The opinion of the court was delivered by: Joyner, C.J.
This civil action is again before this Court on Motion of the Defendants for the entry of Summary Judgment in their favor pursuant to Fed. R. Civ. P. 56 (Doc. No. 52). For the reasons discussed below, the motion shall be granted nearly in full.
Statement of Relevant Facts
On June 30, 2007, Plaintiff, Antonia Garcia, was hired by then-Acting Township Manager John Boyle for the position of Administrative Assistant to the Newtown Township Manager in Bucks County, Pennsylvania. The position was full-time and Plaintiff was paid $43,000 per annum plus retirement and other benefits, including health insurance coverage. At the time of her hire, Plaintiff was fifty years of age. Plaintiff's employment was subsequently terminated on September 5, 2008 by Defendant Joseph Czajkowski, who had been hired as Township Manager in December of the preceding year.*fn1 Plaintiff contends that she was unlawfully discriminated against in the terms and conditions of her employment and unlawfully terminated from her position on the basis of her sex, age and race and in retaliation for exercising her First Amendment right to freedom of speech. Plaintiff thus brought suit under 42 U.S.C. §1983, Title VII, 42 U.S.C. §2000e, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §624, et. seq., and the Pennsylvania Human Relations Act, ("PHRA"), 43 P.S. §951, et. seq. against the Township of Newtown and the individual members of its Board of Supervisors (Defendants Jirele, Ciervo, Calabro, Gallagher and Schenkman) and Joseph Czajkowski.*fn2 Discovery in this matter has now been completed and Defendants' seek the entry of judgment in their favor as a matter of law on all of the remaining claims against them pursuant to Fed. R. Civ. P. 56.
Standards for Ruling on Summary Judgment Motions Under Fed. R. Civ. P. 56(a),
A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court should state on the record the reasons for granting or denying the motion.
At the summary judgment stage, a court views the facts in the light most favorable to the non-moving party and the "judge's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Mollo v. Passaic Valley Sewerage Commissioners, 2011 U.S. App. LEXIS 1101 at *7 (3d Cir. Jan. 20, 2011)(quoting Pearson v. Component Technology Corp., 247 F.3d 471, 482 (3d Cir. 2001)). An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Id., quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998). "The mere existence of some evidence in support of the non-movant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the non-movant on the issue." Renchenski v. Williams, 622 F.3d 315, 324 (3d Cir. 2010)(quoting Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
A. First Amendment Retaliation
In Count One of her complaint, Plaintiff seeks monetary damages for the defendants' purported retaliation against her for exercising her First Amendment right to free speech. Specifically, Ms. Garcia asserts that prior to her termination in September, 2008, she had "spoken out on matters of public concern about the Defendant Township, such as sex discrimination by Township supervisor (sic) personnel and supervisors engaging in personal matters on taxpayer time (while being paid)." (Pl.'s Complaint, ¶14).
Although it had previously been the general rule that a public employee had no right to object to conditions placed upon the terms of his or her employment, including those which restricted the exercise of constitutional rights, the Supreme Court has since made clear that public employees do not surrender all of their First Amendment rights by reason of their employment. Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 1957, 164 L. Ed.2d 689 (2006) (citing, inter alia, Pickering v. Board of Education of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed.2d 811 (1968), Connick v. Myers, 461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed.2d 708 (1983) and Rankin v. McPherson, 483 U.S. 378, 384, 107 S. Ct. 2891, 97 L. Ed.2d 315 (1987)).*fn3 Indeed, the Court has recognized the right of employees to speak on matters of public concern*fn4 , typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. City of San Diego, California v. Roe, 543 U.S. 77, 80, 125 S. Ct. 521, 523-524, 160 L. Ed. 2d 410 (2004). Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification "far stronger than mere speculation" in regulating it. Id. (quoting United States v. Treasury Employees, 513 U.S. 454, 465, 475, 115 S. Ct. 1003, 130 L. Ed. 2d 964 (1995).
It is noteworthy that the protections granted by the First Amendment are not absolute. "'From 1791 to the present,' the First Amendment has 'permitted restrictions upon the content of speech in a few limited areas,' and has never 'included a freedom to disregard these traditional limitations,'" among which are speech which is obscene, fraudulent, defamatory, incites violence and/or is integral to criminal conduct. United States v. Stevens, U.S. , 130 S. Ct. 1577, 1584, 176 L. Ed.2d 435, 443-444 (2010)(quoting, inter alia, United States v. Playboy Entertainment Group, 529 U.S. 803, 817, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000); R.A.V. v. St. Paul, 505 U.S. 377, 382-383, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976); Brandenberg v. Ohio, 395 U.S. 444, 447-449, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969); Roth v. United States, 354 U.S. 476, 483, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957); Beauharnais v. Illinois, 343 U.S. 250, 254-255, 72 S. Ct. 725, 96 L. Ed. 919 (1952)); Policastro v. Tenafly Board of Education, 710 F. Supp. 2d 495, 503-504 (D. N.J. 2010).
"To reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission, the [Supreme] Court [in Pickering, supra.] adopted a balancing test," which requires a court evaluating restraints on a public employee's speech to balance 'the interests of the employee as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" San Diego, 543 U.S. 82, 125 S. Ct. at 524-525 (quoting Pickering, 391 U.S. at 568); Rankin, 483 U.S. at 384, 107 S. Ct. at 2896-2897; and Connick, 461 U.S. at 140, 103 S. Ct. at 1686). See Also, Beckinger v. Township of Elizabeth, 697 F. Supp. 2d 610, 622 (W.D. Pa. 2010)("Where implicated, the interest of the employee in speaking as a citizen on a matter of public concern must be weighed against the employer's interest in promoting the efficiency of the public services it performs through its employees").
