The opinion of the court was delivered by: (judge Caputo)
Presently before the Court is the defendants' motion for summary judgment. (Doc. 77.) For the reasons explained below, summary judgment will be granted in favor of the defendants on all of the plaintiff's federal claims. The remaining state law claims will be dismissed without prejudice.
At the time of the events giving rise to this action, Cheryl Slater was employed as a corrections officer at the Susquehanna Correctional Facility and was fired.
Following her termination, Slater filed her second amended complaint against defendants, two of whom have been dismissed. The remaining defendants are the county, the correctional facility, the prison board, and two wardens. Slater alleges that she was retaliated against for exercising her First Amendment rights, that she suffered age and gender discrimination, and that this alleged retaliation and discrimination occurred pursuant to a conspiracy. She also brings state law claims of civil conspiracy, intentional infliction of emotional distress, wrongful discharge, and violation of the Pennsylvania Human Relations Act.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Â§ 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." 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 initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
B. Slater's Reporting of Alleged Misconduct is Not Protected Speech
In Counts I and II of the second amended complaint, Slater brings First Amendment claims. Slater alleges that the defendants retaliated against her for exercising her First Amendment rights to free speech. The second amended complaint broadly states that she was retaliated against for "reporting conduct which placed the prisoner, the prisoners and Correctional Officers in jeopardy for their safety, well-being, personal and physical integrity." (Doc. 46.) This appears to refer to an incident in February 2004 in which Slater was presented with a copy of the rules and regulations for correctional officers and asked to sign a form acknowledging her receipt and understanding of the regulations. According to Slater's deposition testimony, she initially refused to sign the form because she felt that the rules were neither being followed nor enforced. She was suspended as a result of her refusal to sign the acknowledgment form. She conferred with a representative from her union, who instructed her to sign the form under protest. She did so. She then returned to work, and was sent to see a psychiatrist. She appears*fn1 to contend that she was retaliated against for her critical statements.
Claims of First Amendment retaliation are subject to a three-step burden-shifting analysis:
First, the employee must show that the activity is in fact protected. Second, the employee must show that the protected activity "was a substantial factor in the alleged retaliatory action." Third, the employer may defeat the employee's claim by demonstrating that the same adverse action would have taken place in the absence of the protected conduct.
Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005) (internal citations omitted). The first step presents a question of law for the court, while the second and third steps present questions of fact. Id. at 127.
Employee speech may be protected when "it addresses a matter of public concern and the 'employee's interest in the speech outweighs' the employer's countervailing interest 'in promoting workplace efficiency and avoiding workplace disruption.'" The Supreme Court's decision in Garcetti v. Ceballos, 547 U.S 410, 422 (2006), held that an employee's speech is protected only when it touches on an issue of public concern that is a "contribution[ ] to the civic discourse," and "retain[s] the prospect of constitutional protection" for the employee. In Garcetti, a deputy district attorney relayed concerns to a supervisor about what he perceived to be misrepresentations in a warrant. Id. at 414. He claimed that he was subjected to retaliation based on his criticisms of the warrant. Id. at 415. In holding that these criticisms were not protected speech, the Court noted that the attorney did not speak as a citizen on a matter of public concern; he instead spoke in the course of his employment. See id. at 421. The Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their ...