The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Sherry E. Bellaman, is an employee of the Financial Enforcement Section (FES) in the Pennsylvania Office of Attorney General (OAG). She filed this lawsuit against defendants, Thomas W. Corbett, Jr., formerly Pennsylvania's Attorney General*fn1 ; Michael Roman, an FES administrative officer; Jill Keiser, an FES employee; and Bruce J. Sarteschi, the OAG Human Resources Director. Plaintiff made the following federal claims: (1) First Amendment retaliation claims based on her speech in generally reporting fraud and waste in FES and on her specific reporting to her immediate supervisor, Thomas D. Kimmett,*fn2 that she observed two FES employees throwing out financial documents important to FES's purposes; (2) a First Amendment retaliation claim based on her right of association with Kimmett; and (3) a First Amendment retaliation claim based on her right to petition the government for redress of grievances. Plaintiff made the following state-law claims: (1) intentional infliction of emotional distress; (2) civil conspiracy; and (3) a claim under the Pennsylvania Whistleblower Law, 43 Pa. Stat. Ann. §§ 1421-1428 (West 2009).
We are considering the report and recommendation of the magistrate judge, which recommends that the defendants' motion for summary judgment be granted on the federal claims and that we decline to exercise our supplemental jurisdiction over the state-law claims.
Plaintiff has filed two objections to the report. We must "make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(c).
Before addressing the merits of the objections, we note that the defendants filed (1) a motion to strike certain paragraphs of a declaration (doc. 39-2) Plaintiff had filed in opposition to the defendants' summary judgment motion and (2) a motion to strike portions of Plaintiff's counter-statement of undisputed material fact. Essentially, the basis of both motions was that there was no evidence supporting the declaration or counter-statement, just conclusory assertions. The magistrate judge agreed with both motions and relied on the defendants' statement of material undisputed facts (except for ¶ 104) to establish the summary-judgment record. He has also recommended that both motions be granted. Plaintiff has not objected to this recommendation, although she argues that even on the record as established by the magistrate judge, she is entitled to proceed with her case. Since Plaintiff does not object to the record as established by the magistrate judge, in ruling on her objections we will rely on the record as set forth in the report.*fn3
We also note that Plaintiff asserts in her brief in opposition to summary judgment, (doc. 40, p. 4), that she voluntarily dismissed defendant Corbett from this action. We see nothing on the record to indicate that, but like the defendants, we will take the statement in her brief as a request to dismiss Governor Corbett, and will grant that request. We turn now to the merits of Plaintiff's objections.
"To state a First Amendment retaliation claim, a plaintiff must allege two things: (1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action." Hill, 455 F.3d at 241. "A public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved 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." Id. at 241-42 (citing Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006)).
A public employee does not speak as a citizen when she makes a statement "pursuant to [her] official duties . . . ." Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006). If speech arises from "'special knowledge or experience'" an employee acquires while doing her job, the speech "might" be considered part of her official duties. Gorum v. Sessums, 561 F.3d 179, 185 (3d Cir. 2009)(quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)).
The magistrate judge accepted the defendants' argument that Plaintiff's First Amendment free-speech retaliation claims were meritless because her speech was made as part of her job duties and as a result of specialized knowledge or experience acquired through her job. He therefore recommended that the claims be dismissed.
Plaintiff objects to this conclusion, contending that there is no
evidence of "any guidelines, office custom, oath, or even a practice
of reporting corruption in the [OAG's] office." (Doc. 63, p.3). We
disagree. The defendants' statement of material undisputed facts, in
the paragraphs quoted by the magistrate judge at pages 26 through 28
of his report, fully support the conclusion that Plaintiff's speech
was part of her job duties, either as described or as a result of
special knowledge or experience she acquired from her job.*fn4
We will therefore dismiss the First Amendment free-speech
As to the First Amendment retaliation claim based on her right of association with Kimmett, that claim "is barely an extension of [her] free speech claim." Bell v. City of Philadelphia, 275 F. App'x 157, 160 (3d Cir. 2008)(per curiam) (nonprecedential). As such, we apply the same analysis used for free-speech claims, including the requirement that Plaintiff show that she was speaking as a citizen. Id. (applying the public-concern requirement to an associational claim that was essentially the same as the plaintiff's free-speech claim). See also Gorum, supra, 561 F.3d 179, 185 n.4 (3d Cir. 2009)(the plaintiff waived his associational claim, but even if he had not "his associational claim is linked closely enough with his free-speech claim to justify application of the citizen-speech and public-concern requirements")(citing Sanguigni v. Pittsburgh Bd. of Public Educ., 968 F.2d 393, 400 (3d Cir. 1992)). We will therefore dismiss the First Amendment retaliation claim based on Plaintiff's association with Kimmett.
Plaintiff's second objection is that the magistrate judge failed to address her petition clause claim. Specifically, she argues that her right to petition the government for redress of grievances was violated when Sarteschi retaliated against her for seeking assistance from SEAP, the State Employees Assistance Program. We reject this position because, as the defendants argue, Plaintiff only complains that Sarteschi was "aggressive, accusatory and insulting to her at three meetings after she contacted SEAP. (Doc. 40, Pl.'s Br. in Opp'n to Summary Judgment, at p. 18). This is not the type of conduct actionable in a First Amendment retaliation claim. Brennan v. Norton, 350 F.3d 399, 418-19 (3d Cir. 2003).
We will issue an appropriate order.
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE ...