The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION RE: MOTIONS FOR SUMMARY JUDGMENT (DOCS. NOS. 93, 95)
Defendants Anthony M. DeLuca and Steven H. Stetler have filed separate motions for summary judgment on plaintiff Erin Vecchio‟s employment discrimination -- First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983. Plaintiff alleges that DeLuca and Stetler conspired to terminate her as punishment for testifying in a Pennsylvania grand jury investigation with regard to DeLuca.*fn1
The Amended Complaint alleges that Vecchio was the former Tax Account Collections Manager for the Pennsylvania Department of Revenue, which is responsible for administering the Commonwealth‟s tax laws, until her termination in August 2009. Amended Complaint, ¶ 3-4. At all relevant times, DeLuca was a member of the Pennsylvania House of Representatives, representing the 32nd Legislative District in Allegheny County, and Stetler was the Secretary of the Department of Revenue. Amended Complaint, ¶ 5-6.
In her briefs in opposition to the motions for summary judgment, plaintiff summarizes her theory and the evidence in support of her claims, presumably in the light most favorable to her, as follows:
Plaintiff . . . was employed by the Pennsylvania Department of Revenue from March 21, 2006 until her termination, effective August 28, 2009. On December 8, 2008, pursuant to a subpoena, Vecchio testified against . . . DeLuca in connection with a grand jury investigation against him. After testifying against DeLuca, Vecchio began to be subjected to criticism and harassment at work.
Both DeLuca and . . . Stetler were aware that Vecchio had testified in a grand jury investigation of DeLuca, particularly because the same was published in at least one newspaper article in March 2009. Stetler and DeLuca served together as State Representatives for sixteen of the twenty years they have known each other.
On August 14, 2009, Vecchio was advised of her termination of employment with the Department of Revenue. Several days after her termination, Vecchio received a phone call from Joseph Brimmeier, CEO of the Pennsylvania Turnpike Commission, who pointed to DeLuca as the catalyst for Stetler‟s action of terminating her. Stetler, who admits that he was ultimately responsible for selecting Vecchio for termination, cannot provide a reason why she was discharged.
The record facts show that DeLuca conspired with Stetler to violate Vecchio‟s First Amendment rights by terminating her employment in retaliation for her subpoenaed Grand Jury testimony against DeLuca.
Plaintiff‟s Briefs in Opposition to Summary Judgment (Doc. No. 101) at 4 and (Doc. No. 105) at 3.
Defendants concede, for purposes of summary judgment, that testifying before the grand jury is protected speech under the First Amendment, but argue that plaintiff has adduced no record evidence to support her factual assertion that DeLuca influenced Stetler to fire her. The Court agrees with defendants.
II. Summary Judgment Standards
Summary judgment is only proper when there is no genuine issue of material fact in the case and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)(2); Horn v. Thoratec Corp., 376 F.3d 163, 165 (3d Cir. 2004). In reviewing a motion for summary judgment, the role of the court is "not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). If so, summary judgment will not be granted.
The district court must view all of the facts in the light most favorable to the non-moving party, who is entitled to "every reasonable inference that can be drawn from the record," and if "there is a disagreement about the facts or the proper inferences to be drawn from them, a trial is required to resolve the conflicting versions of the parties." Reedy v. Evanson, --- F.3d ----, 2010 WL 2991378, *8 (3d Cir. 2010) (quoting Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 788 (3d Cir. 2000) and Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). A party cannot, however, defeat a motion for summary judgment by pointing to fragmentary inferences that could be massaged to support her position. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. First Amendment Retaliation Claims
A section 1983 retaliation claim predicated on the First Amendment must show that: (1) the plaintiff engaged in activity protected by the First Amendment, (2) the employer responded with retaliatory action sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) the protected activity was the cause of the retaliatory action. Lauren W. ex rel. Jean W. v. Deflaminis, 480 F.3d 259, 267 (3d Cir. 2007); Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006).
It is undisputed that in early 2009, the Department of Revenue began identifying positions to be eliminated due to drastic budget reductions necessitated by unprecedented revenue shortfalls, and eventually identified approximately 350 positions for elimination. Vacant positions were eliminated first, but 85 filled positions still had to be eliminated, and plaintiff‟s position was among them. Pursuant to this process, plaintiff was furloughed from her employment with the Department of Revenue on August 14, 2009, effective August 28th.
Nevertheless, plaintiff insists that her position was eliminated, not as a result of this unprecedented budget-position reduction, but because DeLuca influenced Stetler to fire her in retaliation for her testifying against DeLuca in a state grand jury proceeding. All of the record evidence, and all of the undisputed facts,*fn2 support the defendants‟ position; ...