fig and the organ. . . . And I said, it wasn't big organ. It was Fig for Figaro. And the organ was a Hammond B3. I said, go ask Amy. (Doc. 34, Ex. C at 27-29.) After Shingara provided his version of events, Kisthardt instructed him to return to his desk at SDD until an investigation was completed by the PSP. (Doc. 34 ¶ 67; Doc. 42 ¶ 67.)

During his investigation, Kisthardt conducted separate interviews of Moyer, Roberts, and Shingara. (Doc. 34 ¶¶ 73, 78-79; Doc. 34, Ex. H; Doc. 42 ¶¶ 73, 78-79.) Both Moyer and Roberts repeated the narratives they had previously disclosed, and each signed a witness statement under oath. (See Doc. 34, Ex. H.) Shingara also repeated his version of events, but abruptly terminated the interview when Kisthardt began to question him "about the pictures of young girls." (Doc. 34 ¶ 81; Doc. 42 ¶ 81.) Shingara took a leave of absence from the PSP the day after he was interviewed by Kisthardt in April 2007. (Doc. 34 ¶ 82; Doc. 42 ¶ 82.) He refused to be re-interviewed until July 2007. (See Doc. 34, Ex. H.)

Kisthardt's investigation continued until shortly after Shingara was re-interviewed in July 2007. (See Doc. 34, Ex. H.) When the inquiry was complete, Kisthardt forwarded a report to Lieutenant Martin Henry ("Henry"), director of the Equal Employment Opportunity Office for the PSP. (Doc. 34 ¶ 84; Doc. 42 ¶ 84.) Kisthardt's report did not make a recommendation with respect to disciplinary action. (Doc. 34 ¶ 84; Doc. 42 ¶ 84.) After reviewing Kisthardt's report, however, Henry concluded that Shingara violated PSP rules of employee conduct and PSP sexual harassment policies.*fn7 (See Doc. 34, Ex. I.) Henry's report is dated July 30, 2007. (Id.) Approximately nine months later, Shingara ...

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