The threshold question in applying the Pickering balancing test is whether the employee's speech may be "fairly characterized as constituting speech on a matter of public concern." Rankin, 483 U.S. at 384, 107 S. Ct. at 2897 (quoting Connick, 461 U.S. at 146, 103 S. Ct. at 1689). "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement as revealed by the whole record." Id. (quoting Connick, 461 U.S. at 147-148, 103 S. Ct. at 1690)); Beyer v. Duncannon Borough, 2011 U.S. App. LEXIS 7793 at *11 (3d Cir. 2011). "As in other First Amendment cases, the court is obligated 'to make an independent examination of the whole record' in order to make sure that the 'judgment does not constitute a forbidden intrusion on the field of free expression.'" Snyder, 131 S. Ct. at 1216 (quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984) and New York Times Co. v. Sullivan, 376 U.S. 254, 284-286, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964)). "In considering content, form, and context, no factor is dispositive, and it is necessary to evaluate all the circumstances of the speech, including what was said, where it was said, and how it was said." Id.
Once done, the court must then ascertain whether it may read the complaint as alleging that the employee was speaking as a "citizen." Beyer, at *9. "[W]hen 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 communications from employer discipline." Garcetti, 126 S. Ct. at 1960. "[T]he 'proper inquiry' into what are an individual's official duties 'is a practical one'" such that "'[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform.'" Gorum v. Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)(quoting Garcetti, 547 U.S. at 424). Instead, "a claimant's speech might be considered part of his official duties if it relates to 'special knowledge' or 'experience' acquired through his job." Id. (citing Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)).
To summarize, in order to state a First Amendment retaliation claim, a public employee plaintiff must show (1) that his activity is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action. Knight v. Drye, 375 Fed. Appx. 280, 2010 U.S. App. LEXIS 7746 (3d Cir. April 14, 2010); Gorum, 561 F.3d at 184; Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). The first factor is a question of law; the second factor is a question of fact. Hill, supra. (citing Curinga v. City of Clairton, 357 F.3d 305, 310 (3d Cir. 2004)). If these two elements are satisfied, the burden shifts to the defendants to demonstrate that the same action would occur if the speech had not occurred. Gorum, at 184; Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). "A public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement concerned a matter of public concern, and (3) the government employer did not have an 'adequate justification for treating the employee differently from any other member of the general public' as a result of the statement he made.'" Hill v. Kutztown, 455 F.3d at 241-242 (quoting Garcetti, 126 S. Ct. at 1958)). The content of the speech may also help to characterize it as relating to a matter of social or political concern of the community if, for example, the speaker seeks to "bring to light actual or potential wrongdoing or breach of public trust" on the part of government officials. Holder v. City of Allentown, 987 F.2d 188, 195 (3d Cir. 1993)(quoting Connick, 461 U.S. at 148)). Thus, "speech disclosing public officials' misfeasance is protected while speech intended to air personal grievances is not." Swineford v. Snyder County, PA, 15 F.3d 1258, 1271 (3d Cir. 1994). In accord, Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001).
Applying these precepts to the case at hand, it appears from the record that Plaintiff is basing her First Amendment retaliation claim on: (1) her refusal to continue to accompany Assistant Township Manager John Boyle and one of her co-workers, Pat Davidson, when they went out for drinks after work and/or to lunch because she was opposed to their having an affair when and while they were married to other people; (2) her observations that Mr. Czajkowski and Mr. Boyle were "never ... at work;" and (3) Mr. Czajkowski's failure to address her complaint that she was being discriminated and retaliated against and harassed by Mr. Boyle and Ms. Davidson. (Pl.'s Deposition, pp. 90-93, 104-139).
There is no evidence on this record, however, that Ms. Garcia ever spoke to anyone about the relationship between Mr. Boyle and Ms. Davidson except for informing Ms. Davidson that she "didn't feel right about" accompanying them for drinks or meals and that she therefore "wasn't going to do it anymore." (Pl's Dep., pp. 107-110; Dep. of J. Czajkowski, pp. 83). While it does appear that Mr. Boyle violated the Township's "no fraternization" policy by engaging in an inappropriate relationship with Ms. Davidson, we cannot find that Plaintiff's declaration of personal discomfort to Ms. Davidson constituted First Amendment-protected speech. Summary judgment shall therefore be granted insofar as this aspect of Count One is concerned.
We reach the same conclusion with respect to Ms. Garcia's complaint about the way she was being treated in the workplace by Mr. Boyle and Ms. Davidson after she advised Ms. Davidson that she no longer wished to join them for drinks and lunch outside of the office. Indeed, Ms. Garcia did not speak publicly about the evils of discrimination and/or harassment in general; rather she complained privately about wrongdoing that she herself had suffered. (Pl's Dep., pp. 117-135; Dep. of Jerry Schenkman, pp. 13-20). "This conversation, while protected under Title VII, has little or no 'instrumental value to the community in enabling self-governance,' and thus does not appear to have addressed a matter of sufficient public concern to warrant First Amendment protection." Zelinski v. Pennsylvania State Police, 108 Fed. ...